Serico v. Rothberg

• Decision Date: 19 July 2018
• Docket Number: 079041,A-69 September Term 2016
• Citation: 234 N.J. 168,189 A.3d 343
• Parties: Lucia SERICO, Executrix of the Estate of Benjamin Serico, deceased, and Lucia Serico, Individually, Plaintiffs-Appellants, v. Robert M. ROTHBERG, M.D., Defendant-Respondent, and Mountainside Hospital and Richard Roe, M.D., Defendants.
• Court: New Jersey Supreme Court

234 N.J. 168

189 A.3d 343

Lucia SERICO, Executrix of the Estate of Benjamin Serico, deceased, and Lucia Serico, Individually, Plaintiffs-Appellants,

v. Robert M. ROTHBERG, M.D., Defendant-Respondent,andMountainside Hospital and Richard Roe, M.D., Defendants.

A-69 September Term 2016

079041

Supreme Court of New Jersey.

Argued April 9, 2018

Decided July 19, 2018

Bruce H. Nagel, Roseland, argued the cause for appellants (Nagel Rice, attorneys; Bruce H. Nagel and Robert H. Solomon, on the briefs).

James B. Sharp, Florham Park, argued the cause for respondent (Schenck Price Smith & King, attorneys; James B. Sharp, of counsel and on the brief, and Benjamin Hooper, on the brief).

JUSTICE FERNANDEZ-VINA delivered the opinion of the Court.

This appeal arises from plaintiff Lucia Serico's¹ motion for attorney's fees and other litigation expenses pursuant to Rule 4:58 after a jury trial on medical malpractice claims against Robert M. Rothberg, M.D. At issue is whether Serico may collect attorney's fees from Rothberg despite entering into a "high-low agreement"² that limited the amount she could recover at trial to $1,000,000. We determine that the high-low agreement is a settlement subject to the rules of contract interpretation. Accordingly, based on the expressed intent of the parties and the context of the agreement, we find that the agreement set $1,000,000 as the maximum recovery. Therefore, Serico may not seek additional litigation expenses allowed by Rule 4:58. The judgment of the Appellate Division is accordingly affirmed.

I.

A.

This claim arose from Rothberg's negligent failure to diagnose Benjamin Serico -- who unfortunately passed away before trial -- with colon cancer

. Before trial, in April 2014, Serico served Rothberg with an offer of judgment for $750,000 "inclusive of costs and prejudgment interest." The offer letter contained a warning that Serico would seek "all reasonable litigation expenses including costs, interest, and attorney's fees in accordance with Rule 4:58," the rule governing offers of judgment. Rothberg declined the offer.

During trial, in October 2015, the parties entered into a high-low agreement on the record. The "low" was $300,000 and the "high" was $1,000,000. Neither party mentioned Rule 4:58, nor did they explicitly waive or preserve rights pursuant to the Rule. While the parties did not address the issue of attorney's fees and other litigation expenses, the trial transcript reveals the scope of the agreement. Rothberg's counsel stated:

We've offered a high low settlement agreement to the plaintiff, which the plaintiff has at this time accepted. The terms are $1,000,000 for the high, and $300,000.00 for the low.

And with specificity, that means that if there is a no cause, [Serico] gets $300,000.00. If there is a verdict in favor of [Serico] in excess of $1,000,000, [Serico] gets $1,000,000.

If there is a verdict in favor of [Serico] ... for an amount of money of any point between $300,000.00 and $1,000,000, [Serico] gets that amount of money without interest. So if the verdict is for $600,000.00, [Serico] gets $600,000.00, period. Okay?

There will be no appeal. In the event of a hung jury, [Serico's counsel] has the option of either accepting the low figure of $300,000.00, or opting for a new trial at his option at that time. He does not have to make that decision now. He can make it at that time.

Upon further questioning by the trial judge, both parties agreed the "medical expenses are subsumed within the amount" of the agreement. Serico's counsel asked for clarification that Rothberg did not have insurance coverage in excess of $1,000,000:

Also, Judge, I do have my client in court today just to confirm that what she and the boys have agreed to a [$300,000] low, [$1,000,000] high.

And also I'd like Mr. Sharp to represent that there is no excess coverage other than [$1,000,000], that that's the policy.

Counsel confirmed the policy limit with an insurance representative in the courtroom.

The jury awarded Serico a total amount of $6,000,000. The court entered judgment in the amount of $1,000,000 as specified in the agreement. Serico moved for litigation expenses, including attorney's fees, pursuant to Rule 4:58-2. The trial court denied the motion, applying a custom and usage analysis. The trial court relied on his forty-two years of experience as an attorney and judge, and conferred with judicial colleagues. The judge determined that he had never encountered a litigant who sought costs and fees pursuant to the offer of judgment rule after entering into a high-low agreement. Serico appealed.

B.

An Appellate Division panel affirmed the trial court's decision in a published opinion, but applied different reasoning. Serico v. Rothberg, 448 N.J. Super. 604, 154 A.3d 723 (App. Div. 2017). The panel determined that Serico "could not recover any amount beyond the ‘high’ ... because the [high-low] agreement limit[ed] the total amount of [Rothberg's] obligation to that amount." Id. at 613, 154 A.3d 723. Because such agreements are contracts, the panel continued, the terms are to be enforced as written, if clear. Id. at 614, 154 A.3d 723. In the interest of encouraging settlement, a plaintiff cannot recover more than the "high" of the agreement unless she explicitly preserves the right to seek more. Id. at 615-16, 154 A.3d 723.

Serico petitioned this Court for certification, which we granted. 230 N.J. 416, 168 A.3d 1178 (2017).

II.

A.

Serico argues that Rule 4:58, by its plain language, compels the ordering of litigation expenses, including attorney's fees, to be paid by Rothberg. Moreover, she asserts, because the high-low agreement is a contract, and the parties did not discuss the offer of judgment rule in relation to the agreement, there was no meeting of the minds creating an enforceable contract on that issue.

Serico contends that the intent of the parties must govern in interpreting the agreement, but cautions the Court against finding a "secret, unexpressed intent." She emphasizes that a high-low agreement cannot automatically waive the right to seek litigation expenses. Any waiver of her right to expenses pursuant to Rule 4:58 would have to be explicit or implied, according to Serico.

B.

Rothberg agrees that high-low agreements are contracts and should be subject to traditional rules of contract interpretation by the courts. He urges the Court to enforce the agreement in accordance with its plain meaning and not the secret or unexpressed intent of the parties. Rothberg contends that a basic assumption of high-low agreements is that "a plaintiff cannot recover more than the amount agreed to as the ‘high’ limit." Because Serico did not express her intention to pursue Rule 4:58 expenses during negotiations, and the intention was not placed on the record with the rest of the agreement, Rothberg stresses her recovery is limited to the high-low agreement's clear terms.

Rothberg argues that a 2008 Appellate Division case, Malick v. Seaview Lincoln Mercury, which considered the relationship among high-low agreements, Rule 4:58 expenses, and prejudgment interest, is in agreement with the panel's decision in this case. 398 N.J. Super. 182, 940 A.2d 1221 (App. Div. 2008). There, Rothberg continues, the plaintiff specifically reserved his right to the offer of judgment remedy despite the high-low agreement. Here, Rothberg reasons that because Serico did not express her intent to pursue Rule 4:58 expenses, she is limited to the agreement.

III.

There are no disputed facts in this case and we review only the application of law to established facts. Thus, our review is de novo. Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

IV.

We begin our analysis with a brief discussion of Rule 4:58 and its purposes. We then apply the rule to the high-low agreement that is the subject of this dispute.

A.

Rule 4:58 prescribes the process and consequences of making a pre-trial offer of judgment. The "fundamental purpose of the rule" is to induce settlement. Pressler & Verneiro, Current N.J. Court Rules, cmt. 1 on R. 4:58 (2018). It is "designed particularly as a mechanism to encourage, promote, and stimulate early out-of-court settlement of ... claims that in justice and reason ought to be settled without trial." Crudup v. Marrero, 57 N.J. 353, 357, 273 A.2d 16 (1971).

Rule 4:58-1 provides, in relevant part, that

any party may, at any time more than [twenty] days before the actual trial date, serve on any adverse party, without prejudice, and file with the court, an offer to take a monetary judgment in the offeror's favor, or as the case may be, to allow judgment to be taken against the offeror, for a sum stated therein (including costs). The offer shall not be effective unless, at the time the offer is extended, the relief sought by the parties in the case is exclusively monetary in nature.

[R. 4:58-1(a).]

The Rule continues:

[i]f at any time on or prior to the 10th day before the actual trial date the offer is accepted, the offeree shall serve on the offeror and file a notice of acceptance with the court. The making of a further offer shall constitute a withdrawal of all previous offers made by that party. An offer shall not, however, be deemed withdrawn upon the making of a counter-offer by an adverse party but shall remain open until accepted or withdrawn as is herein provided.

[R. 4:58-1(b).]

Finally, the Rule describes the consequences of a party's failure to accept the offer and, proceeding to trial:

if the offer of a claimant is not accepted and the claimant obtains a money judgment, in an amount that is 120% of the offer or more, excluding allowable prejudgment interest and counsel fees, the claimant shall be allowed, in addition to costs of suit: (1) all reasonable litigation expenses incurred following non-acceptance; (2) prejudgment interest of eight percent

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