Jacobsen v. Dara

62 A.3d 942, 430 N.J. Super. 190, 2013 WL 1024120, 2011 N.J. Super. LEXIS 240
CourtNew Jersey Superior Court Appellate Division
DecidedSeptember 16, 2011
StatusPublished
Cited by1 cases

This text of 62 A.3d 942 (Jacobsen v. Dara) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacobsen v. Dara, 62 A.3d 942, 430 N.J. Super. 190, 2013 WL 1024120, 2011 N.J. Super. LEXIS 240 (N.J. Ct. App. 2011).

Opinion

GIZINSKI, J.S.C.

BACKGROUND

This is a medical malpractice ease commenced by plaintiffs Roland and Elaine Jacobsen on July 9, 2009. Plaintiffs have amended their complaint eight times, adding additional plaintiffs [193]*193in each amended complaint. With the filing of the eighth amended complaint, the total number of plaintiffs involved in the litigation has reached ninety. This matter, however, is not being tried as a class action.

On April 26, 2011, plaintiffs filed an offer of judgment pursuant to Rule 4:58-1 to -6 of $3,000,000. Pursuant to Rule 4:58-1(b), the ninety-day period for defendants to respond to the offer of judgment expired on July 25, 2011.

Immediately following the caption, the offer of judgment states, “Pursuant to Rule 4:58-1 the above named plaintiffs, hereby offer to take judgment in the following amount: $3,000,000.” Plaintiffs and defendants agree that the $3,000,000 number is a single, unallocated offer meant to satisfy the claims of all ninety plaintiffs.

Defendants now move to strike plaintiffs’ offer of judgment. They assert that Rule 4:58-4 only allows for a “single unallocated offer” in situations where a plaintiff has joined another plaintiff “for the purpose of asserting a per quod claim.”

Plaintiffs oppose defendants’ motion, arguing that the case of Wiese v. Dedhia, 354 N.J.Super. 256, 806 A.2d 826 (App.Div.2002) allows multiple plaintiffs to file a single, aggregate offer of judgment as to all of their claims.

In the alternative, plaintiffs submit that they should be permitted to file amended individual offers of judgment that would be effective as of the offer of judgment’s original filing date.

ANALYSIS

The rules governing offers of judgment, as set forth in Rules 4:58-1 to -6, were “designed particularly as a mechanism to encourage, promote, and stimulate early out-of-court settlement . . . .” Crudup v. Marrero, 57 N.J. 353, 361, 273 A.2d 16 (1971). To fulfill its purpose, the rule “imposes financial consequences on a party who rejects a settlement offer that turns out to be more favorable than the ultimate judgment.” Schettino v. Roizman Dev., 158 N.J. 476, 482, 730 A.2d 797 (1999).

[194]*194Rule 4:58-1 permits a party, in anything other than a matrimonial action, and at any time prior to twenty days in advance of the trial date, to offer to take judgment for a sum stated. Rule 4:58-2(a) sets forth the consequences of rejecting such an offer:

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 on the amount of any money recovery from the date of the offer or the date of completion of discovery, whichever is later, but only to the extent that such prejudgment interest exceeds the interest prescribed by Rule 4:42-11(b), which also shall be allowable; and (3) a reasonable attorney’s fee for such subsequent services as are compelled by the nonacceptance.

A. Defendants’ Motion to Strike Plaintiffs’ Offer of Judgment

Defendants move to strike plaintiffs’ offer of judgment. They assert that Rule 4:58-4 only allows for a “single unallocated offer” in situations where a plaintiff has joined another plaintiff “for the purpose of asserting a per quod claim.”

Plaintiffs oppose defendants’ motion, arguing that the case of Wiese, supra, 354 N.J.Super. 256, 806 A.2d 826, allows multiple plaintiffs to file a single, aggregate offer of judgment as to all of their claims. Plaintiffs acknowledge that the issue in the Wiese case was whether the plaintiffs, husband and wife, were permitted to file a single offer of judgment or whether each plaintiff was required to file individual offers of judgment. Under these facts, the court permitted a single offer of judgment. Id. at 261, 806 A.2d 826.

Plaintiffs, however, read Wiese too broadly. The holding was clearly limited to spousal plaintiffs. Id. at 262, 806 A.2d 826 (“[T]he offer of judgment rule’s effectiveness ... would be undermined if it were construed to require spousal plaintiffs with interrelated claims, in the absence of any conflict of interest, to submit separate offers of judgment.”). The Wiese decision specifically warns of the dangers of a more expansive interpretation, noting that “[i]n some cases involving unrelated plaintiffs with [195]*195entirely distinct claims, a potential conflict of interest may arise ... construing Rule 4:58-1 to include joint settlement offers may deprive the defendant of the ability to evaluate each individual offer separately.” Id. at 263-64, 806 A.2d 826.

Since the Wiese decision, the Supreme Court has adopted paragraph (a) of Rule 4:58-4, which became effective on September 1, 2004. This rule governs the ability of multiple plaintiffs to make a single, unallocated offer. It states that “[i]f a party joins as plaintiff for the purpose of asserting a per quod claim, the claimants may make a single unallocated offer.” This paragraph essentially codified the decision in Wiese, which, as previously mentioned, held that spousal plaintiffs with interrelated claims can submit a joint offer of judgment for resolution of the entire case.

Other than for per quod claimants, Rule 4:58-4(a) makes no mention of allowing a single, unallocated offer of judgment for multiple plaintiffs. In Parish v. Parish, 412 N.J.Super. 39, 56, 988 A.2d 1180 (App.Div.2010), the Appellate Division applied an ex-pressio unius est exclusion alteñus analysis in its interpretation of Rule 1:6-2(c)’s requirement of a good-faith attempt to resolve disputes before filing a motion. The Appellate Division held that Rule 1:6-2(e)’s requirement could only be imposed in “pretrial discovery” and “calendar motions” because they are the only types of motions expressly mentioned in the rule. The Appellate Division observed that “[i]f the Supreme Court intended to extend these restrictions to cover motion practice universally, it would have done so. The Court purposely did not do so . . . .” Id. at 55, 988 A.2d 1180.

As in Parish, this court finds that the Supreme Court, when adopting Rule

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62 A.3d 942, 430 N.J. Super. 190, 2013 WL 1024120, 2011 N.J. Super. LEXIS 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacobsen-v-dara-njsuperctappdiv-2011.