Marko v. Zurich North America Insurance

902 A.2d 292, 386 N.J. Super. 527, 2006 N.J. Super. LEXIS 206
CourtNew Jersey Superior Court Appellate Division
DecidedJuly 18, 2006
StatusPublished
Cited by9 cases

This text of 902 A.2d 292 (Marko v. Zurich North America Insurance) 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
Marko v. Zurich North America Insurance, 902 A.2d 292, 386 N.J. Super. 527, 2006 N.J. Super. LEXIS 206 (N.J. Ct. App. 2006).

Opinion

The opinion of the court was delivered by

COLLESTER, J.A.D.

On July 27, 2000, plaintiffs Christina Marko and George Marko filed a personal injury suit in the Law Division, Middlesex County, against People Pleasers, Inc., which was insured by defendant, Zurich North America Insurance Company (Zurich). A jury verdict was returned against People Pleasers, Inc. assessing fifty-one percent negligence with forty-nine percent against plaintiff Mrs. Marko. The jury verdict on damages was in the gross amount of $506,575.36, which the trial judge reduced by forty-nine percent, the comparative negligence assessed to Mrs. Marko, for a net award of $258,353.43. The trial judge calculated pre-judgment interest in the amount of $14,896.65 pursuant to R. 4:42-ll(b) and [529]*529entered judgment in favor of plaintiffs and against People Pleasers for the total amount of $273,250.08.

On March 25, 2004, plaintiffs filed a notice of appeal from the calculated amount of pre-judgment interest, asserting that the July 1, 2003, amendment to R. 4:42 — 11(b), prohibiting pre-judgment interest for future economic losses, should not be applied retroactively to a lawsuit commenced prior to that date or, alternatively, the rule should be relaxed in the interest of justice. While the appeal was pending, plaintiffs filed an order to show cause on June 6, 2004, in the Mercer County Law Division to convert the judgment obtained against People Pleasers to a judgment against Zurich and to award post-judgment interest, counsel fees, costs and litigation expenses. Defendant answered and obtained an order transferring venue to Middlesex County. On January 14, 2005, we filed our opinion on plaintiffs’ appeal of the amount of pre-judgment interest awarded, concluding that “plaintiffs’ contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:ll-3(e)(l)(E).” Less than two weeks later, on January 25, 2005, plaintiffs’ counsel sent a letter to Zurich’s attorney demanding post-judgment interest in the amount of $10,244.61. Defense counsel responded by saying that Zurich was willing and able to pay the original judgment amount.

Although the matter had been remanded back to Middlesex County because of the unavailability of the trial judge who heard the personal injury case, plaintiffs action seeking judgment against Zurich and post-judgment interest was heard by another judge who gave the following decision:

Reviewing everything that I have in reference to this issue, I am going to grant a judgment in the amount of $11,794.28. However, I will not allow for attorneys’ fees or court costs. There’s a certain measure of — of this action that seems to be more than advocacy on the part of the plaintiffs in reference to this. I am going to award it, but I would not reward them with attorneys’ fees or costs in reference to this matter.

On June 17,2005, the hearing judge entered the following order:

[Jjudgment is hereby entered in favor of the plaintiff Christina Marko against the defendant Zurich Insurance Company of North American as follows: $258,353.43 representing the net award of the jury verdict, $14,896.65 pursuant to B. 4:42 — 11(b) [530]*530representing pre-judgment interest, and $11,794.28 representing post-judgment interest pursuant to R. 4:42 — 11 (a) (ii) for a total judgment of $285,044.36.

Defendant Zurich appeals from this order on grounds that there was no basis to convert a judgment against People Pleasers to one against Zurich, that the issue of post-judgment interest should have been decided by the judge who presided over the negligence trial, and that the award of post-judgment interest was an abuse of discretion. Plaintiffs cross-appeal from the denial of counsel fees, asserting entitlement under R. 4:42-9 and R. 4:58-2.

We first address the judgment entered against Zurich. Plaintiff claims standing as a third-party beneficiary to the insurance contract which would entitle her to effect a judgment against Zurich. While plaintiff argues that People Pleasers is unable to satisfy the judgment, that fact is irrelevant to the issue. No suggestion is made that Zurich was financially unstable, that it was disclaiming coverage, or was refusing to pay. On the contrary, the record indicates that from the outset Zurich proffered the amount of the judgment, declining to pay pre-judgment interest, a position upheld by us in the prior appeal. There is nothing to indicate that Zurich breached its obligations to People Pleasers or that plaintiff was a third-party beneficiary to the insurance contract. Therefore, the judgment entered against Zurich was erroneous.

Zurich also contends that the trial court abused its discretion in awarding plaintiffs $11,794.28 in post-judgment interest. It argues that the delay in payment of the judgment was due to plaintiffs’ “meritless appeal” and the subsequent complaint seeking judgment against the insurance company, which plaintiffs filed in a different county.

As a matter of historical practice, post-judgment interest is routinely awarded. See, e.g., Erie Railway Co. v. Ackerson, 33 N.J.L. 33, 36 (Sup.Ct.1868); Simon v. N.J. Asphalt & Paving Co., 123 N.J.L. 232, 234, 8 A.2d 256 (Sup.Ct.1939); Cohrs v. Igoe Bros., Inc., 66 N.J.Super. 526, 528, 169 A.2d 524 (Law Div.1961), aff'd, in part, rev’d in part, 71 N.J.Super. 435, 177 A.2d 284 (App.Div.[531]*5311962). More recently in Board of Educ. of the City of Newark v. Levitt, 197 N.J.Super. 239, 484 A.2d 723 (App.Div.1984), we held that the Commissioner of Education was vested with statutory jurisdiction to award post-judgment interest against a public body. In so holding, we stated:

[I]n the ease of private litigants, the grant of post-judgment interest is ordinarily not an equitable matter within the court’s discretion but is, as a matter cf longstanding practice, routinely allowed [citations omitted]. This practice has been codified by court rule. See R 4:42-ll(a), providing for post-judgment interest on all judgments, awards and orders for the payment of money “except as otherwise ordered by the court and except as otherwise may be provided by law.” The rule, by its own terms, applies to all money judgments irrespective of the identify and status of the judgment debtor. Nor is there any general statute prohibiting post-judgment interest against public bodies. They are, as a matter of customary practice, subject to post-judgment interest unless the court for good cause otherwise orders.
[Id. at 244-45, 484 A.2d 723 (emphasis supplied).]

Two opinions of this court, both authored by Judge (now Justice) Long dealt with the issue in passing. In R. Jennings Mfg. v. Northern Electric, 286 N.J.Super. 413, 418, 669 A.2d 819

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Bluebook (online)
902 A.2d 292, 386 N.J. Super. 527, 2006 N.J. Super. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marko-v-zurich-north-america-insurance-njsuperctappdiv-2006.