Appellate Law NJ Blog
  • Home
  • Bruce Greenberg

High-Low Agreement Did Not Permit Plaintiff to Recover Attorneys’ Fees and Expenses Above the “High” Figure

Posted by Bruce D. Greenberg on Jul 19, 2018 in Attorneys fees, Contract interpretation, Judges, Supreme Court of New Jersey | 0 comments

Serico v. Rothberg, 234 N.J. 168 (2018).  As discussed here, last year, the Appellate Division ruled in this medical malpractice case that a “high-low agreement” is a contract, and that where the agreement did not provide for plaintiff to recover attorneys’ fees and litigation expenses in addition to the “high” amount, plaintiff could not be awarded such fees and expenses under Rule 4:58.  Plaintiff sought and obtained review by the Supreme Court.  Today, the Court affirmed in a unanimous opinion by Justice Fernandez-Vina.

Justice Fernandez-Vina observed that there were no disputed facts, so the de novo standard of review applied to the purely legal issue presented.  After discussing Rule 4:58, which governs offers of judgment before trial, the Court agreed with the Appellate Division that a high-low agreement “is a settlement contract and subject to the rules of contract interpretation.”

Justice Fernandez-Vina distinguished such an agreement from a Rule 4:58 offer of judgment, as “it serves a different purpose and provides distinct benefits.”  An offer of judgment “is designed to encourage parties to settle claims that ought to be settled, saving time, expense, and averting risk, while the specter of the continued prosecution of the lawsuit remains.  A high-low agreement, in contrast, only mitigates the risk faced by the litigants– it saves no time or expense related to litigation and requires the full panoply of judicial process, up to and including a jury verdict.”

The parties’ high-low agreement was between $300,000 and $1,000,000.  Colloquy before the trial court about the agreement did not include any discussion of fees and expenses.  Justice Fernandez-Vina thus concluded that there was “a meeting of the minds on both the floor and ceiling of Serico’s recovery, including fees and expenses.  Because the superseded the qualifying offer of judgment, if Serico desired Rule 4:58 expenses, she would have been required to explicitly preserve the right to pursue them when entering into the high-low agreement in this case.”  She did not do so, and thus she was not entitled to those expenses on top of the $1 million “high,” which was the amount that she in fact got, since the jury came back with a $6 million verdict.

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

About the Author

Bruce D. Greenberg, a partner of Lite DePalma Greenberg, LLC, has more than 35 years of appellate experience.  He has argued dozens of cases in New Jersey’s Appellate Division, and he has handled oral arguments in the Supreme Court of New Jersey and the Third Circuit Court of Appeals as well.  Mr. Greenberg’s appellate cases have ranged from . . more

 

Subscribe

  • reader reader
  • Subscribe to Appellate Law NJ Blog by Email

Archives

Links

  • An Appeal to Reason – California Appellate blog
  • Appellate Briefs
  • Class Action Blawg
  • De Novo- Virginia Appellate Law blog
  • Fast Five on Rhode Island Appellate Practice
  • Florida Appellate Review
  • How Appealing
  • Maine Appeals Blog
  • New York Appellate Law blog
  • NJ Judiciary
  • On Brief – Iowa Appellate Law Blog
  • Third Circuit Blog
  • Third Circuit Court of Appeals

Categories

  • Administrative agency actions
  • Administrative matters
  • Appellate Division
  • Attorneys fees
  • Case management
  • Chancery issues
  • Class actions
  • Constitutional law
  • Consumer protection
  • Contract interpretation
  • Criminal law
  • Discovery
  • Effect of decisions by other courts
  • Judges
  • Jury issues
  • Municipal land use
  • Notable opinion writing
  • Pleadings
  • Practice Pointers
  • Standards of review
  • Statutory interpretation
  • Summary judgment
  • Supreme Court of New Jersey
  • Third Circuit Court of Appeals
  • Uncategorized
  • United States Supreme Court

Tags

Administrative agency actions Appendix Arbitration Briefs Chief Justice Stuart Rabner Court Rules Family Part Grammar interlocutory vs. final decisions Judge Anthony Parrillo Judge Carmen Messano Judge Clarkson Fisher Judge D. Brooks Smith Judge Douglas Fasciale Judge Edwin Stern Judge Ellen Koblitz Judge Jack Sabatino Judge Jose Fuentes Judge Julio Fuentes Judge Kent Jordan Judge Marianne Espinosa Judge Marie Lihotz Judge Mary Catherine Cuff Judge Michael Haas Judge Mitchel Ostrer Judge Patty Shwartz Judge Stephen Skillman Judge Susan Reisner Judge Thomas Ambro Judge Thomas Hardiman Judge Thomas Vanaskie Judge Victor Ashrafi Justice Anne Patterson Justice Barry Albin Justice Helen Hoens Justice Jaynee LaVecchia Justice Lee Solomon Justice Roberto Rivera-Soto Law of the case Makeup of court Notice of appeal Prerogative writ appeals Standing Statute of limitations Waiver

Designed by Elegant Themes | Powered by Wordpress