SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4337-96T1
ROXANNE WILLIAMS,
Plaintiff-Appellant,
v.
SHOP RITE OF LACEY TOWNSHIP,
Defendant-Respondent.
__________________________________________________________
Submitted April 1, 1998 - Decided April 17, 1998
Before Judges D'Annunzio, Rodríguez and Coburn
On appeal from the Superior Court of New Jersey,
Law Division, Ocean County.
Drazin and Warshaw, attorneys for appellant
(Roy D. Curnow, on the brief).
Wolff, Helies & Duggan, attorneys for respondent
(John T. Bazzurro, on the brief).
The opinion of the court was delivered by
D'ANNUNZIO, J.A.D.
Plaintiff commenced this personal injury action as the result of a fall on defendant's premises. The matter was submitted to arbitration as required in N.J.S.A. 2A:23A-20 et seq. and R. 4:21A-1(a)(2). See generally Hartsfield v. Fantini, 149 N.J. 611 (1997); Coughlin v. Morell, 222 N.J. Super. 71 (App. Div. 1987). The arbitrators determined that defendant was one
hundred percent liable for plaintiff's injury and awarded
plaintiff $15,000.
Plaintiff rejected the award and demanded a trial de novo.
See R. 4:21A-6(b)(1). A jury apportioned liability equally to
plaintiff and defendant and determined that plaintiff's damages
totaled $35,000. Judgment was entered in plaintiff's favor in
the amount of $17,500, together with interest of $1,860.51 and
taxed costs of $210, for a total judgment of $19,570.51.
Defendant moved for reimbursement of counsel fees and costs
under R. 4:21A-6(c)(1). This rule provides that the person
demanding a trial de novo "may be liable to pay the reasonable
costs, including attorney's fees, incurred after rejection of the
award by those not demanding a trial de novo." The rule further
provides, however, that "no costs shall be awarded if the party
demanding the trial de novo has obtained a verdict at least
twenty percent more favorable than the award." Ibid. (emphasis
added).
The trial court granted defendant's motion because the
verdict of $17,500 was not "at least twenty percent more
favorable than the [arbitrators'] award" of $15,000.
Consequently, the trial court awarded defendant fees and costs in
the amount of $1,250.
Plaintiff contended below and contends on appeal that the
verdict was close enough to the arbitrators' award "such that
plaintiff should not be penalized." Plaintiff also contends that
the judgment exceeded the twenty percent threshold amount because
it included prejudgment interest. The trial court rejected these
arguments as well as plaintiff's motion for reconsideration. We
now affirm.
There is no ambiguity in R. 4:21A-6(c)(1). It requires a
comparison of the trial "verdict" with the arbitrators' award.
Under R. 4:21A-5(b), a plaintiff is entitled to pre-judgment
interest on an arbitrator's award. The award in the present case
was reported on a form prepared by the Administrative Office of
the Courts which calls for a report of damages "exclusive of
prejudgment interest." As previously indicated the arbitrators
awarded plaintiff $15,000 in damages, exclusive of interest.
Plaintiff, therefore, would have us compare a trial judgment
inclusive of pre-judgment interest with an arbitrators' award
which did not include pre-judgment interest. Such a procedure
would be irrational.
A comparison of the trial judgment, inclusive of interest,
with an arbitrators' award, inclusive of interest calculated on
the date of the award, also would be flawed. The amount of
interest included in the trial court judgment would depend on the
passage of time between the arbitration proceeding and the demand
for a trial de novo. In the event of a substantial delay, a
verdict less than the arbitrators' award may result in a judgment
substantially greater than the amount of the award when the
interest accruing during the delay is added.
We conclude that the damages verdict rendered at trial must
be compared with the arbitrators' damages award, both exclusive
of pre-judgment interest.
Affirmed.