A high-low agreement can protect defendants from excessive attorneys’ fees otherwise recoverable under the Offer of Judgment Rule. In Serico v. Rothberg, M.D., the New Jersey Appellate Division ruled that, absent an express reservation of rights, a party abandons its claim for attorneys' fees after entering a high-low agreement.
Pursuant to New Jersey Court Rule 4:58, a plaintiff-offeror is entitled to attorneys’ fees after obtaining a verdict that is 120% or greater than a prior offer that was not accepted; a defendant-offeror is entitled to attorneys’ fees on a verdict that is 80% or less than a prior offer that was not accepted. A high-low agreement is a commonly used method for the parties to control damages in negligence cases. The defendant agrees to pay the plaintiff a minimum sum in exchange for the plaintiff’s agreement to accept a maximum sum, regardless of the verdict.
In Serico, the plaintiff made a pre-trial offer to the defendant seeking $750,000.00 to settle the matter. The offer was never accepted and the case proceeded to trial. During jury deliberations, the parties entered into a high-low agreement, setting the “low” at $300,000.00 and the “high” at $1,000,000.00. The jury returned a $6,000,000.00 verdict in favor of plaintiff. Pursuant to Rule4:58, the plaintiff contended that she was entitled to attorneys’ fees because the verdict was more than 120% in excess of her previous unaccepted offer. The trial court denied the plaintiff’s application, ruling that the custom and usage of high-low agreements in New Jersey required plaintiffs to reserve their right to recover attorneys' fees or they would be waived.
On appeal, the plaintiff argued that attorneys’ fees were mandatory under Rule 4:58 and that, absent an express waiver, a high-low agreement is a contract that does not extinguish this right. The Appellate Division disagreed. While the Appellate Division agreed that a high-low agreement is a contract, it held that the contract must be enforced as written. As such, the Appellate Division reasoned that the high-low agreement contracts for a maximum recovery to plaintiff that cannot be exceeded absent an express provision to the contrary.
The Appellate Division’s ruling in Serico highlights one available defense to defendants against excessive attorneys’ fees. By contracting for a fixed ceiling on judgments, defendants can save some money by contractually bypassing the Offer of Judgment Rule and other fee-shifting provisions.
Appellate Division Approves Equitable Relief to Plaintiff Seeking Contribution under the New Jersey Spill Compensation and Control Act
In Matejek v. Gilmore, et al., Superior Court of New Jersey, Appellate Division, Docket No. A-4683-14T1, the Appellate Division affirmed the Trial Court’s ruling which ordered defendants to share in costs for investigating and possibly remediating an alleged oil contamination. Approximately ten years ago, oil was found on the surface of a tributary in Hillsborough, New Jersey. Thereafter, the New Jersey Department of Environmental Protection (NJDEP) removed five underground storage tanks, one from each of five adjoining condominium units. However, the NJDEP took no further action, other than a site visit to confirm the absence of oil in the tributary several months later. In fact, the NJDEP’s file remained open, which constituted a cloud on the title to all five condominium units.
Plaintiffs, owners of one of the condominium units, sued the owners of the other four units, seeking a judgment to compel the other owners to participate in, and equally share in, an investigation, and, if necessary, remediation of the property. After a bench trial, the Trial Court granted plaintiffs’ demand for relief and ordered all the unit owners to equally share in the investigation and possible remediation, finding that the fact that the NJDEP had removed all five tanks was sufficient to impose an obligation on the impacted parties to participate.
Defendants-Appellants argued that plaintiff lacked standing to bring suit to compel investigation and cleanup under the Spill Act, the Trial Court lacked jurisdiction to enter the judgment, and the Spill Act does not permit and the facts did not warrant the relief granted. The Appellate Division, however, affirmed, holding that the circumstances did not preclude the imposition of an equitable remedy because, if appellants’ arguments were sustained, plaintiffs would have no way to remove the encumbrance from their title other than to solely bear the expense of investigation and remediation. Additionally, the Appellate Division found that the equitable relief granted furthered the best interests of the public in compelling a further investigation into a public health, safety and welfare issue, i.e. a potential ongoing oil contamination.
This decision reflects an important balance between the goals and purposes of the Spill Act and the problems it can create for private parties. As the burden for completing a cleanup has been shifted to private parties through legislative reform, the judiciary has recognized that this can lead to an inequitable outcome for private parties, and, therefore, inventive, equitable remedies may become necessary in circumstances such as those present in this case.
Pain from New Job Duties Insufficient to Warrant Extension for Doctor’s Report
The Appellate Division recently upheld a Law Division decision granting summary judgment for an auto insurance company in New Jersey in which plaintiff failed to submit her certification of permanency within the statutory sixty days as required by N.J.S.A. 39:6a-8(a) and a doctor’s report was not issued until after the discovery end date. In Llanes v. Allstate New Jersey Insurance Co. et al, plaintiff filed a personal injury lawsuit, as result of an October, 2011 auto accident in which her vehicle was rear-ended, against the uninsured driver, and Allstate based on her uninsured motorist coverage. After Allstate filed for summary judgment on July 17, 2014, alleging the limitation-on-lawsuit threshold was not satisfied, plaintiff alleged she was experiencing “further and greater pain.” Furthermore, plaintiff served a new doctor’s report dated July 11, 2014 in support of her argument, which for the first time gave the opinion plaintiff suffered a “permanent partial disability” that was causally related to the accident of October 10, 2011.
The issue on appeal was whether summary judgment was properly granted in favor of defendant, Allstate, after the trial court found defendant would be prejudiced in its defense of the case at such a late juncture if it permitted the late certification of permanency based on the July 11, 2014 doctor’s report. The trial court granted defendant’s motion for summary judgment because, without an expert opinion on permanency, plaintiff did not meet the limitation-on-lawsuit threshold.
In order to satisfy the limitation-on-lawsuit or “verbal threshold” of the Automobile Insurance Cost Reduction Act (AIRCA), plaintiff must submit a physician’s certified statement that “the automobile accident victim suffered from a statutorily enumerated injury.” Davidson v. Slater, 189 N.J. 166, 181 (2007). A doctor’s certification attesting to a permanent injury within a reasonable degree of medical probability satisfies the aforementioned “verbal threshold.” However, the doctor’s certification is to be served within sixty days from the defendant’s answer or, if an extension is granted for good cause, within sixty days thereafter. N.J.S.A. 39:6A-8. Late amendments to plaintiff’s interrogatories that are incomplete or inaccurate may be allowed no later than twenty days prior to the end of the discovery period. Rule 4:17-7. Amendments may be allowed thereafter “only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.” Id.
In affirming the trial court’s decision granting summary judgment in favor defendant, the Appellate Court reasoned that the plaintiff’s complaints of pain arising from her job did not demonstrate due diligence in explaining why there was a three-year delay in obtaining the doctor’s report on permanency. In addition, the Appellate Court found that the court did not abuse its discretion in prohibiting an amendment of interrogatories pursuant to Rule 4:17-7 based on the facts as presented.
Coverage for Post-Loss Assignments Despite Anti-Assignment Clauses
A recent New Jersey Supreme Court ruling, Givaudan Fragrances Corporation v. Aetna Casualty & Surety Company, et al., affirmed that anti-assignment clauses do not bar post-loss assignment policyholders from coverage. This ruling puts insurance companies across New Jersey on notice that an anti-assignment clause does not bar post-loss assignment of claims made without the insurer’s consent.
In this matter, the plaintiff, Givaudan Fragrances Corporation (Fragrances), brought a claim seeking coverage under insurance policies provided to Givaudan Corporation by the defendants, Aetna Casualty & Surety Group (defendants). Fragrances was seeking coverage for a lawsuit brought against the company by the United States Department of Environmental Protection, following environmental contamination affecting the ground and a lake near the company’s manufacturing facility, located in Clifton, New Jersey. Givaudan Corporation had purchased primary, excess, and umbrella coverage from defendants from the 1960s through the 1980s. Importantly, the contamination occurred during the relevant period of the policy issued by the defendants, which was set to run through January 1, 1986.
As such, plaintiff, Fragrances, claimed that as an affiliate of Givaudan Corporation, or through operation of an assignment of rights, that it was entitled to coverage for environmental liability. Defendants argued that the named insured was Givaudan Corporation, and that any assignment from Givaudan Corporation to Fragrances was not valid because the defendants did not consent to the assignment, which was required by the insurance policies. Plaintiff then filed a complaint in 2009 seeking a declaratory judgment that it was entitled to insurance coverage for environmental liability under the Givaudan Corporation’s policies with the defendants. While the declaratory judgment was pending, Fragrances put defendants on notice that Givaudan Roure Flavors Corporation (Flavors), the corporate successor-in-interest to Givaudan Corporation, was planning to assign its post-loss rights to Fragrances. Defendants would not consent to the assignment of post-loss rights from Flavors to Fragrances. Both plaintiff and defendants moved for summary judgment at that time.
The trial court denied plaintiff’s motion for summary judgment but granted defendant’s cross-motion for summary judgment based upon the fact that Givaudan Corporation did not acquire Fragrances during the policy period and that this case involved an assignment of policies that could not be assigned. The Appellate Division reversed and remanded the trial court’s decision, holding that despite the anti-assignment clauses, which ban an insured from transferring a policy without the insurer’s consent, once a loss occurs, an insured’s claim under the policy can be assigned without the consent of the insurer. The Supreme Court affirmed the Appellate Division, holding that, after a loss has occurred, an anti-assignment clause cannot be the basis for an insurer’s refusal to provide coverage based upon the insured’s assignment of the right to invoke the policy coverage for the subject loss. As this was a post-loss claim assignment, the rule voiding application of anti-assignment clauses to any such assignment was applicable.
The Supreme Court held that an anti-assignment clause does not bar post-loss assignment of a claim because a post-loss assignment does not further the purpose of the anti-assignment clause, which is to protect the insurer from increased liability, as the change in the insured’s identity does not increase the insurer’s risk. Specifically, the Supreme Court held that “[a]fter the events giving rise to the insurer’s liability have occurred, the insurer’s risk cannot be increased by a change in the insured’s identity.” Thus, the Supreme Court ruled that when there is a valid post-loss claim assignment for a given claim, the insurer has a duty to defend the assignee as the holder of the claim. Therefore, in light of the foregoing, it is vital that insurers across New Jersey are aware that post-loss insurance contract assignments for policies with anti-assignment clauses are valid even without the insurer’s consent.
New York Appellate Division, First Department, Takes Expansive View of Labor Law § 241(6)
On February 16, 2017, the New York Appellate Division, First Department, issued an opinion reversing the dismissal of NY Labor Law § 241(6) claims against a landowner and general contractor. In Gerrish v. 56 Leonard LLC, et al., the New York County Supreme Court granted defendant 56 Leonard LLC’s and Lend Lease (US) Construction LMB Inc.’s motions to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7). In reversing, the First Department held that the temporary off-site facility in the Bronx in which plaintiff was working was part of the construction site at 56 Leonard Street in Manhattan, thus falling within definition of construction site mandated by Labor Law § 241(6).
This matter arose when plaintiff, Robert Gerrish, sustained injuries when he tripped and fell at a work site. At the time, plaintiff was working at a yard in the Bronx bending and cutting steel rebar to be used for ongoing construction at 56 Leonard Street in Manhattan. 56 Leonard owned the subject premises, and Lend Lease was hired as construction manager. Lend Lease subcontracted with Collavino Structures LLC, which in turn subcontracted with plaintiff’s employer, Navillus Tile, Inc. The Collavino and Navillus subcontract provided that Collavino would provide all trucking of bent rebar from the Bronx Yard to the construction site. The subcontract further provided that Collavino would secure temporary facilities at its sole cost, and that the temporary facilities would be in locations designated by 56 Leonard and Lend Lease.
Labor Law § 241(6) dictates that all contractors, owners, and their agents must provide reasonable and adequate safety protections to individuals employed at a construction site. Pursuant thereto, 56 Leonard and Lend Lease moved to dismiss plaintiff’s Complaint, arguing that Labor Law § 241(6) did not apply because plaintiff’s alleged injuries did not occur at a construction site. The Trial Court agreed and dismissed plaintiff’s Labor Law § 241(6) claims. The First Department reversed, taking an expansive view of what can be considered a construction site under Labor Law § 241(6). The Court specified that an off-site facility is not required to be located within a certain proximity to the construction site to be considered a part of that construction site within the meaning of Labor Law § 241(6). Further, the First Department specified that ownership of the off-site facility by the construction project’s property owner or contractor is not a prerequisite for liability under Labor Law § 241(6). As a result, the First Department determined that there is a close nexus between the leasing of the Bronx Yard and the construction of 56 Leonard Street. The First Department reasoned that Collavino agreed to place the temporary facility in which plaintiff was working in a location designated by 56 Leonard and Lend Lease. As a result, the First Department found that there are sufficient questions of fact to call into question 56 Leonard’s and Lend Lease’s involvement and control of the off-site facility under Labor Law § 241(6).
Under this ruling, defendants may have greater exposure to liability under Labor Law § 241(6). Here, the First Department expressly ruled that, under circumstances similar to those cited above, a person who becomes injured at an off-site facility, located miles from a construction site, can still be considered to be working at a construction site under Labor Law § 241(6), thus requiring the owner and/or general contractor to provide reasonable and adequate safety protections at off-site construction facilities.
Timely Notice of Underinsured Motorist Claims Not Always a Prerequisite to Recovering Benefits in New Jersey
Recently, a divided Appellate Division panel overturned a trial court’s determination that a plaintiff was barred from seeking underinsured motorist (“UIM”) benefits after failing to provide his insurance carrier with timely notice of a potential UIM claim before settling with the defendant in the underlying case. In Ferrante v. New Jersey Manufacturers Insurance Group, the Appellate Division held that (1) a high-low agreement between parties is not a determination as to the value of a plaintiff’s case and (2) failure to provide timely notice of a potential UIM claim to an insurer does not necessarily preclude an insured from later UIM benefits.
This case arose from a motor vehicle accident in which plaintiff was injured by a tortfeasor with no assets other than a $100,000.00 automotive insurance policy. Prior to trial in the underlying matter, the parties entered into a high-low agreement in which the floor was set at $25,000.00 and the ceiling was set at $100,000.00 (representing the full amount of the tortfeasor’s insurance policy). At the underlying trial, the jury awarded $200,000.00 to the plaintiff and $50,000.00 to the plaintiff’s wife. The next day, the plaintiff sent his insurance carrier, New Jersey Manufacturers Insurance Group (“NJM”), notice of the lawsuit and notice of the plaintiff’s intent to seek UIM benefits. NJM then investigated the case, authorized the plaintiff to settle the case for the tortfeasor’s policy limits, and waived its subrogation rights. Subsequently, the plaintiff filed a declaratory judgment action to compel NJM to appoint an arbitrator and to proceed to UIM arbitration.
NJM argued that plaintiff waived its right to seek damages in excess of the high-low agreement and, further, that the plaintiff could not seek UIM benefits by virtue of his failure to notify NJM of a potential UIM claim at a time when NJM could have intervened in the underlying case. Plaintiff argued that, although he provided late notice to NJM, NJM was not prejudiced because the tortfeasor was judgment proof, having no assets, and because NJM decided to waive its subrogation rights.
The majority held that a high-low agreement is merely a form of settlement used to insulate a party from a jury’s assessment of a case’s worth. It specifically found that the high-low agreement entered by the plaintiff and the tortfeasor was a symbiotic agreement meant to protect both parties from a judgment in excess of the tortfeasor’s insurance policy limits. Noting that settlements are favored by public policy, the majority held that entering into a high-low agreement does not impair a plaintiff’s right to later pursue UIM benefits. Additionally, the majority held that a failure to provide the requisite Longworth notice to a UIM carrier is not necessarily fatal to recovering UIM benefits. Although the majority noted that a plaintiff’s failure to give adequate notice is troubling, it held that a UIM carrier must also show actual prejudice suffered due to the deficient notice. The issue was remanded to the trial court to determine whether plaintiff met its burden of showing the deficient notice did not prejudice NJM. Contrarily, the dissent found that the plaintiff’s disregard of his obligations to provide notice pursuant to controlling case law was a breach of his insurance contract, automatically prejudicing NJM. The dissent further highlighted the risk of the majority’s approach invalidating provisions of an insurance contract setting policy limits when the insured enters into a high-low agreement.
Ultimately, the Appellate Division’s decisions leave it to the New Jersey Supreme Court to decide whether a subjective standard should be adopted to determine plaintiffs’ intent for providing late notice to their insurance carriers. As case law currently stands, plaintiffs already have the fairly light burden of showing whether their insurance carriers were prejudiced by late notice. However, future review of this decision by the New Jersey Supreme Court could result in an increased burden on plaintiffs or other additional protections for insurance carriers that receive either late or deficient notice of their insureds’ intent to seek UIM benefits.