Opinion
DOCKET NO. A-1184-12T2
09-03-2014
JAMES C. GRIFFIN, JR., Plaintiff-Respondent, v. ALLSTATE INSURANCE COMPANY OF NEW JERSEY, Defendant-Appellant.
John C. Prindiville argued the cause for appellant. Gerard W. Quinn argued the cause for respondent (Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys; Mr. Quinn, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson and Hoffman. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2065-10. John C. Prindiville argued the cause for appellant. Gerard W. Quinn argued the cause for respondent (Cooper Levenson April Niedelman & Wagenheim, P.A., attorneys; Mr. Quinn, on the brief). PER CURIAM
Defendant Allstate Insurance Company of New Jersey (Allstate) appeals from a $100,000 jury award to plaintiff on his uninsured motorist (UM) claim arising from a rear-end hit car accident caused by a phantom driver. Before trial, Allstate rejected plaintiff's offer of judgment in the amount of $37,500. Our review of the trial record reveals no reversible error; however, we reduce the trial court's counsel fee award. We therefore affirm in part, and modify and remand, in part.
I.
We begin by summarizing the most pertinent trial evidence. On May 13, 2008, another automobile rear-ended plaintiff's vehicle as he waited to make a left turn at an intersection in Atlantic City. The offending motorist fled the scene and was never identified. Following the accident, an ambulance transported plaintiff to the emergency room at Atlantic City Medical Center where he presented with complaints of neck, back and shoulder pain.
Plaintiff thereafter pursued a claim against Allstate under the UM endorsement of his auto policy. At trial in July 2012, plaintiff testified that when the accident occurred, his head jerked forward and snapped back, while his arms, wrists, and shoulders jammed into the steering wheel. He immediately experienced sharp pains in his neck, back, shoulders, and arms. Plaintiff said he still experiences pain in his neck, arm, and wrist, which flare sporadically during the day and often kept him awake at night.
Plaintiff also acknowledged he injured his right shoulder in an automobile accident in December 2004. For that accident, plaintiff treated with an orthopedist for two months, primarily for pain in his right shoulder. Magnetic resonance imaging (MRI) of plaintiff's cervical spine taken in January 2005 revealed bulges at C3-C4 and C5-C6.
Plaintiff presented three expert witnesses at trial: Dr. Robert A. Carabelli, plaintiff's pain management and rehabilitation physician; Dr. Alan Cummings, a radiologist; and Dr. Victor Rossi, plaintiff's chiropractor. Plaintiff saw Dr. Carabelli on five occasions between May 14, 2008 through March 21, 2011. Dr. Carabelli discussed the results of plaintiff's electromyography (EMG) and cervical spine MRI. He explained that plaintiff's EMG disclosed two major problems: first, a C-6 radiculopathy (nerve root injury) in plaintiff's neck, and second, a median nerve injury in his wrist, commonly known as carpal tunnel syndrome. He testified the radiculopathy is a "very significant injury" which causes plaintiff to experience spasms and pain, and impacts his "ability to feel".
Dr. Carabelli indicated the carpel tunnel syndrome causes weakness and sensory problems in plaintiff's hands and wrists as well. He testified that during his last examination of plaintiff on March 21, 2011, plaintiff had the same pain in the same areas, as well as tenderness and spasms in the same trigger points as previously detected. Finally, he opined plaintiff's carpal tunnel syndrome and cervical radiculopathy were permanent, explaining plaintiff would "continue to have spasm, weakness, [and] loss of sensation, forever."
Dr. Cummings testified plaintiff's MRI revealed a cervical herniation, which is a permanent injury. The court precluded Dr. Cummings from opining as to the proximate cause of the herniation as his reports did not address that issue. However, he was allowed to testify, over defendant's objection, that herniations are considered permanent injuries and to explain why. He explained herniations are permanent because they occur when a gelatinous material is irreversibly forced out of the cervical disc, much like toothpaste cannot go back into the tube.
Dr. Rossi testified he saw plaintiff twenty-nine times between May 16, 2008 and January 14, 2009. He described plaintiff's injuries as
subacute traumatic central disc herniations at C3-4, C5-6, traumatic acceleration-deceleration injury to the upper spine, to the neck, with mild facial pain syndrome, which is a scar tissue formation in the muscle following injury . . . . He also has a bilateral cervical radiculopathy, which was confirmed by that EMG study . . . . He had a left carpal tunnel syndrome confirmed by EMG study . . ., and he had an acute traumatic lumber sprain[,] strain[,] with myofacial pain syndrome to the low-back musculature.Dr. Rossi stated that plaintiff's injuries are permanent and were caused by the May 2008 automobile accident when plaintiff was rear-ended.
Allstate produced one expert witness, Dr. Ronald Gerson, who reviewed plaintiff's treatment records and performed an independent medical examination of plaintiff on August 6, 2009. With respect to plaintiff's cervical spine MRI, Dr. Gerson opined plaintiff's MRI findings were normal for someone of middle age. He agreed with Dr. Cummings' conclusion that there was a bulging at C4-5, but unlike Dr. Cummings, he opined the "bulge" was standard for someone of plaintiff's age. He also stated he did not believe the cervical radiculopathy and carpal tunnel syndrome reflected in plaintiff's EMG readings resulted from the car accident. Dr. Gerson summarized plaintiff's injuries as a sprain and strain of the neck and lower back.
Plaintiff was forty-two years old when Dr. Gerson examined him.
After closing arguments and the court's final instructions, the jury deliberated and returned a damages verdict of $100,000 for plaintiff's pain, suffering, disability, impairment, and loss of enjoyment of life. Allstate moved for remittitur or, in the alternative, a new trial. Following oral argument, the trial judge denied the motion, concluding that no harmful error occurred and the jury award was not excessive, shocking, or a miscarriage of justice.
This appeal followed, with Allstate presenting the following points for consideration:
I. THE TRIAL COURT ERRED WHEN IT REQUIRED ALLSTATE TO DEFEND THE CLAIM BEFORE THE JURY AS THE NAMED DEFENDANT IN THIS UNINSURED MOTORIST CLAIM.
II. PLAINTIFF'S COUNSEL'S COMMENTS TO THE JURY WERE IMPROPER AND REQUIRES REVERSAL.
III. IT WAS ERROR FOR THE TRIAL COURT TO ALLOW PLAINTIFF['S] RADIOLOGY EXPERT TO TESTIFY AS TO PERMANENCY.
IV. THE TRIAL COURT'S POST[-]VERDICT DISCUSSION WITH THE JURY PREJUDICED THE DEFENDANT'S RIGHTS IN FILING THE MOTION FOR NEW TRIAL OR REMITTITUR.
V. THE TRIAL COURT'S UNILATERAL DECISION TO PROVIDE THE JURY AN AGGRAVATION CHARGE IN THE ABSENCE ANY SUCH TESTIMONY WAS ERROR.
VI. THE AWARD OF ATTORNEY'S FEES AND COSTS PURSUANT TO RULE 4:58-1 WAS IN ERROR AND SHOULD BE REVERSED.
II.
Allstate argues the trial court erred by denying its request to assume a fictitious name during the trial, claiming there was "no reason for Allstate to remain as a named defendant in the litigation." Allstate further maintains the trial court's ruling directly contravenes the Supreme Court's holding in Bardis v. First Trenton Ins. Co., 199 N.J. 265, 277 (2009), in which it reasoned an insurance company's identity is irrelevant in the context of an underinsured motorist trial where coverage is not disputed and rather the primary focus lies on the circumstances of the underlying accident.
Plaintiff contends that despite the Supreme Court's reluctance to establish a rule requiring the UM insurer to be identified as the defendant, it emphasized that the decision "remains a matter left to the sound discretion of the trial judge should circumstances dictate." Id. at 269. Plaintiff argues the trial judge reasonably exercised his discretion given the circumstances of this case. We agree.
Because the driver who rear-ended plaintiff fled the scene, his identity remained unknown. The trial judge rejected the suggestion of defense counsel that the court use a fictitious name, such as "John Smith," in place of Allstate. Rather than giving the jury misinformation about the identity of the other driver, the judge elected to carefully address the issue in jury selection, indicating he would "be sensitive to the answers given (by) the jurors." The judge also instructed the jury to disregard the fact defendant is an insurance company in deciding the case.
We discern no indication the trial judge mistakenly exercised his discretion in deciding this issue, including his rejection of defense counsel's request to reference Allstate as "John Smith." See Gillman v. Bally Mfg. Corp., 286 N.J. Super. 523, 528 (App. Div.) (On appellate review, we do not substitute our judgment for that of the trial court, we determine only whether the trial judge pursued a manifestly unjust course.), certif. denied, 144 N.J. 174 (1996). We note that a UM case, where the identity of the other driver is known, like in Bardis, differs markedly from a UM case involving a phantom driver whose identity remains unknown, which is the situation the trial judge addressed here.
Allstate next argues that plaintiff's counsel made improper comments to the jury in closing argument, requiring reversal. Allstate claims its lack of anonymity in the action spurred plaintiff's counsel to make prejudicial comments disparaging Allstate and suggesting it engaged in wrongdoing by denying plaintiff's claim and in hiring Dr. Gerson to contradict plaintiff's medical diagnosis, even though it did not dispute liability. In his closing argument, plaintiff's counsel stated:
Now, sure, Allstate said we're not disputing the accident. We know it happened. We'll take responsibility for that, but the injuries that came from that, nah, we're not going to — we're not going to do that. Well, how's that fair? How is that right? [plaintiff] paid for this situation, [plaintiff] thought ahead for the benefit of his family and for his own health because he knew that he was told "if you do this, you'll be in good hands.[] This is Allstate." But when Allstate looked at him[,] they pulled those hands away. When
[plaintiff] needed them, they turned their back. How is that fair?
Defense counsel promptly objected and the trial judge conducted a sidebar discussion with counsel. The judge agreed plaintiff's counsel "cross[ed] the line", instructed counsel to restrict his comments to the issue of damages and indicated he would instruct the jury to disregard the comment. Before plaintiff counsel resumed his closing comments, defense counsel asked for another sidebar. This time, he requested the judge give a curative instruction to the jury immediately. However, the judge denied the request, stating he would address the issue before delivering his jury charge.
While the trial judge generally cautioned the jury against misapplying the information regarding defendant's status as an insurance company in reaching its verdict, he did not specifically address the inappropriate comments made in summation by plaintiff counsel. At the end of the charge, the judge asked counsel at side-bar, "Is there anything you need me to change, add, correct?" No further request to address the improper comments of plaintiff's counsel was made at that time. After the jury had already deliberated for two hours, the record reflects defense counsel again raised this issue, and advised the court it never specifically addressed the improper comments of plaintiff's counsel. In the middle of this discussion, the court was advised the jury had reached a verdict.
In general, counsel are granted "broad latitude" to make closing arguments to the jury. Diakamopoulos v. Monmouth Med. Ctr., 312 N.J. Super. 20, 32 (App. Div. 1998). But "[s]ummation commentary . . . must be based in truth," and counsel are not free to misstate the facts or the law. Bender v. Adelson, 187 N.J. 411, 431 (2006); see Biruk v. Wilson, 50 N.J. 253, 260-61 (1967) (disapproving counsel's tactics of making false factual suggestions to jury in closing argument). A timely objection will permit the trial judge to correct any prejudicial comment by counsel and to cure potential error. Bender, supra, 187 N.J. at 433.
Here, a timely objection was made and the trial judge erred in failing to give the jury a curative charge at that time. Limiting instructions should be issued contemporaneously with admission of prejudicial evidence, and "a prompt delivery . . . either before, simultaneously with, or immediately after, the admission of . . . [such] evidence is preferable, and — unless there is some compelling reason to do otherwise — should be standard procedure followed by trial courts in all cases." State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000). The problem was compounded when in his final charge to the jury, the judge neglected to address the prejudicial statement specifically.
However, we do not find this error sufficient to warrant reversal. In Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 481, 483 (App. Div. 1998), certif. denied, 158 N.J. 73 (1999), we found "that [plaintiff's] counsel's repeated references to the subject of insurance seriously infected the [defendant's] rights to a fair trial" due to "repeated references to plaintiff's payment of an 'extra premium' and the insurers' abject refusal to honor their contractual commitments . . . ." Here, the comment was made once and was not the major theme of counsel's summation. The reference to insurance here, especially given the jury was already aware that an insurance company was a party, was not such that it created prejudice or altered the verdict.
Allstate also accuses plaintiff's counsel of violating the "golden rule" during summation in requesting the jury to consider their soreness and pain from sitting for the pendency of the trial and compare that to the pain plaintiff had been experiencing every day since the accident. While not proper argument, this comment did not violate the "golden rule," which occurs when counsel asks jurors "to award damages in the amount that they would want for their own pain and suffering." Henker v. Preybylowski, 216 N.J. Super. 513, 519 (App. Div. 1987).
In Henker, the plaintiff's summation included accusations that the defendant's decision to contest liability and damages represented bad faith, as well as "repeated invectives" against the defendant's counsel for "wanting the jury to evaluate the evidence unfairly, of trying to deceive the jury, of deliberately distorting the evidence[.]" Id. at 517-19. The jury returned an excessive verdict, probably attributable to counsel's improper comments. Id. at 520. Here, we do not find the verdict excessive or shocking to the conscience. Moreover, we discern no basis to conclude the verdict resulted from plaintiff's counsel's fleeting, albeit improper, attempt to quantify plaintiff's pain and suffering damages.
Allstate also claims trial error occurred relating to the testimony of plaintiff's radiology expert, Dr. Cummings, who issued two reports containing his interpretation of plaintiff's cervical MRI. Both reports were submitted to Allstate prior to trial. In his first report, dated August 24, 2008, Dr. Cummings observed "[t]here is no evidence of bulge, herniation or significant degenerative change at any cervical level." About eight months later, on April 4, 2009, Dr. Cummings issued a "corrected report" interpreting the same MRI film. This time, he concluded as follows: "There are small central disc herniations at C3-4 and C5-6, with some impingement on the thecal sac at both levels, which were accidentally not described on the original report. The remaining disc levels are normal, as discussed previously." At trial, Dr. Cummings was permitted, over defense counsel's objection, to indicate that herniations are characteristically permanent in nature. Defendant contends the trial court erred in permitting Dr. Cummings to render this opinion when in his pre-trial reports he did not state that a herniation is a permanent injury.
Plaintiff disputes this claimed error arguing defendant was provided with both reports prior to trial and was afforded an opportunity at trial to cross-examine Dr. Cummings about the discrepancies in the reports. Plaintiff emphasizes that in addition to subjecting Dr. Cummings to rigorous cross-examination on this issue, in his summation, defense counsel challenged the veracity of Dr. Cummings' corrected report.
Turning first to Allstate's challenge against the trial court's decision to permit Dr. Cummings to testify generally that herniations are permanent in nature, the following colloquy occurred at sidebar when the testimony was offered:
Plaintiff's counsel: He's being offered for an expert in radiology who had personal review of the MRI film. He's going to
describe what a herniation is and what — and whether or not a herniation is permanent.
Defendant's counsel: I don't think he can do that. He can't say it's permanent. He hasn't produced a report that says that it's permanent and his reasons for saying that.
Plaintiff's counsel: He can certainly state that based [upon] his training, his expertise, that a herniation by definition is permanent.
The court: A herniation by definition is permanent and does meet the definition of a permanent injury. So we're kind of going around in circles with that. So I'll allow him to testify.
Pursuant to Rule 4:17-4(e), an expert opinion report "shall contain a complete statement of that [expert's] opinions and the basis therefor; the facts and data considered in forming the opinions; the qualifications of the witness[.]" True to defendant's argument, Dr. Cummings did not characterize plaintiff's herniations, or herniations in general, as permanent injuries in either of his reports. However, we have held that the decision "[w]hether testimony which exceeds the scope of an expert report should be allowed is nevertheless left to the sound discretion of the trial court." Nicholl v. Reagan, 208 N.J. Super. 644, 652 (App. Div. 1986).
Here, Dr. Cummings was qualified as an expert in radiology which involves the "interpretation of radiologic studies such as x-rays, MRIs, [and] CT scans[.]" He told the jury he had read over 10,000 MRI films a year for over twenty years. He explained the process of determining whether a disc herniation has occurred as opposed to a bone formation such as spurring or a degenerative change that would indicate arthritis. He opined that herniations are permanent because he had:
followed thousands of herniations over the years by people who get follow-up exams and things like that, and they do not — they do not improve and get better in the vast majority of cases. So it is a permanent injury because 99.99[%] of them never get better, and they can either stay the same or get worse. Some get worse, some stay the same. But they almost never get better.
We conclude the trial judge acted within his discretion in permitting Dr. Cummings to render his opinion based on the doctor's experience and expertise in the area. Furthermore, plaintiff's other expert witnesses also testified to the permanent nature of plaintiff's injury. Lastly, the jury was not obligated to accept Dr. Cummings' opinion that herniations are permanent. Defense counsel questioned Dr. Cummings extensively about the differences in his reports on cross-examination and implored the jury to disregard them entirely. Also, defendant presented contradictory expert testimony regarding plaintiff's injury. Dr. Gerson characterized plaintiff's injuries as temporary strains and sprains. Therefore, we conclude the trial court did not err, much less commit harmful error, by permitting Dr. Cummings' testimony.
Allstate further contends the trial judge's post-verdict discussion with the jury prejudiced Allstate's rights in filing its motion for a new trial or remittitur. After the jury returned a verdict in plaintiff's favor, Allstate moved for a new trial. Defendant argued a new trial was warranted because, for one, Allstate should have had anonymity during the trial. During defense counsel's oral argument on this issue, the trial judge interjected that, purely as an "academic issue," he asked members of the jury whether the identification of defendant as an insurer impacted their decision-making and that they replied "no, absolutely not." The judge's post-verdict ex-parte communication with the jurors was not on the record or in the presence of either counsel. Allstate now argues the judge ultimately denied its motion for a new trial based on his purported reassurance from the jury that it was not adversely influenced by defendant's identity as an insurance company. Plaintiff counters that the judge's ex-parte communication with the jury does not warrant reversal because it occurred post-verdict and therefore had no effect on the proceeding.
While clearly in violation of this court's strong admonishment against ex-parte communications, "academic" or not, between a trial judge and members of the jury, even after the jury has rendered its verdict and has been discharged, the judge's misstep in this circumstance does not create a basis for reversal because it was harmless error. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]"); see State v. Walkings, 388 N.J. Super. 149, 158-59 (App. Div. 2006).
Contrary to Allstate's assertion on appeal, the trial judge did not, in fact, deny defendant's motion for a new trial based upon his conversation with the jury. In denying defendant's motion for a new trial, as to the question of the jury's knowledge of the defendant's identity, the trial judge stated:
The issue of insurance I think has to be contrasted with what we tell the juries. We tell the juries, "Jurors, use your common sense." We preface this by don't be biased or prejudiced, and this is a search for the truth, and yet[,] the 500-pound gorilla is wearing a tee-sheet [sic] that says insurance, and yet we can't tell the juries that. Every one of these jurors were drivers, as are, I would say, the great majority, 99[%] of the people, and yet we can't mention insurance. Now within the context of a standard tort action - of which this is one, but I think there's a difference I'm going to get to — I think that makes sense.
In this case[,] this was a quasi[-]contract action, if you will. There was a contract by plaintiff that if there wasn't somebody to sue because the driver wasn't
there that they could, under the terms of their contract they could sue their own insurance company. So I went to great lengths when I mentioned the word Allstate to make sure they knew that that's what this was, this was a contract, that in fact that's what they had paid for, but they still could not use that against the defendant. They still had to be biased — or without — they had to look at this without bias or prejudice.
Ironically, the contrary argument about mentioning insurance is that juries will never hold for plaintiffs because they're afraid their rates are going to go up. So that sword cuts both ways. But I think whichever way it cuts it was cured because, again, I went to lengths to explain to them why it was being mentioned in this case, what the context was, and that they should not use that against the defendant.
As is clear from the judge's ruling, he declined to order a new trial based upon his belief that his curative instructions to the jury eliminated potential prejudice to the defendant that could result from the jury's awareness of its identity. This does not warrant setting aside a jury verdict that is otherwise supported by the evidence following a fair trial. Finally, the ex-parte conversation, given its timing, definitely had no effect on the jury's determination and therefore should be ignored. R. 2:10-2.
Allstate next contends the trial court committed reversible error when it provided the jury with an aggravation charge regarding plaintiff's pre-existing injuries, when plaintiff did not claim or present evidence concerning the aggravation of those injuries at trial. In fact, defendant posits, plaintiff's proofs indicate he only suffered a shoulder injury in 2004 which fully resolved within months of the accident. Defendant raised an objection to the charge on the record after the charge was given. The judge acknowledged defendant's objection but did not amend the charge.
Plaintiff responds that when the final jury charge is read as a whole, the so called "aggravation of injury" charge was simply the court's reference to testimony regarding injuries plaintiff suffered from his 2004 accident and was meant to remind the jurors defendant was not to be held responsible for those injuries. Plaintiff argues it is clear the trial court did not intend to give an "aggravation of injury" charge as it did not use the "aggravation" charge provided in the Model Civil Jury Charges.
When an appellant alleges error in the jury charge, the ultimate question is whether, taking the charge as a whole and reading it in context, the jury was misled or inadequately informed. Myrlak v. Port Auth., 157 N.J. 84, 107 (1999). "No party is entitled to have the jury charged in his or her own words. All that is necessary is that the charge as a whole be accurate." Berberian v. Lynn, 355 N.J. Super. 210, 219 (App. Div. 2002), aff'd in part and modified in part, 179 N.J. 290 (2004). An appellate court must uphold the jury instructions, even if erroneous, as long as they are "incapable of producing an unjust result or prejudicing substantial rights." Fisch v. Bellshot, 135 N.J. 374, 392 (1994).
Reading the claimed "aggravation charge" in context, it appears the court was in fact trying to explain how the jury should treat the testimony elicited regarding plaintiff's prior motor vehicle accident and injuries resulting therefrom in relation to his new injuries. The pertinent portion of the charge reads as follows:
Now you've heard testimony in this case about a prior accident that happened in 2004. You as a jury have to separate out the two accidents because there's been testimony regarding what you would consider to be a preexisting condition. In other words, was the plaintiff injured during that accident.
The defense is not responsible for any injuries that would have occurred during the 2004 accident. The defense would be responsible for injuries if [plaintiff] was asymptomatic and he was made symptomatic. In other words, if after 2004 those injuries resolved, he had no pain, he had no suffering, and the new accident caused further injury, pain and suffering to those old injuries, then the defense is responsible for those exacerbations, but only to that extent.
When a plaintiff pleads "aggravation of a pre-existing injury . . . , comparative medical evidence is necessary as part of a plaintiff's prima facie and concomitant verbal threshold demonstration in order to isolate the physician's diagnosis of the injury or injuries that are allegedly 'permanent' as a result of the subject accident." Davidson v. Slater, 189 N.J. 166, 185 (2006). In this case, plaintiff did not allege aggravation of pre-existing injuries or provide the proofs required to establish same. He presented evidence that he suffered a minor shoulder injury in his 2004 motor vehicle accident which was fully healed within months of the injury. Also, plaintiff's proofs established he suffered permanent injuries in his neck (cervical herniations) and his wrists (carpal tunnel syndrome), and not in his shoulder, where his 2004 injury was located.
Because there was no evidence in the record that plaintiff had pre-existing injuries at the time of his 2008 accident or had pre-existing injuries that were worsened by the accident, the judge's comments about exacerbation of pre-existing injuries exceeded the scope of the evidence. However, to the extent the "aggravation" charge misled the jury, the error was harmless because the evidence clearly indicated plaintiff had no preexisting injury as of the time the underlying accident. Furthermore, since the jury was charged to award damages for permanent injuries only, and plaintiff did not complain of a permanent injury in his shoulder, it is unlikely the "aggravation charge" factored into their deliberations. We conclude this error was clearly incapable of producing an unjust result. R. 2:10-2.
We do note that defense counsel indicated, in both his opening and closing, that plaintiff had a pre-existing problem with his neck from his 2004 accident.
Finally, Allstate claims the award of attorney's fees and costs pursuant to Rule 4:58-1 was in error and should be reversed. Allstate alleges the affidavit of services of plaintiff's counsel revealed multiple instances of double billing, unreasonable billing rates, and billing at a rate higher than that of the person who performed the work. One of Allstate's chief complaints is that plaintiff sought fees for a seven-hour telephone conversation with Dr. Cummings, and charged seven hours of time for the deposition of Dr. Carabelli, which actually lasted an hour and one minute. However, according to plaintiff, in a letter dated September 13, 2012, plaintiff conceded that the 7.0 hour conversation entry was "clearly a typo," and indicated the actual time for the call "would not have been more than half an hour."
Neither party included a copy of the letter in their appendices; the letter should have been included. R. 2:6-1(a)(1)(I) (noting that appellant's appendix shall contain "such other parts of the record, . . . as are essential to the proper consideration of the issues"). The failure to include a complete record of items often impedes appellate review. See Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001).
Fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). "In determining the reasonableness of an attorneys' fee award, the threshold issue is whether the party seeking the fee prevailed in the litigation." Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 386 (2008) (citation and internal quotation marks omitted). "The party must establish that the lawsuit was causally related to securing the relief obtained; a fee award is justified if [the party's] efforts are a necessary and important factor in obtaining the relief." Ibid. (citation and internal quotation marks omitted).
Here, plaintiff counsel is entitled to counsel fees because he prevailed at trial and obtained an award that was "120% of [his] offer [of judgment] or more[.]" R. 4:58-2. In its order of judgment, the court entered a judgment of
$100,000 for compensatory damages, and the jury verdict having been more than 120% of the filed Offer of Judgment, accrued interest in the amount of $13,832.87, a reasonable attorney's fee in the amount of $44,115.00 and reasonable litigation expenses incurred following non-acceptance of the offer in the amount of $3,782.28 pursuant to R. 4:58-2 (a) for a total judgment in the amount of $161,730.15.
Based upon our review of the record, we agree with Allstate's claim that the amount awarded in attorneys' fees is not supported by the record. The amount the judge awarded was the amount requested by plaintiff before adjustment for various errors which plaintiff's counsel acknowledged in his letter to the court. Those errors alone should have reduced plaintiff's request for attorneys' fees by $3375. Furthermore, plaintiff's request for attorneys' fees included $11,387.50 for the time of a law clerk, a case manager, and a paralegal. The record indicates no basis for adding these costs as attorneys' fees.
The certification of services submitted by plaintiff's counsel failed to provide any information regarding the qualifications of the paraprof essionals involved, as required by Rule 4:42-9(b), other than the paraprofessionals' rates and time spent on the matter. Rule 4:42-9(b) specifically requires that in addition to the time spent and hourly rate, the certification must include "a summary of the paraprofessionals' qualifications" to ensure that "[n]o portion of any fee allowance claimed for attorney's services . . . duplicate in any way the fees claimed by the attorney for paraprofessional services rendered to the client."
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We are satisfied the record is sufficiently complete to permit us to modify the attorneys' fee award in the exercise of our original jurisdiction. R. 2:10-5. We conclude $14,752.50 of the attorneys fee award is not supported by the record. Accordingly, in exercising our original jurisdiction, we reduce the amount of the award of attorneys' fees to $29,362.50, and remand to the trial court for the entry of an amended judgment consistent with this reduction.
Affirmed, in part, and modified and remanded, in part. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION