ARTHUR L. TIMS v. ALLSTATE INSURANCE COMPANY

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0054-07T20054-07T2

ARTHUR L. TIMS and VIRGINIA

TIMS,

Plaintiffs-Respondents,

v.

ALLSTATE INSURANCE COMPANY,

Defendant-Appellant.

________________________________________________________________

 

Argued November 17, 2008 - Decided
 

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Monmouth County, Docket No. L-5845-03.

Francis X. Ryan argued the cause for appellants (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan and Alexa J. Nasta, on the brief).

Frances A. Tomes argued the cause for respondent (Tortoreti, Tomes & Callahan, P.C., attorneys; Ms. Tomes, of counsel and on the brief).

Evan L. Goldman argued the cause for amicus curiae ATLA-NJ (Schiffman, Abraham, Kaufman & Ritter, P.C., attorneys; Mr. Goldman, on the brief).

PER CURIAM

Plaintiff, Arthur Tims, was injured in a vehicular accident on December 24, 2001, when his vehicle was struck in the rear by another vehicle. The driver of the other vehicle left the scene and was not identified. On December 24, 2003, plaintiff (and his wife, Virginia Tims, suing per quod) filed a suit claiming damages for plaintiff's injuries. They named fictitious parties as defendants.

Because of the unknown identity of the responsible party, plaintiff submitted a claim to defendant, Allstate Insurance Company (Allstate), under his uninsured motorist (UM) coverage. Plaintiff's policy provided for limits of UM coverage of $15,000 per person.

On January 11, 2005, plaintiff filed an amended complaint adding Allstate as a defendant. The allegations against Allstate were limited to a statement that the policy existed on the date of the accident, that Allstate was notified that plaintiff was making a UM claim, and that the UM provisions in the policy required Allstate to provide UM coverage. The demand against Allstate was that it provide UM coverage to plaintiff. The amended complaint contained no allegations of bad faith by Allstate, nor did it seek any damages caused by any such bad faith. Throughout the litigation, plaintiff never sought to amend his complaint to add any bad faith allegations.

Prior to filing suit, plaintiff requested that Allstate arbitrate the UM claim. Allstate declined. In the course of the litigation, the court ordered mandatory nonbinding arbitration. See R. 4:21A-1. The arbitrator rendered an award in plaintiff's favor in the amount of $40,000. Allstate rejected the award and requested a trial de novo. See R. 4:21A-6.

On December 8, 2005, plaintiff filed an offer of judgment for $15,000. See R. 4:58-1. Allstate did not accept plaintiff's offer of judgment, and the case went to trial. Liability was admitted, and the jury was asked only to assess reasonable damages to compensate plaintiff for his injuries. The jury was told nothing of Allstate's participation in the case or of the UM issue. The jury returned a verdict in plaintiff's favor of $185,000.

Allstate filed a motion seeking two forms of relief. It asked that the judge mold the verdict to reflect the limits of coverage. It also asked for a new trial. The judge denied both motions and entered judgment on June 11, 2007 in favor of plaintiff and his wife against Allstate for $185,000 plus prejudgment interest of $24,774.79. Pursuant to the offer of judgment rule, the judge also ordered Allstate to pay plaintiff costs of $5000, attorney's fees of $5000, and additional prejudgment interest of $2027.39. See R. 4:58-2.

Allstate filed this appeal. Its primary argument is that the judge erred in refusing to mold the verdict to conform to the UM policy limits. Alternatively, Allstate argues that there was an error in the jury charge and that the verdict was excessive, as a result of which we should order a new trial. We agree with Allstate's primary argument and reverse and remand for entry of an amended judgment. Because of that disposition, we will not address Allstate's alternative argument.

In denying Allstate's motion to mold the verdict, the judge said: "The law says they can, can't they, on a UM case if you don't make a reasonable offer, they're allowed to go after you for the full amount?" The judge further reasoned that, although recovery of an excess verdict as a bad faith claim under Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), involved a third-party claim, a bad faith claim for recovery on a first-party claim of the full excess verdict is nevertheless available under Pickett v. Lloyd's, 131 N.J. 457 (1993).

During the pendency of this appeal, we issued our opinion in Taddei v. State Farm Indem. Co., 401 N.J. Super. 449 (App. Div. 2008). The circumstances in this case are identical in all material respects to those in Taddei. Although Allstate was a party to this action, plaintiff never pled a claim of bad faith against it. Therefore, for the reasons we discussed in Taddei, the judge erred in denying Allstate's motion to mold the verdict to conform to the limits of coverage. See id. at 455-67. Therefore, we remand for entry of an amended judgment in the amount of the coverage limits, $15,000.

In this case, unlike in Taddei, plaintiff did file a valid offer of judgment, and, because the verdict exceeded the amount of the offer in the manner provided by the rule, see id. at 462 n.8, the judge awarded counsel fees, costs and additional prejudgment interest as authorized by Rule 4:58-2(a). That award was appropriate, see McMahon v. N.J. Mfrs. Ins. Co., 364 N.J. Super. 188, 192-94 (App. Div. 2003), and Allstate has not contested it on appeal. In the remand proceedings, the amount of ordinary prejudgment interest authorized by Rule 4:42-11(b), as well as the enhanced prejudgment interest authorized by Rule 4:58-2(a), should be adjusted based upon the molded verdict.

 
Reversed and remanded.

After making his initial offer of judgment on December 8, 2005, plaintiff recognized that Allstate had made a partial payment to plaintiff on June 19, 2002 in the amount of $2172.98. Plaintiff filed a new offer of judgment on December 4, 2006 in the amount of $12,500. However, it appears that the partial payment was for lost wages, which would be payable under plaintiff's personal injury protection coverage, and which would not reduce the available UM coverage. If there is a dispute on this issue, it can be addressed on remand.

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A-0054-07T2

December 4, 2008