ROBERT LOVE v. NATIONAL RAILROAD PASSENGER CORPORATION

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1628-08T1

ROBERT LOVE,

Plaintiff-Appellant,

vs.

NATIONAL RAILROAD PASSENGER

CORPORATION (d/b/a "AMTRAK"),

Defendant-Respondent.

__________________________________

December 7, 2009

Argued: November 18, 2009 - Decided:

Before Judges Cuff, C.L. Miniman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3189-00.

J. Michael Farrell argued the cause for appellant.

Natalie Garcia argued the cause for respondent (Landman Corsi Ballaine & Ford P.C., attorneys; Gerald T. Ford and Ms. Garcia, on the brief).

PER CURIAM

Plaintiff appeals from an order denying his application for post-judgment interest. Finding extraordinary equitable circumstances, the motion judge denied plaintiff's motion for post-judgment interest. We reverse.

On September 24, 1995, plaintiff Robert Love was employed as a railroad worker. He alleged that he suffered an injury on the job and filed an action pursuant to the Federal Employer's Liability Act, 45 U.S.C.A. 51-60. At trial, the parties stipulated liability and tried only the issues of medical causation and compensatory damages. The jury returned a verdict in favor of plaintiff awarding him $65,000 for lost wages and $0 for pain and suffering. Plaintiff appealed; we reversed and remanded for a new trial. Love v. Nat'l R.R. Passenger Corp., 366 N.J. Super. 525, 532-33 (App. Div. 2004). The Supreme Court denied defendant's petition for certification. 180 N.J. 355 (2004).

On April 27, 2005, a second jury returned a verdict in favor of plaintiff in which it awarded plaintiff $350,000 for lost wages and $0 for pain and suffering. Plaintiff filed a motion for a new trial or additur. The trial judge granted an additur in the amount of $125,000 and entered an amended judgment on August 16, 2005, in the amount of $475,000. Plaintiff filed a motion for reconsideration arguing that the additur was insufficient. The motion was denied and plaintiff appealed to this court.

In our unpublished opinion, Love v. National Railroad Passenger Corp., A-1611-05, decided February 6, 2008, we affirmed the amended judgment. Thereafter, plaintiff filed a petition for certification; the Supreme Court denied this application. 195 N.J. 520 (2008). On July 15, 2008, defendant submitted to plaintiff's attorney the full amount of the amended judgment less liens.

Plaintiff filed a motion for post-judgment interest in the amount of $71,978.72 on September 2, 2008. In his October 27, 2008 letter opinion, the motion judge held that he could withhold post-judgment interest in extraordinary circumstances. He noted defendant's willingness to pay the amended judgment once it agreed to the $125,000 additur following the second trial in 2005. The motion judge cited the motion for reconsideration of the amended judgment, the appeal following the second trial, and the petition for certification and held that "those actions are just the extraordinary circumstances provided for in the rule and reaffirmed in the holding of Mehta [v. Johns-Manville Products Corp., 163 N.J. Super. 1 (App. Div. 1978)]." The motion judge also stated that "Amtrak should not be held liable to fund the endless quest of appeals being brought by the plaintiff."

Rule 4:42-11 governs the award of interest on judgments. Rule 4:42-11(a) provides that post-judgment interest shall bear simple interest, "except as otherwise ordered by the court or provided by law." Case law suggests that post-judgment interest is awarded so routinely under Rule 4:42-11 that it is almost considered a right afforded to successful litigants. See, e.g., Marko v. Zurich N. Am. Ins. Co., 386 N.J. Super. 527, 530 (App. Div. 2006) (stating that "as a matter of historical practice, post-judgment interest is routinely awarded."); Baker v. Nat'l State Bank, 353 N.J. Super. 145, 176-77 (App. Div. 2002) (discussing post-judgment interest as being awarded "almost automatically"); R. Jennings Mfg. Co. v. N. Elec. Supply Co., 286 N.J. Super. 413, 416 (App. Div. 1995) (discussing post-judgment interest as a right in holding the applicable rate of interest is as provided by rule); Bd. of Educ. of Newark v. Levitt, 197 N.J. Super. 239, 244-45 (App. Div. 1984) (finding that post-judgment interest should be awarded as a matter of "customary practice" unless the court has good cause for ordering otherwise). A judge, however, may decline to award post-judgment interest based on the presence of extraordinary circumstances. Marko, supra, 386 N.J. Super. at 531-32; Mehta, supra, 163 N.J. Super. at 6-7; Sang-Hoon Kim v. Monmouth College, 320 N.J. Super. 157, 164 (Law Div. 1998).

Decisions based on equitable considerations or extraordinary circumstances invoke the discretion of the judge. Discretionary decisions are reviewed under the abuse of discretion standard. Sears Mortgage Corp. v. Rose, 134 N.J. 326, 354 (1993). The exercise of discretion, however, is not unbounded or unfettered. Rather, discretion is informed by the law. Recently, in the context of review of a trial judge's rejection of a plea agreement, we discussed the nature of judicial discretion:

Perhaps a more accurate composite definition is that "judicial discretion" is the option which a judge may exercise between doing and the not doing of a thing which cannot be demanded as an absolute legal right, guided by the spirit, principles and analogies of the law, founded upon the reason and conscience of the judge, to a just result in the light of the particular circumstances of the case.

[State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004) (quoting Smith v. Smith, 17 N.J. Super. 128, 132 (App. Div. 1951), certif. denied, 9 N.J. 178 (1952)).]

The Supreme Court has also characterized an abuse of discretion as a decision "'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

This court has addressed the issue of withholding post-judgment interest twice. In Mehta, the plaintiffs commenced a personal injury action following an automobile accident. The plaintiffs were residents of Canada. 163 N.J. Super. at 2. The matter settled but delays in payment ensued when the plaintiffs did not appear at the Surrogate's Office as requested, the releases executed by the plaintiffs at the time of settlement were forwarded four months later, the plaintiffs filed a motion to amend the final judgment, and the plaintiffs failed to forward necessary information about liens for medical care in Canada. Id. at 3-4. The plaintiffs received payment nine months after settlement when all proper documentation had been submitted. Id. at 5.

The plaintiffs' motion for payment of interest on the settlement amount was filed thirteen months after the settlement and five months after payment. Ibid. Although the motion judge found that the delay of payment was not the fault of the defendants or the insurance companies, the defendants were ordered to pay interest from the date of settlement until payment. Ibid. We reversed. Id. at 7. Although we noted that the plaintiffs were not at fault, we also observed that there was no conduct by the defendants or their insurance carrier that frustrated the purpose of the settlement and timely payment and the award of interest in these circumstances would be inequitable to the defendants. Id. at 6-7.

In Marko, a personal injury action was tried to a jury and a verdict was entered in favor of the plaintiffs. 386 N.J. Super. 528. The plaintiffs filed a notice of appeal to contest the amount of pre-judgment interest awarded by the trial judge. Id. at 529. While the appeal was pending, the plaintiffs filed an order to show cause to convert the judgment against the named defendant to a judgment against its insurance carrier. Ibid. This court found the plaintiffs' appeal without merit. Ibid. Soon thereafter the insurance carrier rejected the plaintiffs' demand for post-judgment interest, the plaintiffs filed a motion for post-judgment interest and a judge granted that motion. Ibid.

We rejected the insurance carrier's appeal of the award of post-judgment interest. Noting the routine, almost automatic character of such an award, we recognized that equitable or exceptional reasons might preclude an award. Id. at 530-31. Notably, although we found the plaintiffs' prior appeal without merit, indeed we invoked Rule 2:11-3(e)(1)(E), we also did not find that the appeal was frivolous. Id. at 532. Furthermore, we considered the order to show cause "ill-advised," yet, we found "no basis to punish the client for what appears to be sniping between lawyers." Ibid. Moreover, the insurance carrier for the defendant had retained the money during the post-judgment proceedings. Ibid.

Here, no one could characterize the post-judgment proceedings, i.e. a motion for reconsideration, an appeal to this court and a petition for certification, as sniping between lawyers as in Marko. Plaintiff sustained a serious injury that he contended was caused on the job and had not resolved. A jury awarded a sum of money for lost wages but did not award any sum for pain and suffering on two occasions. When the judge granted an additur to allow an award for pain and suffering following the second trial, that sum was still markedly lower than the sum awarded for lost wages. It was not unreasonable for plaintiff to consider that he might be entitled to a greater award. To deprive plaintiff of post-judgment interest in these circumstances burdens plaintiff's right to pursue his appellate remedies and is inequitable to plaintiff when defendant paid the judgment less liens only following denial of the second petition for certification in 2008. We, therefore, reverse the order denying plaintiff's motion for post-judgment interest in the agreed amount of $71,978.72.