Thisopinion shall not "constitute precedent or be binding upon any court Although it is posted on the internet, this opinion is binding only on the SHARON SEAMON v. STATE FARM INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-0293-16T3

SHARON SEAMON,

        Plaintiff-Respondent,

v.

STATE FARM INSURANCE
COMPANY,

     Defendant-Appellant.
______________________________

              Submitted November 8, 2017 – Decided December 14, 2017

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              3172-14.

              Soriano, Henkel, Biehl & Matthews, attorneys
              for appellant (Thomas W. Matthews, of counsel
              and on the briefs).

              Clark Law Firm, PC, attorneys for respondent
              (Stephanie Tolnai, of counsel and on the
              brief).

PER CURIAM

        This appeal arises from a dispute between an injured plaintiff

and the insurance company that provided her with underinsured
motorist (UIM) coverage.   Defendant State Farm Insurance Company

(State Farm) appeals from a June 13, 2016 order, entering a

$375,733.36 judgment in favor of its insured, plaintiff Sharon

Seamon.   The judgment reflected a jury verdict for injuries

plaintiff suffered in an auto accident caused by an underinsured

tortfeasor. State Farm also appeals from an August 25, 2016 order,

denying its motion to mold the judgment down to the UIM policy

limits, and awarding plaintiff $37,500 in counsel fees under the

offer of judgment rule, R. 4:58-2.

     We hold that the trial court erred in refusing to mold the

judgment to reflect State Farm's UIM policy limits of $100,000,

and prematurely determined that State Farm acted in bad faith.     As

the trial court correctly held earlier in the case, plaintiff is

entitled to file a new complaint seeking additional damages for

State Farm's alleged bad faith refusal to settle her claim.      See

Wadeer v. N.J. Mfrs. Ins. Co., 
220 N.J. 591, 610 (2015).           We

therefore vacate the June 13, 2016 judgment insofar as it reflects

a non-molded verdict, and reverse the August 25, 2016 order insofar

as it denies the application to mold the verdict.

     We agree with the trial court that plaintiff is entitled to

fees and costs under the offer of judgment rule.   However, because

plaintiff's fee application was insufficiently specific, we vacate

the $37,500 award and remand for further proceedings to determine

                                2                           A-0293-16T3
the amount of the award.          Following those proceedings on remand,

the trial court shall enter one amended final judgment in this

case, which shall include the molded damages award, plus interest,

and   the   award   of    fees   and   costs.   As   previously   indicated,

plaintiff may also file a new complaint to pursue her bad faith

claim.

      The underlying facts are straightforward and uncontested.             In

2012, plaintiff was injured in an accident.           She settled with the

other driver for his $15,000 policy limits, and filed a UIM claim

with State Farm.         When the claim could not be settled, she filed

suit against State Farm.         Each party filed an offer of judgment,

with State Farm offering $30,000 and plaintiff offering $85,000.

The jury returned a verdict of $375,000.

      After subtracting the $15,000 plaintiff recovered from the

tortfeasor, the trial court entered judgment for plaintiff for

$360,000 plus interest, without prejudice to either party's right

to file a post-judgment motion for molding or other relief.            State

Farm filed a motion to mold the verdict.         Plaintiff filed a motion

to amend the complaint to add a bad faith claim, and sought counsel

fees under the offer of judgment rule.          State Farm contended that

plaintiff's offer of judgment must be compared to the judgment

after molding, thus defeating her right to recover fees under the

Rule.    State Farm opposed the motion to amend, but asserted that

                                        3                            A-0293-16T3
the entire controversy doctrine would not preclude plaintiff from

filing a new complaint asserting bad faith.

     On June 14, 2016, the trial court denied plaintiff's motion

to amend but held that she could file a new complaint asserting

the bad faith claim.    However, in later addressing State Farm's

motion, the trial court held that it had discretion not to mold

the verdict, and stated, without further factual findings, that

molding was inappropriate in this case because State Farm had

engaged in a "scorched earth" approach to settlement.          The trial

court awarded fees under the offer of judgment rule, based on the

non-molded verdict.

     We first address the issue of molding.         Because we owe no

deference to a trial court's legal interpretations, our review is

de novo.   Zaman v. Felton, 
219 N.J. 199, 216 (2014).      We conclude

that the trial court misconstrued Taddei v. State Farm Indemnity

Company, 
401 N.J. Super. 449 (App. Div. 2008), and Wadeer v. New

Jersey Manufacturers Insurance Company, as giving the trial court

discretion to decline to mold the verdict.      Taddei made clear that

molding was required, and Wadeer did not disturb that holding.

Taddei   recognized   that   molding   is   appropriate   in   uninsured

motorist (UM) and UIM cases, because the claims are based on an

insured's contract rights under the policy:



                                   4                             A-0293-16T3
            UM and UIM cases are first-party contract
            claims   against   insurers,  but   they  are
            generally tried as if they were third-party
            tort actions with the insurer standing in for
            the uninsured or underinsured tortfeasor
            . . . . Thus, courts have appropriately
            recognized the need to mold jury verdicts in
            these cases to reflect the rights and duties
            of the parties under the insurance policy.

            [Id. at 464 (citations omitted).]

     The trial court's obligation to mold a UIM verdict was not

at issue in Wadeer.     However, the Court acknowledged that the

Appellate    Division   had   "specifically     rejected   plaintiff's

arguments disputing the trial court's molding of the verdict

. . . following Taddei," and stated that the Court affirmed our

decision.    Wadeer, 
220 N.J. at 596.     The Court then addressed

whether, for purposes of Rule 4:58-2, a plaintiff's offer of

judgment should be compared to the molded judgment or the jury's

verdict.    Id. at 610-12.    That portion of the opinion was not

concerned with whether the verdict should be molded, but whether

molding should affect a plaintiff's right to recover fees under

Rule 4:58-2.    Id. at 611.    We do not construe any language in

Wadeer as disapproving Taddei or as giving a trial court discretion

not to mold a UIM damages verdict.

     Moreover, even if there were discretion not to mold the

verdict, the trial court erred in resting its decision on State

Farm's alleged bad faith.     Unlike Wadeer, plaintiff here did not

                                  5                            A-0293-16T3
raise the bad faith issue in her complaint, and under the holding

in Wadeer, she had the right to file a new complaint asserting

that claim.   Wadeer, 
220 N.J. at 610.   The trial court should not

have decided the bad faith issue without requiring plaintiff to

file the complaint and without giving both sides a full and fair

opportunity to litigate that issue.

     Although we reverse on the molding issue, we agree with the

trial court that plaintiff was entitled to counsel fees under the

offer of judgment rule.   When Wadeer was decided, the then–current

version of Rule 4:58-2(a) provided relief "[i]f the offer of a

claimant is not accepted and the claimant obtains a money judgment,

in an amount that is 120% of the offer or more . . . ."   Pressler

& Verniero, Current N.J. Court Rules, R. 4:58-2(a) (2015) (emphasis

added).   The Court noted "the latent ambiguity" in that language,

stating that "the rule, as currently written, does not explicitly

provide whether the jury's verdict is the trigger for the sanctions

and remedies of Rule 4:58-2 or, conversely, whether the molded

judgment controls."   Wadeer, 
220 N.J. at 611.

     The Court reasoned that evaluating a plaintiff's offer in

light of a molded UIM or UM judgment, instead of comparing it to

the jury's verdict, gives an insurer no incentive to settle and

thus defeats the Rule's purpose:



                                 6                          A-0293-16T3
          [W]e find that the current construction of
          Rule 4:58-2 provides no incentive for such
          carriers to settle. Rather, under the current
          rule, carriers are prone to take their chances
          at trial where the offer of judgment is
          somewhat near their policy limits because they
          have relatively little to lose in doing so.
          Thus, the rule's required reduction of a
          monetary jury award artificially to the policy
          limits renders moot any reasonable offer of
          settlement by the insured below the 120%
          threshold; unless an insured makes an offer
          of judgment that is unreasonably below its
          policy limits, it is unlikely that an
          insurance carrier will choose to settle the
          respective claim.     In light of this, we
          conclude that the aims of Rule 4:58-2, "to
          encourage, promote and stimulate early out-
          of-court settlement," are ill-achieved in the
          UM/UIM context under the rule's current
          construction.

          [Id. at 611 (quoting Crudup v. Marrero, 57
          N.J. 353, 357 (1971).]

     For that reason, the Court tasked the Civil Practice Committee

with drafting appropriate amendments.    Ibid.   The Committee did

so, and the Court adopted the amendments on August 1, 2016,

effective September 1, 2016. R. 4:58-2(b); Pressler & Verneiro,

Current N.J. Court Rules, note to R. 4:58-2 (2017).1

     The amended Rule specifically addresses UM and UIM claims and

bases the right to relief on the "monetary award by jury or non-

jury verdict," adjusted only for comparative negligence.   R. 4:58-


1
   The order in this case was issued on August 25, 2016, about
three weeks after the Rule was adopted and a week before it took
effect.

                                7                           A-0293-16T3
2(b).     Thus, the amended Rule implements the Court's                 policy

concerns as expressed in Wadeer and corrects what the Court noted

was an ambiguity in the old Rule.          Because the newly-adopted Rule

4:58-2(b) is curative and represents a clarification of the old

Rule, it should be applied in this case.         See Kendall v. Snedeker,


219 N.J. Super. 283, 287-88 (App. Div. 1987) (Curative acts can

be applied retroactively where they are designed to remedy a

perceived imperfection in or misapplication of a statute and "not

to alter the intended scope or purposes of the original act.").

Consequently,    although      we   disagree    with    the   trial   court's

reasoning, we agree that plaintiff was entitled to a fee award

under the offer of judgment rule.

     However, although plaintiff was entitled to fees, we are

constrained to remand because the fee application was deficient.

We understand that the attorney who handled the trial has retired,

and the firm probably represented plaintiff on a contingent fee

basis.    However, a fee application must "be supported by an

affidavit of services addressing the factors enumerated by RPC

1.5(a)" and must include a specific enumeration of the services

performed and the hours spent.         R. 4:42-9(b).     See Szczepanski v.

Newcomb   Med.   Ctr.,   
141 N.J.   346,    366-68   (1995).       The   fee

application here did not contain that information.                Nor did the

trial court set forth the factors it considered in making the

                                       8                               A-0293-16T3
award.    See RPC 1.5.   On remand, plaintiff's counsel must submit

a conforming fee application, so that the trial court can make the

appropriate findings in determining the award.

     Affirmed in part, reversed in part, vacated and remanded in

part.    We do not retain jurisdiction.




                                  9                         A-0293-16T3