7-2-2547 Serico v. Rothberg, M.D., N.J. Super. App. Div. (Rothstadt, J.A.D.) (13 pp.) In this appeal, we address the viability of a plaintiff’s claim for fees under the offer of judgment rule, R. 4:58-1 to – 6, after the parties enter into a high-low settlement agreement and the jury returns a verdict in excess of the high. The Law Division denied plaintiff’s motion for fees under the Rule because plaintiff and defendant entered into the agreement and plaintiff did not expressly reserve her right to recover fees under the Rule. Based on the court’s experience, it found that the “custom and usage” in the practice of law dictated that without evidence of a reservation of rights, a claim under the Rule was waived by entering into a high-low agreement. On appeal, plaintiff contended that although she did not reserve her rights, she did not waive them by entering into the agreement. Defendant argued that plaintiff’s failure to reserve her rights gave rise to a waiver or abandonment of any claim she had for attorney’s fees and, in any event, as the trial court found, the “custom and usage” practiced in the area provides that such claims are deemed abandoned when a party enters into a high-low agreement. We concluded that, while the trial court’s reliance on its personal experience was misplaced, it correctly determined that the amount of plaintiff’s total recovery from defendant was limited by the ceiling imposed by the high-low agreement because plaintiff did not indicate any intention to preserve her claim under the Rule when the parties placed the agreement on the record. (Approved for Publication)
3-1-2565 Bound Brook Bd. of Educ. v. Chiripompa, Supreme Ct. (Timpone, J.) (21 pp.) In this appeal, the Court determines whether an arbitrator exceeded his authority by applying the standard for proving a hostile-work-environment, sexual-harassment claim in a law against discrimination case to a claim of unbecoming conduct in a tenured teacher disciplinary hearing. The arbitrator impermissibly converted the second charge of unbecoming conduct into one of sexual harassment. The re-characterization of Count II erroneously tasked the Board with substantiating charges it did not file with evidence it did not proffer. The arbitrator’s review was not “consonant with the matter submitted,” Grover v. Universal Underwriters Ins. Co., 80 N.J. 221, 231 (1979); rather, he “imperfectly executed his powers” as well as exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in support of termination. N.J.S.A. 2A:41-8(d). The arbitrator’s award is therefore invalid.
