                        NOT FOR PUBLICATION WITHOUT THE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-3870-13T4


JOSH WILLNER, An Infant by his
Guardian ad Litem, LESTER WILLNER,
LESTER WILLNER, Individually,
and AMY WILLNER, Individually,

              Plaintiffs-Respondents,

v.

VERTICAL REALITY, An Entity Doing
Business in the State of New Jersey,
and VERTICAL REALITY MANUFACTURING,
INC., An Entity Doing Business
in the State of New Jersey,

              Defendants-Respondents,

and

IVY LEAGUE CAMP, An Entity Doing
Business in the State of New
Jersey,

              Defendants,

and

NUMATICS, INC.,1

          Defendant-Appellant.
_______________________________________________


1
    ASCO Numatics improperly pled as Numatics, Inc.
          Argued November 15, 2016 – Decided June 5, 2017

          Before Judges Espinosa, Suter, and Guadagno.

          On appeal from the Superior Court of New
          Jersey, Law Division, Monmouth County,
          Docket No. L-163-08.

          Joseph DiRienzo argued the cause for
          appellant (DiRienzo, DiRienzo & Dulinski,
          P.A., attorneys; Mr. DiRienzo, on the
          briefs).

          Craig A. Borgen argued the cause for
          respondents Vertical Reality, Inc. and
          Vertical Reality Manufacturing, Inc. (Miller
          & Borgen, attorneys; Mr. Borgen, on the
          brief).

          Cynthia A. Walters argued the cause for
          respondents Josh Willner, Lester Willner,
          and Amy Willner (Budd Larner, P.C.,
          attorneys; Ms. Walters and Terrence J. Hull,
          on the brief).

PER CURIAM

     On July 19, 2006, plaintiff Josh Willner began climbing a

mobile "rock wall" at the Ivy League Day Camp (Ivy League).

Willner, who was sixteen at the time, was employed by Ivy League

as a junior counselor.   Willner was wearing a helmet and a

harness attached to an auto-belaying cable,2 and was guided by a




2
  Testimony at trial described the auto-belay system as one that
replaced the traditional system in which "another person holds a
belay rope so in case the person [climbing] falls . . . the
belay rope prevents them from falling all the way down."

                                2                         A-3870-13T4
camp employee "specialist" trained to operate the rock wall

apparatus.

     After reaching a height of twelve to fifteen feet, Willner

pushed off the wall in order to descend.   Willner heard a loud

noise and the cable connected to his harness lost tension.     He

dropped to the ground, fracturing his ankle.   Willner required

surgery to repair his ankle.   Subsequent investigation of the

auto-belay system indicated that the cast aluminum retainers in

the hydraulic cylinders failed, causing a loss of fluid from the

cylinder, resulting in the cable holding Willner to lose all

tension.

     In 2009, Willner and his parents, Lester and Amy Willner,

filed a complaint alleging strict products liability,

negligence, and per quod claims against Ivy League, Vertical

Reality, Inc. (Vertical Reality), the rock wall manufacturer, and

ASCO Numatics, Inc., (Numatics), the manufacturer of the

cylinders used in the rock wall's auto-belay system.    In 2010,

Willner filed a second amended complaint naming defendant

Vertical Reality Manufacturers, Inc.3



3 Vertical Reality Manufacturing, Inc. began doing business in
June 2005. Vertical Reality ceased doing business in September
2008. The trial judge found Vertical Reality Manufacturing, Inc.
to be Vertical Reality's corporate successor. We refer to the
entities collectively as "Vertical Reality."

                                3                           A-3870-13T4
    Willner filed an offer of judgment on or about May 25,

2012, in the amount of $125,000.     Neither Vertical Reality nor

Numatics accepted the offer of judgment.

    The case was tried to a jury before Judge Joseph P. Quinn

over eleven days in December 2013.    The jury returned a verdict

in Willner's favor finding (1) Vertical Reality's rock wall was

designed defectively; (2) Vertical Reality's design defect was

the proximate cause of Willner's accident; (3) Numatics' product

had a manufacturing defect; (4) Numatics' product proximately

caused Willner's accident; (5) Vertical Reality's rock wall

contained inadequate warnings; and (6) Vertical Reality's

inadequate warning proximately caused Willner's accident.

    The jury awarded Willner $17,000 in medical expenses, $1000

per quod medical expenses, and $340,000 for pain and suffering.

The jury allocated liability at seventy-percent to Vertical

Reality and thirty-percent to Numatics.     On March 24, 2014, the

trial judge entered an order granting Willner's application for

counsel fees and costs under the offer of judgment rule, as well

as pre-judgment interest.

    Numatics appeals from the denial of its motions for

directed verdict at the close of plaintiff's case and at the

close of evidence; from the denial of its motion for judgment



                               4                            A-3870-13T4
notwithstanding the verdict (JNOV); from the jury verdict; and

from the molded judgment.

    Numatics argues the trial court erroneously denied its

motions for directed verdict and motion for JNOV on the

manufacturing defect claim because neither Willner nor Vertical

Reality proffered any evidence of Numatics' deviation from its

design or performance specifications, or that the pores in the

casting proximately caused Willner's accident.    Numatics also

contends the court erred in failing to issue a limiting

instruction to the jury regarding evidence of Numatics' conduct,

failed to instruct the jury on the permissible scope of the

evidence concerning its use of cast retainers instead of

machined retainers, and that these and other errors cumulatively

denied Numatics of a fair trial.    Finally, Numatics asserts the

trial court erred in awarding Willner attorney's fees and costs

under the offer of judgment rule, because Numatics' individual

liability did not exceed the offer of judgment.

    At trial, consulting engineer Thomas J. Cocchiola testified

for Willner as an expert in engineering design and safety, and

submitted a report containing his observations and conclusions.

Cocchiola described the automatic belay system as including two

pulleys located at the back of the climbing wall connected to

the top of two cylinders.   A cable ran from the front of the

                                5                          A-3870-13T4
climbing wall around a pulley located at the top of the wall and

another pulley above two cylinders containing hydraulic fluid.

The oil and air in the cylinders served "as a damping device to

basically lower and lift the climber."      Cocchiola further

explained

            as a person climbs up the rock wall the
            pressure in the system, the air pressure, will
            . . . retract the belay ropes to keep the
            slack out of the belay ropes. So as the person
            climbs up, . . . the rope retracts or it . . .
            stays taut . . . .      But then if a person
            actually slips, falls, needs the belay system,
            then as the weight of the person goes onto
            that cable . . . that force of the weight of
            the person and the other forces, the dynamic
            forces, go through the cable, through that
            pulley system . . . and ultimately to the
            bracket that's mounted to the top of the
            cylinders.

    Cocchiola found the auto-belay system was not adequately

designed to support the load of Willner's weight of 250 pounds.

Cocchiola examined the cylinders which failed, resulting in

Willner's fall.    Each cylinder was equipped with a cast aluminum

bushing retainer on the rod end.      When the retainers failed, the

cylinders "blew apart" causing hydraulic fluid to leak through

the open ends of the cylinders.       This failure caused Willner to

"plummet" and break his ankle.

    Jose Balter, a Numatics salesman, testified that he

approached Vertical Reality in 2004 to sell them cylinders.


                                  6                             A-3870-13T4
Balter had previously worked for Marco Fluid Power, selling

cylinders manufactured by Parker Hannifin, the original

cylinders used by Vertical Reality in its rock walls.

    Kenneth Sharkey, the owner of Vertical Reality, testified

that his company used the Parker Hannifin cylinders for four or

five years without ever experiencing a failure.    After Balter

switched companies, he approached Sharkey and offered "a better

product with more efficient pricing."    Sharkey agreed to switch

from the Parker Hannifin cylinders to Numatics because "they

were very aggressive in their pricing [and] told us they would

make a better cylinder for us and more efficient and more cost-

effective."    Vertical Reality gave Numatics a sample Parker

Hannifin cylinder to be used as a design prototype.

    Mark Pigg, a Numatics product engineer, designed the

cylinder used in this case.    Pigg testified that the Numatics

cylinder matched the Parker Hannifin cylinder's "form, fit and

function," but there were certain design differences:     the

Numatics cylinder contained a retainer with a "floating bushing

design," while Parker Hannifin used a "threaded-in bushing"

without a retainer.   Pigg sent a drawing of the proposed

cylinder, but it did not specify whether the retainer was cast

or machined.



                                 7                          A-3870-13T4
    Pigg testified the prototype cylinder and all subsequent

cylinders employed cast retainers, but Sharkey testified that

the first prototype employed a machined retainer, but later

shipments were all cast retainers.   Sharkey, who is not an

engineer, did not know the difference between cast and machined

retainers and testified that no one at Numatics advised him of

the change.

    Numatics obtained the cast retainers from Sherman Pressure

Castings (SPC).   Documents introduced at trial indicate that in

2004 and 2005, Numatics returned several retainers received from

SPC for cracks.   Pigg testified that by 2009, Numatics switched

from cast to machined retainers.

    Cocchiola testified that he examined the area where the

cast Numatics retainers cracked and noted a "void" or "an empty

space within the casting" in both failed retainers.   Cocchiola

opined that the retainers were defectively manufactured and

contributed to the "design deficiency" of the belay system.

    In rendering his opinion, Cocchiola relied, in part, on

documents indicating that Numatics was aware of cracks in the

retainers shortly after it began shipping cylinders to Vertical

Reality.   In May 2005, fourteen months before Willner's

accident, Numatics inspected 2300 cast retainers and discovered

cracks in 101 of them.

                                8                          A-3870-13T4
    Dale Alexander was called by Numatics and accepted as an

expert in the fields of engineering, metallurgy, and failure

analysis.    Alexander testified that porosity is inherent in

castings and whether a casting is defective "depends on whether

it's capable of achieving its design intent."     Alexander

performed three tests:    a finite element analysis, a moment of

inertia analysis, and a fracture mechanics analysis.    Alexander

opined that these three tests indicated that despite the pore,

the retainers were "manufactured in a manner that was reasonably

fit, suitable, and safe for [their] ordinary and reasonably

foreseeable purposes on 250 PSI rated cylinder."

    In denying Numatics' motion for a new trial or JNOV, Judge

Quinn noted that it was undisputed that the cracked cylinders

resulted in Willner's fall, and while Cocchiola and Alexander

"disagreed on the calculation as to the static load that was

imported onto the cylinders as a result of [Willner's] descent

from the rock-climbing wall . . . [t]hat was something that the

jury had to resolve."    Judge Quinn continued:

                 There clearly was a failure of the
            retainers in this cylinder. They broke. They
            broke at their weakest part.     That's what
            caused the cylinders to fail.

                 No one disputes, moreover, that the
            machined retainers did not break either from
            the previous manufacturer or from Numatics.
            The cast retainers broke. They broke in this

                                 9                            A-3870-13T4
         plaintiff's case, and they broke in other
         cases and were ultimately replaced.

              The evidence I thought was clear to the
         jury that the cast retainers, and I don't
         think anyone ‒ any expert disputed this ‒
         contained voids.    And the cast retainers
         containing the voids, which are the retainers
         that broke, were weaker than the machined
         retainers, and that they broke at their
         weakest point.

              And   I  think   all   of   the   experts
         essentially agreed that cast retainers contain
         voids and are weaker.      That's where they
         broke. And that breaking is essentially what
         caused the failure of this cylinder, and the
         plaintiff's shattered ankle when he fell.

               . . . .

              I think in this case there is ample
         evidence from which a jury could conclude that
         there was a product defect in this retainer,
         in the cylinders, i.e., the cylinder retainers
         were weaker, containing voids, and those were
         the ones that were cast as opposed to the
         machined retainers, which didn't break and
         contained no voids.

    In reviewing a trial court's decision on a motion for

judgment, or directed verdict, pursuant to Rule 4:40-1, and

motion for JNOV, Rule 4:40-2(b), we apply the same standard of

review as the trial court. Frugis v. Bracigliano, 177 N.J. 250,

269 (2003).   A motion for directed verdict must be denied "[i]f,

accepting as true all the evidence which supports the position

of the party defending against the motion and according him the

benefit of all inferences which can reasonably and legitimately

                               10                         A-3870-13T4
be deduced therefrom, reasonable minds could differ." Estate of

Roach v. TRW, Inc., 164 N.J. 598, 612 (2000) (quoting Sons of

Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997)).

    "Conversely, a 'dismissal is appropriate when no rational

jury could conclude from the evidence that an essential element

of the plaintiff's case is present.'" Perez v. Professionally

Green, LLC, 215 N.J. 388, 404 (2013) (quoting Pron v. Carlton

Pools, Inc., 373 N.J. Super. 103, 111 (App. Div. 2004)); Frugis,

supra, 177 N.J. at 270 ("[I]f the evidence and uncontradicted

testimony is 'so plain and complete that disbelief of the story

could not reasonably arise in the rational process of an

ordinarily intelligent mind, then a question has been presented

for the court to decide and not the jury.'" (quoting Ferdinand

v. Agric. Ins. Co., 22 N.J. 482, 494 (1956))).   However, courts

are "not concerned with the worth, nature or extent (beyond a

scintilla) of the evidence, but only with its existence, viewed

most favorably to the party opposing the motion." Dolson v.

Anastasia, 55 N.J. 2, 5-6 (1969).

    N.J.S.A. 2A:58C-2 provides in relevant part:

         A manufacturer or seller of a product shall
         be liable in a product liability action only
         if the claimant proves by a preponderance of
         the evidence that the product causing the harm
         was not reasonably fit, suitable or safe for
         its intended purpose because it . . . deviated
         from the design specifications, formulae, or

                              11                            A-3870-13T4
           performance standards of the manufacturer or
           from otherwise identical units manufactured to
           the same manufacturing specifications or
           formulae.

    "A product is deemed to be defective if it is not

reasonably fit, suitable, or safe for the ordinary or

foreseeable purpose for which it is sold." Myrlak v. Port Auth.

of N.Y. & N.J., 157 N.J. 84, 97 (1999) (citation omitted).        A

manufacturing defect arises "when the product comes off the

production line in a substandard condition based on the

manufacturer's own standards or identical units that were made

in accordance with the manufacturing specifications." Id. at 98.

"Imperfect material, a defective weld, or some physical damage

in the product exemplify the usual claim." Suter v. San Angelo

Foundry & Mach. Co., 81 N.J. 150, 170 (1979).     However, "[t]he

occurrence of an accident and the fact that someone was injured

are not sufficient to demonstrate a defect." Lauder v. Teaneck

Volunteer Ambulance Corps., 368 N.J. Super. 320, 332 (App. Div.

2004) (citing Scanlon v. Gen. Motors Corp., 65 N.J. 582, 590

(1974)).

    Numatics was asked by Vertical Reality to design a cylinder

that would "match the [Parker] cylinder exactly."      The cylinder

produced by Vertical Reality differed from the Parker Hannifin

design in two significant ways:      the Parker Hannifin used a


                                12                           A-3870-13T4
screw-in head which was admittedly stronger than the retainer

used by Vertical Reality, and the Parker Hannifin was made from

machined material as opposed to the weaker cast aluminum collar

used by Vertical Reality.   The jury had ample evidence in the

record to determine that, in employing the cast retainer, the

Numatics cylinder was manufactured defectively, and was a

proximate cause of Willner's accident.

    Next, Numatics argues that there was an improper focus on

its conduct during trial which led the jury to act

"irrationally," and the judge erred in failing to instruct the

jury that it was not to consider evidence of its conduct when

determining the manufacturing defect claim.   Specifically,

Numatics claims (1) both parties referred to Numatics'

negligence in their opening statements; (2) testimony was

elicited regarding Numatics' pre-accident knowledge of cylinder

failures; (3) testimony was elicited that Numatics should have

performed calculations to evaluate the safety of Vertical

Reality's climbing wall and the components within it; (4)

testimony was elicited that Numatics should have taken action to

repair or replace retainers in Vertical Reality climbing walls

already out in the field; and (5) there was testimony that

Numatics was negligent in manufacturing cylinders with cast

instead of machined retainers.

                                 13                         A-3870-13T4
     This evidence was relevant to plaintiffs' design defect and

failure to warn claims which were not dismissed against Numatics

until the close of evidence.   While a limiting instruction at

that point would have been appropriate, it was not requested.

Similarly, Numatics did not object to the absence of a jury

instruction as to the treatment of conduct evidence in the jury

charge, which it now claims requires a new trial.   We review

both claims for plain error. R. 2:10-2.

     During summation, counsel for Vertical Reality argued:

          The only failures were with the cylinders that
          [N]umatics sold to Vertical Reality with cast
          retainers. And we know, the evidence is clear
          that the cast retainers are weaker. We know
          that    they   have    less   load    carrying
          capabilities.

               Numatics chose to use those retainers,
          because it's cheaper. Numatics chose to use
          those retainers, not any input from Vertical
          Reality.

     Numatics4 objected and moved for a mistrial,5 which was

denied by the court.   The court sustained Numatics' objection


4 The transcript reflects Willner's counsel, Mr. VanDyke, objected
to Vertical Reality's statements during summation and moved for a
mistrial, however this appears to be a transcription error. In
Numatics' brief, Numatics states its counsel, Mr. DiRienzo, made
these objections.
5
  Although Numatics moved for a mistrial following both Willner's
and Vertical Reality's comments during summation ‒ which were
denied by the trial court ‒ Numatics does not appeal the trial
court's denial of these motions.

                               14                          A-3870-13T4
and request for a curative instruction, instructing the jury "to

disregard the last comment.   That's not an issue that you're

going to be charged on, or have to decide in connection with the

case."

    Numatics submitted the following request to charge the jury

as to the conduct of the parties:

              In a products liability case such as this
         one, negligence is not an issue for your
         consideration. You are not to focus on the
         conduct of the parties. Rather, the issue for
         your determination is on the condition of the
         products that have been alleged to be
         defective. . . . Likewise, if you find that
         a product is not defective, then you must find
         that in favor of that defendant as to
         plaintiff's   claim,   regardless    of   that
         defendant's conduct.

    Judge Quinn gave the jury a charge substantially mirroring

the Model Jury Charge. See Model Jury Charge (Civil), 5.40B,

"Manufacturing Defect" (2009):

              Plaintiff has made a manufacturing defect
         allegation against the Defendant, Numatics,
         alleging that the cast retainer that was on
         the cylinder at the time of the accident
         contained a void and was weaker and therefore
         rendered it defective. Numatics denies this
         claim.

              Let me give you some applicable concepts
         when dealing with the claim of a manufacturing
         defect, and then I'll explain what the
         Plaintiff must prove to establish a defect in
         manufacturing.



                                 15                       A-3870-13T4
              So, a manufacturing defect may be
         established by proof that as a result of a
         defect or flaw, which happened during the
         production, or while in Defendant's control,
         the product was unsafe and that unsafe aspect
         of the product was a substantial factor in
         causing the Plaintiff's accident.

              To   establish    this    claim   for   a
         manufacturing defect, the Plaintiff must prove
         the following elements by a preponderance of
         the credible evidence: that the cylinder
         contained a manufacturing defect, which made
         the product not reasonably safe. To determine
         if the cylinder had a manufacturing defect,
         you must decide what the condition of the
         cylinder as planned should have been according
         to   Numatics'   design    specifications   or
         performance standards and what its condition
         was as it was made.

              If you find there's no difference between
         these   two   conditions,   then  there's   no
         manufacturing defect.       If there was a
         difference you must decide if that difference
         made the cylinder not reasonably safe for its
         intended or reasonably foreseeable uses. If
         the answer is yes, then you found the cylinder
         to be defective.    Plaintiff need not prove
         that Numatics knew of the defect, nor that
         Numatics caused the defect to occur.

    In instructing the jury as to the design defect claim

against Vertical Reality, the court reiterated to the jury that

Numatics was not liable on design defect grounds:

         Since Vertical Reality was using a 250 PSI-
         rated cylinder at the time that it was [sic]
         switched cylinders made by Numatics, there had
         been no proof that Numatics substantially
         participated in the integration of a component
         into the rock climbing wall. Since all of the
         experts agree there was no design defect in

                              16                          A-3870-13T4
         the cylinders themselves, there's no evidence
         that Numatics substantially participated in
         the design of the auto belay system. So, you
         must not consider Numatics liable on a design
         defect. The claim of design defect refers to
         claims against Vertical Reality.

    In addition, Judge Quinn instructed the jury that there was

no evidence Numatics had participated in the design of the rock

wall or the belay system:

         The manufacturer of a component part that
         bundles a component of a system in accordance
         with the specifications of the donor has no
         legal duty to ensure that its component part[]
         was safely integrated into the larger system.
         . . . there had been no proof that Numatics
         substantially participated in the integration
         of a component into the rock climbing
         wall. . . . [and] there's no evidence that
         Numatics substantially participated in the
         design of the auto belay system.

    After the jury began deliberation, it requested a written

copy of the judge's instructions.   The judge told the jury he

would read back any specific request but the written

instructions are not provided to juries in civil cases.   The

jury then asked for a read-back of the judge's manufacturing

defect instructions, which was done.

    On the following day, the jury sent out a note inquiring:

"If we answer no for Question Number 3 [("Was defendant

[Numatics'] cylinder manufactured defectively?")], can we still

assign a percentage of fault to both party – both companies?"


                              17                          A-3870-13T4
In response, the judge instructed the jury:   "The answer to your

question would be no" and it would "need to follow the

instructions on the jury verdict sheet, and follow the jury

verdict sheet. . . . So if you find that there's no

manufacturing defect, then the allocation under Question 7,

which is percentage of fault, would be zero."

    Numatics now argues these questions evidence the jury's

"confusion created by the judge rejecting Numatics' requested

charge in the face of conduct evidence."   We disagree.

    Trial courts have "an absolute duty to instruct the jury on

the law governing the facts of the case." State v. Koskovich,

168 N.J. 448, 507 (2001) (quoting State v. Concepcion, 111 N.J.

373, 379 (1988)).   "It is firmly established that '[w]hen a jury

requests a clarification,' the trial court 'is obligated to

clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002)

(alteration in original) (quoting State v. Conway, 193 N.J.

Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650

(1984)).   When a trial court instructs the jury in accordance

with relevant legal principles, the reviewing court should

"presume that the jury understood and followed those

instructions." Ibid.

    When presented with the jury's question, Judge Quinn

provided the jury with a succinct and accurate instruction

                               18                          A-3870-13T4
explaining that if it did not find that Numatics manufactured

the cylinder defectively it could not still assign a percentage

of fault to it.    There were no objections to the instruction

from counsel and the jury sought no additional guidance or

clarification before rendering its verdict.    "That the jury

asked for guidance during deliberations merely indicates that

the jury took its job seriously and conscientiously worked to

come to a just decision." People v. Minniweather, 703 N.E. 2d

912, 916 (1998).    Upon our review of the record, we conclude

that Judge Quinn's pre- and post-deliberation instructions were

proper and appropriate and did not constitute error, let alone

plain error.

    Finally, Numatics argues the trial court erred in granting

Willner's motion for sanctions pursuant to the offer of judgment

rule because the molded judgment against Numatics did not exceed

120% of Willner's offer of judgment.

    Rule 4:58-2(a) provides in pertinent part:

         [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,
         excluding allowable prejudgment interest and
         counsel fees, the claimant shall be allowed,
         in addition to costs of suit: (1) all
         reasonable    litigation   expenses   incurred
         following non-acceptance; (2) prejudgment
         interest of eight percent on the amount of any
         money recovery from the date of the offer or
         the date of completion of discovery, whichever

                                19                         A-3870-13T4
           is later . . . ; and (3) a reasonable
           attorney's fee for such subsequent services
           as are compelled by the non-acceptance.

    As Judge Quinn noted, plaintiff's offer to settle the case

for $125,000 was not accepted by either defendant.    As the

jury's award to plaintiff for pain and suffering and medical

expenses totaled $358,000, Judge Quinn found the rule "clearly"

applied.

    Numatics now contends the judgment against it should be

vacated because its pro rata share of the total verdict amounted

only to $107,400, which is below the $144,000 threshold to

trigger sanctions.     This argument was not raised before Judge

Quinn and is not properly before us.    It is a well-settled

principle that our appellate courts will decline to consider

questions or issues not properly presented to the trial court

when an opportunity for such a presentation is available unless

the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest. Nieder

v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).     However, in

the interest of completeness, we choose to address the claim and

find it lacks merit.

    "The offer-of-judgment rule is 'designed . . . as a

mechanism to encourage, promote, and stimulate early out-of-

court settlement of . . . claims that in justice and reason

                                 20                         A-3870-13T4
ought to be settled without trial.'" Schettino v. Roizman Dev.,

158 N.J. 476, 482 (1999) (quoting Crudup v. Marrero, 57 N.J.

353, 361 (1971)).   To incentivize settlement, and thereby

"fulfill its purpose, the rule imposes financial consequences on

a party who rejects a settlement offer that turns out to be more

favorable than the ultimate judgment." Ibid.   "Given those

purposes, it would thwart the rule to allow a party who has

rejected a settlement to escape mandatory payment for any

portion of the costs incurred as a result of his decision."

Wiese v. Dedhia, 188 N.J. 587, 593 (2006).

    "The rule did not specifically address whether a jury's

verdict or a molded judgment would trigger the rule's

benefit. . . . however . . . for purposes of determining which

party prevails under the Offer of Judgment Rule, the amount of

the actual verdict is compared to the amount of the offer."

Pressler & Verniero, Current N.J. Court Rules, comment 3 on R.

4:58 (2017) (emphasis supplied).

    Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100 (2005),

involved a multi-defendant verdict after a ruling by the United

States Bankruptcy Court had limited the liability of one of the

defendants to the insurance coverage in effect at the time of

the underlying incident. Id. at 113, 123.    The Court held that

in determining whether the offer of judgment rule applied, the

                               21                            A-3870-13T4
amount of the offer was to be compared with the amount of the

jury verdict rather than the amount of defendant's potential

liability. Id. at 124 ("The fee-shifting provisions of Rule

4:58-2 are triggered by a 'verdict' or 'determination.' Here,

the verdict in favor of plaintiff far exceeded 120% of

plaintiff's offer.").

    Plaintiff relies on the Court's recent decision in Wadeer

v. New Jersey Manufacturers Insurance Company, 220 N.J. 591

(2015), in arguing that the molded verdict controls.     This

reliance is misplaced.    Wadeer involved an uninsured motorist

(UM) claim made by plaintiff against his carrier, New Jersey

Manufacturers Insurance Company (NJM). Id. at 595.    Before

trial, NJM rejected plaintiff's offer of judgment in the amount

of $95,000. Id. at 596.   The jury awarded plaintiff $222,175 for

pain and suffering and lost wages but the trial judge reduced

the judgment to $100,000, the limit of NJM's policy. Ibid.      The

judge also awarded attorney fees and costs pursuant to Rule

4:58-2. Ibid.

    The Wadeer Court noted that the offer of judgment 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." Id. at 611.    The Court then held

                                22                          A-3870-13T4
         the molding of a monetary jury award is
         appropriate when done to conform with and
         reflect allocation of liability. However, in
         the UM/UIM context, where reduction is based
         not on a tortfeasor's comparative negligence
         but instead on the policy limits of a given
         carrier, we find that the current construction
         of Rule 4:58-2 provides no incentive for such
         carriers to settle.

         [Ibid.]

    The Court concluded 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" and referred Rule 4:58-2 to the

Civil Practice Committee for comments and recommendations. Ibid.

(quoting Crudup, supra, 57 N.J. at 357).

    The Wadeer Court did not mention Gonzalez, let alone

overrule it, and "the underlying logic of Wadeer and Gonzalez

are congruent." Pressler & Verniero, supra, comment 3 on R.

4:58.

    Wadeer does not compel the use of molded judgments in

determining whether the offer of judgment rule is applicable as

Numatics suggests.   We find no reason to disturb Judge Quinn's

decision to award fees and costs based on the offer of judgment

rule.




                               23                          A-3870-13T4
    Defendant's remaining arguments, including his claim of

cumulative error, lack sufficient merit to warrant further

discussion in our opinion. R. 2:11-3(e)(1)(E).

    Affirmed.




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