The Supreme Court’s recent decision in Sercio v. Rothberg provides essential guidance to the trial bar on the relationship between an offer of judgment under Rule 4:58 and a subsequent high-low agreement. Plaintiff in Sercio, a medical malpractice case, had made an offer of judgment including a warning that, if rejected, plaintiff would seek the costs and attorney fees allowed by the rule. Defendant rejected the offer, and the case went to trial. During trial, the parties entered a high-low agreement on the record. The amount of the offer of judgment fell between the high and the low. The jury returned with a verdict substantially above the $1 million upper limit of the high-low, and hence above the offer of judgment. Plaintiff then sought the costs and attorney fees provided by Rule 4:58, in addition to the high-low recovery. The trial court and Appellate Division denied the application, and the Supreme Court affirmed.

The teaching of Sercio is that a high-low agreement is exactly that—providing for a minimum and maximum total recovery unless additional elements, such as interest, are specifically addressed. If a party who has made a prior offer of judgment wants to reserve the right to recover attorney fees under Rule 4:58, it must do so expressly. The decision lays down a bright-line rule that will apply clearly in practice, which will avoid confusion and unintended results. We endorse the result and the Court’s approach in reaching it.