LINDA A. MOORE v. ALLSTATE NEW JERSEY INSURANCE COMPANY

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0228-04T1

LINDA A. MOORE,
 
Plaintiff-Appellant,

v.

ALLSTATE NEW JERSEY INSURANCE
COMPANY; an insurance corporation,
its servants, agents or employees,

Defendants-Respondents.

_______________________________________

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September 27, 2005

Submitted September 12, 2005 Decided

Before Judges Alley and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1315-01.

Koerner & Crane attorneys for appellant (Howard D. Crane, of counsel; Mr. Crane and Kendall W. Medway, on the brief).

Seeber, Bowkley & Zelante attorneys for respondents (Thomas A. Zelante, of counsel and on the brief).
 
PER CURIAM
Plaintiff Linda Moore appeals from an order filed July 28, 2004 granting in part and denying in part plaintiff's application for attorneys' fees incurred to prosecute an action to compel defendant Allstate Insurance Company to provide plaintiff personal injury protection (PIP) benefits. We affirm.
We briefly summarize the relevant facts and procedural history. This matter arises from an accident that occurred on December 2, 1999. Plaintiff was a pedestrian and she was struck by a van. Plaintiff was diagnosed with tendonitis in her right wrist, a torn lateral meniscus in the left knee and cauda equina syndrome in the lower back. Plaintiff asserted that her lower back injuries caused her to experience urinary incontinence. Plaintiff sought PIP benefits from Allstate. Initially, Allstate paid for plaintiff's treatment but in December 2000 Allstate terminated benefits. Alleging that additional treatment was required for her injuries plaintiff filed an action in the Law Division, Somerset County, to compel Allstate to provide PIP benefits.
Allstate did not file an answer to the complaint and on October 26, 2001, default was entered. On February 23, 2002, the court notified plaintiff that it would dismiss the complaint pursuant to R. 1:13-7 if plaintiff failed to take steps to prosecute the matter in sixty days. Allstate requested that plaintiff consent to an extension of time for the filing of an answer. Plaintiff refused to consent and plaintiff requested that the court schedule the matter for a proof hearing. The hearing was scheduled for July 11, 2002, after having been adjourned several times. Allstate moved on July 2, 2002 to set aside the default. The proof hearing was adjourned pending disposition of Allstate's motion, which was denied by order filed August 2, 2002.
On November 25, 2002, plaintiff's counsel asked the court to reschedule the proof hearing and counsel was informed that the matter had been dismissed for failure to prosecute. Plaintiff moved on December 23, 2002 to restore the matter and, by order filed January 21, 2003, the motion was granted. The proof hearing was scheduled for May 2, 2003 and later adjourned to May 13, 2003.
Counsel for both parties appeared in court on May 13, 2003. Plaintiff was present with her expert witness, Dr. Allen Teidrich; however, no testimony was taken. The judge discussed settlement with counsel. Allstate's attorney agreed to contact his client and advise plaintiff's counsel concerning Allstate's position settlement within ten days. While plaintiff was awaiting a response from Allstate's attorney, the court again dismissed the matter for lack of prosecution. Plaintiff's attorney wrote to the judge and asked that the matter be restored. The judge agreed and the matter was rescheduled for August 8, 2003 and then adjourned to September 5, 2003.
Efforts to settle the matter apparently continued but were not successful. The proof hearing commenced on September 5, 2003 and continued on October 17, 2003, after which the judge obtained the parties' consent to have plaintiff examined by Dr. Eric Mirsky. The proof hearing was scheduled to continue on January 9, 2004; however, on December 18, 2003, Dr. Mirsky advised the parties that he did not wish to undertake the examination. The parties agreed that Dr. John Greenberg would perform the examination. The proof hearing was then adjourned to January 20, 2004, adjourned to March 5, 2004, rescheduled for March 26, 2004, and again adjourned to April 23, 2004.
Plaintiff's counsel appeared on April 23, 2004; however, Allstate's counsel was not present because his wife had been involved in a serious automobile accident. The proof hearing was adjourned to June 11, 2004. Dr. Greenberg's report was presented to the judge and neither party requested that he appear to testify. The judge determined that Allstate should provide payment for the treatment of plaintiff's urinary incontinence and her lower back problems.
Plaintiff sought counsel fees and costs for the successful pursuit of the action against Allstate. Plaintiff's attorney submitted a certification of services dated September 4, 2003 and on June 18, 2004, furnished the judge with a supplemental certification. Plaintiff sought an award of attorneys' fees in the amount of $16,477.94, plus costs of $2,719.27, for a total of $19,197.21. Plaintiff's counsel asserted that he had devoted 84.2 hours to the matter. He sought compensation at an hourly rate of $190. Plaintiff's costs included $1,350 for Dr. Teidrich's report and testimony.
The judge granted the application in part for reasons stated on the record July 23 and July 28, 2004. The judge found that plaintiff's hourly rate was reasonable; however, he determined that counsel had devoted an unreasonable amount of time to what was a relatively uncomplicated case. The judge found that counsel should have spent no more than twenty hours to the matter. He awarded counsel fees in the amount of $3,800. The court also awarded plaintiff costs in the amount of $1,736.92, which included $1,350 for Dr. Teidrich's fee. The judge additionally required Allstate to pay $1,000 towards Dr. Greenberg's fee.
The judge also considered the amount in dispute, the damages recovered, the interests to be vindicated, as well as the circumstances incidental to the litigation that related to counsel's efforts on behalf of his client. The judge found that Allstate had acted in good faith in refusing to pay plaintiff's demands for additional PIP benefits. He determined that Allstate had a legitimate concern as to whether plaintiff's urinary incontinence was causally related to injuries sustained in the accident. The judge further determined that plaintiff's demands were reasonable, both parties acted in good faith, there was a legitimate dispute between the parties and Allstate was justified in litigating the matter.
On this appeal, plaintiff argues that the judge erred in reducing her application for attorneys' fees. She maintains that the judge arbitrarily reduced the number of hours that should reasonably have been devoted to the litigation. Plaintiff contends that the judge erred in finding that the fee request included time devoted to plaintiff's personal injury action and in eliminating time devoted to the case prior to the filing of the complaint. Plaintiff additionally argues that the judge erroneously found that Allstate did not act in bad faith when it terminated PIP benefits and failed to consider the totality of the circumstances, which included the procedural problems encountered by plaintiff's counsel in scheduling the proof hearing. Plaintiff also argues that the judge failed to evaluate the fee application carefully and critically. We disagree with these contentions and affirm substantially for the reasons stated by the trial judge in his decision placed on the in the record. We add the following.
A successful claimant in an action seeking PIP benefits may be awarded counsel fees pursuant to R. 4:42-9(a)(6). Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 437 (App. Div. 2001)(citing Brewster v. Keystone Ins. Co., 238 N.J. Super. 580, 586 (App. Div. 1990)). When fees are sought, the trial judge must evaluate the amount in dispute, the damages recovered, the interests sought to be vindicated in the action, as well as any circumstances that "directly or indirectly affected the extent of counsel's efforts." Id. at 438. (quoting Szczepanski v. Newcomb Med. Ctr. Inc., 141 N.J. 346, 366-67 (1995)). The judge must determine the reasonable fee, "taking into account the hours expended, the lawyer's customary hourly rate, the success achieved, the risk of non-payment, and other material factors." Ibid. (quoting Szczepanski, supra, 141 N.J. at 359). Although there is no requirement that the fees be proportionate to the amount awarded, the trial court's responsibility for reviewing a fee application "is heightened in cases in which the fee requested is disproportionate to the damages recovered." Ibid. (quoting Szczepanski, supra, 141 N.J. at 366).
Furthermore, in matters involving attorney's fees sought in PIP cases, the judge may consider the insurer's good faith in refusing to pay plaintiff's demands, whether the demands were excessive, the insurer's justification in litigating the dispute, whether the insurer's conduct contributed substantially to the need for litigation, the general conduct of the parties and the totality of the circumstances. Ibid. (citing Enright v. Lubow, 215 N.J. Super. 306, 313 (App. Div.), certif. denied, 108 N.J. 193 (1987)).
Because applications for the award of counsel fees are committed to the sound discretion of the trial courts, our role in reviewing orders awarding fees is necessarily circumscribed. Fee determinations by the trial courts are disturbed only upon a showing of a clear abuse of discretion. Rendine, supra, 141 N.J. at 317. We are satisfied that the judge did not abuse his discretion in awarding plaintiff $3,800 in attorney's fees for this action.
Here, the judge properly found that the issues in dispute did not require the expenditure of 84.2 hours of time by plaintiff's counsel. We have reviewed the time records submitted by counsel and it is fair to say that the time spent by counsel for the preparation of relatively routine court papers is excessive. Moreover, the time records show that an unreasonable amount of time was spent reviewing court orders, preparing routine correspondence and undertaking legal research. We note that counsel's time records do not reflect time devoted to a third party personal injury action, as the trial judge stated. We also do not agree with the trial judge's view that plaintiff's counsel should not be compensated for time spent reviewing the matter before the complaint was filed. Nevertheless, we are satisfied that the judge properly found that the matter required no more than twenty hours of attorney time. That finding is supported by substantial credible evidence and will not be disturbed. Rova Farms Resort v. Investors Ins. Co., 65 N.J 474, 483-84 (1974).
Plaintiff asserts that the trial judge failed to give sufficient weight to what plaintiff claims were extraordinary procedural difficulties encountered in scheduling the proof hearing. We disagree. Plaintiff may have incurred some cost as a result of the dismissals and adjournments. However, we are not convinced such costs were substantial or extraordinary. In any event, Allstate should not be required to bear any costs resulting from any difficulties plaintiff may have encountered in scheduling the proof hearing.
Plaintiff also argues that the judge erred in finding that Allstate did not act in bad faith and had reasonable grounds to contest plaintiff's claims for continued PIP benefits. Again, we disagree. The principal issue in dispute in this case was whether plaintiff's urinary incontinence was causally related to the accident and whether additional treatment was required. The record shows that in January 2000 plaintiff presented to Dr. Robert E. Weiss, a urologist at the University of Medicine and Dentistry of New Jersey. In a report dated January 13, 2000, Weiss stated that plaintiff should monitor her "incontinent episodes." The doctor said that if plaintiff continued to have problems, he may recommend urodynamics or a neurological consultation. There is no evidence that plaintiff followed up on this recommendation. In addition, Dr. Tiedrich furnished a medical report that consisted of four short paragraphs. The doctor opined that plaintiff required additional treatment for her neck/back and knee pain. He also stated that plaintiff's incontinence "cannot be addressed until her back injuries have been resolved." The doctor provided no explanation for his conclusions. In the circumstances, it was not unreasonable for Allstate to contest plaintiff's claim that she was entitled to additional PIP benefits to cover the cost of treating her urinary incontinence.

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Affirmed.

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