CORINNE KLEINSORGEN v. TODD FORSYTHE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0484-08T10484-08T1

CORINNE KLEINSORGEN,

Plaintiff-Respondent,

v.

TODD FORSYTHE, D & D

TOWING SERVICE, INC.,

RICHARD TRIVETT,

and BENJAMIN KRISS,

Defendants,

and

STATE FARM INSURANCE

COMPANY,

Defendant-Appellant.

__________________________________________________________

 

Argued May 5, 2009 - Decided

Before Judges Graves and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Docket No.

L-1632-08.

Richard E. Stiek argued the cause for

appellant (Foster & Mazzie, LLC, attorneys;

Carl Mazzie, of counsel; Mr. Stiek, on

the brief).

Stanley R. Pietruska argued the cause for

respondent (Law Office of Stanley R.

Pietruska, attorneys; Mr. Pietruska, on

the brief).

PER CURIAM

Defendant State Farm Insurance Company (State Farm) appeals from an order awarding attorney's fees and costs to plaintiff Corinne Kleinsorgen in the total amount of $5458.70, and an order denying State Farm's motion for reconsideration. We affirm.

Plaintiff injured her neck, back, and knee in a four-car accident on July 5, 2005. The accident involved a vehicle owned by defendant D & D Towing Service, Inc., operated by defendant Todd Forsythe; a vehicle operated by defendant Richard Trivett; and a vehicle operated by defendant Benjamin Kriss. Plaintiff filed a personal injury lawsuit on May 17, 2007, seeking damages from each defendant. In addition, plaintiff sought personal injury protection (PIP) benefits in accordance with her State Farm Automobile Insurance policy. Plaintiff alleged in her complaint that State Farm "failed and refused" to provide her with appropriate PIP benefits. However, after plaintiff's deposition was taken on December 5, 2007, State Farm paid her PIP bills, and it approved her request for arthroscopic knee surgery.

On April 21, 2008, counsel for State Farm sent the following letter to plaintiff's attorney:

[P]lease allow this letter to serve as a reminder to submit a Fee Certification. Upon receipt of the same, I will contact your office to negotiate an amicable settlement with regard to attorney's fees.

As the only remaining issue is attorney's fees, I will forward a Stipulation of Dismissal without prejudice once we have settled the issue of attorney's fees.

Unfortunately, settlement negotiations were unsuccessful, and on June 30, 2008, State Farm moved for summary judgment. Plaintiff did not oppose the motion, but her attorney filed a "certification of attorney services" seeking $5458.70 in itemized fees and costs, together with a proposed order. State Farm did not oppose plaintiff's request for counsel fees or otherwise object to the amount of fees requested.

On August 1, 2008, the trial court entered two orders: one order granted State Farm's summary judgment motion, and the second order granted plaintiff's request for counsel fees and costs. In its motion for reconsideration, State Farm argued that the award of attorney's fees and costs was improper because "plaintiff never moved for attorney's fees." The trial court's reasons for denying State Farm's motion included the following:

I think it was prudent for [plaintiff's counsel] to file a certification in the summary judgment action because he wasn't objecting to the summary judgment being granted, because at that point, all bills had been paid. He sent in a certification. I did not think that a formal motion was necessary.

. . . .

So the date of the accident is July 5th, 2005. I have an affidavit of services by the plaintiff's attorney and services start on 8/18/2005. At that point, he reviewed the declaration page of the policy, I assume. And on that same day, he sent a letter of representation to State Farm Insurance.

So even if the payments were made in 2007, it took . . . two years of work before the payments were made and also, the plaintiff's counsel also had to file an action. So I reviewed the services rendered. There was numerous review of denials. There were numerous letters to State Farm Insurance regarding the unpaid bills. That went on for almost two years. There's still -- and I have a letter, 2/27/07, a followup letter to State Farm with unpaid bills.

There's reviews of medical bills for the entire time and the suit was filed on May 17th, 2007 . . . . So there's two years' worth of time this attorney spent trying to get State Farm to pay all these bills. I'll note that he didn't spend that much time on a lot of them. A lot of them are .10 hours, but when you write letters, you have to review letters. Certainly that takes some time. .10 would be six minutes. That certainly isn't an exorbitant amount of time to write a letter or to review.

You have to do things like that. He filed an action in this case. He continued, after he filed the action to review medical bills. He had to call the adjuster to see when State Farm would answer. He sent proof of service plus unpaid dates to counsel. He reviewed bills on numerous occasions. He prepared interrogatories in this case. He mailed interrogatories.

He reviewed letters from State Farm. There were settlement discussions. So certainly the time expended, he expended a period of we'll say from August 18th, 2005, up until the motion for summary judgment which was August 1st, 2008, for a period of three years, he expended according to his ledger, he expended 23.35 hours.

That certainly isn't padding a bill. That certainly is a reasonable amount of time to spend on a case such as this. He charges $225 per hour for his legal services and states in his certification that the rate is consistent with other attorneys who practice in Bergen, Hudson and Essex Counties. And I find that that is a reasonable amount.

On appeal, State Farm presents the following arguments:

POINT I

STANDARD OF REVIEW IS DE NOVO AND ABUSE OF DISCRETION.

A. THE STANDARD OF REVIEW FOR THE AWARD OF ATTORNEY'S FEES IS DE NOVO AND MISTAKEN EXERCISE OF DISCRETION.

B. THE STANDARD OF REVIEW FOR THE DENIAL OF RECONSIDERATION IS DE NOVO.

C. THE STANDARD OF REVIEW FOR THE FINGING [SIC] OF FACTS IS DE NOVO.

POINT II

SUMMARY JUDGMENT WAS PROPERLY GRANTED TO STATE FARM INDEMNITY COMPANY.

A. THE SUMMARY JUDGMENT STANDARD OF REVIEW.

B. NO GENUINE ISSUES OF FACT EXIST AS TO THE SUMMARY JUDGMENT GRANTED DEFENDANT STATE FARM INDEMNITY COMPANY AS TO THE PAYMENT OF MEDICAL EXPENSE PERSONAL INJURY PROTECTION BENEFITS.

POINT III

PLAINTIFF [IS] PRECLUDED BY RULE AND LAW FROM OBTAINING AN AWARD OF ATTORNEY'S FEES AS A RESULT OF THE SUMMARY JUDGMENT FINDING ON BEHALF OF STATE FARM.

A. THE RULE AND LAW FOR DETERMINING PROPRIETY OF AWARD OF ATTORNEY'S FEES IN A CLAIM AGAINST A LIABILITY OR INDEMNITY POLICY OF INSURANCE.

B. PLAINTIFF WAS NOT A SUCCESSFUL CLAIMANT AGAINST A LIABILITY OR INDEMNITY POLICY OF INSURANCE.

POINT IV

THE TRIAL COURT ERRED WHEN IT FAILED TO PROVIDE A FINDING OF FACT IN ISSUING TWO CONTRADICTORY ORDERS.

A. THE RULE PROVIDING A JUDGE HAS A DUTY TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW.

B. LOWER COURT FAILED TO MAKE ANY FINDINGS OF FACT IN THE ORDERS.

POINT V

THE COURT MUST REVERSE THE AWARD OF ATTORNEY'S FEES AS A MATTER OF PUBLIC POLICY.

After reviewing the record and the applicable law, we conclude that these arguments do not warrant extended discussion in a written opinion, Rule 2:11-3(e)(1)(E). We affirm with only the following comments.

Rule 4:42-9(a)(6) "allows an award of counsel fees in favor of a successful claimant in an action filed upon a liability or indemnity policy of insurance. Although ordinarily this rule is not applicable to first-party claims, an exception has been made in PIP cases." Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 437 (App. Div. 2001). "The requirement that a fee be awarded only to 'a successful claimant' has been liberally construed to include claimants who settle before trial." Craig & Pomeroy, New Jersey Auto Insurance Law, 10:5-2 at 203 (Gann 2009). We have defined the term "successful claimant" as follows:

[A] claimant who obtains either a settlement for the full amount of his claim prior to the trial date or who obtains a settlement for a sum less than the full amount of his claim, but for more than that which he was offered prior to the institution of suit, should similarly be characterized as a 'successful claimant.'

[Brewster v. Keystone Ins. Co., 238 N.J. Super. 580, 587 n. 4. (App. Div. 1990) (quoting Olewinsky v. Aetna Cas. & Sur., 234 N.J. Super. 429, 433-34 (Law Div. 1988)).]

When counsel fees are sought by a successful claimant, a trial court must evaluate the amount in dispute, the damages recovered, the interests sought to be vindicated in the action, as well as "any circumstances incidental to the litigation that directly or indirectly affected the extent of counsel's efforts." Scullion, supra, 345 N.J. Super. at 438 (internal quotations omitted). An award of counsel fees rests within the sound discretion of the trial court and will be disturbed only upon a showing of a clear abuse of discretion. Rendine v. Pantzer, 141 N.J. 292, 317 (1995).

There has been no such showing in this case. The trial court's findings and conclusions are "supported by adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974), and the court correctly applied well-settled legal principles. Accordingly, we affirm the order awarding counsel fees and costs to plaintiff and the order denying State Farm's motion for reconsideration substantially for the reasons stated by Judge Cleary in her oral decision on September 4, 2008.

 
Affirmed.

(continued)

(continued)

8

A-0484-08T1

June 26, 2009