AMICA INSURANCE COMPANY v. KENNETH L. BARRETT

NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4393-08T3


AMICA INSURANCE COMPANY,

      Plaintiff-Respondent,

v.

KENNETH L. BARRETT, AMANDA YEAGER,
a minor, SEAN YEAGER, a minor,
deceased, BRIAN YEAGER, CHRISTOPHER
SPALDING, MICHAEL S. SIMPSON, SMT, INC.,
FRANCISCO ARCINA and AMERICAN URBAN,

      Defendants,

and

STEPHANIE ADDIE YEAGER,

     Defendant-Appellant.
_______________________________________

          Argued December 15, 2009 - Decided     January 5, 2010

          Before Judges Grall and LeWinn.

          On appeal from Superior Court of New
          Jersey, Law Division, Bergen County,
          Docket No. L-3148-06.

          Jeffrey R. Youngman argued the cause for
          appellant (Feitlin, Youngman, Karas &
          Youngman, attorneys; Mr. Youngman and
          Michael R. Herz, on the briefs).

          Christopher W. McKenna argued the cause
          for respondent (Smith Mazure Director
          Wilkins Young & Yagerman, P.C., attorneys;
          Mr. McKenna, on the brief).

PER CURIAM

    Plaintiff Amica Insurance Company filed an action for

judgment declaring that Amica had no obligation to provide

defendant Stephanie Addie Yeager personal injury protection

benefits or to defend and indemnify her on claims arising from

her operation of a car insured by Amica.     Defendant filed an

answer and counterclaim seeking a judgment declaring Amica's

responsibility under a policy issued to defendant Kenneth L.

Barrett.     On cross-motions for summary judgment, the trial court

entered judgment in favor of defendant but denied her request

for counsel fees pursuant to Rule 4:42-9(a)(6).    The court

subsequently denied motions for reconsideration filed by both

parties.   Defendant appeals.

    The denial of fees and costs was apparently based solely

upon the court's determination that Amica acted in good faith.

The court's brief decision does not indicate consideration of

any other legal or equitable principle.

    "[A] trial court's decision to award or withhold counsel

fees [is reviewed] for abuse of discretion."     Myron Corp. v.

Atl. Mut. Ins. Corp., 
407 N.J. Super. 302, 309 (App. Div.),

certif. granted, ___ N.J. ___ (2009); see Rendine v. Pantzer,


141 N.J. 292, 317 (1995).     Because the exercise of judicial

discretion requires the court to "take account of the law




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applicable to the particular circumstances of the case and be

governed accordingly," State v. Madan, 
366 N.J. Super. 98, 110

(2004) (internal quotations omitted), our review requires a

decision from the trial court that includes adequate factual

                                      See Rosenberg v. Bunce, 214
findings and conclusions of law.

N.J. Super. 300, 304 (App. Div. 1986).       If the trial court does

not "state clearly its factual findings and correlate them with

the relevant legal conclusions," Curtis v. Finneran, 
83 N.J.
 563, 570 (1980), "we can only speculate about the reasons for a

trial court's decision."    Rosenberg, supra, 
214 N.J. Super. at
 304.

       The question of defendant's entitlement to fees is governed

by well-established principles.       When fees are available

pursuant to Rule 4:42-9(a)(6), they are awarded on "[t]he theory

. . . that one covered by a policy is entitled to the full

protection provided by the coverage, and that benefit should not

be diluted by the insured's need to pay counsel fees in order to

secure its rights under the policy."       Liberty Vill. Assocs. v.

West American Ins. Co., 
308 N.J. Super. 393, 406 (App. Div.),

certif. denied, 
154 N.J. 609 (1998); Sears Mortgage Corp. v.

Rose, 
134 N.J. 326, 356 (1993).       Nonetheless, when Rule 4:42-

9(a)(6) applies there are no bright-line rules.       An award of

fees is not mandatory, Enright v. Lubow, 
215 N.J. Super. 306,




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313 (App. Div.), certif. denied, 
108 N.J. 193 (1987), and proof

of bad faith on the part of the insurer is not essential to

recovery of fees, Liberty Vill., supra, 
308 N.J. Super. at 406.

Instead, there are several equitable considerations that "must

govern" the court's exercise of discretion.   Enright, supra, 
215 N.J. Super. at 313.    They include: "(1) the insurer's good faith

in refusing to pay the demands; (2) excessiveness of plaintiff's

demands; (3) bona fides of one or both of the parties; (4) the

insurer's justification in litigating the issue; (5) the

insured's conduct in contributing substantially to the necessity

for the litigation on the policies; (6) the general conduct of

the parties; and (7) the totality of the circumstances."     Ibid.

(citations omitted).

    After review of the trial court's oral opinion, we cannot

determine whether the trial court considered the foregoing

principles or simply based its decision on the erroneous

assumption that proof of Amica's bad faith was essential.

Accordingly, we reverse and remand so that the trial court can

reach a decision based upon a full consideration of the

principles governing the exercise of its discretion in light of

the particular circumstances of this case.

    Reversed and remanded.    We do not retain jurisdiction.




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