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Felicetta v. Commercial Union Insurance Co.

Decided: December 10, 1971.

JOSEPH FELICETTA, SR. AND JOSEPH FELICETTA, JR., PLAINTIFFS-APPELLANTS,
v.
COMMERCIAL UNION INSURANCE COMPANY, ET AL., DEFENDANTS-RESPONDENTS



Sullivan, Leonard and Carton. The opinion of the court was delivered by Carton, J.A.D.

Carton

[117 NJSuper Page 525] Plaintiff-insureds appeal the propriety of the trial court's disallowance of counsel fees. The issue was raised on motion in plaintiffs' declaratory judgment action brought to determine the validity of disclaimers of liability under three automobile insurance policies. Specifically

involved was the question whether a 1967 Pontiac GTO, registered in the name of plaintiff Joseph Felicetta, Sr. and operated by his son, Joseph Felicetta, Jr., was covered by liability insurance when it was involved in a serious automobile accident on October 23, 1967.

Defendant Commercial Union Insurance Company had issued two of the insurance policies to Felicetta, Sr.: (1) a family combination automobile policy on a 1960 Ford station wagon, and (2) a preferred risk reduced premium policy on the Pontiac. The latter policy was issued a few hours before the accident and listed Felicetta, Sr. as the sole operator. Twelve days before the accident another insurance carrier, Nationwide Mutual Insurance Company, had issued to Felicetta, Jr. an assigned risk policy on the 1960 Ford station wagon. Felicetta, Sr. had that month transferred title to the Ford to his son Felicetta, Jr.

Both companies denied coverage under the policies and refused to defend plaintiffs in the actions brought against them by the persons injured. Plaintiffs therefore retained counsel, who defended the actions.

The trial court found in favor of both defendants in the declaratory judgment action on all three policies. This court reversed in an unreported opinion, holding that coverage existed under the family policy. Thereupon plaintiffs moved to assess fees in their favor against Commercial for the services rendered in the defense of the personal injury actions against them, and also for counsel fees in connection with the declaratory judgment action. The trial court, by order dated January 4, 1971, allowed fees for services rendered in defense of the personal injury actions but refused to make an allowance on the declaratory judgment action. The trial judge also indicated that even if he had the power to award a counsel fee, he would have declined to do so under the circumstances of this case. The present appeal is from that action.

At the time the trial court decided the question of counsel fees there existed no statute or rule of court specifically

authorizing the making of an allowance in such a case. Therefore the trial court's determination would appear to be correct in view of the Supreme Court's decision in Gerhardt v. Continental Insurance Cos. , 48 N.J. 291 (1966).

Plaintiffs argue, however, that whether or not Gerhardt is controlling, they are entitled to the allowance of fees in this case by virtue of the amendment to R. 4:42-9, adopted six months after the decision of the trial court. That amended rule, which became effective September 13, 1971, provides in pertinent part as follows:

4:42-9. Counsel Fees

(a) Actions In Which Fee Is Allowable. No fee for legal services shall be allowed in the taxed ...


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