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Helton v. Prudential Property and Casualty Insurance Co.

Decided: October 30, 1985.


On appeal from Superior Court of New Jersey, Law Division, Burlington County.

Fritz and Baime. The opinion of the court was delivered by Baime, J.A.D.


[205 NJSuper Page 199] Plaintiff instituted this action to recover personal injury protection benefits (PIP) under N.J.S.A. 39:6A-4. At the commencement of the trial, plaintiff's attorney stipulated that all medical bills had been paid by defendant with the exception of $1,821 in chiropractic fees relating to services which had been rendered after the filing of the complaint.*fn1 Following presentation of the evidence, the trial judge determined that defendant was liable for medical bills in the amount of $1,821 and income

continuation benefits in the sum of $200. Pursuant to N.J.S.A. 39:6A-5, the judge assessed interest in the sum of $206.97 for overdue payments. In addition, the trial judge awarded counsel fees in the amount of $1,800 plus taxed costs.

On appeal, plaintiff contends that the trial judge abused his discretion by denying her request for attorney's fees in excess of $11,000. She further argues that the judge erred when he denied her application for reimbursement of the $500 expert witness fee charged by her treating chiropractor who appeared and testified on her behalf at trial.

Our thorough review of the record convinces us that plaintiff's arguments are wholly devoid of merit. R. 4:42-9 permits the award of counsel fees to a successful claimant upon a liability or indemnity policy of insurance.*fn2 One purpose of the rule is to discourage groundless disclaimers by assessing against the insurer expenses incurred by its insured in enforcing coverage. Kistler v. N.J.Mfts. Ins. Co., 172 N.J. Super. 324, 328-329 (App.Div.1980); Felicetta v. Commercial Union Ins. Co., 117 N.J. Super. 524, 528 (App.Div.1971), certif. den. 60 N.J. 141 (1972). Another objective is to accord an insured the full benefit of his contract without unanticipated expenses over and above the premiums paid. Corcoran v. Hartford Fire Ins. Co., 132 N.J. Super. 234, 46 (App.Div.1975); N.J. Mfrs. Ins. Co. v. Consolidated, 124 N.J. Super. 598, 600-602 (Law Div.1973).

The allowance of counsel fees and the amount awarded remain discretionary with the trial court. Zyck v. Hartford Ins. Group, 150 N.J. Super. 431, 435 (App.Div.1977), certif. den.

75 N.J. 521 (1977); Muschette v. The Gateway Ins. Co., 149 N.J. Super. 89, 96 (App.Div.1977), aff'd 76 N.J. 560 (1978). Among the factors to be considered are the "debatability of the statutory construction issue as well as the comparatively small amount of the claim involved." Maros v. Transamerica Ins. Co., 76 N.J. 572, 579 (1978); Kistler v. N.J. Mfts. Ins. Co., supra 172 N.J. Super. at 329; Van Houten v. N.J. Mfts. Ins. Co., 159 N.J. Super. 208, 217 (Cty.D.Ct.1978) aff'd 170 N.J. Super. 415 (App.Div.1979). Here, the trial judge concluded that plaintiff's request for attorneys fees was grossly inflated and unreasonable. We cannot say from our review of the record that his decision constituted a mistaken exercise of his discretion in light of the attendant circumstances. We perceive no sound basis to disturb the trial judge's discretionary decision.

We also reject plaintiff's argument that she was entitled to reimbursement of fees paid to her chiropractor in return for his appearance and testimony at trial. Plaintiff's contention is grounded upon the hypothesis that insurance carriers will be encouraged to frivolously disclaim liability unless claimants are permitted to recapture the expenses of costly litigation. However, plaintiff's assertion ignores the fact that a successful claimant under the No Fault Law has a right to interest on overdue payments (N.J.S.A. 39:6A-5c) and the ability to recover counsel fees (R. 4:42-9(a)(6)).*fn3 These factors "should sufficiently guard against a situation where an injured party is subjected to protracted aggravated consequences because of an insurer's

failure to pay." Kubiak v. Allstate Ins. Co., 198 N.J. Super. 115, 119-120 (App.Div.1984).

In any event, at the time that suit was instituted the No Fault Law did not provide for the award of expert witness fees.*fn4 Absent such a statutory provision, we perceive no authority to depart from the general policy that "each litigant shall bear the expenses of prosecuting and defending his individual interests." Sunset Beach Amusement Corp. v. Belk, 33 N.J. 162, 167 (1960); State v. Otis Elevator Co., 12 N.J. 1, 10 (1953); Janovsky v. American Motorists Ins. Co., 11 N.J. 1, 7 (1952). See also Housing Auth. of Long Branch v. Valentino, 47 N.J. 265, 268 (1966) where our Supreme Court held that a trial judge's order denying expert ...

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