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Olewinsky v. Aetna Casualty & Surety Insurance Co.

Decided: September 23, 1988.

ANDREW OLEWINSKY, AN INFANT BY HIS GUARDIAN AD LITEM, DEBORAH OLEWINSKY, AND DEBORAH OLEWINSKY INDIVIDUALLY, PLAINTIFFS,
v.
AETNA CASUALTY & SURETY INSURANCE COMPANY, DEFENDANT



Menza, J.s.c.

Menza

This is a motion for attorney fees for services rendered in connection with a personal injury protection claim (PIP) (N.J.S.A. 39:6A-4).

The question presented is whether attorney fees are allowable where a PIP claim is settled prior to trial. To date, this question remains unanswered.

The plaintiff, Deborah Olewinsky, who was eight months pregnant at the time, was involved in an automobile accident while operating a vehicle insured by the defendant. She contends that as a result of the accident, she sustained injuries which required medical attention and obligated her to pay medical bills. She also contends that as a further result of the accident, her child, Andrew, was born prematurely (two weeks after the accident), and required medical attention in connection with this premature birth. The plaintiff made a claim to the defendant for payment of the medical bills for herself and her son. The defendant refused to pay all of Mrs. Olewinsky's bills, contending that they were excessive. It also refused to pay any of Andrew's bills, contending that they were not causally related to the accident. The plaintiffs then instituted suit. Both parties retained the services of physicians as expert

witnesses on the question of causal relationship regarding Andrew's claims. The experts differed on the question.

Both claims were settled at a conference in which this Court participated. The settlement provided for the payment of all Mrs. Olewinsky's bills, and 50% of Andrew's. The question of whether the defendant should pay the plaintiff an additional sum of money for attorney fees was specifically left open for future discussion and determination. It was not contemplated by the parties that settlement amounts would include attorney fees.

The plaintiff has now requested that this Court grant her attorney fees in connection with her settled claims.

The defendant opposes the motion contending that the Court Rules do not permit an award of attorney fees where a case is settled.

The question of whether attorney fees are allowable when a PIP claimant settles his case rather than obtaining a judgment has not been specifically decided by the courts. In the case of Van Houten v. New Jersey Manufacturers Insurance Co., 170 N.J. Super. 415 (App.Div.1979), the court allowed attorney fees where there was no judgment but where the case was settled for the full amount on the day of trial.

In dicta, the court commented on the meaning of a "successful claimant," stating:

Settlement results from a compromise which means that each party gives up certain claims to reach a peaceful solution of an ongoing dispute. There is persuasion to the argument that a "successful claimant" referred to a claimant who had succeeded in a litigated matter as a result of action by the court. It is difficult to understand how there could be a "successful claimant" in an action which has been disposed of by compromise since ...


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