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Modery v. Liberty Mutual Insurance Co.

Decided: October 18, 1988.

TABITHA MODERY, AN INFANT BY HER GUARDIAN AD LITEM, KEITH MODERY, AND KEITH MODERY, INDIVIDUALLY, PLAINTIFF,
v.
LIBERTY MUTUAL INSURANCE COMPANY, DEFENDANT



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

Pressler, O'Brien and Scalera. The opinion of the court was delivered by Scalera, J.A.D.

Scalera

Generoso Squitieri is the attorney of record for plaintiffs in this suit for personal injuries filed pursuant to R. 4:44-1 et seq., and he appeals from the trial court's decision to allow him a fee of only $2,000 plus costs from the total settlement of $35,000.

Tabitha Modery was three years old on September 25, 1987 when she was riding as a passenger in an auto owned and operated by her mother, Alexandra Modery. As a result of the mother's negligent operation of the automobile, the infant fell out of the vehicle and apparently suffered severe personal injuries. At the time Alexandra's automobile insurance policy had lapsed for non-payment of premiums.

Keith Modery, the natural father of Tabitha, was then in the process of obtaining a divorce from Alexandra and was represented by the appellant Squitieri for that purpose. On November 19, 1987 Keith entered into a separate retainer agreement with Squitieri. Under this agreement, Squitieri would also

represent Keith's interests, and those of his infant daughter Tabitha, against Alexandra for damages arising out of the accident of September 25, 1987. The agreement specifically provided that Keith was acting as "guardian ad litem" for Tabitha and that he was not responsible to pay to Squitieri any fee which would "exceed 25%" of any recovery.

Because Alexandra's insurance had lapsed, Squitieri asserted a claim on behalf of Tabitha and Keith against the latter's insurance carrier, Liberty Mutual Insurance Company under the "uninsured motorist coverage" of his policy. At first, Liberty resisted any payment because of its refusal to accept that Tabitha was a member of Keith's household as required by its policy. After several months, Squitieri finally managed to provide proof to that effect to Liberty's satisfaction, at which time Liberty agreed to pay "personal injury protection," (PIP) benefits resulting from Tabitha's injuries as well as the policy limit of $35,000 on the uninsured motorist coverage of the policy for the injuries which Tabitha had sustained.

As a result the instant complaint was filed pursuant to R. 4:44-1 et seq., to have the court approve the settlement ("friendly") involving an infant and a hearing was held on January 7, 1988. At that time Squitieri appeared for the plaintiffs and another attorney appeared to protect Liberty's interests.

The trial judge acknowledged the factual background heretofore noted and observed that the Liberty's maximum liability under Keith's policy was $35,000, and thus "there is nothing further that we can do on behalf of the child in this case" to recover any more monies from the mother or any other party. However, he refused to honor the 25% retainer agreement entered into by Keith on behalf of Tabitha because he felt that it was inimical to the child's interest and enforcement of such an agreement would violate the court's duty to protect that interest. He therefore allowed a counsel fee of only $2,000 plus costs of $275 instead of the retainer agreement amount of 25% or $8,681.25, plus costs. He suggested that his decision to reduce the fee was based also on his perception of the minimum

effort required to be expended by Squitieri in obtaining the $35,000 settlement.

Squitieri filed a motion for reconsideration of the fee allowance which he supported by his affidavit detailing the services rendered to plaintiffs in connection with this case. Keith also indicated his approval of Squitieri's application and urged that the court honor the retainer agreement. The trial court again refused to increase Squitieri's fee and questioned the amount of the professional effort claimed to have been expended. He reiterated that the amount of $2,000 was a reasonable allowance for the attorney's work done in this matter. This appeal follows.*fn1 While Squitieri acknowledges the inherent power of the court to review the basic fairness and ...


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