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Hanover Insurance Co. v. McKenney

Decided: October 24, 1990.


Ciancia, J.s.c.


The novel question presented here is whether R. 4:42-9(a)(6) permits an award of counsel fees to a plaintiff in a pending personal injury action who successfully defends a declaratory-judgment suit brought by a disclaiming insurance carrier against its insured and others. Surprisingly, this question has never been squarely addressed in our reported cases, although the factual context is hardly unique. On the facts here presented, I find an award of fees is permitted under the rule.

Hanover Insurance Company issued an automobile liability insurance policy which undisputedly included Ray McKenney (hereafter McKenney) as a covered person. While operating a covered vehicle owned by his wife, McKenney collided with a car driven by Ree Matchner and occupied by Frances Matchner. A personal injury action on behalf of Frances Matchner was commenced against McKenney, and while that action was pending, Hanover brought its declaratory judgment suit against McKenney, Gwen McKenney (his wife), Frances Matchner, Ree Matchner, the Celtic Tavern and Lenihan Oldsmobile. Essentially, Hanover disclaimed coverage on three theories: (1) Gwen McKenney, the owner of the vehicle driven by her husband and insured by Hanover, had filed a report falsely claiming the vehicle had been stolen; (2) The vehicle was being used as a commercial vehicle; and (3) McKenney intentionally caused the collision with the Matchner vehicle. Defendants Celtic Tavern and Lenihan Oldsmobile never answered the declaratory judgment complaint. Gwen McKenney, at an early stage, settled her property damage claim with Hanover. Ray McKenney filed an answer and participated in some discovery but thereafter was not an active defendant. Ree Matchner was represented at all times, but it was Frances Matchner, through her attorney, who most vigorously opposed Hanover's efforts to disclaim coverage.

Frances Matchner moved for summary judgment and was successful as to Hanover's contentions concerning the alleged

false theft report and use of the vehicle for commercial purposes. The judge who heard that motion essentially determined that under Fisher v. New Jersey Auto. Full Ins., 224 N.J. Super. 552, 540 A.2d 1344 (App.Div.1988), Hanover could not disclaim coverage against a third-party plaintiff such as Frances Matchner.

The summary judgment attack on Hanover's "intentional collision" claim was defeated, and that matter came on for trial before this court. Ree Matchner and Frances Matchner were the only defendants represented, and it was Frances Matchner's attorney who led the defense. At the close of plaintiff's case, defendants moved for an involuntary dismissal of Hanover's complaint. Before the court could render a decision on that motion, Hanover's attorney, without explanation, announced that it was withdrawing its action and would defend and indemnify its insured as required by the third-party litigation. In effect, Hanover took a voluntary dismissal, with prejudice, as allowed by the court. R. 4:37-1(b). Frances Matchner's attorney subsequently applied for counsel fees pursuant to R. 4:42-9(a)(6) which is the genesis for this opinion. (Ree Matchner's attorney has not applied for fees.)

Hanover contends a fee may not be awarded to Frances Matchner because she was not a named insured and the rule should be construed to exclude injured third parties who successfully defeat summary judgment actions launched by the carrier. Frances Matchner, on the other hand, characterizes herself as a third-party beneficiary of the Hanover policy and contends she fits squarely within R. 4:42-9(a)(6). For the reasons which follow, I find Frances Matchner's arguments persuasive on the facts of this case.

R. 4:42-9(a)(6) permits a counsel fee, "in an action upon a liability or indemnity policy of insurance, in favor of a successful claimant." This is a modification of the general

proposition that sound judicial administration will best be advanced if litigants bear their own counsel fees. See generally Pressler, Current N.J. Court Rules, Comment R. 4:42-9 (1991). This particular amendment was added to the rule in 1971 with the purpose of discouraging groundless disclaimers by insurers and "providing more equitably for the assured the benefits bargained for in his contract of insurance without additional expense over and above the premiums paid. . . ." Kistler v. N.J. Mfrs. Ins. Co., 172 N.J. Super. 324, 329-330, 411 A.2d 1175 (App.Div.1980); accord Molyneaux v. Molyneaux, 230 N.J. Super. 169, 181, 553 A.2d 49 (App.Div.1989). The rule is not to be extended beyond its express terms and remains unavailable to an insured who brings an action against the carrier for direct (first-party) coverage. Enright v. Lubow, 215 N.J. Super. 306, 311-313, 521 A.2d 1300 (App.Div.1987), certif. den. 108 N.J. 193, 528 A.2d 19 (1987). This is not to say that the term "successful claimant" is so strictly interpreted as to include only a named insured seeking coverage for a third-party claim. Secondary carriers have also been brought within the ambit of R. 4:42-9(a)(6). Tooker v. Hartford Acc. & Ind. Co., 136 N.J. Super. 572, 347 A.2d 371 (App.Div.1975), certif. den. 70 N.J. 137, 358 A.2d 184 (1976); accord White v. Howard, 240 N.J. Super. 427, 573 A.2d 513 (App.Div.1990). Also, as pointed out by Judge Pressler in her comment to R. 4:42-9(a)(6),

[W]hile the failure to defend is the classic basis of an action on the policy, it is by no means the exclusive one, and the rule is intended to cover all such actions, including those brought by third-party beneficiaries, in which the insurer or indemnitor is found therein to have failed to comply with its contractual undertakings. [ Pressler, op. cit., supra ]

That comment finds its most frequent application in the context of an injured third party who has successfully litigated against the insured and then brought suit against the carrier for payment. Here, Frances Matchner defended a declaratory ...

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