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Velli v. Rutgers Casualty Insurance Co.

Decided: June 24, 1992.


On appeal from the Superior Court, Law Division, Cape May County.

R.s. Cohen, A.m. Stein and Kestin. The opinion of the court was delivered by R.s. Cohen, J.A.D.


The opinion of the court was delivered by


Plaintiff sued defendant, her auto insurer, for personal injury protection (PIP) benefits. At the nonjury trial, she presented the videotaped deposition of her medical expert witness. Plaintiff prevailed on the merits and sought inclusion in her judgment not only of her counsel fees, but also of the $1013 cost of the videotaped testimony, representing the physician's fee of $500 and the videotaping cost of $513. Over defendant's objection, plaintiff was awarded the cost of the testimony. We reverse.

Winning litigants ordinarily pay their own counsel fees and litigation costs. Sunset Beach Amusement Corp. v. Belk, 33 N.J. 162, 167, 162 A.2d 834 (1960). Exceptions have been created by statute. See, e.g., 15 U.S.C. § 2310(d)(2) (1982) (Magnuson-Moss Warranty Act); 42 U.S.C. § 1988(b), (c) (1992) (Civil Rights Attorney's Fees Award Act); N.J.S.A. 2A:15-59.1 (frivolous litigation statute); N.J.S.A. 10:5-27.1 (Law Against Discrimination); N.J.S.A. 22A:2-1 et seq. (taxed costs); N.J.S.A. 56:12-42 ("Lemon" Law). Other exceptions appear in our court rules. See R. 4:42-9.

The New Jersey No Fault Law, N.J.S.A. 39:6A-1 et seq., provides for interest on overdue payments of PIP benefits. N.J.S.A. 30:6A-5c. It does not provide for reimbursement to a successful PIP claimant for fees or expenses (beyond taxed costs) incurred in prosecuting the PIP claim. R. 4:42-9(a)(6) authorizes counsel fee awards to successful claimants on liability or indemnity insurance policies, but not to first-party claimants for casualty or other direct coverage. See cases collected in S. Pressler, Current N.J. Court Rules, R. 4:42-9(a)(6) Cmt. at 1004-05 (1992).

In Maros v. Transamerica Ins. Co., 76 N.J. 572, 579, 388 A.2d 971 (1978), and Cirelli v. Ohio Casualty Ins. Co., 72 N.J. 380, 384-85, 371 A.2d 17 (1977), the Supreme Court ruled that a court can, in its discretion, award counsel fees to a successful PIP claimant. See also Darel v. Pennsylvania Mfrs. Ass'n Ins. Co., 114 N.J. 416, 426-27, 555 A.2d 570 (1989). The rulings were terse, but were clearly driven by the Court's recognition of the unique characteristics of PIP suits: they involve frequently small insurance claims made under a statute which is entitled to liberal construction to effect its purpose. N.J.S.A. 39:6A-16. That purpose is the swift delivery of contractual PIP benefits without regard to fault, and without protracted litigation, to defray the economic costs of auto accidents. Olivero by Olivero v. New Jersey Mfrs. Ins. Co., 199 N.J. Super. 191, 197, 488 A.2d 1071 (App.Div.1985); Hoglin v. Nationwide Mut. Ins. Co., 144 N.J. Super. 475, 479-80, 366 A.2d 345 (App.Div.1976). Suits for small but meritorious PIP claims can be unfairly discouraged if successful claimants have to pay substantial attorneys' fees. Cirelli and Maros did not deal, however, with the question of the recoverability of the cost of expert trial testimony.

We dealt with that matter in Helton v. Prudential Property & Casualty Ins. Co., 205 N.J. Super. 196, 500 A.2d 717 (App.Div.1985). There, a successful PIP claimant sought to recover the fee charged by her medical expert for his trial testimony. The Helton court pointed out that a PIP claim is rooted in a statute that does not authorize recovery of expert witness fees, and therefore held that such fees were an expense that the claimant had to bear. Id. at 201-02, 500 A.2d 717. The court also held that there was no authority for the proposition that expert fees were recoverable taxed costs. Id. at 202-04, 500 A.2d 717. We agree with Helton.*fn1 See also Housing

Auth. of Long Branch v. Valentino, 47 N.J. 265, 267, 220 A.2d 196 (1966) (trial court's denial of counsel and expert witness fees not in error since there was no statutory authorization for them).

Another Part of this court has questioned the Helton ruling in footnote dicta. Kowaleski v. Allstate Ins. Co., 238 N.J. Super. 210, 218 n. 4, 569 A.2d 815 (App.Div.1990). Kowaleski decided that an insurer whose PIP payments were overdue under N.J.S.A. 39:6A-5b did not thereby lose its rights to contest the PIP claim. The case did not involve the claimant's counsel fees or litigation costs. Yet, the court took issue with Helton and expressed a ...

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