On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
Approved for Publication April 20, 1995.
Before Judges Brody, Long and A. M. Stein. The opinion of the court was delivered by Brody, P.j.a.d.
The opinion of the court was delivered by: Brody
The dispute in this appeal is between plaintiff and Darrell Fineman, Esq., the attorney who represented her when she commenced this personal-injury automobile negligence action. Plaintiff appeals from an order restraining her from continuing a proceeding she had commenced against Fineman in the Fee Arbitration Committee pursuant to R. 1:20A-3. The trial Judge based his order on plaintiff's failure to appeal to this court from a provision of an earlier order that fixed Fineman's fee even though, contrary to R. 1:20A-6, Fineman had failed to advise plaintiff of her right to submit the dispute to the Fee Committee. The earlier order also relieved Fineman from representing plaintiff and established an attorney's lien for the fee. We reverse the restraining order because of Fineman's violation of the Rule.
Plaintiff was a passenger in an automobile operated by her husband, defendant Manolin Mateo. When her husband suddenly stopped the vehicle, it was struck from behind by an automobile owned by defendant Ernest Garrett and operated by defendant Grace Garrett. Plaintiff was seriously injured by the impact. The Mateos' automobile policy provided defendant Manolin Mateo $100,000 liability coverage for the accident. The Garretts were essentially judgment proof; their automobile policy provided only $15,000 liability coverage for the accident.
We are told that plaintiff engaged Fineman to represent her for a contingent fee. *fn1 He then commenced two actions in 1988 on her behalf. One was the present action against the two drivers and the owner of the Garrett vehicle. The Garretts' insurer deposited in court the full amount of its coverage as an offer of settlement. Any additional recovery depended on whether defendant Manolin Mateo would be found negligent for stopping suddenly.
Fineman brought the other action against the Automobile Full Insurance Underwriting Association (JUA), its servicing carrier, and the carrier's agent through whom the Mateos purchased their policy. Plaintiff claimed in that action that the agent negligently failed to write the policy with more than $15,000 underinsured motorist coverage. In a separate count, plaintiff claimed that she was entitled to greater personal injury protection (PIP) payments for essential services than the JUA was willing to pay.
It appears from the sketchy record presented to us, that plaintiff refused to settle the actions for less than $100,000, a sum far in excess of what Fineman thought her case was worth. *fn2
In 1989 Fineman moved in both cases "for an Order relieving Darrell Fineman, Esq. and [his firm] as attorneys for Petra Mateo and impressing a lien for attorney's fees in the amount deposited with the Court in the matter of Mateo v. Garrett." Fineman supported the motions with his certification in which he stated the reasons for asking to be relieved as counsel.
As to the claim against the insurance agent, he stated that he had a conflict of interest. The agent had filed for bankruptcy and Fineman represented another client who had a claim against the same agent. Fineman claimed that the two clients would be competing for the agent's limited assets. As to the claim for additional PIP benefits, he stated that he needed the testimony of a medical doctor to prove that plaintiff was entitled to the additional benefits she claimed, but plaintiff ignored his demand for "a $1,500 retainer so that I could pay for the doctor's testimony at trial."
As to the present negligence action, he stated only:
This case is further complicated by the fact that Mrs. Mateo was rear-ended, and the $15,000 policy of the rear-ending defendant, Garrett, was placed in Court. Her husband, who was the driver, may or may not have liability.
We assume the foregoing was meant to suggest that plaintiff was being unreasonable in not settling ...