On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication January 31, 1996.
Before Judges Shebell, Stern and Wallace. The opinion of the court was delivered by Shebell, P.j.a.d.
The opinion of the court was delivered by: Shebell
The opinion of the court was delivered by SHEBELL, P.J.A.D.
In our reported decision of Furey v. County of Ocean, 273 N.J. Super. 300, 641 A.2d 1091, 641 A.2d 1091 (App. Div. 1994), certif. denied, 138 N.J. 272 (1994), we decided several issues pertaining to this same litigation, including those pertaining to liability and the application of the collateral source rule. In addition, we held that pursuant to Sikes v. Township of Rockaway, 269 N.J. Super. 463, 467, 635 A.2d 1004 (App. Div. 1994), the deduction from the jury verdict of the payments plaintiff received from collateral sources, including Worker's Compensation, must be calculated before the verdict is adjusted to reflect the decedent's contributory negligence. Having so concluded, we commented that "this ruling makes the counsel fee issue moot as there will now be funds available from which a contingent fee may be paid." Furey, supra, 273 N.J. Super. at 319.
Following our remand of May 20, 1994, a distribution hearing was held in the Law Division. Plaintiff at that time also moved for an award of counsel fees against the County, pursuant to N.J.S.A. 59:9-5. This application was denied. It is only from the denial of counsel fees that plaintiff now appeals.
Plaintiff's brief on appeal suggests that we did not by commenting on the purported mootness of the fee issue thereby indicate that plaintiff was precluded from seeking an award of fees on remand or that an award would be inappropriate. Plaintiff states that we "simply followed the time-honored rule that an appellate court will not rule on an issues which is unnecessary to the Disposition of the appeal."
In any event, our comment was clearly inappropriate if it conveyed the thought that because there were funds available from which a contingent fee might be paid, the issue of fees should not be considered by the trial Judge. The plain language of N.J.S.A. 59:9-5, authorizing the award of attorney's fees, negates such a Conclusion. N.J.S.A. 59:9-5, entitled "Discretion to award attorney's fees; limitation," provides:
In any action brought against a public entity or a public employee under this act, the court may, in its discretion, award a successful claimant (a) costs ordinarily allowable in the private sector (b) expert witness fees not exceeding a total of $100.00 and (c) reasonable attorney's fees; provided however that there shall be no such recovery in any case where damages are awarded for pain and suffering. *fn1
The comment to this provision states:
With the exception of aggravated circumstances where pain and suffering is allowed, the underlying policy as to damages in this act is to reimburse an injured claimant to the full extent of his present and projected economic loss. Consistent with this thesis, discretion is vested in the trial Judge to compensate a successful claimant against either a public entity or a public employee for the reasonable amount of his attorney's fees and for $100 worth of his expert witness fees. This is done in order to insure that a claimant is compensated for virtually all of his economic loss.
[Report of the Attorney General's Task Force on Sovereign Immunity (May 1972); reprinted at N.J.S.A. 59:9-5 (Historical Notes).]
The March 20, 1995 order denying "plaintiff's motion for an award of costs, expert fees, witness fees, reasonable attorney's fees, pursuant to N.J.S.A. 59:9-5" appears to have been based on the following observation of the trial Judge.
Every attorney makes a decision when he takes a client. He makes a decision as to the validity of the case. He makes a decision as to how much effort he thinks he or she has to put in to the case. And, most importantly he makes a business judgment. And, he makes that business judgment when he says, I will take a retainer ...