On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County.
Approved for Publication December 10, 1997.
Before Judges Conley, Wallace and Carchman. The opinion of the court was delivered by Carchman, J.
The opinion of the court was delivered by: Carchman
The opinion of the court was delivered by
CARCHMAN, J.S.C. (temporarily assigned).
Plaintiff Patricia Venner appeals from an order of the Law Division Special Civil Part allowing attorney's fees to defendant CSC in the amount of $1,355 pursuant to N.J.S.A. 2A:15-59.1. We reverse and conclude that 1) the award was made on an inadequate record, and 2) the application for relief was not timely.
Plaintiff was involved in an automobile accident on June 9, 1992, resulting in the other driver's car being declared a total loss. Plaintiff received the following motor vehicle summonses: failure to stop, N.J.S.A. 39:4-144; careless driving, N.J.S.A. 39:4-97; leaving the scene of an accident, N.J.S.A. 39:4-129; and failure to report an accident, N.J.S.A. 39:4-130.
Plaintiff claimed to be covered by a policy allegedly issued by defendant Allstate Insurance Company and serviced by defendant CSC *fn1 . The policy was issued on June 27, 1991 and expired on June 27, 1992. Plaintiff made a payment on account of the policy on April 9, 1992 which was accepted by CSC but, nevertheless, she acknowledges she received a "nonrenewal" notice on April 21, 1992.
According to defendants, after plaintiff received the traffic summonses, she apparently contacted CSC and requested a defense to the municipal court complaints filed against her. Plaintiff was "informed" that there was no coverage for these complaints and later was "advised" that if she continued to pursue the matter, "she would be expected to pay the attorney's fees as her claim was frivolous." In June 1995, plaintiff filed an action against Allstate in the Special Civil Part seeking damages for "breach [of] its duty by not providing me with an attorney to argue for my defense after I was accused of causing an accident." An attempt to resolve the matter through arbitration was unsuccessful, except plaintiff claims that she was advised by the arbitrator to amend her complaint and join CSC as a party-defendant. She did so, and a default judgment, later reopened, was entered against CSC. The matter proceeded to trial, and the trial Judge concluded that plaintiff was not entitled to coverage for the municipal court defense. *fn2 The complaint was dismissed on March 22, 1996. Sometime in August or September, 1996, CSC moved for fees under N.J.S.A. 2A:15-59.1. The trial Judge, in awarding fees, stated:
THE COURT: The frivolous nature of the claim is not whether or not there was coverage, but whether or not the insurance carrier owed, in municipal court, defense to Ms. Venner, and there is no evidence at all in this case where any of the related matters that the policy in any way would entitle Ms. Venner to legal counsel or any representation at municipal court. The policies just don't cover that. I find that Ms. Venner was made aware of that, even though, in fact, she may not have clearly understood that particular issue. And, it was that matter that she continued to pursue. And a reading of the policy would tell Ms. Venner that she's not entitled to municipal court representation. That's separate and aside from the issue of whether or not there's valid coverage. I don't need to address that issue at all. Judge Lebon addressed the coverage issue, I'm going to address the frivolous complaint issue.
And, I find under the circumstances that -- and a careful and proper reading of the policy would indicate that Ms. Venner knew, and should have known that there was no coverage, the type of -- for which she sought representation, and therefore, the claim is a frivolous one, and counsel fees are appropriate in this case, and I will award them.
We conclude that the fees should not have been awarded absent a competent and complete record before the motion Judge which would warrant such an award.
We must first comment on the lack of a full record before us. Plaintiff, as appellant, was required to comply with R. 2:6-1(a) which requires that "the pleadings " as well as "such other parts of the record . . . as are essential to the proper consideration of the issues, including such parts as the appellant should reasonably assume will be relied upon by the respondent in meeting the issues raised," R. 2:6-1(a)(8), be included in the appendix. Among other documents which are missing, ...