The opinion of the court was delivered by: GARRETT BROWN, District Judge
This matter comes before the Court upon the entry of an Order
to Show Cause why Defendant/Third Party Plaintiff Edward T.
Smyth's ("Smyth") third party complaint and counterclaims for
attorneys' fees and costs should not be dismissed in accordance
with this Court's February 8, 2005 Memorandum Opinion. The Court,
having considered the parties' submissions and decided the matter
without oral argument pursuant to Fed.R.Civ.P. 78, and for the
reasons discussed below, will dismiss Smyth's claims and direct
that this matter be marked closed. I. ANALYSIS
A detailed recitation of the facts may be found in this Court's
Memorandum Opinion accompanying its Order of February 8, 2005.
The Court will not reiterate the factual and procedural history
provided within that Opinion. In the Opinion, the Court addressed
Smyth's contention that he should be awarded the attorneys fees
and costs incurred in retaining private counsel in the underlying
personal injury action and in defending and prosecuting the
declaratory judgment action. This Court found that Smyth had
failed to demonstrate his entitlement to fees and costs. The
Court distinguished the cases relied on by Smyth to support his
position, emphasizing that "[i]n this case, Smyth was provided
with a defense, albeit under a reservation of rights, and he did
not initiate the declaratory judgment action," and that special
circumstances did not exist to warrant an award of fees and
costs. See February 8, 2005 Opinion at 18 (distinguishing NJ.
Mfr. Co. v. Consolidated Mutual Ins. Co., 124 N.J. Super. 598
(N.J. Super. Ct. Law Div. 1973) and Aquino v. State Farm Ins.
Co., 349 N.J. Super. 402 (N.J. Super. Ct. App. Div. 2002)).
Further, the Court noted that Smyth had failed to provide an
affidavit of services and bill of costs.
On July 29, 2005, this Court entered an Order to Show Cause why
Smyth's third party claims and counterclaims for attorneys' fees
and costs should not be dismissed in accordance with this Court's
February 8, 2005 Memorandum Opinion. On July 29, 2005, Smyth
filed his response to the Order to Show Cause. On August 4, 2005,
NJM filed its response to the Order to Show Cause in opposition
to Smyth's submission. On August 4, 2005, the Court extended the
deadline for XL's response by two weeks to August 22, 2005. On
August 15, 2005, XL submitted a letter advising the Court that it
would not be filing a response. In his response to the Court's Order to Show Cause, Smyth first
contends that he was never given the opportunity to fully brief
the legal issues pertinent to his claims for reimbursement.
Specifically, Smyth asserts that the case management order
entered in this case did not require that he file his own motion
for summary judgment nor was he required to address these issues
in conjunction with XL and NJM's cross motions for summary
judgment because neither party sought dismissal of the cross
claims and third party claims, respectively. NJM counters that:
(1) Smyth did not reserve his right to pursue a claim for counsel
fees, (2) failed to file a motion for attorneys fees in
accordance with pre-trial scheduling orders entered in this
matter by Judge Hughes, and (3) failed to take any action (i.e.,
appeal, motion for reconsideration, or filing of a proper motion
for fees) following this Court's February 8, 2005 Opinion,
finding that Smyth was not entitled to fees. Notwithstanding
whether Smyth reserved his right to pursue fees or complied with
pre-trial scheduling orders, Smyth specifically raised and
briefed this issue in his November 15, 2004 brief filed in
response to the cross motions of XL and NJM and the Court
expressly addressed his arguments in its February 8, 2005
Opinion. As discussed above, the Court distinguished the case law
proferred by Smyth in support of his position and determined that
he had not established his entitlement to fees in this case.
After reviewing the parties' submissions, the Court finds no
reason to depart from its earlier decision. "The trial judge has
broad discretion as to when, where and under what circumstances
counsel fees may be proper." Enright v. Lubow,
215 N.J. Super. 306
, 313 (N.J. Super. Ct. App. Div. 1987) (citing Felicetta v.
Commercial Ins. Co., 117 N.J. Super. 524
, 529 (N.J. Super. Ct.
App. Div. 1971)). "Equitable principles must govern the trial
judge's decision." Enright, 215 N.J. Super. at 313. Further,
"any award of counsel fees pursuant to R. 4:42-9(a)(6) is not mandatory in every action on an indemnity or liability
policy." Id. In Enright, the Court listed several factors
that the Court may consider in determining whether fees are
(1) the insurer's good faith in refusing to pay the
demands; (2) excessiveness of plaintiff's demands;
(3) bona fides of one or both of the parties; (4) the
insurer's justification in litigating the issue; (5)
the insured's conduct in contributing substantially
to the necessity for the litigation on the policies;
(6) the general conduct of the parties; and (7) the
totality of the circumstances.
Enright, 215 N.J. Super. at 313 (citations omitted).
Considering the totality of the circumstances, the Court
remains convinced that Smyth is not entitled to attorneys fees.
The incident that is the subject of this litigation occurred on
June 11, 2001. In October 2002 and November 2002, NJM advised
Smyth by letter that there was not coverage under his homeowner's
policy. In December 2002, NJM advised Smyth that it did not
believe that his automobile policy provided coverage in response
to an inquiry from counsel for Plaintiff, rather than counsel for
Smyth. At no time did counsel for Smyth contact NJM regarding
either the homeowners or automobile policy. Further, Smyth did
not, as he suggests in his response to the Order to Show Cause,
initiate the declaratory judgment action. Rather, in March 2004,
XL initiated the declaratory judgment action against Smyth. At
this point, over two and a half years after the incident and well
over a year after NJM advised him that it did not believe that
the automobile policy provided coverage, Smyth filed a
counterclaim against XL and a third party complaint against NJM.
Within two weeks, NJM contributed to the settlement of
Plaintiff's claims. XL and NJM reserved their rights to continue
the declaratory judgment action to resolve coverage issues.
Although the Court does not countenance NJM's failure to promptly
intervene on behalf of its insured, there is no evidence to
support a finding of bad faith. This Court finds that Smyth's lack of diligence clearly protracted resolution of
his claims. Moreover, the Court again emphasizes that Smyth was
provided with an adequate defense from the very early stages of
this litigation by XL, albeit under a reservation of rights.
Finally, the Court notes that the new case law proffered by
Smyth does not support his position. In Enright, the court
declined to award fees, stressing that the insured's conduct
contributed substantially to the necessity for litigation.
Enright, 215 N.J. Super. at 313-14. In Iafelice v. Arpino,
319 N.J. Super. 581 (N.J. Super. Ct. App. Div. 1999), the insured
initiated an action after coverage was denied on the grounds that
the subject policy had effectively been cancelled. Id. at 584. As
emphasized in the February 8, 2005 Opinion, Smyth was provided
with a defense and did not initiate the declaratory judgment
action. Finally, in Liberty Village Assoc. v. West American Ins.
Co., 308 N.J. Super. 393
, 406 (N.J. Super. Ct. App. Div. 1998),
the Court emphasized:
The parties in this case specifically provided that
the prevailing party could apply to the court for the
award of counsel fees. While the stipulation does
not, of course, promise such an award of fees, it
does suggest that both anticipated the likelihood
that the loser would pay the winner's fee.
Here, Smyth was less than diligent in pursuing his claims for
attorneys fees throughout and did not reserve his right to pursue
fees as part of the settlement. Therefore, the Court finds that
Smyth has not offered case law to support his entitlement to fees
under these circumstances. Consistent with the February 8, 2005
Opinion, the Court finds that Smyth is not entitled to fees and
costs. III. CONCLUSION
For the foregoing reasons, the Court finds that Smyth has
failed to show cause why his cross claims and third party
complaint should not be dismissed. Accordingly, Smyth's cross
claims and third party complaint are dismissed and the clerk is
directed to mark this case closed. An appropriate form of order
is filed herewith.
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