On appeal from Superior Court of New Jersey, Law Division, Gloucester County, L-420-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff, Chante Baldwin, was injured in an auto accident with an unidentified, and thus "uninsured" motorist. She filed suit against defendants High Point Insurance Company, which had issued a policy to her providing $15,000 in uninsured motorist (UM) coverage, and Allstate Insurance Company, which had issued a policy to Baldwin's parents, which provided UM coverage in the amount of $25,000 to Baldwin as a resident relative. Following return of a jury verdict of $55,000 in compensation for Baldwin's injuries, the trial court entered an order that limited Baldwin's recovery to $25,000, as required by the anti-stacking provisions of N.J.S.A. 17:28-1.1c, and prorated liability for that amount to the carriers in accordance with their policy limits. The trial judge denied without comment Baldwin's request for prejudgment interest, an attorney's fee award of $750 pursuant to R. 4:21A-6(c)(3), compensation for witness costs in the amount of $500 pursuant to R. 4:21A-6(c)(4), and the inclusion in the judgment of a statement that: "This lawsuit and this order does not address any issue with respect to any allegation that the defendant acted in bad faith. In this regard, all claims and defenses are reserved without prejudice." Baldwin has appealed.
On appeal, Baldwin raises the following issues:
I. There was no legal basis to mold the jury's verdict and even if there was, which is denied, the form of judgment should have included the language that it was entered without prejudice to any future bad faith claim.
II. Prejudgment interest, costs and the attorney fee imposed against the non-prevailing party, where the non-prevailing party filed a trial de novo from an arbitration award, should have [been] awarded by the trial court below.
This matter has a somewhat lengthy procedural history. After suit was filed, the defendant insurers moved for summary judgment on the ground that Baldwin had failed to cross the verbal threshold. Allstate's motion was granted by order dated April 29, 2005. The record does not contain a similar order with respect to High Point, but we assume its entry from the existence of a docketed appeal by Baldwin. Following the Supreme Court's decisions, on June 14, 2005, in DiProspero v. Penn, 183 N.J. 477, and Serrano v. Serrano, 183 N.J. 508, the parties moved for a remand of the matter, which we granted in an order dated November 30, 2005. Baldwin's appeal was dismissed. A renewed motion for summary judgment on verbal threshold grounds was filed by Allstate on April 18, 2006, and denied on May 26, 2006.
On May 11, 2006, the case was the subject of mandatory, non-binding arbitration pursuant to R. 4:21A-1. An award of $30,000 was entered. However, on June 5, 2006, Allstate rejected the award and filed a demand for trial de novo pursuant to R. 4:21A-6. The record does not reflect whether High Point similarly sought a new trial.*fn2 In a letter to both insurers, dated September 22, 2006, before trial had taken place, Baldwin demanded payment of policy limits,*fn3 and stated: "In the event there is a verdict greater than the limits, based on the nature of the relationship, insured and insurer, it will be our position that the full verdict along with costs and counsel fees are collectable."
On September 27, 2006, following trial of the matter, the jury returned its $55,000 verdict. After the jury had been excused, Allstate orally requested that the court mold the verdict in accordance with policy limits. The trial judge requested a written motion, which was submitted by Allstate, along with a supporting brief. In a letter from Baldwin's counsel, inexplicably dated September 22, 2006, counsel stated to the court:
Kindly accept this letter as our application for the entry of judgment in the above matter. Please recall that it is our position that the relationship between the parties, insurer and insured, means that Defendants have a fiduciary duty to the Plaintiff and a duty to act in good faith with respect to the handling of the claim at issue.
Nevertheless, we have reconsidered our position as to whether this Court in the context of this case can determine whether there was bad faith and award counsel fees and all litigation costs. We have determined that we have a separate cause of action in this regard. See, Pickett v. Lloyds, 131 NJ 457 (1993) and Rova Farms v. Investor[s] Insurance, 65 NJ 474 (1974).
Therefore, kindly accept our form of Judgment. In summary, the judgment is for $25,000.00, plus interest calculated on that number, the limited recoverable costs, and the $750.00 attorney fee penalty relating to the Defendant's trial de novo. Finally, the proposed Order indicates that the Order does not address any issue with respect to any allegation that the Defendants ...