On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2428-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
Defendant St. Peter's University Hospital (SPUH) appeals from the denial of an award of counsel fees and costs pursuant to Rule 4:42-9(a)(6) against defendant Princeton Insurance Company (Princeton). We affirm.
This litigation was commenced in 2005. Plaintiff, W. Peter Geis, M.D., filed an action seeking a declaration that Princeton was obligated to defend and indemnify him under a policy of professional liability and indemnity insurance that Princeton issued to SPUH. SPUH's policy provides individual coverage for seven doctors, including Geis. In the alternative, Geis alleged that SPUH breached its contractual obligation to provide coverage for him, negligently failed to obtain coverage, fraudulently misrepresented its intention to provide coverage and breached the covenant of good faith and fair dealing.
In May 2005, Princeton filed an answer denying coverage and breach of the insurance contract and a cross-claim against SPUH seeking indemnity under theories of contract, common law and statutory laws governing contribution and comparative negligence. In August 2005, SPUH answered and filed a cross-claim for contribution from Princeton as a joint tortfeasor. SPUH never acknowledged that Geis was working within the scope of his duties for SPUH until April 25, 2006.
In October 2007, Princeton settled with Geis, and Geis dismissed his claims against SPUH. From the record provided to us on appeal, it is not clear when Princeton dismissed its cross-claim against SPUH. Neither Princeton nor SPUH address the disposition of Princeton's cross-claim in its brief.
In any event, Princeton and SPUH agree that SPUH pursued its cross-claim for the sole purpose of receiving an award of fees and costs pursuant to Rule 4:42-9(a)(6).*fn1 The fees and costs SPUH sought were those it incurred in defending against Geis's claims against SPUH and establishing Geis's right to coverage prior to the settlement and thereafter in its quest for fees and costs. According to Princeton and SPUH, a jury trial was held to resolve a question of fact - whether Geis was acting within the scope of his duties. SPUH explains that it tried the case against Princeton to show that Geis would have prevailed in his coverage action. The parties report that the jury determined Geis was acting within the scope of his employment with SPUH.
The trial judge concluded that because SPUH incurred no third-party liability to another and had not asserted a claim against Princeton covered by Rule 4:42-9(a)(6), SPUH was not entitled to fees and costs.
Based on the record submitted on appeal, we see no basis for concluding that SPUH is entitled to an award of fees and costs. We have no judgment or order reflecting any determination that Princeton owed Geis a defense and indemnification. We have been given only two orders. SPUH submitted an order of June 9, 2006, denying SPUH's motion for summary judgment against Geis and Princeton. And, SPUH provided an order of February 20, 2009, denying its motion for fees and costs.
Rule 4:42-9(a)(6) provides for an award of fees and costs to a "successful claimant" in an action upon a liability or indemnity policy of insurance. Failing to see how SPUH has the status of a "successful claimant" that is essential to the relief it seeks, we affirm.
Because appeals are from orders and judgments, not decisions, Marchitto v. Central R.R. Co. of N.J., 9 N.J. 456, 463 (1952), overruled on other grounds, Donnelly v. United Fruit Co., 40 N.J. 61 (1963), we do not consider ...