On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-692-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 22, 2010
Before Judges Cuff, Sapp-Peterson and Simonelli.
Plaintiff, Karim Policastro, appeals from that portion of the August 5, 2009 order entered, following a bench trial, dismissing her claim for treble damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, and common law claims against defendants Jackson Auto Body/Complete Collision Centers (Jackson Auto) and AutoOne Insurance Company (AutoOne), reducing the amount of counsel fees awarded and awarding damages in the amount of $31,955.42 against plaintiff in connection with Jackson Auto's counterclaim. Jackson Auto cross-appeals the court's determination that it violated the CFA, the award of counsel fees to plaintiff, and the amount of damages awarded to it against plaintiff relating to its breach of contract counterclaim. We affirm.
Prior to trial, the court entered orders granting summary judgment dismissing plaintiff's claims against Daniel Rosario (Rosario) and Mid-Atlantic Appraisal Company (Mid-Atlantic), as well as the third-party claims against Mercedes Benz. On November 18, 2008, a four-day bench trial, which was conducted on non-consecutive days, proceeded against the remaining defendants, Jackson Auto and AutoOne.
Plaintiff's complaint asserts numerous violations of the CFA, including: (1) failing to properly notify her of the work that was being performed on her vehicle, N.J.A.C. 13:21-21(a); (2) failing to provide her with a written estimate of the total cost of these repairs, ibid.; and (3) commencing additional repairs without her authorization, N.J.A.C. 13:21-21.11(b). The evidence presented at the bench trial disclosed that in 2003, plaintiff leased a 2001 Mercedes Benz CL 55 AMG from Ray Catena Motor Car Corporation. Under the lease agreement, plaintiff agreed to make monthly payments of $1048 per month for forty-eight months commencing August 22, 2003. In accordance with Paragraph 17 of the lease, plaintiff was financially responsible for all damages to the Mercedes during the term of the lease and was also required to maintain comprehensive collision coverage equal to $80,019.86, the cash value of the Mercedes listed in the lease. Paragraph 16 specifically provided:
PHYSICAL DAMAGE OR LIABILITY INSURANCE COVERAGE FOR BODILY INJURY OR PROPERTY DAMAGE CAUSED TO OTHERS IS NOT INCLUDED IN THIS LEASE.
During the term of this Lease and until I return the vehicle, I will maintain insurance acceptable to you. The insurance will provide the following minimum coverages:
a. comprehensive fire and theft coverage and collision coverage, each for the actual cash value of the vehicle and with a maximum deductible of $2,500[.]
Plaintiff secured collision coverage from AutoOne, but only in the amount of $40,000. Additionally, the policy issued listed plaintiff as the only authorized driver of the Mercedes.
On August 11, 2005, plaintiff's Mercedes was involved in an accident while the vehicle was being operated, with plaintiff's permission, by her friend, Christopher Angilone (Angilone). According to the police report, Angilone told police that he "took the payments over [four] months ago and sends checks directly to the dealer."
The day following the accident, Angilone signed an authorization permitting Jackson Auto to perform repairs. However, before commencing any repairs, a second authorization was faxed to plaintiff on August 19, requesting that she personally sign the authorization and fax it back to Jackson Auto in order to confirm that the work was requested and authorized. Neither the authorization signed by Angilone nor the authorization signed by plaintiff contained an estimate of the cost of repairs. The authorization did contain language requiring plaintiff to relinquish all insurance checks issued in connection with the repairs to Jackson Auto, as well as an additional provision advising plaintiff that in the event of non-payment for repairs made, Jackson Auto would impose an express mechanic's lien on the vehicle to secure payment.
Plaintiff's insurer, AutoOne, retained Mid-Atlantic to investigate plaintiff's claim and to generate an appraisal of the damages. On September 6, Mid-Atlantic subcontracted with Rosario to perform the actual inspection and appraisal. On September 7, Rosario completed the inspection and appraisal, and on that same day, faxed the written repair estimate of $31,955.42 to Mid-Atlantic. According to Rosario, Mid-Atlantic then sent the estimate electronically to AutoOne. Jackson Auto faxed the written estimate to plaintiff on September 7. At the time Rosario issued his repair estimate, he was aware of the potential for additional damage. As such, he negotiated with Jackson Auto to tear down the vehicle to determine whether there was any hidden damage.
Kevin Cody (Cody), Jackson Auto's manager at the time, testified the teardown was completed by September 21, and significant hidden damage was revealed. Jackson Auto's records indicated that Rosario conducted a re-inspection on September 21 and orally authorized Jackson Auto to continue with the repairs. Based upon that authorization, Jackson Auto continued to perform the repair work until September 29, when AutoOne's adjuster, Dana Francisco (Francisco) contacted them and advised that due to potential coverage issues, they may wish to halt repairs until further notice. Jackson Auto halted repairs during AutoOne's investigation. This resulted in a twenty-two-day storage fee of over $3000. However, repairs on the vehicle resumed after AutoOne completed their investigation on October 21, and on that same date, AutoOne "[i]ssued [a] check to [plaintiff] and Mercedes Benz Credit for $30,955.42." According to plaintiff, as soon as she received the check, she contacted Jackson Auto and was told to hold the check until the repairs were completed. She deposited the check into her personal checking account.
Contrary to Jackson Auto's records, Rosario testified that he never physically re-inspected the vehicle. He indicated that he may have been at Jackson Auto on another claim on September 21 and, at the same time, inquired about plaintiff's Mercedes, but his December 29 supplemental report estimating an additional $23,849.90 was based upon his re-inspection on that same date. The December 29 re-inspection consisted solely of his review of Jackson Auto's photos of the old parts, invoices, and other documents. He never physically re-inspected the vehicle.
Rosario did not provide a copy of the supplemental estimate to plaintiff. Nor is there any record that AutoOne or Jackson Auto provided plaintiff with a written copy of the additional estimate. However, Cody testified, "without question," plaintiff knew that the repair cost was going to increase based upon the supplemental estimate. Although he had no recollection of providing plaintiff with a written copy of the supplemental estimate, he indicated that his normal practice would have been to have a "verbal conversation" with the customer. Plaintiff denied receiving a written copy of the supplemental estimate or engaging in any conversation with anyone relative to the additional repairs until after they were completed in late December 2005.
By January 3, 2006, Jackson Auto completed all repairs on plaintiff's car. However, Rosario contends the repairs were finished as early as December 29, 2005. Francisco testified that January 3, 2006 was the first time she informed Jackson Auto's manager about the cap on plaintiff's policy. She indicated that it was not customary for the insurance company to divulge such information. On January 11, 2006, she received the supplemental estimate from Mid-Atlantic but could not recall whether she faxed a copy to plaintiff. She indicated that AutoOne never authorized Jackson Auto to perform supplemental repairs. She stated the supplemental amount was $24,367.71 plus $3498 in charges for twenty-two days of storage, bringing the final total for repairs to $55,323.13. AutoOne issued plaintiff a check for the remaining $9,044.58 under her policy. Plaintiff testified that she never deposited the second check and still has the expired check.
Plaintiff testified that once Jackson Auto notified her that the repairs were finished, she went to the shop with her father. She met with Vincent Evangelista (Evangelista), Jackson Auto's owner, who informed her that if she failed to pay the full amount due, the shop would hold her car. Plaintiff testified that had she known the repairs would cost $56,000, she would have pushed for AutoOne to total the car or she would have arranged to transfer the vehicle to another mechanic. She testified that she told Jackson Auto her insurance coverage was capped at $40,000, a fact Jackson Auto disputed. She acknowledged that she never hired an estimator to determine whether Jackson Auto had inflated the cost of repairing the vehicle.
Evangelista testified that if he had known about plaintiff's cap on collision coverage, he would have stopped the repairs before the cost exceeded her coverage. He explained that because Jackson Auto was never advised of the $40,000 cap on plaintiff's coverage, it completed the repairs, believing plaintiff carried sufficient coverage for the cost of repairs.
He indicated that plaintiff never attempted to pay Jackson Auto for any portion of the repairs, despite receiving insurance checks from AutoOne for the maximum amount of coverage under her policy. Accordingly, he deemed plaintiff's non-payment a breach of her ...