On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1751-11.
The opinion of the court was delivered by: Fisher, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez and Waugh.
The opinion of the court was delivered by
In a prior appeal, we considered whether defendant New Jersey Manufacturers Insurance Group (NJM), an uninsured motorist (UM) insurer -- barred by its policy from rejecting an arbitration award under $15,000 -- was entitled to reject a $29,148.62 award when only liable to pay half. In adhering to D'Antonio v. State Farm Mut. Auto. Ins. Co., 262 N.J. Super. 247 (App. Div. 1993), which considered the same situation in an underinsured motorist (UIM) setting, we concluded that the insurer was bound to the award and, therefore, affirmed a judgment that precluded NJM's demand for a trial de novo. Badiali v. N.J. Manufacturers Ins. Grp., No. A-4870-09 (App. Div. Feb. 28, 2011) (Badiali I).
Badiali I did not end the controversy. On March 29, 2011, plaintiff filed another complaint against NJM, asserting various legal theories in pursuing damages, mainly counsel fees incurred in pursuit of the judgment obtained in Badiali I. NJM successfully moved for summary judgment, leading to this appeal in which plaintiff argues: he was wrongfully denied discovery into how NJM formed its position in the earlier suit; the judge erred in concluding, as a matter of law, that NJM's position in Badiali I was fairly debatable; and questions of fact precluded summary judgment. We agree that absent a conclusive and precedential determination by this court or the Supreme Court, NJM's position was fairly debatable -- a holding that bars plaintiff's recovery of the counsel fees incurred in Badiali I or this case, or any other consequential damages.
In Badiali I, we considered the following undisputed facts and circumstances:
Plaintiff, who was injured as the result of the negligence of an uninsured driver, had UM coverage from policies issued by both Harleysville Insurance Company and [NJM]. An arbitration resulted in an award of $29,148.62 in plaintiff's favor. Harleysville paid its half; NJM rejected the award and demanded a trial.
Consequently, plaintiff commenced this suit, claiming that NJM's responsibility was less than $15,000, because NJM was only obligated to pay half of the $29,148.62 award, and that NJM was precluded from demanding a trial regardless of the size of the award. Chiefly relying upon our decision in D'Antonio, the trial judge agreed with plaintiff's contention that the award was final because NJM was liable for less than $15,000 notwithstanding that the award was in excess of that amount.
In its appeal in Badiali I, NJM argued the order under review was based on an erroneous interpretation of the critical portion of its policy, which focuses not on NJM's liability, ...