Great Southwest Fire Insurance v. Gonzales

New Jersey Superior Court App Division

Great Southwest Fire Insurance v. Gonzales

493 A.2d 61, 201 N.J. Super. 361, 1985 N.J. Super. LEXIS 1319

CourtNew Jersey Superior Court Appellate Division

DecidedMay 29, 1985

StatusPublished

Cited by1 cases

This text of 493 A.2d 61 (Great Southwest Fire Insurance v. Gonzales) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Great Southwest Fire Insurance v. Gonzales, 493 A.2d 61, 201 N.J. Super. 361, 1985 N.J. Super. LEXIS 1319 (N.J. Ct. App. 1985).

Pincite

Opinion

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiff has appealed from a summary judgment granted by Judge Gascoyne dismissing its claims for legal fees and costs incurred in defending a prior action brought by defendant to recover insurance proceeds following a fire loss. The jury in that action found for defendant (plaintiff here), ostensibly on the basis of a fraud perpetrated by the insureds.

Plaintiff contends that the line of cases including Feldmesser v. Lemberger, 101 N.J.L. 184 (E. & A.1925); Hagen v. Gallerano, 66 N.J.Super. 319 (App.Div.1961) and Dorofee v. Pennsauken Planning Board, 187 N.J.Super. 141 (App.Div.1982) (not cited by plaintiff, but apposite to this discussion) warrants imposition of legal fees where a party has prevailed in a fraud claim. We determine that this line of cases fails to provide a basis for plaintiffs claim. The justification for the award of fees in these cases is that a party has been forced into prosecuting or defending a separate action by virtue of fraud, other tortious conduct or even, in limited situations, a contractual breach of another. Dorofee, 187 N.J.Super. at 144.

This suit is presented as if plaintiff applied for counsel fees in the insurance litigation, but there was no third party claim against plaintiff either in that suit or in any other litigation. Plaintiff merely prevailed in its rescission claim against its insureds’ efforts to enforce the policy. Such litigation provides no basis for a claim for counsel fees under the cases described in Dorofee, 187 N.J.Super. at 144-45, nor is such litigation included within the types of actions for which counsel fees may be awarded under R. 4:42-9(a)(6), which permits a fee “in an [363]*363action upon a liability or indemnity policy of insurance, in favor of a successful claimant.” [Emphasis added]. It would strain the plain meaning of the word “claimant” to read it as encompassing the insurer.

Plaintiff has also requested its other costs in the earlier action. Insofar as these costs are awardable either under N.J.S.A. 22A:2-8 or R. 4:42-8, a timely application for the same may be made. We note that if deposition costs are claimed the statute requires an order of the court before such costs may be taxed. Any application therefor should be made to the trial court.

The summary judgment appealed from is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

The opinion of the court was delivered by

DREIER, J.A.D.

Plaintiff has appealed from a summary judgment granted by Judge Gascoyne dismissing its claims for legal fees and costs incurred in defending a prior action brought by defendant to recover insurance proceeds following a fire loss. The jury in that action found for defendant (plaintiff here), ostensibly on the basis of a fraud perpetrated by the insureds.

Plaintiff contends that the line of cases including Feldmesser v. Lemberger, 101 N.J.L. 184 (E. & A.1925); Hagen v. Gallerano, 66 N.J.Super. 319 (App.Div.1961) and Dorofee v. Pennsauken Planning Board, 187 N.J.Super. 141 (App.Div.1982) (not cited by plaintiff, but apposite to this discussion) warrants imposition of legal fees where a party has prevailed in a fraud claim. We determine that this line of cases fails to provide a basis for plaintiffs claim. The justification for the award of fees in these cases is that a party has been forced into prosecuting or defending a separate action by virtue of fraud, other tortious conduct or even, in limited situations, a contractual breach of another. Dorofee, 187 N.J.Super. at 144.

This suit is presented as if plaintiff applied for counsel fees in the insurance litigation, but there was no third party claim against plaintiff either in that suit or in any other litigation. Plaintiff merely prevailed in its rescission claim against its insureds’ efforts to enforce the policy. Such litigation provides no basis for a claim for counsel fees under the cases described in Dorofee, 187 N.J.Super. at 144-45, nor is such litigation included within the types of actions for which counsel fees may be awarded under R. 4:42-9(a)(6), which permits a fee “in an [363]*363action upon a liability or indemnity policy of insurance, in favor of a successful claimant.” [Emphasis added]. It would strain the plain meaning of the word “claimant” to read it as encompassing the insurer.

Plaintiff has also requested its other costs in the earlier action. Insofar as these costs are awardable either under N.J.S.A. 22A:2-8 or R. 4:42-8, a timely application for the same may be made. We note that if deposition costs are claimed the statute requires an order of the court before such costs may be taxed. Any application therefor should be made to the trial court.

The summary judgment appealed from is affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

493 A.2d 61, 201 N.J. Super. 361, 1985 N.J. Super. LEXIS 1319, Counsel Stack Legal Research, https://law.counselstack.com/opinion/great-southwest-fire-insurance-v-gonzales-njsuperctappdiv-1985.

Opinion

Related

Cite This Page — Counsel Stack