Opinion
DOCKET NO. A-3416-11T2
05-19-2015
ESSEX INSURANCE COMPANY, Plaintiff-Appellant/Cross-Respondent, v. NEWARK BUILDERS, INC., PREFERRED TANK SERVICES, SUMMIT REAL ESTATE SERVICE, MIN KAMAR, PMJ CONSTRUCTION, LLC and C. FREITAS PLUMBING & HEATING, Defendants, and D&J HOME BUILDERS, LLC, Defendant-Respondent, and CARLOS FERREIRA, Defendant-Respondent/Cross-Appellant.
Walter F. Kawalec, III, argued the cause for appellant/cross-respondent Essex Insurance Company (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Michael A. Gorokhovich and Mr. Kawalec, on the briefs). Gerald H. Clark argued the cause for respondent/cross-appellant Carlos Ferreira (Clark Law Firm, PC, attorneys; Mr. Clark and Sarah K. Delahant, on the brief). Rajiv D. Parikh argued the cause for respondent D&J Home Builders and Dino Gaglioti (Genova Burns Giantomasi Webster, LLC, attorneys; Mr. Parikh, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9354-07. Walter F. Kawalec, III, argued the cause for appellant/cross-respondent Essex Insurance Company (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Michael A. Gorokhovich and Mr. Kawalec, on the briefs). Gerald H. Clark argued the cause for respondent/cross-appellant Carlos Ferreira (Clark Law Firm, PC, attorneys; Mr. Clark and Sarah K. Delahant, on the brief). Rajiv D. Parikh argued the cause for respondent D&J Home Builders and Dino Gaglioti (Genova Burns Giantomasi Webster, LLC, attorneys; Mr. Parikh, of counsel and on the brief). PER CURIAM
In this insurance coverage matter arising out of an accident at a construction work site, Essex Insurance Company (Essex) appeals from the Law Division's October 21, 2011, and November 10, 2011 orders requiring it to provide a defense and indemnification to D&J Home Builders, L.L.C. (D&J). Essex has also appealed the court's two January 20, 2012 orders setting the amount of counsel fees it was required to pay D&J and Carlos Ferreira.
Ferreira has filed an appeal from the court's May 1, 2009 order granting summary judgment to Dino Gaglioti and finding that, as a member of D&J, Gaglioti was not individually liable to Ferreira for the injuries he sustained at the work site. In addition, Ferreira challenges the court's October 9, 2009 order denying his motion for reconsideration of the May 1 order. Ferreira has also filed a cross-appeal contesting the amount of counsel fees the court awarded him in the January 20, 2012 order. We affirm all of the court's orders.
I.
We derive the following facts from the record. D&J was the general contractor on a project calling for the construction of 200 two-family homes. In January 2003, D&J hired Newark Builders, Inc. (Newark) as its subcontractor.
Under its agreement with D&J, Newark was responsible for the day-to-day activities on the site. Thus, D&J was not involved in safety inspections, supervisory work, or the hiring of other subcontractors. D&J's contract with Newark also specified that D&J was not permitted to give instructions or orders to subcontractors retained by Newark.
The contract required Newark to defend, indemnify, and hold D&J harmless for
any and all claims, suits, losses or liability . . . for or on account of injury to or death of persons, including [Newark's] employees, [Newark's] subcontractors or their employees . . . caused, in whole or in part, by any act or omission, or alleged act or omission, of [Newark], its employees or agents, whether caused in part by a party indemnified hereunder.In addition, Newark was required to purchase insurance for its managerial duties and physical work on the project, with D&J to be named as an "additional insured" on the policy.
In compliance with the contract, Newark purchased a commercial general liability insurance policy from Essex. Pursuant to the policy, Essex agreed to pay "those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage'" caused by an "occurrence[,]" a term the policy defined as an "accident[.]"
As required by the contract, Newark had D&J added to the policy as an additional insured. The policy's additional insured endorsement stated:
SECTION II - WHO IS AN INSURED of the Commercial General Liability Form is amended to include:
Person or Entity:
D&J Home Builders, LLC
480 North 4th Street
Newark, NJ 07107
Interest of the Above:
Hiring Newark Builders, Inc. as subcontractor
as an additional insured under this policy but only as respects negligent acts or omissions of the Name Insured and only for occurrences, claims or coverage not otherwise excluded in the policy.
During the course of the project, Newark sub-contracted some plumbing work to a contractor, which employed Ferreira. Newark supervised this plumbing work. In January 2005, Ferreira was working in a trench, adjacent to soil that Newark had excavated and piled next to the opening. The trench collapsed and Ferreira injured his knee.
Ferreira filed a two-count complaint against Newark, D&J, Gaglioti, and other defendants who are no longer involved in this matter. In count one of the complaint, Ferreira alleged that Newark, D&J, Gaglioti, and the other defendants were negligent. Specifically, Ferreira alleged that defendants were responsible for safety at the construction site and created the dangerous conditions that resulted in his injury.
In count two, Ferreira sought workers' compensation coverage from his employer. The disposition of that count of the complaint is not a subject of this appeal.
Essex declined to provide coverage under its policy to either Newark or D&J. Essex alleged that: various policy exclusions in its contract with Newark barred coverage for Ferreira; the policy did not provide indemnification to D&J; and the "additional insured" coverage was not available to D&J.
On November 23, 2007, Essex filed a declaratory judgment action against Newark, D&J, Ferreira, and other defendants. It sought a declaration that it had no duty to defend or indemnify either Newark or D&J. Newark and D&J retained their own attorneys for the declaratory judgment action. Ferreira also participated in that action through his retained counsel.
The court determined that Ferreira's personal injury trial should proceed first. Prior to that trial, the court granted Gaglioti's motion for summary judgment as to his personal liability. On October 9, 2009, the court denied Ferreira's motion for reconsideration.
In October 2009, the personal injury matter was tried before a jury. By that point, Newark and D&J were the only remaining defendants. At the conclusion of the trial, the jury found in favor of Ferreira and awarded him $140,797, plus pre-and post-judgment interest. The jury attributed thirty percent of the liability to Newark and the remaining seventy percent to D&J. On December 4, 2009, the court entered a judgment, ordering D&J to pay $168,345, and ordering Newark to pay $50,503.50.
The parties agreed to file cross-motions for summary judgment and have the court determine the declaratory judgment insurance coverage action on the basis of the trial testimony from the personal injury case, as supplemented by additional documentary evidence. Ferreira's attorney also participated in these proceedings.
On October 21, 2011, the court granted D&J partial summary judgment, finding that Essex had a duty to defend D&J in the personal injury action. The court ordered Essex to reimburse D&J for counsel fees and costs relating to its defense of that action. The court reserved decision on the issue of D&J's indemnification from Essex.
The court also held that Essex had a duty to defend and indemnify Newark. Essex has not appealed that determination.
On November 10, 2011, the court signed an order finding that Essex was required to indemnify D&J, and held that Essex was liable for Ferreira's claims related to his personal injury action as set forth in the December 4, 2009 order.
Following a limited remand we ordered on December 18, 2014, the court provided an additional statement of its reasons for ordering Essex to provide a defense and indemnification to D&J.
D&J and Ferreira thereafter submitted applications for counsel fees in the personal liability and coverage actions. On January 20, 2012, the court ordered Essex to pay Ferreira $68,580.66 in counsel fees and costs in the coverage action, although this was less than Ferreira had sought. Ferreira submitted a retroactively-created billing statement because Ferreira's counsel had worked on a contingency fee arrangement. The court reduced Ferreira's primary attorney's fee from $500 an hour to $300 an hour, and the associate attorney's fee to $200 an hour. It also reduced Ferreira's primary attorney's hours from 203 to 175, and those of the associate were reduced from eighty and seven-tenths hours to sixty hours.
That same day, the court also awarded $150,529.50 in counsel fees and costs to D&J against Essex, $105,119.50 of which amount was for the coverage action, with the remainder covering D&J's defense costs in the personal liability action. The court did not reduce the fees that D&J sought and found that the bills D&J's attorney provided were reasonable. These appeals and cross-appeal followed.
II.
We first address Essex's argument that the trial court erred in granting summary judgment to D&J on the issues of defense and indemnification. Specifically, Essex claims that the additional insured endorsement on Newark's insurance policy prohibits defense and indemnification coverage to D&J because D&J was liable for its own negligence, which Essex asserts was separate from the negligence of Newark. In support of this argument, Essex alleges that the phrase "as respects negligent acts or omissions of [Newark]" in the policy meant that the policy only covered D&J for vicarious liability through Newark, and not for its own direct liability. We disagree.
Summary judgment is appropriate where there are no genuine issues of material fact. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). A reviewing court must decide whether "'the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting Brill, supra, 142 N.J. at 540). If a court does not so find, it "should not hesitate to grant summary judgment." Brill, supra, 142 N.J. at 540. Credibility findings are not germane for judicial determination on summary judgment, instead those issues should be placed before a jury. Ibid.
We use the same standard when reviewing an appeal from summary judgment. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). While the trial court's legal conclusions are owed no deference, Nicholas v. Mynster, 213 N.J. 463, 478 (2013), the court should affirm the judgment below if it finds that the trial court's conclusions of law were correct. Henry v. New Jersey Dept. of Human Servs., 204 N.J. 320, 330 (2010). "[T]he interpretation of an insurance contract is a question of law which we decide independent of the trial court's conclusions." Simonetti v. Selective Ins. Co., 372 N.J. Super. 421, 428 (App. Div. 2004).
We interpret the language of an insurance policy by giving its words "their plain, ordinary meaning." Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001). Where the express language of the policy is clear and unambiguous, it will be "enforced as written." Flomerfelt v. Cardiello, 202 N.J. 432, 441 (2010). If the terms are not clear, but instead are ambiguous, we interpret the contract in accordance with the "reasonable expectations" of the insured. Shotmeyer v. New Jersey Realty Title Ins. Co., 195 N.J. 72, 82 (2008).
"An insurer's duty to defend an action brought against its insured depends upon a comparison between the allegations set forth in the complainant's pleading and the language of the insurance policy." Flowerfelt, supra, 202 N.J. at 444. Thus, to determine whether an insurer has a duty to defend, "the complaint should be laid alongside the policy and a determination made as to whether, if the allegations are sustained, the insurer will be required to pay the resulting judgment, and in reaching a conclusion, doubts should be resolved in favor of the insured." Id. at 445 (quoting Danek v. Hommer, 28 N.J. Super. 68, 77 (App. Div. 1953), aff'd o.b., 15 N.J. 573 (1954)). Claims "that are ambiguously pleaded, but potentially covered," should be read "in a manner that obligates the insurer to provide a defense." Id. at 444.
Applying these standards here, we discern no basis for disturbing the trial court's determination that Essex was required to provide a defense to D&J and, therefore, pay the counsel fees it incurred. Ferreira's complaint contained one count against all defendants, including D&J and Newark. The complaint alleged that Ferreira was injured as a result of defendants' negligence stemming from the digging of the trench. Ferreira expressly alleged that both D&J and Newark supervised the premises at the time of the accident. The complaint also alleged that Newark's negligence and carelessness was a proximate cause of Ferreira's injuries.
The relevant policy language stated that D&J was an additional insured under Newark's policy "but only as respects negligent acts or omissions of [Newark]." While not a model of clarity, the phrase "as respects" implied, at the very least, that there must be a connection to the negligent acts or omissions of Newark. Thus, because the complaint alleged that both D&J and Newark were required to supervise the site, and because Ferreira contended that Newark's negligence caused his injuries, the policy required Essex to provide a defense to D&J.
The online version of the Merriam Webster dictionary states that "as respects" is a variant of "as regards." Merriam-Webster Online, http://www.meriam-webster.com (last visited May 7, 2015). "As regards" means "in regard to" or "with respect to." Ibid.
We are also satisfied that the trial court properly found that Essex was required to indemnify D&J for the damages the jury awarded to Ferreira. As discussed above, the "as respects" policy language implies that Ferreira's injuries had to be connected to Newark's negligence for D&J to be an additional insured under the policy. At trial, the jury found both D&J and Newark to be negligent. According to the evidence, Newark was responsible for the daily activities at the job site, including safety. Thus, it was ultimately Newark's negligence that resulted in Ferreira's injury, because he was injured in a poorly secured and unstable trench.
It was undisputed that D&J itself did not perform any work at the site, but rather that D&J had hired Newark to perform the major aspects of the project, including safety and oversight. Moreover, D&J required Newark to obtain a policy of insurance for the project and to add D&J as an additional insured under the policy. Thus, there was a direct connection among D&J's hiring of Newark, D&J's requirement that Newark obtain insurance to protect against negligence on the work site, Newark's negligence in digging the trench and overseeing safety, and Ferreira's injuries. Without Newark's negligence, there would have been no injury to Ferreira. Therefore, the claims against D&J related to Newark's negligence, resulting in policy coverage and indemnification for D&J.
While the jury did find that Newark was thirty percent liable and D&J seventy percent liable for Ferreira's injuries, the policy did not specify that, in order to receive coverage, an additional insured must be less liable than the primary insured. In addition, there were limited acts that resulted in Ferreira's injury such as the digging of an insecure trench, which was only performed by Newark, and the obligation to create a safe work environment, which was also Newark's responsibility. It is unclear why the jury found D&J more liable than Newark. However, the accident in question was still caused by Newark's negligence in digging the ditch in which Ferreira's injury occurred.
Essex argues that the additional insured endorsement only provides coverage to D&J for vicarious liability. However, if Essex intended to limit its policy coverage to D&J as an additional insured for vicarious liability, it had the opportunity to do so by using clear policy language. It did not. Insurance contracts are contracts of adhesion and at all times Essex was in control of the policy language, terms, and provisions. Sparks v. St. Paul Ins. Co., 100 N.J. 325, 334 (1985). The policy Essex sold Newark does not mention vicarious liability or advise the parties that that was the only coverage being provided. We decline to rewrite the policy to provide less coverage to the insured that what is provided for in the policy. Liqui-Box Corp. v. Estate of Elkman, 238 N.J. Super. 588, 600 (App. Div.), certif. denied, 122 N.J. 142 (1990).
In sum, we affirm the trial court's ruling that Essex had a duty to reimburse D&J for defense costs and to also indemnify D&J under the additional insured endorsement of Newark's insurance policy.
Ferreira appealed from the trial court's decision granting Gaglioti's motion for summary judgment, which found that he could not be held personally liable as a member of D&J for Ferreira's injuries. Ferreira also appealed the judge's decision denying his motion for reconsideration of that decision. At oral argument, however, Ferreira's counsel represented that Ferreira would no longer contest the trial court's dismissal of his claims against Gaglioti if the court's decision concerning Essex's duty to defend and indemnify D&J were affirmed. Thus, in view of our holding, we need not address Ferreira's claims on this point in this opinion.
III.
We next turn to the parties' contentions concerning the trial court's determination of appropriate counsel fees. The trial court awarded counsel fees and expenses to D&J against Essex and to Newark against Essex. It also awarded Ferreira counsel fees and costs against Essex in connection with the coverage action.
In making these determinations, the court conducted a review of the bills submitted by D&J's, Newark's, and Ferreira's attorneys. After this review, the court determined that Newark's bills were reasonable and appropriate. The court awarded Newark $300 an hour, plus costs for the eighty-four and one-half hours worked on the coverage action. For D&J's coverage counsel fees, the court approved the rate of $247.34 per hour for the 42 5.1 hours billed by D&J's attorney.
Essex had previously agreed to pay the cost of defense for Newark.
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Ferreira's counsel was being paid a contingent one-third fee as a result of his work on the underlying personal liability action and for the coverage action. While the court pointed out that Ferreira's attorney was not required to take part in the coverage action, it found his participation was appropriate. However, the court disapproved of Ferreira's counsel's billing rate, which was in excess of $500 per hour, and permitted Ferreira's primary counsel to bill at $300 per hour, and his associate to bill at $2 00 per hour. The court also reduced the primary counsel's hours from 203 to 175, and the associate's hours from eighty and seven-tenths to sixty.
A trial court's award of counsel fees "will be disturbed only on the rarest occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). For the following reason, we discern no basis to disturb the court's rulings on the counsel fees issues.
Essex first argues that the court erred when it determined the fee award for D&J pursuant to Rule 4:42-9(a)(6). Essex contends that D&J was not a successful claimant in the coverage action as required by the rule. We disagree.
Rule 4:42-9(a)(6) allows fees in actions "upon a liability or indemnity policy of insurance, in favor of a successful claimant." "The term successful claimant is broadly defined as a party that succeeds on any significant issue in litigation which achieves some benefit the parties sought in bringing suit." Occhifinito v. Olivo Constr. Co., ___ N.J. ___, ___ (slip op. at 9) (citations and quotation marks omitted). "A party who 'obtain[s] a favorable adjudication on the merits on a coverage question as the result of the expenditure of [counsel] fees,' is a successful claimant under Rule 4:42-9(a)(6)." Ibid. (quoting Transamerica Ins. Co. v. Nat'l Roofing Inc., 198 N.J. 59, 63 (1987)). Applying these principles here, D&J was clearly "a successful claimant" in the coverage action because the court ruled it was entitled to a defense and indemnification under the insurance policy.
Essex next contends that the fee award to D&J was excessive. However, we are satisfied the court did not abuse its discretion.
To properly set the "lodestar," the court was required to examine the total number of hours reasonably expended and then multiply that amount by a reasonable hourly rate. Rendine, supra, 141 N.J. at 317. To determine if a fee award is reasonable, the court examines the factors in R.P.C. 1.5(a):
1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;See also Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 22 (2004) (quoting R.P.C. 1.5(a)).
2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
3) the fee customarily charged in the locality for similar legal services;
4) the amount involved and the results obtained;
5) the time limitations imposed by the client or by the circumstances;
6) the nature and length of the professional relationship with the client;
7) the experience, reputations, and ability of the lawyer or lawyers performing the services;
8) whether the fee is fixed or contingent.
[R.P.C. 1.5(a).]
Essex concedes that the hourly rate of $247 .34 that was billed by D&J in the coverage action was reasonable, but complains about the number of hours that D&J's counsel spent working on the coverage action. Specifically, Essex claims that the hours were not justified because its own counsel spent less time defending the coverage action.
However, the amount of time allotted to the coverage action was reasonable under R.P.C. 1.5(a). For example, D&J's coverage attorneys participated in pre-trial discovery, reviewed depositions, and prepared two motions for summary judgment. Because the parties agreed to be bound by the facts as determined in the underlying personal liability action, counsel for the coverage action needed to be present during the trial of the underlying action. D&J's attorneys expended approximately 425 hours over the course of four years for both actions, including all of the required court appearances. Importantly, these hours included time spent working on both matters, whereas Essex's reference to its own counsel's time only included time billed for the coverage action. Thus, we perceive no abuse of discretion in the trial court's determination of the fees due D&J.
Essex's argument that Ferreira was not "a successful claimant" under Rule 4:42-9(a)(6) also lacks merit. As our Supreme Court recently explained in Occhifinto, "[a] successful claimant under Rule 4:42-9(2)(6) may include a party in a negligence action who, [like Ferreira], is a third-party beneficiary of a liability insurance policy and litigates a coverage question against a defendant's insurance carrier." Occhifinto, supra (slip op. at 9) (citations omitted). The Court stated that "[w]e authorize trial courts to award counsel fees in favor of third-party beneficiaries of insurance contracts because 'an insurer's refusal to provide liability coverage may also, as a practical matter, preclude an innocent injured party from being able to recover for the injury.'" Id. at 9-10) (quoting Myron Corp. v. Atl. Mut. Ins. Corp., 407 N.J. Super. 302, 311 (App. Div. 2009), aff'd o.b., 203 N.J. 537 (2010). Here, Ferreira was the beneficiary of the insurance payments to satisfy D&J's and Newark's obligations pursuant to the order of judgment in the underlying personal injury action. While he was not obligated to take part in the coverage action, Ferreira's attorney's appropriately participated in order to advocate for policy coverage to ensure prompt and full payment of the personal injury judgment. Thus, the trial court properly concluded that Ferreira was "a successful claimant" under Rule 4:42-9(a)(6).
We also disagree with Essex's contention that the fees awarded to Ferreira were excessive. While Ferreira's attorney initially sought $525 per hour for his work and $350 per hour for his associate, the court properly reduced those amounts to $300 for the primary attorney and $200 for the associate. These rates were in the same range awarded to D&J's and Newark's attorneys.
Contrary to Essex's argument, Ferreira's counsel's work was not "duplicative" of the work performed by Essex's own attorney. Ferreira's counsel participated in the coverage action to protect his client's ability to receive payment on the judgment. Essex's attorney was taking the opposite position in the coverage action. Thus, Ferreira's attorneys efforts on behalf of his client cannot be deemed "duplicative."
Finally, Ferreira argues in his cross-appeal that the court erred in reducing the counsel fees sought by his attorney. This argument also lacks merit. The court concluded that Ferreira's fees and the hours spent on the case were high in comparison to the fees charged and hours expended by D&J's and Newark's attorneys. Yet, all three of these parties shared a common interest - to secure coverage for D&J and Newark so that Ferreira could be compensated for his injury. Under these circumstances, the court properly awarded roughly equivalent hourly rates to Ferreira, D&J, and Newark, and correctly reduced the billable hours sought by Ferreira.
We therefore affirm the trial court's orders in all respects.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION