Our use hereafter of "plaintiff" is in reference to Nicholas, the injured plaintiff. As recited in the opinion of the Appellate Division, 199 N.J. Super. 441 (1985), the essential facts of the dispute before us are as follows: In 1979 plaintiff was a passenger in a vehicle operated by Claus Rademacher, and owned by his father, Robert Rademacher. Claus Rademacher, in order to avoid a collision with an unidentified vehicle, had swerved his car, causing it to be hit by a third vehicle driven by Christopher Milowic and owned by his father, Walter Milowic. Plaintiff was injured in the collision between the Rademacher and Milowic vehicles.
As the Supreme Court noted in Lundy, the claimant as a named insured was protected by UM coverage both for an accident in which the claimant occupied a covered car, but also for an accident respecting any car in which the named insured was injured by an uninsured driver. See also Motor Club of America Ins. Co. v. Phillips, 66 N.J. 277 at 282 (1974); Childs v. New Jersey Manufacturers Ins. Co., 199 N.J. Super. 441 at 449 (1985). The exact provisions of the Lundy policy are not contained in the opinion, except the reference to the claimant as an "additional insured."
Petition for certification granted. (See 199 N.J. Super. 441)
Finally, we address plaintiff's argument that the judge erred in not awarding prejudgment interest. Prejudgment interest in UM cases is allowable on the same terms and conditions as permitted in similar contract actions. Derfuss v. N.J. Mfrs. Ins. Co., 285 N.J.Super. 125, 135, 666 A.2d 599 (App.Div. 1995); Childs v. N.J. Mfrs. Ins. Co., 199 N.J.Super. 441, 452, 489 A.2d 1203 (App.Div. 1985), rev'd on other grounds, 108 N.J. 506, 531 A.2d 723 (1987). Thus, prejudgment interest may be awarded on contract actions in accordance with equitable principles. Pressler, Current N.J. Court Rules, comment on R. 4:42-11 (2008).
Since Rivers was decided, there has been a succession of cases acknowledging that prejudgment interest may be awarded in UM cases premised on equitable principles. See Derfuss, supra, 285 N.J. Super. at 135; Childs v. New Jersey Mfrs. Ins. Co., 199 N.J. Super. 441, 452 (App.Div. 1985), rev'd on other grounds, 108 N.J. 506 (1987). Thus, Rivers, supra, implicitly held that prejudgment interest was a component of the insured's damage award if equitable considerations warranted it. 192 N.J. Super. at 359.
E.g., New Jersey Mfrs. Ins. Co. v. Breen, 297 N.J. Super. 503, 516-17, 688 A.2d 647 (App.Div.), certif. granted, 149 N.J. 408, 694 A.2d 194 (1997) ("[a]n action to collect under the underinsured motorist coverage of a New Jersey automobile policy is not within the category of suits in which R. 4:42-9(a)(6) permits an attorney's fee to be awarded."); Goodwin v. Rutgers Cas. Ins. Co., 223 N.J. Super. 195, 199, 538 A.2d 425 (App.Div. 1988); Childs v. New Jersey Mfrs. Ins. Co., 199 N.J. Super. 441, 451-52, 489 A.2d 1203 (App.Div. 1985), rev'd on other grounds, 108 N.J. 506, 531 A.2d 723 (1987). II
Finally, the plaintiffs argue that they are entitled to attorney's fees, prejudgment interest and costs. These same issues were addressed by the Appellate Division in Childs v. N.J. Manufacturers Ins. Co., 199 N.J. Super. 441 (App.Div. 198 5), rev'd on other grounds, 108 N.J. 506 (1987). For the reason set forth in Childs id. at 452, this court disallows attorney's fees and awards costs and prejudgment interest calculated in accordance with R. 4:42-11(a)ii from the date of the arbitration award.
This was neither an action on a liability nor an indemnity policy within the meaning of that rule. See Childs v. N.J. Mfrs. Ins. Co., 199 N.J. Super. 441, 451-452 (App.Div. 1985), rev'd on other grounds 108 N.J. 506 (1987); Enright v. Lubow, 215 N.J. Super. 306, 311 (App.Div. 1987), certif. den. 104 N.J. 376 (1986).
See Vesley v. Cambridge Mut. Ins. Co., 189 N.J. Super. 521 (App.Div. 1981) (suit for fire casualty loss under a homeowner's policy — no counsel fees), affirmed by an equally divided Court 93 N.J. 323 (1983). See also Ellmex Const. Co., Inc. v. Republic Ins. Co., 202 N.J. Super. 195 (App.Div. 1985) (action on a builder's risk policy for loss incurred by vandalism — no counsel fees); Childs v. N.J. Manufacturers Ins. Co., 199 N.J. Super. 441 (App.Div. 198 5) (suit for uninsured motorist coverage — direct action — no counsel fees); Meier v. New Jersey Life Ins. Co., 195 N.J. Super. 478, 489 (App.Div. 1984) (direct action on a life insurance policy by the owner and beneficiary — no counsel fees); Miller v. N.J. Ins. Underwriting Ass'n, 188 N.J. Super. 175, 194, certif. den. 94 N.J. 508 (1983) (direct action upon a fire insurance policy — no counsel fees); Kistler v. N.J. Mfts. Ins. Co., supra (action on an automobile liability policy for collision coverage — no counsel fees); see Foley Machinery Co. v. Amland Contractors, Inc., 209 N.J. Super. 70 (App.Div. 198 6) (suit on theft of machinery); Great Southwest Fire Ins. Co. v. Gonzales, 201 N.J. Super. 361 (App.Div. 1985) (suit for theft of front end motor); Enright v. Lubow, 202 N.J. Super. 58 (App.Div. 1985) (suit on title insurance policy); Regino v. Aetna Cas. Sur. Co., 200 N.J. Super. 94 (App.Div. 198 5) (suit for theft of front end motor)
Vesley v. Cambridge Mut. Ins. Co., 189 N.J. Super. 521 (App.Div. 1981) (suit for fire casualty loss under a homeowner's policy — no counsel fees), affirmed by an equally divided Court, 93 N.J. 323 (1983). See also Ellmex Const. Co., Inc. v. Republic Ins. Co., 202 N.J. Super. 195 (App.Div. 1985) (action on a builder's risk policy for loss incurred by vandalism — no counsel fees); Childs v. N.J. Manufacturers Ins. Co., 199 N.J. Super. 441 (App.Div. 198 5) (suit for uninsured motorist coverage — direct action — no counsel fees); Meier v. New Jersey Life Ins. Co., 195 N.J. Super. 478, 489 (App.Div. 1984) (direct action on a life insurance policy by the owner and beneficiary — no counsel fees); Miller v. N.J. Ins. Underwriting Ass'n, 188 N.J. Super. 175, 194 (App.Div. 1983) (direct action upon a fire insurance policy — no counsel fees); and Kistler v. N.J. Life Ins. Co., supra (action on an automobile liability policy for collision coverage — no counsel fees). On the other hand, cases have supported an award of counsel fees in a direct action by an insured against the insurance carrier.