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Grubbs v. Knoll4/15/2005
since, but for the inadequate lighting and security, the plaintiff would arguably not have had need to litigate with those tortfeasors.
To the extent the Knolls' argument might only be deemed applicable to attorney negligence cases under their "lawyer as backstop" theory, it implicates a dramatic expansion of the fee-shifting created by our Supreme Court, pursuant to its constitutional rule-making power, in Saffer v. Willoughby, supra. See Niles, supra, 176 N.J. at 298 (noting that fee-shifting rule of Saffer in legal malpractice cases was authorized by the Court's exclusive authority under the New Jersey Constitution to engage in rule-making). Such an expansion of Saffer is beyond the authority of this court and better left to the Supreme Court. In re Farnkopf, 363 N.J. Super. 382, 396 (App. Div. 2003). Moreover, since the Knolls can, and have, recouped the bulk of their counsel fees from Stevens by virtue of the Consumer Fraud Act, it would appear that the concern which prompted the Saffer Court to authorize fee-shifting in legal malpractice cases, i.e., making the client whole, is not present here.
The Knolls also rely heavily upon Cogar v. Monmouth Toyota, 331 N.J. Super. 197 (App. Div. 2000), in challenging the trial court's allocation of counsel fees. In Cogar, supra, 331 N.J. Super. at 202-03, multiple defendants were found liable under the CFA, with fault being apportioned in varying degrees against them. Counsel fees were awarded under the CFA, but the trial court rejected the defendants' request to apportion those fees according to each defendant's percentage of liability and instead held that the defendants were jointly and severally liable for the attorneys' fees awarded to the plaintiff. Id. at 203. On appeal, this court also rejected apportioning fees in accordance with the defendants' respective percentages of liability under the CFA, notwithstanding prior case law holding that: (1) jointly liable defendants whose CFA liability is less than 60% are only required to pay that percentage of the treble damages awarded; and (2) responsibility for interest is to be apportioned among defendants according to their percentage of negligence. Id. at 210-11 (citing Gennari v. Weichert Co. Realtors, 148 N.J. 582, 609 (1997); Lee's Hawaiian Islanders, Inc. v. Safety First Prods., Inc., 195 N.J. Super. 493, 507 (App. Div.), certif. denied, 99 N.J. 205 (1984)).
This court's denial of fee apportionment in Cogar was holding faithful to the legislative intent under the fee-shifting provision of the CFA to "encourage attorneys to take small claims in order to serve the important public policy behind the statute." Cogar, supra, 331 N.J. Super. at 211. We determined that, "impos a limitation on the amount of fees recoverable based on allocation would dilute the significant policy underpinnings of the fee provision of the legislation." Ibid.
Here, the policy underlying the CFA's fee-shifting provision is neither diluted nor undercut by the apportionment issue raised by the Knolls because Chapman's obligation to pay counsel fees is not derived from the CFA. Put another way, inasmuch as the Knolls voluntarily settled all aspects of their claims against the only party who was responsible to them for statutory attorney's fees under the CFA, Cogar should not be read as divesting the trial judge of discretion in fashioning an appropriate fee award against the lawyer-defendant once the CFA was no longer a factor in the case.
Indeed, Cogar reaffirms that, notwithstanding the policies of the CFA, trial judges retain discretion to reduce counsel fee awards in view of a plaintiff's settlement with other parties. Specifically, as we ruled in Cogar, the trial court did not ab
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