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  • 1.  Tevis claim - fee arrangement

    Posted 01-26-2018 08:34 AM
    I represent a woman whose husband struck her with his car.    There is likely to be some dispute as to whether he "accidentally" hit her, or deliberately struck her and tried to injure her.

    The DV case is over.   For a variety of reasons, we wound up going with civil restraints, and she dismissed the TRO.   I have recently filed a Divorce Complaint.   I forgot to include the Tevis claims, and I am filing an Amended Complaint, including a Jury Demand, at this time.   There is a count for an auto "accident" (I figure, let's see if the carrier will defend) and also a count for intentional assault and battery.

    Here's my question: Am I permitted to pursue the personal injury claim on a contingency basis?  Or does the prohibition against taking a family case on contingency bar this?   It seems to me that I should be allowed to do it on contingency, since it's really a separate tort claim, and is only pleaded within Family Part in order to avoid application of Entire Controversy Doctrine as per Tevis.



    DONALD B. FRASER, JR.
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  • 2.  RE: Tevis claim - fee arrangement

    Posted 01-26-2018 08:48 AM
    My understanding is that Rule 5:3-5(b) permits you to handle the Tevis claim on a contingency basis, but be sure to have a carefully drafted retainer agreement.  The Rule states in pertinent part:

    Contingent fees pursuant to R. 1:21-7 shall only be permitted as to claims based on the tortious conduct of another, and if compensation is contingent, in whole or in part, there shall be a separate contingent fee arrangement complying with R. 1:21-7. No services rendered in connection with the contingent fee representation shall be billed under the retainer agreement required by paragraph (a) of this rule, nor shall any such services be eligible for an award of fees pursuant to paragraph (c) of this rule.


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  • 3.  RE: Tevis claim - fee arrangement

    Posted 01-26-2018 11:41 AM

    Donald:

     

    I have tried Tevis cases successfully. I believe you can take the personal injury aspect on a contingency basis and if you allege accident, the carrier has to defend the case and may seek to bifurcate it. The insurer will likely not be responsible if it was an intentional act.

     

    Keep in mind if you pursue the negligence count, you may have to deal with a verbal threshold defense, if that is what your client had on her auto insurance as a tort threshold option (assuming she had a policy or was residing with her spouse at the time this occurred and they were insured under the same policy).

     

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  • 4.  RE: Tevis claim - fee arrangement

    Posted 01-26-2018 11:49 AM

    I think you're right; you can charge a contingency fee on the civil case.  It's only in the family complaint because of entire controversy.  It will be moved over to civil for trial anyway.

     

    But if it were me, I 'd take the intentional claim out.  Since you have civil restraints now, you really don't need the intentional claim.  Your client is a pedestrian; spouse is the driver.  Assuming your client is not in a crosswalk (!), liability is probably pretty fair.  You are going to want a carrier on the other side.  Having an alternative intentional tort count in there could give the carrier an opportunity to get out or look for contribution from the husband for settlement purposes.  While that may sound good for ED purposes, in the long run, I'd rather have a carrier on the tab for the whole claim.

     

     

     

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  • 5.  RE: Tevis claim - fee arrangement

    Posted 01-26-2018 12:02 PM
    Appreciate the feed back.  This message board is great.


    Justin -- You're obviously right.   Duh, I should have read the Rule first.

    Bob -- I agree, and I thought that part through.   They in fact have a minimal policy, with the Verbal Threshold.

    Mark -- It's good case liability-wise, but, given that we have a Verbal Threshold issue to contend with (and I think my client's injuries could go "either way" on that point), I've concluded, on my facts, that the value of the Punitive Damages claim against Husband outweighs the considerations you cite.

    Thanks to all.


    Don


    DONALD B. FRASER, JR.
    Perrotta, Fraser & Forrester, LLC
    16 Valley Road
    Clark, NJ 07066
    732-680-1400, ext. 3
    Fax - 732-680-1404
    [email protected]





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  • 6.  RE: Tevis claim - fee arrangement

    Posted 01-26-2018 03:04 PM
    Don -
    <x-tab>        </x-tab>I agree with the sage advice from others.
    <x-tab>        </x-tab>One point - remember that if the incident occurred within two years of the filing of the complaint, it's not really a "Tevis" count. Tevis applies only when you're seeking to extend the statute of limitations to cover an act committed more than two years earlier due to the plaintiff being too psychologically paralyzed to pursue it earlier. Otherwise, it's just a "Domestic Tort", not a "Tevis claim."
    <x-tab>        </x-tab>As Bob mentioned, if you remove the intentional aspect of it, there may be insurance coverage. BUT, I believe you'd give up the right to seek punitive damages and will get into verbal threshold issues. The last domestic tort claim I handled was transmission of herpes and the judge wiped out H's house equity ($300,000) as damages.  It depends on what the numbers are - is there an ability (outside of insurance coverage) to cover a damages award, or are you better off with seeking to keep the insurer on the hook. Also, if she alleged in a TRO that it was intentional - would the insurer try to get that and use it against her to disclaim coverage if she's now saying it was negligent? I don't know - but worth researching.
    <x-tab>        </x-tab>On contingency - there are weird counter-intuitive rules on this. Check the Gann ethics book. I'd always assumed contingency was out in all Family actions, but the rules are complex - I believe you can, for example, agree to a contingency on collecting alimony arrears, but not child support. Worth checking.

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    Appreciate the feed back.  This message board is great.

    Justin -- You're obviously right.   Duh, I should have read the Rule first.

    Bob -- I agree, and I thought that part through.   They in fact have a minimal policy, with the Verbal Threshold.

    Mark -- It's good case liability-wise, but, given that we have a Verbal Threshold issue to contend with (and I think my client's injuries could go "either way" on that point), I've concluded, on my facts, that the value of the Punitive Damages claim against Husband outweighs the considerations you cite.

    Thanks to all.

    Don



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