Supreme Court of New Jersey.

Patricia ROBINSON and David Robinson, Plaintiffs,

v.

Dominick N. COIA, Jr., John Doe I-III (a fictitious name designating the

operator of the motor vehicle) and John Doe IV-VI (a fictitious name

designating the operator of the motor vehicle); individually, jointly,

severally and/or in the alternative, Defendants,

and

Avis Rent a Car System, Inc., Defendant-Appellant,

v.

Richard Brown, Jr., Defendant and Third Party Plaintiff-Respondent,

v.

James J. O’Connell and Gloria A. Maisey, Third Party Defendants.

Argued Feb. 14, 2005.

Decided March 29, 2005.

PER CURIAM.

The judgment of the Appellate Division is reversed substantially for the reasons expressed in the thorough and persuasive dissenting opinion of Judge Wecker below. Robinson v. Coia, 369 N.J.Super. 336, 347-354 (App.Div.2004). We add only the following.

This appeal is about the respective obligations of an insurer on a personal policy of automobile insurance and a self-insured car rental company for injuries sustained by a third party in an accident involving a rented vehicle. Richard Brown, Jr., rented a car from Avis Rent A Car System, Inc. in Cherry Hill, New Jersey. He declined to purchase any additional coverage from Avis when it was offered as part of the rental agreement. At the time of the rental, Brown had a personal automobile insurance policy from Farmers Insurance Exchange, which contained an excess insurance clause that made its coverage excess to all other collectible coverage. Avis, on the other hand, self-insured those of its vehicles registered in Pennsylvania. Such was the car rented to Brown.

In Paragraph 18 of the rental agreement executed by Brown, he agreed that

[t]he coverage provided by [Avis] shall be excess of any applicable insurance available to me or any other driver, from any other source, whether primary, excess, secondary or contingent in any way. Otherwise, it is provided according to the terms, and subject to the conditions, of a standard automobile liability insurance policy, including all requirements as to notice and cooperation on my part, which are hereby made a part of this agreement.

Had Brown purchased additional insurance, then “the coverage provided by [Avis] according to paragraph 18 … shall be primary and the combined limits of liability protection shall be [$1,000,000 per person/$1,000,000 per accident]. Unfortunately, Brown was involved in a multi-car accident while driving the Avis rental car on the Atlantic City Expressway. That automobile accident, and the resultant personal injury action brought by third parties, provides the backdrop to this appeal.

As noted, the Pennsylvania-registered automobile involved in the accident was self-insured by Avis. Had Avis rented a car registered in New Jersey to Brown, however, the same result would pertain vis-a-vis the personal automobile insurance policy held by Brown. The policy of business automobile insurance coverage Avis purchased to cover its New Jersey registered vehicles required the renter’s personal automobile policy to be primary and the Avis policy to be treated as excess to the renter’s policy. Only when the renter purchased additional liability insurance on executing the rental agreement would the Avis policy be primary. Under either the self-insurance program or the purchased policy, Avis as the “named insured” maintains insurance covering liability to a person injured in an accident involving one of its vehicles thereby satisfying the requirements of N.J.S.A. 45:21-3.

FN1. The policy purchased by Avis contained an “Other Insurance” clause that provided:

a. With respect to anyone insured under this policy other than the named insured, … the insurance furnished under this policy is excess over any other valid and collectible insurance whether such other insurance is stated to be primary, contributing, secondary, excess, contingent or otherwise unless the other policy was issued by us or an affiliated company specifically to apply in excess of this policy.

b. With respect only to the named insured, … the following shall apply: for any covered auto you own this policy provides primary insurance.

Thus, the fact of self-insurance does not change the result in this dispute about coverage. We agree with the analysis of the dissenting judge below that a rental company may self-insure to fulfill the liability requirements of N.J.S.A. 45:21-3. Robinson, supra, 369 N.J.Super. at 347-49. See Agency Rent-A-Car, 268 N.J.Super. 319, 324-25 (App.Div.1993). Compliance with that obligation does not require that the rental company’s policy of insurance (or self-insurance) must be primary in respect of a renter’s liability to third parties. See Cosmopolitan Mut. Ins. Co. v. Continental Cas. Co., 28 N.J. 554, 563 (1959). Moreover, the dissent concluded that in this instance, when Avis’s coverage by operation of contract and statute (memorialized in the rental agreement) and the renter’s “other insurance” clause were each, by their terms, “excess” to the other, the two should be treated as co-primary. Robinson, supra, 369 N.J.Super. at 353-54. We agree also with that approach.

FN2. We note that the amount in dispute is within the limits of liability contained in N.J.S.A. 45:21-3. We express no opinion, however, on whether a self-insuring rental company can limit its liability to the statutory minimums, absent excess coverage.

The judgment of the Appellate Division is reversed and the matter is remanded for further proceedings consistent with this opinion.

Chief Justice PORITZ and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in this opinion.

For reversal and remandment–Chief Justice PORITZ, Justice LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE, RIVERA-SOTO–7.

United States District Court,

W.D. Texas, San Antonio Division.

Martin SEIDLER Plaintiff,

v.

UNITED PARCEL SERVICE, INC. Defendant.

March 29, 2005.

ORDER GRANTING DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT

 

FURGESON, J.

Before the Court are Defendant’s Motion for Partial Summary Judgment (Docket No. 19), Plaintiff’s Response, and Defendant’s Reply. Having considered the written briefs and the evidence submitted, the Court finds that Plaintiff has been unable to adduce evidence of a genuine issue of material fact as to his claim for attorney’s fees. Accordingly, Defendant’s Motion for Partial Summary Judgment is GRANTED.

FACTUAL AND PROCEDURAL BACKGROUND

As discussed in this Court’s Order Denying Plaintiff’s Motion to Remand, this case arises from Plaintiff’s purchase of a rare firearm from a seller in Springfield, Illinois and shipment on November 24, 2003, via United Parcel Service (“UPS”) overnight delivery, to his local firearms dealer in Helotes, Texas. Plaintiff allegedly insured the package through UPS for $10,000.00 prior to shipment. Plaintiff claims that UPS damaged the firearm in the course of the shipment and caused it to be unserviceable. Plaintiff alleges that he met with Defendant’s representatives to recover for the damaged property, but the parties were unable to resolve the dispute.

Plaintiff filed this cause of action on April 5, 2004 in the 408th Judicial District of Bexar County Court in Texas. On May 4, 2004, Defendant removed the suit to this Court pursuant to the provisions of 28 U.S.C. § § 1441 and 1446, claiming original jurisdiction based on 28 U.S.C. § 1331. Plaintiff filed a Motion to Remand on June 2, 2004, and this Court denied the Motion upon its determination that all of Plaintiff’s claims either arose under federal common law or were preempted by the Airline Deregulation Act .

FN1. Pub.L. No. 95-504, 92 Stat. 1705, (codified as amended in various sections of 49 U.S.C.).

Defendant’s Motion for Partial Summary Judgment now before the Court moves to dismiss Plaintiff’s claims for attorney’s fees. Defendant contends that the parties are required to bear their own attorney’s fees because this action arises under federal common law and there is no explicit statutory authority awarding such fees. In response, Plaintiff asserts that attorney’s fees are recoverable based on a number of federal and state laws.

STANDARD OF REVIEW

Summary judgment is appropriate if, after adequate time for discovery, no genuine issue as to any material facts exists, and the moving party is entitled to judgment as a matter of law. Where the issue is one for which the nonmoving party bears the burden of proof at trial, it is sufficient for the moving party to identify those portions of the record which reveal the absence of a genuine issue of material fact as to one or more essential elements of the nonmoving party’s claim.The nonmoving party must then “go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate specific facts showing that there is a genuine issue for trial.” To prevail on summary judgment, the moving party need only demonstrate that “there is an absence of evidence to support the nonmoving party’s case.” Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court, in order to grant summary judgment, must be satisfied that no rational trier of fact could find for the nonmoving party as to each element of his case.

FN2. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FN3. Celotex, 477 U.S. at 323-24.

FN4. Id. at 324.

FN5. Id. at 325.

FN6. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

DISCUSSION

Based on this Court’s Order Denying Plaintiff’s Motion to Remand, Plaintiff’s claims for breach of contract and violation of the Texas Deceptive Trade Practices Act (“DTPA”) are preempted by the Airline Deregulation Act and Plaintiff’s causes of action for negligence and conversion under federal common law remain pending. In Buckhannon Board & Care Home, Inc. v. West Va. Dep’t of Health & Human Services, the U.S. Supreme Court recognized that U.S. courts follow “a general practice of not awarding fees to a prevailing party absent explicit statutory authority.” Under this “American Rule,” “parties are ordinarily required to bear their own attorney’s fees.”

FN7. 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001).

FN8. Id. at 602 (quoting Key Tronic Corp. v. U.S., 511 U.S. 809, 819, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994).

FN9. Id.

Plaintiff identifies a number of state and federal statutes that he argues provide adequate authority for awarding attorney’s fees. Upon detailed review, the Court finds that none of the provisions Plaintiff identifies authorize the award of such fees. The Texas statutes Plaintiff identifies either are preempted by the Airline Deregulation Act or do not pertain to claims against a carrier arising from air shipment. Similarly, the federal statutes Plaintiff identifies either are no longer in effect or pertain to the Carmack Amendment, which governs carriers transporting goods by rail or motor carriage rather than air shipments. Upon viewing the evidence and all reasonable inferences therefrom in the light most favorable to Plaintiff, the Court finds that Plaintiff has been unable to raise a genuine issue of material fact concerning statutory authority that would allow parties to recover attorney’s from one another based on the federal common claims of negligence and conversion.

FN10. See, e.g., TEX. BUS. AND COMM.CODE, Art. 17.50 (Vernon 2004).

FN11. See, e.g., TEX. CIV. PRACT. AND REM.CODE, Chpt. 135.005 (Vernon 2004).

FN12. See, e.g., 49 U.S.C. § 11711.

FN13. See, e.g., 42 U.S.C. § 11706.

CONCLUSION

For the foregoing reasons, the Court finds that Plaintiff has failed to raise a genuine issue of material fact as to one or more essential elements his claim for attorney’s fees.

IT IS ORDERED, therefore, that Defendant’s Motion for Partial Summary Judgment (Docket No. 19) be GRANTED.