THE TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA v. USA CONTAINER CO., INC.

Filing 125

OPINION. Signed by Judge Jose L. Linares on 7/21/14. (gmd, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
Plaintiff,

Civil Action No. 09-1612 (JLL) (JAD)
OPINION

V.

USA CONTAINER CO., INC.,
Defendant.

LINARES, District Judge.

This matter comes before the Court upon the Mot
ion for Final Judgment by Defendant
USA Container Co., Inc. (“USA Container”). (ECF
No. 114.) The Court has considered the
submissions made in support of and in oppositio
n to USA Container’s Motion, and decides this
matter without oral argument pursuant to Fed. R.
Civ. P. 78. Based on the following and for the
reasons expressed herein, USA Container’s Motion
for Final Judgment is granted in part and
denied in part.

I.

BACKGROUND

This action arises from an insurance coverage
dispute between USA Container, a
company engaged in the business of supplying
industrial containers, logistical services, and
warehousing, and its insurer, The Travelers Prop
erty Casualty Company of America
(“Travelers”). Pursuant to the policy that USA
Container procured from Travelers (the “Pol
icy”),
Travelers is required to “pay those sums that
[USA Container] becomes legally obligated to
pay
as damages because of ‘property damage’ to whic
h the insurance applies.” (ECF No. 114-2 at
4.)
1

In 2006, USA Container contracted with Meelunie
B.V./Amsterdam (“Meelunie”) to
arrange for the transfer of corn syrup from rail cars
to drums. (ECF No. 96 at 2.) Because USA
Container did not have the resources to heat the
corn syrup in accordance with standard
operating procedures, it subcontracted with Pass
aic River Terminal, LLC (“Passaic River”) to
perform the necessary work to transfer the corn
syrup to the drums. ( at 2-3.)
In or about November 2007, Passaic River dam
aged Meelunie’s corn syrup by
overheating it. (Id. at 3.) The damage was not
discovered until after the corn syrup was shipped
overseas and rejected by Meelunie’s customers.
(Id.) As a result, Meelunie incurred
approximately $700,000 in damages, inclusive of
customs costs, storage fees, and other
expenses. (Id.) Meelunie subsequently demande
d that USA Container compensate it for its loss.
(Id.) USA Container then made a claim to Travelers
for coverage under the Policy. (Id. at 5.)
On October 29, 2008, before Travelers rendered
its coverage determination, Meelunie
filed a complaint in this District against USA Con
tainer and Passaic River. (ECF No. 114-2 at 23.) By letter dated December 19, 2008, Travelers
denied USA Container coverage. (Id. at 7.)
USA Container asked Travelers to reconsider its
denial of coverage on January 26, 2009. (Id.) By
letter dated March 20, 2009, Travelers’ attorneys
, on behalf of their client, offered to assist USA
Container in settling the Meelunie Action by adva
ncing the sum of $100,000 to be applied to the
settlement. (Id. at 8.) This offer, which was cont
ingent on Travelers’ reservation of the right to seek
the reimbursement of those funds in this action,
was rejected by USA Container. (Id.; ECF No. 1181
at 11.) On April 6, 2009, Travelers commenced
the instant action, seeking, among other things,
(1) a declaration that the Policy “does not prov
ide coverage for the allegations in the Meelunie
Complaint,” and (2) a declaration “that Travelers
has no obligations to USA Container in
connection with the Meelunie Complaint.” (ECF
No. 1 at 3.)
In May 2009, Meelunie and USA Container enter
ed into a settlement agreement, pursuant
2

to which USA Container agreed to pay Meelunie
$425,000 plus 50% of any recovery that USA
Container obtains in the present action, until Mee
lunie receives $732,000 (the “Settlement
Agreement”). (ECF No. 114-2 at 3.)
On June 9, 2009, USA Container filed countercl
aims against Travelers in the underlying
action for breach of contract and bad faith. (ECF
No. 96 at 6-7.) On April 26, 2013, Travelers
moved for summary judgment as to both of its affir
mative claims and USA Container’s
counterclaims. (Id. at 7.) Also on this date, USA
Container moved for partial summary judgment
as to its breach of contract claim. (Id.) Specifically,
USA Container sought a ruling that the
Policy “provides USA Container coverage for the
claims of Meelunie. arising from sub
contractor Passaic River’s damage to Meelunie’
s corn syrup, and that Travelers breached its duty
to defend and indemnify USA Container.”
.

.

()

On July 8, 2013, this Court denied Travelers’ moti
on for summary judgment and granted
USA Container’s motion for partial summary judg
ment. (ECF No. 96). On April 25, 2014, USA
Container filed the instant Motion for Final Judg
ment, seeking (i) the full value of the Settlement
Agreement ($732,000), (ii) litigation costs and
attorney’s fees, and (iii) prejudgment interest.
(“USA Mot.,” ECF No. 114.) Travelers filed an
Opposition on June 12, 2014. (“Tr.’s Opp’n,”
ECF No. 118.) USA Container filed a Reply on
July 9, 2014. (ECF No. 123.)
II

DISCUSSION

Travelers makes four arguments in opposition to
USA Container’s Motion for Final
Judgment: (i) USA Container has not shown
that its settlement with Meelunie was reasonabl
e;
(ii) USA Container has improperly calculated
prejudgment interest; (iii) USA Container is not
entitled to its requested attorney’s fees; and (iv)
USA Container is not entitled to prejudgment
interest on its attorney’s fees.

3

A. Whether the Settlement was Reasonable
Travelers argues that “USA Container has failed to shou
lder its burden to establish the
reasonableness of its $425,000.00 settlement, let alon
e the $732,000.00 windfall which it seeks.”
(Tr.’s Opp’n at 2.) Under New Jersey law:
Where an insurer wrongfully refused coverage and a
defense to its insured, so that
the insured is obliged to defend himself in an actio
n later held to be covered by the
policy, the insurer is liable for the amount of the
judgment obtained against the
insured or of the settlement made by him. The only
qualifications to this rule are
that the amount paid in settlement be reasonable and
that the payment be made in
good faith.
Griggs v. Bertram, 443 A.2d 163, 171-72 (N.J. 1982
) (quoting Fireman’s Fund Ins. Co. v. Sec.
Ins. Co. of Hartford, 367 A.2d 864, 868 (N.J. 1976
)). This District has stated that “[t]he Griggs
standard does not call for 100% accuracy, but only
that in light of all of the relevant facts and
upon a reasonable inquiry, the insured agreed to a settl
ement amount that was reasonable and
entered into in good faith.” Excelsior Ins. Co. v. Penn
sbury Pain Ctr., 975 F. Supp. 342, 357
(D.N.J. 1996).
Travelers argues that an award of $732,000 is a “win
dfall” for USA Container because
USA Container only paid Meelunie $425,000 and
is not contractually obligated to pay any
further amount. This argument is erroneous USA
Container was under no obligation to pay
more than $425,000 only if it did not prevail in the
instant suit. As USA Container succeeded on
summary judgment, it is entitled to collect the full
amount of its settlement with Meelunie, so
long as the settlement was reasonable under Grig
gs.
—

Turning to whether the $732,000 settlement was
reasonable, USA Container has
submitted documentation that Meelunie has suffe
red damages in the amount of $782,723.77,
including a reduction based on Meelunie’s mitig
ation efforts. (See Veelo Aff., ECF No. 114-18

4

¶J

17-18.)’ In its Opposition, Travelers does not point to a sing
le piece of evidence to suggest

that the Settlement Agreement of $732,000 was unreason
able or was entered into in bad faith,
and relies solely on its argument that it is only obligated
to pay $425,000. As such, Travelers has
not shown that the settlement was unreasonable under Grig
gs. See Burlington Ins. Co. v.
Northland Ins. Co., 766 F. Supp. 2d 515, 530 (D.N.J. 2011
) (finding a defendant liable for the
full settlement amount when it failed to meet its “hea
vy burden to prove by a preponderance of
the evidence that the settlement is ‘unreasonable’ and
the product of ‘bad faith and collusion.”).
Accordingly, this Court will award USA Container the
full settlement amount of
$732,000.
B. Prejudgment Interest

As a preliminary matter, this Court must determine whether
USA Container is entitled to
prejudgment interest. See Litton Indus., Inc. v. IMO Indu
s., Inc., 982 A.2d 420, 430 (N.J. 2009)
(“[Tjhe award of prejudgment interest in a contract case
is within the sound discretion of the trial
court.”). The Superior Court of New Jersey, Appellat
e Division has stated that “[w]here a
coverage dispute involves the applicability of an exclu
sion, rather than the amount of a claim, the
equities favor the claimant in the award of prejudgm
ent interest.” Benevenga v. Digregorio, 737
A.2d 696, 700 (N.J. Super. Ct. App. Div. 1999);
also Elimex Const. Co., Inc. v. Republic Ins.
Co., 494 A.2d 339, 349 (N.J. Super. Ct. App. Div. 1985
) (stating that prejudgment interest is
appropriate “where the question interfering with disp
osition of the claim is not the inability of
the parties to agree upon the value of the claim but
is rather an argument as to coverage”).
l

Travelers contends that USA Container must submit
a report from an expert in the settlement of claims in order
to
sustain its burden, citing to Kelly v. Berlin, 692 A.2d
552 (N.J. Super. Ct. App. Div. 1997). In fly, the
plaintiff,
who was injured in an automobile accident, brought
a malpractice suit against his doctor, arguing that
the doctor’s
failure to timely diagnose a spinal injury that the plainti
ff sustained in the accident reduced the value of
the
settlement the plaintiff received as a result of the accide
nt. Id. at 555. The court found that expert testimo
ny was
required “to determine the fair settlement value
of plaintiffs motor vehicle accident claim had plainti
ff been aware
of [his spinal injury].” Id. at 558. As such, the facts
in çfly are distinguishable from those in the present
case.

5

Accordingly, because USA Container’s dispute with
Travelers pertained to coverage, this Court
will allow an award of prejudgment interest.
i) The Amount Upon Which to Calculate Preju
dgment Interest

Travelers contends that USA Container should only
be entitled to prejudgment interest on
$425,000, the amount that USA Container has paid to Mee
lunie thus far. For the reasons
discussed above, the Court rejects this argument. Trav
elers also points to the fact that in March
2009, it offered to contribute $100,000 towards any
settlement that USA Container negotiated
with Meeluniek, subject to its right to seek reimburs
ement in a subsequent declaratory judgment
action, and argues that $100,000 should therefore be
subtracted from the amount upon which
prejudgment interest is calculated. The Court rejec
ts this argument, as Travelers has failed to
point to any authority to support the notion that it is
entitled to this deduction.
ii) The Date from Which to Calculate Prejudgm
ent Interest

USA Container asserts that prejudgment interest
should be calculated from June 12, 2008
the date that it asserts Travelers completed its inve
stigation of USA Container’s claim.
Travelers, however, contends that prejudgment inter
est should be calculated from the various
dates that USA Container made its payments unde
r the Settlement Agreement to Meelunie. “The
purpose of awarding prejudgment interest is to com
pensate the claimant for the loss of income
the money owed would have earned if payment had
not been delayed.” Unihealth v. U.S.
Healthcare, Inc., 14 F. Supp. 2d 623, 642 (D.N.J.
1998). Applying this principle, a trial court
may determine the appropriate date from which inter
est is to run. Id. at 642-43.
—

Here, this Court rejects Travelers argument that
prejudgment interest should be calculated
from the various dates that USA Container mad
e its Settlement Agreement payments to
Meelunie. Travelers asserts that such an approach
is equitable because USA Container “had the

6

use of the settlement monies ($425,000) up until the
time of the actual payment of the
settlement.” (Tr. ‘s Opp’n at 13.) This argument misc
onstrues the law, as the pertinent inquiry
under Unihealth is when USA Container would have
received the funds from Travelers had
Travelers not denied USA Container payment for its
claim. However, this Court also rejects
USA Container’s contention that prejudgment inter
est should be calculated from June 12, 2008.
Although USA Container asserts that Travelers’ factu
al investigation was completed on that
date, it does not necessarily follow that Travelers’
legal investigation was completed on that
date. Because Travelers denied USA Container cove
rage on December 19, 2008, the Court finds
this to be an appropriate date from which to calculate
prejudgment interest, as this is when USA
Container would have received its funds from Trav
elers had Travelers not improperly denied
coverage. See ElImex, 494 A.2d at 349 (“Plaintiff urge
s we should fix [the prejudgment interest]
date as of the time the claim was denied.
[W]e will adopt plaintiffs suggestion.”); Polito v.
Cont’l Cas. Co., 689 F.2d 457, 461 (3d Cir. 1982
) (“New Jersey courts.. have long followed
the doctrine that an insurance company defendant is
liable for interest on a claim from the date
on which payment was due under the policy.”).
.

.

.

.

Accordingly, this Court will calculate prejudgment
interest from December 19, 2008.
iii) The Appropriate Prejudgment Interest Rate

In contract cases, “the rate at which prejudgment
interest is calculated is within the
discretion of the court.” Litton, 982 A.2d at 430.
The Third Circuit has stated that N.J. Ct. R.
4:42-11, the statute used to calculate postjudgmen
t interest in tort actions, is an “appropriate
benchmark” in determining the rate for prejudgm
ent interest in contract cases. Gleason v.
Norwest Mortgage, Inc., 253 F. App’x 198, 204
(3d Cir. 2007). Neither party disputes the use of
this statute to determine the prejudgment inter
est rate. However, the parties argue over which

7

subsection of the statute is applicable.
Under R. 4:42-1 l(a)(ii):
[Tjhe annual rate of interest shall equal the average
rate of return, to the nearest
whole or one-half percent, for the corresponding prec
eding fiscal year terminating
on June 30, of the State of New Jersey Cash Managem
ent Fund (State accounts) as
reported by the Division of Investment in the Depa
rtment of the Treasury.
Under R. 4:42-1 1(a)(iii), “for judgments exceeding
the monetary limit of the Special Civil Part,”
prejudgment interest shall be calculated “at the rate
provided in subparagraph (a)(ii) plus 2% per
annum.” However, “because in contract actions, preju
dgment interest is assessed on a
discretionary basis as the result of the application of
equitable principles.
the strictures of R
4:42—11 apply by their literal terms only to tort actio
ns.” DialAmerica Mktg., Inc. v. KeySpan
Energy Corp., 865 A.2d 728, 732 (N.J. Super. Ct.
App. Div. 2005). With respect to whether the
2% addition discussed in subsection (a)(iii) should be
applied in contract cases, the Superior
Court of New Jersey, Appellate Division has state
d:
.

.

.

We
find, in the absence of the “unusual circumstances
”
that subsection
(a)(ii) provides an appropriate starting point in deter
mining the rate of prejudgment
interest [in contract casesj, but we do not in
any sense foreclose the use of
subsection (a)(iii) in connection with a rule-base
d calculation of prejudgment
interest, should the equities demand it.
.

.

.

.

.

.

Id. at 734. Here, USA Container argues that it is entit
led to the 2% addition because Travelers’
SEC filings show that during the applicable time
period, “Travelers beat the Fund’s return even
when augmented by the additional 2% set forth
in R. 4:42-1 1(a)(iii).” (USA Mot. at 18.)
However, “[t]he purpose of awarding prejudgm
ent interest is to compensate the claimant for the
loss of income the money owed would have earn
ed if payment had not been delayed.” Unihealth,
14 F. Supp. 2d at 642 (emphasis added). Thus,
the amount earned by Travelers is not pertinent
under this inquiry. Because USA Container has faile
d to otherwise show how “unusual
circumstances” are present in this case, this Cou
rt will not apply the enhanced rate set forth in R.
8

4:42—i i(a)(iii).
New Jersey Cash Management Fund’s reported earn
ings for years 2008, 2009, 2010,
2011, 2012, 2013 and 2014 are as follows:
2008: 5.5%
2009: 4.0%
2010: 1.5%
2011: 0.5%
2012: 0.5%
2013: 0.25%

2014: 0.25%
(ECF No. 114-14.)
Accordingly, this Court will calculate prejudgm
ent interest using these rates.
iv) Prejudgment Interest Calculation

Interest is calculated as follows, using simple inter
est. See W.R. Huff Asset Mgmt. Co.,
L.L.C. v. William Soroka 1989 Trust, No. 04-3
093, 2009 WL 2436692, at *10 (D.N.J. Aug. 6,
2009) (“The most equitable interest rate is simple
interest.”). For the year of 2008, the interest
rate is 5.5% per annum. 5.5% of $732,000 is $40,
260. That amount divided by 366 days per
2
year, equals the amount of interest per diem,
$110. The per diem amount is totaled by 13, the
number of days of interest accrued in 2008, for
a total sum in 2008 of $1,430. For the year 2009,
since interest accrued for the entire year, the inter
est rate of 4.0% per annum yields $29,280. For
the year 2010, the interest rate of 1.5% per annu
m yields $10,980. For 2011 and 2012, the
interest rate of 0.5% per annum yields $3,660
for each year, or a total of $7,320 for both year
s.
For 2013, the interest rate of 0.25% per annum
yields $1,830. For the year 2014, the interest rate
is 0.25% per annum. 0.25% of $732,000 is $1,8
30. That amount divided by 365 days per year,
equals the amount of interest per diem, $5.0
1. The per diem amount is totaled by 202, the

2

2008 was a Leap Year and thus lasted 366 days.

9

number of days of interest accrued in 2014, for a total
sum in 2014 of $1,012.77.
Accordingly, based on the above calculations, the amo
unt of prejudgment interest
awarded to USA Container is $51,852.77.
C. Attorney’s Fees
i. Whether Fees Should be Awarded

USA Container seeks attorney’s fees in the amount
of $256,512.95. Pursuant to N.J. Ct.
R. 4:429(a)(6), attorney’s fees may be allowed “{i]n
an action upon a liability or indemnity
policy of insurance, in favor of a successful claimant.”
This Rule “was promulgated both to
discourage groundless disclaimers and to provide more
equitably to an insured the benefits of the
insurance contract without the necessity of obtaining
a judicial determination that the insured, in
fact, is entitled to such protection.” Guarantee Ins.
Co. v. Saltman, 526 A.2d 731, 734 (N.J.
Super. Ct. App. Div. 1987). An award of fees is not man
datory, and the trial court “has broad
discretion as to when, where, and under what circu
mstances counsel fees may be proper and the
amount to be awarded.” Passaic Valley Sewerage Com
m’rs v. St. Paul Fire & Marine Ins. Co., 21
A.3d 1151, 1164 (N.J. 2011). Factors for a court to
consider include:
(1) the insurer’s good faith in refusing to pay the
demands, (2) excessiveness of
plaintiffs demands, (3) bona fides of one or both
of the parties, (4) the insurer’s
justification in litigating the issue; (5) the insu
red’s conduct in contributing
substantially to the necessity for the litigation on
the policies, (6) the general
conduct of the parties, and (7) the totality of the circu
mstances.
Enright v. Lubow, 521 A.2d 1300, 1304 (N.J. Supe
r. Ct. App. Div. 1987) (internal citations
omitted). “There is substantial overlap among the
factors, and the list is not an exhaustive one.”
Mega Const. Corp. v. QuincyMut. Fire Ins. Co.,
No. 09-01728, 2012 WL 3994473, at *10 (E.D.
Pa. Sept. 12, 2012) (applying New Jersey law).
Here, Travelers argues that the policy rationale supp
orting attorney’s fees is inapplicable
to this case because its disclaimer of coverage was
not groundless. However, while bad faith on
10

the part of the insurer is a factor, it is not a requirem
ent. See IFA Ins. Co. v. Millburn Surgical
Ctr., No. A-5352-09T4, 2011 WL 1376677, at *2
(N.J. Super. Ct. App. Div. Apr. 13, 2011)
(“Ordinarily, [a] successful insured is presumptively
entitled to attorney’s fees and need not

establish that the insurer acted in bad faith or arbit
rarily in declining a claim.” (internal
quotations and citation omitted)); Sears Mortgage
Corp. v. Rose, 634 A.2d 74, 88 (N.J. 1993)
(“Although [the insurer] may not have been acting
in bad faith when it refused to honor [the
insured’s] demands, to deny [the insured] their coun
sel fees would be to deny them the benefits
of the insurance contract that they achieved as succ
essful litigants.”). Based on the totality of the
circumstances, this Court finds that it is just to awar
d USA Container attorney’s fees. As this
lawsuit was commenced by Travelers, factor five weig
hs in USA Container’s favor. Further, as
discussed below and pertinent to factor two, USA Con
tainer’s demands are not unreasonable.
Finally, relevant to factors three and six, there has
been no bad faith on the part of USA
Container throughout this ligation. While there also
has been no bad faith on the part of
Travelers, this Court nonetheless finds that “it is simp
ly unfair to burden [USA Container] with
attorney fees in order to receive moneys to which.
[it] was entitled to in the first place.” IFA
Ins. Co., 2011 WL 1376677, at *2.
.

.

Accordingly, this Court will award USA Containe
r attorney’s fees.
ii. The Reasonableness of the Fees
N.J. Ct. R. 4-42:9(b) provides that “all applicati
ons for the allowance of fees shall be
supported by an affidavit of services addressing
the factors enumerated by RPC 1.5(a).” The
factors under RPC 1.5(a) include:

(1) the time and labor required, the novelty and
difficulty of the questions involved,
and the skill requisite to perform the legal servi
ce properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular
employment will preclude other employment by
the lawyer;
11

(3) the fee customarily charged in the locality for simi
lar 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 relations
hip with the client;
(7) the experience, reputation, and ability of the lawy
er or lawyers performing the
services;
(8) whether the fee is fixed or contingent.
N.J.R.P.C. l.5(a)(I)-(8). Travelers asserts that the
declaration of USA Container’s counsel,
Kenneth L. Moskowitz, Esq., in support of its appl
ication for attorney’s fees is deficient because
it does not address factors three and six of R.P.C.
1.5(a). However, “at least one New Jersey
court has explained that ‘an award of counsel fees
may be affirmed even if the affidavit of
services is deficient.” Fed. Home Loan Mortgag
e Corp. v. Scottsdale Ins. Co., 316 F.3d 431,
449 (3d Cir. 2003) (quoting Elizabeth Bd. of Educ
. v. New Jersey Transit Corp., 776 A.2d 821,
827 (N.J. Super. Ct. App. Div. 2001)). Here, altho
ugh USA Container has not filly complied
with R.P.C. 1.5(a), this Court nonetheless finds that
its request for attorney’s fees is reasonable.
“The starting point in determining a reasonable hour
ly rate is the attorneys’ usual billing
rate..
Pub. Interest Research Grp. of New Jersey, Inc. v.
Windall, 51 F.3d 1179, 1185 (3d
Cir. 1995). Here, although Moskowitz and his partn
er Steven R. Rowland, who have each been
practicing law for over twenty years, normally bill
at a rate of $425 per hour, their rates in the
present case were $365 per hour. (ECF No. 1143 ¶ Ii.) Additionally, an associate working on
the case had a billing rate of $285 per hour, and
an of counsel attorney had a billing rate of $305
per hour. (Id. ¶ 12.) As similar rates have been appr
oved in this District, this Court finds no
reason to reject the rates set forth by USA Con
tainer.
g, 2000 Clements Bridge, LLC v.
OfficeMax N. Am., Inc., No. 11-0057, 2013 WL
3821461, at *8 (D.N.J. July 23, 2013)
(approving the rate of $405 per hour for partn
ers in a commercial litigation case); illinois Nat.
Ins. Co. v. Wyndham Worldwide Operation Inc.,
s,
No. 09-1724, 2011 WL 2293334, at *2
.

.“

12

(D.N.J. June 7, 2011) (approving rates of $45 Q—
$540 for partners and $210—$360 for associates

in an insurance coverage case); Baughrnan v. U.S.
Liab. Ins. Co., 723 F. Supp. 2d 741, 748
(D.N.J. 2010) (finding $325 to be a reasonable rate
for an attorney with over twenty years of
experience in an insurance coverage case).
Concerning whether the number of hours worked
by USA Container’s counsel was
reasonable, Travelers has not made any specific obje
ctions to the time entries submitted by USA
Container. As such, this Court will not reduce the
amount of hours for which USA Container
seeks compensation. See Bell v. United Princeton
Props., Inc., 884 F.2d 713, 720 (3d Cir. 1989)
(stating that an “adverse party’s submissions cann
ot merely allege in general terms that the time
spent was excessive”).
Accordingly, this Court awards USA Container attor
ney’s fees in the amount of
$256,512.95.
iii. Prejudgment Interest
USA Container also seeks prejudgment interest
on its attorney’s fees in the amount of
$16,336.87. The Supreme Court of New Jerse
y has stated that “[ajbsent a controlling contractu
al
provision, permitting prejudgment interest on
attorneys’ fees would be contrary to our strong
public policy disfavoring shifting of attorneys’
fees.” N. Bergen Rex Transp., Inc. v. Trailer
Leasing Co., a Div. of Keller Sys., Inc., 730
A.2d 843, 852 (N.J. 1999); see also Dickman
Bus.
Brokers v. Tomasulo, No. A-4535-09T2, 2011
WL 2348480, at *6 (N.J. Super. Ct. App. Div.
June 9, 2011) (finding that prejudgment inter
est should not be awarded on attorney’s fees when
the contract between the parties did not provide
for it). Accordingly, because USA Container has
not pointed to such a contractual provision, this
Court will not allow prejudgment interest on
USA Container’s attorney’s fees.

13

IV.

CONCLUSION

For the foregoing reasons, USA Container’s Mot
ion for Final Judgment is granted in
part and denied in part. An appropriate orde
r follows this Opinion.

Jose L. Linares, U.S.D.J.
Date:
Original:
cc:

July_,2014
Clerk’s Office
Hon. Joseph A. Dickson, U.S.M.J.
All Counsel of Record
File

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