Furey v. County of Ocean

In Furey v. County of Ocean, 287 N.J. Super. 42, 46, 670 A.2d 120 (App.Div.), certif. denied, 144 N.J. 379, 676 A.2d 1094 (1996), the Court addressed the availability of attorneys' fees to plaintiffs who enter into contingency fee agreements with their counsel and are successful under the Tort Claims Act. The Court held that "the existence of a contingency fee retainer should not prevent the exercise of statutory discretion by the judge in assessing a reasonable award of fees pursuant to N.J.S.A. 59:9-5." Ibid.; In addressing the availability of counsel fees in Furey, the Court noted that allowing fees in that particular case would permit "the decedent's widow and daughter to more fully recover their economic loss caused by the death, as the award would relieve them of all or part of the contingent fee they are subject to on the recovery of their loss." Furey, supra, 287 N.J. Super. at 45, 670 A.2d 120. In remanding for a determination of counsel fees in Furey, the Court identified a number of considerations that should guide a trial judge in exercising the discretionary grant of fees in contingency cases litigated under the Tort Claims Act. The trial judge is to consider "'the underlying policy as to damages' of the Tort Claims Act, recognizing that it is to fully reimburse the economic loss of the claimant." Id. at 46, 670 A.2d 120. Additionally, the trial judge should remain cognizant of the fact that any costs imposed on a government entity are "ultimately borne by the public." Ibid. Thus, "the judge has the task in exercising discretion of fulfilling the statutory purpose in awarding reasonable attorney's fees which are sufficient to compensate the attorney for the work performed, while seeking neither to encourage nor discourage attorneys from undertaking meritorious causes of action against the governmental entity or its employees." Ibid. Of critical importance, the trial judge must engage in a balancing test, considering the public interest in vindicating plaintiffs' injuries in conjunction with the "limited public funds . . . available for such purposes." Ibid.