NEW JERSEY MANUFACTURERS INSURANCE COMPANY VS. AUTOTECH COLLISION SERVICE (L-0850-14, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4531-14T4

NEW JERSEY MANUFACTURERS
INSURANCE COMPANY,

Plaintiff-Respondent,

v.

AUTOTECH COLLISION
SERVICE,

Defendant-Appellant/
Third-Party Plaintiff,

v.

MICHAEL CRINCOLI,

Third-Party Defendant.

________________________________________

Argued November 10, 2016 – Decided May 9, 2017

Before Judges Lihotz, Hoffman and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
L-0850-14.

John W. Trimble, Jr., argued the cause for
appellant (Trimble & Armano, attorneys; Mr.
Trimble and Katrina M. Geary, on the brief).
 Robert M. Kaplan argued the cause for
respondent (Margolis Edelstein, attorneys;
Mr. Kaplan, on the brief).

PER CURIAM

Defendant-third party plaintiff Autotech Collision Service

(defendant) appeals from an April 30, 2015 order determining it

was entitled to only $1276.79 of the $26,567.60 it sought for

services it allegedly provided to third-party defendant, Michael

Crincoli. Defendant also appeals from the provision in the

order that denied it counsel fees. We affirm.

I

On May 5, 2014, Crincoli struck a deer and damaged his 2008

Jeep Liberty (Jeep). He reported the accident to his automobile

insurance company, New Jersey Manufacturers Insurance Company

(NJM), the same day. The following day, Crincoli took the Jeep

to defendant, an auto body repair facility, and signed a form

entitled "Authorization to Repair."

In pertinent part, this form stated: (1) defendant had the

authority to dismantle the vehicle "as needed to prepare a

comprehensive written estimate/blueprint for repair and to

proceed with repairs"; (2) the cost of the estimate was fifty

dollars, plus three percent of the estimated amount; (3) the

failure to take possession of the vehicle more than three days

after being notified the repairs were completed or terminated
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might result in storage fees; and (4) storage fees may be

charged if repairs are halted or terminated before the vehicle

was repaired.

Although this form stated Crincoli waived his right to a

"detailed" written estimate, the form did not state he waived

any other rights. Significantly, this form did not, as required

by N.J.A.C. 13:21-21.14, provide any notice of what defendant

charged for storage.

On May 7, 2014, an appraiser from NJM inspected the Jeep

and advised defendant he would prepare an estimate. At that

time, only the front bumper grill and left headlight had been

removed. Thereafter, defendant disassembled the vehicle and, on

May 8, 2014, generated a "preliminary estimate" stating the cost

to repair the Jeep would be $11,726.55. Defendant claimed it

needed to disassemble the vehicle to fully access and evaluate

the damages and to render an accurate estimate. Defendant

submitted its estimate to NJM on May 8, 2014.

In the meantime, NJM's appraiser prepared his own estimate,

concluding the cost to repair the Jeep would be $10,493.33.

Because the fair market value of the vehicle was only $11,900,

the appraiser determined the damage to the vehicle caused a

"total loss." NJM advised defendant it would not pay for

repairing the vehicle. Importantly, the appraiser testified
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there was no need to disassemble the vehicle to provide an

estimate and, if it had not been disassembled, the vehicle could

have been stored outside. The trial court found the appraiser's

testimony credible.

On May 9, 2014, NJM informed Crincoli the car could not be

repaired, and the two eventually agreed upon the amount NJM

would pay Crincoli for the salvage value of his Jeep. On May

14, 2014, Crincoli went to defendant's premises to remove his

personal belongings from the vehicle and sign forms to enable

NJM to take title to the car. While there, Crincoli signed an

"Authorization for Release of Vehicle" form, a "Selection of

Storage Option" letter from defendant to Crincoli, and a

"Client's Termination of Repair" form. The "Authorization of

Release" form stated Crincoli was the legal owner of the Jeep,

but granted permission to defendant to release the vehicle to

his insurance company.

Although the only service defendant performed for Crincoli

was to provide an estimate and there is no evidence defendant

commenced any repair work on the Jeep, defendant gave Crincoli a

letter, entitled "Selection of Storage Option." This letter

suggested defendant had done some repair work on the Jeep and

addressed storage fees. The letter stated in relevant part:

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[T]he repairs on the . . . vehicle have been
halted due to circumstances beyond our
control. As a result, your vehicle has been
removed from normal production until all
outstanding issues have been resolved so
that we may provide services to our other
customers.

Currently, we are awaiting further
authorization from the insurer and/or
direction from the customer for the
resolution of remaining/outstanding issues
regarding the pending repair. . . .

The vehicle . . . has been stored on our
premises . . . since 5/6/14, and will
continue to be until such time as all
outstanding charges are paid in full and the
vehicle is either removed from our facility
or arrangements are made that will enable
pending repairs to continue.

During the storage of this vehicle, our
facility will be charging storage fees on a
daily basis. In the event of termination of
repairs, storage charges will accrue from
the date the vehicle arrived on our premises
through the date it leaves our premises.
. . .

Please accept this letter as a Notice of
Claim Lien pursuant to New Jersey Statute
N.J.S.A. 2A:44-21. . . .

At this time, we are requesting direction on
the manner in which the vehicle will be
stored until repairs are either re-
instituted or whereas the repairs are
terminated, all charges are paid in full,
the authorization to release the vehicle is
signed by the customer of record and the
vehicle is removed from our facility.

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 The letter further stated it was providing the customer the

option of choosing between storing the vehicle inside for $100

per day or outside for $50 per day. The form provided that if

the customer did not make a selection in writing, defendant

would place the vehicle outside. Crincoli signed the letter;

above his signature are pre-printed words, which state: "I have

read and fully understand the proceeding and I hereby choose

[the option for inside storage]. Crincoli chose this storage

option because defendant removed the windows and one door on the

Jeep to complete its estimate, and Crincoli was concerned the

vehicle would sustain further damage if left outside. Crincoli

assumed NJM was going to remove the Jeep within a matter of

days.

The "Client's Termination of Repair" form stated the

"repair contract" previously signed and executed on May 6, 2014,

was terminated. It is not disputed the "repair contract" is the

"Authorization to Repair." The "Client's Termination of Repair"

form further stated:

I understand fully that [defendant] had been
previously authorized to proceed with
repairs and have conducted limited
activities in strict compliance with that
request and authorization.

Furthermore, I understand that the charges
owed for these completed activities are now
fully due and payable. . . .
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 I hereby accept this as a notice of existing
mechanics/garage keeper's lien . . . .

I hereby terminate the contract of repair
and ask that final billing be prepared at
you're [sic] earliest for review and
payment. . . .

Note to Customer: Our facility is not
designed nor operated as a storage facility,
and we request that arrangements be made for
the vehicle to be removed as quickly as
possible to avoid additional charges. We
request that the insurer and the consumer
come forward immediately and pay these
charges to mitigate any future losses for
storage and interest. . . .

Note: Vehicle will not be released until
all billings are paid in full.

Defendant issued an invoice for $3099.57 for the conducting

the estimate. On May 16, 2014, NJM forwarded a letter to

defendant protesting the charge as unreasonable. NJM sought to

retrieve the Jeep from defendant, but defendant refused to

relinquish it until its bill was paid. On May 22, 2014, NJM

offered to settle the bill for $1040, but defendant rejected the

offer. In June 2014, NJM filed a complaint against defendant

for wrongful detention of the Jeep.

In August 2014, defendant filed a third party complaint

against Crincoli, alleging, among other things, he breached the

Authorization to Repair by failing to pay the fee charged to do

the estimate and to pay for storage of the Jeep at the rate of
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$100 per day, commencing May 6, 2014. Defendant also asserted

it was entitled to a lien against the Jeep under the Garage

Keeper's Lien Act (Act), N.J.S.A. 2A:44-20 to -31, and thus was

lawfully detaining the Jeep.

Plaintiff forwarded a check for $1950 to defendant's

attorney for deposit into his trust account, and the Jeep was

released to NJM. After a summary hearing, the court denied as

moot plaintiff's complaint. The court also denied all but

$1276.79 of the $26,567.60 defendant sought in its third party

complaint. By the time of the hearing, storage fees had climbed

to $22,550. Further, the court denied defendant counsel fees.

The specific fees to which the trial court found defendant

entitled were (1) $401.79 to prepare the estimate, (2) $75 to

dispose of hazardous waste, and (3) $800 in storage fees,

representing the cost to store the Jeep from May 6, 2014 to May

22, 2014, at the rate of $50 per day. Added together, these

fees are $1276.79.

After applying the formula provided in the Authorization of

Repair, the trial court calculated defendant was entitled to

only $401.79 for preparing the estimate. Although defendant

charged more than the latter sum, the court found that, in

accordance with N.J.A.C. 13:21-21.10(h), defendant's fee was

limited to what defendant represented it would charge in the
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Authorization to Repair.1 Because the Authorization to Repair

stated the cost of the estimate would be "$50.00 plus 3% of the

total estimated amount," the court held defendant could not

recover more than $401.79 for preparing the estimate.2

The trial court permitted the hazardous waste fee, finding

it was authorized pursuant to N.J.A.C. 13:21-21.10(i). However,

the court disallowed other incidental fees, because the amount

or the method to ascertain such fees was not properly disclosed

in the Authorization to Repair in accordance with N.J.A.C.

13:21-21.10(h), or authorized by other regulations.3

The trial court held defendant was entitled to only $800 of

the $22,550 it sought for storage fees, because defendant was

not required to retain the Jeep after May 22, 2014, in order to

protect its claims. The court also determined defendant had a

duty to mitigate its damages and, thus, was obligated to turn

over the Jeep to NJM when NJM first sought possession of the

1 N.J.A.C. 13:21-21.10(h) provides "[a]n auto body repair
facility may charge a reasonable fee for making a written
estimate. If a fee is charged for making a written estimate,
then the auto body repair facility must disclose, in writing,
the amount of the fee to the customer before the written
estimate is prepared."

2 Three percent of $11,726.55, defendant's estimate to repair
the Jeep, plus $50 is $401.79.

3 These other incidental fees were for code scanning, legal
review, administrative work, and yard work.
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vehicle. Finally, the court found no basis to award defendant

counsel fees.

II

Defendant's principal contentions on appeal are:

(1) the court improperly relied upon N.J.A.C 13:21-21.10(h)

to disallow all but $401.79 for its fee to prepare the estimate,

as N.J.A.C 13:21-21.11 and N.J.A.C. 13:45A-26C.2(a)(3)(i)(4)

authorize defendant to charge a greater fee to prepare the

estimate;

(2) Crincoli waived his right to a detailed written

estimate;

(3) the Authorization to Repair permitted defendant to

dismantle the car to prepare an estimate;

(4) N.J.A.C 13:21-21.11 permitted defendant to charge

administrative and yard fees;

(5) defendant was entitled to storage charges pursuant to

the contracts between defendant and Crincoli, as well as

pursuant to N.J.A.C. 13:21-21.14 and the Act;

(6) the trial court improperly denied counsel fees.

We reject these contentions.

"[F]actual findings of a trial court are reviewed with

substantial deference on appeal" and are not to be overturned as

long as "they are supported by 'adequate, substantial and
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credible evidence.'" Manahawkin Convalescent v. O'Neill, 217

N.J. 99, 115 (2014) (quoting Pheasant Bridge Corp. v. Twp. of

Warren, 169 N.J. 282, 293 (2001)). However, "[a] trial court's

interpretation of the law" and any "legal consequences []

flow[ing] from established facts" are not afforded "any special

deference[,]" and are reviewed de novo. Manalapan Realty, L.P.

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Of the six points enumerated above, all but the fifth are

without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

We turn to defendant's claim for storage fees subsequent to

May 22, 2014. First, defendant argues N.J.A.C. 13:21-21.14

enabled it to charge storage fees. However, this regulation

sets forth the very reason why defendant is not entitled to such

fees. N.J.A.C. 13:21-21.14 provides:

Every auto body repair facility that charges
a fee to store a motor vehicle on its
premises shall disclose in writing, as soon
as practicable, the amount of such storage
charge to the customer on a per diem basis.
Written notice of such storage charges shall
be included in the repair authorization.

[Ibid. (emphasis added).]

While the regulation states storage fees are permitted, the

right to charge such fees is conditioned upon the fees appearing

in the repair authorization. As even defendant's attorney
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conceded during oral argument, the storage fees defendant

charged were not included in the Authorization to Repair.

Defendant contends the "contracts" between it and Crincoli

authorized it to charge storage fees. As for the Authorization

to Repair, this document states storage fees may be charged if

the customer fails to take possession of his or her vehicle more

than three days after being notified repairs have been completed

or terminated. This document also states storage fees may be

charged if repairs are halted or terminated before the repairs

are completed.

Here, both Crincoli and NJM sought to take possession of

the Jeep when it was deemed to be a total loss, but defendant

refused to release the vehicle. More important, defendant did

not commence any repair work on the Jeep and, thus, there were

no repairs that were completed, halted, or terminated before the

repairs were finished. Thus, under the terms of the contract,

there was no act to trigger the assessment of storage fees.

Further, we reject defendant's premise the preparation of the

estimate is part of the repair process. The two acts are

separate and distinct. In fact, it is the estimate that

provides a customer with a basis to decide if he or she wants to

go forward and authorize the repairs that are the subject of the

estimate.
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 Although the Authorization to Repair states Crincoli waived

his right to a "detailed" written estimate, the form did not

provide he waived any other rights. Moreover, waiving a

detailed written estimate is quite different from waiving the

right to be advised in a repair authorization of the storage

fees an auto body repair facility charges, as required by

N.J.A.C. 13:21-21.14.

The "Selection of Storage Option" form is a notice from

defendant to Crincoli. Among other things, the notice states

(erroneously) repairs have been halted, the vehicle has been and

will be stored until all charges have been paid in full,

Crincoli will be charged for the storage of the Jeep, and the

document is a notice of claim under the Garage Keeper's Lien

Act.

This document further provides that unless he wants the

vehicle to be stored outside, Crincoli had to request the Jeep

be stored inside. Crincoli signed this document, but his

signature merely acknowledged he read and understood the

document, and that he chose the option of having the Jeep stored

inside. As the trial judge noted in his written comments,

Autotech's position completely ignores "the realities of the

underlying transaction," which impacts the result. At this

time, defendant was informed the vehicle was a total loss, would
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not be repaired, NJM would take possession of the car, and

Crincoli executed a release of the vehicle to his insurer. The

document inaccurately stated storage was required because

repairs were interrupted because "defendant was awaiting further

instructions." The judge found in fact, defendant unnecessarily

dismantled the vehicle, including removing the windows and a

door, thus creating the need for inside storage by its

unwarranted conduct. We defer to these findings, in part

resting on credibility of the witnesses.

Finally, as previously stated, a body shop repair facility

may not charge for storage unless written notice of its storage

charges are included in a repair authorization. See N.J.A.C.

13:21-21.14. This requirement is not insignificant. We note

the subchapter of the regulations in which N.J.A.C. 13:21-21.14

appears begins with the following statement of purpose:

(a) N.J.S.A. 39:13-1 et seq. provides for
the licensure and regulation of auto body
repair facilities by the Chief Administrator
of the Motor Vehicle Commission. The
purposes of this subchapter are to:

1. Establish a system for the licensure
of auto body repair facilities; and

2. Establish standards and procedures
necessary to protect the public from
dishonest, deceptive, and fraudulent
practices in the repair of motor
vehicles damaged by collision and to
eliminate or exclude from licensing
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 those persons who engage in such
practices or who otherwise demonstrate
unfitness.

[N.J.A.C. 13:21-21.1.]

The "Client's Termination of Repair" form states Crincoli

understood storage charges would accrue until the vehicle was

removed from defendant's premises, and the vehicle would not be

released until all charges were paid. This document also states

it is a "notice" of a garage keeper's lien.

However, after wrongfully creating the circumstances

necessitating indoor storage, defendant refused to release the

vehicle, artificially increasing the storage charges. The trial

judge determined defendant was not entitled to much of the

claimed amount due. Moreover, the judge reasoned defendant did

not have to retain the vehicle to protect its claim. Therefore

its failure to release the vehicle until defendant received full

payment of this inflated amount inappropriately resulted in

excessive storage fees. Further, defendant's conduct failed to

mitigate damages.

Defendant asserts he was entitled to storage fees under the

Act. To be sure, "[i]ncluded among the services that can

furnish the basis for a garage keeper's lien are 'storing' or

'keeping' a motor vehicle." GE Capital Auto Lease v. Violante,

180 N.J. 24, 29 (2004); see also N.J.S.A. 2A:44-21. However,
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the Act only applies to charges resulting from work performed or

a service provided "at the request or with the consent of the

owner" of the vehicle. N.J.S.A. 2A:44-21; GE Capital Auto

Lease, supra, 180 N.J. 33. "[A] lien [for storage] only arises

after the owner or the owner's representative has requested or

consented to the vehicle's storage." GE Capital Auto Lease,

supra, 180 N.J. at 38.

Here, defendant did not obtain Crincoli's consent to store

the Jeep in accordance with the applicable regulations.

Therefore, the Act is unavailing to defendant.

Affirmed.

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