NOT FOR PUBLICATION WITHOUT THE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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