NEW JERSEY LAWYER

DAILY BRIEFING     11/10/2005
                                                                
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Today's Decision Summaries

FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, NOVEMBER 9, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, NOVEMBER 9, 2005.

THE SUPREME COURT has announced that it will release an opinion in STATE v. BADESSA, A-94, on November 10, 2005. The issue on appeal in Badessa addresses whether evidence of a defendant’s refusal to submit to a Breathalyzer test is admissible under the attenuation doctrine, even if the initial motor vehicle stop was invalid.



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APPROVED FOR PUBLICATION
INSURANCE
UNITED STATES LIABILITY INSURANCE GROUP v. SECURITY INSURANCE CO. OF HARTFORD
Appellate Division, A-2113-04T2, approved for publication November 9, 2005. (10 pages). Facts-on-Call Order No. 92721.

An employer is not covered under the employer’s liability portion of a workers’ compensation and employer’s liability policy for a claim of emotional distress without physical manifestations based on an underlying complaint by a terminated employee seeking recovery under the Conscientious Employee Protection Act.

INSURANCE
FEDERAL INSURANCE CO. v. CAMPBELL SOUP CO.
Appellate Division, A-6812-03T2, approved for publication November 9, 2005. (12 pages). Facts-on-Call Order No. 92722.

An insurance policy that provides indemnification and defense for claims arising out of the sale and purchase of securities does not provide coverage for a “securities” transaction between a parent company and its wholly owned subsidiary when the subsidiary sues the parent company after a tax-free and cost-free spin-off that makes the subsidiary a separate entity owned by the shareholders of the parent company. A complaint by the separate entity alleging the sale of securities from the parent company to it when it was a wholly owned subsidiary does not require a defense under such an insurance policy.

HUSBAND AND WIFE
ROBERTSON v. ROBERTSON
Appellate Division, A-2282-03T2, approved for publication November 9, 2005. (15 pages). Facts-on-Call Order No. 92723.

In a case that is the reverse of Pascale v. Pascale, stock options that were granted to the husband by his new employer and that were to vest upon continued employment during each of the succeeding four years constituted an employment and retention incentive that was not subject to equitable distribution, even though the divorce complaint was not filed until three days after the options were granted. The compensation was not attributable to joint marital endeavors because the employment began after the parties had separated and because the compensation rewarded only future services.

NOT APPROVED FOR PUBLICATION
DOMESTIC VIOLENCE
ROWBOTHAM v. LINDEMANN
Appellate Division, A-710-04T1, November 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18789.

Final domestic violence restraining order against the defendant ex-boyfriend based on harassment affirmed; the parties began dating in November 2003, the plaintiff ex-girlfriend became pregnant with the defendant’s baby in early 2004, and she ended their romantic relationship in April 2004; although the plaintiff “unequivocally” sought to limit the parties’ communications to child-related issues, the defendant made repeated attempts at reconciliation by calling her frequently, appearing at her home unannounced more than 20 times, and visiting her at work over her protests; the plaintiff filed a domestic violence complaint after the defendant “created a scene” in July 2004 at the store where she worked; the record supported the trial court’s finding that the plaintiff was credible, and there was “ample proof” of harassment under N.J.S.A. 2C:33-4(c).

HUSBAND AND WIFE
JARVIS v. JARVIS
Appellate Division, A-7050-03T2, November 9, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18793.

Family Part ruling (1) that the land on which the marital home was built had been acquired by the plaintiff ex-husband before any contemplation of marriage and therefore was an exempt asset and (2) that the improvements to the land were marital assets subject to equitable distribution and that the ex-husband should receive 80 percent of their value because of the physical labor that he had expended to construct the buildings affirmed in part, reversed in part, and remanded; there was sufficient credible evidence to support the findings that the land was not purchased by the ex-husband in contemplation of marriage and that the defendant ex-wife’s efforts did not increase the value of the land during the marriage; however, the Family Part did not properly consider the ex-wife’s $10,000 premarital contribution to pay off the mortgage on the land, and she should receive “some benefit” for that contribution; the Family Part did not err by accepting separate valuations for the land and for the improvements and did not abuse its discretion by awarding the ex-wife only 20 percent of the value of the improvements.

HUSBAND AND WIFE
CALAUTTI v. CALAUTTI
Appellate Division, A-167-04T1, November 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18791.

Post-divorce-judgment order that denied the defendant ex-husband’s motion to terminate alimony affirmed; the parties’ final judgment of divorce fixed alimony at $200 per week; the ex-husband, who worked in his family’s pizzeria business, had earlier moved for a modification of alimony after he began to receive Social Security disability benefits, but that motion was denied after the motion judge reviewed the ex-husband’s tax returns for the first time and learned that he had a partnership interest in the pizzeria; the ex-husband filed the current motion, which was heard by the same motion judge, after the pizzeria business was sold, but he retained an ownership interest in the building that had housed the pizzeria; the ex-husband’s income from disability benefits was “not substantially different” from the income that he had reported from working, and the motion judge properly found that the ex-husband had the ability to pay alimony based on income from his assets.

PARENT AND CHILD
DORAN v. DORAN
Appellate Division, A-3735-04T3, November 9, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18794.

Order denying the plaintiff ex-wife’s child custody application and requiring her to pay attorney’s fees to the defendant ex-husband reversed and remanded; the ex-wife argued that the ex-husband, who had primary residential custody of the parties’ three special needs children, would leave the children in the care of their alcoholic paternal grandmother and was not personally caring for the children; the Family Part erred by denying the ex-wife’s application without holding an evidentiary hearing because she had presented “undisputed legally competent evidence” that the ex-husband was leaving the children in the care of someone with alcoholism; the undisputed allegation that the grandmother had passed out due to an alcohol-induced seizure “warranted a more searching inquiry” from the Family Part; the attorney’s fees award was vacated and should be reconsidered after the proceedings on remand are concluded.

INSURANCE
NEW JERSEY DEPARTMENT OF BANKING AND INSURANCE v. DOLAN
Appellate Division, A-1193-04T5, November 9, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18792.

Final order of the petitioner Department of Banking and Insurance, finding that the respondent insurance agent had violated several insurance statutes and regulations and imposing penalties and costs, affirmed in an enforcement action against the agent for selling life insurance in New Jersey when he was licensed only in New York, for misrepresenting that the policies were signed in New York, and for defrauding a customer into buying life insurance on the false premise that he was making an investment that had a tax advantage; it was “obvious” from the agent’s correspondence and promotional materials that he was marketing the Voluntary Employees’ Beneficiary Association as an investment vehicle rather than as an employee benefit plan and that he had misrepresented its tax benefits; the agent falsely represented to the insurance company that he was lawfully selling its policies in New York when he was unlawfully selling them in New Jersey.

MOTOR VEHICLES
STATE v. KRONFELD
Appellate Division, A-1535-04T5, November 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18790.

Convictions after a trial de novo in the Law Division of operating a motor vehicle as an uninsured motorist and driving an unregistered vehicle affirmed; after issuing the defendant a warning for parking her vehicle illegally, the police officer learned from his computer that the vehicle’s registration was expired, and the defendant produced an expired registration and an expired insurance card; the Municipal Court found that the officer had testified credibly that the defendant had admitted knowing that she did not have insurance or a valid registration, and the Law Division found that the officer’s testimony was truthful and was corroborated by a notice of cancellation from the defendant’s insurer; the conviction of operating a motor vehicle as an uninsured motorist was supported by the defendant’s admissions and the documentary evidence, and the defendant’s argument that the State had not proved that she had failed to maintain her vehicle registration lacked merit.

REAL PROPERTY
TABATNECK v. CRESTMONT HIGHLANDS NEIGHBORHOOD CONDOMINIUM ASSOCIATION
Chancery Division, Somerset, Hunterdon, and Warren Counties, SOM-C-12071-05, return date October 21, 2005, not approved for publication. By Williams, P.J. (18 pages). Facts-on-Call Order No. 18787.

Motion by the plaintiff condominium unit owner for the discharge of a $2,264 lien filed by the defendant condominium association denied, her “virtually identical” verified complaint dismissed without prejudice, and an order entered requiring the defendant to amend its lien in an action challenging the filing of the lien and its amount; the defendant had the right to file the lien under the Condominium Act because it was undisputed that the plaintiff had defaulted on common charges for January, February, and March 2005 and that she owed late fees and attorney’s fees pursuant to the master deed and bylaws; the lien correctly reflected the amount that the plaintiff owed up to July 1, 2005 for common charges and late fees; however, the defendant had to remove $768 in accelerated common charges from the lien because the plaintiff did not have adequate notice of the defendant’s July 14, 2005 resolution that allowed the lien to include accelerated charges; the defendant was entitled to only one-half of the attorney’s fees it sought because the lien improperly included the accelerated charges.

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