NEW JERSEY LAWYER

DAILY BRIEFING      01/13/2005


News Briefs

SUITS HAUNT ONE-DAY JAIL BOSS
Gloucester County officials have admitted their embarrassment over hiring a corrections director who had been sued several times — successfully — involving charges of sexual harassment, discrimination, prisoner abuse and punishing officers for union activities while he held a similar post in the neighboring county. Frank Mazzone, who had just been hired to the $93,000-a-year job, quit after one day when his new bosses learned he was the primary defendant in four lawsuits that cost Atlantic County more than $2 million. The search firm, Paige Plus, said it knew about the suits, but didn’t think they were unusual for someone involved in corrections operations. Gloucester County Administrator John H. Fisher III said the search firm should have told officials about the suits, adding the county won’t pay the $10,500 fee. 1-12-05

LATEST STATE CABINET NOMINEES CARRY J.D. SHEEPSKINS
Acting Gov. Richard J. Codey formally nominated for permanent appointments two of his administration’s top managers who’ve been part of his cabinet since November. The nominations of attorneys Thomas D. Carver as commissioner of the Department of Labor and Workforce Development and Fred Martin Jacobs as commissioner of the Department of Health and Senior Services are now in the state Senate’s hands. Carver has had a long career as a journalist, civil servant, manager, consultant, lobbyist and equal employment champion. The 1966 graduate of New York Law School is best known in Statehouse circles as president of the Casino Association of New Jersey from 1984 to 1993. More recently he was a partner in the Castle Group, consulting on transportation issues, the expertise for which he acquired as first president of the New Jersey Aviation Association and as assistant general manager of Newark International Airport. Jacobs, a physician, also holds a law degree he acquired midway through his medical career. Associated mostly with the Saint Barnabas Medical Center since 1969, Jacobs earned a law degree in 1990 from Rutgers Law School-Newark. Meanwhile, the Senate also will consider the nomination of Rolando Torres Jr. of Lawrenceville as personnel commissioner. 1-12-05

CAMDEN SETTLES SUIT, WILL PROMOTE SIX POLICEMEN
Six Latino or black police officers who claimed they were disregarded for promotion have settled with the city of Camden and will be promoted to sergeant. They contended they were passed over in 1999 in favor of 10 white candidates. Two claimants were promoted to temporary sergeant when the state was monitoring the department, but were returned to lower ranks when permanent sergeant positions became available. The all sued in 2001 in U.S. District Court. Under the settlement, one of the plaintiffs who has since resigned will receive a sergeant’s pension. 1-12-05

GROWTH IN NATIONAL HEALTH SPENDING SLOWS
The growth rate in national health spending cooled a bit in 2003, rising 7.7 percent compared to 9.3 percent the year before, but it still grew much faster than the economy as a whole and now accounts for 15.3 percent of the nation’s output, according to the government’s annual report on health spending published in the journal Health Affairs. And while public spending on health care has grown somewhat faster the past decade than private spending, that trend was reversed in 2003 when private spending rose 8.6 percent. Out-of-pocket payments were the only major source of health spending to increase faster in 2003 than in 2002, probably because, federal health officials suggested, the number of people without health insurance is increasing and employers providing coverage require workers to bear more of the cost. 1-12-05



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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 12, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 12, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, JANUARY 13, 2005.


APPROVED FOR PUBLICATION
INSURANCE
MARSDEN v. ENCOMPASS INSURANCE CO.
Appellate Division, A-2269-03T5, approved for publication January 12, 2005. (15 pages). Facts-on-Call Order No. 92260

Where the nonbinding arbitration award in an automobile negligence action exceeded the tortfeasor’s coverage and where the plaintiff notified her underinsured motorist insurer pursuant to Longworth v. Ohio Casualty but the insurer declined to intervene in the negligence action, allowed the plaintiff to settle, and later refused to arbitrate, (1) the UIM insurer did not reserve the trial option in its communications with the plaintiff’s counsel and should have notified the plaintiff of its intention to go to trial when it responded to the plaintiff’s Longworth letter and (2) the doctrine of estoppel applied because the insurer’s conduct induced the plaintiff to settle her claim and forgo any further claims against the tortfeasor and experience an unreasonable delay in the pursuit of her UIM claim and because the plaintiff’s reliance on the insurer’s actions was exceedingly detrimental.

WORKERS’ COMPENSATION
VALDEZ v. TRI-STATE FURNITURE
Appellate Division, A-1115-03T2, approved for publication January 12, 2005. (22 pages). Facts-on-Call Order No. 92261

An employee who was injured when a forklift tipped over and crushed his leg was entitled to collect workers’ compensation benefits, even though the accident occurred outside of his employer’s immediate work area and the forklifts were owned and primarily used by another company.

NOT APPROVED FOR PUBLICATION
CONTRACTS
CZAKO v. SHUKLA
Appellate Division, A-4520-03T2, January 12, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17502

Special Civil Part judgment for the plaintiff architect for $1,705 in an action for services rendered by the plaintiff affirmed in part, reversed in part, and remanded; the plaintiff’s complaint sought $3,000 in fees; as to the credit for $645 expended by the defendants to retain a second architect, the Special Civil Part’s determination concerning the need for the second architect’s services could reasonably have been reached based on the evidence in the record; as to the $650 credit to the defendants for fire code deficiencies, the matter was remanded so that the basis for the credit could be identified and, if no basis could be shown, so that the judgment could be modified accordingly.

WORKERS’ COMPENSATION
TROMBETTO v. SUNOCO, INC.
Appellate Division, A-5812-03T2, January 12, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17503

Dismissal of the appellant gas station attendant’s workers’ compensation petition alleging an occupational exposure to pulmonary irritants over a four-year period because he failed to sustain his burden of proof affirmed; there was sufficient credible evidence to support the judge of compensation’s ruling that the appellant’s chronic obstructive pulmonary disease was caused solely by his smoking and that his alleged workplace exposure to gasoline fumes did not materially contribute to the development of his condition; furthermore, the appellant did not establish that his workplace exposure aggravated or exacerbated his injury because he presented no scientific or medical evidence about the work environment or the quantity and type of occupational pollutants.

PREMISES LIABILITY
GINDA v. BOCCHINO
Appellate Division, A-3798-03T3, January 12, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17501

Summary judgment for the defendant homeowners in a personal injury action affirmed; the plaintiff was injured after he slipped on folded clothing while descending a staircase in the defendants’ home; the clothing consisted of a “bright red” sweater and white jockey shorts that had been “neatly placed” on a step; summary judgment was appropriate because the “obvious” presence of the clothing did not constitute a dangerous condition that the defendants were required to warn the plaintiff about and because the plaintiff’s failure to observe the clothing was the result of his inattention and his failure to exercise due care.

DOMESTIC VIOLENCE
HORDEMAN v. HORDEMAN
Appellate Division, A-5049-03T2, January 12, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17500

Post-trial entry of a final domestic violence restraining order against the defendant husband affirmed; the plaintiff wife alleged that the parties were engaged in an argument when the defendant broke the glass window of a cabinet, threatened her, and walked forcefully toward her, which caused her to be afraid for herself and her children; the trial court’s finding that the defendant had harassed and threatened the plaintiff in violation of N.J.S.A. 2C:33-4(a) was supported by sufficient credible evidence in the record; contrary to the defendant’s argument on appeal, the trial court did not err by sustaining the plaintiff’s objection to the defendant’s attempt to cross-examine the plaintiff about her claims of prior abuse.

PARENT AND CHILD
MUDD v. MUDD
Appellate Division, A-3340-03T1, January 11, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17499

Denial of the defendant ex-husband’s motion to reduce his child support obligation to his three children affirmed; three months after the entry of the final judgment of divorce, the defendant claimed that his circumstances had changed because his income had decreased in light of a wage freeze and the elimination of bonuses and because his expenses had “increased dramatically” due to his multiple sclerosis; however, the defendant failed to show that his salary had been reduced; rather, his salary had increased; also, the defendant did not produce a letter or certification from his physician that attested that his multiple sclerosis had worsened since the date of the divorce or that new accommodations were medically required.

VERBAL THRESHOLD
VASQUEZ v. GULLY
Appellate Division, A-130-03T2, January 11, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17498

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the motion judge properly concluded (1) that the plaintiff had demonstrated through objective medical evidence that he had sustained a permanent injury as a result of the automobile accident where MRIs of his cervical and lumbar spines revealed multiple herniated discs and evidence of impingement on the thecal sac but (2) that the plaintiff’s injuries did not have a serious impact on his life where there was no evidence that he had been forced to give up soccer or that the other activities that were adversely affected were important activities in his life before the accident and where there were no medical restrictions that correlated with the claimed effects on his life.

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