NEW JERSEY LAWYER

DAILY BRIEFING      01/18/2006


News Briefs

CORZINE TABS ATTORNEYS FOR ADMINISTRATION POSTS
Gov. Jon S. Corzine has named assistant U.S. Attorney A. Matthew Boxer as director of the Authorities Unit and Edward J. McBride Jr., former partner with Schnader, Harrison, Segal & Lewis in Cherry Hill, as deputy chief counsel. Both will serve under Chief Counsel Stuart A. Rabner. Like Rabner, Boxer served as a prosecutor in the U.S. Attorney’s Office. While in the Special Prosecutions Division there, he oversaw the investigation and prosecution of 11 Monmouth County politicians charged with varying counts of corruption. He’s a graduate of Princeton University and Columbia Law School. McBride was policy counsel for the Corzine campaign and counsel to the transition office. He also was assistant counsel to Gov. James J. Florio. McBride is a graduate of Georgetown University, with graduate and law degrees from Rutgers University. In addition, Susan Bass Levin will return as community affairs commissioner. Mayor of Cherry Hill for 14 years, Levin was commissioner from January 2002 until this past summer when she joined the Corzine campaign. She is a graduate of the University of Rochester and George Washington Law School. 1-17-06

CODEY COUNSEL FADER JOINS FLORIO PERRUCCI
Paul T. Fader, chief counsel to Gov. Richard J. Codey and deputy chief counsel to Gov. James E. McGreevey, will become a name partner in the law firm Florio Perrucci Steinhardt & Fader in Phillipsburg. He will head the firm’s new office in Rochelle Park and the public contract law practice group. Before entering government, he was a partner at Connell Foley in Roseland, where he focused on construction and public contract law, civil litigation, commercial development and land use. He is a graduate of William Paterson College and Rutgers Law School. 1-17-06

TWO MIDDLESEX MUNICIPAL JUDGES GET CENTRALIZED ROLE
Highland Park Municipal Judge Edward H. Herman and Woodbridge Municipal Judge Spencer B. Robbins have been appointed judges for all municipal courts in Middlesex County to handle matters on a centralized basis at the Middlesex County Adult Correctional Facility. They will conduct first-appearance hearings and arraignments or accept pleas on indictable or other offenses occurring in the county. Robbins will serve as Herman’s back-up. The centralized arraignment program is under the supervision of Assignment Judge Robert A. Longhi. 1-17-06

NEVADA JURY AWARDS $14M FOR DWI FATALITY
A jury in Nevada has ordered three companies owned by the operators of convenience stores and gas stations to pay $14.1 million to the family of a woman killed by a drunken driver in a company industrial truck in 2001. The driver, Darwin Ray Ellison, drove the truck into Rosa Delegado, 58, who was getting into her car. She was pinned against her vehicle, run over and killed. Her family filed suit in 2001 against the Las Vegas-based company, Terrible Herbst, arguing it and others were negligent in hiring Ellison, who had a history of drinking. The Clark County jury awarded $4.1 million in compensatory damages and $10 million in punitive damages to be paid by Terrible Herbst, Herbst Supply and ETT. The company contended it was not at fault for the crash, since Ellison, a temporary worker, took the truck without permission. 1-17-06

TODDLER ABSOLVED OF CIVIC DUTY
Every lawyer, judge and court administrator around has heard every excuse under the sun from people seeking to avoid jury duty. Kaylee Reynolds — who can’t read, write, understand fundamental legal concepts and gets cranky if she misses her noontime nap — was given a 16-year reprieve by Massachusetts Jury Commissioner Patricia Wood after it was revealed the person summoned for jury duty is only 2 years old. 1-17-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JANUARY 17, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JANUARY 17, 2006.

THE SUPREME COURT has announced that it will release opinions in LOIGMAN v. TOWNSHIP COMMITTEE OF THE TOWNSHIP OF MIDDLETOWN, A-99, and AQUA BEACH CONDOMINIUM ASSOCIATION v. N.J. DEPARTMENT OF COMMUNITY AFFAIRS, A-111, on January 18, 2006. The issues on appeal in Loigman address whether, in this §1983 action, the defendants were entitled to absolute immunity based on the Township attorney’s actions in seeking to have the plaintiff sequestered from proceedings before the Office of Administrative Law and whether the plaintiff was entitled to attorney’s fees where the jury verdict did not include an award of money damages and where the plaintiff appeared in the litigation pro se and retained an attorney to assist him. The issue on appeal in Aqua Beach Condominium Association addresses whether the Association’s claim under the New Home Warranty Program was subject to dismissal because the Association failed to secure prior authorization for repairs of major structural defects.



APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
ONGARO v. COUNTRY FLOORING ENTERPRISES
Appellate Division, A-1965-04T2, approved for publication January 17, 2006. (9 pages). Facts-on-Call Order No. 92810

In a case of first impression construing N.J.S.A. 34:15-81(b), the two incorrect dates in the worker’s compensation insurer’s notice to the Compensation Rating and Inspection Bureau did not amount to a material deviation from the “like notice” requirements of the statute, and the minor clerical mistakes in this case did not warrant the adverse consequences imposed by the judge of compensation.

PUBLIC EMPLOYMENT
IN RE PATTERSON
Appellate Division, A-2865-04T1, approved for publication January 17, 2006. (14 pages). Facts-on-Call Order No. 92811

On the petitioner State Trooper’s application for accidental disability benefits for psychological and physical disability, the Appellate Division concluded (1) that the three incidents of brutal verbal abuse, which induced fear of physical assault, from a superior officer in one day were multiple traumatic psychic assaults that progressed into an ongoing process leading to the petitioner’s disability and (2) that the verbal assaults from a superior officer in a paramilitary organization had the indicia of great power, which satisfied the third prong of the test under Kane v. Board of Trustees, Police & Firemen’s Retirement System.

NOT APPROVED FOR PUBLICATION
PRODUCTS LIABILITY
ESTATE OF PLATOW v. FORD MOTOR CO.
Appellate Division, A-6937-03T1, January 17, 2006, not approved for publication. (20 pages). Facts-on-Call Order No. 19105

Jury verdict for the defendant automobile manufacturer based on the jury’s finding that the plaintiff had not demonstrated that the air-bag system in the plaintiff’s automobile was defective affirmed; the plaintiff sustained permanent spinal cord injuries when the air bag in his automobile deployed and struck him after his automobile collided with a parked vehicle; contrary to the plaintiff’s arguments on appeal, (1) the trial court did not abuse its discretion by admitting evidence relating to his consumption of alcohol before the accident, (2) the trial court did not err by allowing admission of evidence that the plaintiff was not wearing a seat belt at the time of the accident, (3) the trial court did not err by refusing to admit into evidence a report of the accident prepared by the National Highway Transportation Safety Administration and by barring use of the report at trial, and (4) there was no error in the first question on the verdict sheet, which limited the issue of the defect to the number of sensors and their placement in the plaintiff’s automobile.

INSURANCE
ROQUEZ v. DIDINO
Appellate Division, A-996-04T2, January 17, 2006, not approved for publication. (17 pages). Facts-on-Call Order No. 19108

Orders requiring the plaintiff insurer to provide personal injury protection benefits and liability coverage for injuries sustained in an accident affirmed; the insurer provided coverage for a van owned by the defendant owner under a private passenger automobile insurance policy; at the time of the accident, the van was being operated by someone other than the owner to transport workers from a temporary employment agency to the factory where they were working; the insurer asserted that it was not obligated to provide coverage because the van was being used as a “public or livery conveyance for passengers” within the meaning of N.J.S.A. 39:6A-2(a); even if the Appellate Division agreed with the insurer’s argument, the orders had to be affirmed on the motion judge’s alternative basis, which was that the insurer was legally obligated to provide coverage to the passengers in the van and to the driver of the other vehicle in the minimum amounts required by law.

ATTORNEYS
MARCANTONIO v. HUNDERTMARK
Appellate Division, A-2102-04T5, January 17, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19104

Summary judgment for the defendant attorneys based on the pro se plaintiff’s failure to file an affidavit of merit pursuant to N.J.S.A. 2A:53A-27 affirmed in a legal malpractice action alleging attorney negligence, attorney breach of contract, constructive fraud, and breach of fiduciary duty; contrary to the plaintiff’s arguments on appeal, (1) his claims of breach of contract and fraud did not survive the motion for summary judgment because §2A:53A-7 and its underlying policy cannot be circumvented by adding the label “breach of contract” or “fraud” to the allegations, (2) an expert was required because the alleged breach was “far from obvious” and because “the questioned conduct concerns the exercise of legal judgment,” (3) §2A:53A-7 does not excuse indigent pro se litigants from its requirements, (4) the defendants had no obligation to notify the plaintiff of his obligation under §2A:53A-7, (5) the trial court did not err by failing to hold a case management conference, and (6) §2A:53A-7 is constitutional.

PREMISES LIABILITY
TALIAFERRO v. WEST SIDE HIGH SCHOOL
Appellate Division, A-3048-04T2, January 17, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19106

Summary judgment for the defendant school district affirmed in an action by the plaintiff basketball coach for injuries sustained when he slipped and fell on icy pavement outside the high school after leaving basketball practice; the trial court properly granted summary judgment and properly concluded that this case fell within the common law immunity for a public entity’s snow removal activities; the school district did not fall within the narrow exception to the common law immunity for public housing authorities created by Bligen v. Jersey City Housing Authority.

REAL PROPERTY
WOODLANDS COMMUNITY ASSOCIATION, INC. v. CATHERINE
Appellate Division, A-3218-04T5, January 17, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19107

Special Civil Part judgment for $1,749.29 for the plaintiff condominium association affirmed substantially for the reasons expressed by the Special Civil Part; the condominium association sued the defendant ex-husband and the defendant ex-wife for unpaid condominium assessments, late fees, interest, attorney’s fees, and costs; the ex-wife settled the claim against her for $4,000, and the ex-husband asserted a counterclaim for water damage to the interior of the unit caused by damage to the exterior siding of the unit; the Special Civil Part determined that the ex-husband was responsible for the unpaid assessments, but it permitted a set-off of $500 for the water damage and gave the ex-husband a credit for the amount paid by the ex-wife; the Special Civil Part also concluded that the condominium association was not entitled to late fees, and it refused to award attorney’s fees and costs because there were “difficulties” in the condominium association’s bylaws.

PARENT AND CHILD
O’NEILL v. O’NEILL
Appellate Division, A-3623-04T1, January 13, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19103

Amended post-divorce-judgment order entered without a formal hearing (1) that denied the defendant ex-husband’s application to emancipate his daughter, (2) that granted his application to emancipate his son but that required submission of a completed case information statement as to the plaintiff ex-wife’s claim that the son was disabled and could not support himself, (3) that required the filing of a case information statement to consider the ex-husband’s contribution to the daughter’s college expenses, and (4) that required the ex-husband to pay $1,391.44 in medical expenses for the daughter reversed; a formal hearing should be held to determine the son’s working ability, his past and present medical expenses, and any other relevant factors; because the emancipation dispute was “a serious matter” and should not have been decided on the papers filed, the matter was reversed and remanded for a “thorough hearing”; the Family Part failed to state its reasons for denying that the ex-husband had an obligation to use some of the funds that he received from his late mother’s estate to help defray his child support arrears.

CIVIL PROCEDURE
TEVA PHARMACEUTICALS USA, INC. v. STOP HUNTINGDON ANIMAL CRUELTY USA
Chancery Division, Bergen County, BER-C-63-05, January 6, 2006, released January 9, 2006, not approved for publication. By Doyne, J. (5 pages). Facts-on-Call Order No. 19102

Demand for a jury trial by the defendant nonprofit association denied in an action by the plaintiff pharmaceutical manufacturer (1) seeking to restrain the association from engaging in unlawful acts that could cause or threaten serious injury to the manufacturer’s employees and business associates and (2) alleging trespass, defamation, and various torts; the manufacturer contracted for product-testing services with a testing company that the association sought to close because it allegedly tests products on animals; the Chancery Division concluded that it could resolve the action through a bench trial because it had already determined that the manufacturer primarily sought equitable relief and because the ancillary legal claims were sufficiently intertwined with the equitable claims; the Chancery Division found further support for its conclusion in the “realities” of its trial schedule, and it held that it was “simply unable to properly conduct a jury trial, particularly when none is required.”


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