NEW JERSEY LAWYER

DAILY BRIEFING      01/23/2006


News Briefs

MURDER DAMAGES CHANGE APPLAUDED
A new law lifting the cap on punitive damages in murder cases has been greeted by advocates for families of victims. The statute, signed before Gov. Richard Codey left office, places murder on the list of exceptions to a $350,000 limit. Whether it was an oversight in the original law, the limit came to light in the civil case against Alan Mackerley, convicted of killing busing rival Frank Black in Florida in 1996. Brian M. Laddey of Laddey Clark & Ryan in Sparta, representing Black’s family in the wrongful death suit, appealed to Sen. Robert E. Littell and Assemblywoman Alison Littell McHose (both R-Sussex) who sponsored the new legislation. “I never really understood why there was a cap,” said Richard D. Pompelio, director of the Crime Victims Law Center. With Mackerley’s appeals exhausted in Florida, the civil case is expected to get under way soon. 1-20-06

LONGER MEDICAID ‘LOOK-BACK’ LOOMING
Elder law and estate planning attorneys are bracing for changes in federal Medicaid laws that will make it tougher to shelter savings. The biggest worry is an extended “look-back” period from three years to five. Medicaid requires applicants for nursing home assistance use up their own assets before Medicaid starts paying. With that prospect, many seniors give their money to family members, and Medicaid allows that as long as it is — currently — more than three years before the application. Stretching that to five years can make it all but impossible to make sensible plans, attorneys say. Read the full story in the Jan. 23 New Jersey Lawyer. 1-20-06

NEEDLE SUIT ENDS; NEW ROUND BEGINS
Clearing the stage to start anew the battle over needle exchange, four legislators who sued Gov. James E. McGreevey over his ordering of a pilot program have dropped their suit. The McGreevey executive order, calling for needle exchange programs in Camden, Atlantic City and a third unnamed city, expired Dec. 31. McGreevey issued the order anticipating the legislature would act as well, but many legislators — even those who supported the idea — said he overstepped his authority by essentially changing state laws. Three Republicans and one Democrat had filed the suit. New bills for the concept have been filed, and there’s one from Sen. Ronald L. Rice (D-Essex) “clarifying” that needle exchange is illegal. Gov. Jon S. Corzine has stated he supports needle exchange, which is used in every state but New Jersey and Delaware. 1-20-06

MARSHALL MURDER FIGURE FREED
After serving 20 years of a 30-year sentence for his marginal role in a 1984 murder-for-hire, Robert Cumber, 68, was released Jan. 19 from Trenton State Prison. The remainder of his sentence was commuted by Gov. Richard J. Codey earlier last week. In a jury trial in 1986 in Atlantic County, Cumber was convicted of being an accessory to the murder of Maria Marshall, wife of Robert O. Marshall. Cumber allowed the phone in his hardware store in Louisiana to be used by Billy Wayne McKinnon, who set up the killing. McKinnon served one year in prison after a plea bargain and the alleged killer was acquitted, but Cumber got the mandatory minimum for his role. Marshall was sentenced to death, but he won an appeal in November in the 3rd U.S. Circuit Court of Appeals on the death penalty phase. 1-20-06

GREAT DEAL ON THAT BEEMER? LOOK OUT!
Before forking over money for a great deal on that used car, do a thorough check on where it was parked during hurricane season. Officials in southern states are warning used-car buyers to be very careful, and if they’re thinking about buying a car they know was in a flood, have it thoroughly checked. Hundreds of thousands of cars were dunked by Katrina and Rita, and the sheer numbers increase the probability that many will end up in states far and wide. A flood title is issued to an owner if an insurance company reports a claim to the state. But re-titling a car in a series of states can launder out that designation. In New Jersey, flood vehicles are marked with an F, so if you want to buy such a car as-is, you know you’re taking your chances. But beware cars without such a designation, especially if they come from another state. 1-20-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 20, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 20, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JANUARY 23, 2006.


APPROVED FOR PUBLICATION
ATTORNEYS
MANSOUR v. LEVITON MANUFACTURING CO., INC.
Appellate Division, A-2064-04T1F and A-2065-04T1F, approved for publication January 20, 2006. (17 pages). Facts-on-Call Order No. 92816

Summary judgment dismissing the plaintiff father’s legal malpractice claim against the defendant attorney — who neither filed nor advised the father to file a claim for negligent infliction of emotional distress under Portee v. Jaffee within two years of the incident in which his infant child was injured — was affirmed (1) because, if it was assumed that the complaint stated a claim under Portee, the statute of limitations on the claim was tolled for as long as the child’s claim was tolled and (2) because the father, who heard the screams of the child as she was scalded by hot water, was a “witness” to the incident for purposes of stating a Portee claim.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
MORGAN v. GARBER
Appellate Division, A-4909-03T3, January 20, 2006, not approved for publication. (14 pages). Facts-on-Call Order No. 19123

Award of $250,000 to the plaintiff following a jury trial and denial of the defendant’s motion for a new trial reversed and remanded in an automobile negligence action; a new trial was required because the trial court erred (1) by allowing the plaintiff to testify about treatment that was not disclosed in discovery and (2) by refusing to instruct the jury that the plaintiff’s expert was not an independent witness, which the plaintiff’s counsel had stated during summation; because the matter was going to be retried, the Appellate Division also concluded that there was no error in the trial court’s use of Model Jury Charge (Civil) 5.20C, which deals with left hand turns, and that the trial court’s refusal to issue a jury instruction that mirrored the language of N.J.S.A. 39:4-90, which governs conduct at an intersection, was appropriate; the Appellate Division left it to the trial court to determine whether to exclude testimony about the treatment that was not disclosed in discovery or to allow it after giving the defendant the opportunity to conduct further discovery on remand.

INSURANCE
McLAUGHLIN v. NEW JERSEY MANUFACTURERS INSURANCE CO.
Appellate Division, A-1542-04T1, January 20, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19121

Orders granting the defendant insurer’s motion for summary judgment and denying the plaintiff insured’s cross-motion for summary judgment affirmed in the plaintiff’s action for underinsured motorist benefits; the plaintiff’s UIM limit was $100,000 and the other vehicle had $400,000 in liability insurance coverage available to the operator; an arbitrator awarded $2 million to the estate of the passenger in the other vehicle; the issue on appeal was the interpretation of N.J.S.A. 17:28-1.1e(1) “when there are multiple claimants whose total damages exceed the amount of liability coverage available to a tortfeasor”; the plaintiff argued (1) that the motion court had erred by misconstruing the word “available” in the statute because it had failed to determine whether the other vehicle was “underinsured” as to the plaintiff and (2) that the sum of the limits of liability insurance covering the other vehicle was reduced by the payment of the claims of other victims; the statute is “clear and unambiguous” as written and requires no other interpretation; the case law provides that a “tortfeasor is ‘underinsured’ only when all the liability coverage insuring his or her purportedly underinsured vehicle is less than the UIM benefits ‘held’ by the UIM claimant”; the trial court did not err by failing to apply the doctrine of reasonable expectations.

PARENT AND CHILD
BANIA v. BANIA
Appellate Division, A-4931-03T2, January 20, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19124

Family Part order denying the defendant ex-wife’s motion for reconsideration and determining that the parties’ agreement that resolved their marital dispute was clear as to child custody and child support obligations, that the ex-wife had failed to demonstrate changed circumstances, and that all of her arguments had been addressed in previous applications affirmed; because the judge who had presided over the matter during the negotiations that led to the settlement had heard the numerous post-judgment motions that the ex-wife had filed, he was “well aware of the parties and their respective positions”; there was “ample support” for the Family Part’s finding that the ex-wife’s “repeated assertions” about the children’s living arrangements “were no different” from the facts on which she had relied both before and after the settlement was reached; the facts that the ex-wife included in her certification seeking to modify the agreement as to child support were not sufficient to require a plenary hearing; contrary to ex-wife’s assertion, the agreement was not an improper waiver of child support.

DOMESTIC VIOLENCE
KOGUT v. JHAMB
Appellate Division, A-5756-03T1, January 20, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19125

Final domestic violence restraining order against the defendant and in favor of the plaintiff, her ex-husband, and her children affirmed; the plaintiff and the defendant were involved in “an intimate dating relationship”; the plaintiff sought the FRO against the defendant due to harassing letters that he allegedly sent to her and to the parents of her children’s classmates; the Family Part did not err by allowing testimony from the plaintiff and her ex-husband about anti-Semitic letters that they had previously received and that allegedly were sent by the defendant; the Family Part admitted the evidence as “relevant to the issue of identity” and not to show that the defendant “acted in conformity with a prior propensity”; contrary to the defendant’s argument, the Family Part’s decision to grant the FRO was not against the weight of the evidence, and there was a factual and legal basis to extend the FRO to the ex-husband.

CIVIL PROCEDURE
EAGLE INSURANCE CO. v. FATHOLLAHI
Appellate Division, A-3145-04T5, January 20, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19122

Default judgment of $21,049.51 against the defendant and for the plaintiff insurer as subrogee in an action for damages arising out of an automobile accident reversed and remanded to complete the record and for further proceedings, if necessary; the defendant asserted that the trial court had mistakenly failed to consider his motion to dismiss based on lack of personal jurisdiction and improper venue; it appeared that the defendant had attempted to contest jurisdiction; if his motion was properly filed, he was entitled to a hearing and a disposition of the motion before the entry of any default against him; for reasons that were not apparent from the record, no jurisdictional determination was made; if the defendant’s motion was defective, he was entitled to a notice of defect and an opportunity to cure that defect under Rule 1:5-6(c); thus, the matter was remanded to complete the record as to the disposition of the defendant’s jurisdiction motion and, if appropriate, for a determination of the jurisdiction issue; on remand, the defendant could move under Rule 4:50-1 to vacate the default judgment.

APPELLATE PROCEDURE
HOUSING AUTHORITY OF THE CITY OF NEW BRUNSWICK v. HALELUK
Appellate Division, A-3536-03T5, January 20, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19120

Post-judgment order entered on limited remand memorializing the trial court’s finding in a condemnation action that the plaintiff housing authority and the defendant property owner had reached an enforceable agreement that settled their disputes while the appeal was pending affirmed and remanded for enforcement; the post-judgment order was supported by substantial credible evidence, and that disposition rendered moot the property owner’s appeal from both the final judgment requiring the housing authority to pay the defendant property owner $795,000 as just compensation for the condemned property and the denial of the property owner’s motion for a new trial.

PARENT AND CHILD
YOUNG v. LEE
Appellate Division, A-5283-04T4, January 19, 2006, not approved for publication. (16 pages). Facts-on-Call Order No. 19119

Family Part’s determination following “an abbreviated non-evidentiary proceeding” at the end of the second month of the school year to terminate shared custody of the parties’ 5-year-old son, to end the son’s residence with the defendant father in New Jersey during the school week, and to award residential custody of the son to the plaintiff mother, who had moved with her fiance to Pennsylvania, and a second judge’s denial of the father’s motion for reconsideration reversed and remanded for further expedited proceedings; the parental right to due process when a change in custody has been requested was not adequately protected in this case where the Family Part was informed about the custody arrangement and the father’s opposition to a change in that arrangement but did not ask about the existence or adequacy of notice to the father, did not investigate the circumstances of the father’s absence from court, and did not seek to facilitate his presence in court; the Family Part’s “casual approach” to the issues in this case were “wholly inappropriate”; even though the second judge may not have been aware of the “inadequacy” of the original hearing, the father was entitled to a prompt rehearing, which he did not receive; the Appellate Division found that this case presented “an unfortunate example of the difficulties caused by precipitate judicial action in matters involving child custody.”


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