NEW JERSEY LAWYER

DAILY BRIEFING      01/24/2005


News Briefs

BILL WOULD DO ABOUT-FACE ON RELEASING EZ-PASS INFO
Despite initial pledges that the comings and goings of EZ-Pass customers wouldn’t be used by police, a bill in Trenton would amend the 1996 legislation to allow prosecutors to ask a grand jury or court to grant a subpoena for such information. The Attorney General’s Office is backing the bill, S-141, to be able to get information related to terrorism or abduction investigations. Critics say it would open the door to fishing for information that, once released, could be used for other purposes. The bill, however, would not change the prohibition against using toll-booth data to issue speeding tickets. For a full story, see the Jan. 24 New Jersey Lawyer. 1-21-05

REPLACEMENTS TAPPED FOR RETIRING MORRIS COUNTY JUDGES
Subject to approval by Chief Justice Deborah T. Poritz, Morris County Assignment Judge B. Theodore Bozonelis has selected successors for two retiring Superior Court judges. Civil Division Judge W. Hunt Dumont would serve as presiding judge of that division, replacing Judge David S. Cramp, who must retire when he turns 70 on Feb. 7. Family Part Judge Stephan C. Hansbury would succeed presiding Judge Barbara Zucker-Zarett, who has decided to leave the bench five years before mandatory retirement. 1-21-05

THIRD CIRCUIT SAYS PRISON CONDITIONS DON’T CONSTITUTE TORTURE
The prison conditions Napoleon Bonaparte Auguste will face in his native Haiti following deportation for drug violations are “miserable and inhuman” but do not constitute torture, the 3rd U.S. Circuit Court of Appeals has ruled. Auguste, 27, a lawful permanent resident of the United States since he was 10 years old, was convicted in April 2003 of attempting to sell cocaine, after which the Department of Homeland Security placed him in removal proceedings. He sought relief under the United Nations Convention against Torture, claiming he would be indefinitely detained in Haiti, where the prisons are notorious for their brutal and deplorable conditions. But “in order to constitute torture, an act must be inflicted with the specific intent to cause severe physical or mental pain and suffering, the standard the president and Senate understood as applying” when the United States ratified the convention, wrote Circuit Judge Julio M. Fuentes in Auguste v. Ridge. (A full text of Auguste, Facts-on-Call Order No. 92271, can be ordered from NJL Online or by calling 800-670-3370.) 1-21-05

$5.2 MILLION SETTLEMENT IN TEMP WORKER CLASS ACTION
Former Assistant U.S. Attorney Philip Stephen Fuoco of Haddonfield was part of a litigation team that represented plaintiffs in a class-action lawsuit that resulted in a $5.2 million settlement for former temporary employees of SmithKline Beecham. Thomas v. SmithKline Beecham Corp., filed in U.S. District Court in Eastern Pennsylvania in 2000, alleged workers classified by SmithKline as “agency temps” were improperly denied credits and benefits under the company’s ERISA plans, even though they met the definition of eligible employees as defined in those benefit plans prior to 1999. The suit also alleged workers eventually hired as official SmithKline employees should be given eligibility and service credits for the time they were “agency temps.” Nearly 1,300 class members in New Jersey and three other states will share the settlement, approved by senioir U.S. District Judge William H. Yohn. 1-21-05

COURT MODIFIES LEMON LAW AWARD
In a decision that may change the way lemon laws are litigated and how automobile dealers draft contracts in all states with such statutes, Judge Vincent J. Reilly of New York State Supreme Court in Schenectady County has modified a consumer’s arbitration award based on unjust enrichment. In re the Arbitration Between Monaco Coach Corporation v. Caliguire was filed by Monaco Coach, a motor-home manufacturer seeking to modify a $200,920 refund obtained by a dissatisfied customer under that state’s lemon law arbitration program. Monaco said the customer did not actually pay the full contract price, an allegation supported by an affidavit from the dealer stating the actual payment, $161,490, was artificially inflated to enable the buyer to qualify for a loan. Granting Monaco’s petition, the court said the law’s refund provision is intended to place the consumer in the same position as before purchasing the vehicle, not to allow a windfall from a falsified purchase agreement. 1-21-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 21, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 21, 2005.

THE SUPREME COURT has announced that it will release opinions in DKM RESIDENTIAL PROPERTIES CORP. v. TOWNSHIP OF MONTGOMERY, A-61, and SZCZULVELEK v. HARBORSIDE HEALTHCARE WOODS EDGE, A-64, on January 24, 2005. The issue on appeal in DKM Residential Properties addresses whether a municipal construction official is authorized by the Uniform Construction Code to cite a residential builder for alleged violations of the Code years after a certificate of occupancy is issued and title is transferred by the builder. The issue on appeal in Szczulvelek addresses whether the statute of limitations in a medical malpractice action is tolled by misleading statements to the representatives of the estate that the decedent’s treatment was in accordance with his doctor’s instructions.



APPROVED FOR PUBLICATION
INSURANCE
MARTIN v. CHHABRA
Appellate Division, A-4256-03T3, approved for publication January 21, 2005. (11 pages). Facts-on-Call Order No. 92264

Where the plaintiff owned and registered the vehicle that he was operating when he was involved an automobile accident, but where the vehicle was insured under the insurance policy of the plaintiff’s girlfriend, the plaintiff was subject to the verbal threshold under N.J.S.A. 39:6A-8 that applies the verbal threshold to “any person subject to section 14 of P.L. 1985, c. 520,” which provided in 1985 that persons failing to maintain medical expense benefits coverage were subject to the verbal threshold.

LAND USE
MINTZ v. TOWNSHIP OF MILLSTONE
Appellate Division, A-1339-03T5 and A-1419-03T5, approved for publication January 21, 2005. (20 pages). Facts-on-Call Order No. 92265

The Planning Board’s denial of the plaintiffs’ application for subdivision approval by relying on its belief — which was based on memories and an erroneous reference in its minutes — that it had restricted any further subdividing of this property during proceedings 20 years earlier was arbitrary and capricious.

PRODUCTS LIABILITY
TROXCLAIR v. AVENTIS PASTEUR, INC.
Appellate Division, A-2502-03T5, approved for publication January 21, 2005. (18 pages). Facts-on-Call Order No. 92266

The injuries allegedly caused by the use of thimerosal, which is a preservative and a component used in several vaccines administered to the plaintiff child, are vaccine-related as a matter of the law under the National Childhood Vaccine Injury Act, and the plaintiffs’ failure in the first instance to file and prosecute a claim in the Federal Claims Court bars their State cause of action against the vaccine manufacturer. However, the dismissal of the plaintiffs’ claim against the manufacturer of thimerosal was reversed and remanded for further proceedings to allow the trial court to determine whether the Act precluded the plaintiffs’ action against the manufacturer of a component part as distinguished from the manufacturer of the vaccine itself.

MEDICAID
A.B. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Appellate Division, A-4973-02T2, approved for publication January 21, 2005. (12 pages). Facts-on-Call Order No. 92267

Based on Estate of F.K. v. Division of Medical Assistance and Health Services, the State may not, as a condition of qualifying an institutionalized spouse for Medicaid, require that it be named as the remainder beneficiary of an annuity, and the State cannot enforce such a requirement through either an informal policy or regulations.

PAROLE
PAZDEN v. NEW JERSEY STATE PAROLE BOARD
Appellate Division, A-1495-03T2, approved for publication January 21, 2005. (24 pages). Facts-on-Call Order No. 92268

The special conditions placed on the parolee’s parole were within the permissible scope of the Parole Act, notwithstanding the potential adverse effect that they would have on the parolee’s ability to secure employment and pay restitution, but the special conditions were articulated in language that was unconstitutionally vague and therefore were void.

PUBLIC RECORDS
ASBURY PARK PRESS v. OCEAN COUNTY PROSECUTOR’S OFFICE
Law Division, Ocean County, OCN L-1764-04 PW, approved for publication January 19, 2005. (23 pages). Facts-on-Call Order No. 92269

The defendant prosecutor’s office was warranted in withholding the 911 tape and transcript of a call made for help by a victim of a shooting that ultimately resulted in his death because the Open Public Records Act precludes disclosure of government records in which there is a reasonable expectation of privacy.

STATUTORY CONSTRUCTION
STATE v. BRADLEY
Law Division, Cape May County, Municipal Appeal #12-4-04, approved for publication January 19, 2005. (17 pages). Facts-on-Call Order No. 92270

A duly licensed deer driver was not “hunting” within the meaning of N.J.S.A. 23:1-1 because the unloaded and encased shotgun shouldered by him but bearing no shells after the harvest and “tagging” but before registration of his first deer was not “readily usable” (1) where the driver left both the transportation tag and the hunting license with the harvested deer roadside before his return to the drive and (2) where the driver never was within 50 yards of any shotgun shells at any point on the drive.

NOT APPROVED FOR PUBLICATION
LAND USE
EDUCATION AND HEALTH CENTERS OF AMERICA, INC. v. TOWN OF KEARNY
Appellate Division, A-3694-03T2, January 21, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17536

Final judgment declaring an amendment to the defendant Town’s zoning ordinance invalid affirmed; in December 2002, the plaintiff treatment facility proposed to begin treating sexually violent predators; in March 2003, the Town enacted an ordinance prohibiting the housing of persons who were civilly committed under the Sexually Violent Predator Act, claiming that the ordinance was consistent with the Town’s redevelopment goals; the ordinance was properly declared invalid (1) because the Town had not demonstrated that the ordinance was consistent with its redevelopment plans or that the plaintiff’s proposed use was inconsistent with those plans and (2) because the ordinance was not entitled to a presumption of validity due to its limitation on the State’s ability to perform its duty of housing persons who have been civilly committed under the SVPA.

EMPLOYMENT LAW
METTA v. LINCOLN TECHNICAL INSTITUTE
Appellate Division, A-2485-03T1, January 21, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17537

Summary judgment for the defendant employer and the defendant supervisor in an action arising from the plaintiff’s termination affirmed; the plaintiff was terminated on September 28, 2001, and he filed his original complaint on March 12, 2003; among other things, the plaintiff alleged that the defendants had violated the Conscientious Employee Protection Act, and the CEPA claim was dismissed pursuant to CEPA’s one-year statute of limitations; contrary to the plaintiff’s arguments on appeal, the statute of limitations should not have been equitably tolled because the record did not indicate (1) that the employer had induced him or had tricked him into not filing his complaint, (2) that the plaintiff had filed a complaint with the Equal Employment Opportunity Commission, or (3) that the employer had induced the plaintiff into not filing a complaint with the EEOC.

NEGLIGENCE
SHARMA v. HUTTER
Appellate Division, A-5345-03T2, January 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17538

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed and summary judgment for the defendant on the plaintiff’s claim for lost wages reversed and remanded; in addition to her claims for noneconomic damages, the plaintiff sought to recover $26,213.92 in lost wages for the period in which she was unable to work after the accident; the trial court did not abuse its discretion by declining to enter summary judgment for the plaintiff on the lost wages claim, but it erred by entering summary judgment for the defendant on that claim where the defendant had not moved for that relief or submitted evidence supporting it; furthermore, the trial court erred by applying the verbal threshold requirement of competent, objective medical evidence to the lost wages claim.

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