NEW JERSEY LAWYER

DAILY BRIEFING      01/25/2005


News Briefs

WORKER REHIRED AFTER ‘IRREVOCABLE’ TERMINATION
Washington Township’s director of public works has been reinstated, 20 months after being fired from his $79,900 job. Newly elected Mayor Paul Moriarty appointed James McKeever even though McKeever had agreed to “permanently and irrevocably” sever his employment, and had received a $600,000 settlement, which he’ll be allowed to keep. McKeever, director for 11 years under Mayor Gerald Luongo, was fired by Luongo’s successor, Randee Davidson, who claimed the public works director served at the discretion of the mayor. McKeever sued for wrongful termination, claiming his job was not a political post and he had achieved tenure. Two councilmen, both lawyers, objected to the rehiring, arguing it violated the terms of the settlement and could open the door to further litigation. The township solicitor, Woodbury attorney John C. Eastlack Jr., disagreed, contending the “permanently and irrevocably” clause refers to past, not future, employment. 1-24-05

BILL COULD BREAK ASBESTOS LITIGATION DEADLOCK
A bill that represents a make-or-break moment in the asbestos litigation crisis that has threatened to bankrupt several industries is being introduced this week by U.S. Sen. Arlen Specter (R-Pa.). The legislation would establish a $140 billion fund to pay asbestos victims and limit the exposure of companies to lawsuits. Managed by the federal government but privately financed by asbestos defendants and insurers, the fund would pay claimants on a no-fault basis and forfeit their right to sue under most circumstances. Negotiations among the groups affected by the crisis — businesses, insurers, trade unions and victim organizations — had failed to reach consensus on key issues. Predicting that consensus is unlikely, senior Judge Edward R. Becker of the 3rd U.S. Circuit Court of Appeals, who tried to mediate the negotiations, invited the Senate to force a resolution. 1-24-05

CAN YOU DIFFERENTIATE ONLINE SEARCH RESULTS FROM PAID ADS?
Adults in the United States are generally naïve about how internet search engines work, with only one in six able to distinguish unbiased search results from paid advertisements, according to the Pew Internet and American Life Project. All major search engines return a mix of results based on relevance to the search terms; these include sponsored links that a website has paid for to gain more prominent display. But only 38 percent of the 2,200 adults surveyed even knew of that distinction and fewer than half could always determine which links are paid. The study’s author, Deborah Fallows, a senior research fellow at Pew, said the findings are surprising, since the same people were likely to know the difference between television programs and infomercials. But the results reflect blind trust by web searchers, she said, rather than “anything nefarious on the part of the search engine.” 1-24-05

NUMBER OF CIVIL TRIALS DROPS 60% OVER TWO DECADES
Once again, a study has shown the number of cases going to trial is on the decline. The number of civil trials in federal courts nationwide dropped a whopping 60 percent between 1982 and 2002, according to a study by Marc Galanter, an author and law professor at the University of Wisconsin-Madison. And the same trend appeared in state courts, where civil trials dropped 28 percent during that period. Contributing to the decline are mass settlements in tort cases and efforts to suppress prisoner petitions, as well as more judicial “managing,” increased use of alternative dispute resolution, and the fact that the time and money it takes to get to trial simply dissuade many from going that route, the study concludes. 1-24-05

PARALYZED VETS SPONSOR LEGAL WRITING COMPETITION
“Should a Veteran be Entitled to Retain a Lawyer for Adjudication of Claims before the Department of Veterans Affairs?” will be the topic for this year’s legal writing competition sponsored by the Paralyzed Veterans of America (PVA). All attorneys and law students can enter the competition, through which the veterans organization hopes to generate discussion on issues that affect today’s vets. The deadline for submissions is March 1, and the first prize of $1,250 and second prize of $750 will be awarded during PVA Awareness Week, April 10-16. For contest rules and other entry information, go to HYPERLINK "http://www.pva.org" pva.org. Prospective participants may e-mail HYPERLINK "mailto:GeneralCounsel@pva.org" GeneralCounsel@pva.org or call (202) 416-7793 with any questions. Entries should be addressed to Office of General Counsel, Paralyzed Veterans of America, 801 18th St., NW, Washington, D.C. 20016. 1-24-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JANUARY 24, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JANUARY 24, 2005:

MEDICAL MALPRACTICE
SZCZUVELEK v. HARBORSIDE HEALTHCARE WOODS EDGE
New Jersey Supreme Court, A-64, January 24, 2005. (35 pages). Facts-on-Call Order No. 92272

In a medical malpractice action against the defendant nursing home and the defendant medical center, (1) because the New Jersey Supreme Court was equally divided on the issue of the timeliness of the filing of the complaint against the nursing home, the judgment of the Appellate Division dismissing the complaint against the nursing home was affirmed and (2) the Supreme Court unanimously found that the trial court had erred by dismissing the complaint against the medical center and remanded the matter to the trial court for reconsideration.

REAL PROPERTY
DKM RESIDENTIAL PROPERTIES CORP. v. TOWNSHIP OF MONTGOMERY
New Jersey Supreme Court, A-61, January 24, 2005. (20 pages). Facts-on-Call Order No. 92273

A municipal construction official has the authority under the Uniform Construction Code to cite a developer for a construction code violation with regard to property that has been conveyed and for which a certificate of occupancy has been issued.

THE SUPREME COURT has announced that it will release an opinion in BRUNSWICK HILLS RACQUET CLUB, INC. v. ROUTE 18 SHOPPING CENTER, A-86, on January 25, 2005. The issue on appeal in Brunswick Hills Racquet Club addresses whether counsel for the commercial landlord in this case had a duty to inform the tenant and the tenant’s counsel about the procedures required for the tenant to exercise an option to purchase where the procedures were clearly stated in the lease.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, JANUARY 24, 2005

NOT APPROVED FOR PUBLICATION
PARENT AND CHILD
DeLEO v. DeLEO
Appellate Division, A-6733-02T5, January 24, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17543

Judgment of divorce affirmed; the plaintiff ex-husband challenged the portion of the judgment that required him to pay child support for the parties’ daughter, who was born six months after the parties had separated; the defendant ex-wife admitted to the plaintiff that the semen samples that he had given supposedly to assist in curing a vaginal infection were instead used to conceive a child through artificial insemination; there was substantial credible evidence to support (1) the Family Part’s finding that it was impossible to determine whether the defendant had become pregnant through artificial insemination or through “natural means” and (2) its conclusion that the plaintiff was obligated to pay child support; even if the evidence established that the daughter had been conceived through artificial insemination, the plaintiff was obligated nonetheless to support her because it was undisputed that the plaintiff was her biological father.

WORKERS’ COMPENSATION
CUMMINGS v. TUSCAN DAIRIES
Appellate Division, A-3566-03T1, January 24, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17541

Dismissal of the plaintiff employee’s complaint seeking compensatory damages from the defendant employer for a workplace accident reversed and remanded; the plaintiff fell on the stairs that the defendant had provided to facilitate crossing over a conveyor belt, and she contended that her claim was not barred by the exclusive remedy provision of the Workers’ Compensation Law because her injury was caused by the defendant’s intentional wrong; dismissal was not appropriate because the defendant had moved to dismiss a mere 15 days after its answer was filed and because the plaintiff had not had the opportunity to engage in discovery to develop a factual record that might satisfy the Laidlow v. Hariton Machine Co. test for an intentional wrong.

INSURANCE
PEREZ v. ENCOMPASS INSURANCE CO.
Appellate Division, A-4385-03T1, January 24, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17542

Summary judgment dismissing the plaintiff’s complaint seeking underinsured motorist benefits from the defendant insurer reversed and remanded; the motion judge erred by concluding that, as a matter of law, the plaintiff’s failure to disclose a previous accident that injured the same area of his body was a knowing misrepresentation of a material fact that precluded recovery under the policy issued by the defendant; the motion judge had granted summary judgment because he did not believe that the plaintiff’s failure to disclose was “an oversight or honest mistake”; however, the motion judge should not have decided the issue of the plaintiff’s credibility because that issue was for a jury to decide.

VERBAL THRESHOLD
ESPOSITO v. NEWSOME
Appellate Division, A-3865-03T3, January 21, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17539

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the record “amply supported” a finding that the plaintiff’s injuries were not the type of injuries sufficient to overcome the verbal threshold; although the plaintiff’s doctors described her injuries as permanent, the plaintiff’s injuries essentially consisted of soft tissue sprains and strains, and they did not qualify as the serious type of injury that was intended by the Legislature; the Appellate Division did not disparage the gravity of the plaintiff’s injuries, but it was not persuaded that her injuries were sufficient to overcome the verbal threshold.

PREMISES LIABILITY
CAJKOVICH v. DIGIROLAMO
Appellate Division, A-1989-03T2, January 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17540

Summary judgment for the defendant residential property owner affirmed in an action for injuries sustained by the plaintiff when he tripped over a raised slab of the sidewalk that abutted the defendant’s property and that was overshadowed by a large tree; the plaintiff asserted that the tree cast a shadow that made it darker so that he could not see the raised slab; the tree had been planted by the municipality and was subject to maintenance by the municipality’s Shade Tree Commission; summary judgment for the defendant was proper because there was no evidence that she had installed the sidewalk or had repaired or maintained the sidewalk or the tree.

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