NEW JERSEY LAWYER

DAILY BRIEFING      10/21/2005


News Briefs

FIVE LAWYERS SEEK STATE BAR SECRETARY POST
With the deadline now past for accepting nominations, five lawyers have stepped forward as candidates for secretary of the New Jersey State Bar Association. The one who gets the nod from the association’s nominating committee is placed on a track that leads to the presidency in six years. The hopefuls are: Peter Tu of the legal department at Savient Pharmaceuticals in East Brunswick, Kevin P. McCann of Chance & McCann in Bridgeton, Susan A. Feeney of Newark’s McCarter & English, Steven M. Richman of Duane Morris in Princeton and Helen Fite Petrin, a Salem solo. All are members of the Bar Association’s board of trustees except Petrin, a past trustee who now serves on the association’s Judicial and Prosecutorial Appointments Committee. 10-20-05

SPRINGFIELD ATTORNEY FIGHTING FAXERS
Robert D. Blau of Springfield’s Blau & Blau has found a new niche: suing senders of unwanted faxes. He estimates he’s filed 290 suits in special civil courts statewide, accusing senders of violating a 1991 federal law that requires advertisers to obtain recipient consent before faxing advertisements. Plaintiffs can collect $500 per violation with triple damages for willful and knowing violations. Blau, who bills on a contingent-fee basis and uses a paralegal for most of the work, says he’s settled more than 200 cases, many at less than $500. The small recoveries are offset by the potential volume. “Everyone gets junk faxes, so everyone’s a potential client,” he said. 10-20-05

HOAGLAND RECEIVING ST. THOMAS MORE MEDAL
John J. Hoagland, of counsel at Hoagland, Longo, Moran, Dunst & Doukas in New Brunswick, will receive the Thomas More Medal from the Roman Catholic Diocese of Metuchen during a Red Mass at the St. John Neumann Pastoral Center in Piscataway on Nov. 6 at 11 a.m. Hoagland, a founding member of his firm from which he stepped down as senior partner in 1998, served as president of the New Brunswick Bar Association in 1970, as commissioner for that city from 1962 to 1967 and as a Middlesex County freeholder from 1968 to 1970. The diocese is reinstituting its Red Mass after a lapse of several years. For further information, call Joanne Ward at (732) 562-2461. 10-20-05

FIVE BIG MACS, HOLD THE LAWSUIT
Under a bill recently approved by the U.S. House of Representatives, fast-food restaurants would be shielded from lawsuits accusing them of making people fat. House Judiciary Committee Chairman James Sensenbrenner (R-Wis.) said the lawsuits’ potential costs threaten the restaurant industry and could force it to raise prices. The industry lobbied for the “cheeseburger” bill in the wake of lawsuits charging McDonald’s of causing obesity in tens of thousands of children. Courts have dismissed most such claims, but an appeals court in New York earlier this year reinstated a suit still pending against the chain. 10-20-05

DOG BITES MAN — AND THAT’S NEWS?
In a case of animal kingdom poetic justice, the author of a New Mexico law that allows felony charges against owners of dangerous dogs is recovering from an attack by his own dog. Robert Schwartz, crime adviser to New Mexico Gov. Bill Richardson, had to be hospitalized for bites on both arms inflicted by either his boxer or one of his two bulldogs. He is credited with helping secure passage last summer of a law allowing felony charges against owners of dogs that are deemed dangerous and seriously injure humans. It’s apparently not out of the question that he could face such a charge. 10-20-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, OCTOBER 20, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, OCTOBER 20, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, OCTOBER 21, 2005.


APPROVED FOR PUBLICATION
INSURANCE
DAVIDSON v. SLATER
Appellate Division, A-551-04T1, approved for publication October 20, 2005. (12 pages). Facts-on-Call Order No. 92701

The requirement under Polk v. Daconceicao of a comparative analysis of prior injuries in the context of a motion for summary judgment based on the verbal threshold most likely does not survive Serrano v. Serrano and DiProspero v. Penn. Disagreeing with Ostasz v. Howard, Lucky v. Holland, and the statement in Bennett v. Lugo that a Polk analysis is required even if aggravation is not claimed.

PUBLIC EMPLOYMENT
RUTGERS COUNCIL OF AAUP CHAPTERS v. RUTGERS, THE STATE UNIVERSITY
Appellate Division, A-4837-03T1, approved for publication October 20, 2005. (15 pages). Facts-on-Call Order No. 92702

On appeal from a final decision of the Public Employment Relations Commission that determined that some provisions of the patent policy adopted by Rutgers University in 1996 were mandatorily negotiable, (1) Rutgers does not have to negotiate the provisions regarding the timing of disclosure of inventions and discoveries and the ownership of laboratory notebooks but (2) Rutgers does have to negotiate the provisions regarding the distribution of royalty income and the reversion rights of inventors.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
JONES v. TRUNK
Appellate Division, A-3133-04T2, October 20, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18690

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff injured her right shoulder and lower back in her April 2003 accident with the defendant; before April 2003, the plaintiff had been involved in four accidents and had suffered injuries to her leg, back, and head; the trial court determined that the plaintiff had not satisfied the verbal threshold (1) as to her back injury based “largely” on the lack of a comparative analysis under Polk v. Daconceicao and (2) as to her shoulder injury based on her doctor’s report, which did not indicate that the injury was sufficiently “serious”; the plaintiff asserted that she had “completely and fully recovered” from her earlier injuries and that she was asymptomatic at the time of her April 2003 accident; however, a Polk comparative analysis was required, and the reports of her doctor did not satisfy the plaintiff’s burden.

VERBAL THRESHOLD
SOTTILE v. FLEMMING
Appellate Division, A-4244-03T1, October 20, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18689

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the plaintiff had injured his neck in a 1999 accident and had injured his jaw and lumbar spine in his May 2000 accident with the defendant; the trial court erred by dismissing the complaint due to the lack of a comparative analysis under Polk v. Daconceicao because the plaintiff did not allege that his May 2000 accident aggravated a pre-existing injury or condition and because the defendant did not present evidence that the plaintiff had suffered earlier injuries to his jaw or his lower back; if a jury finds that the plaintiff and his experts are credible, it could reasonably determine that the plaintiff had sustained permanent injuries under §39:6A-8a.

WORKERS’ COMPENSATION
CUEVAS v. S & J ELECTRIC
Appellate Division, A-4336-03T1, October 20, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18691

Division of Workers’ Compensation judgment that the respondent employer was responsible for injuries sustained by the petitioner electrician when he sneezed while recuperating from an earlier work-related back injury affirmed; the petitioner sneezed while lying in bed at home, experienced “increased and immobilizing pain” immediately, and later was diagnosed with a disc herniation; the evidence supported the judge of compensation’s implicit finding that the injuries caused by the sneeze were a “logical progression” from his work-related injury; the sneeze was “purely innocent and involuntary” and, as a matter of law, was not an intervening superseding event that relieved the employer from liability for the consequences of the injuries that occurred in the petitioner’s home.

PUBLIC EMPLOYEES
IN RE NARDONE
Appellate Division, A-5207-03T2, October 20, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18692

Final decision of the Merit System Board that determined that the appellant applicant was ineligible for the position of Storekeeper 2 with the Commission for the Blind and Visually Impaired affirmed; the Board found that the applicant did not satisfy the experience requirements to qualify for the promotional examination, and it held that a desk audit could not be performed as to the work that the applicant had done in the past to partially satisfy the experience requirements; contrary to the applicant’s arguments on appeal, (1) the Board’s decision regarding the experience requirements was not arbitrary, capricious, or “motivated by bad faith” and (2) the denial of a desk audit did not violate his due process rights or N.J.A.C. 4A:3-3.9.

DAMAGES
COAST AUTOMOTIVE GROUP, LTD. v. ASPEN KNOLLS AUTOMOTIVE GROUP, LTD.
Appellate Division, A-1016-04T1, October 19, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18687

Summary judgment for the defendants affirmed on the plaintiffs’ claim for damages that were not precluded by an earlier order, which provided that a settlement did not release the parties from claims for certain damages that were based on fraudulent or commercially unconscionable practices or breaches of the covenant of good faith and fair dealing that occurred after February 9, 2000; the trial court correctly determined that the plaintiffs’ claim should not proceed; the summary judgment motion required the plaintiffs to make a proffer of the damages that they anticipated they could prove, but the plaintiffs’ response contained “nothing other than speculation,” even though they had to know — after about six years of litigation — what opportunities they had lost and what benefits they had forgone as a result of the defendants’ fraudulent conduct.

HUSBAND AND WIFE
ETTINGER v. ETTINGER
Appellate Division, A-1862-04T5, October 19, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18688

Post-divorce-judgment orders that, among other things, denied the plaintiff ex-wife’s requests for her rehabilitative alimony to be converted to permanent alimony and for reimbursement of freshman-year college tuition for the parties’ son affirmed; as to alimony, the ex-wife did not establish changed circumstances to justify the conversion (1) because the parties knew when they entered into their property settlement agreement — which provided for seven years of rehabilitative alimony — that the ex-wife had a limited earning capacity but she nonetheless agreed to limited alimony, (2) because she had “far exceeded” her predicted earning capacity, and (3) because she did not show that her current unemployment was more than temporary; as to the tuition, the trial court did not abuse its discretion by denying reimbursement based on the failure to timely apply for relief.


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