NEW JERSEY LAWYER

DAILY BRIEFING      10/27/2005


News Briefs

MED-MAL RELIEF CHECKS ON WAY TO DOCTORS
Checks are finally on their way to doctors from a state fund, supported partly by an assessment on lawyers, to help physicians in high-risk practices pay for their malpractice insurance. The Department of Banking and Insurance is sending an average of $11,000 each to 1,200 doctors. The payments are the first sent under a law enacted in June 2004 that created the fund with a $75 surcharge on lawyers and medical professionals, and a $3-per-worker surcharge on employers. 10-26-05

SERVICES FOR STARK & STARK CO-FOUNDER
Services are Thursday for Amel Stark, co-founder of Stark & Stark in Lawrenceville and a retired bankruptcy court judge, who died Monday at age 91. He was the oldest member and former president of the Mercer County Bar Association. He co-founded his firm with his brother, the late Sidney Stark, in the late 1930s and, with the exception of a stint in the U.S. Army from 1941-1945, remained there until 1969 when he was sworn in as a judge in New Jersey’s U.S. Bankruptcy Court. After retiring from the bench in 1985, he returned to the firm and was active there until about a year ago. Services begin at 2 p.m. at Har Sinai Temple, 491 Bellevue Ave., Trenton. 10-26-05

DECREE EXPANDS DISABILITIES ACT TO ACCOMODATE MENTAL ILLNESS
More extensive application of the federal Americans with Disabilities Act (ADA) to people with mental disabilities may be in the offering as a result of the recent agreement by Home Depot to pay $75,000 to a mentally disabled former employee whose supervisor fired her without first consulting her job coach. The company also agreed to maintain closer contact with disabled workers’ job coaches in a consent decree signed with the Equal Employment Opportunity Commission in New York. The commission complained the company’s failure to notify the coach of the fired worker’s disciplinary problems violated the ADA’s “reasonable accommodation” provision, which has primarily been applied to providing special arrangements that deal with physical disabilities. 10-26-05

AMERICAN ARBITRATION ASSOCIATION TAKES ON REAL ESTATE WORK
The American Arbitration Association, which has about 200 members in New Jersey, has signed on as the exclusive provider of arbitration services for a new appraisals and evaluations unit of the National Community Reinvestment Coalition legal rights advocacy group. The association will make its staff, local market members and online case management system available to handle disputes primarily between lenders, appraisers, brokers and other real estate professionals. It expects to assign members to the cases on an “expedited basis.”10-26-05

HOT COFFEE FOILS CARJACKING
Police in Bluffton, S.C., are searching for a would-be carjacker who was thwarted by a hot cup of coffee. When the suspect tapped on the window of a car, pointed his gun and motioned for the driver to get out, the driver pushed the door open and threw his piping hot coffee on the would-be carjacker’s face. The suspect then fled into a wooded area. One thing’s for certain. There won’t be a lawsuit about the coffee being too hot.10-26-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, OCTOBER 26, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, OCTOBER 26, 2005.

THE SUPREME COURT has announced that it will release an opinion in STATE v. DENNIS, A-78, on October 27, 2005. The issue on appeal in Dennis addresses whether the defendant’s Sixth Amendment right to counsel was violated when he was not represented at a probable cause hearing in a Municipal Court.



APPROVED FOR PUBLICATION
EDUCATION
IN RE DIVISION OF ASSETS AND LIABILITIES AMONG THE CONSTITUENT DISTRICTS OF LOWER CAMDEN COUNTY REGIONAL HIGH SCHOOL DISTRICT NO. 1
Appellate Division, A-1595-03T5, A-1616-03T5, and A-1668-03T5, approved for publication October 26, 2005. (21 pages). Facts-on-Call Order No. 92706

The State Board of Education may order a deviation from the strict application of the statutory formula for the distribution of the liquid assets of a dissolved regional school district among the constituent districts if it finds that the regional district’s debt is so small that allocation of that debt cannot achieve an equitable allocation of the regional district’s assets and liabilities.

NOT APPROVED FOR PUBLICATION
INSURANCE
JACKSON v. ATLANTIC
Appellate Division, A-1526-04T5F, October 26, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18723

Summary judgment for the fourth-party plaintiff insurance broker on his claim for professional liability coverage under a policy issued by the fourth-party defendant insurer affirmed; in the underlying action, the plaintiff tenants alleged lead paint exposure against the defendant landlords, and the landlords alleged in a third-party complaint that the broker failed to obtain insurance coverage for lead paint exposure despite their specific request for that coverage; the insurer had denied coverage to the broker based on a pollution exclusion in its policy; in a matter of first impression in New Jersey, the Appellate Division resolved in favor of the broker the issue of whether a professional liability policy covers the broker’s alleged professional negligence for failing to obtain a policy that covered lead exposure in an action where the underlying case involves lead exposure; the policy provided coverage for a “wrongful act,” which “clearly” was defined to include professional negligence, and the broker could not reasonably have expected a fourth-party complaint arising from the underlying claim of lead exposure to be subject to the pollution exclusion.

MEDICAL MALPRACTICE
NELSON v. BLACKSTONE
Appellate Division, A-4576-03T5, October 26, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18722

Summary judgment for the defendant doctors and denial of the plaintiff’s motion for reconsideration in a medical malpractice action reversed and remanded for trial; the trial court had concluded that the opinion of the plaintiff’s expert about the causal connection between the plaintiff’s injuries and the defendants’ alleged malpractice was a net opinion; this case was governed by the modified Scafidi v. Seiler standard of causation because the plaintiff’s penile fracture and his resulting Peyronie’s disease were pre-existing conditions and because the defendants’ alleged malpractice consisted of a failure to provide treatment that would have maximized the plaintiff’s opportunity for a cure of those conditions; under Scafidi, the opinion of the plaintiff’s expert provided a “sufficient foundation” for the causation element in a pre-existing condition case because it could support a finding of a lost chance of recovery.

WORKERS’ COMPENSATION
SIMONS v. VISITING NURSE ASSOCIATION
Appellate Division, A-4150-03T3, October 26, 2005, not approved for publication. (25 pages). Facts-on-Call Order No. 18720

Division of Workers’ Compensation award of 27 percent partial total disability to the petitioner employee of the respondent Visiting Nurse Association on a claim arising from a 1997 automobile accident that occurred during the course of her employment affirmed in part and reversed in part; the judge of compensation’s conclusion that the employee had a neuropsychiatric disability was not supported by sufficient objective medical evidence and therefore was reversed; contrary to the Association’s arguments on appeal, (1) the judge of compensation’s findings that the employee had a cervical spine disability and a carpal tunnel disability were supported by the record and (2) the testimony of the employee’s orthopedic expert was not a net opinion; contrary to the employee’s arguments in her cross-appeal, she did not prove that she had a lumbar spine disability because she did not establish that her lumbar spine injury resulted from her 1997 accident rather than a later accident.

SETTLEMENTS
IN RE ESTATE OF CHIAPPA
Appellate Division, A-881-03T2, October 26, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18719

Amended judgment that enforced a settlement agreement between the estate and the respondent court-appointed guardian of the decedent reversed and remanded for an evidentiary hearing; the agreement was reached on October 30, 2002 to settle the estate’s suit against the guardian for misappropriation and mismanagement of the decedent’s assets; the appellant executor was not present at the negotiations or at the recitation of the agreement for the court reporter, and he denied that his attorney was authorized to negotiate a settlement agreement or that the executor had approved the terms of the agreement; under the circumstances, the trial court should not have enforced the agreement without conducting a hearing to determine whether the executor had authorized his attorney to enter into a settlement agreement on October 30, 2002 and whether the executor had approved the agreement’s terms.

DRUNK DRIVING
STATE v. FULLER
Appellate Division, A-351-04T3, October 26, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18724

Conviction following a guilty plea to driving while intoxicated and sentence as a third-time offender affirmed; based on his admissions before the Municipal Court and the Law Division that he had three prior DWI convictions, the defendant knowingly waived the State’s requirement to produce a certified abstract of his prior convictions; the Municipal Court and the Law Division did not err by sentencing the defendant as a third-time offender; although the defendant’s fourth conviction occurred more than 10 years after his third conviction in 1989, the interpretation of the step-down provisions of N.J.S.A. 39:4-50(a)(3) in State v. Lucci required that the defendant be sentenced as a third-time offender.

NEGLIGENCE
SAGUI v. DEVINE
Appellate Division, A-6710-02T1, October 25, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18716

Judgment for the defendant following a jury trial in an automobile negligence action affirmed; the defendant admitted that he was negligent, but the plaintiff’s claims were “sharply contested” as to her injuries and damages; the trial court denied the plaintiff’s motion for a directed verdict at the close of the evidence on the issues of whether she had established the proximate cause of her injuries and whether she had satisfied the verbal threshold; after the jury returned a verdict for the defendant based on a finding that his negligence was not a proximate cause of the plaintiff’s injuries, the trial court denied the plaintiff’s motions for judgment notwithstanding the verdict, for a directed verdict on the verbal threshold issue, and for a new trial; contrary to the plaintiff’s arguments on appeal, the trial court properly denied her motions.

REAL PROPERTY
ALDEN LEEDS, INC. v. TOWN OF KEARNY
Appellate Division, A-3289-03T3, October 25, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18717

Law Division judgment that affirmed the decision of the defendant Town’s Construction Board of Appeals that the plaintiff’s warehouse was subject to the Uniform Fire Code and that an automatic fire suppression system had to be installed affirmed; the warehouse was used to pack and store chlorine tablets, and it thus had a high risk of fire; the plaintiff argued that its warehouse was not subject to the UFC pursuant to N.J.A.C. 5:70-4.3(a), which provides that buildings that comply with the subcodes adopted under the Uniform Construction Code Act, that comply with the regulations in force at the time of their construction, and that have a valid certificate of occupancy will not be required to conform with the more restrictive requirements of the UFC; however, the warehouse “at best” complied with only two of the three elements of N.J.A.C. 5:70-4.3(a) because there was no proof that the warehouse complied with the Uniform Construction Code; the fact that the Town had allowed the plaintiff to use its warehouse without a fire suppression system for 30 years did not warrant exemption from future compliance with the UFC.

PARENT AND CHILD
DelPIZZO v. COSTANZO
Appellate Division, A-864-04T1, October 25, 2005, not approved for publication. (18 pages). Facts-on-Call Order No. 18718

Family Part order that directed the plaintiff paternal grandparents and the defendant mother to engage in counseling to facilitate unsupervised visitation by the grandparents in the future affirmed; the mother and the father married in 1991, had two children, and divorced in 1998; the father died of a heroin overdose in 2002; the evidence supported the Family Part’s determinations (1) that visitation was needed to prevent harm to the children because the grandparents had a loving relationship with the children before the father’s death that continued after his death and (2) that the greater harm would be to terminate that loving relationship; the grandparents satisfied their burden of demonstrating harm sufficient to support the Family Part’s limited order for counseling as a prerequisite to visitation, which was conditioned on a finding in a later proceeding that it was in the best interests of the children.


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