NEW JERSEY LAWYER

DAILY BRIEFING      10/03/2005


News Briefs

WILL TWO LAWYERS BE FACING OFF FOR MAYOR OF NEWARK?
So far it’s still in the rumor mill, but the possibility that Newark Mayor Sharpe James won’t seek re-election in May and seemingly is in the process of attempting to handpick a successor is being reported by The Star-Ledger of Newark. And the man James reportedly already approached, the paper says, is former New Jersey Public Advocate Wilfredo Caraballo, currently an assemblyman and professor at Seton Hall University School of Law. So what’s up with James? The speculation is he’s aiming to make sure the person who ran against him in the past isn’t a shoo-in for the mayor’s job this time. James’ nemesis is Newark lawyer Cory A. Booker, a partner at Booker, Rabinowitz, Trenk, Lubetkin, Tully, DiPasquale & Webster. If past Newark elections are a barometer, this one has the makings of a brawl. 9-30-05

15-MONTH FOOT-DRAGGING IN SETTING UP MED-MAL TASK FORCE
When is a crisis seemingly not a crisis? When the legislature and governor call for a study group to look at critical issues in medical malpractice costs and it takes more than one year just to get the people together. The legislation, passed after many doctors participated in a one-day strike, created the Medical Care Availability Task Force to examine, among other things, whether caps on jury awards would help alleviate the medical malpractice insurance crisis. The measure was signed into law June 7, 2004, and the group didn’t hold its first full meeting until this Sept. 20 — 470 days later. The task force has two years from the date of its first meeting to submit a report. The 2004 Medical Care Access and Responsibility and Patients First Act is the same law that assessed lawyers $75 annually for three years to help subsidize doctors’ malpractice insurance premiums. A full story is in the Oct. 3 New Jersey Lawyer. 9-30-05

DRINKER BIDDLE’S NITTOLY AT TANJ HELM
When Paul G. Nittoly becomes the new president of the Trial Attorneys of New Jersey Oct. 20, he continues somewhat of a tradition for his firm, Drinker Biddle & Reath in Florham Park. “This firm and our predecessor firm have had a good number of people who’ve been active with TANJ and for me it’s an honor to be part of that,” he said. Nittoly, who focuses on white-collar crime and environmental law, will be the fourth TANJ president since 1979 from Drinker Biddle or the former Shanley & Fisher, which merged into Drinker Biddle in 1999. 9-30-05

HOLD THE KETCHUP, DOUBLE THE PICKLE, PASS THE PAYCHECK
If servers in fast-food places are smiling a bit more, credit the New Jersey legislature. The state’s minimum wage went from $5.15 to $6.15 an hour Oct. 1 — the first increase since 1999. It will rise to $7.15 a year from now. The change continues to be criticized by the state’s largest business lobbying organization, the Trenton-based New Jersey Business & Industry Association, warning such “aggressive” boosts could force small businesses to close or reduce employee benefits. Although a number of businesses here already have been paying more than the minimum wage, officials say the increase will affect the paychecks of some 200,000 workers. 9-30-05

KPMG, LAW FIRM SETTLE WITH TAX-SHELTER CLIENTS
The accounting firm KPMG and the international law firm Sidley Austin Brown & Wood have agreed to pay $195 million to settle a suit by investors who bought into tax shelters on their advice. Some 280 clients sued when the shelters didn’t meet IRS standards. KPMG is facing dozens of similar lawsuits, and the settlement filed in federal court in Newark last week applies only to investors who received advice through Sidley Austin. The payout is about the same the investors paid in fees and doesn’t come close to covering their actual losses, according to investor attorneys. KPMG is still fighting the other suits, arguing investors were aware of the risk. 9-30-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, SEPTEMBER 30, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, SEPTEMBER 30, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, OCTOBER 3, 2005.


APPROVED FOR PUBLICATION
INSURANCE
NEW JERSEY MANUFACTURERS INSURANCE CO. v. DELTA PLASTICS CORP.
Appellate Division, A-2126-03T5, approved for publication September 30, 2005. (18 pages). Facts-on-Call Order No. 92679

The Appellate Division adhered to its recent decision in Charles Beseler Co. v. New Jersey Mfrs. Ins. Co. and held that the exclusion for “bodily injury intentionally caused” in an employer’s liability insurance policy is not congruent with the “intentional wrong” exception to the exclusive remedy provision of the Workers’ Compensation Act. The insurer must provide a defense to an employee’s common law complaint for injury resulting from conduct by the employer that was “substantially certain” to cause injury but was not specifically intended to injure. Judge Coburn dissented.

NOT APPROVED FOR PUBLICATION
PUBLIC EMPLOYMENT
NEW JERSEY TRANSIT BUS OPERATIONS, INC. v. AMALGAMATED TRANSIT UNION, NEW JERSEY STATE COUNCIL
Appellate Division, A-86-04T2, September 30, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18597

Final judgment that confirmed two arbitration awards in favor of the defendant union relating to benefits for part-time bus operators reversed; the arbitrator had concluded that the parties’ collective bargaining agreement required part-time operators to be paid (1) for the five-minute period between the time when they had to report to work and their scheduled pull-out time and (2) for the time they spent completing accident reports; however, the CBA provisions on which the arbitrator relied applied only to full-time operators; under the “plain terms” of the CBA, part-time operators were not entitled to pay for the two time periods in dispute; therefore, the arbitrator exceeded the scope of his authority under the CBA.

HUSBAND AND WIFE
ALI v. ALI
Appellate Division, A-3461-03T5 and A-5135-03T5, September 30, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18593

Post-divorce-judgment orders affirmed; no record was made for one order because it was entered without a hearing, and the defendant ex-husband’s submissions on appeal did not reveal any written findings or conclusions by the trial court to explain that order as required by Rule 1:7-4; based on the evidence, however, the trial court did not abuse its discretion (1) by compelling the ex-husband to pay attorney’s fees that he had not paid under earlier orders and (2) by permitting the plaintiff ex-wife to obtain payment of the fees through an equity loan secured by property that the ex-husband owned; the ex-husband’s motion to reverse the divorce judgment — which was filed more than a year after the judgment was entered and which alleged fraud, misrepresentation, and other misconduct by the ex-wife and her attorneys — was untimely as either a motion for reconsideration or a motion for relief from judgment.

CRIMINAL TRIALS
STATE v. CHAPMAN
Appellate Division, A-4672-03T4, September 30, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18598

Convictions of second-degree eluding and fourth-degree receiving stolen property after a trial in absentia affirmed but the sentence remanded for resentencing; the trial court imposed a 10-year prison term with five years of parole disqualification on the eluding conviction and a concurrent 18-month prison term on the receiving stolen property conviction; the trial court did not abuse its discretion by allowing the trial in absentia, and it did not err by denying the defendant’s motion for a new trial after determining that he had waived his appearance through conduct that evidenced a knowing, voluntary, and unjustified absence after receiving actual notice of the trial date; the defendant’s other arguments regarding the convictions also lacked merit; however, remand was required under the New Jersey Supreme Court’s recent decisions in State v. Natale and State v. Abdullah because the sentence imposed was above the presumptive term; at the resentencing, the defendant will have the right of allocution.

CIVIL PROCEDURE
MACK v. SAMAY
Appellate Division, A-951-04T5, September 29, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18591

Post-divorce-judgment order granting the plaintiff ex-wife’s motion to release certain escrow funds from the sale of the former marital home and denying on the basis of the doctrine of laches the defendant ex-husband’s cross-motion affirmed substantially for the reasons expressed by the trial court; the defendant’s motion sought a plenary hearing on his claim to the funds for child support and other expenses more than 11 years after the right to a plenary hearing had been recognized; the length of the delay in this case was “extraordinary,” and application of the doctrine of laches was “particularly appropriate” because it “would be contrary to the efficient administration of justice in the Family Part” to allow “this stale, essentially abandoned claim” to use any more of the Family Part’s time and energy.

LAW AGAINST DISCRIMINATION
BISPO v. McKESSON INFORMATION SOLUTIONS, CORP.
Appellate Division, A-5007-03T3, September 29, 2005, not approved for publication. (26 pages). Facts-on-Call Order No. 18592

Summary judgment for the defendant employer and two of its executives reversed and remanded as to the plaintiff employee’s claim of discriminatory discharge under the Law Against Discrimination but affirmed as to her other claims; the plaintiff was terminated — allegedly for her poor performance — after informing the employer that she was pregnant, and she was replaced by a man; the defendants had moved for summary judgment about four months before the discovery end date, and the trial court granted their motion and dismissed the plaintiff’s complaint with prejudice without addressing her argument that the motion was premature because discovery was incomplete; contrary to the trial court’s conclusion, the plaintiff had established a prima facie case of discriminatory discharge; however, on the issue of whether there was sufficient evidence in the record to allow the finder of fact to determine whether the employer’s proffered reason for termination was pretextual, the court concluded that the record was incomplete, and it remanded for further discovery.

EMINENT DOMAIN
NEW JERSEY TRANSIT CORP. v. MECCA & SON TRUCKING CO., INC.
Appellate Division, A-5643-03T3, September 29, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18589

Jury verdict of $1.7 million for the defendant property owner in an eminent domain action affirmed; the plaintiff, New Jersey Transit, sought to condemn the property to construct a storm water detention basin to prevent flooding on railroad tracks; at the trial, NJT’s appraiser valued the property for residential use at $700,000, and the owner’s appraiser valued it at $1.97 million; contrary to NJT’s arguments, the trial court (1) had sufficient support for its decision to keep evidence of environmental contamination from reaching the jury and (2) did not abuse its discretion by precluding NJT from cross-examining the defendant’s testifying appraiser with a report of a non-testifying appraiser or by declining to allow the jury to view the property because it had changed significantly from the time that NJT had condemned it.

REAL PROPERTY
FREEMAN v. SANDLAUFER
Appellate Division, A-2687-03T5, September 29, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18588

Summary judgment for the plaintiff buyers of residential property and denial of their motion for attorney’s fees in this action for the return of their deposit affirmed; the defendant property owner refused to return the deposit after the buyers cancelled the contract to purchase the property based on the results of a home inspection and the failure of negotiations over the repair of “structural defects” revealed by the inspection; two of the items listed by the buyers as needing repairs were supported by the home inspection report and fell within the “structural defects” provision of the contract; without the seller’s making of satisfactory repairs, which would have required invasive inspection, the buyers were entitled to cancel the contract and to have their deposit returned; the trial court properly rejected the buyers’ reliance on the offer of judgment rule for an award of attorney’s fees.

PREMISES LIABILITY
FITZHARRIS v. BUTCH KOWAL’S TAVERN
Appellate Division, A-6620-03T1, September 30, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18594

Final judgment against the defendant tavern and order denying the tavern’s motion for a new trial in a premises liability action affirmed; the plaintiff was a bystander who was injured when a fight broke out in the tavern; there was no bouncer at the tavern, and, at trial, no expert testimony on the need for a bouncer was presented; contrary to the tavern’s argument, the remarks made by the plaintiff’s attorney during summation about the need for a bouncer were harmless under the circumstances; although the owner of a business owes a patron a duty of ensuring reasonably safe business premises, the need for crowd control in a crowded, noisy bar in which a band was performing was within the common knowledge of the jury, and, therefore, the testimony of a security expert was not necessary for the jury to conclude properly that there should have been “some form of security.”

CIVIL PROCEDURE
CHONG WON CHOI v. AN
Appellate Division, A-3375-03T5, September 30, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18595

Judgment dismissing the plaintiff’s claim against the corporate defendant which operated a tavern and which defaulted in a premises liability action affirmed; the plaintiff was assaulted by the individual defendants in a municipal parking lot next to the tavern; the individual defendants, who had a business interest in the tavern, settled with the plaintiff before trial; the plaintiff’s claim against the corporation was based on the proposition that one of the individual defendants was served excessive amounts of alcohol; however, there was no trial or deposition testimony as to how much alcohol the individual defendant had consumed or whether he was intoxicated; at the default hearing, the plaintiff could not present proof of the corporation’s liability; under the circumstances, the plaintiff was not entitled to rely on the final judgment by default, and the trial court did not abuse its discretion under Heimbach v. Mueller by requiring a proof hearing on liability.

LAND USE
WERSINGER v. ERCOLINO
Appellate Division, A-6903-03T1, September 30, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18596

Law Division order that dismissed the plaintiff neighbor’s complaint in lieu of prerogative writs to vacate a statutory default approval issued to the defendant bakery operator under N.J.S.A. 40:55D-37 and that rejected the neighbor’s request that the operator be required to obtain site plan approval affirmed; in an earlier decision, the Appellate Division had ordered that the neighbor could intervene in the defendant Zoning Board’s action against the operator; contrary to the neighbor’s argument on appeal, the earlier decision had remanded the matter to the Law Division to allow the neighbor to participate fully in the Law Division proceedings that challenged the validity of the statutory default approval, but it had not remanded the matter to the Zoning Board to allow the neighbor to participate in a hearing on the merits of the underlying dispute; the Law Division gave the neighbor a full opportunity to participate in its proceedings.

FROM THE ADMINISTRATIVE AGENCIES
COMMUNITY AFFAIRS
PENNINGTON HILLS, L.L.C. v. DEPARTMENT OF COMMUNITY AFAIRS BUREAU OF HOMEOWNERS PROTECTION, NEW WARRANTY PROGRAM
OAL Docket No. CAF 10155-04, Agency Docket No. BHP-711-04-5/NH-130-04, Initial Decision: August 8, 2005, Final Agency Decision: September 21, 2005. By Hurd, ALJ. (9 pages).

The Acting Commissioner of the Department of Community Affairs adopted as his final decision the administrative law judge’s initial decision but modified the initial decision by reversing the ALJ’s conclusion that the petitioner company did not violate N.J.A.C. 5:25-2.1 when it sold a new home while it was not a registered builder and by upholding the $2,000 fine that the respondent Bureau of Homeowner Protection had assessed against the company. The ALJ determined that the listing of the company as the seller on the sales contract was an “inadvertent mistake” and that the company’s president did not intend to act fraudulently by listing the company in the contract instead of a second entity of which he also was president. The Acting Commissioner found that the company had previously been denied registration and that the determination of an “inadvertent mistake” was inconsistent with the facts (1) that the second entity’s registration had expired two days after the sales contract was executed and had not been renewed and (2) that the contract later was assigned to a third entity that was controlled by the president and that was a suspended new home builder. The Acting Commissioner found that there was no evidence of any intent to have the house built by a registered builder and that the pattern of facts was inconsistent with any honest intent to comply with the registration requirements.

CIVIL RIGHTS
HEUSSER v. NEW JERSEY HIGHWAY AUTHORITY
OAL Docket No. CRT-1863-98, Agency Docket No. EB27HL-33396, Initial Decision March 11, 2005, Final Agency Decision: August 30, 2005, released for publication September 19, 2005. By Clancy, ALJ. (59 pages).

On the complainant’s application for attorney’s fees and costs, the Director of the New Jersey Division on Civil Rights adopted the administrative law judge’s initial decision as modified. The complainant was a prevailing party under the Law Against Discrimination, and his attorney had contracted during the litigation to pay specified hourly rates to four other attorneys, who either acted as lead counsel or assisted in the litigation. The ALJ had ordered the respondent New Jersey Highway Authority to pay $380,068.86 in attorney’s fees and costs, but the Director increased the award to $456,082.22 after considering all of the ALJ’s findings and the parties’ exceptions. Among other things, the Director concluded (1) that the ALJ erred by treating the legal services provided by three of the contracted attorneys as “costs” and excluding them from the lodestar, (2) that the hourly rate for those three attorneys should be the actual hourly rate paid for their work on the case, plus interest at the historical rates rather than the current rates, (3) that expert fees are available as part of “costs” under the LAD, and (4) that the lodestar amounts should be enhanced by 10 percent instead of the 25 percent found by the ALJ.


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