NEW JERSEY LAWYER

DAILY BRIEFING      10/04/2005


News Briefs

PD BRACED FOR APPEALS IN WAKE OF THOMPSON INSANITY FINDING
The finding of not guilty because of insanity in the child pornography trial of former Camden County Judge Stephen W. Thompson raises a question about the potential for appeals by those convicted in cases before him. Assistant Public Defender Dale E. Jones said that office was braced to review cases in which appellants could question whether Thompson was mentally fit to preside over their cases, but it had not adopted a formal policy prior to last Friday’s ruling by a federal jury in Camden that Thompson was not guilty on a charge of possession of child pornography but convicted him for traveling to Russia to have sex with a teen-age boy and videotaping it. In 2004, after Thompson indicated plans for an insanity plea, criminal defense attorney Alan L. Zegas of Chatham predicted an insanity finding could “open the floodgates” for appeals. However, a three-judge committee appointed by the Supreme Court in 2003 to review Thompson’s cases found no irregularities. 10-3-05

JURY AWARDS $1.6 MILLION TO WOMAN TRAPPED IN GRAVEYARD
In a fitting prelude to Halloween, a Mercer County jury awarded $1.6 million to an Old Bridge woman locked in a Trenton cemetery who broke her leg trying to escape. The jury before Judge Paul Innes found the city of Trenton liable because a municipal worker locked the cemetery gates while Suzanne K. Ogborne was inside in November 2001 taking a walk during a lunchtime break from her job with the state Department of Personnel. Unable to find any other exit, Ogborne scaled an approximately 6-foot-high wall and broke her leg in the drop to the other side. She has returned to work but still has problems with her leg and cannot participate in many of her former recreational activities, said her lawyer Ronald B. Grayzel of Levinson Axelrod in Edison. City attorney Peter J. Cohen appeared for Trenton. 10-3-5

NJ’S FED COURTS AVOID REDUCED HOURS REPORTED NATIONWIDE
Federal courts in and around New Jersey have managed to avoid a resource crisis hitting many other federal courts. The Administrative Office of the U.S. Courts reports 56 of 187 trial and bankruptcy courts have had to reduce operating hours this year because of a shortage of personnel or funding; those courts in New Jersey, Philadelphia and the Southern District of New York haven’t experienced any reductions. By contrast, courts in the Eastern District of Virginia are reducing hours a total 80 hours per week and the Southern District of Florida a total 55 hours. 10-3-05

COMMUNITY ASSISTANCE A BOON FOR PAROLE BOARD
Reaching for help from local groups has been a ringing success for the state Parole Board. It said the first year of its Community Partnership Unit, which works with colleges and faith-based groups to help ex-convicts rejoin society has helped establish seven local programs that assist ex-convicts find jobs, housing or deal with personal problems plus a statewide program supported by the Salvation Army, churches and nonprofit organizations. In addition, an employment assistance effort the Parole Board recently launched with the Department of Labor attracted 2,500 parolee registrants and helped find jobs for about 200. 10-3-05

THREE-PRONGED THRESHOLD SET FOR ID THEFT CASES
Identity theft and credit monitoring cases must meet the same burden of proof applied to toxic torts and medical monitoring cases, a federal judge in Arizona ruled in overturning a suit filed by three people whose personal information was stolen from a health insurance management company’s database. In Stollenwerk v. Tri-West Healthcare Alliance, Judge Susan R. Bolton said plaintiffs in such cases must at minimum show there was a significant exposure of their personal data, a significant increase in the risk of identity theft as a result of that exposure and the necessity of credit monitoring to detect, treat or prevent identity theft. The plaintiffs alleged they became potential victims of identity theft when computer hard drives containing their personal data were stolen from Tri-West Healthcare Alliance. 10-3-05

CORRECTION
An item in the Sept. 30 Daily Briefing reporting Paul G. Nittoly will be installed president of the Trial Attorneys of New Jersey incorrectly listed his practice areas. He is a certified civil and criminal trial attorney and a member of Drinker Biddle & Reath’s white-collar and corporate investigations, litigation, and labor and employment groups. 10-3-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, OCTOBER 3, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, OCTOBER 3, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, OCTOBER 4, 2005.


APPROVED FOR PUBLICATION
INSURANCE
ALLSTATE INSURANCE CO. v. SABATO
Appellate Division, A-380-04T2, approved for publication October 3, 2005. (17 pages). Facts-on-Call Order No. 92680

In the appeal of a Law Division order (1) that vacated a PIP alternative dispute resolution award finding that the plaintiff insurer acted in bad faith and (2) that reduced the attorney’s fees awarded to the defendant doctor, the issue of the insurer’s bad faith was not cognizable under the Alternative Procedure for Dispute Resolution Act. However, the issue of attorney’s fees could be reviewed because it was within the exclusive supervisory powers of the court, and reversal and remand was required on that issue.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
VALENTINE v. BRUNO
Appellate Division, A-2563-03T5, October 3, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18602

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff had been injured in a prior slip-and-fall accident; the plaintiff’s medical evidence was “manifestly insufficient” to satisfy the standard under Polk v. Daconceicao (1) because the reports from the plaintiff’s doctor did not indicate that he had reviewed any of the medical records from the slip-and-fall accident and did not explain the reasons for his conclusion that the injuries were caused by the automobile accident and not the slip-and-fall accident and (2) because the plaintiff failed to follow the doctor’s advice to undergo MRI and EMG testing after the slip-and-fall accident, so that there was no basis to conclude that the MRI and EMG results after the automobile accident revealed injuries from that accident rather than the slip-and fall accident.

INSURANCE
WOOTEN v. MARTILLA
Appellate Division, A-4470-03T3, October 3, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18603

Summary judgment for the defendants in an action arising from a motor vehicle accident reversed and remanded as to the plaintiff’s claim for pain and suffering but affirmed as to her claim for economic loss in the form of uncompensated medical expenses; in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the trial court erred by granting summary judgment on the pain and suffering claim under AICRA based on the plaintiff’s failure to demonstrate that her injury caused a “substantial impact” on her life, and the plaintiff’s proofs of a permanent injury were sufficient to defeat summary judgment on that claim; contrary to the plaintiff’s arguments on appeal, N.J.S.A. 39:6A-2k of AICRA does not permit recovery of uncompensated medical expenses, and AICRA did not substantially modify the statutory language underlying Roig v. Kelsey, which barred recovery of those expenses under the prior Automobile Reparation Reform Act.

NEGLIGENCE
SVARC v. L & A FORWARDING, INC.
Appellate Division, A-1073-04T2, October 3, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18599

Judgment for the defendant after a jury trial in an action alleging that the defendant negligently damaged the plaintiff’s tractor-trailer while loading it at the defendant’s warehouse affirmed; after learning that the load was four pallets of steel that weighed about 40,700 pounds, the plaintiff observed the load, accepted it, and waved the defendant’s forklift operator into his trailer; the forklift operator heard “creaking” when he started to load the trailer and declined to deliver the load; contrary to the plaintiff’s argument on appeal, the jury verdict did not constitute a miscarriage of justice where the plaintiff did not offer expert testimony about the defendant’s standard of care and where the plaintiff was in the “ideal position” to prevent damage to his trailer; under the circumstances, the jury reasonably could have concluded that any damage to the trailer arising from negligence was attributable to the plaintiff rather than the defendant.

TORT CLAIMS ACT
O’BRIEN v. TOWNSHIP OF FRANKLIN
Appellate Division, A-6316-03T1, October 3, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18601

Denial of the plaintiff’s application to extend the time to file a Tort Claims Act notice of claim affirmed substantially for the reasons expressed by the motion court; the plaintiff asserted that he was injured on April 28, 2003 when he stepped in a pothole in the road; the plaintiff’s conduct defeated “the essential purpose” of providing a notice of tort claim, and his application was properly denied (1) where, on May 27, 2003, he filed a preliminary notice of claim, which did not indicate the location of the accident as required by N.J.S.A. 59:8-4(c), (2) where he failed to complete the tort claim forms for the defendant municipality and the defendant county until almost one year after the accident and still did not indicate the location of the accident, (3) where he did not notify the defendants of the location of the accident until April 29, 2004, and (4) where he gave no reason for the late submission of the forms or for his failure to timely notify the defendants of the location of the accident.

CIVIL PROCEDURE
PRO-SPEC PAINTING, INC. v. ONE BEACON INSURANCE CO.
Appellate Division, A-927-04T3, October 3, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18605

Dismissal of the plaintiff painting contractor’s complaint for recovery of $28,791.50 on a performance and payment bond from the defendant surety affirmed; the principal contractor terminated the plaintiff on February 12, 2002, and the plaintiff notified the surety in a certified letter on June 21, 2002 of the amount owed; on August 19, 2002, the plaintiff sued only the principal contractor, which filed for bankruptcy about a year later; the plaintiff sued the surety on June 10, 2004; the trial court found that the complaint was barred by the one-year statute of limitations set forth in N.J.S.A. 2A:44-145; contrary to the plaintiff’s arguments on appeal, (1) notice of the amount owed to the surety during the one-year period did not render it inequitable to apply the statute of limitations, (2) the surety’s alleged willful violation of its statutory obligation to pay the plaintiff after receiving notice did not prevent the surety from relying on the statute of limitations, and (3) the statute of limitations was not tolled by the plaintiff’s suit against the principal contractor.

CONTRACTS
UNGER v. WESTSIDE PICTURES, INC.
Appellate Division, A-5923-03T2, October 3, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18600

Judgment after a bench trial dismissing the complaint with prejudice in an action for breach of contract, common law fraud, and unjust enrichment affirmed; the plaintiff and the defendant film production company entered into a contract under which the plaintiff invested $206,700 for the production of a film that was to be based on a novel, the rights to which the film company had optioned from a third party; the film company “advanced substantial sums of money” to the third party, who then declined to go through with his option agreement; the film company refunded $30,000 to the plaintiff as a partial return of his investment; the film company defaulted in the plaintiff’s action, and the trial proceeded against the individual defendants, who were principals of the film company; the trial court found that the only basis for liability against the individual defendants was fraud but that the third party’s failure to consummate the option agreement was not due to any fault by them; there was no basis for reversing the trial court’s conclusion that the plaintiff failed to prove fraud by clear and convincing evidence.

CONSUMER PROTECTION
MINNETT v. COMMERCE BANK, N.A.
Appellate Division, A-6430-03T2, October 3, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18604

Summary judgments for the defendants and dismissal on the basis of preemption of an action that alleged violations of the New Jersey banking laws and the Consumer Fraud Act affirmed; the plaintiff challenged the points that the defendant national bank charged him at the origination of a second-mortgage loan and a prepayment fee that the bank’s assignee charged him when he prepaid the loan; the trial court ruled that the National Bank Act preempted the state law claims and that the points and prepayment fee could lawfully be charged under certain state banking laws; while agreeing that the plaintiff’s state laws claim were preempted, the Appellate Division chose not to discuss state law because the plaintiff did not allege a violation of the Act; nonetheless, the Appellate Division expressed “tentative agreement” with the proposition that New Jersey banks may be authorized to charge origination fees and prepayment penalties because national banks located in New Jersey are allowed to do so under the federal “most favored lender” doctrine.


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