NEW JERSEY LAWYER

DAILY BRIEFING      10/06/2005


News Briefs

SEVEN OF 35 TROPICANA GARAGE COLLAPSE SUITS SETTLED
Of 35 suits seeking damage awards from the 2003 parking garage collapse at Atlantic City’s Tropicana Casino and Resort, seven have settled, according to Atlantic County Civil Division Manager Teresa Ungaro. Those settlements were handled by plaintiffs’ attorneys Paul R. D’Amato of D’Amato-Wolfe-Cocchi in Linwood and Robert Mongeluzzi of Cherry Hill’s Saltz Mongeluzzi Barrett & Bendesky. Louis Niedelman of the Atlantic City office of Cooper Levenson April Niedelman & Wagenheim is the lead attorney for Tropicana. Four people were killed and 21 injured in the Oct. 30, 2003 collapse of 10 garage floors. A U.S. Occupational Safety and Health Administration report blamed structural problems and negligence by inspectors. 10-5-05

LAKEWOOD BOARD RESPONDS TO COURT’S PERSONAL COMMENTS RULING
What’s a public body to do when told it can’t gag any personal criticism directed at its members? The answer by the Lakewood Board of Education is to reduce the time the public can utter such criticism. A recent federal court ruling that the public’s “personally directed” comments at school board meetings are constitutional has prompted the Lakewood board to cut the number of times citizens may speak during meetings from twice to once, with a four-minute limit. The board’s attorney, Lakewood solo Michael I. Inzelbuch, said the change is in response to Moore v. Asbury Park Board of Education, in which U.S. District Judge Mary L. Cooper ruled that board’s policy of prohibiting “personally directed” comments was an unconstitutional restraint on speech because its did not ban all personal comments. Chet Galdo, president of the Lakewood board, said the change would streamline meetings. In the Asbury Park case, Cooper granted a preliminary injunction to residents who claimed the board’s president silenced them when they questioned whether his background as a former gay nightclub manager affected his role on the board. 10-5-05

RUTGERS-CAMDEN LAUNCHING SOUTH AFRICAN EXCHANGE PROGRAM
Rutgers Law School-Camden will launch a judicial exchange program with South Africa on Monday evening with a ceremony that features Yvonne Mokgoro, a justice with the Constitutional Court of South Africa, the country’s highest court. The law school is hosting two clerks from the Constitutional Court as they learn the U.S. judicial system through an arrangement with U.S. District Magistrate Judge Joel B. Rosen and the Camden court where he sits. In exchange, two recent Rutgers-Camden graduates are serving as clerks in South Africa’s highest court. The ceremony begins 6 p.m. at the Courtyard Restaurant, Campus Center on Third Street. For information, call Felix James, associate provost, at (856) 225-6357. 10-5-05

BIG CORPORATIONS CUTTING BACK LEGAL EXPENSES
Law departments aren’t escaping big corporations’ tendency to reduce costs, according to a survey of in-house departments by management consultant Altman-Weil. Fifty-seven percent reported that during 2004 they reduced hourly rates for outside law firms. In-house law department staffing in 2004 dropped to 2.93 lawyers per $1 billion of revenue from 3.5 in 2003. The average number of paralegals and amount of law department expenses showed little change. 10-5-05

BANKRUPTCY LAW EASED A BIT FOR KATRINA VICTIMS
Pleas by the American Bar Association and others apparently were successful in getting the government to lift at least one strict requirement for victims of Hurricane Katrina in the new bankruptcy law. The Justice Department this week said such filers can forgo mandatory credit counseling. The ABA, which is urging Congress to make technical corrections to the new law before it takes effect Oct. 17, claims that by requiring lawyers to conduct costly investigations to certify clients’ debtor schedules, the law will discourage attorneys from providing pro bono or reduced cost bankruptcy services to hurricane victims whose losses will force them into bankruptcy. 10-5-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, OCTOBER 5, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, OCTOBER 5, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, OCTOBER 6, 2005.


APPROVED FOR PUBLICATION
CRIMINAL TRIALS
STATE v. BLACK
Appellate Division, A-4069-02T2, approved for publication October 5, 2005. (19 pages). Facts-on-Call Order No. 92683

The conviction for endangering the welfare of a child was reversed because the verdict was received after the jury rendered its verdict on a murder charge and was discharged and dispersed. The conviction for aggravated manslaughter was reversed because the prosecutor’s statements during his summation impermissibly commented on the defendant’s right to remain silent, shifted the burden of proof, and tended to appeal to emotion rather than reason.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
COTTO v. RODRIGUEZ
Appellate Division, A-6638-03T5, October 5, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18619

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court determined that neither of the plaintiffs had established a serious life impact that resulted from the injuries they suffered in the accident; the trial court’s rulings had to be set aside in light of the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, which held that an automobile accident victim who sues for noneconomic damages and satisfies one of the six threshold categories under AICRA does not have to prove a serious life impact.

INSURANCE
RUTHERFORD v. AIG AMERICAN INTERNATIONAL INSURANCE CO. OF NEW JERSEY
Appellate Division, A-1092-03T3, October 5, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18620

Decision following a bench trial declaring that the plaintiff was entitled to the maximum uninsured motorist coverage provided under his mother’s automobile insurance policy issued by the defendant insurer, even though there was a step-down clause, reversed and remanded; the plaintiff, who was 47 years old and lived in North Carolina, came to New Jersey for a wedding; while driving his mother’s vehicle, the plaintiff was cut off by an unknown vehicle that fled the scene, he lost control of the vehicle, and it rolled into a center divider; contrary to the trial court’s holding, the definition of “family member” in the policy was “clear and unambiguous”; the plaintiff was correct that he was an insured by virtue of being an occupant in the vehicle, but the “plain and unambiguous language” of the step-down clause limited his coverage to $15,000; because the step-down clause was not ambiguous, there was no reason to engage in a reasonable expectations analysis.

NEGLIGENCE
BRENNAN v. NEW JERSEY TRANSIT RAIL OPERATIONS, INC.
Appellate Division, A-2410-04T2, October 5, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18618

Summary judgment for the defendant employer and denial of the plaintiff employee’s motion for reconsideration of his damages claim under the Federal Employers’ Liability Act affirmed; the plaintiff, who was a train conductor, hurt his arm when he tried to pull open a locked train door that usually was unlocked; the plaintiff alleged that the defendant’s negligent failure to provide a reasonably safe workplace had resulted in his injury; there was no evidence that the defendant knew or should have known about a potential hazard or that it failed to act reasonably as to such a hazard; it was not sufficient for the plaintiff to claim that it was common practice for the door to be unlocked, and he failed to produce any evidence that it was reasonably foreseeable that an employee would injure himself by trying to pull the door open, even if he mistakenly believed that the door was unlocked; the Appellate Division concluded as a matter of law that the plaintiff’s injury was not foreseeable.

CONTRACTS
KUN SOUN CHOI v. CITIZENS BANK
Appellate Division, A-2118-04T5, October 5, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18617

Summary judgment for the defendant bank in an action seeking a declaration that the prepayment premium in an addendum to the plaintiff’s commercial loan agreement was unconscionable and therefore void reversed and remanded; the plaintiff was a naturalized U.S. citizen of Korean origin who had lived in the United States since 1981 and had operated a dry cleaning business “for many years”; the trial court adopted the bank’s characterization of the plaintiff’s ability to understand the addendum and rejected the plaintiff’s unconscionability argument without discussing any of his undisputed allegations about irregularities in the loan documents; the unconscionability argument could not be “fairly addressed” without an evidentiary hearing on the circumstances of the execution of the prepayment addendum.

SETTLEMENTS
ATTARDO v. MURPHY
Chancery Division, Somerset, Hunterdon, and Warren Counties, SOM-C-12094-04, return date September 23, 2005, released September 26, 2005, not approved for publication. By Williams, P.J. (8 pages). Facts-on-Call Order No. 18614

Motion by the plaintiff to enforce a settlement agreement in an action for partition granted; the agreement required the defendant to pay a total of $65,000 to the plaintiff and required the plaintiff to vacate the property and remove his personal items, some of which were enumerated; the plaintiff vacated the property, but the defendant did not pay the plaintiff because the plaintiff allegedly removed about $6,700 worth of the defendant’s personal items, including golf clubs; the defendant’s reason for withholding payment was “insufficient” and fell “drastically short” of the type of compelling circumstances required by Borough of Haledon v. Borough of North Haledon to dishonor the agreement; pursuant to the agreement, both parties had released their claims for personal property; therefore, the plaintiff could keep the golf clubs that he bought for himself, but he had to return to the defendant all of the items that he took that were not enumerated in the agreement; at this point, the plaintiff’s request for attorney’s fees had to be denied.

EMPLOYMENT LAW
UNANUE v. GOYA FOODS, INC.
Chancery Division, Bergen County, C-225-05, September 23, 2005, released September 26, 2005, not approved for publication. By Escala, P.J. (7 pages). Facts-on-Call Order No. 18615

Summary judgment for the defendant corporation in an action by the plaintiff former president and CEO seeking specific performance of a salary continuation agreement granted; the agreement provided for salary continuation if the plaintiff was “terminated by reason of his death, retirement or disability”; in this case, the plaintiff argued that he had voluntarily terminated his employment; however, in an earlier Delaware action he had argued that he had not resigned, and the Delaware court had determined that the plaintiff’s employment had been terminated validly and involuntarily; the plaintiff was judicially estopped from arguing inconsistent positions in two litigations based on the same facts and legal premises; collateral estoppel was properly invoked because the issue of whether the plaintiff was validly removed had been litigated and decided in the Delaware action.

ELECTIONS
WEINBERG v. BERGEN COUNTY DEMOCRATIC ORGANIZATION
Chancery Division, Bergen County, BER-L-6386-05, September 15, 2005, released September 21, 2005, not approved for publication. By Doyne, J. (7 pages). Facts-on-Call Order No. 18612

Request for temporary relief by the plaintiff candidate against the defendant Bergen County Democratic Organization, the defendant municipal Democratic Committee Chair, and the defendant prospective nominee denied in its entirety; the plaintiff was the incumbent Assemblywoman for the 37th Legislative District and the Democratic Party nominee for the General Assembly for the 37th District in the November 2005 election; after the incumbent State Senator for the 37th District announced his retirement on September 7, 2005, the plaintiff sought to fill the vacancy and to be the Democratic Party nominee for the State Senate in the November 2005 election; the plaintiff was concerned that she would not be given a fair opportunity to be chosen to fill the State Senate vacancy due to her status as the nominee for the General Assembly; because all of the defendants represented that they would not impede the plaintiff’s attempt to obtain the State Senate nomination, there was not a “genuine, concrete conflict” to compel a declaratory decision; the Chancery Division also declined to set forth rules to govern the meeting to select a State Senate nominee.

ELECTIONS
WEINBERG v. BERGEN COUNTY DEMOCRATIC ORGANIZATION
Chancery Division, Bergen County, BER-L-6479-05, September 20, 2005, released September 21, 2005, not approved for publication. By Doyne, J. (19 pages). Facts-on-Call Order No. 18613


FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
SIPOS v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
OAL Docket No. TYP 7623-03, Agency Docket No. PERS # 1042060, Initial Decision: August 9, 2005, Final Agency Decision: September 22, 2005, released for publication September 27, 2005. By Rigo, ALJ. (8 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge and affirmed its original decision to deny the petitioner school custodian’s application for accidental disability retirement benefits. The custodian injured his neck, back, and shoulder when he lifted a full wet/dry vacuum that he thought was empty. The Board conceded that the custodian was totally and permanently disabled and that his disability was the direct result of his accident, but it contended that the petitioner had not suffered a “traumatic event.” The ALJ concluded that the custodian did not satisfy any of the three elements of the Kane v. Board of Trustees, Police and Fireman’s Retirement Sys. test for a traumatic event (1) because custodians lift vacuums regularly and his injuries therefore were induced by the stress or strain of his normal work effort, (2) because he initiated and independently performed the act of lifting the vacuum and therefore did not meet involuntarily with the source of his injury, and (3) because, under the case law, injuries from lifting do not arise from “a great rush of force or uncontrollable power.”

PENSIONS AND BENEFITS
PAPPAS v. PUBLIC EMPLOYEES’ RETIREMENT SYSTEM
OAL Docket No. TYP 12124-04, Agency Docket No. PERS 1120584, Initial Decision: August 24, 2005, Final Agency Decision: September 22, 2005, released for publication September 27, 2005. By Fidler, ALJ. (10 pages).

The Board of Trustees of the Public Employees’ Retirement System accepted the recommendations of the administrative law judge and affirmed its original decision to deny the application for accidental disability retirement benefits filed by the petitioner emergency medical services supervisor. The petitioner injured her neck and shoulder while lifting a stretcher that held a patient who weighed about 250 pounds, and the Board had determined that the petitioner had not suffered a “traumatic event.” The ALJ concluded that the petitioner failed to satisfy each of the three prongs of the Kane v. Board of Trustees, Police and Firemen’s Ret. Sys. test for a traumatic event (1) because lifting a patient on a stretcher was part of her routine duties and her injury therefore was induced by the stress or strain of her normal work effort, (2) because she willingly lifted the stretcher, even though she may have acted reflexively to stop it from falling when she discovered that it was not locked in place, and (3) because, based on Mazza v. Board of Trustees, Police and Firemen’s Retirement System, the source of the injury was not “a great rush of force or uncontrollable power.”


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