NEW JERSEY LAWYER

DAILY BRIEFING      11/18/2005


News Briefs

LEGISLATOR TELLS INSURANCE INDUSTRY ‘NO WAY’
Assemblyman Neil M. Cohen, chairman of the Assembly Financial Institutions and Insurance Committee, says there is “no chance” of passing legislation to limit pain-and-suffering lawsuits only to auto accident victims who can prove their injuries had a serious impact on their lives. The automobile insurance industry contends higher lawsuit costs resulting from a New Jersey Supreme Court decision in June could result in average annual premiums rising between 9 percent and 14 percent — or between $116 and $182 per car annually. In a victory for plaintiffs lawyers, the justices ruled 6-0 that car accident victims subject to the lower-cost option that limits lawsuits do not have to meet any “serious impact” standard. Cohen said the industry is just being “greedy.” But the move by carriers last week to issue a study of their own predicting hefty premium increases as a result of the court’s ruling suggests a possible effort in the upcoming lame-duck legislative session to effectively negate the court’s ruling. That would be DOA, if Cohen has his way. He has been closely associated with the Association of Trial Lawyers of America-New Jersey. 11-17-05

COURTS GET NEW GUIDELINES FOR PUBLIC DOCUMENTS
New Jersey courts are not subject to the state’s Open Public Records Act, but judiciary officials have released new staff guidelines that stress a “principle of openness” in allowing access to all but specifically confidential documents. The new procedures issued by the Administrative Office of the Courts lay out practices for carrying out the long-standing court rule defining public and confidential documents. Judge Philip S. Carchman, administrative director of the courts, said his office found inconsistencies in procedures and forms among courthouses and it was time for uniformity. The rules include a provision that if possible, people requesting to see or copy documents should get same-day service. The guidelines are posted at HYPERLINK "http://www.njcourtsonline.com" njcourtsonline.com. 11-17-05

JUDGE FINDS MEADOWLANDS COMMISSION NEGLECTS HOUSING NEEDS
Towns can’t hide behind a super-zoning agency when it comes to their Mount Laurel affordable-housing obligations, a Superior Court judge ruled. Judge Jonathan N. Harris granted the so-called builder’s remedy to Tomu Development Co. for a project that straddles the border between Carlstadt and East Rutherford. Harris said in his Nov. 16 ruling that the Meadowlands Commission “has implicitly fostered the long-standing municipal failures through its benign neglect of the housing needs of the poor.” Thomas Jay Hall of Sills Cummis Epstein & Gross in Newark, who represented Tomu, said the ruling will mean that the Meadowlands Commission must take an active role in ensuring affordable-housing opportunities in the 32-square-mile region the commission governs. 11-17-05

FEDERAL BILL WOULD TOUGHEN SANCTIONS ON LAWYERS
Supporters see the Lawsuit Abuse Reduction Act of 2005, passed by the Republican-controlled U.S. House of Representatives, as a necessary measure aimed at curbing lawsuits that increase costs to businesses, hurting jobs and the economy. To opponents, the legislation is a poorly designed, counter-productive, mean-spirited, hypocritical bill based on anecdotal evidence that tramples state sovereignty on behalf of business interests. The bill would mandate sanctions against lawyers for bringing “frivolous” litigation rather than making them discretionary. In some instances, it even would require state judges to impose sanctions laid out under Federal Rule 11 of the Federal Rules of Civil Procedure, effectively overriding state procedures on frivolous lawsuits. A full story is in the Nov. 21 New Jersey Lawyer.

HEART-SURGERY FRAUD CASE SETTLED
People who say they received unnecessary heart surgeries from four doctors in California could receive up to $32.5 million from the physicians, their insurer and the former owner of Redding Medical Center, under a settlement announced by prosecutors in Sacramento. Under the settlement revealed by McGregor Scott, U.S. attorney for California’s Eastern District, federal prosecutors won’t file criminal charges against the doctors for billing federal and state health programs for the surgeries. The settlement will resolve a case that began in October 2002 when 40 FBI agents raided the hospital and the doctors’ offices after receiving a tip from one of the doctors’ patients. 11-17-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, NOVEMBER 17, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, NOVEMBER 17, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, NOVEMBER 18, 2005.


APPROVED FOR PUBLICATION
INSURANCE
KENNELLY-MURRAY v. MEGILL
Appellate Division, A-886-04T3, approved for publication November 17, 2005. (15 pages). Facts-on-Call Order No. 92737

The Legislature’s amendment of one of the bodily injury categories in N.J.S.A. 39:6A-8 from “fractures” to “displaced fractures” was not intended to bar all claims based on nondisplaced fractures. Instead, the sufficiency of a nondisplaced fracture must be judged under category (6) of §39:6A-8 as “a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” In this case, the plaintiff’s scar, which resulted from surgery to remove a basal cell carcinoma that allegedly was aggravated by the accident, was not proximately caused by the accident, and the finding that the plaintiff submitted a “sham affidavit” to oppose summary judgment had no immediate bearing on the plaintiff’s credibility at trial.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ANDERSON v. UNSATISFIED CLAIM AND JUDGMENT FUND
Appellate Division, A-3971-04T5, November 17, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18833

Summary judgment for the defendant Unsatisfied Claim and Judgment Fund based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the plaintiff was a pedestrian who was struck by a vehicle driven by an uninsured motorist; contrary to the trial court’s conclusion, the plaintiff’s evidence was sufficient to establish a permanent injury under §39:6A-8a; the plaintiff’s claim that her left knee would not heal to function normally was supported by her physician’s certification and by an MRI and a clinical evaluation that indicated objective evidence of the injury, bone edema, swelling, pain, and a limited range of motion that continued more than one year after the accident.

VERBAL THRESHOLD
DAVIS v. GASPARI
Appellate Division, A-4102-04T5, November 17, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18834

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court granted summary judgment based on the plaintiff’s failure to demonstrate that his injuries were “serious,” but that requirement was eliminated by the New Jersey Supreme Court’s decision in Serrano v. Serrano; the plaintiff’s objective medical evidence was sufficient to establish a qualifying injury under the AICRA verbal threshold (1) because the plaintiff was not experiencing neck and back problems at the time of the accident, even though he suffered from degenerative disease, (2) because a doctor’s report explained the connection between the accident and the aggravation of the plaintiff’s condition, and (3) because two doctors’ reports included a comparative analysis and referred to MRI studies, muscle spasm, and a reduced range of motion.

PREMISES LIABILITY
HOFFNER v. OCEAN COUNTY MALL
Appellate Division, A-1539-04T5, November 17, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18836

Judgment in a personal injury action based on a jury verdict that found the plaintiff 90 percent at fault and the defendant shopping mall 10 percent at fault and denial of the plaintiff’s motion for a new trial affirmed; the plaintiff fell during daylight hours in a three-inch crack in the road that separated the mall’s parking lot from its entrance, and the defendant’s witnesses asserted that they were unaware of the crack before the plaintiff’s fall; contrary to the plaintiff’s arguments on appeal, (1) the trial court did not err by refusing to instruct the jury that the plaintiff had no duty to look out for holes in the road, (2) she did not establish that the mall routinely kept records of the parking lot inspections, and (3) the verdict was not against the weight of the evidence where the negligence of both parties was minimal and where the jury determined that the party who was closest to the defect just before the accident was “mostly responsible” for the accident.

DOMESTIC VIOLENCE
SILVA v. RAMOS
Appellate Division, A-2950-04T1, November 17, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18835

Final domestic violence restraining order against the defendant ex-boyfriend based on harassment reversed; after the defendant did not arrive on a scheduled date to retrieve personal property from the plaintiff ex-girlfriend’s garage, the plaintiff placed the property outside; when the defendant arrived the next day, he saw that his property had been damaged by snow, banged on the doors and windows of the plaintiff’s house, called her “a chicken” and asked her repeatedly to come outside, left a voice mail message for her stating “you want f…ing war, you’ve got it”, smashed some of his damaged property with a sledgehammer, and called the police; the defendant correctly argued that he had no purpose to harass, and his actions therefore did not qualify as harassment under N.J.S.A. 2C:33-4c.

EDUCATION
BOARD OF EDUCATION OF THE TOWNSHIP OF NEPTUNE v. NEW JERSEY STATE DEPARTMENT OF EDUCATION
Appellate Division, A-1783-03T1, November 17, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18838

Final decision of the Commissioner of Education that determined that the State did not have to entirely fund the petitioner Board of Education’s second half of its full-day kindergarten affirmed; because there was nothing in the portion of Abbott IX on which the Board relied that suggested that the State had to be the sole source of kindergarten funding and because there was no logical basis to treat kindergarten funding differently from preschool funding, this case was governed by the New Jersey Supreme Court’s 2005 decision in Board of Education of the City of Millville v. Department of Education, which held in the context of preschool funding that the Commissioner’s obligation to ensure adequate funding is not the same as a requirement that he provide that funding and that the Commissioner could ensure adequate funding by relying on available funds other than State aid, including the local budget.

PUBLIC EMPLOYEES
FEMMINELLA v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES RETIREMENT SYSTEM
Appellate Division, A-3950-03T2, November 16, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 18829

Final decision of the Board of Trustees of the Public Employees’ Retirement System that reversed the administrative law judge’s decision and that determined that the salary that the petitioner earned as a tax assessor for a Borough-wide reassessment was not creditable for pension purposes for his veteran’s retirement allowance reversed; in 2000, the petitioner earned $22,173 for his regular part-time work as the Borough’s tax assessor and $47,700 for performing the reassessment; when he retired in April 2001, the petitioner received an enhanced pension benefit due to his status as a veteran that was calculated on the final year of his salary instead of an average of his last three years of salary; the Appellate Division recognized the Board’s concern with the enhanced benefit but concluded that the Board had erred by disregarding factual findings by the ALJ that were supported by the record; the ALJ had properly determined that the reassessment salary was creditable because it was not granted primarily in anticipation of the petitioner’s retirement and because it was not “additional remuneration for performing temporary duties” beyond the petitioner’s regular workday or work year.

CONTRACTS
DAVID CRONHEIM MORTGAGE CORP. v. ESTATE OF DODGE
Appellate Division, A-2832-04T2, November 16, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18831

Partial summary judgment awarding the plaintiff corporation $777,186.36 from the defendant estate for the breach of a loan agreement affirmed; the decedent had been the president, the CEO, and a 50 percent shareholder of the corporation, and the corporation had paid him for his personal expenses between 1988 and 2000; the Appellate Division was satisfied (1) that the corporation and the decedent considered the payments to be advances “in the nature of loans” that the decedent had to repay, even though he never signed a loan agreement, (2) that repayment never was contingent on the corporation turning a profit, (3) that the statute of limitations was equitably tolled by the decedent’s annual promises of repayment and began to run anew in 1999 when there was a credit against the loan, and (4) that the corporation’s records provided clear and convincing evidence of the decedent’s indebtedness.

PARENT AND CHILD
RIVERS v. COX-RIVERS
Appellate Division, A-6803-03T5, November 16, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18830

Post-divorce-judgment order entered on remand that addressed the parties’ child support obligations reversed and remanded for recalculation of the credits due to each party and for reconsideration of the plaintiff father’s obligation; the two younger children lived with the defendant mother, but the oldest child lived with the father; although most of the mother’s arguments on appeal lacked merit, there was “considerable merit” to her argument that she was entitled to credit for support payments for the oldest child until May 2002 rather than May 2000, which was the date that the Appellate Division’s earlier decision had established for the oldest child’s emancipation; the trial court erred by requiring the father to pay support for the younger children only during the summer months when they were home from college because that ignored the mother’s fixed costs of maintaining a home for the younger children throughout the year.

UNEMPLOYMENT COMPENSATION
KELLY v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-1828-04T3, November 16, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18832

Final decision of the Board of Review that found the petitioner employee ineligible for unemployment compensation benefits reversed; the petitioner alleged that his immediate supervisor and his co-worker froze him out after the co-worker accused the petitioner of making “lewd remarks” to the co-worker’s wife and that his supervisor “made life miserable at the office”; contrary to the determinations of the Appeal Tribunal and the Board, the petitioner had left his employment for good cause attributable to the work (1) because the undisputed evidence established that the petitioner quit after he was harassed by his supervisor and was treated unprofessionally and (2) because, even though the petitioner quit after a newer employee was invited to attend a conference, that incident was the “last straw” in a series of events that caused the petitioner to quit.


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