NEW JERSEY LAWYER

DAILY BRIEFING      12/13/2005


News Briefs

HOBBS AND RABNER REPORTEDLY AG CONTENDERS
Seton Hall University School of Law Dean Patrick Hobbs and Stuart Rabner, chief of the criminal division at the U.S. Attorney’s Office in Newark, are among those under consideration as New Jersey’s next attorney general. According to The Star-Ledger of Newark, Hobbs is a “serious contender” and Rabner is getting “a close look” by Gov.-elect Jon S. Corzine. Transition chief Richard Leone has said the state’s chief law enforcement officer is the most important cabinet position Corzine will fill. 12-12-05

SETON HALL LAW PROFESSOR NOMINATED TO UMDNJ BOARD
Paula A. Franzese, special ethics counsel to acting Gov. Richard J. Codey and a professor at Seton Hall University School of Law, is headed for a seat on the board of the state’s embattled medical university. Codey is on a mission to reform the University of Medicine and Dentistry of New Jersey. State and federal investigators are probing the school for spending violations and political influence. 12-12-05

CODEY TABS FIVE FOR WORKERS COMP, ADMINISTRATIVE JUDGESHIPS
Recent additions to the flurry of nominations by acting Gov. Richard J. Codey include Philip A. Tornetta of Wyckoff and Lionel Simon III of Citta Holzapfel Zabarsky Leahey & Simon as workers compensation judges. Nominated as administrative law judges are Imre Karaszegi Jr. of Clifton, Joseph A. Paone of New Brunswick and James A. Geraghty, with Deloitte & Touche in New York. 12-12-05

JAPANESE JUDGE FACING OUSTER BECAUSE RULINGS ARE TOO SHORT
In the United States, most judges need a little judicial restraint, at least when it comes to the length of their opinions. But in Japan, the Yokohama District Court judge known as the author of the book Shiho no Shaberisugi (Courts Talking Too Much) is losing his job after 10 years because his rulings are too short. An advisory panel of the Supreme Court has decided not to reappoint Judge Kaoru Inoue after his term ends in March. According to The Daily Yomiuri, its sources said the panel is unhappy because the jurist’s written rulings fail to give reasons for his conclusions based on points of contention. Lawyers also have complained he fails to listen to the parties’ claims. 12-12-05

SCOTLAND MINISTER AWAITS VERDICT IN SUIT AGAINST GOD
The House of Lords in England is expected to issue a ruling this week on whether God is exempt from sex-discrimination lawsuits. The verdict in the case brought by Helen Percy may make legal history. The 39-year-old minister was suspended as an associate minister in the Church of Scotland after she was accused of having sex with a married church elder. Claiming she was forced to resign, Percy alleged unfair dismissal and gender bias before an employment tribunal, which dismissed her assertion, saying it had no jurisdiction because clergy don’t have employment rights as others in Britain. Under a ruling depending on cases dating back nearly a century, clergy are not church employees at all but office holders — in effect, it was ruled, they were employed by God. 12-12-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, DECEMBER 12, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, DECEMBER 12, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, DECEMBER 13, 2005.


APPROVED FOR PUBLICATION
INSURANCE
MORRISON v. AMERICAN INTERNATIONAL INSURANCE CO. OF AMERICA
Appellate Division, A-3484-04T3, approved for publication December 9, 2005. (17 pages). Facts-on-Call Order No. 92760

In a declaratory judgment action to compel underinsured motorist coverage from the defendant insurer under a policy issued to the plaintiff’s parents, summary judgment for the insurer was appropriate because there was no meaningful ambiguity in the language of the policy’s step-down clause and because the terms of the clause were enforceable as to the plaintiff, who was neither a named insured nor a resident family member when she was involved in an accident while driving her parents’ vehicle.

PRODUCTS LIABILITY
AGURTO v. GUHR
Appellate Division, A-967-04T5, approved for publication December 9, 2005. (17 pages). Facts-on-Call Order No. 92761

The trial court improperly granted summary judgment on the issue of whether the defendant was a “product seller” within the meaning of the Products Liability Act. Because the defendant’s alleged status as a “product seller” was an issue of duty for the court to decide and was a discrete issue that was readily separable from the underlying personal injury suit, a bench trial on that threshold issue must be conducted pursuant to Rule 4:46-3(b).

RACIAL PROFILING
STATE v. BALL
Appellate Division, A-4088-03T4, approved for publication December 9, 2005. (22 pages). Facts-on-Call Order No. 92762

A defendant is entitled to racial-profiling discovery upon establishing a colorable claim. It is not appropriate to decide whether there was an illegal stop that was attenuated by the defendant’s post-stop conduct until after that discovery has been made available to the defendant.

SEXUAL OFFENSES
STATE IN THE INTEREST OF D.W.
Appellate Division, A-1980-04T4, approved for publication November 15, 2005. (4 pages). Facts-on-Call Order No. 92759

While the evidence supported the trial court’s determination that the juvenile had touched the victim’s buttocks and had caused her embarrassment, the evidence was not sufficient to warrant a finding that the juvenile’s purpose was to degrade or humiliate her in violation of N.J.S.A. 2C:14-3(b), and common sense required the rejection of the State’s claim that the juvenile had engaged in criminal sexual contact because the juvenile’s conduct amounted to only inappropriate horseplay between classmates.

NOT APPROVED FOR PUBLICATION
MEDICAL MALPRACTICE
ROHRICH v. BENOTTI
Appellate Division, A-2914-04T3, December 12, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18944

Summary judgment for the defendant surgeon in a medical malpractice action and denial of several motions by the plaintiff patient affirmed; the action arose from the plaintiff’s gastric bypass surgery in August 2001 and the emergency room treatment she received in November 2001 for complications from her surgery; the August 2003 complaint named the defendant surgeon, the defendant hospital, and two fictitious parties, and the plaintiff later sought to name the emergency room doctor as a defendant; the trial court did not err (1) by not applying the discovery rule to toll the statute of limitations as to the emergency room doctor, (2) by refusing to permit the plaintiff to substitute the emergency room doctor as a defendant pursuant to the Rule 4:26-4 provisions for using fictitious names, (3) by refusing to give the plaintiff more time to file an expert report as to the surgeon, (4) by refusing to extend the discovery period, and (5) by granting summary judgment to the surgeon in the absence of an expert report to establish a prima facie case of medical malpractice.

CHARITABLE IMMUNITY
SMITH v. NEWARK PRESCHOOL COUNCIL, INC.
Appellate Division, A-6676-03T2, December 12, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18942

Summary judgment for the defendant not-for-profit corporation and its employees based on charitable immunity in a personal injury action affirmed; while attending a preschool program operated by the corporation at the defendant church’s premises, the plaintiff mother’s son was injured when he put his hand into an electric fan that was running without a safety guard; contrary to the mother’s arguments on appeal, (1) no further discovery as to the basis for the corporation’s claim of charitable immunity was required because the record was “clear” that the corporation was organized exclusively for educational purposes and therefore was entitled to invoke the Charitable Immunity Act and (2) Hardwicke v. Am. Boychoir Sch., in which the Appellate Division held that allegations of sexual abuse could defeat a valid claim of charitable immunity, did not apply because this action was premised on negligence rather than on intentional conduct.

GUN CONTROL
IN RE DENIAL OF THE APPLICATION OF JAMES HAMMER FOR A FIREARMS PURCHASER IDENTIFICATION CARD CHANGE OF ADDRESS
Appellate Division, A-4621-04T1, December 12, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18943

Law Division order that affirmed the municipality’s denial of the appellant’s application for the reissuance of his firearms purchaser identification card reversed and remanded; the appellant’s handgun and card were seized after he and his ex-wife obtained temporary domestic violence restraining orders against each other, but the TROs eventually were dismissed, no final restraining order was entered, and the appellant was not convicted; based on representations by the prosecutor, the appellant consented to an order that required him to sell his handgun and to surrender his card for destruction; the Law Division “plainly” had not found that there was any basis to disqualify the appellant other than the order, and remand was required due to the “cloud of confusion” surrounding the basis for the destruction of his card; on remand, the Law Division should determine whether the appellant’s handgun and card would have been returned to him if he had not consented to the order.

VERBAL THRESHOLD
COGLIANO v. SEGUINE
Appellate Division, A-216-04T3, December 9, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18939

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 granted summary judgment because the plaintiff’s proof “does not meet the second prong of Oswin,” and it did not reach the issue of whether the plaintiff had submitted sufficient objective medical evidence; reversal and remand were required in light of the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, which rendered irrelevant the issue of whether the plaintiff had experienced a serious life impact.

VERBAL THRESHOLD
CONTE v. KOSLOWSKI
Appellate Division, A-4346-04T1, December 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18940

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA and denial of the plaintiff’s motion for reconsideration affirmed; on the day of trial in January 2005 on claims arising from the parties’ January 2001 automobile accident, the plaintiff sought an adjournment to obtain sufficient medical evidence to satisfy the verbal threshold; although the plaintiff might have had sufficient medical evidence at the time of her appeal, the trial court did not abuse its discretion by denying an adjournment because, even if the defendant’s late answer had resulted in a reduced discovery period, discovery was not necessary for the plaintiff to obtain evidence to oppose the summary judgment motion and because the adjournment request did not comply with Rule 4:36-3(b); moreover, the grant of summary judgment was “unassailable” in light of the evidence presented and the plaintiff’s failure to oppose the motion, and the plaintiff could not use her motion for reconsideration to rectify her evidentiary deficiencies.

DOMESTIC VIOLENCE
BARNETT v. TAYLOR
Appellate Division, A-3721-04T2, December 9, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18941

Final domestic violence restraining order against the defendant ex-boyfriend remanded to supplement the record; the defendant and another woman encountered the plaintiff ex-girlfriend at a show at Newark Symphony Hall; after listening to telephone messages that the defendant had left on the plaintiff’s cell phone on the day after the show, the trial court found that the defendant had made terroristic threats and had engaged in harassment; the Appellate Division was unable to determine whether the decision below was correct because the messages were not sound recorded at the hearing and were not supplied as part of the appellate appendix; pursuant to Rule 1:2-2, a verbatim record of the telephone messages that were played in court should have been made.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
MATAWAN-ABERDEEN REGIONAL BOARD OF EDUCATION
v. H.G., OAL Docket No. EDS 8330-05, Agency Docket No. 2006-10635, Final Agency Decision: November 2, 2005, released for publication November 28, 2005. By Wells, ALJ. (8 pages).

The administrative law judge granted the petitioner Board of Education’s request for emergent relief to compel the respondent parents to consent to evaluations of their daughter by the Board’s child study team but denied the request to enjoin the parents from obtaining private evaluations of their daughter. The parents sought to return to the facility that had performed the original evaluation of their daughter in the summer of 2002. The ALJ concluded (1) that “evaluations are the province of the school district and its child study team,” (2) that the Board had attempted in good faith to honor its legal obligations for the provision of a triennial evaluation, (3) that the evaluations proposed by the child study team were “well thought out, appropriate, and justified,” (4) that the Board’s child study team had to perform the evaluations because private evaluations would place the Board at a disadvantage in performing its obligations under the Individuals with Disabilities Education Act, (5) that the N.J.A.C. 6A:14-2.7(m) standards for granting emergent relief had been met, but (6) that the parents were free to pursue any independent evaluations that they considered to be appropriate and in their daughter’s best interests.


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