NEW JERSEY LAWYER

DAILY BRIEFING      12/22/2005


News Briefs

ATTORNEYS CAN TOUT SERVICES ONLINE, WITH RESTRICTION
In a move aimed at fully informing potential clients and avoiding the appearance of an endorsement, the New Jersey Supreme Court’s Committee on Attorney Advertising has placed new requirements on lawyers seeking to tout their legal services on the internet. The issue arose because a lawyer sought the committee’s advice on any restraints on advertising through a website posted by a commercial vendor. The panel concluded that “a lawyer who seeks to give anything of value in order to participate in such a listing must, before doing so, ensure the listing or advertisement contains a prominently and unmistakenly displayed disclaimer in a presentation at least equal to the largest and most prominent font and type on the site.” It should state that “all attorney listings are a paid attorney advertisement, and do not in any way constitute a referral or endorsement by an approved or authorized lawyer referral service.” 12-21-05

SENATOR PLEADS GUILTY TO HITTING SENIOR CITIZEN WITH CAR
State Sen. Robert W. Singer (R-Ocean) was found guilty of careless driving and has paid a fine in connection with his vehicle hitting a 75-year-old woman who was critically injured in June. The legislator was charged with careless driving and failure to yield to a pedestrian at an unmarked crosswalk. The victim, Barbara Sara, was struck June 15 and remained hospitalized until late October. The charges against Singer were merged and he pleaded guilty to failure to yield, resulting in a $156 fine and $33 court costs. Singer’s been involved in two other serious motor-vehicle accidents since 1997. One man died as a result. 12-21-05

$650K TO FAMILY OF MAN WHO DIED IN POLICE CUSTODY
The family of a 23-year-old man who died in police custody three years ago will receive $650,000. The borough of Lavallete has agreed to pay the family of Albert Kushinsky, a Dover Township man who died after falling and fracturing his skull while handcuffed. He was being taken by a police officer from a party when the incident occurred. A grand jury had previously found that then-Patrolman Colin Grant, since promoted to police chief, was not criminally liable. 12-21-05

LAWYER CONVICTED OF SHOOTING RIVAL ATTORNEY IN THE HEAD
A jury in Washington state has convicted a former Snohomish County deputy prosecutor, William Joice, of attempted first-degree murder for shooting an adversary as a means of delaying a case in which they were involved. Joice shot Kevin Jung outside Jung’s Bellevue, Wash., office in November 2004, leaving Jung with severe brain damage. Joice, 51, said he intended to shoot his rival in the arm or shoulder as a way to buy time to catch up with Jung in a case. They represented couples on opposite sides of a matter involving a gift-shop franchise. Joice said he had an alcohol and stress problem at the time. 12-21-05

REMEMBER TO SNIFF BEFORE YOU SIP
It might be a case of grape expectations gone sour. Italy’s Prime Minister Silvio Berlusconi might have gone a bit over the top in complaining about the quality of wine that Tony Blair recently served other European prime ministers during a gathering. To make his point, Berlusconi sent Swedish Prime Minister Goran Persson and other guests some fine Italian wine, noting it might help them recover from the nasty experience of British wine. 12-21-05

REPRIEVE FROM SKYROCKETING LEGAL MAL PREMIUMS
There’s some good news awaiting many lawyers. For the first time in a long while, legal malpractice insurance premiums are stabilizing, according to an article in the Dec. 19 New Jersey Lawyer. That’s a dramatic change from the annual double-digit boosts — some in the 40 percent range — lawyers have been hit with in the past few years. The word is that the new premiums generally will rise no more than 5 percent. To read the full story at no charge, visit New Jersey Lawyer’s website, www.njlnews.com.



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, DECEMBER 21, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, DECEMBER 21, 2005.

THE SUPREME COURT has announced that it will release an opinion in PROFORMANCE INSURANCE CO. v. JONES, A-102, on December 22, 2005. The issue on appeal in Proformance Insurance Co. addresses whether the business-pursuits exclusion in an automobile insurance policy was enforceable where the insured’s initial permission was not for business use and where the initial permittee allowed an unlicensed second permittee to use the vehicle for business purposes.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, DECEMBER 21, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
BUISSERETH v. FORD MOTOR CREDIT CO.
Appellate Division, A-1227-04T2, December 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18993

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; according to the report of the plaintiff’s physician, the physician’s impression was “lumbar right-sided radiculopathy, cervical strain/sprain and left shoulder strain/sprain, possibly an AC joint strain”; the trial court properly concluded that the plaintiff failed to present sufficient evidence of a permanent injury to satisfy the verbal threshold because the only evidence of permanency cited by the plaintiff was the physician’s certification that the plaintiff submitted pursuant to §39:6A-8a and because the production of a certification of permanency by itself does not preclude summary judgment or establish a cause of action.

INSURANCE
MASSI v. RUTGERS CASUALTY INSURANCE CO.
Appellate Division, A-5326-04T3, December 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18994

Dismissal of the plaintiff insured’s complaint against the defendant insurer for personal injury protection benefits reversed and remanded; the insured received an award for medical services at arbitration, but her demand for arbitration had not included a bill for physical therapy that the medical provider did not disclose to the insured’s attorney; the ensuing claim for physical therapy proceeded to a second arbitration, in which the arbitrator found for the insured, and the insurer demanded a trial de novo; on the day of trial, the insurer’s oral motion for dismissal based on the entire controversy doctrine was granted; the trial court abused its discretion by dismissing the claim (1) because the insurer “sat on its hands” and did not act to obtain relief based on its affirmative defense under the entire controversy doctrine until the trial date, (2) because the insurer did not comply with the Court Rules on affirmative relief, (3) because it was not the insured’s fault that the bill for physical therapy was not included in the first proceeding, and (4) because there was no evidence that the insurer would suffer actual prejudice by proceeding to trial.

INSURANCE
MACIAS v. PROSPECT TERRACE APARTMENTS, INC.
Appellate Division, A-3394-04T1, December 21, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18997

Summary judgment for the defendant insurer in an action for uninsured motorist benefits reversed and remanded; an illegally parked, unidentified vehicle blocked the steps leading from the street to an elevated sidewalk, and the plaintiff insured fell and broke her ankle when she attempted to reach the street from the sidewalk by using a grassy incline; the plaintiff sought UM benefits because the unidentified vehicle was a cause of her fall; contrary to the insurer’s argument on appeal, a substantial nexus between the insured’s injury and the unidentified vehicle could be found because, even though the “precise nature” of the insured’s accident may not have been foreseen, it was reasonable to expect that the unidentified vehicle would create a hazard by blocking the steps.

NEGLIGENCE
FORREST v. FORREST
Appellate Division, A-2167-04T1, December 21, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18996

Denial of the plaintiff passenger’s motion for a new trial or additur after the jury awarded her $3,000 for pain and suffering and after stipulated lost wages of $7,500 were added to the jury award in an automobile negligence action affirmed; contrary to the plaintiff’s arguments on appeal, (1) the trial court properly submitted to the jury the issue of whether the fracture of her left humerus was “displaced” within the meaning of the N.J.S.A. 39:6A-8a verbal threshold under AICRA, and any error was rendered moot by the jury’s finding that she had satisfied the verbal threshold, (2) she was not prejudiced by the trial court’s withholding of the stipulated amount of her lost wages from the jury because the verdict had been molded to include that amount and because she had been permitted to present evidence of her discomfort and her resulting inability to work, and (3) the verdict, “although somewhat low,” was not “shockingly” low because a rational jury could have found that the plaintiff’s injuries resulted in “minimal interference” with her daily activities and less than four months of medical treatment.

WORKERS’ COMPENSATION
DAVIS v. DROGIN BUS CO.
Appellate Division, A-1991-04T3, December 21, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18995

Division of Workers’ Compensation judgment that found that the petitioner bus driver had a pulmonary disability of 12 and one-half percent partial total for chronic bronchitis and restrictive pulmonary disease affirmed; the petitioner, who worked for the respondent bus company from 1966 to 1997, alleged in his occupational disease claim that, beginning six years after he became a driver for the respondent, he was exposed to conditions that caused him to develop pulmonary disease; contrary to the petitioner’s arguments on appeal, (1) the judge of compensation’s findings were supported by substantial evidence and (2) the judge, who was faced with opposing expert opinions as to the existence of pulmonary disease, did not improperly disregard the opinion of one expert and properly performed the role of fact-finder by giving greater weight to the testimony of another expert.

PUBLIC EMPLOYEES
IN RE CURTIS
Appellate Division, A-6001-03T5, December 21, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18998

Final decision of the Merit System Board that adopted the administrative law judge’s decision, which upheld the termination of the appellant sheriff’s officer, affirmed; the officer’s supervisor found him “apparently asleep” at his post and ordered a “fitness for duty” examination; that examination included a urine drug screening, which came back positive for cocaine; the positive result was the “primary violation” underlying his termination; as to the officer’s argument that the drug screening did not comply with the Attorney General’s guidelines for the drug testing of law enforcement officers, the guidelines do not govern “fitness for duty” examinations; the record “fully supported” the Board’s findings of fact and conclusions of law.

ENVIRONMENTAL LAW
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, BUREAU OF SOLID WASTE COMPLIANCE AND ENFORCEMENT v. CIRCLE CARTING, INC
Appellate Division, A-3907-03T1, December 20, 2005, not approved for publication. (50 pages). Facts-on-Call Order No. 18992

Final decision of the New Jersey Department of Environmental Protection affirmed and remanded; the final decision (1) concluded that the appellant business and its owner had operated an unpermitted solid-waste facility, had improperly disposed of solid waste, had maintained containers that were unregistered or had expired decals, and had failed to list relevant information on the disclosure statements for its A-901 solid-waste license, (2) revoked the business’s A-901 license, its registration as a solid-waste transporter, and its certificate of public convenience and necessity, (3) debarred the owner from New Jersey’s solid-waste industry, (4) assessed $197,250 in penalties against the appellants, and (5) required the appellants to submit a plan for the remediation and restoration of their site; contrary to the appellants’ arguments on appeal, the evidence supported the DEP’s findings and conclusions, the appellants were not denied due process, the penalties imposed were not excessive, and the DEP did not forfeit its right to seek a site remediation and restoration plan; however, remand was required on issues pertaining to that plan.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
P.S. v. EDGEWATER PARK TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 10418-04, Agency Docket No. 2005 9345, Final Agency Decision: October 31, 2005, released for publication November 28, 2005. By Martone, ALJ. (4 pages).

The administrative law judge dismissed as moot the petitioner mother’s due process hearing request arising from her disagreement with the respondent Board of Education’s proposed placement for her child and her desire to place her child at the Bancroft School. At the hearing before the ALJ, the Board moved to dismiss based on mootness because it had agreed to place the child at the Bancroft School for the 2005-2006 school year. The ALJ determined that the relief that the mother sought in her request had been offered and authorized by the Board, that the Board was bound by its offer, that the mother had the right to file a new due process hearing request if she had further disagreements with the child’s individualized education program, and that there was no further relief to which the mother was entitled.

SPECIAL EDUCATION
J.F. v. WEST ORANGE BOARD OF EDUCATION
OAL Docket No. EDS 9099-04, Agency Docket No. 2005 9232, Final Agency Decision: October 31, 2005, released for publication November 28, 2005. By LaFiandra, ALJ. (12 pages).

The administrative law judge ordered that the petitioner parents be reimbursed for their expenses for providing a home-based applied behavioral analysis program for their autistic son during the 2003 extended school year, the 2003-2004 school year, and the 2004 extended school year, but the ALJ dismissed with prejudice the parents’ claims for expenses that they incurred for the 2002 extended school year, for the 2002-2003 school year, and for unilaterally placing their son at Harbor Haven for the 2004 extended school year. The ALJ concluded (1) that the parents’ due process request, which was filed on July 23, 2004, was untimely as to expenses incurred for the 2002 extended school year and the 2002-2003 school year, (2) that the son’s home-based ABA program was an “integral part” of his education during the 2003 extended school year and the 2003-2004 school year, (3) that the respondent Board of Education failed to establish that the program it offered the son during the 2004 extended school year was appropriate, and (4) that the parents failed to establish that Harbor Haven was an appropriate placement for their son.


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