NEW JERSEY LAWYER

DAILY BRIEFING      12/28/2005


News Briefs

JURY AWARDS WOMAN $20.5 MILLION FOR CAR ROLLOVER INJURIES
An Edison woman will benefit from a $20.5 million judgment against Ford Motor Co. for injuries sustained when her Bronco II flipped over four times when she steered to avoid an accident 10 years ago. The lawsuit brought on behalf of Kimberly Valentini contended the car had a propensity to roll over during normal highway driving. The jury in Valentini v. Ford Motor Co. found the vehicle’s design was defective and Ford failed to adequately warn drivers about the danger, according to her lawyer, Jeffrey W. Moryan of Connell Foley in Roseland. The verdict delivered to U.S. District Judge Jose L. Linares culminated a five-week trial. James S. Dobis of Dobis, Russell & Peterson in Livingston represented the carmaker. 12-27-05

AG SPENDS $14,000+ FOR GLOSSY, GLOWING REPORTS
The state’s attorney general is about to leave office. Instead of sending résumés to land his next job, New Jersey’s top law enforcement official, Peter C. Harvey, is mailing 4,000 copies of a glossy, 58-page color report to law firms, Atlantic City casinos, law schools, news organizations and scores of others statewide. The printing cost — $7,460. So far, 2,700 copies have been mailed at $2.44 apiece, or $6,500. While state law requires departments to file annual reports with the governor and legislature, many agencies seeking to save public money have switched to less-expensive black and white, have produced short reports, have cut back on the print quantity and have used the internet as their main distribution method. Harvey’s report covers two years and prominently features reprints of positive newspaper and magazine articles including one headlined, “Keeping heads turning in Trenton.” 12-27-05

VICTIMS AND DEFENDANTS WON’T BE MIXING
Victims of violent crime soon will have a room of their own at the Mercer County Courthouse. Deb Marut, founder of Survivors Advocating for Victim Rights (SAVR), is seeing the fruits of her labor, now that government officials have agreed that victims shouldn’t rub elbows with defendants and their families. Marut spearheaded the effort, which including writing 280 letters, after her own experience last year during a five-week trial involving her brother-in-law. 12-27-05

BIG-CITY FIRMS PAYING BIGGER SALARIES
First-year associates at Gibson Dunn & Crutcher in New York City will be receiving $135,000 a year — $10,000 more than last year’s rookies — while Atlanta’s Alston & Bird is providing a $15,000 boost, raising starting salaries to $115,000. Mid-level and senior associates in New York may not see an increase in January, since their pay scale is higher than the rest of the country. At the Atlanta firm, though, all other associates will get increases of $15,000 or more. After seven years, associates will earn $165,000 in 2006, up from $137,500. That may sound good, but it’s the first time since 2000 that associates’ salaries at Alston & Bird are going up. 12-27-05

BOSTON JUDGE HAS SOME EXPLAINING TO DO
The Massachusetts Commission on Judicial Conduct probably will have a keen interest in the behavior of a Superior Court judge who used his official court stationery to write a letter demanding the publisher of the Boston Herald pay him more than $3.2 million to end the jurist’s libel suit against the tabloid newspaper. Earlier this year, a jury found the newspaper and a reporter had libeled Judge Ernest B. Murphy and awarded him $2.09 million in damages. Boston Municipal Court Chief Justice Charles R. Johnson, who presided at the libel trial, reduced that award to $85,000. In papers filed by the newspaper, the Herald asked Johnson to overturn the verdict and revealed contents of handwritten letters — the first one just two days after the verdict — from Murphy requesting a private meeting with the publisher and demanding $3.26 million to end their dispute. In a separate postscript, Murphy warned publisher Patrick J. Purcell that telling anyone about the letter “would be a BIG mistake.” Last week, Murphy said in a letter to the paper’s rival, the Boston Globe, Murphy apologized, saying he didn’t know it was unlawful to use Superior Court letterhead for personal business. 12-27-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, DECEMBER 27, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, DECEMBER 27, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, DECEMBER 28, 2005.


APPROVED FOR PUBLICATION
INSURANCE
DZIUBA v. FLETCHER
Appellate Division, A-7056-03T5, approved for publication December 27, 2005. (13 pages). Facts-on-Call Order No. 92779

Pursuant to N.J.S.A. 39:6A-7b(1), the owner — who was not the registered owner — of an uninsured vehicle that was in operation at or around the time of an accident in which he sustained injuries while a passenger in an insured vehicle was prohibited from collecting PIP medical expense benefits from the carrier for the insured vehicle. As a “culpably uninsured,” the owner also was barred from collecting his medical expenses as economic losses from the operator of the second vehicle involved in the accident under §39:6A-7b(1), N.J.S.A. 39:6A-12, and Monroe v. City of Paterson. However, the owner was not barred by N.J.S.A. 39:6A-4.5a from seeking noneconomic losses because he was not operating the uninsured vehicle in the accident.

EMPLOYMENT LAW
DOE v. XYC CORP.
Appellate Division, A-2909-04T2, approved for publication December 27, 2005. (31 pages). Facts-on-Call Order No. 92780

In an action arising from an employee’s use of his work computer to send to a pornographic Web site pictures in which his plaintiff stepdaughter appeared nude and seminude, the defendant employer had a duty to investigate the employee’s improper use of his work computer — of which it was on notice — and to take prompt and effective action to stop the employee’s continuation of the improper use.

STATUTORY CONSTRUCTION
STATE v. CAMILLO
Appellate Division, A-2189-04T3, approved for publication December 27, 2005. (12 pages). Facts-on-Call Order No. 92781

The defendant’s refusal to provide his name, date of birth, and Social Security number to a State Trooper who required the information to complete an incident report was not a violation of the obstruction statute, N.J.S.A. 2C:29-1a, because the defendant did not use “flight, intimidation, force, violence, or physical interference or obstacle.”

PRISONERS’ RIGHTS
BUNCIE v. DEPARTMENT OF CORRECTIONS
Appellate Division, A-68-04T3, A-69-04T3, A-70-04T3, and A-71-04T3, approved for publication December 27, 2005. (19 pages). Facts-on-Call Order No. 92782

Like its predecessor, the current version of N.J.S.A. 30:4-140 — which denies prisoners commutation credits toward parole eligibility for the period of their presentence jail incarceration — does not violate equal protection because the differential treatment is rationally based and is reasonably related to a proper governmental objective. Section 30:4-140 does not violate due process because there is no inhibiting effect on the exercise of an inmate’s Sixth Amendment right to a jury trial or on his Fifth Amendment right to plead not guilty.

BAIL
STATE v. HARRIS
Appellate Division, A-2735-04T1, approved for publication December 27, 2005. (9 pages). Facts-on-Call Order No. 92783

The order for partial remission after the forfeiture of bail was affirmed because, although a late notice of forfeiture under Rule 3:26-6(a) may affect a surety’s claim for remission, there is no per se entitlement to remission in its entirety if the defendant is captured or surrendered by the surety within 75 days of the notice of forfeiture. A remission application should be decided after consulting the bail remission guidelines and the case law.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
BATICH v. POLICE ATHLETIC LEAGUE OF WESTFIELD
Appellate Division, A-5123-04T1, December 27, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 19014

Summary judgment for the defendant minors, the defendant coach, and the defendant Police Athletic League in an action arising from the 78-year-old plaintiff’s fall affirmed; a member of the PAL football team knocked the plaintiff down during a post-practice game of catch in a parking lot while team members waited with the coach to be picked up; the minors were team members, and the coach was the father of one of the minors; as to the minors, they had acted reasonably under the circumstances; as to the coach, he could not be held (1) vicariously liable as a father because there was no viable claim against his son and because, even if there had been a viable claim against his son, the coach was not accused of wanton and willful conduct, (2) vicariously liable as a coach because he was not engaged in “actual coaching activities” when the accident occurred, and (3) liable for negligent supervision because he was not accused of wanton and willful conduct; as to the PAL, there was no basis for a cause of action against it because there was no basis to impose liability on the coach.

EMPLOYMENT LAW
ALL QUALITY CARE, INC. v. KARIM
Appellate Division, A-3359-04T1, December 27, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 19016

Summary judgment for the defendant ex-employee, the defendant patient, and the defendant son-in-law of the patient in the plaintiff home health service provider’s breach of contract action affirmed; the son-in-law hired the ex-employee to work directly for the patient following the ex-employee’s termination by the plaintiff, which sought to enforce the restrictive covenants contained in the ex-employee’s employment contract and the patient’s service contract executed by the son-in-law; based on the “plain and ordinary meaning” of the contractual terms, the restrictive covenants (1) in the employment contract, which applied only when “an employee decides to leave,” did not apply to involuntary terminations and (2) in the service contract, which prohibited the signer from directly employing “the services of any of the agency’s employees,” did not apply to ex-employees.

CIVIL PROCEDURE
RURE ASSOCIATES, INC. v. DYNAMIC INDUSTRIES, INC.
Appellate Division, A-4242-04T5, December 27, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 19015

Portions of a June 14, 2002 order that denied the defendant general contractor’s motions (1) to consolidate its action against the Board of Education — which was filed in May 2002, alleged that the public construction contract terminated by the Board had been substantially completed, and sought payment for money due on the contract — with the previously consolidated actions for payment by four subcontractors and (2) for leave to file a cross-claim against the Board in the consolidated actions affirmed substantially for the reasons expressed by the motion judge and by the Appellate Division in its November 2003 decision affirming the dismissal of the general contractor’s May 2002 complaint on entire controversy grounds; the general contractor did not assert cross-claims against the Board in its answers in the consolidated actions and did not oppose the dismissal of the claims against the Board in the consolidated actions; the motion judge determined that it was inappropriate to grant the general contractor’s motions because the trial in the consolidated actions was scheduled for June 19, 2002 and because the general contractor failed to act earlier on its claims against the Board.

GUN CONTROL
IN RE APPLICATION OF QUALE
Appellate Division, A-3147-04T5, December 23, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 19013

Order that denied the appellant’s 2002 application for a permit to purchase a firearm reversed and remanded; after his earlier application was approved in 1999, the appellant purchased a firearm, which later was stolen; the appellant had left the gun in the trunk of his friend’s car, and the car was stolen; the municipal police department determined that granting the 2002 application “would not be in the interest of the public health, safety or welfare” because the appellant was negligent at the time of the theft when he left the firearm inside his friend’s car while running inside the house to use the bathroom and because the friend initially supplied the police with a fictitious name during the ensuing investigation; by reviewing the denial of the 2002 application under an abuse of discretion standard, the trial court applied the incorrect standard of review and did not exercise the independent judgment that was required to conduct a de novo review.


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