NEW JERSEY LAWYER

DAILY BRIEFING      02/15/2005


News Briefs

$1.4 MILLION VERDICT IN AFTERMATH OF FIRE
Following a six-week trial before Bergen County Judge Elijah J. Miller Jr., a jury has awarded more than $1.4 million to six plaintiffs in Arias v. Avalon Bay. Three other plaintiffs settled at the start of trial for undisclosed amounts. The lawsuit was filed by neighbors of the Avalon Bay apartment complex, under construction in Edgewater, after fire ripped through the wood-frame construction and jumped across the street, destroying homes and cars, and endangering residents. Individual awards ranging from $113,000 to $337,000 supplemented homeowner insurance coverage. Including pre-judgment interest, the awards total $1,436,745. Representing the plaintiffs were the father and son team of Barry D. and Michael J. Epstein of Rochelle Park. The defendant’s attorneys were Philip A. Garubo Jr. and Jeffrey S. Bell of Bridgewater. 2-14-05

LIQUOR INDUSTRY DOWNPLAYS IGNITION INTERLOCKS FOR DWI OFFENDERS
A proposal to install ignition interlocks on the cars of those convicted of drunken driving goes too far, say members of the alcohol industry and others. The devices, which require a driver to pass an onboard breath test before the motors starts, were first approved by the state legislature in 2001, but only for repeat offenders. This month, less than a year after New Jersey lowered its legal blood alcohol content from 0.1 to 0.08 percent, the state Assembly’s Law and Public Safety Committee voted 4-0 vote to release a bill expanding their use. The Senate passed a similar measure in January. Supporters say the bill would help prevent first offenses and reduce recidivism. But the requirement is too stiff for first-time offenders, says Barbara McConnell, a lobbyist for the Licensed Beverage Association. Assemblyman Robert J. Smith of Gloucester County, who abstained from the committee vote, said in his experience as a municipal prosecutor, “a lot of the first-time offenders made a mistake in judgment and are not alcoholics.” He also noted the state has had difficulty monitoring the existing program, adding, “The net is being cast too far.” 2-14-05

HUH? PATENT DENIED; SCIENTIST PLEASED?
The U.S. Patent and Trademark Office has rejected an application from a scientist who applied for a patent to create human-animal hybrids through genetic engineering. While the applicant, Stuart Newman of New York Medical College in Valhalla, opposes such experimentation and is allied with biotech activist Jeremy Rifkin, he submitted the application knowing it would be a win-win — either he’d get the patent and thus bar others from such experiments for 20 years, or a denial would force the Patent Office to set a policy. Patent officials based their rejection in part on a constitutional question: Would such a hybrid be a human and therefore allowed the rights of citizens? Patent officers issued a denial rather than try to answer that question. Rifkin noted the decision doesn’t preclude generic engineering that uses animal genes in humans or vice versa. 2-14-05

LAW FIRM NEEDS REFRESHER ETHICS COURSE, SAYS JUDGE
U.S. District Judge Oliver W. Wanger has ordered that all 80 lawyers in the Fresno, Calif., firm Lozano Smith take a refresher course in ethics, as a sanction for repeated misrepresentation of facts and the law in a dispute over aid for a learning-disabled student. The judge cited the firm, which represents some 200 school districts on special education issues; Elaine Yama, lead attorney on the case; and the district itself for “repeated misstatements of the record, frivolous objections to plaintiff’s statement of facts and repeated mischaracterizations of the law.” He sanctioned the firm for “misguided advocacy” in opposing services for Robert Moser, now a 23-year-old college student who now will receive $23,000 in vocational counseling and other help. The case cost the district nearly $500,000 in legal fees over four years of litigation. 2-14-05

WOMAN SUES 7-YEAR-OLD OVER ROLLERBLADING ACCIDENT
Both the trial and appellate courts have thrown out the case, but Mary Ellen Michaels of Strongsville, Ohio, has directed lawyer Judson Hawkins to take it all the way to the Ohio Supreme Court. Rollerblading in a park last spring, Michaels came upon a 7-year-old riding a bike and screamed at him to get out of the way. He stopped, giving her room — just barely — to pass. But the toe of her rollerblade caught on the bike’s rear wheel, twisting her foot and causing her leg to snap. Michaels sued the boy, his grandmother, who was taking care of him, and the parents, who were 1,000 miles away on a trip. “Even if you accept everything she says as fact, she still doesn’t have a case,” said Patrick Roche, the boy’s lawyer. But “given the nature of the injury, I thought it merited a lawsuit,” said Hawkins, insisting he “did considerable research” before suing. 2-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, FEBRUARY 14, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, FEBRUARY 14, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, FEBRUARY 15, 2005.


APPROVED FOR PUBLICATION
CONSUMER PROTECTION
SPRENGER v. TROUT
Appellate Division, A-5543-03T5, approved for publication February 14, 2005. (28 pages). Facts-on-Call Order No. 92309

The business of customizing and refabricating automobiles is that of an automotive repair dealer and is subject to the regulations of the Consumer Fraud Act. Furthermore, the equitable defenses of unclean hands, equitable estoppel, and substantial compliance are not available where a defendant is not able to offer a reasonable explanation as to why strict compliance with the automotive regulations could not have been achieved by obtaining a signed written waiver of the requirement for a written estimate.

SEARCH AND SEIZURE
STATE v. IRELAN
Appellate Division, A-6622-03T2, approved for publication February 14, 2005. (25 pages). Facts-on-Call Order No. 92310

The warrantless search of the passenger compartment of a motor vehicle in connection with a DWI arrest was valid under the automobile exception based on probable cause that evidence related to the DWI offense — open containers of alcohol — would be found and on the presence of exigent circumstances. It was not necessary to determine whether the search would have been valid under Belton.

NOT APPROVED FOR PUBLICATION
ARBITRATION
MEDICAL SOCIETY OF NEW JERSEY v. OXFORD HEALTH PLANS, INC.
Appellate Division, A-1485-03T1, February 14, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17620

Dismissal of the plaintiff association’s complaint against the defendant insurer affirmed; the plaintiff represented 8,000 New Jersey physicians and claimed that the defendant had denied, delayed, or reduced payments to the physicians for medical care that they had provided to the defendant’s insureds under contracts with the defendant; all of the contracts between the defendant and the physicians required disputes to be resolved through binding arbitration, but the plaintiff filed a complaint seeking injunctive and declaratory relief on several theories; the plaintiff lacked standing to litigate its claims on behalf of the physicians because they were contractually bound to arbitrate their disputes, and the plaintiff could not pursue the complaint on its own behalf because the interests it asserted were merely a restatement of the physicians’ interests.

VERBAL THRESHOLD
HOGAN v. CHU
Appellate Division, A-5850-03T2, February 14, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17621

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold affirmed; after the defendant’s car struck the plaintiff’s car while traveling at about 35 mph, the plaintiff was taken to the hospital and released that same day; the trial court properly determined that the plaintiff had not presented sufficient objective medical evidence of a permanent injury because the diagnostic tests that he underwent during the three years since the accident, including an EKG, chest X-rays, a CT scan, and two MRIs, “consistently” attested that the plaintiff’s injuries were not sufficient to overcome the verbal threshold.

INSURANCE
LASTER v. STATE NATIONAL INSURANCE CO.
Appellate Division, A-5017-03T3, February 14, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17622

Summary judgment for the defendant insurer and dismissal with prejudice of the plaintiff insured’s complaint in an action for personal injury protection coverage under an automobile policy affirmed substantially for the reasons stated by the trial court; after making a down payment, the plaintiff defaulted in making a premium payment that was due on June 1, 2002; on June 3, the defendant notified the plaintiff of its intent to cancel the policy and informed him that payment was due by June 8; the plaintiff did not respond, and the defendant notified him that the policy was cancelled as of June 30, 2002 at 12:01 a.m.; the plaintiff sent a check for the premium on July 1 and was involved in an automobile accident on July 12, but the defendant declined coverage; the trial court found that the defendant had properly cancelled the policy, that the plaintiff had received proper notification, and that prorating the plaintiff’s down payment did not entitle him to coverage.

PREMISES LIABILITY
STONESTREET v. MARLOWE
Appellate Division, A-4479-03T1, February 14, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17617

Summary judgment for the defendant homeowners in an action arising from the plaintiff plumbing contractor’s fall on their property affirmed; the defendants were constructing a house on their property, and they retained a series of construction managers after they terminated the general contractor; the plaintiff fell through the opening for a stairwell and sued the defendants, claiming that they had assumed the role of general contractor; under Slack v. Whalen, the defendants could not be considered the general contractor — and they did not have a duty to exercise reasonable care for the plaintiff’s safety at the construction site — based on the level of their involvement in the project, the nature of the risk to the plaintiff, or their relationship with him.

DOMESTIC VIOLENCE
TUFARO v. BESS
Appellate Division, A-4427-03T2, February 14, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17618

Final domestic violence restraining order reversed and remanded for vacation; after the parties divorced, they agreed that the defendant former husband could live in the marital home until February 10, 2004; because he found the upstairs room in which he was living too cold, he bought an electric space heater and an electric blanket; the plaintiff former wife was dissatisfied with his response to her request that he contribute to the increases in the electric bill, and she put the appliances out on the curb for the trash on February 3; when he retrieved them, they began shouting at each other, she kicked the heater, which cut his finger, and he pushed her; this was “ordinary domestic contretemps,” not the type of serious abuse that the domestic violence laws were intended to address.

CIVIL PROCEDURE
NEWMAN v. ANTONACCIO
Appellate Division, A-4027-03T3, February 14, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17619

The September 5, 2003 order denying the defendants’ motion to vacate a default entered on March 12, 2003, the October 21, 2003 denial of the defendants’ motion for reconsideration, and the April 15, 2004 order denying the defendants’ motion to stay the entry of the final judgment of default affirmed; contrary to the defendants’ argument on appeal, the trial court’s rulings contained “no error or discretionary lapse”; in addition, the defendants’ contention that the default judgment was void ab initio for lack of personal jurisdiction was not adequately supported, and their “desultory efforts to vacate the default were unavailing.”


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