NEW JERSEY LAWYER

DAILY BRIEFING      02/23/2006


News Briefs

WOMAN AWARDED $3 MILLION FOR CAR-CRASH INJURIES
A woman who suffered permanent spinal injury as a result of a car crash will receive $3 million for pain and suffering. Ending a three-day trial, an eight-member Middlesex County jury before Judge Lorraine Pullen found that the injured woman, Teria O. Armstead, had no liability for the accident, that she had met the lawsuit threshold and that she suffered permanent injuries from herniated discs. Defendant Mattie Crosson was found 100 percent liable, having crossed several northbound lanes on the Garden State Parkway after leaving the Union rest area. She was represented by Doreen M. Ryan, house counsel for her insurer, Allstate Insurance Co. in Cranford, which had offered no money prior to trial. David A. Nitti of the Law Office of Michael A. Percario in Linden handled the case, Armstead v. Sonzongi and Crosson, for the plaintiff. Another defendant, John J. Sonzongi, was found to have no liability. 2-22-06

HANDLER TO SPEAK ON CONSTITUTIONALISM
Alan B. Handler, a former New Jersey Supreme Court justice, will present the annual Robert N. Wilentz Justice Forum Lecture on Monday, March 13. Handler, of counsel to Wilentz, Goldman & Spitzer in Woodbridge, will discuss “Rights, Remedies and Results: The Three R’s of Constitutionalism.” He will explore the implications of his findings “in different areas of constitutional decision-making, including criminal law, civil law and public policy, but with a special emphasis on the implications for people living in poverty.” The event, starting with a reception at 6 p.m. and the lecture at 7 p.m., will be at the New Jersey Law Center in New Brunswick. It will be the fourth in a series of lectures sponsored by Legal Services of New Jersey and the New Jersey State Bar Association honoring the memory of the late chief justice. Handler and Wilentz served on the high court together for many years. 2-22-06

EMINENT DOMAIN HEARINGS BEGIN
A state legislative committee is holding hearings on New Jersey’s eminent domain law, how it’s being used and how the government compensates property owners for their land. The state Assembly’s Commerce and Economic Development Committee begins the first of three hearings Thursday to see if the law needs revamping. The topic has been a hot one since the U.S. Supreme Court ruled in Kelo v. City of New London that the Connecticut town’s condemnation of property in a blighted area to achieve economic development is constitutional. In New Jersey, eminent domain has caused a furor in Camden, Westville and other communities. 2-22-06

PENNSY SCHOOLS PAYING $1M IN LEGAL FEES IN INTELLIGENT DESIGN CASE
Although a federal judge found they were entitled to $2.067 million in legal fees, the plaintiffs’ attorneys who won the first-ever suit over the teaching of intelligent design are settling for $1 million in fees. The plaintiffs’ lawyers said that while they want to discourage any other school boards from mixing church and state, they accepted about half the fee in recognition of the community defeating most of the Dover Area school district’s board members who voted for the policy. Most of the settlement money, unanimously approved by the board this week, will be split between the Pennsylvania chapter of the American Civil Liberties Union and Americans United for Separation of Church and State. The organizations represented a group of parents who sued in 2004. In a landmark ruling in December, U.S. District Judge John E. Jones said the school board violated the U.S. Constitution when it introduced intelligent design into its high school science curriculum in 2005. 2-22-06

LION SONG’S FAMILY SLEEPS WELL TONIGHT AFTER SETTLEMENT
Nearly 70 years after it was written and recorded by a Zulu migrant worker, the catchy song, “The Lion Sleeps Tonight,” has finally paid off big for the composer’s relatives. The song is estimated to have earned more than $15 million since it was written in 1939 and later recorded by at least 150 artists including jazz great Jimmy Dorsey and folk singer Pete Seeger — and was featured in Walt Disney’s film The Lion King and its stage version. Meanwhile, the composer’s relatives have been living in poverty in the Johannesburg township of Soweto in South Africa — but no more. Attorneys acting on behalf of relatives of the composer, Solomon Linda, recently settled a copyright suit for an undisclosed amount, ending a dispute that began six years ago. Walt Disney Co., a defendant, maintained it obtained the rights to the song from Albilene Music, which agreed to pay for administering the popular song’s copyright. 2-22-06



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, FEBRUARY 22, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 22, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, FEBRUARY 23, 2006.


APPROVED FOR PUBLICATION
CORPORATIONS
VERGOPIA v. SHAKER
Appellate Division, A-2578-04T1, approved for publication February 22, 2006. (21 pages). Facts-on-Call Order No. 92861

A New Jersey attorney who, in his capacity as outside counsel and Securities and Exchange Commission counsel, reviewed and commented on a press release before its distribution and supervised the preparation and filing with the SEC of a Form 8-K was an agent of the corporation for purposes of the Delaware law on indemnification for attorney’s fees.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
MAKE-UP BAR v. COOPER, LEVENSON, APRIL, NIEDELMAN, & WAGENHEIM, P.A.
Appellate Division, A-3842-04T2, February 22, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19270

Summary judgment for the defendant law firm and the defendant attorney in a legal malpractice action reversed and remanded for trial; the owner of the plaintiff hair salon asserted that she had retained the attorney to draft a “no-hire” agreement and that he instead drafted a “non-solicitation” agreement, which later proved to be “effectively unenforceable” in a Chancery Division action filed after four salon employees went to work for a hairdresser who was formerly employed by the salon; for purposes of their argument in their summary judgment motion, the defendants conceded that they did not draft the agreement that the salon had requested, but they asserted that that error was not a proximate cause of the salon’s damages because a no-hire agreement would be unenforceable and because the hairdresser would not have executed it; in opposition to the motion, the owner asserted in her certification (1) that the defendants never told her that a no-hire agreement was potentially unenforceable, (2) that she would not have hired the hairdresser if she had known that, (3) that the hairdresser had agreed to sign a no-hire agreement, despite his certification to the contrary, and (4) that she would not have hired the hairdresser if he had refused to sign a no-hire agreement; summary judgment was improper because the owner’s certification raised “significant issues of fact.”

VERBAL THRESHOLD
CASTRO v. SPYROPOULOS
Appellate Division, A-5293-04T5, February 22, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19269

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court concluded that there was “very, very little, if any, objective evidence of any serious impact or serious injury”; reversal and remand were required in light of the New Jersey Supreme Court’s decisions in DiProspero v. Penn and Serrano v. Serrano, which held that AICRA eliminated the serious-impact requirement; the defendants argued on appeal that the trial court had dismissed the complaint because the plaintiff failed to present objective credible evidence of a permanent injury; although it could not exclude that possibility, the Appellate Division concluded that the trial court’s language indicated that the dismissal was based on the plaintiff’s failure to satisfy the “now discarded” serious-impact requirement; nonetheless, the defendants could seek clarification on remand.

INSURANCE
BASTEK v. COMMERCE AND INDUSTRY INSURANCE CO.
Appellate Division, A-3286-04T1, February 22, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19271

Dismissal of the plaintiff accident victims’ two-count complaint for additional payments from the defendant insurer affirmed; the plaintiffs were involved in an accident with a tractor-trailer; the driver and owner of the tractor had been hired by the defendant’s insured; the defendant had issued a commercial motor vehicle policy and a commercial general liability policy to the insured; in an automobile negligence action against the insured, the jury verdict was “well in excess” of the motor vehicle policy limits, but the plaintiffs obtained only $982,000, which represented the $1 million limit of the motor vehicle policy, less storage and towing fees; the plaintiffs’ claim that sought a declaration that the insured’s CGL policy covered the accident was barred by the CGL policy’s automobile exclusion; the plaintiffs’ claim that sought pre- and post-judgment interest on the $982,000 was properly dismissed; contrary to the plaintiffs’ additional arguments on appeal, equitable estoppel did not apply to bar the defendant from denying a duty to pay interest under the motor vehicle policy or to pay the policy limits of the CGL policy, and there was no basis for the trial judge to have recused himself.

DOMESTIC VIOLENCE
BODNAR v. SPERENDI
Appellate Division, A-2833-04T1, February 22, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19272

Final domestic violence restraining order against the defendant ex-boyfriend reversed; although the plaintiff ex-girlfriend had expressed her desire to end the parties’ relationship, the defendant telephoned her repeatedly during a three-month period to ask about her health; the plaintiff admitted that the defendant never threatened her, that she was not alarmed or anxious about her safety, and that the defendant expressed concern for her well-being in his calls; contrary to the defendant’s arguments on appeal, the trial court made the required finding of a purpose to harass and applied the proper burden of proof; however, the defendant’s unwanted calls did not rise to the level of serious annoyance required by N.J.S.A. 2C:33-4c or qualify as an act of domestic violence.

PUBLIC EMPLOYEES
IN RE POPOLIZIO
Appellate Division, A-5300-03T3, February 21, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19265

Final decision of the Merit System Board that upheld the administrative law judge’s initial decision to approve 30-day disciplinary suspensions for the appellant police officers affirmed; the ALJ determined (1) that the respondent City acted properly by suspending the officers for 30 days, (2) that the officers’ testimony was “substantially contradictory, implausible, inconsistent, contrived and simply not worthy of belief,” and (3) that the officers violated City and State regulations by engaging in conduct to bring discredit, ridicule, and criticism to the police department and firing their weapons at a suspect without justification for using such force, by falsifying an official record or report, by firing shots at an unarmed suspect, and by putting the City’s citizens in harm’s way; there was sufficient credible evidence to support the Board’s decision.

UNEMPLOYMENT COMPENSATION
NUNEZ v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-3211-04T5, February 21, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19266

Final decision of the Board of Review that denied the claimant truck driver’s application for unemployment benefits affirmed; the claimant admitted that he had voluntarily resigned because he believed that he had to have a commercial driver license to operate the respondent employer’s trucks and because he did not have a CDL; although the claimant’s friend had told him that he needed a CDL to drive trucks with air brakes, the employer had told the claimant that no CDL was necessary, even though its trucks did have air brakes; the Motor Vehicle Commission manual that the claimant relied on did not state that a CDL is required to drive every truck that is equipped with air brakes; the Board properly determined that the claimant was disqualified from receiving unemployment benefits because he had left his employment without good cause attributable to the work.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. S.R.
Appellate Division, A-4687-04T4, February 21, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19268

Order that terminated the defendant mother’s parental rights to her 3-year-old son and that granted guardianship of the son to the plaintiff Division of Youth and Family Services affirmed substantially for the reasons expressed by the Family Part; none of the mother’s five children were in her care, and her parental rights to two of them had been involuntarily terminated already; the mother had a “longstanding drug problem,” but she refused the drug treatment that DYFS offered to her after she gave birth to the son, who tested positive at birth for cocaine, heroin, and methadone; the son was placed with a foster parent when he was discharged from the hospital, and he considered the foster parent to be his psychological parent; although the mother was drug-free for 14 months following her release from jail, she could not maintain a safe and stable home for the son and lacked the ability to support him financially; DYFS proved by clear and convincing evidence that the termination of the mother’s parental rights was in the son’s best interests.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF J.X.B.
Appellate Division, A-1348-05T2, February 21, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19267

Judgment that continued the appellant’s commitment at the Special Treatment Unit pursuant to the Sexually Violent Predator Act affirmed substantially for the reasons expressed by the trial court; the appellant did not dispute that he committed two predicate offenses in the form of sexual assaults on two dates in 1995; the trial court found that the testimony of the State’s expert was more persuasive than the testimony of the appellant’s expert; the record supported the trial court’s determinations (1) that the appellant still was a sexually violent predator who required commitment, (2) that the appellant’s progress in the STU programs was insufficient, and (3) that the appellant had a mental abnormality — paraphilia NOS — that caused him serious difficulty in controlling sexually harmful behavior and that made him highly likely to reoffend; the trial court did not abuse its discretion by ordering the appellant’s continued commitment.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2006 The New Jersey Lawyer Inc. All rights reserved.