NEW JERSEY LAWYER

DAILY BRIEFING      02/24/2005


News Briefs

BILL TO EASE MANDATORY LICENSE SUSPENSION GETS SUPPORT
A bill that could signal a turning of the tide on mandated penalties for drug convictions has received the backing of the state Commission to Review Criminal Sentencing. In its first policy move since its founding a year ago, yhe panel voted unanimously to support A-878, which would allow judges to grant exemptions to the mandated six- to 24-month driver license suspension for drug offenders. Under the measure, a judge could waive the suspension if the offender’s loss of license “will result in extreme hardship and alternative means of transportation are not available.” The dozen members at the commission’s meeting Wednesday made it clear they would have voted for abolition of the license penalty altogether but for federal highway funding rules requiring the sanction. Some suggested looking for an escape route from the federal rules, but at the moment they settled for supporting the Assembly bill sponsored by Peter J. Barnes Jr. (D-Middlesex). “I marvel at the juxtaposition of fining somebody $1,500 and then taking away his license so he can’t get to his job,” said sentencing panel chairman and former Judge Barnett E. Hoffman. The bill has cleared the Assembly Judiciary Committee, but hasn’t been introduced in the Senate. 2-23-05

JUDGE APPROVES MED-MAL PAYMENT PLAN
Except for adjusting some timelines, Mercer County Judge Neil H. Shuster has accepted a Department of Banking and Insurance plan for closing out the business of the MIIX medical malpractice insurance firm. The state has been administering the company since last September and estimated about $500 million in assets but $800 million in liabilities. After a hearing last week, Shuster stayed all new suits and settlement conferences against MIIX-insured doctors. The state will be making settlement offers in 700 to 900 cases capped at $1 million for the most serious cases, many of which would have settled for several times that under other circumstances. If too few settlement offers are accepted and too many plaintiffs opt for trial, however, the state can rescind offers and put the company into liquidation, under which the maximum payout would be $300,000 per claim. This puts plaintiff lawyers in a situation where they must advise clients whether to accept or reject a gamble. More important, they say, many claimants will receive far less than they need, all because of the badly timed expansion and rapid collapse of the insurer. 2-23-05

$1.2 MILLION SETTLEMENT FOR INJURED TRUCK DRIVER
John Cierzo, injured while riding in a tow truck driven by Charles D. Ross in July 2000, settled his lawsuit against Ross, Staten Island Towing and the Scottsdale Insurance Co. for $1.2 million. Settlement was reached two weeks after an initial conference before Middlesex County Judge Bryan D. Garruto. Ross had raised the boom on the tow truck too high when he hooked up Cierzo’s disabled 18-wheel tractor-trailer, causing Cierzo severe injuries when the boom struck an overpass. Edison attorney Paul R. Garelick represented the plaintiff in Cierzo v. Staten Island Towing. John H. Maucher of Cherry Hill was counsel for the towing company and Ross. The insurer’s attorney was Frank N. Yurasko of Somerville. 2-23-05

CONFLICT OF INTEREST IN CLASS ACTION
Two Southern California law firms, Westrup Klick & Associates and its longtime co-counsel, Law Offices of Allan A. Sigel, have been disqualified from a class-action lawsuit against Apple Computer by what the 2nd District Court of Appeal called “an insurmountable conflict of interest”: the class representative, Lawrence Cagney, is an attorney with Westrup Klick. The lawsuit, alleging Apple collected excess sales tax from consumers in connection with a rebate program, claims a violation of the state’s unfair competition law and seeks attorney fees under a state statute that allows them if the prevailing party’s action “resulted in the enforcement of an important right affecting the public interest.” As class representative, Cagney was obligated to seek the highest recovery for the putative class, but he and the firms may have had a clashing interest in maximizing their fees, said the court. 2-23-05

BLAME IT ON THE SPAM BLOCKER
The plaintiffs’ attorney in a wrongful death lawsuit narrowly escaped sanction for failure to appear at a scheduled conference. It seems his firm’s spam-blocking software automatically sidetracked the court’s e-mail notice. U.S. Magistrate Judge Christopher A. Nuechterlein accepted South Bend, Ind., attorney Jeffrey J. Stesiak’s explanation that with the help of the court system administrator, he discovered his firm’s software set the internet security level too high, blocking the notification. Sanctions could have included dismissal of the case on behalf of survivors of a woman who died, he claims, as a result of a defective medical product. 2-23-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, FEBRUARY 23, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 23, 2005.

THE SUPREME COURT has announced that it will release an opinion in ZIVE v. STANLEY ROBERTS, INC., A-82, on February 24, 2005. The issue on appeal in Zive addresses whether an employee had met his burden of establishing that he had satisfied the legitimate expectations of his employer in his action alleging handicap discrimination under the Law Against Discrimination.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, FEBRUARY 23, 2005

NOT APPROVED FOR PUBLICATION
LAND USE
RUKH ENTERPRISES, INC. v. PLANNING BOARD OF THE TOWNSHIP OF EDISON
Appellate Division, A-4802-03T1, February 23, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17653

Law Division order for the plaintiff applicant in an action in lieu of prerogative writs challenging the defendant Planning Board’s denial of the plaintiff’s application for site plan approval reversed; the plaintiff’s attorney had advised the Board that a meeting to discuss a taking involving the plaintiff’s property was scheduled for the next week; based on the fact that the plaintiff was required to reduce the number of parking spaces to meet the lot requirements of the zoning ordinance, the Board could reasonably conclude that the proposed taking would have an impact on the parking design, traffic, and safety of the site plan; the Board did not act arbitrarily by refusing to approve the application based on uncertainties created by the proposed taking, and its decision to vote without additional information must be viewed in light of the plaintiff’s refusal to consent to a 30-day delay.

INSURANCE
LIBERTY MUTUAL INSURANCE CO. v. LAND
Appellate Division, A-5337-02T3 and A-5690-02T3, February 23, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17654

Jury verdict declaring that the homeowner’s policy issued by the plaintiff was void and the trebling of the plaintiff’s damages under the Insurance Fraud Prevention Act reversed and remanded for a new jury trial; the owner of a cabin damaged by a fallen tree hired three individuals to assist him in preparing his insurance claim; a videotape showed the three individuals taking part of the fallen tree and slamming it against the roof to create additional holes, shattering a skylight with that part of the fallen tree, and pulling on and bending a television antenna; the plaintiff’s comments during summation — which stated that the jury could send a message that insurance fraud and higher premiums are “not to be tolerated” and which suggested a criminal proceeding — were “highly prejudicial”; based on the concerns of and objections from the cabin owner’s attorney, one of the hired individuals should have been permitted to testify in the narrative form; the Appellate Division declined to address the issue of treble damages in light of its reversal and remand; the proper burden of proof under the Act is clear and convincing evidence.

NEGLIGENCE
REICH v. KACZMAREK
Appellate Division, A-3884-03T2, February 23, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17656

Denial of the plaintiff’s motion for a new trial after the jury awarded him no damages in an automobile negligence action reversed and remanded for a new damages trial; the defendant’s car rear-ended the plaintiff’s, which was stopped at a red light; the trial court granted the plaintiff’s motion for a directed verdict on the issue of liability, and the plaintiff presented undisputed medical evidence that he suffered neck and back injuries in the accident; although the record could justify the award of only modest damages, the jury’s failure to award any damages at all to the plaintiff constituted a miscarriage of justice.

VERBAL THRESHOLD
DADDARIO v. BURNS
Appellate Division, A-2974-03T3, February 23, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17652

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the motion judge properly concluded that the plaintiff had not demonstrated that her injuries had a serious impact on her life; the plaintiff, who was employed as the assistant director for volunteer services at a hospital, was “fully capable” of performing “her usual and customary work activities” after the accident; the impact on her ability (1) to help her ailing father, (2) to coach softball, (3) to go camping, hiking, cycling, and skiing, (4) to work on a Christmas tree farm, (5) to do household chores, (6) to walk normally, and (7) to engage in sexual relations with her husband were inadequate to satisfy the second prong of the Oswin test.

PARENT AND CHILD
DEERING v. DEERING
Appellate Division, A-3857-03T2, February 23, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17651

Summary judgment for the defendant parents in an action by the plaintiff paternal grandparents to obtain visitation with the defendants’ twin daughters under N.J.S.A. 9:2-7.1 affirmed; the twins were born in March 2001, and the plaintiffs had not seen them since the summer of 2001, when the defendants cut off contact with the plaintiffs; the twins never had a relationship with the plaintiffs, and they lived together with the defendants; the trial court was “well justified” in concluding (1) that the plaintiffs had not proved harm that was sufficient to satisfy the Moriarty v. Bradt standard and (2) that a harmful situation was likely to result from allowing the children to establish a relationship that was against the defendants’ wishes.

DOMESTIC VIOLENCE
PARZIALE v. SWANEY
Appellate Division, A-3444-03T3, February 23, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17655

Final domestic violence restraining order against the defendant affirmed; the defendant went to the plaintiff’s beach house to pick up their three children, had a verbal altercation with the plaintiff’s mother, began to “fight with the door,” and struck the plaintiff in the face; contrary to the defendant’s arguments on appeal, (1) there was no basis in the record to disturb the trial court’s findings of fact and (2) the trial court did not err by excluding evidence of prior incidents of domestic violence or by excluding the police report; moreover, the defendant’s argument that she was denied the effective assistance of counsel was “misplaced” because this was a civil proceeding.

HUSBAND AND WIFE
CZEIZINGER v. CZEIZINGER
Appellate Division, A-5205-03T5, February 22, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17650

Post-divorce-judgment orders requiring the plaintiff ex-husband to pay $273 per week in child support, denying his other requests, and denying his motion for reconsideration affirmed; the Family Part (1) correctly concluded that the commence date for the plaintiff’s alimony obligation and for the disposition of the marital residence was the date that the judgment of divorce was entered, (2) did not err by crediting the defendant ex-wife with mortgage payments made by her, and (3) did not err by concluding that the plaintiff had not met his burden of establishing changed circumstances; furthermore, the plaintiff was not entitled to a remand because the Family Part should have modified his child support obligation retroactively to July 1, 2000, and the Family Part did not abuse its discretion by refusing to award the plaintiff attorney’s fees.

DRUNK DRIVING
STATE v. DISPORTO
Appellate Division, A-2528-03T2, February 22, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17649

Conviction of driving while intoxicated affirmed; the Law Division properly found the defendant guilty of DWI beyond a reasonable doubt on both a non-per se basis and a per se basis under N.J.S.A. 39:4-50(a); as to the non-per se basis, the Law Division found (1) that the defendant’s driving behavior, his inability to perform a sobriety test, the smell of alcohol, and his swaying and fumbling constituted proof beyond a reasonable doubt that he was under the influence at the scene of the accident and (2) that, based on a videotape of the defendant, he was not under stress and did not appear to be “inherently clumsy”; as to the per se basis, the defendant did not dispute that the Breathalyzer was working and that the test had been administered properly by a qualified and certified officer; thus, the Breathalyzer was a reliable scientific instrument, and any contribution by the industrial chemicals to which the defendant was exposed at work to his BAC reading “did not constitute a legally cognizable defense.”


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