NEW JERSEY LAWYER

DAILY BRIEFING      02/03/2006


News Briefs

$1.89 MILLION AWARDED FOR CONSTRUCTION INJURIES
A Burlington County jury has awarded $1.89 million to Timothy and Cindy Carroll of Mount Laurel for a construction accident that became a product liability case. Timothy Carroll was working on a new hotel in New York City in 2001 when a steel beam rolled out from under several thousand pounds of concrete. Carroll fell 20 feet and much of the concrete landed on top of him. His attorney, Gary F. Piserchia of Parker McCay in Marlton, argued the beam was improperly designed and had the propensity to roll. Carroll suffered multiple injuries, including five pelvic fractures and a broken elbow. Piserchia said Carroll is working again, but remains hampered by his injuries. The defendant, Old Castle Inc., a producer of prefabricated building systems, was represented by Edward J. DePascale of McElroy, Deutsch, Mulvaney & Carpenter in Morristown. Judge Craig L. Wellerson presided. 2-2-06

IT JUST KEEPS GETTING WORSE FOR MERCK
The legal woes and costs for Merck over its Vioxx problems seem to worsen each day. The latest news is that more than half the nation’s state attorneys general have slapped Merck with subpoenas seeking to ferret out whether the Whitehouse Station pharmaceutical broke consumer protection laws in marketing Vioxx. Meanwhile, the drain from preparing to battle nearly 10,000 Vioxx suits — about 40 percent of them from New Jersey — already is reaching sky-high numbers. The latest reports show Merck has set aside $970 million to cover just legal costs and that reserve doesn’t count one penny toward eventual awards or settlements. Of the $970 million for legal costs, about $280 million is spoken for. 2-2-06

RUTGERS AWARD GOES TO JUDGE AXELRAD
Appellate Judge Francine I. Axelrad is this year’s Joseph M. Nardi Jr. Distinguished Service Award recipient. Axelrad, who joined the Tax Court in 1993 and Appellate Division in 2000, was tabbed by the Rutgers-Camden Law Alumni Association for her “exemplary commitment” to New Jersey and the law school community. She chairs the Supreme Court Committee on Women in the Courts and is a judge for the New Jersey State Bar Foundation mock trial and Rutgers’ moot court competition. Her community work includes CPR instruction for the American Heart Association, tutoring for the Literacy Volunteers of America and merit badge counseling to Boy Scouts. 2-2-06

CODEY WEIGHS IN WITH CELL PHONE BAN BILL
Former Gov. Richard J. Codey is back in the legislative trenches, introducing and advocating for bills. As Senate president, the Essex County Democrat has extra clout, plus the prestige he’s accumulated during his 15 months as governor. On Monday, the Senate Law and Public Safety and Veterans Affairs Committee will discuss Codey’s bill (S-1099) making using a hand-held cell phone while driving a primary offense. Under a law passed three years ago, it’s a secondary offense, meaning a driver must first be stopped for another infraction. 2-2-06

PENNSY PRO-DOCTOR GROUP CLAIMS FIRST MED-MAL VICTORY
An organization formed by a lawyer last July in Pennsylvania is gaining some renewed media attention over its vow to come to the aid of doctors unfairly named in medical malpractice actions. Doctor’s Advocate, founded by retired attorney Robert B. Surrick, examines lawsuits filed against participating doctors and threatens a countersuit if the group believes there’s no basis for the underlying suit. The organization came to the assistance of a Wilkes Barre obstetrician who protested being named among several defendants in a suit when her only involvement was examining a patient and then sending the woman directly to a hospital. Doctor’s Advocate referred the case to Adam S. Barrist of Frey Petrakis Deeb Blum & Briggs in Cherry Hill, and seven weeks later the doctor was dropped as a defendant. Doctor’s Advocate has pledged to help individual doctors and lobby for tort reform legislation. 2-2-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, FEBRUARY 2, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 2, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, FEBRUARY 3, 2006.


APPROVED FOR PUBLICATION
LAND USE
NEW YORK SMSA LIMITED PARTNERSHIP v. TOWNSHIP COUNCIL OF THE TOWNSHIP OF EDISON
Appellate Division, A-6490-03T5, approved for publication February 2, 2006. (15 pages). Facts-on-Call Order No. 92835

The amendments to the defendant Township’s zoning ordinance — which required certain applicants for development to give notice of the hearing on their applications that exceeded the N.J.S.A. 40:55D-12 notice requirements — were invalid because the authority to enhance the scope and method of notice specified in §40:55D-12 is not expressly delegated, fairly implied, or reasonably incident to the powers that the Legislature conferred through the Municipal Land Use Law.

DOMESTIC VIOLENCE
FINAMORE v. ARONSON
Appellate Division, A-3689-04T2, approved for publication February 2, 2006. (16 pages). Facts-on-Call Order No. 92836

The trial court improperly denied the father’s motion to attend his son’s activities at which the mother was present based on a final domestic violence restraining order that prohibited the father from having contact with the mother. A restraint under N.J.S.A. 2C:25-29b(7) that prohibits any form of contact or communication by a defendant who was found to have committed an act of domestic violence does not limit the defendant’s presence at all locations where the victim might be; such a restraint is available under N.J.S.A. 2C:25-29b(6), but the FRO must distinctly describe the specific locations from which the defendant is barred, and a finding that the FRO is necessary to protect the victim must be made.

HUSBAND AND WIFE
LARBIG v. LARBIG
Appellate Division, A-6030-03T3, approved for publication February 2, 2006. (17 pages). Facts-on-Call Order No. 92837

On the defendant ex-husband’s post-divorce-judgment motion to reduce his monthly payments to the plaintiff ex-wife based on changed circumstances, the trial court (1) did not abuse its discretion by leaving the ex-husband’s alimony and child support obligations intact because the motion was filed only 20 months after the entry of the judgment, which strongly suggested that the ex-husband had not demonstrated a permanent decrease in his income, and (2) correctly refused to modify the ex-husband’s additional obligation to pay the ex-wife $2,600 per month for five years because that obligation was in the nature of equitable distribution and thus could not be modified based on a claim of changed circumstances.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.A.
Appellate Division, A-6387-04T4, approved for publication February 2, 2006. (22 pages). Facts-on-Call Order No. 92838

The defendant mother’s parental rights were improperly terminated because the evidence of her parental unfitness and the child’s best interests was inadequate and because the scheduling of the termination hearing when the child was 6 months old was premature. Although the mother was incarcerated when the child was born, an evaluation of the potential success of the rehabilitative steps she had taken and evidence of the degree of harm that the child would suffer if she was separated from her foster parents were required to properly determine whether termination should occur.

LAND USE
TALCOTT FROMKIN FREEHOLD ASSOCIATES v. FREEHOLD TOWNSHIP
Law Division, Monmouth County, L-2091-05, approved for publication January 26, 2006. (26 pages). Facts-on-Call Order No. 92839

In an action arising from the plaintiff developer’s proposed 52-lot development, the Law Division (1) upheld a municipal ordinance that requires a 10-year maintenance obligation for dedicated detention or retention basins and (2) applied the doctrine of equitable fraud to bar the developer from avoiding its obligations under its agreements and municipal approvals.

NOT APPROVED FOR PUBLICATION
ATTORNEY’S FEES
WHITE v. SLUKA & MINASIAN, LLC
Appellate Division, A-3845-04T3, February 2, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19178

Order that fixed the fees of the petitioner attorney at $2,500 affirmed substantially for the reasons expressed by the trial court; on behalf of the individual respondent, the petitioner had filed an action that arose from an automobile accident; the individual respondent later asked the respondent law firm to represent her; the law firm settled the action for $100,000, and the contingent fee was paid to the law firm; following a hearing on the fee dispute, the trial court determined (1) that the petitioner’s work on the case was “minimal and perfunctory” compared with the law firm’s “exhaustive” efforts that led to the settlement, (2) that the petitioner’s work amounted to 10 hours “at the very most,” (3) that the petitioner was entitled to an hourly rate of $250 per hour, and (4) that the law firm was entitled to the rest of the fee.

VERBAL THRESHOLD
RIEBE v. ZIMOLAK
Appellate Division, A-2336-04T1, February 2, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19177

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the plaintiff claimed that she suffered an injury in an accident with the first defendant and that she suffered a second injury three months later in an accident with the second defendant; as to the first injury, the trial court relied on the Appellate Division opinion in Serrano v. Serrano and held that the plaintiff failed to show that her symptoms were medically related to a “permanent and serious injury” that was caused by the accident; as to the second injury, the trial court relied on the Appellate Division opinion in Serrano and held that there was no medical documentation relating the injury to the accident and that there was no comparative analysis under Polk v. Daconceicao; in light of the “substantial change in law” resulting from the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, all issues, including the Polk issue, had to be reconsidered.

INSURANCE
KLEIBER v. STATE FARM INSURANCE CO.
Appellate Division, A-1614-04T3, February 2, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19179

Summary judgment for the defendant insurers in a declaratory judgment action seeking $100,000 in uninsured motorist coverage affirmed; the plaintiff moved to New Jersey in January 1999, and she was involved in an automobile accident in September 1999 with an uninsured driver; the plaintiff’s automobile was insured by the insurers under a Florida policy that did not provide UM coverage, and the insurers also conducted automobile insurance business in New Jersey; pursuant to the N.J.S.A. 17:28-1.4 deemer statute, the plaintiff was entitled to the minimum UM coverage of $15,000 per person and $30,000 per accident under N.J.S.A. 17:28-1.1(a); however, there was no factual support for the plaintiff’s contention that she would have purchased $100,000 in UM coverage if the insurers had told her after she moved to New Jersey to obtain a New Jersey policy and if they had given her the option of purchasing additional UM coverage under N.J.S.A. 17:28-1.1(b).

ARBITRATION
BAKER v. SHENBERGER
Law Division, Hunterdon County, HNT-L-269-05, January 20, 2006, released January 24, 2006, not approved for publication. By Buchsbaum, J. (9 pages). Facts-on-Call Order No. 19176

Motion by the defendant insurance agency to proceed with arbitration under the American Arbitration Association’s commercial arbitration rules denied in an action by the plaintiff ex-employee to recover earned compensation for insurance accounts that he generated and serviced; the employment contract provided that disputes or claims arising from the contract would be submitted to binding arbitration by the Association; the Association determined that the dispute arose from an “employer promulgated plan” and that it therefore would be resolved under the National Rules for the Resolution of Employment Disputes, “absent a court order or the agreement of the parties”; there were no grounds to disturb the Association’s determination under N.J.S.A. 2A:24-1 and Barcon Associates v. Tri-County Asphalt Corp. or under N.J.S.A. 2A:23B-6; moreover, any contractual ambiguities concerning the Association’s power to determine which rules apply had to be construed against the defendant because it drafted the contract.

FROM THE ADMINISTRATIVE AGENCIES
COMMUNITY AFFAIRS
DEPARTMENT OF COMMUNITY AFFAIRS v. EDEN HOUSE
OAL Docket Nos. CAF 9724-01, CAF 9725-01, CAF 3498-04, CAF 9550-04, and CAF 12220-04, Agency Docket Nos. X00048, X00021, X00036, X04081, and X04129, Initial Decision: December 20, 2005, Final Agency Decision: January 17, 2006. By Klinger, ALJ. (79 pages).

The Acting Commissioner of the Department of Community Affairs adopted as his final decision the administrative law judge’s initial decision, which assessed a penalty of $33,250 against the respondent licensed residential health care facility and ordered that the facility’s license be revoked immediately under N.J.A.C. 8:43E-3.9(a)(1) and (2). Between February 2000 and July 2004, the Department of Health and Senior Services issued four notices of proposed assessment of penalties to the facility for violating the licensure regulations, and it later issued a notice of revocation of license. As to N.J.A.C. 8:43E-3.9(a)(1), the ALJ found that the facility (1) failed to comply with licensing requirements, (2) presented “an immediate and serious risk of harm” to its residents’ health, safety, and welfare, and (3) failed to correct the violations pursuant to an approved plan of correction or following the imposition of other enforcement remedies. As to N.J.A.C. 8:43E-3.9(a)(2), the ALJ found that the facility engaged in a “pattern and practice of violating license requirements” that presented “an immediate and serious risk of harm” to its residents’ health, safety, and welfare. Among the violations that the ALJ found were the failure to adequately monitor the residents’ health and medications, the preparation of meals in unsanitary conditions, and the deteriorating condition of the residents’ rooms and bathrooms.

CIVIL RIGHTS
HALL v. REEVES FOUNDATION
OAL Docket No. CRT 7965-04, Agency Docket No. EV18AB-46781, Initial Decision: November 4, 2005, Final Agency Decision: December 13, 2005, released for publication January 9, 2006. By LaFiandra, ALJ. (23 pages).

The Director of the Division on Civil Rights adopted the administrative law judge’s decision that dismissed the petitioner employee’s complaint alleging age discrimination in violation of the Law Against Discrimination. The employee stated her intention to retire at the end of the 1999 tax season, and her employment was later extended until September 2000 on her request. On September 13, 2000, the employee gave two weeks’ notice to her employer when her request for the annual cost-of-living increase was denied, and the employer gave her a letter on September 26 to confirm the resignation. The employee, who was 65 years old, did not return to work after that. The ALJ held that the employee failed to establish a prima facie case because, even though she was a member of a protected class who had performed according to her employer’s expectations and was replaced by a woman in her 30s, she had not proved that she was terminated. The ALJ further held that, even if the employee had established a prima facie case, she had not proved that the Foundation’s proffered reasons for its conduct were pretextual. The Director agreed that the employee was not terminated, rejected the employee’s contention that she was constructively discharged, and concluded that, even if the employee had made out a prima facie case, she had not established that the employer’s proffered reasons for its actions were pretextual.


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