NEW JERSEY LAWYER

DAILY BRIEFING      02/04/2005


News Briefs

$582,000 SETTLEMENT IN PLANE CRASH DEATH
A wrongful death lawsuit on behalf of a civilian aerospace engineer killed in a plane crash in August 2000 has settled for $582,000, the limit of the defendant’s policy. Angelos George was a passenger in a Piper Navajo flying from the Naval Air Engineering Station in Lakehurst to the Naval Air Station in Patuxent, Md., when the plane, leased by Patuxent Airways, was involved in a midair collision that killed seven passengers and the pilots on both planes. The settlement was reached prior to the start of trial before Ocean County Judge Frank A. Buczynski. Hoboken attorney Gerald H. Baker represented the plaintiff in George v. Patuxent Airways. Attorneys for the respective defendants were Christopher P. Kelly of Haddonfield for Patuxent and the estate of pilot Daniel Groff; John Salmon of Cherry Hill for the estate of pilot Joseph Mari; Brian P. Sullivan of Princeton for Hortman Aviation Services; and Alan J. Cohen of Northfield for the estate of pilot Craig Robinson. 2-3-05

AWARD UPHELD DESPITE ARBITRATOR’S ‘GLARING’ ERROR
Despite an arbitrator’s “glaring” mistake in premising his ruling on language that did not exist in a collective bargaining agreement, the award must stand because it “draws its essence” from the agreement, ruled a divided 3rd U.S. Circuit Court of Appeals. Where an arbitrator “inexplicably cites language in his decision that cannot be found in the relevant collective bargaining agreement,” the court has a duty to inquire further to determine if the decision has any valid basis, wrote Judge Franklin S. Van Antwerpen in Brentwood Medical Associates v. United Mine Workers of America. If, after eliminating the mistake, a proper basis for the award can still be found, the award must be upheld, he said. The narrow issue is whether the conclusion “is supported, in any way, by a rational interpretation of the collective bargaining agreement,” wrote Van Antwerpen, stating that in this case, it was. In dissent, Judge Thomas L. Ambro pointed out the agreement explicitly states an arbitrator “shall not add to, subtract from, or modify in any way” any of its provisions, and by doing so, had exceeded the scope of his authority. 2-3-05

TECHNOLOGY ENHANCES PUBLIC ACCESS TO COURTS
The public can now access criminal case data more quickly and easily due to technology updates installed on the public data terminals located in the state’s courthouses. Named “Promis/Gavel Public Access,” the new system enables users access, by case name, to information including the charge, filing date, status and disposition of each case, said Judge Philip S. Carchman, administrative director of the courts. Print-outs may be accessed directly from the system for a standard copy fee. Confidential information is not available, and a Promis/Gavel search does not constitute a criminal history records check, which still must be obtained through law enforcement, Carchman pointed out. 2-3-05

CPAS SAY DON’T TRY THESE AT HOME
As April 15 looms, many taxpayers are struggling to find ways to trim what they owe — but chances are they won’t come up with anything more imaginative than deductions tried in years past. The stories of the bizarre abound. For instance, there was the disc jockey who claimed his dog Red as a dependent for many years; the man who had made money as a sperm donor and wondered whether he could take a depletion allowance; the Spanish teacher who deducted the cost of his television and cable service, insisting he needed the Spanish channels to better prepare him to teach; and the homeowner who wanted to deduct the cost of dog food as a security expense, reasoning the dog protected the house. Strange as it sounds, the value of livestock can legitimately be depreciated, so long as the animals are used for breeding. But don’t duplicate the mistake of a man who deducted as a “consulting fee” the $10,000 he paid an arsonist to torch the furniture store he had been trying unsuccessfully to sell. An IRS audit landed them both in jail. 2-3-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, FEBRUARY 3, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 3, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, FEBRUARY 4, 2005.


APPROVED FOR PUBLICATION
JUDGMENTS
SONNTAG REPORTING SERVICE, LTD. v. CICCARELLI
Appellate Division, A-4865-03T5, approved for publication February 3, 2005. (11 pages). Facts-on-Call Order No. 92294

In an action to enforce a judgment entered in a foreign state and docketed in New Jersey, the Full Faith and Credit Clause requires that the provisions for relief from judgment in Rule 4:50-1(f) will apply only to judgments entered by a New Jersey court; moreover, N.J.S.A. 2A:49A-27 does not apply to merit or substantive defenses to the foreign state judgment.

TORTS
MALDONADO v. LEEDS
Appellate Division, A-3683-03T2, approved for publication February 3, 2005. (11 pages). Facts-on-Call Order No. 92295

Under the facts of this case, it was error for the trial court to dismiss the plaintiff mother’s individual claim for emotional distress damages that arose from witnessing a motor vehicle strike her 7-year-old son and drag him while she was banging on the vehicle to make it stop, and the case is remanded for a Lopez hearing.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
BURCHETT v. ARMWOOD
Appellate Division, A-4701-03T1, February 3, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17579

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff police officer was injured in an automobile accident on January 27, 2001, and he was involved in a second accident on April 24, 2002; summary judgment was appropriate (1) because, although the plaintiff’s orthopedic surgeon claimed that the second accident exacerbated the injury to the plaintiff’s right knee, the plaintiff failed to submit a comparative analysis of the injury as required by Polk and (2) because the plaintiff, who experienced occasional stiffness and discomfort and had limited his jogging, failed to demonstrate that his injury had a serious impact on his life where he was able to continue working and had not suffered the loss of a bodily system or function.

PREMISES LIABILITY
GROSS v. ROYAL CLIFFS DINER
Appellate Division, A-3621-03T1, February 3, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17581

Summary judgment for the defendant diner in a slip-and-fall action affirmed; as she left the diner on a drizzly morning, the 71-year-old plaintiff slipped and fell on wet leaves on the handicap ramp; the plaintiff testified in her deposition that she had not seen leaves on the ramp when she had entered the diner 30 to 45 minutes before her fall, and the diner did not claim to have inspected the ramp that morning; the trial court properly found that the central issue was whether the diner was negligent in failing to inspect the ramp and remove the leaves during the 30 to 45 minutes that the plaintiff was inside the diner; contrary to the plaintiff’s arguments on appeal, there were no material facts in dispute about whether the diner had breached its duty or whether the plaintiff had exercised reasonable care for her own safety.

SETTLEMENTS
DAOUDD v. HOMSANY
Appellate Division, A-3275-03T3, February 3, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17582

Denial of the plaintiff’s motion to rescind the settlement of a personal injury action reversed and remanded for reconsideration; the plaintiff sued the defendants for the injuries he suffered in a car accident, and the parties agreed to settle for $25,000; the night after the settlement was reported to the trial judge, the plaintiff’s attorney realized that he had failed to account for $20,000 in unpaid medical bills; the plaintiff’s attorney advised the defendants’ attorney of his error the next day, but the defendants moved nine months later to enforce the settlement, and the plaintiff moved to rescind; the trial court had concluded that settlement agreements may not be rescinded due to a unilateral mistake, but that is not the law under Hamel v. Allstate Ins. Co. and Villanueva v. Amica Mut. Ins. Co.

LAND USE
OMNIPOINT COMMUNICATIONS, INC. v. BOROUGH OF RIDGEFIELD PLANNING BOARD
Appellate Division, A-4157-03T5, February 3, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17580

Law Division order that reversed the defendant planning board’s denial of the plaintiff wireless telephone network operator’s application for a permit to install telecommunications equipment on the roof of an apartment building and that approved the site plan affirmed substantially for the reasons expressed by the Law Division; the plaintiff sought to install 12 panel antennas and three roof-mounted equipment cabinets with three antenna arrays on the roof of a 16-family building; contrary to the defendant’s arguments on appeal, (1) the Law Division properly interpreted and applied the relevant ordinance and (2) there was a substantial basis in the record for the Law Division’s finding that a remand to the planning board for further proceedings would be futile.


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