NEW JERSEY LAWYER

DAILY BRIEFING      02/09/2006


News Briefs

THIRD CIRCUIT SENIOR JUDGE MAX ROSENN DIES
Third Circuit Judge Max Rosenn, who continued to work as a federal appeals judge for the past 25 years on senior status, died Feb. 7 at age 96. He was appointed to the bench by President Nixon in 1970. Fellow senior Judge Edward R. Becker has described Rosenn as “a man of almost divine grace” and “one of the great judges in the history of the Court of Appeals.” Colleagues lauded him as a man of compassion, consideration, kindness and respect. In an article in the federal court system’s newsletter, Third Branch, published in 2000, Rosenn discussed his workload and his decision to continue his public service at a time when most people retire. Rosenn had said he had much more work than when he joined the court in 1970. “The courts run much more efficiently,” he said. “There’s better planning and accelerated production. With technology such as computers, we get out a whole lot more cases.” Then 90, Rosenn said he really enjoyed working, adding, “I get a great deal of satisfaction in doing something useful.” 2-8-06

SENATOR WANTS TO MAKE IT HARDER TO ACCESS TO PROPERTY RECORDS
A state senator is seeking to make it harder for the public to see tax assessors’ record cards. Under S-879, sponsored by Sen. Ronald L. Rice (D-Essex), only a property owner, a person approved by the owner, real estate appraisers and real estate agents would be able to see a record without filing a request under the Open Public Records Act (OPRA). All others would, for the first time, make formal OPRA requests. Rice contends assessors in cities like Newark, Irvington, East Orange and Jersey City are overwhelmed by demands to see property records, which include a description of the property, the lot and block number, size, tax assessment history, owner identities and improvements made. While the measure was released this week by the Senate Community and Urban Affairs Committee, Sen. Leonard T. Connors Jr. (R-Ocean) cast the only dissenting vote, saying the information should remain public and easily available. 2-8-06

COUNTY SURROGATE FOR 40 YEARS PONDERS ANOTHER ELECTION
As lawyers who do estate work know, a county surrogate — also called a judge of the surrogate’s court — is one of three elected officials provided for in the state constitution. Like county clerks and sheriffs, they’re a vestige from an earlier time. While some folks have questioned why they’re still elected to five-year terms in their quasi-judicial role resolving estate and adoption issues, there’s been no move to abolish the post in favor of professional managers. Elton Conda is one such surrogate; he’s headed the same office in Burlington County since 1966. At 85, Conda says he’s considering seeking re-election this year to an unprecedented ninth term. The filing deadline is April 10. 2-8-06

DNA TESTING OF ACCUSED PERSON PROPOSED
A state senator is sponsoring a measure that would provide for DNA sampling of anyone arrested and charged with disorderly persons offenses and many other crimes. S-378, introduced by Sen. Nicholas J. Sacco (D-Bergen), would authorize the state to collect DNA from people charged with murder, manslaughter, aggravated assault, kidnapping and some sex charges. According to State Police records, 14,000 such arrests were made statewide in 2004. Under the proposed measure, a person’s DNA profile would be destroyed by the State Police if the defendant was acquitted at trial or the charges dismissed. Anyone refusing to submit to testing would be subject to up to 18 months in jail, a fine up to $10,000, or both. 2-8-06

COMPANY SEEKS TO BLOCK NEW FEDERAL ‘ANNOYANCE LAW’
A new federal law signed by President Bush makes it a crime to send anonymous e-mail with “an intent to annoy,” but the so-called annoyance statute fails to define “annoy.” Now, an Arizona company that operates a go-between service for people who want to hire the firm to hide their identities and pass along anonymous e-mail is suing Attorney General Alberto Gonzales to block enforcement of the law as unconstitutional. The firm, The Suggestion Box, operates TheAnonymousEmail.com, and contends the law runs afoul of the First and Fifth amendments and is unconstitutionality vague. The law, formally called the Violence Against Women and Department of Justice Reauthorization Act of 2005, included a technical amendment that for the first time adds e-mail to the type of communications prohibited under existing law. 2-8-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, FEBRUARY 8, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 8, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, FEBRUARY 9, 2006.


APPROVED FOR PUBLICATION
CONSUMER PROTECTION
PERKINS v. DAIMLERCHRYSLER CORP.
Appellate Division, A-2779-04T5, approved for publication February 8, 2006. (19 pages). Facts-on-Call Order No. 92845

In this purported class action suit alleging that the plaintiff was defrauded in violation of the Consumer Fraud Act because the defendant manufacturer did not reveal that the vehicle she purchased was built with a tubular steel exhaust manifold that allegedly was susceptible to cracking and premature failure and was unlikely to last for 250,000 miles, dismissal was proper because the complaint acknowledged that the manifold in the plaintiff’s vehicle did not fail and did not require repair or replacement within the warranty period.

MEDICAL MALPRACTICE
SAKS v. NG
Appellate Division, A-1471-04T1, approved for publication February 8, 2006. (29 pages). Facts-on-Call Order No. 92846

In this action alleging medical negligence and lack of informed consent, the Appellate Division affirmed the judgment of no cause of action and concluded (1) that the plaintiff patient was not entitled to a res ipsa loquitur instruction, (2) that the trial court properly denied his motion for a directed verdict on certain elements of his claim for lack of informed consent, (3) that the defendant doctor was entitled to an “exercise of medical judgment” instruction, which was properly tailored to the facts, (4) that the trial court’s instructions on the use of statements in medical texts and on the burden of proof were legally correct and were not likely to confuse or mislead the jury, and (5) that the question on the verdict sheet about the defendant’s alleged negligence was not confusing or misleading.

WORKERS’ COMPENSATION
RIVELLI v. MH&W CORP.
Appellate Division, A-1010-04T3, approved for publication February 8, 2006. (10 pages). Facts-on-Call Order No. 92847

Under the terms of the settlement in this workers’ compensation case, the respondent employer was responsible for the treatment of the petitioner worker’s cardiac condition because it resulted from physical therapy that was related to the worker’s compensable accident. However, remand was required to determine whether the employer had to pay for the drug Lipitor to reduce the worker’s cholesterol because the judge of compensation did not find that the worker’s high cholesterol was related to or caused by his compensable condition.

NOT APPROVED FOR PUBLICATION
INSURANCE
LIBERTY MUTUAL INSURANCE CO. v. GOODFELLAS, LLC
Appellate Division, A-561-04T1, February 8, 2006, not approved for publication. (8 pages). Facts-on-Call Order No. 19207

Summary judgment for the defendant taverns and their insurers and denial of the plaintiff insurer’s motion for reconsideration affirmed in a subrogation action arising from an automobile accident involving the plaintiff’s insureds and an underinsured motorist who had been drinking at the taverns; the plaintiff paid personal injury protection and UIM benefits to its insureds, who did not file personal injury actions against the motorist or the taverns; the trial court properly determined that the releases that the plaintiff obtained from its insureds did not contractually endow the plaintiff with the insureds’ rights against the taverns to recover damages, from which the plaintiff could recoup its UIM payments; on reconsideration, the plaintiff argued that its subrogation rights arose from the insured’s policies rather than the releases, but the plaintiff’s subrogation rights under the policies were not triggered because the insureds did not recover “damages from another.”

INSURANCE
ESTATE OF IRWIN v. PALISADES SAFETY & INSURANCE ASSOCIATION
Appellate Division, A-6715-03T5, February 8, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19206

Order that denied the defendant insurer’s motion for summary judgment and that granted the plaintiff estate’s motion to compel uninsured motorist arbitration pursuant to the decedent’s policy with the insurer affirmed in an action to compel UM arbitration arising from the decedent’s fatal automobile accident; the estate sued the other driver for the decedent’s pain and suffering based on a survival theory under N.J.S.A. 2A:15-3 and for wrongful death damages on behalf of the decedent’s granddaughter under N.J.S.A. 2A:31-1; after learning that the other driver’s automobile was uninsured, the estate sought UM benefits under the policy, but the insurer denied that request; the insurer argued in its summary judgment motion and on appeal that the estate had no viable claims based on the decedent’s pain and suffering or wrongful death; however, the Appellate Division declined to address the merits of the insurer’s arguments because the issue before it was which forum should decide the merits of the claims, and it held that arbitration was the proper forum pursuant to the policy.

DRUNK DRIVING
STATE v. HOEY
Appellate Division, A-4726-04T5, February 8, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19208

Conviction following a trial de novo of driving while intoxicated affirmed; at about 2:18 a.m., a police officer who was performing a property check at a rest area on Route 295 saw an empty vehicle parked in a handicapped parking space and encountered the defendant exiting a portable toilet; the defendant staggered and almost fell on the officer, who observed that the defendant had bloodshot and watery eyes and smelled of alcohol; in response to the officer’s questions, the defendant admitted that he had been drinking and identified the vehicle as his; contrary to the defendant’s arguments on appeal, the officer’s questions about operation of a vehicle during his initial investigation did not trigger his obligation to issue Miranda warnings to the defendant, and the evidence was sufficient to support the conviction.

NEGLIGENCE
PRASA v. TREZOGLOU
Appellate Division, A-2240-04T1, February 7, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19204

Judgment for the plaintiff based on a jury verdict and denial of the plaintiff’s motion for a new trial affirmed in a personal injury action arising from two automobile accidents; the jury awarded $60,000 for injuries to the plaintiff’s low back, awarded $20,000 for injuries to his left knee, but awarded nothing for the alleged injury to his neck; as to the alleged evidentiary errors, (1) the trial court’s error in barring the plaintiff’s family doctor from testifying as a fact witness about the plaintiff’s physical abilities that the doctor observed in a social setting was harmless and (2) the trial court properly struck the opinion of the plaintiff’s forensic accountant on economic losses because it was a net opinion; as to the alleged neck injury, the trial court properly instructed the jury on the issues of intervening and superseding cause, and there was “more than sufficient evidence” to support the jury’s refusal to compensate the plaintiff; as to the back and knee injuries, the quantum of damages awarded was not shocking in light of the evidence of pre-existing injuries to the plaintiff’s back and knee.

DOMESTIC VIOLENCE
JOHNSON v. DUNLAP
Appellate Division, A-3204-04T5, February 7, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19205

Final domestic violence restraining order against the defendant ex-boyfriend based on a finding of harassment affirmed; the parties had dated for several years and had lived together with the defendant’s son from a previous relationship; between December 18, 2004 and January 4, 2005, the defendant sent or made almost 200 telephone calls, e-mail messages, and text messages to the plaintiff ex-girlfriend, her new boyfriend, and her new boyfriend’s mother after the plaintiff asked him to stop; the finding of harassment was supported by the evidence, including the number and tenor of the communications and the “threatening nature” of the later communications; although the trial court did not expressly find a purpose to harass, that finding was implicit and was “clearly able to be inferred” from the trial court’s comments.


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