NEW JERSEY LAWYER

DAILY BRIEFING      03/11/2005


News Briefs

ATTORNEY GENERAL DEFENDS ROLE IN FIGHTING CORRUPTION
When it comes to chasing crooked politicians, U.S. Attorney Christopher J. Christie is often portrayed as a pit bull, while state Attorney General Peter C. Harvey is treated by some as an afterthought. Harvey, who says the supposed competition between the state’s two top law enforcement officers is a media concoction, claims the accomplishments of his office have been acknowledged by those who count most. He says the legal community sees “a level of productivity in this office that they haven’t seen in years and they have said it to me.” For a full story, see the March 14 New Jersey Lawyer. 3-10-05

FOR PROBATION OFFICERS, IT’S TRY, TRY AGAIN
The union representing probation officers is asking the New Jersey Supreme Court to review an Appellate Division ruling declaring unconstitutional a statute that would allow them to carry guns. The appeals court said the law violates the power of the judiciary to control its own employees and interferes with the constitutional dictates of the separation of powers doctrine. The union, the Probation Association of New Jersey, has filed papers in In re Matter of P.L. 2001, Chapter 362, saying it has an appeal as of right to the justices under court rules because a significant constitutional issue is involved. If the case is heard, the justices are not expected to be sympathetic to the argument that the legislature can pass such a law. In the past, the union has maintained the judiciary has too much of a vested interest to give the case a fair hearing. 3-10-05

NEW FORENSIC SOFTWARE PROVIDES THIRD DIMENSION
It’s still in the prototype stage, but software designed to stitch together a few seconds of video from a hand-held stereo camera into a detailed 3-D model of a room, complete with the people and objects in it, is getting rave reviews from criminal investigators. “It gives you a third dimension,” said Detective Inspector Jeff Wilkinson of the Ontario Provincial Police, who is previewing the software for its maker, MacDonald, Dettwiler & Associates of British Columbia, better known for designing robotic arms for space shuttles and the International Space Station. Forensic experts must reconstruct crime scenes, but creating hand-drawn sketches and taking photos can take days and disturb the crime scene. Not only does the software overcome those problems, it also allows police or courtroom staff, using Windows on a laptop, to zoom around the model to view it from different perspectives. And an investigator “can actually begin to develop investigative theories about how something transpired without entering the scene,” said Wilkinson. 3-10-05

STATISTICS DON’T JUSTIFY TEXAS TORT REFORM, SAYS STUDY
A study of Texas Department of Insurance Records, conducted by professors at the University of Texas, University of Illinois and Columbia University law schools, indicates tort reform enacted by that state may not have been needed. In 2003, in response to an alleged litigation crisis, Texas enacted a $250,000 cap on certain damages in medical malpractice lawsuits. But the records, dating to 1988, showed allegations that medical costs were soaring because of too many malpractice lawsuits were untrue. “We find no evidence of the medical malpractice crisis that produced headlines over the last several years and led to legal reform in Texas and other states,” said the study, which found insurance payouts, jury awards in malpractice lawsuits and costs of legal defense changed little between 1988 and 2002. The only thing that jumped, they said, was the cost of malpractice insurance, which rose 135 percent between 1999 and 2003, likely because of financial pressures that had nothing to do with litigation. President Bush, who backed tort reform when he was governor in Texas, is pushing for a federal law imposing the same cap nationally. 3-10-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MARCH 10, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MARCH 10, 2005:

INSURANCE
PRICE v. NEW JERSEY MANUFACTURERS INSURANCE CO.
New Jersey Supreme Court, A-26, March 10, 2005. (16 pages). Facts-on-Call Order No. 92344

The trial court properly rejected the defendant insurer’s statute-of-limitations defense because the record amply supported its finding that the insurer’s conduct lulled the plaintiff insured and his attorney into believing that his uninsured motorist claim had been appropriately filed.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MARCH 11, 2005.



APPROVED FOR PUBLICATION
INSURANCE
BADUINI v. SERINA
Appellate Division, A-3842-03T3, approved for publication March 10, 2005. (10 pages). Facts-on-Call Order No. 92345

The deemer statute, N.J.S.A. 17:28-1.4, required the plaintiff to satisfy the verbal threshold before bringing an action for noneconomic damages because he was injured in New Jersey while driving a vehicle that was insured in Pennsylvania, where he had a vacation home, notwithstanding the fact that his principal residence was in New Jersey and that he insured another vehicle in New Jersey with a no limitation on lawsuit option.

INSURANCE
CABALLERO v. MARTINEZ
Appellate Division, A-6276-03T3, approved for publication March 10, 2005. (17 pages). Facts-on-Call Order No. 92346

The Appellate Division affirmed for the reasons set forth in the Law Division’s opinion reported at — N.J. Super. — (2005). The Law Division dismissed the plaintiff’s complaint against the Unsatisfied Claim and Judgment Fund for noneconomic damages because, at the time of the accident, he was not a “qualified person” under N.J.S.A. 39:6-62 due to the fact that he was not a resident of New Jersey. Judge Lisa dissented.

INSURANCE
CABALLERO v. MARTINEZ
Law Division, Monmouth County, MON-L-5218-02, approved for publication March 10, 2005. (10 pages). Facts-on-Call Order No. 92347

An illegal alien who had been in New Jersey for five years before the accident in this case was not a “qualified person” who was entitled to seek benefits from the Unsatisfied Claim and Judgment Fund under N.J.S.A. 39:6-65 because the plaintiff’s presence in New Jersey in violation of the immigration laws, with its attendant threat of deportation, was incompatible with any meaningful intention to become a New Jersey resident.

CIVIL PROCEDURE
HUSZAR v. GREATE BAY HOTEL & CASINO, INC.
Appellate Division, A-4017-03T3, approved for publication March 10, 2005. (18 pages). Facts-on-Call Order No. 92348

In an action for injuries sustained by the plaintiff when an elevator door closed on her, (1) under Rule 4:24-1(c), no extension of discovery may be granted after a trial or arbitration date has been scheduled absent exceptional circumstances, which are those circumstances clearly beyond the control of the litigant and her attorney, and (2) the closing and timing mechanisms of elevator doors are complex instrumentalities that required the plaintiff to present expert testimony to establish a defective mechanism or negligence in the maintenance of the mechanism.

NOT APPROVED FOR PUBLICATION
HUSBAND AND WIFE
WEIR v. WEIR
Appellate Division, A-1151-03T3, March 10, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 17716

Final judgment of divorce that required the plaintiff ex-husband to pay $400 per week in permanent alimony and $169 per week in child support, that equally divided the marital property, and that denied the defendant ex-wife’s request for attorney’s fees affirmed; the plaintiff ex-husband’s business, which had earned $3.3 million in sales in 1997, accumulated more than $300,000 in debt by 2001; to pay the debt, the plaintiff assigned the business’s $645,000 in accounts receivable to its creditor and took a sales job with the creditor at an annual salary of $62,000; the defendant’s arguments challenging the award were “entirely without merit” (1) where the alimony award was based on a reasoned application of the N.J.S.A. 2A:34-23(b)(1) factors, (2) where the trial court’s factual findings were supported by the record, and (3) where the trial court did not abuse its discretion by refusing to impute additional income to the plaintiff, by distributing the marital property equally, or by requiring the parties to pay their own fees for attorneys and experts.

LANDLORD AND TENANT
STEFAN v. PRICEWATERHOUSECOOPERS, LLP
Appellate Division, A-1622-03T5, March 10, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 17717

Award of $1,158,398 to the plaintiff landlords in an action arising from the breach of a commercial lease and reduction of that award to $1,129,519.25 on reconsideration affirmed in part, reversed in part, and remanded for the entry of a modified judgment; the defendant tenant agreed in July 1998 to lease the plaintiffs’ building for 10 years, but it claimed in February 2000 that the lease was terminated based on a constructive eviction due to structural defects; the building remained vacant until it was sold in April 2003; contrary to the defendant’s arguments on appeal, the trial court did not err by finding that the defendant had wrongfully terminated the lease or by barring its mitigation evidence that the plaintiffs could have sold the building sooner; however, the trial court erred by declining to award the plaintiffs the costs that they incurred in selling the building and by crediting the defendants with repair costs, two months’ rent, and taxes; the trial court did not abuse its discretion by reducing the plaintiffs’ award for attorney’s fees and costs.

ARBITRATION
MARRIS v. CARUGNO BROTHERS WHOLESALE OUTLET
Appellate Division, A-2187-03T2, March 10, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17715

Judgment confirming an arbitration award for the plaintiff in a Consumer Fraud Act action arising from the defendant used car dealers’ unlawful repossession of a car that they had sold to the plaintiff affirmed; the matter was referred to mandatory arbitration under Rule 4:21A-1(a), and an award of $2,556.20 in damages — which was to be trebled under the Act — plus $6,396.41 in attorney’s fees was entered for the plaintiff; to support the plaintiff’s confirmation motion, her attorney certified that he had not been served with a notice of a demand for a trial de novo; the defendants established that their request for a trial de novo was timely filed with the Burlington County Civil Case Management Office, but there was no competent evidence that the request was served on the plaintiff’s attorney or that there was any attempt to serve it; the defendants did not demonstrate good cause for their failure to serve the request on the plaintiff’s attorney.


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