NEW JERSEY LAWYER

DAILY BRIEFING      03/24/2005


News Briefs

EX-HUDSON OFFICIAL HOPES TO AVOID PRISON IN THURSDAY SENTENCING
Former Hudson County Executive Robert Janiszewski, who admitted accepting $100,000 in bribes, has asked to be spared prison during his scheduled sentencing Thursday in U.S. District Court in Newark. The former county head, whose assistance in his investigation led to a windfall of other corruption prosecutions in the county, faces up to 41 months in prison under federal guidelines. In a sentencing memo to U.S. District Judge Joel A. Pisano, Janiszewski’s attorney, Bruce I. Goldstein of Newark, cited his client’s cooperation with investigators and requested he be sentenced to home confinement. 3-23-05

AOC ISSUES NEW MODEL FOR LEGAL INCAPACITY JUDGMENTS
In the wake of the controversy over the rights of brain-injured Florida resident Terri Schiavo, the Administrative Office of the Courts here has issued a new model for motions seeking a judgment of a person’s legal capacity and appointing a guardian. This is the first change in the model since 2000. It’s available at HYPERLINK "http://www.judiciary.state.nj.us" judiciary.state.nj.us. 3-23-05

A BUTCHER, A BAKER, A MEDIATOR
Mediation is the career track most lawyers would consider as an alternative career, according to a survey. When the legal services division of employment firm Robert Half International asked 200 corporate and private practice lawyers from Canada and the United States what related occupations they would consider if they left their current job, 54 percent said mediation or alternative dispute resolution, while 49 percent cited law professor or lecturer. The other categories and their percentages of responses: nonprofit or public interest legal services provider, 41 percent; expert witness, 20 percent; patent expert and researcher, 11 percent each; and last, politician, 9 percent. 3-23-05

ENVIRONMENTALIST QUESTIONS KIN-BUC SUPERFUND SETTLEMENT
An environmental watchdog group remains skeptical over the federal government’s settlement with owners and operators of the Kin-Buc Superfund site in Edison, requiring them to pay $2.6 million for the ongoing cleanup there. Robert Spiegel, executive director of the nonprofit Edison Wetlands, has complained the federal government plans to turn over the project to Clean Land Fund of Rhode Island, which he contends “has no track record whatsoever” in that work. Clean Land Fund’s president, William Penn, counters his company has more than 40 years’ experience. In addition to the cleanup money, the former owner-operators, which include Waste Management and Transtech Industries, also will pay a $100,000 fine for not meeting earlier cleanup deadlines, according to the Environmental Protection Agency and the U.S. Justice Department, which negotiated the settlement. 3-23-05

SALAMANDERS HAVE RIGHTS, TOO
Out to protect East Brunswick’s salamanders from being run over by cars when the creatures leave water for their mating ritual, the township police department agreed to close a portion of the road where the critters are known to cross. But don’t look for immediate results. David Moskowitz of the township’s environmental commission told the Home News Tribune it takes up to five years for newborn female salamanders to reach breeding age, so the road closing’s results won’t be felt for quite a while. 3-23-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, MARCH 23, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MARCH 23, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, MARCH 24, 2005.


APPROVED FOR PUBLICATION
COMMERCIAL TRANSACTIONS
ADVANCED ENTERPRISES RECYCLING, INC. v. BERCAW
Appellate Division, A-1852-02T2 and A-4746-02T2, approved for publication March 23, 2005. (14 pages). Facts-on-Call Order No. 92377

An action for conversion does not lie in the context of a mere debt. Where there is no obligation to return the identical money but only a relationship of debtor and creditor, an action for conversion of the funds representing the indebtedness will not lie against the debtor.

NOT APPROVED FOR PUBLICATION
ARBITRATION
PATTI v. GREENWOOD
Appellate Division, A-5164-03T2, March 23, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17762

Dismissal of the plaintiff’s complaint with prejudice in an automobile negligence action affirmed; after the defendants’ motion for summary judgment based on the N.J.S.A. 39:6A-8a verbal threshold was denied without prejudice, the case was referred to nonbinding arbitration, and the plaintiff was awarded $31,500; following the demand for a trial de novo, the parties agreed to a consent order that dismissed the complaint with prejudice, that submitted the case to binding arbitration, and that provided that the binding arbitration award was final and not subject to appeal; the binding arbitration resulted in a finding that the plaintiff’s injuries did not satisfy the verbal threshold; although the Alternative Procedure for Dispute Resolution Act did not apply, the rationale of Mt. Hope Development Associates v. Mt. Hope Waterpower Project governed this case; the consent order barred the plaintiff from appealing the arbitrators’ decision, and the plaintiff could not seek rescission because he had not raised that issue below.

TORTS
LaGRASSA v. DREXEL
Appellate Division, A-2753-03T1, March 23, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17764

Jury verdict of $48,800 for the plaintiff in a dog bite case affirmed; counsel for the plaintiff’s comment that, if the jury believed that the defendants had fabricated their defense, it should “send them a message” that it was insulted was “a fair, if somewhat overblown rejoinder to defense counsel’s summation,” in which he argued that the case was “a figment of somebody’s imagination”; counsel for the plaintiff’s comment that, if a member of the jury saw the plaintiff in public after the trial, he or she could go up to her and say that he or she was on her jury and did the best that he or she could do for her was “clearly improper,” but it was unlikely that the jury was improperly swayed by the argument in light of the trial court’s “immediate and forceful response”; to the extent that insurance coverage may have been implied by counsel, the trial court was in the best position to evaluate any possible impact, and it concluded that there was none.

HUSBAND AND WIFE
COMPARATO v. SCHAIT
Appellate Division, A-2729-03T1, March 23, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17765

Post-divorce-judgment order fixing the plaintiff ex-husband’s permanent alimony obligation to the defendant ex-wife at $225,000 per year and directing him to pay more than $40,000 in attorney’s fees to the defendant affirmed; there was no basis to disagree with the Family Part’s determination that the defendant had satisfied the requirement of changed circumstances warranting a modification of her alimony, and it properly identified the marital standard of living when assessing the changed circumstances; contrary to the plaintiff’s assertion, the defendant’s application for modification was not her attempt “to share in his post-divorce good fortune” because she did not ask for an increase above the marital standard of living but asked for an adequate alimony award; furthermore, the Family Part did not abuse its discretion by allowing the defendant to amend her request for alimony without a formal application; finally, there was no mistaken exercise of discretion in the Family Part’s award of attorney’s fees to the defendant.

PARENT AND CHILD
HARKINS v. HARKINS
Appellate Division, A-5442-03T5, March 23, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17763

Amended final judgment of divorce that denied the defendant ex-husband’s request to restrain the plaintiff ex-wife from entertaining an adult male overnight when the parties’ child was at home and denial of the defendant’s request for a hearing on that issue affirmed; the defendant alleged that the plaintiff had committed adultery in her home three times, but he did not supply an affidavit or certification to support that allegation; the trial court did not abuse its discretion by refusing to conduct a plenary hearing because there was no competent evidence that the plaintiff had committed adultery, that the child was present when the plaintiff allegedly entertained a man in her home, or that the plaintiff was an unfit parent who had acted against the child’s best interests; moreover, DeVita v. DeVita did not require either the defendant’s proposed restraint or a plenary hearing.

WITNESSES
WIRE CLOTH MANUFACTURERS, INC. v. RODIMER
Appellate Division, A-6639-03T5, March 23, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17766

Final judgment for the defendant ex-employee in an action for breach of the duty of loyalty, tortious interference with prospective economic advantage, and misappropriation of confidential information affirmed; the plaintiff ex-employer had employed the defendant as a national sales manager, and the defendant resigned effective March 29, 2002; according to the plaintiff, the defendant had formed two corporations in September 2001 that were in direct competition with the plaintiff; the trial court properly barred the plaintiff’s chief financial officer from testifying as to damages because her testimony was not proper lay witness testimony under N.J.R.E. 701; the witness’s assumptions as to the reasons for diminished sales to certain accounts were based on statements allegedly made by customers to the plaintiff’s employees, and the witness’s opinion as to the reasons for the alleged lost sales were not based on her own personal knowledge or perceptions; also, the witness’s spreadsheet measured the amount of lost sales, but the proper measure of damages was lost profits, not lost sales.

FROM THE FEDERAL COURTS
ERISA
LEVINE v. UNITED HEALTHCARE CORP.
Third Circuit, Nos. 04-1224 and 04-1225, March 16, 2005. By Nygaard, C.J. Dissent by Garth, C.J. Also on panel: Pollak, U.S.D.J. for the Eastern District of Pennsylvania, sitting by designation. Appealed from the U.S. District Court for the District of New Jersey. (40 pages). Facts-on-Call Order No. 92369

In an action by the plaintiff insureds to recover money paid to reimburse the defendant insurers for health insurance benefits that the defendants had provided, the Third Circuit reversed and remanded the denial of the defendant insurers’ motion to dismiss because ERISA preempts the New Jersey statute on which the plaintiffs’ claims were based. The plaintiffs were insured under an ERISA plan, were injured by third parties in different accidents, and received health insurance benefits from the defendants. After the plaintiffs settled with the third-party tortfeasors, the defendants obtained reimbursement from the plaintiffs for the benefits that they had paid under the subrogation and reimbursement provisions in the plaintiffs’ insurance policies. The New Jersey Supreme Court later invalidated the New Jersey Department of Insurance regulation that permitted those provisions because it conflicted with N.J.S.A. §2A:15-97, and the plaintiffs sued in the New Jersey courts to recover the amounts that they had paid to reimburse the defendants. The defendants then removed the case to federal court. As matters of first impression, the Third Circuit held (1) that federal subject-matter jurisdiction was proper under ERISA §502(a) because the plaintiffs’ claim was for “benefits due” and (2) that ERISA preempts §2A:15-97 because §2A:15-97 is not “specifically directed” at the insurance industry. Judge Garth dissented.


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