NEW JERSEY LAWYER

DAILY BRIEFING      03/30/2005


News Briefs

MUNICIPAL PUBLIC DEFENDER FACES PRISON TIME
The former municipal public defender in East Brunswick faces up to four years in prison and likely disbarment when sentenced June 24 for hitting up indigent defendants for fees to represent them. In a plea bargain shortly before his trial was to begin in Middlesex County Superior Court, Hanit B. Dorwani pleaded guilty to three counts of official misconduct in connection with alleged court-related incidents that occurred between October 2001 and September 2003 when he was arrested in municipal court after a former client complained. Dorwani is said to have requested fees ranging from $300 to $1,200 more than what judges usually set for defendants using municipal public defenders. 3-29-05

STATE POLICE WEBSITE TO PROTECT JUDGES, OTHERS
Is the internet faster than calling 9-1-1? The New Jersey State Police seem to think so. Its unit that investigates threats against judges and lawmakers is building an electronic system that will enable officials who receive threats to report them to the central security unit which, in turn, will be able to more quickly e-mail notices to other responding agencies. The dedicated intranet website system is part of the state’s response to the murders of U.S. District Judge Joan Humphrey Lefkow’s husband and mother in Illinois and the killing of a judge and three others in an Atlanta courthouse. 3-29-05

SUPREME COURT LETS ABORTION LAW REVERSAL STAND
The U.S. Supreme Court again seemingly has shown its dislike for requiring minors to get parental permission for abortions. Without comment Monday, it rejected an appeal to reinstate an Idaho law requiring girls under age 18 obtain parental consent for abortions except in dire emergencies. A similar law was struck down several years ago in U.S. District Court In New Jersey as unconstitutional. 3-29-05

PEPPER HAMILTON SUED OVER CLIENT’S FINANCIAL DEALINGS
In a further sign of efforts to hold lawyers as accountable as accountants for their clients’ financial dealings, New York-based Pepper Hamilton was hit this week with a malpractice suit in U.S. District Court in Delaware by the insurer of Student Finance Corp., which filed for bankruptcy protection amid allegations of financial fraud. Insurer Royal Indemnity Corp. alleges Pepper Hamilton was in cahoots with SFC’s alleged practice of disguising non-performing loans. A spokesman for the law firm has denied the suit’s allegations. 3-29-05

JURY AWARDS $17.1 MILLION TO SMOKER
Whether the award will withstand attack remains to be seen, but Philip Morris is on the line to pay $17.1 million in punitive damages to a lung cancer victim who claimed the tobacco manufacturer failed to warn her of the dangers of smoking its cigarettes. The jury award in New York follows an earlier award of $3.42 million in compensatory damages to the woman, Norma Rose, 72, against Philip Morris and American Tobacco Co., according to her attorney, Stuart L. Finz of Finz & Finz in New York. She contends she began smoking in the 1960s before the federal government required warning labels on cigarette packages. 3-29-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MARCH 29, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MARCH 29, 2005:

INSURANCE
ROBINSON v. COIA
New Jersey Supreme Court, A-28, March 29, 2005 (9 pages). Facts-on-Call Order No. 92380

The New Jersey Supreme Court reversed substantially for the reasons expressed by the dissent in the Appellate Division’s opinion reported at 369 N.J. Super. 336 (2004). The other insurance clause in the car rental company’s rental agreement rendered the company’s coverage excess to the renter’s personal automobile liability insurance. Nonetheless, since both the rental agreement and the personal automobile policy have other insurance clauses, the two carriers are co-primary and should share liability equally.

THE SUPREME COURT has announced that it will release an opinion in STATE v. GENTRY, A-27, on March 30, 2005. The issue on appeal in Gentry addresses whether, where the State’s theory is that the defendant committed robbery by his use of force during his contact with two different individuals at different times and places in the course of the theft, a specific unanimity instruction was required after the jury informed the trial court that jurors differed as to which contact provided the basis for finding the requisite force.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, MARCH 29, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, MARCH 29, 2005.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
G.N. v. LIVINGSTON BOARD OF EDUCATION
OAL Docket No. EDS 3547-04, Agency Docket No. 2004-8615, Initial Decision: January 27, 2005, released for publication March 7, 2005. By Robinson, ALJ. (36 pages).

On the petitioner parents’ due process petition, the administrative law judge (1) determined that the 12-year-old student’s IEP was appropriate and (2) dismissed the parents’ claim for reimbursement for their unilateral out-of-district placement of the student. As to the IEP, the ALJ found that it addressed the student’s educational needs, provided the services to meet those needs, and established a reasonable annual goal and objective short-term benchmarks by which the student’s progress could be measured, evaluated, and reported to the parents. As to reimbursement, the ALJ concluded that the parents had acted unilaterally in their out-of-district placement without consent or approval from the CST and that the out-of-district placement did not provide the least restrictive educational environment for the student because it limited her ability to intermingle with peers and non-peers and because the coursework and extra activities did not challenge or stimulate the student because of the “slow pace.”

SPECIAL EDUCATION
L.P. v. MONMOUTH REGIONAL HIGH SCHOOL BOARD OF EDUCATION
OAL Docket No. EDS 497-05, Agency Docket No. 2005 9707, Initial Decision: February 10, 2005, released for publication March 7, 2005. By Masin, ALJ. (4 pages).

On the petitioner mother’s due process petition following the respondent Board of Education’s termination of the 18-year-old student’s placement at the Children’s Psychiatric Center-High Point School, the administrative law judge ordered that the student remain in his placement at the High Point School pursuant to the IEP that was in effect and that the placement would continue until an order is issued, following a due process proceeding, that directs a change in placement or until the parties agree to a change in placement. Although the student was an adult and did not actually appear at the hearing, there were “sufficient indicia” to demonstrate the student’s consent to his mother’s proceeding on his behalf at the hearing. Furthermore, it was “clear” that the student’s placement could not be changed without the Board seeking an order that justified a change. The Board was concerned that the student might not be attending High Point School. If, after the student is placed back in High Point School, the Board becomes aware that he is refusing to attend school there, the Board may consider what its legal remedies are to avoid any obligation to pay for the placement or to continue to be responsible for the student’s education in light of his status as an adult and his legal right to determine for himself that he does not want to go to school.

FROM THE FEDERAL COURTS
BANKRUPTCY
IN RE ALSTON
U.S. Bankruptcy Court (DNJ), 00-61822 RTL and Adv. Proc. No. 03-2873 RTL, March 24, 2005, released for publication March 29, 2005. By Lyons, U.S.B.J. (12 pages). Facts-on-Call Order No. 92381

The Bankruptcy Court held that the plaintiff insurance adjuster was entitled to payment from the proceeds of the defendant debtors’ fire insurance policy. The defendant secured creditors held a purchase money mortgage on the debtors’ commercial property that required the debtors to insure the property and to name the secured creditors on the policy, but the debtors’ policy did not do so. After a fire severely damaged their building, the debtors hired the plaintiff to help settle their insurance claim in exchange for 5 percent of the insurance proceeds. Before the claim was settled, the debtors filed a bankruptcy petition under Chapter 13, and the secured creditors were listed on the petition but the plaintiff was not listed as a creditor. The debtors settled their insurance claim for $160,000 and received $106,000 after their attorney’s contingency fee was deducted. Although there are no New Jersey decisions construing a public adjuster’s equitable lien, the Bankruptcy Court determined (1) that the plaintiff had an equitable lien on the insurance proceeds because the debtors agreed to pay him from the proceeds and because his efforts created the fund of proceeds and (2) that the plaintiff’s lien had priority over the secured creditors’ claim to the proceeds because the secured creditors’ rights to the proceeds were derivative of the debtors’ rights to the proceeds.

EMPLOYMENT DISCRIMINATION
GUNSON v. JAMES
U.S. District Court (DNJ), 04-3341 (FLW), January 12, 2005, released for publication March 22, 2005. By Wolfson, U.S.D.J. (21 pages). Facts-on-Call Order No. 92382

In an action alleging that the pro se plaintiff retired federal annuitant was wrongly denied long-term care insurance coverage in violation of the Americans with Disabilities Act and the Rehabilitation Act, the District Court granted summary judgment for the defendant insurers and the defendant Director of the U.S. Office of Personnel Management and denied the plaintiff’s motions for summary judgment and to appoint counsel. The plaintiff suffered a hand injury in 1988 while in the U.S. Navy, and he was approved for a disability retirement in 1995. The plaintiff claimed to suffer from “degenerative joint disease,” “chronic pain,” and “degenerative arthritis.” The plaintiff applied for long-term care insurance in 2002 when he was 62 years old, and the insurers denied coverage based on the plaintiff’s medical history. The District Court concluded that the plaintiff’s ADA and Rehabilitation Act claims failed (1) because he was not discriminated against when his application was denied where he was treated the same as other similarly situated applicants and where long-term care insurance is not guaranteed and (2) because the ADA’s safe harbor for the insurance industry applied. Moreover, the District Court determined that the plaintiff’s claims of age discrimination failed.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.