NEW JERSEY LAWYER

DAILY BRIEFING      04/11/2005


News Briefs

POISON PILL FOR BANKRUPTCY ATTORNEYS
It looks like Congress has it in for attorneys representing debtors when landmark bankruptcy legislation is expected to gain final congressional approval this week. Among other things, the law would make lawyers financially responsible for their clients’ misrepresentations in bankruptcy proceedings. One of the New Jersey lawyers expressing concern is Richard B. Honig of Hellring Lindeman Goldstein & Siegal in Newark, who calls the legislation “ludicrous.” For a full story, see the April 11 New Jersey Lawyer. 4-8-05

STUDY LINKS MED-MAL TO LACK OF COMMUNICATION IN HOSPITALS
More than half the 1,700 doctors, nurses and hospital staff surveyed at 13 hospitals nationwide witnessed mistakes by colleagues, including acts of serious incompetence that could constitute malpractice, but never raised the issue with those co-workers. The survey, sponsored by the American Association of Critical Care Nurses, concludes that lack of communication contributes to avoidable medical care mistakes. The study, “Silence Kills: The Seven Crucial Conversations for Healthcare,” is available at rxforbettercare.org/SilenceKills.org. 4-8-05

NJ VENUE UNLIKELY FOR ATLA CAMPAIGN AGAINST INSURERS, HMOS
The American Trial Lawyers of America in Washington has launched an advertising campaign blasting big insurance companies and health maintenance organizations as the culprits behind the difficulty in finding quality medical care. Don’t look for those ads to run in New Jersey, though. Carlton Carl, an ATLA spokesman, said the ads will run in still undetermined markets where they can have the most influence on U.S. senators, who typically support legislation unfavorable to trial lawyers representing plaintiffs in medical matters. E. Drew Britcher, incoming president of ATLA-New Jersey, said the state’s senators, Jon Corzine and Frank Lautenberg, “have long been supporters of the criminal justice system” so he doubts ATLA would run the campaign here. 4-8-05

JUDICIARY MORE RESPECTED THAN CONGRESS
While members of Congress beat on judges for rulings they claim counter the public’s wishes, public sentiment is more on the side of the judiciary than Congress. Eighty percent of Americans say they have confidence in the courts and justice system, and 86 percent expressed confidence in the U.S. Supreme Court, while the Congress got the confidence nod from just 76 percent of the more than 1,000 surveyed nationwide in the Harris Poll by Harris Interactive of Rochester, N.Y. 4-8-05

STATES SWINGING DIFFERENT WAYS ON SAME-SEX UNIONS
Public sentiment on allowing same-sex unions is as diverse as the country is wide. The Connecticut Senate approved a bill that would give same-sex couples many of the rights of married couples a day after voters in Kansas overwhelmingly approved a state constitutional amendment that will ban homosexual couples from marrying or entering civil unions. The amendment fortifies state law that bans those marriages. 4-8-05

CORRECTION
In the April 6 Daily Briefing, a news item on a settlement reached in an age-restriction housing suit was incorrect in saying a Monroe Township ordinance had not been in compliance with federal law. 4-8-05



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, FRIDAY, APRIL 8, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, APRIL 8, 2005.

THE SUPREME COURT has announced that it will release an opinion in IN RE GRAND JURY APPEARANCE REQUEST BY LOIGMAN, A-51, on April 11, 2005. The issue on appeal in Loigman addresses whether a private citizen has the right to directly communicate to a grand jury a request to testify about a matter within the grand jury’s jurisdiction or whether he must present the matter to the grand jury exclusively through the Attorney General or County Prosecutor.



APPROVED FOR PUBLICATION
BANKRUPTCY
NEW JERSEY HIGHER EDUCATION ASSISTANCE AUTHORITY v. PENNELL
Appellate Division, A-5847-03T5, approved for publication April 8, 2005. (23 pages). Facts-on-Call Order No. 92402

The trial court correctly refused to recognize under N.J.S.A. 2A:16-49.1 the purported discharge of a student loan debt by a Bankruptcy Court’s order that confirmed the defendant’s Chapter 13 bankruptcy plan because student loan debts ordinarily are not dischargeable in bankruptcy without a determination that “[e]xcepting such debt from discharge will impose an undue hardship on the debtor and the debtor’s dependents” and because the discharge order in this case was obtained without a hearing on that issue and without the required notice to the student loan creditor.

LAND USE
INDEPENDENT REALTY CO. v. TOWNSHIP OF NORTH BERGEN
Appellate Division, A-5511-03T2, approved for publication April 8, 2005. (12 pages). Facts-on-Call Order No. 92403

Where the plaintiff developer sought a determination in the Law Division under the Declaratory Judgment Act that a change in the Township’s zoning ordinance did not vitiate site plan and variance approvals that were granted 16 years before but on which no action had been taken, there was no justiciable controversy that was ripe for adjudication, and the plaintiff was required to exhaust its administrative remedies by first seeking an interpretation of the ordinance from the Board of Adjustment.

INSURANCE
ALLSTATE INSURANCE CO. v. GREENBERG
Law Division, Morris County, MRS-L-3379-03, approved for publication March 24, 2005. (17 pages). Facts-on-Call Order No. 92404

A chiropractor, who owned five chiropractic clinics that referred their patients to a diagnostic clinic that the chiropractor also owned, violated N.J.S.A. 45:9-22.5 and N.J.A.C. 3:44E-2.7 by making the self-referrals. Furthermore, because the chiropractor and the diagnostic clinic knowingly violated N.J.A.C. 13:35-2.5(b), they, in effect, were jointly and severally liable to the plaintiff insurer for compensatory and treble damages for violating the New Jersey Insurance Fraud Prevention Act.

HUSBAND AND WIFE
WASSERMAN v. PARCIASEPE
Chancery Division, Family Part, Passaic County, FM 16-1454-00, approved for publication March 24, 2005. (8 pages). Facts-on-Call Order No. 92405

As to alimony, the opponent of the presumed evidentiary fact must offer proof that is clear and convincing in refuting the fact; only then will the proponent of the fact have the responsibility to offer proof in order to sustain his or her burden of proof.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
ALFANO v. COZZARELLI
Appellate Division, A-5018-03T2, April 8, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17810

Order in a legal malpractice action denying the defendant attorneys’ motions for an order declaring that the validity of the contested testamentary instruments be decided by the trial court and not by a jury affirmed; the defendants asserted that the plaintiffs would have to show that the documents would not have been admitted to probate and that that decision was a judicial decision and not a jury decision because probate matters are not encompassed within New Jersey’s constitutional grant of the right to a trial by jury; the defendants’ argument rested on a “false premise” because, based on the “sparse” record, the Appellate Division disagreed with the defendants’ assertion that the plaintiffs could prevail only if they could establish that an earlier will would have been admitted to probate as the testator’s last will and testament.

CIVIL PROCEDURE
FIELDS v. WERNER MANUFACTURER
Appellate Division, A-5920-03T5, April 8, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17808

Dismissal of the plaintiff surviving spouse’s complaint on statute of limitations grounds and denial of her motion for reconsideration affirmed; in August 1998, the decedent fell from a ladder that was manufactured by the defendant; the decedent filed a complaint alleging products liability in January 1999, but he died in March 1999; the plaintiff obtained an expert report in 2001; the complaint was dismissed without prejudice in February 2002, but it was reinstated in December 2002; the plaintiff obtained new counsel, who sought an adjournment of a March 2003 trial date because the expert report was inadequate; the adjournment was denied, and the plaintiff’s motion for a voluntary dismissal without prejudice was granted; the plaintiff obtained a new expert report, moved to reinstate the complaint in September 2003, was advised to file a new complaint, and filed a new complaint in November 2003; the defendant was served in January 2004; based on the course of the prosecution of the original complaint and on the course of conduct after the 2003 voluntary dismissal, there were no overriding equities that militated for permitting the November 2003 complaint to proceed.

DOMESTIC VIOLENCE
JANISZEWSKI v. LUSARDI
Appellate Division, A-6170-03T2, April 8, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17809

Final domestic violence restraining order against the defendant ex-boyfriend affirmed; the plaintiff ex-girlfriend and the defendant dated when they were high school freshmen, and the plaintiff broke up with the defendant; three years later, the plaintiff filed a domestic violence complaint that alleged that, on two occasions, the defendant had driven in a way that caused her to believe that he was trying to run her off the road; the plaintiff’s current boyfriend, who was a passenger in the plaintiff’s car at the time of one incident, corroborated the plaintiff’s account of that incident; the trial court rejected the defendant’s assertion that the parties’ dating relationship was not enough to create the basis for a domestic violence complaint; the trial court’s findings and the underlying evidence supported the determinations that the plaintiff was a “victim of domestic violence” under the Prevention of Domestic Violence Act and that the defendant’s conduct constituted harassment.

HUSBAND AND WIFE
SMITH v. WALKER
Appellate Division, A-5155-03T2, April 8, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17811

Post-divorce-judgment order affirmed; the provision in the order requiring that the plaintiff ex-wife and the defendant ex-husband be equally responsible for the plaintiff’s chiropractic and medical costs and that the defendant make payment directly to the chiropractic center was proper because there was nothing in the judgment of divorce or the Appellate Division’s previous opinion that established a procedure or a condition precedent that the plaintiff first must pay the expenses in their entirety before she could seek contribution from the defendant; the defendant’s request to terminate alimony was properly denied because the Family Part “quite reasonably found” that a medical report presented by the defendant did not provide sufficient information to require a hearing on the plaintiff’s ability to work; the Family Part did not err by requiring the defendant to pay $1,900 in attorney’s fees.

PUBLIC CONTRACTS
JOSEPH HAMILTON CONSTRUCTION, INC. v. MIDDLESEX COUNTY UTILITIES AUTHORITY
Appellate Division, A-2078-04T2, April 8, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 17807

Preliminary injunction that prohibited the award of a contract to the plaintiff’s competitor reversed and remanded; the plaintiff and the competitor were the only remaining bidders on a contract to construct a welding shop and storage building at the Middlesex County landfill; the “clear language” of the bid specifications required submission of subcontractors’ business registration statements with any bid, but the plaintiff did not submit the business registration statement of its structural steel subcontractor; after the defendant Utilities Authority determined that the plaintiff’s bid was defective because it did not include the subcontractor’s business registration statement, the defendant adopted a resolution that accepted the competitor’s bid, which was higher than the plaintiff’s bid; the defendant properly concluded that N.J.S.A. 40A:11-23.2(f) required it to reject the plaintiff’s bid; because it was a competitively bid contract, the defendant could not waive the submission of any business registration statement.


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.