NEW JERSEY LAWYER

DAILY BRIEFING      04/29/2005


News Briefs

JERSEY RANKS THIRD IN WIRETAP APPLICATIONS
New Jersey has always been among the nation’s leaders in gaining court-approved wiretaps, and last year was no different. The state ranked third in the nation, with 144 taps of wire, oral or electronic communications, or 27 more than in 2003, reports the Administrative Office of the U.S. Courts. The numbers in New Jersey were topped only by New York with 347 and California, 180. Nationwide, wiretap applications to federal and state judges rose 19 percent to 1,710, of which 980 were from state courts. No applications were denied. Phone wire communication, which includes land, cellular, cordless and mobile phones, accounted for 94 percent of applications. The full 2004 wiretap report is available at uscourts.gov/library/wiretap.html. 4-28-05

MERCURY THERMOMETER SALES BANNED
Throw away those mercury thermometers or keep them as collectors items. Among the laws just signed by acting Gov. Richard J. Codey is a ban on the sale of basal, oral or rectal mercury thermometers. The ban, effective immediately, doesn’t apply to thermometers used for research and development, professional healthcare or industrial purposes. The Environmental Protection Agency has noted the improper disposal of thermometers contributes to unhealthful mercury emissions. “Technology has provided us with a new generation of thermometers that are accurate, safe and easy to dispose of,” said Assemblyman David Mayer (D-Camden), who sponsored the measure with Assembly Speaker Albio Sires (D-Hudson). 4-28-05

FEDERAL JUDGES SAY LEAVE RULE 11 ALONE
In the face of possible Congressional action that would mandate disciplining lawyers for filing frivolous lawsuits, a survey of federal judges showed most believe they can do quite well using their own discretion under current optional sanction rules. The focus of the survey — and a target of the proposed Lawsuit Abuse Reduction Act — is Rule 11, under which judges may sanction lawyers who file suits or motions outside the pale. Responding to the survey by the U.S. Judicial Conference’s Advisory Committee on Civil Rules, 87 percent said they want Rule 11 left alone. Some said it could be tweaked, but only 4 percent agreed with the proposed legislation. Asked about the level of groundless lawsuits in their courts, only 3 percent said it was a major problem anyway. 4-28-05

NJ HEALTH INSURANCE COSTS FAR EXCEED REST OF NATION
New Jersey residents are well aware that most things here are more expensive than elsewhere, but the difference for health insurance is off the charts. The average New Jerseyan pays $4,044 per year for health insurance vs. an average $1,812 nationwide and $1,488 in Pennsylvania, according to Merrill Matthews, director of the Council for Affordable Health Insurance. Writing in the May 1 edition of The Heartland Institute newsletter, he says differing state mandates on insurers creates the disparity. 4-28-05

CHILD’S TRUST INCOME DOESN’T CANCEL SUPPORT OBLIGATION
A Pennsylvania appeals court has ruled that even though a trust pays for most of his child’s special needs, the father still must pay child support. In Ricco v. Novitski, the father argued that the interest from a trust fund established with a medical malpractice settlement was sufficient. But, the court said, he still was obligated. “A parent must discharge his support obligation to his minor child where he can reasonably do so, regardless of the child’s assets,” the court said, adding the principle of child support isn’t cancelled “by a fortuity of circumstances.” 4-28-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, APRIL 28, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, APRIL 28, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, APRIL 29, 2005.


APPROVED FOR PUBLICATION
INSURANCE
THOMSEN v. MERCER-CHARLES
Appellate Division, A-5571-02T1, approved for publication April 28, 2005. (35 pages). Facts-on-Call Order No. 92439

When two policies apply and when the exhaustion of the solvent insurer’s policy does not completely cover the claimant’s damages, the New Jersey Property-Liability Insurance Guaranty Association is entitled to a setoff of the full amount paid by the solvent insurer under the PLIGA Act exhaustion and setoff provision, even when the claim far exceeds the coverage limits of the solvent insurer’s policy. Judge Weissbard dissented.

NOT APPROVED FOR PUBLICATION
LAND USE
BRUNO v. ZONING BOARD OF ADJUSTMENT OF BOROUGH OF OAKLAND
Appellate Division, A-3489-03T3, April 28, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17888

Law Division decision that a zoning map that depicted a part of a lot inside an industrial park as being in a residential zone controlled the interpretation of zoning boundaries affirmed; the defendant developer sought to build a warehouse and an office building on the lot, and the defendant Zoning Board of Adjustment adopted a resolution that stated that the entire lot was located inside the industrial park zone; the plaintiffs filed an action in lieu of prerogative writs to contest the Zoning Board’s decision; reference to the zoning map controlled the interpretation of the zone boundaries because the zoning ordinance provides the method for settling the dispute and because applying that method resolved the dispute.

NEGLIGENCE
VELEZ v. CASALINO
Appellate Division, A-4110-03T1, April 28, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17887

Summary judgment for the defendant driver and the defendant rental car company in a personal injury action based on the two-year statute of limitations under N.J.S.A. 2A:14-2 affirmed; the driver rear-ended the plaintiff’s vehicle on September 27, 2000, and the plaintiff filed his complaint on October 3, 2002; the defendants listed the statute of limitations as a defense in their answer, but they did not move for summary judgment until January 28, 2004; contrary to the plaintiff’s contention, there was no basis to conclude that the defendants waived their right to raise the defense because the mere passage of time, without more, is not a sufficient basis for waiver.

NEGLIGENCE
SHIELDS v. BUCCHERI
Appellate Division, A-2280-03T5, April 27, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17885

Jury verdict of no cause of action and denial of the plaintiff’s motion for a new trial after a trial on the sole issue of personal injury damages that arose from an automobile accident affirmed; contrary to the plaintiff’s arguments on appeal, (1) the verdict was not against the weight of the evidence, (2) the trial court properly exercised its discretion by allowing the defendant’s orthopedic expert to testify about the lack of a causal relationship between the plaintiff’s alleged injuries and a low-impact accident, and (3) the trial court did not abuse its discretion by allowing photographs of the plaintiff’s vehicle to be admitted into evidence.

WORKERS’ COMPENSATION
PATON v. PUREPAC PHARMACEUTICAL CO.
Appellate Division, A-4933-03T3, April 27, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17886

Summary judgment for the defendant employer in a negligence action based on the exclusive remedy provision in the Workers’ Compensation Act affirmed; the plaintiff chemist was placed with the defendant through a temporary agency, and she became totally and permanently disabled after she inhaled toxic fumes while disposing of hazardous waste; in a workers’ compensation action, the defendant was dismissed by consent order, and the plaintiff obtained a $163,800 judgment against the temporary agency; contrary to the plaintiff’s arguments, (1) she was a special employee under Kelly v. Geriatric and Medical Services, Inc. and (2) the doctrines of judicial estoppel, equitable estoppel, and laches did not bar the defendant’s statutory defense.

PARENT AND CHILD
BELTHOFF v. SHANAHAN
Appellate Division, A-328-04T1, April 27, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17884

Post-divorce-judgment orders that reduced the plaintiff father’s child support obligation from $120 per week to $107 per week modified by the Appellate Division to reduce the plaintiff’s obligation to $73 per week; the parties’ property settlement agreement provided for child support to be revisited when the parties’ son began kindergarten; at that time, the trial court entered an order that calculated child support based on the sole parenting worksheet; the trial court should have used the shared parenting worksheet because it was undisputed that the plaintiff’s parenting time exceeded 28 percent and that he had separate living accommodations for his son; the Appellate Division exercised its original jurisdiction to modify the award based on the shared parenting worksheet.

FROM THE ADMINISTRATIVE AGENCIES
WORKERS’ COMPENSATION
OLESSI v. COLAVITA
Claim Petition No. 2001-5995, Final Agency Decision: February 24, 2005, released for publication April 22, 2005. By Colsey, J.W.C. (13 pages).

The judge of compensation dismissed the petitioner aunt’s claim petition that alleged that she was the respondent nephew’s employee because she provided domestic services on a regular basis for financial consideration. The petitioner, who was almost 90 years old, fell at the respondent’s home, which once had been her parents’ home and which she considered “her home.” The respondent testified that the petitioner did “whatever she wanted,” including household chores, in his home but that he did not tell her what to do, and he acknowledged giving her weekly checks as gifts. Other relatives testified that they also gave the petitioner money regularly and that the petitioner performed chores “to keep busy.” The judge determined that the petitioner could not be included within the casual employee exception to the definition of “employment” in N.J.S.A. 34:15-36 and that she had failed to establish that she was an employee under either the control test or the relative nature of the work test.

SPECIAL EDUCATION
P.D. v. FRANKLIN TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 10113-04, Agency Docket No. 2005-9369, Final Agency Decision: April 11, 2005, released for publication April 18, 2005. By Wells, ALJ. (31 pages).

The administrative law judge denied the petitioner mother’s claims for an out-of-district placement and for compensatory education for her daughter. The daughter was reclassified with a specific learning disability and had been diagnosed with attention deficit hyperactivity disorder and an auditory processing disorder. For the daughter’s 10th grade year, she was “fully mainstreamed” for all of her classes, and she received in-class support for geometry, classes to address basic mathematical skills, and a math lab. The ALJ (1) noted that the petitioner’s entire case focused on the results of three standardized tests, (2) found the parties’ reluctance to supplement the record with information about the daughter’s progress in her current placement “disconcerting,” (3) found the testimony of the respondent Board of Education’s experts “convincing” and based on appropriate factors that included the daughter’s test scores, grades, and advancement, and (4) concluded that the respondent provided the daughter with a free appropriate public education in the least restrictive environment.


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