NEW JERSEY LAWYER

DAILY BRIEFING      04/07/2005


News Briefs

KSETTLEMENT REACHED IN AGE-RESTRICTION HOUSING SUIT
Under a settlement reached in a federal lawsuit, Monroe Township in Middlesex County has agreed to amend an ordinance that barred anyone under age 55 from moving into an age-restricted housing development. The terms of the settlement put the township into compliance with federal law by allowing homes in the development to be sold to couples in which one person is at least 55 and the other at least 48. The case, Toll New Jersey II v. Township of Monroe, had been assigned to Judge Joseph A. Greenaway Jr. Two developers had challenged the ordinance. Marguerite M. Schaffer of Shain, Schaffer & Rafanello in Bernardsville represented the township. Craig S. Hilliard of Stark & Stark in Lawrenceville was the developers’ lawyer. 4-6-05

VERBAL-THRESHOLD APPEALS ON HOLD UNTIL HIGH COURT RULINGS
The Appellate Division has announced it is no longer calendaring verbal-threshold cases until the New Jersey Supreme Court issues rulings in DiProspero v. Penn and Serrano v. Serrano. The question in those cases is whether plaintiffs trying to satisfy the verbal threshold of the Automobile Insurance Cost Reduction Act of 1998 are required to demonstrate the permanent injuries they suffered had a “serious impact” on their lives. The cases were argued Nov. 29. The Appellate Division is extending the filing date for briefs in verbal-threshold cases until 21 days after the Supreme Court releases its opinions. Lawyers must contact the appeals court for extensions. The New Jersey State Bar Association and the Association of Trial Lawyers of America-New Jersey have opposed the serious-impact provision. 4-6-05

$11.8M AWARD TO FAMILY OF CANCER VICTIM
After a month-long trial, a Manhattan jury awarded $11.8 million to the husband and children of Vicki Malouf, 45, who died in 2001 of cervical cancer. According to the family’s attorney, Judith A. Livingston, Manhattan gynecologist Heidi Rosenberg failed to prescribe treatment after noting abnormal cells in Malouf’s cervix in 1994 and Quest Diagnostics of Teterboro misread results of Pap smears in 1996 and 1997. After excessive vaginal bleeding, Malouf was diagnosed in 1998 with a massive cancerous tumor. A hysterectomy, chemotherapy and radiation were prescribed, but the cancer had already spread. The jury found the gynecologist 55 percent liable and the medical lab 45 percent at fault. George Van Setter represented the doctor, and Dennis McCoy the lab. 4-6-05

LAWYER-CLIENT PRIVILEGE AT RISK AMID ‘PROSECUTOR ZEAL’
A new survey by the Association of Corporate Counsel reveals the attorney-client privilege continues to face increased challenges in the corporate world. Nearly 40 percent of in-house and outside corporate counsel respondents report their clients have experienced erosion of protections in the four years since Enron as they increasingly are asked to waive privilege rights in Security Exchange Commission investigations, federal and state prosecutions, and sensitive civil suits. According to the ACC, the newly amended federal sentencing guidelines and the Department of Justice’s internal policies give prosecutors leverage to push for waivers, and such demands often are presented as a requirement to show accountability and cooperation with the government. ACC general counsel Susan Hackett notes, “The perverse result of the prosecutorial zeal we’re seeing is that executives may no longer feel comfortable discussing their concerns with their in-house counsel.” Access the survey at acca.com/Surveys/attyclient.pdf. 4-6-05

SHOOT WITHOUT THINKING TWICE
Like many states, New Jersey has a law that permits people to use deadly force if threatened by an intruder who breaks into their home and they cannot do anything to avoid harm before shooting to kill. But in Florida, Gov. Jeb Bush is preparing to sign legislation that passed both houses there this week eliminating the generally standard requirement that people so threatened make every effort to avoid the danger before resorting to gunning down the intruder. The measure there, SB 436, expands the use of deadly force beyond the home to any place a person “has a right to be.” The legislation was vigorously backed by the National Rifle Association, while critics claimed such an expansion of the self-defense concept effectively promotes “wild west” behavior. 4-6-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, APRIL 6, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, APRIL 6, 2005:

HUSBAND AND WIFE
MANI v. MANI
New Jersey Supreme Court, A-53, April 6, 2005. (65 pages). Facts-on-Call Order No. 92396

In an action for divorce, marital fault is irrelevant to alimony except (1) where the fault negatively affects the economic status of the parties or (2) where the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice. Marital fault is irrelevant to an award of attorney’s fees. Justice Wallace concurred. Justice Rivera-Soto concurred in part and dissented in part.

EMPLOYMENT LAW
COMMUNITY HOSPITAL GROUP, INC. v. MORE
New Jersey Supreme Court, A-75/76, April 5, 2005. (43 pages). Facts-on-Call Order No. 92394

A restrictive covenant in an employment contract between a hospital and a physician is not per se unreasonable and unenforceable. However, under the circumstances of this case, the geographic restrictive area was excessive and must be reduced to avoid being detrimental to the public interest. Furthermore, because the two-year period for the restrictive covenant in this case had expired, the request for injunctive relief was moot. Justice Rivera-Soto concurred in part and dissented in part. This is a companion case to Pierson v. Medical Health Centers, P.A.

EMPLOYMENT LAW
PIERSON v. MEDICAL HEALTH CENTERS, P.A.
New Jersey Supreme Court, A-10, April 5, 2005. (9 pages). Facts-on-Call Order No. 92395

Employment contracts that contain a restrictive covenant between a physician and a hospital, although not favored, are not per se unreasonable and unenforceable. This is a companion case to Community Hospital Group, Inc. v. More.

THE SUPREME COURT has announced that it will release an opinion in NAV-ITS, INC. v. SELECTIVE INSURANCE CO., A-20/21, on April 7, 2005. The issue on appeal in Nav-Its, Inc. addresses whether the exclusion in the general liability insurance policy in this case excluded coverage for third-party personal injury damages that arose from toxic fumes released from the floor sealant that was applied by the insured’s subcontractor.



APPROVED FOR PUBLICATION
ATTORNEYS
DYNASTY BUILDING CORP. v. ACKERMAN
Appellate Division, A-4310-03T3, approved for publication April 4, 2005. (10 pages). Facts-on-Call Order No. 92397

In an action against an attorney, which alleged that the attorney improperly disbursed funds from his attorney trust account to his own client although there were claims that the funds belonged to the plaintiff, it was error for the trial court to vacate a default judgment that the plaintiff had obtained against the attorney (1) under Rule 4:43-1 where the attorney suffered little if any prejudice from lack of notice or (2) under Rule 4:50-1(d) or (f).

HUSBAND AND WIFE
MOORE v. MOORE
Appellate Division, A-1800-03T3, approved for publication April 5, 2005. (11 pages). Facts-on-Call Order No. 92398

Where a specific retirement date was reasonably expected and was relied on by the parties for equitable distribution at the time of divorce, the pension-earning spouse, who decided to continue working beyond the expected retirement date, can be compelled to provide pre-retirement payments of his former spouse’s share of the pension for each month that he chooses to work after the expected retirement date.

GRAND JURY
STATE v. LAND
Appellate Division, A-6625-03T1, approved for publication April 5, 2005. (8 pages). Facts-on-Call Order No. 92399

On the State’s appeal from the dismissal of a State Grand Jury indictment, (1) Rule 3:6-3(a) does not require the Assignment Judge to conduct an in camera examination of every potential grand juror or sitting grand juror when questions of bias or of financial, proprietary, or personal interest have been raised and (2) the authority to disqualify under Rule 3:6-3(a) is not limited to the Assignment Judge.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
PRESS v. WALEGA
Appellate Division, A-4611-03T5, April 4, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17801

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed but remanded as to economic damages; the plaintiff’s complaint sought both economic and noneconomic damages, and it alleged negligence and strict liability based on the defendant driver’s ultra-hazardous activity of turning left through a red light; although the plaintiff conceded that her negligence claim was barred by her failure to submit a physician’s certification, she maintained that her strict liability claim was not similarly barred; the trial court properly determined that the right to sue under AICRA does not depend in the first instance on the tortfeasor’s degree of culpability, and the plaintiff’s “outright refusal” to submit a physician’s certification warranted the dismissal of her claims for noneconomic damages; remand was required because the trial court did not address the plaintiff’s claims for economic damages.

EMPLOYMENT LAW
NARDELLO v. TOWNSHIP OF VOORHEES
Appellate Division, A-1811-03T2, April 4, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17803

Summary judgment for the defendant Township and three defendant police officials in an action under the Conscientious Employee Protection Act reversed and remanded; the plaintiff was employed by the Township Police Department from 1980 until 2002, and he had been promoted to lieutenant in 1999; beginning in 1999, the plaintiff was forced to inform his superiors about alleged misconduct and cover-ups; as a result, the plaintiff claimed that he had been denied permission to undergo firearms instructor training related to his SWAT team membership, had been coerced to resign from the SWAT team, had been prevented from working on crime-prevention programs, had been removed from the detective bureau, and had been given demeaning jobs for an officer of his rank; although many of the incidents described by the plaintiff were relatively minor, he had established a prima facie case, and a jury could conclude that the incidents combined to demonstrate a prohibited pattern of retaliatory conduct.

PREMISES LIABILITY
GONZALEZ v. RAMCHAL
Appellate Division, A-5670-03T5, April 5, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17802

Summary judgment for the defendant owners of residential premises in a sidewalk slip-and-fall action reversed and remanded; the plaintiff fell due to snow and ice on the sidewalk, and she alleged that the defendants were liable because their affirmative conduct of removing snow to expose ice had transformed a “somewhat dangerous situation” into an “extremely dangerous” one; summary judgment was granted nearly three months before the discovery end date; the summary judgment motion should have been continued, dismissed, or denied because the plaintiff demonstrated a sufficient need for further discovery by claiming (1) that it was essential to depose one of the defendants to address questions about the temperature, the condition of the sidewalk, and the defendant’s actions on the date of her fall and (2) that she had not had the opportunity to obtain an expert opinion about the conditions.


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