NEW JERSEY LAWYER

DAILY BRIEFING      04/08/2005


News Briefs

JUDICIARY COMMITTEE TO PROBE GOVERNMENT CORRUPTION
The state Senate Judiciary Committee will begin hearings next month to examine how to deter corruption in public government, including a review of whether to revoke the pensions of convicted officials. Committee Chairman Sen. John H. Adler (D-Camden) says the federal investigation in Monmouth County that resulted in the arrest of 14 officials, county employees and contractors prompted the call for the hearings. “When you have that many people in one county indicted, it suggests the problem is pervasive in every level of government,” he said. 4-7-05

$29.2 MILLION AWARDED TO WORK DISCRIMINATION VICTIM
In one of the biggest discrimination awards ever to a single plaintiff, a jury in U.S. District Court for Southern New York awarded $29.2 million to a financial company executive who claimed she was fired after complaining of workplace mistreatment to the Equal Employment Opportunity Commission. In Zubulake v. UBS Warburg, a former equities trader in the New York offices of European-based UBS claimed she was unfairly bypassed for promotion and that the person who got the job persistently ridiculed and undermined her. UBS plans to appeal. 4-7-05

ANTI-SEMITIC CRIMES ON RISE IN NEW JERSEY
Reported incidents of vandalism and discrimination against Jewish residents in New Jersey rose 42 percent last year, vs. a 17 percent rise nationwide, and the state now ranks second to New York in such cases, according to the Anti-Defamation League. The 297 New Jersey incidents reported to local and state police or the ADL included 212 incidents of vandalism such as arson and desecration of cemeteries, and 85 cases of harassment. The ADL’s survey of 44 states and the District of Columbia found 1,821 anti-Semitic incidents nationwide last year. 4-7-05

STATE LEGISLATURES BOOST OVERSIGHT OF COURT AND CONGRESS
Upset at what they call Congress’ and the federal judiciary’s seizure of their power, state legislatures nationwide will be complaining a bit louder. The National Conference of State Legislatures is launching a new publication, Pre-emption Monitor, to track U.S. Supreme Court rulings and federal legislation that encroach on state authority, such as the Real ID Act of 2005, a bill that would require states to verify that driver’s license applicants are in the country legally. “These pre-emptions stifle state creativity and innovation,” said New York state Sen. Michael Balboni (R-Nassau County), chairman of the conference’s committee on law and criminal justice. 4-7-05

STUDENT NEWSPAPER EXPOSES ‘LAVATORYGATE’
It’s not often that high school journalism results in public action, but that happened in Passaic. The Board of Education there voted to fire three maintenance workers at Passaic High School after the school’s student paper published a story disclosing unsanitary conditions in bathrooms. “When it reaches the children’s level of awareness, we as adults are clearly not addressing what needs to be done,” said Passaic Schools Superintendent Robert H. Hosler of the story, dubbed “Lavatorygate.” 4-7-05

CORRECTION
A Daily Briefing item April 5 erroneously reported that New Jersey does not have a law preventing creditors from seizing the individual retirement accounts from debtors who file bankruptcy. Actually, N.J.S.A. 25:2-1(b) excludes from estates in bankruptcy certain trusts allowed by federal law. In In re Yuhas, the U.S. Bankruptcy Court for New Jersey determined that IRAs qualify under the statute. 4-7-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, APRIL 7, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, APRIL 7, 2005:

INSURANCE
NAV-ITS, INC. v. SELECTIVE INSURANCE CO. OF AMERICA
New Jersey Supreme Court, A-20/21, April 7, 2005. (30 pages). Facts-on-Call Order No. 92400

Because the history of the pollution exclusion clause in comprehensive general liability policies demonstrates that its purpose is to have a broad exclusion for traditional environmentally related damages, the pollution exclusion clause in this case did not bar coverage for personal injuries arising from exposure to toxic fumes that emanated from the application of a floor coating and sealant that was performed by the insured.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, APRIL 8, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, APRIL 7, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


WORKERS’ COMPENSATION
LAIRD v. JOULE INDUSTRIAL CONTRACTOR
Appellate Division, A-1818-03T5, April 4, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17804

Dismissal of the appellant’s workers’ compensation petition for dependency benefits for herself and for her two children affirmed; the appellant’s husband collapsed at work and died the next day from a ruptured cerebral aneurysm; the judge of compensation found that the appellant had failed to establish that her husband’s dragging of heavy pipe and valves immediately before his collapse satisfied the Fiore v. Consolidated Freightways standard for proving a compensable cerebral vascular injury; that finding was “unassailable” (1) where the husband had risk factors that included daily smoking and alcohol use, (2) where a co-worker testified that the husband had appeared red and sweaty and had complained about a headache before arriving at work on the day of the accident, and (3) where the credited testimony of the respondent employer’s expert stated that the husband’s aneurysm likely had started to leak 24 hours before it fully ruptured.

ESTATES AND TRUSTS
IN RE BONARDI
Appellate Division, A-6714-03T5, April 5, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 17806

Chancery Division judgment that permitted the termination of a testamentary trust reversed; the testator father’s will provided for the plaintiff mother to be the income beneficiary of a trust and devised the remainder of the trust to the plaintiff daughters; after the executor reduced the mother’s trust payments, the mother brought an action to compel the immediate distribution of the net income and principal from the trust to allow her to maintain the marital standard of living; after the executor refused to accept the daughters’ waiver of their remainder interest, the daughters moved to terminate the trust; the purposes of the trust were to preserve the corpus for the benefit of the daughters per stirpes and to provide supplemental support to the mother without using trust income or principal for primary support; the evidence did not support the Chancery Division’s finding that the testator probably would not have objected to the termination of the trust if all of the beneficiaries consented, and the Appellate Division was “convinced of just the opposite” because termination of the trust defeated the testamentary plan and contravened the testator’s wishes.

DRUNK DRIVING
STATE v. HARTSOUGH
Appellate Division, A-1943-03T2, April 4, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17805

Conviction for driving while intoxicated affirmed; a police officer testified that he had received a report from Hunterdon County Police Communications that was based on an anonymous tip about a possibly intoxicated driver and that he had seen the vehicle described in the report cross over the double yellow lines, which caused vehicles traveling in the opposite direction to drive onto the shoulder; the officer stopped the vehicle, and the defendant was arrested after he could not complete the field sobriety tests; contrary to the defendant’s argument on appeal, the officer had sufficient reasons for the stop because the anonymous tip allowed the officer to identify the vehicle and to begin his observations, which indicated that the defendant’s driving was sufficiently consistent with intoxication to allow the stop; alternatively, the anonymous tip and the officer’s observations permitted the officer to stop the defendant’s vehicle as part of his community care-taking function.


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