NEW JERSEY LAWYER

DAILY BRIEFING      05/10/2005


News Briefs

GIBBONS, DEL DEO OPENS PHILADELPHIA OFFICE
One of New Jersey’s largest home-grown firms, Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark, has expanded into Philadelphia. Its new downtown office, handling intellectual property, general corporate, commercial and other complex litigation, is headed by David Marston, a former partner at Reed Smith where he headed the corporate section for New Jersey, Philadelphia and New York. The former U.S. attorney for the Eastern District of Pennsylvania made an unsuccessful bid for mayor of Philadelphia. Chairman David J. Sheehan noted that in the wake of Gibbons, Del Deo’s recent opening of a New York office and steady growth in its Trenton facility, Philadelphia is “the next logical step in our growth.” 5-9-05

SENATE TO VOTE ON PENSION CANCELLATIONS FOR CONVICTED OFFICIALS
The state Senate is expected to vote this month on a bill that would impose mandatory minimum sentences for public officials convicted of crimes connected to their offices and would cancel their pension benefits. “We expect the Senate to vote on this during this month; we’re just not sure when,” said Jessica Cohen, an aide to state Sen. Ellen Karcher (D-Monmouth), co-sponsor of S-2439, which last week was voted out of the Senate Judiciary Committee. A-4011, the identical Assembly bill, has been referred to the lower house’s Judiciary Committee. 5-9-05

RODINO’S BODY TO LIE IN STATE AT SETON HALL
A funeral mass for former U.S. Rep. Peter W. Rodino Jr., who died May 7, will be offered at 11 a.m. Monday, May 16, at St. Lucy’s Church in Newark, with the eulogy to be delivered by Paula A. Franzese, a Seton Hall University School of Law professor. His body will lie in state at the Seton Hall Law School chapel from 2 to 5 p.m. Saturday and 1 to 4 p.m. Sunday. Donations may be made to the Peter W. Rodino Jr. Scholarship Fund, c/o Rodino Law Society, Seton Hall University School of Law, 1 Newark Center, Newark, N.J. 07102. 5-9-05

ARBITRATION HEARING COMMENTS ARE GROUNDS FOR DEFAMATION
While statements made in the course of legal proceedings are considered privileged, Thomas E. Engel went too far in what he said during a malpractice case against fellow New York City attorney Michael A. Lacher. In Lacher v. Engel, New York Supreme Court Judge Shirley E. Kornreich has ruled Lacher can sue for defamation because Engel, among other things, called him a “liar” and a “thief” during an arbitration hearing in the 2003 malpractice suit that alleged Lacher improperly billed Parametric Capital Management of New York $3 million while providing only minimal service in 2001. The company replaced Lacher with Engel. In November 2003, Kornreich dismissed the malpractice claim for insufficient evidence. Lacher seeks $5 million in compensatory damages and $20 million in punitives in his defamation suit. 5-9-05

JUDGES TO BE INTERVIEWED FOR REAPPOINTMENT
The state Senate Judiciary Committee is scheduled to conduct interviews Thursday with the following Superior Court judges nominated for reappointment: Diane B. Cohen, Sallyanne Floria, Bryan D. Garruto, Glenn A. Grant, Harriet Farber Klein, Thomas N. Lyons, Amy O’Connor, Edward J. Ryan, Peter V. Ryan and Marie P. Simonelli. 5-9-05



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, MONDAY, MAY 9, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MAY 9, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, MAY 10, 2005.


APPROVED FOR PUBLICATION
ELECTIONS
SCHUNDLER v. DONOVAN
Appellate Division, A-4433-04T2, A-4434-04T2, and A-4451-04T2, approved for publication May 6, 2005. (18 pages). Facts-on-Call Order No. 92449

As it affects the June 2005 Republican primary election for Governor, the equality-of-treatment principle set forth in the first sentence of N.J.S.A. 19:23-26.1 does not necessarily violate the First Amendment interests recognized by the U.S. Supreme Court in Eu v. San Francisco County Democratic Central Comm., and the principle must be effected by the county clerks to the greatest extent possible when they design ballots and position candidates on them. [The New Jersey Supreme Court affirmed this opinion in a decision dated May 6, 2005.]

NOT APPROVED FOR PUBLICATION
ATTORNEYS
RUTTLE v. RUTTLE
Appellate Division, A-5577-03T5, May 6, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17933

Order that disqualified the plaintiff daughter’s second attorney in an action arising from a forged deed and denial of the plaintiff’s motion for reconsideration reversed and remanded; the plaintiff’s first attorney withdrew because he had represented the defendant mother and the decedent father in the transfer of property that gave rise to the plaintiff’s action; the first attorney asked the second attorney to represent the plaintiff, and he forwarded his file when the second attorney agreed; the trial court erred by imputing the first attorney’s disqualification to the second attorney; neither the transfer of the file and the purported disclosure of privileged and confidential information by the first attorney to the second attorney nor the appearance of impropriety provided a basis for the second attorney’s disqualification.

INSURANCE
GUARINO v. NATIONAL INTERSTATE INSURANCE CO
Appellate Division, A-6416-02T5, May 6, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17935

Final judgment entered for the plaintiff insured for $116,480 and orders (1) denying the defendant insurer’s summary judgment motion, (2) granting the plaintiff’s summary judgment cross-motion, (3) granting the defendant insurance agency’s motion to dismiss the insurer’s cross-claim for indemnification, and (4) granting the insurance agency’s motion to dismiss the plaintiff’s negligence claims against it affirmed; the claims arose from fire damage to a motor home bought by the plaintiff for her brother and insured through the insurance agency; the insurer denied coverage based on an exclusion for losses incurred while the recreational vehicle was used “as a permanent or primary residence”; construing the exclusion narrowly, the loss in this case occurred while the brother drove the vehicle on the road, regardless of whether he used it as his residence; this conclusion also nullified the indemnification and negligence claims against the insurance agency.

INSURANCE
FOGARTY v. NEW JERSEY MANUFACTURERS INSURANCE CO.
Appellate Division, A-6286-03T3, May 6, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17930

Order converting a $50,000 arbitration award to a judgment of no cause of action and dismissing with prejudice the plaintiffs’ underinsured motorist claims against the defendant insurer affirmed; the plaintiffs had settled their underlying tort claims for $95,000 of the tortfeasor’s $100,000 policy limit, then demanded UIM benefits; at a hearing on whether the arbitrator had intended to set the value of the plaintiffs’ claims or to award an amount exceeding the coverage available under the tortfeasor’s policy, the arbitrator, who did not recall the specific matter, testified (1) that his report indicated his intention of an award for “the total value of the case” and (2) that, had he intended otherwise, he would have stated so in the report; the evidence supported the trial court’s finding that the arbitrator did not intend an award that exceeded the amounts the plaintiffs had received in the underlying lawsuit; there was no merit to the argument that the arbitrator’s report and award were insufficiently clear to give notice to the plaintiffs that there would be no monetary relief on the UIM claim.

WORKERS’ COMPENSATION
KLUGE v. READE MANUFACTURING
Appellate Division, A-2298-03T5, May 6, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17932

Denial of the petitioner father’s application for dependency benefits because the petitioner’s son was not dependent on the decedent, who was the petitioner’s father, affirmed; the petitioner did not qualify for dependency benefits, but he argued that his son was dependent on the decedent where the son was 2 years old when the decedent died, where the son had lived in the decedent’s home with the petitioner five days per week during a nine-month period, and where the decedent babysat the son regularly; the judge of compensation correctly determined that the petitioner had an obligation to support the son, that the petitioner had been supporting the son, and that there was no evidence on which to conclude that the son was the dependent of the decedent in any sense.

EMPLOYMENT LAW
MILLER v. COMMUNITY MEDICAL CENTER
Appellate Division, A-1781-03T5, May 6, 2005, not approved for publication. (22 pages). Facts-on-Call Order No. 17931

Summary judgment for the defendant employer in an action under the Conscientious Employee Protection Act reversed and remanded; the plaintiff nurse informed his supervisors and the Board of Health about his concerns regarding the application of diapers to patients who were incontinent and bedridden, and he later was suspended and terminated for “substandard nursing practice as it pertains to charting the dispensing of narcotics”; the plaintiff admitted that he did not properly chart patient records about drug administration, but the evidence also indicated that he was an above-average employee, that there was a temporal proximity between his complaint to the Board and his suspension that permitted an inference of a causal connection, and that there was an “ongoing antagonism” between the plaintiff and the administrator who decided to suspend and to terminate him; viewing all of the evidence in a light most favorable to the plaintiff, a rational jury could find that the defendant’s proffered reason for the plaintiff’s termination was merely pretext.

COMMERCIAL TRANSACTIONS
OLDJA v. CAMPANA
Appellate Division, A-4132-03T2, May 6, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17934

Order dismissing the complaint of the plaintiff, as executor of her husband’s estate, to recover a debt affirmed; at her husband’s funeral, the plaintiff learned that he had lent money when the defendant, who was a cousin and employee of the husband, mentioned owing $15,000 on the debt; there was no error or abuse of discretion by the trial court because the facts supported its findings (1) that the plaintiff’s proofs were inadequate for a judgment in her favor and (2) that, as the defendant testified and showed with cancelled checks, she had discovered that she had repaid the debt and that her statement about a balance due was a mistake; the Appellate Division was bound by those findings of fact, “especially to the extent they are based on credibility determinations.”


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.