NEW JERSEY LAWYER

DAILY BRIEFING      05/02/2005


News Briefs

STATE MAILING TRUNCATED MIIX MED-MAL SETTLEMENTS
Lawyers representing plaintiffs in malpractice suits against doctors insured by MIIX, one of the state’s largest medical liability carriers, can expect to receive settlement offers from the state this week. The Department of Banking and Insurance, which took over the foundering insurer last fall under a court-approved restructuring plan, is mailing offers to about 800 plaintiffs. The maximum will be $1 million, no matter how severe the injuries. The state has said that if the plan fails because too many plaintiffs reject the offers and opt for trial, it could close the company and place its $500 million in assets in a guaranty fund, which would have a maximum $300,000 payout. 4-29-05

MEDICARE DELAYING WORKERS COMP SETTLEMENTS
Workers compensation lawyers statewide are fuming over a Medicare system review process they say is causing delays of one year or more in the final resolution of workers comp settlements that are already court-approved. Judge Peter J. Calderone, chief judge and director of the state Workers Compensation Division, said 1,700 settlements filed by recipients of Medicare or those soon to be eligible for that program are awaiting final approval from the Centers for Medicare and Medicaid Services, adding such delays were barely noticeable before 2003. That’s when the agency stepped up its review process under a federal law designed to prevent shifting responsibility for medical treatment costs to the federal government and away from such primary payers as insurers. “This is a serious issue — my clients can’t get paid and I can’t get paid,” said Julius J. Feinson of Edison, chairman of the New Jersey State Bar Association’s Workers Compensation Section. For a full story, see the May 2 New Jersey Lawyer. 4-29-05

PROPOSAL WOULD OVERHAUL HOMEOWNER ASSOCIATION LAWS
The legislature is being asked to update laws governing homeowners associations, which in many cases are governments unto themselves. Two versions of a 115-page bill (S-2344 and A-3855) are working their way through Senate and Assembly committees. In addition to consolidating existing laws, the measure would require more openness by such associations — including open meetings — and establish an ombudsman within the Department of Community Affairs. Associations wouldn’t be able to levy fines without notice and without offering alternative dispute resolution. The Senate version is sponsored by Joseph V. Doria Jr. (D-Hudson) and the Assembly sponsor is Wilfredo Caraballo (D-Essex). 4-29-05

FLORIO LEAVING PINELANDS COMMISSION
Environmentalists will be watching closely to see who acting Gov. Richard J. Codey names to replace former Gov. Jim Florio as executive director of the Pinelands Commission. Florio will leave the agency, charged with regulating growth and protecting natural resources in the 1.1 million-acre Pine Barrens, when his term expires June 30. Florio, who took over the commission in 2002 when environments were complaining the agency was unwilling to confront development pressure, said its “administrative challenges” have been resolved. 4-29-05

PRISONS TO BRING NEIGHBORS INTO THE LOOP
Those living or working near one of New Jersey’s 13 state prisons won’t have to depend on television news to find out when something big happens at the big house. The Department of Corrections has established a toll-free number (866-DOC-NEWS) that nearby residents, businesses and schools can call for information when they hear a siren or see unusual activity at a prison. DOC plans to add the capability later to automatically call neighbors registered with the program and play a recorded message describing any emergency situation at a prison. “While corrections is our business, public safety is our passion,” said DOC Commissioner Devon Brown. 4-29-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, APRIL 29, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, APRIL 29, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, MAY 2, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON FRIDAY, APRIL 29, 2005.

NOT APPROVED FOR PUBLICATION
EMPLOYMENT LAW
MEDICAL HEALTH CENTERS v. PIERSON
Appellate Division, A-2542-03T1, April 29, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17895

Confirmation of an arbitration award in favor of the plaintiff employer of $250,000 in damages and $75,000 in legal fees plus costs and interest and entry of a judgment in that amount affirmed; the arbitration arose from the defendant doctor’s violation of a post-employment restrictive covenant, and the judgment was stayed pending resolution of a related case between the parties; in that case, Pierson v. Med. Health Ctrs., P.A., the New Jersey Supreme Court reaffirmed the holding in Karlin v. Weinberg that a restrictive covenant in a physician’s employment contract is not per se invalid, but it left open the issue of the extent of the arbitrator’s power; the Appellate Division concluded that the arbitrator properly refused to revisit Karlin, and there was no need to address the Karlin factors because the defendant had stipulated that he would not challenge the reasonableness of the restrictive covenant. [Pierson v. Med. Health Ctrs., P.A., Facts-on-Call Order No. 92395, was decided on April 5, 2005].

PREMISES LIABILITY
DeCEGLIE v. MACK CALI
Appellate Division, A-4659-03T2, April 28, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17891

Summary judgment for the defendant building owner and the defendant elevator service company and denial of the plaintiff’s Rule 4:23-5(a)(1) motion to strike the service company’s answer for failure to make discovery in a negligence action that arose from an elevator malfunction affirmed; discovery ended on the court-ordered deadline, and the plaintiff filed her motion seven months later; the plaintiff never obtained an expert to testify about the elevator’s alleged malfunction, and she never moved to extend discovery or to compel depositions, more specific answers to interrogatories, or more specific responses to her notice to produce; contrary to the plaintiff’s arguments on appeal, (1) the trial court did not err by denying her motion as untimely, (2) the equities did not weigh in her favor due to the service company’s “stonewalling,” and (3) she was not entitled to proceed to trial on her res ipsa loquitur theory without expert testimony.

NEGLIGENCE
LUPO v. MACAULEY
Appellate Division, A-4324-02T5, April 28, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17889

Jury verdict in an action for injuries sustained by the plaintiff pedestrian when he was struck by the defendant driver’s car reversed and remanded; as between these parties, the jury determined that the defendant was 50 percent liable for the accident and that the plaintiff was 40 percent liable, and it awarded $500,000 to the plaintiff for pain and suffering, which the trial court molded according to the liability findings; the plaintiff was hospitalized for 16 days, and he underwent about six surgeries on his lower left leg; the trial court’s denial without explanation of the jury’s “facially reasonable” request for a readback of testimony about the “central issue” in the case — which was the extent that the plaintiff contributed to the accident — compelled the conclusion that the trial court mistakenly exercised its discretion; there was “no question” that the trial court’s failure to instruct the jury not to consider the plaintiff’s medical expenses when it determined damages was “legally incorrect.”

ESTATES AND TRUSTS
IN RE TESTAMENTARY TRUST ESTABLISHED UNDER THE LAST WILL AND TESTAMENT OF RUSH
Appellate Division, A-6058-03T1, April 28, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 17890

Order that denied the appellant grandchildren’s motion to intervene and that dissolved the testamentary trust of the testator grandfather affirmed; after the last surviving trustee of the trust died, her friend sought to be appointed as successor trustee for the benefit of the respondent life beneficiary, who was the appellants’ mother and the testator’s daughter; the respondent counterclaimed for dissolution of the trust and distribution of the corpus; a codicil to the will provided that the corpus was to be paid after the respondent’s death to the testator’s son, if living, or to his living children; because the son died without issue, the distribution of his expected interest to the respondent was consistent with the will and the codicil, and it represented the testator’s probable intent.

DOMESTIC VIOLENCE
WARTSKY v. WARTSKY
Appellate Division, A-6583-03T5, April 29, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17894

Final domestic violence restraining order against the defendant son reversed and remanded; the plaintiff mother alleged that the defendant, who lived in her home and who allegedly suffered from bipolar disorder, became enraged at her and her husband, screamed and cursed at her, tried to disconnect the telephone when she attempted to call the police, and told the husband that he would break his hands if he touched anything; there was insufficient evidence to warrant a finding that the defendant harassed the plaintiff (1) where there was no finding that the defendant had made his comment to the husband with the purpose to harass the plaintiff, (2) where the plaintiff, in response to the trial court’s question, testified that the defendant had yelled at her to hang up the phone but had not threatened her, and (3) where there was no evidence that the parties had a prior history of threats, abuse, or violence.

DRUNK DRIVING
STATE v. CAMPBELL
Appellate Division, A-5016-03T1, April 28, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17892

Conviction of driving while intoxicated affirmed but conviction of reckless driving reversed and vacated; the police observed the defendant sitting on a bulldozer that was connected by a chain to a dump truck that was stuck in mud; the defendant admitted that he had gotten the dump truck stuck and had attempted to free it with the bulldozer; the police noticed an odor of alcohol, that the defendant moved slowly, and that he seemed confused, and he later registered a .16 blood alcohol level on a Breathalyzer; it was “entirely reasonable” for the Law Division to infer from the totality of the circumstances that the defendant had operated the dump truck while he was intoxicated, but there was insufficient proof to support the reckless driving conviction.


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