NEW JERSEY LAWYER

DAILY BRIEFING      05/09/2005


News Briefs

SURGEON CALLS INSURER’S COVERAGE DENIAL UNLICENSED DOCTORING
In what may be a first in legal skirmishes between doctors and insurers in New Jersey, Englewood surgeon Steven Shikiar has filed a complaint with the state Board of Medical Examiners accusing a Cigna Healthcare doctor of recommending against a surgical procedure without first examining the patient or the medical charts. Shikiar alleges the recommendations constituted the practice of medicine and that Cigna’s doctor is licensed in Pennsylvania, not New Jersey. 5-6-05

LAWYER-LOBBYISTS THRIVING IN TRENTON
Both long-established and upstart offices staffed by lawyers have been doing well on Lobbyist Row, across West State Street from the Statehouse. Four law offices were among the top 20 lobbying earners in 2004, according to the Election Law Enforcement Commission. Some are self-contained government practice units; some are lobbying arms of more extensive home offices elsewhere. Sterns & Weinroth, for example, has been a major force in Trenton more than 30 years, expanding from a lobbying firm to a full-service law firm. Newark-based Gibbons, Del Deo, Dolan, Griffinger & Vecchione opened a small office just three years ago and is rapidly moving up the earnings list. “I’d be surprised if more law firms don’t get into lobbying,” said David J. Pascrell, who runs the Gibbons, Del Deo Trenton office. For the full story, see the May 9 New Jersey Lawyer. 5-6-05

BILL WOULD RESTRICT WHERE SEX OFFENDERS CAN LIVE
What started as a grassroots effort in Hamilton Township and Keansburg to restrict where sex offenders can live has advanced to the state level. A bill establishing such restrictions statewide has been introduced in Trenton by Assemblyman Joseph Azzolina (R-Monmouth). Such moves to ban offenders from residing within proscribed distances of schools, parks and day care centers have been branded unconstitutional by the American Civil Liberties Union. 5-6-05

FEDERAL APPEALS COURT VOIDS IBM WAIVER ON RIGHT TO SUE
The 8th U.S. Circuit Court of Appeals has invalidated a claims release signed by an older worker in order for him to receive severance benefits. In Thomforde v. International Business Machines Corp., the court ruled the release did not satisfy the waiver requirements of the Older Workers Benefits Protection Act, which declares waivers invalid unless “written in a manner calculated to be understood” by the average person. The court found the waiver at issue confusing and the decision opens the way for hundreds of others fired by IBM to sue, saying that as older workers they were hit harder by a round of layoffs. 5-6-05

LAW OF THE WEEK AWARD — BAN ON ‘SUGGESTIVE’ CHEERLEADING
In Texas, home of the Dallas Cowboy cheerleaders, the legislature apparently thinks cheerleading in public schools has gone too far. The state House of Representatives has approved a bill that would give state education officials power to punish schools that permit “overtly sexually suggestive” cheerleading routines. The measure is heading to the state Senate. “People are calling and telling me how disgusting it is to see sexually suggestive routines on the part of marching units or cheerleaders,” said state Rep. Al Edwards, a Houston Democrat who sponsored the bill. He said too many cheerleaders were “shaking their behinds, breaking it down.” 5-6-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, MAY 6, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, MAY 6, 2005:

ELECTIONS
SCHUNDLER v. DONOVAN
New Jersey Supreme Court, A-126/127/128, May 6, 2005. (4 pages). Facts-on-Call Order No. 92448

The New Jersey Supreme Court affirmed substantially for the reasons expressed by the Appellate Division in the opinion reported at — N.J. Super. — (2005).

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, MAY 9, 2005.



APPROVED FOR PUBLICATION
DRUNK DRIVING
STATE v. BEALOR
Appellate Division, A-2926-03T3, approved for publication May 6, 2005. (12 pages). Facts-on-Call Order No. 92446

To prove beyond a reasonable doubt that a defendant was driving while intoxicated by marijuana, the State must demonstrate (1) that marijuana was present in the defendant’s system while he was driving and (2) that the marijuana caused a substantial deterioration or diminution of the defendant’s mental faculties or physical capabilities that made it improper for him to drive. An inference of marijuana intoxication may not be drawn solely from a lay witness’s testimony about a defendant’s behavior.

RIGHT TO COUNSEL
STATE v. FIGUEROA
Appellate Division, A-3565-02T4, approved for publication May 6, 2005. (10 pages). Facts-on-Call Order No. 92447

In this capital case, the defendant’s constitutional right to represent himself was violated because the only basis in the record for the denial of his motion to proceed pro se was his lack of technical knowledge.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
JABRA v. SORIA
Appellate Division, A-5001-03T3, May 6, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 17927

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff was involved in an accident in May 2000, and he had been involved in a previous accident in September 1995; the plaintiff failed to demonstrate that he suffered new injuries in the May 2000 accident, that his pre-existing back condition had been aggravated by the May 2000 accident, or that the May 2000 accident had a serious impact on his life.

WORKERS’ COMPENSATION
MORALES v. GREEN BROOK COUNTRY CLUB
Appellate Division, A-3947-03T5, May 6, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17928

Dismissal of the petitioner kitchen worker’s claim for workers’ compensation benefits affirmed; the respondent employer permitted employees to use its golf course after work, and a co-worker struck the petitioner in the head with a golf club while they were playing a round of golf after work; the judge of compensation properly held that the petitioner’s injuries were not compensable under the Workers’ Compensation Act because they did not arise out of and in the course of his employment under N.J.S.A. 34:15-7; contrary to the petitioner’s arguments on appeal, (1) playing golf was not a regular incident of his employment and did not confer a benefit on the respondent beyond employee health and morale and (2) there was no basis for a finding of compulsion by the respondent.

PUBLIC EMPLOYEES
EXECUTIVE COMMISSION ON ETHICAL STANDARDS v. HENGELI
Appellate Division, A-4882-03T5, May 6, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17929

Determination that the defendant, a former employee of the State Department of Personnel, violated the New Jersey Conflicts of Interest Law affirmed; the case arose from the defendant’s release of the names and addresses of all State employees to an employee of the State Senate Majority Office; contrary to the defendant’s assertions on appeal, (1) the addresses of public employees are confidential under Executive Order 11 (Nov. 15, 1974), which is an expressly permitted exception to the Open Public Records Act, and (2) the defendant’s acts were “willful” under the Conflicts statute because the record shows that he knew both that he was releasing the information to someone who was partisan and that the Senate Republican Office of Constituent Services could use the information to mail partisan material to those on the list.

PREMISES LIABILITY
ZEMEL v. JOHNSON
Appellate Division, A-108-04T5, May 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17925

Dismissal of the plaintiff’s personal injury complaint stemming from tripping and falling on a crack in a sidewalk that abuts the defendant’s residence affirmed; pursuant to the case law, a residential property owner is not responsible for defects in an abutting sidewalk where there has been no negligent construction or repair of the sidewalk; contrary to the plaintiff’s assertions on appeal (1) municipal ordinances, such as Newark’s sidewalk-maintenance ordinance, as a matter of law do not create a tort duty in residential property owners for the condition of abutting sidewalks and (2) N.J.S.A. 40:65-1 to -16, which is captioned “Sidewalks” and generally authorizes the adoption of ordinances on construction and maintenance matters and costs, does not provide a basis for imposing any tort duty on residential property owners.

INSURANCE
MATTOS v. CUE & BREW
Appellate Division, A-6263-03T1, May 4, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17918

Interlocutory order granting summary judgment to the insurer of a tavern and dismissing the tavern’s third-party complaint for coverage and defense costs under a commercial general liability insurance policy affirmed; the tavern notified the insurer that some patrons had sustained injuries in a fight, but the insurer invoked exclusions in an assault-and-battery endorsement; the trial court reconsidered and reversed its earlier ruling that had found coverage based on estoppel; contrary to the tavern’s arguments on appeal, estoppel could not be applied based on the notice to the insurer because (1) the insurer’s disclaimer which was issued when the patrons sued the tavern two years after the fight was “reasonably prompt in the circumstances,” (2) the tavern did not establish detrimental reliance, and (3) the tavern was or should have been aware that the policy did not cover a bar fight.

LAND USE
INTERVERSE ENTERPRISES, INC. v. TOWNSHIP OF MOUNT OLIVE
Appellate Division, A-4512-03T3, May 4, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17920

Final judgment for the defendant Township in this challenge to a rezoning ordinance affirmed; the Township rezoned an area, which the State recognizes as a “special resource area” and as “environmentally sensitive” and which included the plaintiff’s property, from R-1 residential to the more restrictive RR-AA, or “rural residential district,” for the stated purpose of preserving and protecting such areas and the “low density residential pattern of development”; the trial court properly rejected contentions that the ordinance as applied to the plaintiff’s property was arbitrary, capricious, and unreasonable; although experts testified that the plaintiff’s property did not have wetlands, floodplains, or steep slopes, the ordinance did not limit its purposes to those concerns; the facts also failed to support the claim that the rezoning was for the improper purpose of depressing the land’s value for later acquisition for recreational purposes.

DOMESTIC VIOLENCE
CONNOLLY v. CONNOLLY
Appellate Division, A-4671-03T1, May 4, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17917

Final domestic violence restraining order issued against the defendant ex-husband reversed; the trial court had found that the defendant harassed the plaintiff ex-wife by sending her cellular-telephone text messages and by sitting in his car in front of her parents’ home on his birthday; although the trial court correctly focused on the defendant’s state of mind when he engaged in this conduct, nothing in the two text messages described by the plaintiff at trial provided a rational basis for inferring a purpose to harass; the defendant’s decision to park in front of his former in-laws’ home was not part of the predicate conduct set forth in the complaint and instead was largely prompted by a “Happy Birthday” text message sent by the plaintiff days after receiving the defendant’s text messages.

DRUNK DRIVING
STATE v. TITUS
Appellate Division, A-75-04T1, May 4, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17926

Final judgment, entered after a trial de novo and convicting the defendant of driving while intoxicated, affirmed; the case arose when police found the apparently intoxicated defendant in his vehicle in a parking lot behind a shopping plaza after the stores had closed; contrary to the defendant’s appellate argument that the State failed to prove that he had operated his vehicle while intoxicated, despite his being behind the wheel with the engine running, the evidence supported the findings and conclusions (1) that he drove to the parking lot while intoxicated, (2) that the police saw 13 empty beer cans in the vehicle, and (3) that the defendant had intended to drive away from the parking lot; the operation of a vehicle can be established if there is evidence from which the trial judge can infer a defendant’s operation of or intention to move the vehicle.


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