NEW JERSEY LAWYER

DAILY BRIEFING      06/15/2005


News Briefs

$15.9 MILLION AUTO-CRASH INJURY AWARD UPHELD
The Appellate Division has upheld a $15.9 million jury award to a man and his family for brain and other serious injuries he sustained in a 1997 two-car crash in Chester Township. However the unpublished ruling in Ziemer v. Nissan North America stipulates that the case be returned to Morris County Superior Court for a determination on how liability should be apportioned between the two defendants — automaker Nissan and the driver of the other car. The jury found that Ziemer’s car — a 1995 Nissan Maxima — had a defective design that led to his enhanced or aggravated brain injuries. (A full text of Ziemer, Order No. 18094, is available from the NJL Facts-on-Call Service, 800-670-3370.) 6-14-05

AG TO HOST FORUM ON EX-FELONS’ VOTING RIGHTS
Under fire from the New Jersey chapter of the American Civil Liberties Union over alleged disparities in how counties register ex-convicts to vote, the Attorney General’s Office will host an “Ex-Felon Voting Rights Forum” Friday at the College of New Jersey in Ewing. Last month the AG’s office announced plans to revise its communications with county election offices in the wake of ACLU claims that several counties “illegally” demand ex-offenders provide proofs of release to register. Friday’s forum, from 9:30 a.m. to noon at the college’s Music Auditorium, will include members of the Department of Corrections, New Jersey Institute for Social Justice and county election officials. 6-14-05

GUBERNATORIAL POLITICS: WHERE ARE ALL THE LAWYERS?
It may have gone unnoticed but last week’s Democratic and Republican gubernatorial primaries amounted to a shutout for New Jersey’s legal profession. It marked the first time in 20 years that neither major party will have a candidate who’s a lawyer running for governor. The last time that happened was in 1985 when Thomas H. Kean won re-election over Democrat Peter Shapiro. 6-14-05

WIDE DIFFERENCES IN PARALEGAL SALARIES
As they become specialists, paralegals are earning a lot more money than their generalist counterparts. While the average salary for paralegals is $49,677, those with specialized training average $88,017; that average includes more than $100,000 for some corporate and environmental law specialists, according to a survey of firms and corporate law departments conducted by the International Paralegal Management Association and Altman-Weil. “What was once a relatively flat system has become more stratified as law firms and law departments get bigger and more sophisticated,” said Altman-Weil principal James Wilber. 6-14-05

MOLD VICTIM GETS $925,000 JURY AWARD
Mold exposure, a growing area of litigation in New Jersey and elsewhere, jumped to the forefront in personal injury claims in Michigan as a Wayne County Circuit Court jury awarded $925,000 to a woman who developed asthma from mold in her apartment. In a case that could set standards for landlords’ responsiveness to mold maintenance, Esmeralda Mahaffy convinced the jury the mold grew after her landlord repeatedly ignored her requests to repair water seepage from neighbors’ apartments. 6-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JUNE 14, 2005:
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JUNE 14, 2005:

INSURANCE
DiPROSPERO v. PENN
New Jersey Supreme Court, A-66, June 14, 2005. (46 pages). Facts-on-Call Order No. 92506

The plain language of N.J.S.A. 39:6A-8a does not contain a serious-life-impact stan-dard, and nothing in the preamble to the Automobile Insurance Cost Reduction Act, its legislative history, or its policy objectives suggests that the Legislature intended the New Jersey Supreme Court to write in that standard. Justice Rivera-Soto concurred. This is a companion case to Serrano v. Serrano.

SERRANO v. SERRANO
New Jersey Supreme Court, A-99, June 14, 2005. (20 pages). Facts-on-Call Order No. 93507

Because the Legislature considered the injuries enumerated in N.J.S.A. 39:6A-8a to be serious by definition, a plaintiff must show only that he suffered an injury described in the limitation on lawsuit threshold under §39:6A-8a to recover noneconomic dam-ages. Justice Rivera-Soto concurred. This is a companion case to DiProspero v. Penn.

 
THE SUPREME COURT has announced that it will release opinions in TIMES OF TRENTON PUBLISHING CORP. v. LAFAYETTE YARD COMMUNITY DEVELOPMENT CORP., A-22, and IN RE CIVIL COMMITMENT OF E.D., A-62, on June 15, 2005. The issue on appeal in Times of Trenton Publishing Corp. addresses whether the defendant, which was a private entity designated by the City of Trenton to redevelop City land, was a public body within the meaning of the Open Public Meet-ings Act. The issue on appeal in E.D. addresses whether it was appropriate for the trial court to recommit E.D. under the Sexually Violent Predator Act for violating condi-tions of his discharge to a residential facility where the trial court’s prior order condi-tionally discharging E.D. was based on a finding that the State had failed to establish that he was sexually violent predator.


APPROVED FOR PUBLICATION
CONSTITUTIONAL LAW
LEWIS v. HARRIS
Appellate Division, A-2244-03T5, approved for publication June 14, 2005. (77 pages). Facts-on-Call Order No. 92508

The statutory limitation of the institution of marriage to members of the opposite sex does not violate the New Jersey Constitution. Judge Parrillo concurred, and Judge Collester dissented.

LAND USE
BRAY v. CAPE MAY CITY ZONING BOARD OF ADJUSTMENT
Appellate Division, A-4269-03T5, approved for publication June 14, 2005. (12 pages). Facts-on-Call Order No. 92509

The doctrine of judicial estoppel bars a property owner from claiming that a facility for which it obtained site plan approval as a “tourist/guest house” is actually a “hotel” in which the property owner may operate a restaurant as an accessory use.

ATTORNEYS
GOLDBERGER, SELIGSOHN & SHINROD, P.A. v. BAUMGARTEN
Appellate Division, A-5927-03T1, approved for publication June 14, 2005. (14 pages). Facts-on-Call Order No. 92510

Where attorneys have filed separate lawsuits, an agreement by the attorneys to work together, share expenses, and divide fees does not contravene Rules of Professional Conduct 7.2(c) and 7.3(d) because the understanding does not involve a referral for which payment is proscribed. However, the agreement in this case violated RPC 1.5(e) because the division of fees was not in proportion to the services performed by the attorneys and was not in writing and because the clients did not consent. Although the plaintiff law firm could not recover on its breach-of-contract claim, it had presented sufficient evidence to raise a genuine issue of material fact as to whether it was enti-tled to relief on a quantum meruit theory.

ESTATES AND TRUSTS
MARTE v. OLIVERAS
Appellate Division, A-4383-03T5, approved for publication June 14, 2005. (21 pages). Facts-on-Call Order No. 92511

In an action by the plaintiff ex-husband against the defendant ex-wife in connection with the defendant’s alleged self-dealing while serving as the guardian for the parties’ daughter, who was physically disabled, the issues that dealt with the alleged self-dealing and with whether the daughter had ratified or confirmed the defendant’s ac-tions upon reaching majority presented material questions of fact that precluded summary judgment. Furthermore, the trial court misapplied the time bar under Rule 4:85-1 because the plaintiff was not seeking review of the grant of the guardianship or the issuance of letters testamentary but of transactions that were subsequently under-taken by the defendant.

EDUCATION
IN RE MILITARY SERVICE CREDIT FOR STATE TEACHERS, DEPARTMENT OF CORRECTIONS, DEPARTMENT OF HUMAN SERVICES AND JUVENILE JUSTICE COMMISSION
Appellate Division, A-4343-03T2, approved for publication June 14, 2005. (17 pages). Facts-on-Call Order No. 92512

Teachers employed by the State of New Jersey in its departments and agencies are not entitled to military service credit for compensation purposes pursuant to N.J.S.A. 18A:29-11 because the statute grants such credits only to teachers employed by local school districts, regional boards of education, or county vocational schools.

SENTENCING
STATE v. JORDAN
Appellate Division, A-5463-02T4, approved for publication June 14, 2005. (10 pages). Facts-on-Call Order No. 92513

A prior conviction for second-degree robbery cannot serve as one of the two required predicate offenses or “strikes” for imposition of sentence under N.J.S.A. 2C:43-7.1a, which is the part of the Persistent Offender Accountability Act that is popularly known as the “Three Strikes and You’re In” Law.

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
YOUNT v. COUNTRY CLUB VILLAS
Appellate Division, A-6821-02T1, June 14, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18095

Judgment for the defendant owners of a condominium complex in a personal injury action and denial of the plaintiff’s motion for a directed verdict or for a new trial reversed and remanded for a new trial; the plaintiff realtor, who was on the premises to show a unit to a potential renter, was injured when she fell on an unmarked handicap access ramp that led from the sidewalk to the parking lot; in light of the parties’ contentions, the defendants’ concessions, and the evidence presented at trial, the trial court erred by instructing the jury to condition negligence on a finding of a violation of the New Jersey Uniform Construction Code instead of predicating liability on a determination of whether the ramp was an unreasonably dangerous or hazardous condition.

INSURANCE
DAMESQUITA v. STATE FARM INSURANCE CO.
Appellate Division, A-3551-03T2, June 14, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18096

Summary judgment for the defendant insurers of commercial property and personal contents owned by the plaintiff husband and wife affirmed substantially for the reasons stated by the Law Division; after a fire destroyed the building and its contents, the insurers refused to pay the plaintiffs’ claims due to the husband’s misrepresentations about his whereabouts before the fire was discovered; contrary to the plaintiffs’ arguments on appeal, the trial court correctly concluded that a reasonable finder of fact could not find on the basis of the record that the husband had “promptly and seasonably corrected” his untrue statement where the husband had maintained for eight weeks that he was home when the fire stared and where he recanted only when told that an eyewitness placed him at the scene shortly before the fire started.

VERBAL THRESHOLD
AIDEE v. FEZZA
Appellate Division, A-7010-03T5 and A-971-04T5, June 14, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18097

Summary judgment for the defendants because the plaintiffs failed to satisfy the requirements of the verbal threshold affirmed; the plaintiffs, who were Pennsylvania residents, were injured in an automobile accident in New Jersey, their vehicle was insured by a Pennsylvania insurer that was authorized to do business in New Jersey, and the plaintiff driver had selected the limited tort option; the Appellate Division rejected the plaintiffs’ assertions that, as a matter of law, they should not be subject to the verbal threshold because the Pennsylvania insurer was not authorized to do business in New Jersey and because the policy, which was issued in Pennsylvania, was not subject to New Jersey’s deemer statute, N.J.S.A. 17:28-1.4.

HUSBAND AND WIFE
MANNE v. MANNE
Appellate Division, A-6769-03T1, June 14, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18098

Amended dual judgment of divorce affirmed; contrary to the plaintiff ex-husband’s arguments on appeal, (1) the Family Part had “painstakingly evaluated” each of the alimony factors under N.J.S.A. 2A:34-23(b) and the equitable distribution factors under N.J.S.A. 2A:34-23.1 and had made detailed findings of fact that were amply sup-ported by the record and (2) there was no evidence of bias or partiality in the Family Part’s discretionary determinations or any lack of fairness in the way in which the court dealt with the defendant during the trial process.


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