NEW JERSEY LAWYER

DAILY BRIEFING      06/22/2005


News Briefs

GOP BILL WOULD OVERTURN VERBAL-THRESHOLD RULING
Republican legislators wasted little time in seeking to overturn last week’s New Jersey Supreme Court decision that said the Automobile Insurance Cost Reduction Act of 1998 (AICRA) did not require a permanent injury to have a “serious life impact” in order for an injured motorist who chose the limitation-on-lawsuit insurance option to sue for pain-and-suffering damages. Assemblymen Christopher “Kip” Bateman (R-Somerset) and Guy R. Gregg (R-Morris) introduced A-4227 that would change the ruling in DiProspero v. Penn, a decision sharply criticized by the insurance industry. Bateman said, “At a time when auto insurers are just starting to take a new look at New Jersey, this ruling threatens to increase insurance rates for motorists and scare new companies away.” 6-21-05

VALENTIN TABBED AS MONMOUTH PROSECUTOR
Acting Gov. Richard J. Codey has made official the nomination of assistant U.S. Attorney Luis A. Valentin, 39, as the next Monmouth County prosecutor. Valentin’s name was mentioned several weeks ago as a probable replacement for John Kaye, the state’s longest-serving prosecutor whose term expires next Tuesday. At his current post, Valentin has specialized in public corruption cases. Kaye originally was appointed by Gov. Thomas Kean in 1983. Valentin’s boss, U.S. Attorney Christopher J. Christie, cut short an investigation into official corruption in Monmouth County, reportedly due to interference from Kaye’s staff. Valentin’s nomination now goes to the Senate Judiciary Committee. 6-21-05

WOMAN GETS $1.9 MILLION SETTLEMENT IN SLIP-AND-FALL CASE
Five defendants will pay a total $1,975,000 to an Ocean County couple in a suit involving an ice machine in an office cafeteria. Elaine and Michael Kearney of Pine Beach blamed the defendants for allowing the machine to leak for six months before Mrs. Kearney slipped on a puddle from the machine and fell in June 2001. She required extensive back surgery and continues pain treatment. The Kearneys contended that management and contractors should have fixed the machine or removed it, or at least posted warnings. Neal L. Schonhaut and Richard Grungo Jr. of the Princeton office of Archer & Greiner represented the Kearneys. The defendants and their attorneys are: Eurest Dining Services, Joseph T. Murphy Jr. of Devlin and Gerard in Westmont; Aetna Services, Robert G. Devine of White & Williams in Westmont; Tri-Maintenance & Contractors, Timothy Holman of the law offices of Jonathan R. Westpy in East Windsor; Kitchen Tek, Michael J. McCaffrey of Purcell Ries Shannon Mulcahy & O’Neill in Bedminster; and Grubb & Ellis Management Service, Eric Christopher Landman of Sherman & Viscomi in Somerset. 6-21-05

ROSELAND FIRM CLOSES ON HUGE REAL-ESTATE DEAL
WolfBlock Brach Eichler has closed on transactions totaling $250 million as part of Internal Revenue Code Section 1031 exchanges on behalf of The Solomon Organization of Mountainside. Under Section 1031, those who sell property and use the proceeds to buy other property within 180 days can defer capital gains taxes. Those who eventually sell the new property at a profit will pay tax on it. In the meantime, they can trade property as many times as they choose. Thomas E. Cohn represented The Solomon Organization, which sold properties in Pennsylvania and New Jersey and purchased others in four counties in the Albany area. Proceeds from the sales of the Pennsylvania and New Jersey properties, combined with a $155 million mortgage and new money from investors, were used to complete the purchase of the New York properties. 6-21-05

STATE GIVING TERRORIST-FIGHTING TECHNOLOGY TO ALL POLICE
The Attorney General’s Office is giving the New Jersey State Police and local police departments access to a computerized database with defined details about known and suspected felons worldwide. The system has been used by State Police intelligence specialists since 2001. After the Sept. 11 terrorist attacks, it was enhanced to include an interconnection with the FBI and access to some of its information on terrorist activity. “No other state has initiated a statewide intelligence-sharing initiative that includes all state police as well as federal agencies,” said State Police Capt. Steven Serrao, its assistant director of operations and counter-terrorism. 6-21-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JUNE 21, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JUNE 21, 2005:

JURY SELECTION
STATE v. W.A.
New Jersey Supreme Court, A-68, June 21, 2005. (39 pages). Facts-on-Call Order No. 92530

A defendant’s right under Rule 3:16 to be present at a voir dire sidebar conference upon request is not absolute. When security issues are implicated, a court may secure a defendant’s meaningful participation in voir dire through technology, the modified struck-jury system, or, as a last resort, the “lawyer-shuttle” process. A defendant’s exclusion from a sidebar conference after he requests to be present and in the absence of a substituted process does not automatically warrant reversal. Justice Rivera-Soto concurred in part and dissented in part.

THE SUPREME COURT has announced that it will release an opinion in YURICK v. STATE OF NEW JERSEY, A-34/35, on June 22, 2005. The issue on appeal in Yurick addresses whether a county prosecutor is an “employee” subject to the protections of the Conscientious Employee Protection Act.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, JUNE 21, 2005.

NOT APPROVED FOR PUBLICATION
INSURANCE
MERCHANTS INSURANCE GROUP v. STATE FARM INDEMNITY CO.
Appellate Division, A-146-04T5, June 21, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18128

Order denying the plaintiff insurer’s application to compel the defendant insurer to have its insured submit to an independent medical examination affirmed; the insured was driving her vehicle when it was struck by a vehicle that was insured by the plaintiff; the defendant paid its insured’s personal injury protection benefits, and the plaintiff reimbursed the defendant for those benefits pursuant to N.J.S.A. 39:6A-9.1; the plaintiff then sought an IME, the request was denied, and the plaintiff then filed this action to compel the defendant to have its insured submit to an IME; the trial court properly concluded that this case was controlled by Universal Underwriters Insurance Co. v. Phillips, which held that the term “insurer” under N.J.S.A. 39:6A-13(d) “refers only to an insurer that has been or may be called upon to pay PIP benefits or medical expenses benefits directly to an insured party”; because the plaintiff did not and would not be called on to pay PIP benefits directly to the defendant’s insured, the plaintiff could not maintain its action to compel the insured’s IME.

INSURANCE
WOOTEN v. CONNECTICUT INDEMNITY CO.
Appellate Division, A-5154-02T3, June 21, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18129

Summary judgment for the defendant insurers and denial of the plaintiff’s motion for reconsideration reversed; the plaintiff was involved in an accident with a tractor; the plaintiff initiated a personal injury suit against the tractor’s driver, the tractor’s lessee, the tractor’s lessor, and the repair shop that worked on the tractor; the driver was employed by the repair shop; the driver and the repair shop defaulted; at a Rule 4:21A arbitration, the arbitrator found that the driver and the repair shop were 100 percent liable and that there was no agency relationship with the other two defendants; the arbitration award was confirmed, and the claims against the lessor and the lessee were dismissed; the plaintiff then brought a coverage action against the insurers of the lessor and the lessee; the trial court granted summary judgment because the plaintiff’s claim against the insurers was collaterally estopped by the arbitrator’s award; however, collateral estoppel did not apply because the issue at arbitration was not identical to the issue in the coverage action; the question in the coverage action was not agency but was whether coverage was afforded to the driver under the omnibus clause in the insurers’ policies.

NEGLIGENCE
ANALUISA v. RICHARDS
Appellate Division, A-6669-03T1, June 21, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18131

Summary judgment dismissing the defendant general contractor from this personal injury action reversed and the complaint against him reinstated; the plaintiff, who was an employee of the defendant asbestos removal contractor, was injured when he fell from a ladder while on the job; the general contractor, who was hired to demolish a building, had subcontracted the asbestos removal work to the plaintiff’s employer; the plaintiff correctly argued on appeal that, under the circumstances of this case, the general contactor owed him a duty of care because obligations imposed on general contractors by the OSHA regulations support a tort claim under state law; the record could support an inference that the general contractor breached his duty by failing to oversee the asbestos removal work and by failing to inquire about the safety procedures used by the plaintiff’s employer.

CONSUMER PROTECTION
CORDELL v. CURIALLE
Appellate Division, A-1333-04T5, June 21, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18127

Judgment awarding the plaintiff customer $1,049.40 in treble damages for the defendant lawn service providers’ violation of the Consumer Fraud Act, $1,888.20 in contract damages, and $1,000 in attorney’s fees affirmed but modified to award the plaintiff $5,247 for the CFA violation and $489 in contract damages and remanded for reconsideration of attorney’s fees and correction of the judgment; the plaintiff contracted with the defendants for lawn services and agreed to pay in two installments of $1,749, but the defendants billed the plaintiff’s credit card for one installment of $3,498; the plaintiff unsuccessfully attempted to recover a refund and cancelled the contract after receiving services with a contract value of $1,260; the full amount of the unauthorized charge — $1,749 — was the “ascertainable loss” that was caused by a violation of the CFA and was therefore compensable by treble damages; the plaintiff’s contract damages were the difference between the $1,749 authorized installment and the value of the services he received.

HUSBAND AND WIFE
OSHIYEMI v. OSHIYEMI
Appellate Division, A-2989-03T3, June 21, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18130

Order denying the defendant ex-wife’s motion to reopen a divorce judgment for reconsideration of the equitable distribution of the marital residence reversed and remanded; at the case management conference, which the defendant did not attend, the trial court accepted the plaintiff ex-husband’s assertions that notice of the conference was sent to the defendant and that he had paid part of the deposit on the marital residence and had performed repairs and renovations; in her motion, the defendant claimed that the divorce judgment was the product of fraud or misrepresentation; the trial court’s “cavalier attitude” toward the defendant’s serious allegations was “completely unacceptable,” and the trial court “abdicated” its judicial role by refusing to deal with the merits of the defendant’s factual recitation in her certification; the trial court also accepted without proof the plaintiff’s assertions about his contributions to the marital property and ignored the defendant’s assertion that she received no notice of the divorce trial; on remand, this matter is to be transferred to another judge.

DRUNK DRIVING
STATE v. REILLY
Appellate Division, A-1112-04T5, June 21, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18132

Conviction of driving while intoxicated affirmed; contrary to the defendant’s argument on appeal, there was sufficient evidence to support the Law Division’s conclusion that the arresting officer had probable cause for the arrest, even without considering the results of the Horizontal Gaze Nystagmus test, (1) where the Municipal Court found that the officer was credible, (2) where the defendant was driving his vehicle 15 m.p.h. below the posted limit, (3) where the officer detected an odor of alcohol that emanated from the defendant’s breath and the vehicle, (4) where the defendant admitted that he had had “a few beers,” and (5) where the officer observed that the defendant swayed, slurred his speech, and had a flushed face and droopy eyes.

LAND USE
BOROUGH OF PARAMUS v. PLANNING BOARD OF THE BOROUGH OF PARAMUS
Appellate Division, A-6198-03T3, June 20, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18126

Final judgment affirming the defendant Planning Board’s approval of the defendant limited partnership’s application for conditional site plan approval and related variance relief to expand the Garden State Plaza shopping mall affirmed substantially for the reasons stated by the Law Division; on the remaining unresolved issue on appeal, the ordinance that the plaintiff Borough adopted post-judgment to clarify the zoning restrictions on the mall expansion should not be given determinative weight in this case; the Law Division already had correctly ruled in a related case that the ordinance “is inapplicable to the variance relief and amended site plan approval” granted to the limited partnership by the Planning Board.

NEGLIGENCE
ROGERS v. IACONO
Appellate Division, A-4040-03T5, June 20, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18125

Jury verdict in an automobile negligence action finding that the defendant driver’s negligence was not a proximate cause of either the accident or the plaintiff driver’s injuries and denial of the plaintiff’s motion for a new trial affirmed; even though all of the medical experts agreed that the plaintiff had sustained a temporary shoulder injury, the verdict was not a miscarriage of justice under the law (1) because there was substantial evidence to support the contention that the plaintiff’s shoulder condition was pre-existing and degenerative, (2) because the jury was entitled to discredit the evidence that the plaintiff’s May 2000 shoulder problems had resolved before the August 2000 accident, (3) because the plaintiff’s wife did not corroborate his complaints of a shoulder injury immediately after the accident, and (4) because it was unclear that the accident was of the sort that would have caused a shoulder injury.


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