NEW JERSEY LAWYER

DAILY BRIEFING      07/11/2005


News Briefs

ESSEX JURY AWARDS $32.36 MILLION IN INDUSTRIAL FIRE SUIT
In one of the largest awards ever in New Jersey, an Essex County jury awarded $32.36 million to O’Brien Co-Generation, whose Newark production plant was severely damaged in a 1992 fire that spread because of a faultily designed sprinkler system. Michael J. Izzo Jr. of Cozen O’Connor in Cherry Hill, plaintiffs’ attorney in O’Brien Co-Generation v. Automatic Sprinkler Corp., said the percentage to be paid by Automatic, which designed the sprinkler, is undetermined. It could range from 55 percent to 100 percent, based on how a settlement affects two co-defendants, the system’s installer and the plant’s operator when the fire occurred, who settled prior to trial. Martin G. Picillo of Nutley’s Picillo Caruso O’Toole defended in the three-week trial before Judge Jared D. Honigfeld. Automatic is insured by American International Group. 7-8-05

MED-MAL BAILOUT LAW LOADED WITH PROBLEMS
The supposed legislative lifesaver for physicians facing skyrocketing medical malpractice insurance premiums is actually a ship full of holes, based on a review by New Jersey Lawyer. While the state’s medical malpractice bailout law, P.L. 2004 c. 17, provides some financial relief for doctors threatening to leave the state, progress has been thwarted by bureaucratic drag and a high number of lawyers and medical personnel who aren’t paying the state-imposed $75 bailout fee. Further, it’s now clear the measure will generate less revenue than projected and that despite urgency in passing the legislation last year, physicians had to wait 13 months before they could apply for a subsidy. For a full story, see the July 11 New Jersey Lawyer. 7-8-05

JUDGE INVALIDATES A.C. SETTLEMENT WITH MAYOR, COUNCILMAN
The Atlantic City Council is faced with deciding whether to ask for a new trial on a touchy issue the city settled out of court three years ago, now that Atlantic County Judge Valerie H. Armstrong invalidated the $850,000 settlement. Ruling in a suit by the state Office of Government Integrity, Armstrong found conflicts of interest in the settlement reached with Mayor Lorenzo Langford and Councilman William Marsh. The matter dates back to 1999 when Langford, then a councilman, and Marsh, not yet on the governing body, sued in federal court alleging they were fired from their Board of Education jobs in retaliation for opposing then-Mayor James Whelan. The city settled in 2002 shortly after Langford became mayor. The council also may opt to renegotiate or seek to recover the settlement, which was reportedly put in escrow after the state challenge. 7-8-05

CELL-PHONE VIRUS LURKING
Lawyers and judges accustomed to using cell phones and Blackberries had better beware: Experts believe a virus that could cripple mobile electronic devices is sure to be developed, though it may take until 2007, according to technology industry analyst, Gartner, Inc. That’s how long it will take for use of mobile devices and electronic messaging to reach the scale required for viruses to be effective, according to Gartner, based in Stamford, Conn. The word is that while users should brace for that potential, they shouldn’t necessarily rush to anti-virus software now. 7-8-05

WHEN SMOKE GETS IN YOUR EYES, SUE
While decades ago, a popular song romanticized the thought of smoke getting in your eyes, smoking today is increasingly litigious, not romantic. In one of the latest court rulings in second-hand smoke cases, a Massachusetts state court has upheld a Boston landlord’s eviction of two condominium tenants because of neighbors’ complaints about cigarette smoke seeping from the tenants’ apartment. The defendants in Harwood Capital Corp. v. Carey had argued their lease did not prohibit smoking. 7-8-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JULY 8, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 8, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JULY 11, 2005.


APPROVED FOR PUBLICATION
MEDICAL MALPRACTICE
WEBB v. WITT
Appellate Division, A-3815-03T1, approved for publication July 8, 2005. (25 pages). Facts-on-Call Order No. 92569

A physician or health practitioner has no right to exercise control over a settlement between a medical malpractice insurer and a claimant or to demand an apportionment of his or her responsibility before the settlement is reported to the National Practitioner Data Bank or the New Jersey Division of Consumer Affairs where the physician or practitioner is afforded coverage by the insurer but has no express contractual right to approve the settlement.

DEFAMATION
WILLIAMS v. KENNEY
Appellate Division, A-4855-03T5, approved for publication July 8, 2005. (31 pages). Facts-on-Call Order No. 92570

In a suit by a newspaper reporter against an attorney and her client that alleged that the attorney had sent a defamatory letter to the reporter’s employer, the absolute litigation privilege did not apply to the letter because the assertions in the letter were not sufficiently related to the client’s underlying Law Against Discrimination action.

LAW AGAINST DISCRIMINATION
J.M.L. v. A.M.P.
Appellate Division, A-4034-03T3, approved for publication July 8, 2005. (13 pages). Facts-on-Call Order No. 92571

In this hostile work environment sexual discrimination case, (1) the defense that the plaintiff 14-year-old employee welcomed or consented to sexual relations with the defendant 41-year-old employer was not available to the employer, the defendant franchise owned by the employer, or the defendant franchisor and (2) the franchisor’s conduct should be evaluated as an aider or abettor.

MENTAL HEALTH
M.X.L. v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES/NEW JERSEY DEPARTMENT OF CORRECTIONS
Appellate Division, A-925-04T2, approved for publication July 8, 2005. (18 pages). Facts-on-Call Order No. 92572

Due process does not require a hearing before a committee under the Sexually Violent Predator Act is placed into the Modified Activities Program, placement in MAP is not a “contested case” that entitles the committee to a hearing under N.J.S.A. 52:14B-9, and residents of the Special Treatment Unit should be entitled to receive the MAP policies and procedures.

NOT APPROVED FOR PUBLICATION
INSURANCE
EUSSE v. MORALES
Appellate Division, A-4645-02T5, July 8, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18203

Final judgment following a jury trial, finding that the plaintiff did not “primarily reside” with her mother and stepfather and therefore was not eligible for underinsured motorist benefits under their policy with the defendant insurer, affirmed; contrary to the plaintiff’s assertion, the defendant’s amendatory endorsement, which provided that the definition of “relative” was being changed, was part of the policy that was in effect at the time of the accident; the plaintiff failed to cite any case law holding that insurance coverage issues must be decided by a judge and not by a jury; the ultimate question regarding coverage was factual and not legal, and the jury’s verdict “clearly” was supported by the evidence; the key issue was properly submitted to the jury with appropriate instructions, and the verdict was supported by the record.

LAW AGAINST DISCRIMINATION
KORSAK v. STATE OF NEW JERSEY, DEPARTMENT OF TRANSPORTATION
Appellate Division, A-5458-03T1, July 8, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18204

Summary judgment for the defendant employer and the defendant co-worker in an action under the Law Against Discrimination for compensatory and exemplary damages from the employer due to alleged sexual harassment by the co-worker affirmed; although the co-worker may have made the workplace “hostile and exceedingly unpleasant,” there was nothing in the record that suggested that his “antipathy” to the plaintiff was because she was female; there was no evidence that the co-worker yelled at the plaintiff because she was female, and his conduct did not “lose its gender neutral character” through repeated use.

LAW AGAINST DISCRIMINATION
FISHER v. COMCAST CABLE CORP.
Appellate Division, A-403-04T1, July 8, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 18202

Summary judgment for the defendant employer in a Law Against Discrimination lawsuit by the plaintiff disabled ex-employee affirmed for reasons other than those expressed by the trial court; the defendant terminated the plaintiff for falsifying her time cards, and it refused to reinstate her even though she attributed her actions to problems she was experiencing after a rape; even if the plaintiff’s supervisors knew that she was suffering from post-traumatic stress disorder, her misconduct was “egregious and possibly criminal,” and she failed to present the requisite expert opinion that her disability had caused her to submit false time cards but otherwise had little or no impact on her job performance; under the circumstances of this case, the disabled plaintiff was not protected by the LAD from termination for violating her employer’s legitimate, long-standing, facially neutral, and nondiscriminatory time-clock policy.

HUSBAND AND WIFE
SCHREIER v. SCHREIER
Appellate Division, A-4251-03T5, July 8, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18201

Order denying the defendant ex-husband’s motion to set aside a divorce judgment and property settlement agreement affirmed; the defendant was not represented by counsel during the divorce proceedings and when the parties signed the PSA, but he asserted that he had read and understood the PSA and that he waived his right to trial on any of the issues; in his motion, the defendant, with the assistance of counsel, argued (1) that the plaintiff ex-wife had told him that he did not need a lawyer for the divorce because they were not getting a “real divorce” and would always be together and (2) that he did not read the PSA until after the divorce and that he then decided that it was unfair; there was no merit to the defendant’s appellate argument that the trial court had erred in its substantive analysis of the motion; sufficient evidence supported the trial court’s findings that the defendant’s motion was actually his “subsequent change of heart” and that there was no support for the allegation that the plaintiff had “forced the result” on the defendant through fraud or deception.

ATTORNEY’S FEES
HUBIS v. CURETON CAPLAN, P.C.
Appellate Division, A-217-04T2, July 7, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18198

Summary judgment for the defendant law firms and the defendant attorneys in a dispute about attorney’s fees affirmed; the plaintiff retained the defendants to represent her in an employment discrimination action under agreements that provided for contingent fees; the employment discrimination action was filed in federal court and resulted in a $1,306,250 settlement, from which the defendants’ fees were to be paid; through a new attorney, the plaintiff sued the defendants in the Law Division, claiming that the allocation of attorney’s fees violated Rule 1:21-7; based on the history of Rule 1:21-7 and its amendments, the Law Division properly concluded that the Rule did not apply to the contingent-fee agreements in this case because the Rule was not intended to apply to statutory employment discrimination claims.

PUBLIC CONTRACTS
IN RE BID SOLICITATION #04-X-35086 TOWER MAINTENANCE
Appellate Division, A-1249-04T3, July 7, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18197

Final determination of the Director of the Division of Purchase and Property that awarded a contract to the appellant’s competitor for equipment, materials, and services related to the maintenance of land mobile and broadcast television towers affirmed; the appellant and the competitor were the only bidders on the contract; after the bids were opened, the Division asked the competitor for clarification about particular items, and the competitor responded; contrary to the appellant’s argument, the competitor’s bid was not nonconforming; the items in question did not constitute material defects in the competitor’s bid, and the competitor’s responses neither changed the substance of its bid nor afforded it a competitive advantage.

UNEMPLOYMENT COMPENSATION
GRAY v. BOARD OF REVIEW
Appellate Division, A-3212-04T2, July 7, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18199

Final decision of the Board of Review that the appellant environmental health specialist was not eligible for unemployment benefits as of August 1, 2004 affirmed; the appellant worked for the respondent City of Newark until he was suspended in June 2003, and he later was terminated; after his August 2003 claim for unemployment benefits was approved, the appellant received unemployment benefits through January 2004; the appellant’s August 2004 claim was properly denied because he had not worked after his suspension and therefore had not earned at least six times his previous weekly benefit or had four weeks of employment; the appellant’s receipt in July 2004 of vacation pay that was earned before June 2003 did not extend his eligibility for unemployment benefits.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. C.T.
Appellate Division, A-2203-04T4, July 7, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18200

Order terminating the defendant father’s parental rights to his 4-year-old son affirmed substantially for the reasons expressed by the Family Part in its “comprehensive and thoughtful” opinion; the Family Part found by clear and convincing evidence (1) that the defendant did not offer himself as a resource for placement, did not visit his son, refused services, and was unable to care for his son due to continued drug use, (2) that the defendant did not take the necessary steps to permit him to care for his son, (3) that the defendant refused the services offered to him by the Division of Youth and Family Services and that DYFS had a reasonable basis to reject the family resources offered by the defendant, and (4) that the termination of the defendant’s parental rights would not do more harm than good to his son because his son was “strongly bonded” to his foster mother and because the defendant could not provide a stable home.


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