NEW JERSEY LAWYER

DAILY BRIEFING      07/19/2005


News Briefs

NJ HIGH COURT TO REVIEW PROTECTIONS FOR THOSE WHO LEASE CARS
The New Jersey Supreme Court has decided to review a case in which the Appellate Division ruled that someone who leases a car, just like someone who buys one, is entitled to protection under the federal Magnuson-Moss Act. The case is Ryan v. American Honda Motor Corp. The federal law requires a leasing company that issues a written warranty to clearly disclose its terms, provide free repairs within a reasonable time, replace the car or provide a refund. In the absence of a written warranty, one is implied. The appeals court said, “It is unlikely that the auto-leasing market would have developed as it has if prospective lessees were denied their right to enforce the manufacturers’ new-car warranties.” 7-18-05

SEEMINGLY LONG-SHOT SUIT ATTACKS JUDGE’S CONFIRMATION PROCESS
Opponents of the Superior Court appointment of Marianne Espinosa have gone to court to say she should not be allowed to serve because the Senate Judiciary Committee violated an upper house rule by taking up her nomination without five days’ notice of the panel’s June 27 hearing. She subsequently was confirmed by the full Senate. Princeton attorney David Perry Davis filed the action in Mercer County. The biggest apparent hurdle with the suit is that courts generally leave the legislature alone when it comes to rules governing legislative procedures. This would be Espinosa’s second stint as a judge; this time she’s been assigned to Union County. Her first term in Morris County ended with her not being confirmed for tenure after her home-county senator blocked her nomination. That action cost John H. Dorsey his seat. Espinosa had angered fathers rights groups. 7-18-05

WISCONSIN COURT DENTS MED-MAL CAP LAW
The Wisconsin Supreme Court has struck down that state’s 10-year-old cap on pain-and-suffering awards in medical malpractice cases. In Ferdon v. Wisconsin Patients Compensation Fund, the court overturned two lower court rulings that supported the state’s $350,000 cap on non-economic damages. In a 4-3 ruling, the court declared the cap “unreasonable and arbitrary.” The majority did point out, however, that they weren’t striking down all malpractice caps, noting the court recently supported a cap on non-economic damages in a wrongful death case. In Ferdon, a jury had awarded Matthew Ferdon, now 9, $700,000 in non-economic damages for permanent injury to his arm during birth. The managers of the medical malpractice award fund appealed to have it reduced to $410,000, reflecting the inflation adjustment built into the cap law. 7-18-05

LAW FIRM MARKETERS QUITE THE HOT COMMODITY
Law firms’ demand for marketing talent is surging and salaries for those non-lawyers rising, according to professional marketers and employment recruiters. “A lot of firms are competing for top talent, even if the person is coming from another industry,” said William Crooks, a recruiter with Priority Search International in Orlando, Fla. His remarks came during a panel discussion at a conference sponsored by the Chicago-based Legal Marketing Association. Michele Golden of Golden Marketing in St. Louis noted the spread between what law and accounting firms pay marketing professionals has widened since 2000, when law firms paid an average $30,000. Today, the average salary for law firm marketers approaches $75,000; marketing chiefs average $225,208 and directors $111,696, according to preliminary results of a survey conducted by the association. 7-18-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, JULY 18, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, JULY 18, 2005.

THE SUPREME COURT has announced that it will release opinions in STATE v. ARTHUR, A-71, and IN RE MORELL, D-23, on July 19, 2005. The issue on appeal in Arthur addresses whether the defendant established that he had received ineffective assistance from his trial counsel based on his trial counsel’s failure to interview and call potential defense witnesses. Morell is an attorney disciplinary action.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, JULY 18, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ROIG-VEGA v. JACKSON
Appellate Division, A-1412-04T2, July 18, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18247

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court granted summary judgment because the plaintiff had presented objective evidence of a permanent injury but had not presented evidence of a serious impact on her life; since the plaintiff’s appeal was filed, the New Jersey Supreme Court in DiProspero v. Penn held that AICRA does not contain a serious-life-impact standard; the Appellate Division in Beltran v. DeLima and the related case of Pungitore v. Brown held that DiProspero applies to all cases pending appeal or disposition in the trial court; based on the decisions in DiProspero, Beltran, and Pungitore, the Appellate Division in this case was “constrained” to reverse and remand for trial.

INSURANCE
FERRANTE v. NEW JERSEY MANUFACTURERS INSURANCE CO.
Appellate Division, A-854-04T5, July 18, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18248

Order directing the defendant insurer to submit to arbitration of the plaintiff’s underinsured motorist coverage claim reversed; the plaintiff did not request arbitration until three months after the six-year statute of limitations had expired and did not file an action to compel arbitration until more than two and one-half years after the limitations period had expired; the Law Division ordered the insurer to submit to arbitration because the plaintiff did not sit on her rights, because there was no chance of prejudice, and because it would be unfair to foreclose the plaintiff’s claim; however, there was no basis to uphold the Law Division’s decision because it specifically found that the insurer had not engaged in deceptive conduct that would have lulled the plaintiff’s counsel into a “false sense of security.”

PREMISES LIABILITY
DiMATTIES v. INCOLLINGO’S MARKET, INC.
Appellate Division, A-170-04T3, July 18, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18249

Summary judgment for the defendant market in a slip-and-fall action affirmed; the plaintiff customer slipped on liquid detergent that apparently had leaked out of a bottle that was part of a floor display; the trial court dismissed the action after finding no proof of notice and no permissible inference that the spill was the result of the market’s actions; the facts did not excuse the plaintiff from establishing that the market had actual or constructive notice of the condition; the Wollerman v. Grand Union Stores mode-of-operation exception to the notice requirement did not govern this situation because (1) there was no reason to believe that the market’s manner of displaying the detergent was likely to cause a dangerous condition and (2) there was no reason to infer that, in this case, a market employee had cut a container and caused the spill.

PERSONAL INJURY
DILEMMO-TAMMARO v. DEMPSEY
Appellate Division, A-4158-03T3, July 18, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18251

Summary judgment for the defendant horse owner, the defendant riding instructor, the defendant stable, and the defendant stable owner in an action arising from the plaintiff’s fall from a horse during a riding lesson affirmed; contrary to the plaintiff’s arguments on appeal, (1) the trial court did not err by concluding that the stable and the stable owner were entitled to summary judgment due to the plaintiff’s failure to file the report required by N.J.S.A. 5:15-6 as a “precondition” to a lawsuit based on an injury sustained by a participant in “equine animal activity” due to the negligence of the “operator” of a premises that is used for such activity, (2) the evidence did not raise a genuine issue of material fact as to whether the horse owner breached a duty to warn the plaintiff about the horse’s history and temperament, and (3) the waiver that the plaintiff executed for the instructor was not invalid under Henningsen v. Bloomfield Motors, Inc.

DOMESTIC VIOLENCE
BOERRIGTER v. ANEYJI
Appellate Division, A-546-04T3, July 18, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18250

Final domestic violence restraining order against the defendant boyfriend affirmed; after the defendant was charged with a simple assault on the plaintiff girlfriend, she filed a domestic violence complaint; the defendant filed a domestic violence complaint against the plaintiff 12 days later; the trial court found the plaintiff more credible and rejected the defendant’s complaint as a defense tactic; the evidence “amply” supported the trial court’s findings; the defendant’s contentions — that the trial court erred by reviewing a report from the Division of Youth and Family Services about the plaintiff’s allegations of abuse against the defendant before his daughter testified and by preventing the plaintiff from being cross-examined about the report — were moot because he had been permitted to call his daughter as a witness; there was “no logical connection” between the DYFS report and this case.

NEGLIGENCE
CAPACCIO v. NIMSZ
Appellate Division, A-229-04T2, July 15, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18244

Dismissal of the plaintiff Garden State Parkway toll collector’s cause of action after her case was presented to the jury affirmed; the toll collector was struck by a boat that the defendant driver was towing on a trailer; the toll collector did not present evidence (1) about the driver’s speed or how it could have caused the accident, (2) that the driver’s truck drove onto the tollbooth platform, or (3) that the trailer or the boat went beyond the permissible lane of travel; the toll collector did not call the driver to testify; the trial court properly granted the driver’s motion to dismiss under Rule 4:37-2(b) because the toll collector failed to present evidence that the driver was negligent.

WORKERS’ COMPENSATION
WALLACE v. SUMMERHILL NURSING HOME
Appellate Division, A-6419-03T1, July 15, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18245

Division of Workers’ Compensation order that enforced a settlement agreement reversed; pending trial of the petitioner employee’s claim that arose from a leg injury, the respondent employer’s workers’ compensation carrier paid him $8,784 in voluntary permanent partial disability payments; after trial began, the parties settled, and the agreement provided that the employer was to pay $7,938 for 17.5 percent partial permanent disability; the employee moved to compel payment, and the employer cross-moved to vacate because its attorney had learned, after the agreement was entered, that the petitioner already had received voluntary payments that exceeded the settlement amount; there were grounds to set aside the agreement based on mutual mistake; the “guiding principle” was fairness.

PUBLIC EMPLOYEES
IN RE BERGEN COUNTY LAYOFF
Appellate Division, A-5281-03T5, July 15, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18246

Final decision of the Merit System Board that upheld the elimination of the position of Assistant Tax Administrator for Bergen County affirmed; the position was one of 200 that were eliminated by the newly elected County Executive, who was a Democrat, as part of an effort to reduce a budget deficit; the petitioner former Assistant Tax Administrator was a former Democrat who no longer contributed to the Democratic Party; there was no evidence to support the petitioner’s claim that his position was eliminated in retaliation for his political status and was not legitimately based on budget considerations; the Board had rejected the petitioner’s claim that he was not fairly considered for the position of “Confidential Assistant” to the County Tax Administrator; the Board’s findings were “amply supported” by the evidence.

DRUNK DRIVING
STATE v. DeGRAW
Appellate Division, A-6389-03T1, July 15, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18243

Conviction of driving while under the influence of alcohol affirmed but remanded for the imposition of the mandatory fine of no less than $250 under N.J.S.A. 39:4-50; the defendant was arrested on March 22, 2002, and he was convicted in the Municipal Court on November 5, 2003; the delay of 593 days from the defendant’s arrest to the Municipal Court’s decision was excessive on its face and violated the 60-day time period for the disposition of DWI cases that was established by the Administrative Office of the Courts in Directive #1-84; however, the delay was caused “in large part” by the unavailability of the defense counsel, and there was no legal basis to set aside the conviction; the Law Division order entered after a trial de novo incorrectly omitted the mandatory fine.


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