NEW JERSEY LAWYER

DAILY BRIEFING      08/01/2005


News Briefs

REGISTRATION OF OUT-OF-STATE SEX OFFENDERS WITHOUT HEARING
In yet another crackdown on sex offenders, prosecutors can forgo a hearing when adding the names of high-risk offenders moving into New Jersey to the state’s sex offender registry. Attorney General Peter C. Harvey tightened Megan’s Law guidelines to let prosecutors go directly to judges for immediate authorization to register out-of-state offenders and hold registration hearings afterward. Harvey took that step because of the risk an offender could strike again before neighbors are warned, said spokesman Paul Loriquet. Residents of Galloway had voiced concern about delays in registering a high-risk offender in their town who was listed on New York State’s registry. 7-29-05

INSURERS LOBBYING TO OVERTURN VERBAL THRESHOLD RULING
It may be the first salvo in an expected lobbying war between the insurance industry and trial lawyers. The state’s largest auto insurer, New Jersey Manufacturers Insurance Co., has launched a mass mailing asking policyholders support legislation that would reimpose restraints on some pain-and-suffering awards eliminated by the New Jersey Supreme Court’s DiProspero v. Penn ruling. The insurer is warning policyholders that the ruling, which says accident victims do not have to prove their injuries had a “significant impact” on their lifestyle to sue for damages, will cause premiums to soar. The bills, A-4227 and S-2705, have been referred to committees and should be the subject of hot debate when lawmakers return. For a full story, see the Aug. 1 New Jersey Lawyer. 7-29-05

SECOND MAGISTRATE JUDGE POSITION OPENS
The federal judiciary is looking to fill two magistrate judge positions in Newark now that Magistrate Judge G. Donald Haneke has announced his retirement, effective Aug. 26. The District Court judiciary also is seeking candidates to replace Magistrate Judge Susan D. Wigenton, who is expected to be nominated soon for a U.S. District Court judgeship by President Bush. Chief U.S. District Judge John W. Bissell said he expects to attract many applicants for the positions, which pay $149,132 per year. Haneke is retiring after 24 years. Application forms are available at the U.S. District Court clerk’s office at the Martin Luther King Jr. Federal Building and U.S. Courthouse, 50 Walnut St., Fourth Floor, Newark N.J. 07102. They must be submitted by Aug. 31 to William T. Walsh, secretary of the Merit Selection Panel, at the same address. 7-29-05

JUDGE ISSUES GAG ORDER BECAUSE PROSECUTOR BLABBED
A Monmouth County judge has barred attorneys from commenting publicly about a criminal case because former County Prosecutor John Kaye said too much publicly when the defendant was indicted. Judge Bette E. Uhrmacher granted a gag order motion she initially denied June 20 because Kaye, in a newspaper story published June 21, made “unsubstantiated statements, conjecture and innuendo” that she said went beyond his office’s press release about the indictment. The judge further said the comments could unfairly affect the trial of the Rev. Joseph W. Hughes, accused of stealing $2 million from a Rumson church. Kaye, who left office June 25, has since been succeeded by former federal prosecutor Luis A. Valentin. 7-29-05

ATLA ATTACKS MED-MAL BILL AWAITING SENATE APPROVAL
As expected, the American Trial Lawyers Association has taken the offensive against a bill that just passed the U.S. House of Representatives that would significantly limit medical malpractice awards and shield drug companies. The bill, also opposed by the American Bar Association, likely faces a stiff battle in the Senate, where it could conceivably be bottled up in a filibuster. HR 5 features a $250,000 cap on non-economic damages and a ban on punitive damages against drug and device makers that can prove they followed all applicable regulations before FDA approval and after the products entered the marketplace. Efforts in New Jersey to get a $250,000 med-mal cap from the state legislature have failed. 7-29-05



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JULY 29, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JULY 29, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, AUGUST 1, 2005.


APPROVED FOR PUBLICATION
ENVIRONMENTAL LAW
IN RE FRESHWATER WETLANDS GENERAL PERMIT NUMBER 16
Appellate Division, A-5124-00T2 and A-1343-02T2, approved for publication July 29, 2005. (22 pages). Facts-on-Call Order No. 92602

Although the Department of Environmental Protection’s delegation of authority to the Pinelands Commission to issue a freshwater wetlands general permit was permissible, the permit in this case did not apply to the affected site and was improperly issued by the Commission.

MEDICAID
H.K. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Appellate Division, A-6041-03T2, approved for publication July 29, 2005. (15 pages). Facts-on-Call Order No. 92603

The Medicaid applicant and his wife transgressed the permissible limits of Medicaid planning when they entered into a divorce from bed and board and agreed, in a consent order that was entered without judicial fact-finding, that the institutionalized applicant’s pension benefits would be paid to the wife as alimony.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ULLERY v. KAIREY
Appellate Division, A-1696-04T5, July 29, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 18307

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; the plaintiff acknowledged that AICRA and DiProspero v. Penn required that he prove that he sustained a qualifying injury as a result of the accident, but he presented no objective medical evidence of a causal connection between the accident and his symptoms; there were no hospital records to show that he visited the emergency room, no medical records to show that he received treatment, no physician’s certification, and no evidence to show “within a reasonable degree of medical probability” that he “sustained an injury” in the accident within the meaning of AICRA.

INSURANCE
DILDAY v. STATE FARM INSURANCE CO.
Appellate Division, A-2047-04T1, July 29, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18305

Order dismissing on statute of limitations grounds a personal injury protection coverage action against the defendant insurer of a vehicle that struck the plaintiff’s child reversed; the accident occurred on May 24, 2002; in November 2003, the defendant acknowledged the appearance of the plaintiff’s attorney in connection with the child’s PIP claim; after exchanging letters, the plaintiff’s attorney confirmed that no one in the plaintiff’s household owned a car on the date of the accident; from April to July 2004, the attorney provided information about the child’s injuries and repeatedly demanded payment of the PIP benefits; the defendant admitted that it had determined as of June 8, 2004 that the child was eligible for PIP benefits; the trial court should have applied equitable tolling to estop the defendant from raising the statute of limitations as an affirmative defense because the defendant had lulled the plaintiff’s attorney into believing that it would honor the PIP claim.

DOMESTIC VIOLENCE
STATE v. STRADER
Appellate Division, A-6384-02T1, July 29, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18308

Conviction of contempt for violating a final domestic violence restraining order affirmed; the FRO expressly prohibited the defendant from contacting or communicating with his daughter or her mother; on the daughter’s first birthday, the mother received a three-page letter from the correctional facility where the defendant was incarcerated that was signed “Daddy”; the defendant “disingenuously” characterized the letter as a “birthday card”; the “unavoidable inference of the letter” was that the defendant “purposely or knowingly” violated the FRO; the “birthday card” was “far from innocuous,” and the defendant “obviously intended” that the mother read the letter because the daughter could not read and because the letter contained specific provisions that were addressed to the mother.

REAL PROPERTY
KELLY v. OCEAN GROVE CAMP MEETING ASSOCIATION OF THE UNITED METHODIST CHURCH
Appellate Division, A-4035-03T1, July 29, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18306

Orders dismissing with certain conditions the plaintiff leaseholder’s claims against the defendant association and the defendant adjoining neighbors for the removal of a tree affirmed; the plaintiff and the neighbors leased their lots from the association for 99 years; the plaintiff claimed that the tree on the neighbors’ lot blocked her view of the ocean, contrary to the association’s regulations; the tree had been pruned by the time of trial, and the trial court ruled that this was adequate to provide the view to which the plaintiff was entitled; as a condition of dismissal, the neighbors were required to ensure that their chain of title included a provision that pruning would continue throughout the life of the tree; the evidence supported the trial court’s findings and conclusions of fact, and its discretionary evaluation of the equities was “unflawed.”

LANDLORD AND TENANT
LONZA, INC. v. SOKOL, BEHOT & FIORENZO, P.C.
Appellate Division, A-1227-03T2, July 29, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 18309

Involuntary dismissal of the plaintiff sublessor’s complaint for damages for the breach of a commercial sublease at the close of the sublessor’s case in a nonjury trial reversed and remanded for the continuation of the trial; the sublease was to begin on January 1, 2001, and in December 2000 it was executed “conditionally upon receipt of the written consent” of the landlord within 30 days; if the condition was not met, either party could terminate the sublease; the premises were not available for delivery on January 1, 2001, and the sublessee never took delivery of the premises; the sublessee terminated the sublease on January 11, 2001, claiming that the condition had not been satisfied; the trial had to be continued because the trial court had not given the sublessor the benefit of all favorable inferences to be drawn from the evidence.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
SUDDETH v. STATE HEALTH BENEFITS COMMISSION
OAL Docket No. TYP 4748-02, Initial Decision: May 31, 2005, Final Agency Decision: July 19, 2005, released for publication July 22, 2005. By Metzger, ALJ. (6 pages).

The State Health Benefits Commission adopted the administrative law judge’s findings and conclusions and affirmed its original decision that denied payment for apraxia therapy for the petitioner’s daughter. Before changing health insurers, the petitioner was informed by a representative for the new insurer that the therapy would continue to be covered, as it was by the original insurer. After the change, the insurer declined to pay the bills for the therapy because its policy covered only therapy to rehabilitate previously existing skills, not therapy to address developmental delays. The petitioner’s original insurer later determined that the therapy was not covered under its policy, either. The ALJ concluded that the petitioner had not established that he was entitled to reimbursement (1) because there was no injustice in the failure to reimburse the petitioner for therapy that was not covered under the policy and that the original insurer apparently had paid for by mistake and (2) because the representative’s statement was “insufficiently substantive” to apply estoppel against the Commission.

FROM THE FEDERAL COURTS
BANKRUPTCY
IN RE TARGET INDUSTRIES
U.S. Bankruptcy Court (DNJ), Case Nos. 99-43997 (RG), 99-43998 (RG), and Adv. No. 02-3267 (RG), July 11, 2005, released for publication July 25, 2005. By Gambardella, Chief U.S.B.J. (39 pages). Facts-on-Call Order No. 92599

The U.S. Bankruptcy Court for the District of New Jersey granted in part and denied in part the defendant creditor’s motion to dismiss the complaint filed by the plaintiff Chapter 11 trustee for the debtor companies and by the plaintiff lender. The Bankruptcy Court addressed only the plaintiffs’ claims against the creditor for breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing, conspiracy, fraud, and RICO violations under federal and New Jersey law. The Bankruptcy Court concluded (1) that, with the exception of the RICO claims, all of the claims were barred by res judicata as to the trustee and as to the lender in his capacity as successor-in-interest to the debtors but that the lender could pursue the claims in his personal capacity, (2) that the lender’s personal claims were not barred by the doctrine of judicial estoppel, (3) that the lender’s personal claims were sufficient to survive the motion to dismiss, as long as the fraud claim was amended to comply with Federal Rule of Civil Procedure 9(b), (4) that the RICO claims survived, as long as they were amended to comply with Federal Rule of Civil Procedure 9(b), and (5) that the creditor’s statute of limitations defense was premature.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2005 The New Jersey Lawyer Inc. All rights reserved.