NEW JERSEY LAWYER

DAILY BRIEFING      08/11/2005


News Briefs

CLASS STATUS GRANTED FOR ALLEGED INSURANCE FRAUD
Bergen County Superior Court Judge Jonathan N. Harris has approved limited class-action status in a case involving Anita Laufer, who claims she was misled into buying extra coverage for nursing home costs for 10 years from U.S. Life Insurance Co. and its administrator, Albert H. Wohlers, when, in fact, the policy did not cover such costs. In Laufer v. United States Life Insurance, the judge specified the class applies only to New Jersey residents. (A full text of Laufer, Facts-on-Call Order No. 18351, can be ordered from NJL Online or by calling 800-670-3370.) 8-10-05

LOCAL BUDGETS FEEL GAS PINCH, TOO
Commuters can car-pool and vacationers can take shorter trips, but police officers and public works employees must make their rounds. With gasoline prices ratcheting upward — and with record increases not calculated into their annual budgets — some governments are facing the prospect of running out of gas money before the budget year ends. Middle-sized towns covering large areas are hit the hardest. Washington Township in Gloucester County, for example, has 169 vehicles and is paying 10 percent more for fill-ups than in May — much more than budgeted. In Glassboro, officials already are looking for funds to transfer from other accounts. “What are you going to do? Tell police not to drive around and make sure neighborhoods are safe?” posed Glassboro Administrator Joseph Brigandi Jr. to the Gloucester County Times. 8-10-05

THIRD CIRCUIT SAYS DEBTOR CAN’T AVOID MOTOR-VEHICLE SURCHARGES
Bad news for those in bankruptcy. In a case from New Jersey, the 3rd U.S. Circuit Court of Appeals has ruled a lien held by the state Motor Vehicles Commission (MVC) for unpaid surcharges is a statutory lien the debtor can’t avoid. In In re Schick, Circuit Judge Julio M. Fuentes noted that if it had been seen as a judicial lien, the MVC debt could have been avoided. Fuentes said New Jersey’s surcharge statute “grants the MVC an expeditious path to secure a lien against the debtor’s property, without having to engage in a lengthy and possibly costly judicial proceeding to obtain a judgment against the debtor.” The MVC had filed a secured claim for $3,610 plus interest against Tracey L. Schick. (A full text of Schick, Facts-on-Call Order No. 92623, can be ordered from NJL Online or by calling 800-670-3370.) 8-10-05

CODEY SIGNING SEX-OFFENDER TRACKING BILL
A bill creating a controversial — and potentially expensive— global positioning system (GPS) program to track sex offenders is being signed into law Thursday by acting Governor Richard J. Codey. The pilot program, financed by a $3 million appropriation, will track 250 former sex offenders considered the most dangerous. There are 12,000 registered sex offenders in the state released from prison and 3,600 still incarcerated. Primary sponsors of the legislation are Sen. Leonard T. Connors Jr. and Assemblyman Brian E. Rumpf, both Ocean County Republicans. 8-10-05

ABA SUPPORTS PRESS SHIELD LAW
With more reporters facing the threat of jail, the American Bar Association’s House of Delegates has voted to support passage of a federal reporters shield law. Michael S. Greco, installed as ABA president earlier this week, said the vote “acknowledges the important role of journalists and the media in providing the public with significant information to ensure an informed democracy, and reporters need to be able to protect sources in order to get that information.” He cautioned, though, the ABA “also recognizes reasonable standards for compelling journalists to name sources or disclose information gleaned in gathering news.” To overcome a shield, the ABA calls for a showing that the information sought from a journalist is essential to a critical issue, that all reasonable alternative sources for the information have been exhausted and that the need for the reporter’s information clearly outweighs the public interest in free flow of information. 8-10-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, AUGUST 10, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, AUGUST 10, 2005:

REAL PROPERTY
BUBIS v. KASSIN
New Jersey Supreme Court, A-44, August 10, 2005. (32 pages). Facts-on-Call Order No. 92622

The sand berm built by the defendant beach-front landowners violated both the restrictive covenant that burdened their property and the local zoning ordinance because the berm constituted a “fence” that was more than 6 feet tall. Justice Rivera-Soto dissented.

THE SUPREME COURT has announced that it will release an opinion in SAINT PETER’S UNIVERSITY HOSPITAL v. LACY, A-74, on August 11, 2005. The issue on appeal in Saint Peter’s addresses whether the Department of Health and Senior Services regulations that permit a children’s hospital to be licensed as a regional prenatal center without obtaining a certificate of need are invalid because they conflict with the certificate of need requirements of the Health Care Facilities Planning Act.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, AUGUST 10, 2005.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
CATANIA v. TOWNSHIP OF WEST MILFORD
Appellate Division, A-5570-03T5, August 10, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 18353

Summary judgment for the defendant Township in a personal injury action affirmed; an environmental consultant determined that the Township’s road salt storage shed may have caused elevated levels of sodium and chloride in residential wells; the Township supplied bottled water to the plaintiff homeowner after tests of her well water revealed an excess of sodium; the homeowner sought to recover for a back injury she sustained while carrying a water bottle that weighed more than 35 pounds and that was provided by the Township; although the issue is usually for the finder of fact to decide, summary judgment was appropriate in this case because the Township’s negligence in contaminating the well was “too far removed” from the homeowner’s injury to support a finding of proximate cause.

PERSONAL INJURY
GAMBINO v. ALL AMERICAN RODEO CO.
Appellate Division, A-587-03T3, August 10, 2005, not approved for publication. (28 pages). Facts-on-Call Order No. 18356

Law Division rulings affirmed in part, reversed in part, and remanded in an action by the plaintiff New Jersey resident for “serious bodily injury” he sustained in a bull-riding event in Glens Falls, New York that was conducted by the defendant rodeo company and sanctioned by the defendant rodeo association; the Law Division (1) properly rejected the plaintiff’s argument that the Colorado forum selection clause invoked by the rodeo association was unenforceable as a contract of adhesion, (2) properly denied the rodeo company’s motion to dismiss for lack of personal jurisdiction, (3) properly concluded that New York’s assumption-of-risk principles applied, and (4) properly concluded that the questions involved with the issue of assumption of risk must be resolved by the trier of fact; however, the Law Division erred by dismissing the action on summary judgment on the ground that the plaintiff had not provided an adequate showing by an expert that his injury had been caused by the “under-blunting” of the bull’s horns.

EMPLOYMENT DISCRIMINATION
CUNHA v. LOWE’S HOME CENTERS, INC.
Appellate Division, A-3217-03T1, August 10, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18358

Dismissal of the plaintiff cashier’s employment discrimination complaint against the defendant employer that arose from sexual harassment by a co-worker affirmed; the co-worker was terminated four days after the cashier first complained of sexual harassment in October 2001, but he returned to the workplace as a customer on multiple occasions; after she was terminated in February 2002 for repeatedly violating the employer’s attendance policy, the cashier filed a complaint that alleged claims of hostile work environment in violation of the Law Against Discrimination and common law retaliation; contrary to the cashier’s arguments on appeal, (1) the trial court viewed the evidence in the light most favorable to her, (2) the employer had no duty to take remedial action against the co-worker after he was terminated and returned to the workplace, and (3) the trial court did not err by dismissing her retaliation claim when she did not address it in her opposition to the summary judgment motion.

HUSBAND AND WIFE
TRUESDELL v. TRUESDELL
Appellate Division, A-2592-03T5, August 10, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 18355

Post-divorce-judgment order that, among other things, denied the plaintiff ex-husband’s application to vacate a qualified domestic relations order reversed in part and remanded; after entry of the QDRO — which provided that the plaintiff and the defendant ex-wife would share equally in the plaintiff’s “pension” — the plaintiff, who was a police officer, started receiving a Police and Firemen’s Retirement System accidental disability pension; the plaintiff moved to exempt his disability pension from equitable distribution, claiming that the defendant was not entitled under the QDRO to any part of the disability pension until it was converted into a permanent retirement benefit; because the QDRO assumed incorrectly that a PFRS disability pension would be converted to a permanent retirement benefit, there was no meeting of the minds; remand was necessary to determine the defendant’s equitable-distribution interest in the plaintiff’s disability pension.

TAXATION
MUNICIPAL SECURITIES OF NEW JERSEY, INC. v. UNKNOWN OWNER
Appellate Division, A-5755-03T2, August 10, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18354

Order vacating the plaintiff tax sale certificate holder’s final judgment of foreclosure reversed; the plaintiff bought the certificate on the property for delinquent 1986 taxes; another party later bought a certificate on the same property for delinquent 1994 taxes; the assignee of the 1994 certificate foreclosed on the property, but before entry of final judgment the plaintiff filed its foreclosure action; the trial court vacated the assignee’s foreclosure judgment because the plaintiff was not a party to that action; however, the trial court granted the assignee’s motion to vacate the plaintiff’s foreclosure judgment because of the plaintiff’s failure to notify the assignee of its foreclosure action; there was no basis under the Tax Sale Law for vacating the plaintiff’s foreclosure judgment; because the plaintiff’s judgment stands, its redemption of the 1994 certificate was valid.

POST-CONVICTION RELIEF
STATE v. TYSON
Appellate Division, A-6725-02T4, August 10, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18357

Denial of the defendant’s third petition for post-conviction relief affirmed; in support of his PCR petition, the defendant presented an affidavit from a long-time friend; the affidavit, which was provided almost 17 years after the trial, stated (1) that he had testified falsely at trial and (2) that the detectives had “badgered” him into making false statements; based on the affidavit, previous testimony at a Gross hearing, and the evidence at trial, there was no evidence of a Brady violation; the PCR court did not err by denying the defendant’s motion for a new trial based on newly discovered evidence, which consisted solely of the affidavit, because the friend’s testimony at trial had “no real impact”; no evidentiary hearing was required about the circumstances surrounding his testimony.

INSURANCE
NATIONAL UNION FIRE INSURANCE CO. OF PITTSBURGH, PA. v. BUSCHE, CLARK & LEONARD
Appellate Division, A-1975-03T3, August 9, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18352

Order awarding defense costs to the defendant attorney on his counterclaim in the plaintiff insurer’s action for a declaratory judgment on coverage under a professional liability policy reversed; in a separate action, the attorney and his former law partners had been sued by their former business partner on both malpractice and non-malpractice claims, the insurer settled the malpractice claims, and the business partner was awarded damages on the non-malpractice claims after a trial; in the appeal of the underlying action, it was determined that one of the non-malpractice claims “fell under the umbrella of the malpractice claims that were settled before trial”; after the declaratory judgment action resumed, the trial court erred by imputing to the insurer a duty to defend the settlement because the insurer had settled in accordance with the authorization and demand of the attorney’s counsel; the insurer had no duty to defend the attorney because the business partner’s claims against him were not based on legal services rendered or professional conduct that occurred while he was a member of the partnership.


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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.)


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