NEW JERSEY LAWYER

DAILY BRIEFING      08/24/2005


News Briefs

MOLD CLOSES TWO MERCER COURTROOMS
The discovery of mold has forced the shutdown of two courtrooms in the Mercer County Criminal Courthouse. Trial Court Administrator Susan Regan said mold discovered Monday on chairs and in jury boxes of the courtrooms of Judges Darlene J. Pereksta and Maria Marinari Sypek means that proceedings scheduled before them will be relocated to the courtrooms of vacationing judges. She said the temporary measure would allow county officials to investigate and remediate the mold. The county plans by 2008 to replace the 100-year-old courthouse, which has experienced multiple maintenance problems in recent years. 8-23-05

ATLANTIC COUNTY WEIGHS PEDOPHILE BAN IN PARKS, LIBRARIES
The Atlantic County freeholder board has begun considering restricting convicted sex offenders from a new venue — county parks and buildings. The board has requested its counsel’s office draft an ordinance that would include the county’s 13 parks, nine library branches and a golf course in a list of “pedophile-free” zones. Freeholder Chairman Joseph Silipena said the county would depend on municipalities for enforcement. Galloway Township and Egg Harbor City have adopted ordinances restricting where such offenders may live, and several other municipalities are considering similar restrictions. 8-23-05

FEDERAL COURT WORKERS IN NJ GOING WIRELESS
The Administrative Office of the U.S. Courts has authorized funding to provide wireless technology capabilities to 61 probation and pretrial service workers at its courts in New Jersey. The state is part a move to equip federal court officers nationwide with wireless technology to access the internet without phone lines. A pilot program the federal judiciary conducted last year found wireless saved court workers an average 4.3 hours per month by enabling them, among other things, to more easily access court records and respond to e-mail while outside the courthouse. 8-23-05

JUVENILE RECORDS AVAILABLE TO COPS ONLINE
In another example of technology aiding the practice of law, the state judiciary has created an online juvenile arrest registry. The system will give law enforcement officers almost immediate access to key documents needed in investigations and in deciding whether to charge or detain juveniles. Those records include copies of complaints and pleadings, and probation status. An amendment to court rules on the confidentiality of juvenile records allows such a registry. 8-23-05

A BIG LEGAL STINK ADDS TO WAL-MART COFFERS
As if Wal-Mart doesn’t have enough revenue, it recently sued in Oregon state court and was awarded $175 from a retired couple who forgot to pay a $10 bill for 10 bags of steer manure. Charles and Cheryl Gastorf say that after they forgot to add the manure tab in a hectic shopping spree, the giant retailer sued under a state law that allows retailers to pursue civil penalties regardless of whether a person is found guilty of theft. Mr. Gastorf said the couple did not fight the claim, but denied guilt, noting, “We wouldn’t want to embark on a life of crime at our ages and become manure thieves.” Wal-Mart has said it plans to refund the money. 8-23-05



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, TUESDAY, AUGUST 23, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, AUGUST 23, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, AUGUST 24, 2005.


APPROVED FOR PUBLICATION
INSURANCE
WALSH v. MATTERA
Appellate Division, A-2754-04T2, approved for publication August 23, 2005. (18 pages). Facts-on-Call Order No. 92634

Based on a flexible governmental interest analysis, New Jersey’s statute of limitations — rather than New York’s — applied to this claim for underinsured motorist benefits arising from an accident involving a pedestrian and a taxicab. The claim was asserted on behalf of the pedestrian, who was a New Jersey resident, based on a policy issued to him in New Jersey by a New Jersey insurer, but New York was the site of the accident and the home of both the taxicab’s driver and its corporate owner.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
RICHTER v. LONGINO
Appellate Division, A-6573-03T2, August 23, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18415

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the plaintiff claimed that the August 2001 automobile accident aggravated a previous injury to her lumbar spine, and the trial court agreed that there was an aggravation; however, the trial court dismissed her complaint because the aggravation did not have a serious impact on her life; while this matter was pending on appeal, the New Jersey Supreme Court decided DiProspero v. Penn and Serrano v. Serrano, in which the Supreme Court determined that AICRA did not subsume the serious impact prong under Oswin v. Shaw and that a plaintiff who is subject to AICRA must submit only objective, clinical evidence of a permanent injury to satisfy the verbal threshold; because the plaintiff had presented evidence of permanent injuries, it was irrelevant for the purposes of summary judgment whether the injuries had a “substantial impact” on her life.

VERBAL THRESHOLD
PRIPORINA-GOMEZ v. HUNTER
Appellate Division, A-4503-03T5, August 23, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18416

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court dismissed the plaintiff’s claim because she did not demonstrate that her injuries had a serious impact on her life; while this matter was pending on appeal, the New Jersey Supreme Court decided DiProspero v. Penn and Serrano v. Serrano, in which the Supreme Court determined that AICRA did not subsume the serious impact prong under Oswin v. Shaw and that a plaintiff who is subject to AICRA must submit only objective, clinical evidence of a permanent injury to satisfy the verbal threshold; because the plaintiff in this case had submitted evidence of permanent injuries, it was irrelevant for summary judgment purposes whether her injuries had a “substantial impact” on her life.

VERBAL THRESHOLD
RALPH v. AMORIN
Appellate Division, A-1628-04T3, August 23, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18417

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; while this matter was on appeal, the New Jersey Supreme Court decided DiProspero v. Penn and Serrano v. Serrano, in which the Supreme Court determined that AICRA did not subsume the serious impact prong under Oswin v. Shaw and that a plaintiff who is subject to AICRA must submit only objective evidence of a permanent injury to overcome the verbal threshold; if the grant of summary judgment in this case was based solely on the absence of a serious impact, reversal would have been required; however, the trial court also granted summary judgment because the plaintiff failed to present sufficient objective medical evidence of a permanent injury or to demonstrate that her alleged permanent injury was “significantly distinguished” from her earlier permanent injuries; thus, summary judgment was appropriate.

HUSBAND AND WIFE
KIMPLE v. KIMPLE
Appellate Division, A-385-04T3, August 23, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18414

Post-divorce-judgment order that, among other things, increased the defendant ex-husband’s child support obligation and that reduced his visitation with his son reversed and remanded as to the child support award and affirmed as the visitation schedule; the trial court reduced the visitation after the son expressed both unhappiness with the amount of time he spent with the defendant and boredom during the visits; based on the reduced visitation, the trial court increased the defendant’s child support obligation; the defendant correctly argued that the trial court should have required the plaintiff ex-wife to disclose how much her live-in fiance contributed to the household; because the trial court failed to consider this factor, remand was needed for the recalculation of the child support award; the proofs supported the trial court’s findings regarding the adjustment of the visitation schedule.

SENTENCING
STATE v. RODRIGUEZ
Appellate Division, A-5129-03T4, August 22, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18413

Post-conviction order entered on the defendant’s motion to correct an illegal sentence by crediting his gap time affirmed in part but remanded to correct the judgments of conviction to indicate 381 days of gap time; although the gap time was not reflected in the judgments, the parties agreed that the defendant was entitled to it; the defendant sought to apply the gap time to reduce either his parole ineligibility period under the No Early Release Act or his mandatory period of parole supervision under NERA; the Appellate Division (1) declined to decide whether the gap time applied to the supervision period because that issue was not properly before it, (2) declined to reconsider Meyer v. N.J. State Parole Bd., which held that gap time cannot reduce a parole ineligibility period under NERA, and (3) reaffirmed the conclusion in Meyer that a sentencing judge has the discretion to adjust a sentence after specifically concluding that prosecutorial delay would result in unfairness to a defendant.

ESTATES AND TRUSTS
PEYREK v. EVANS
Chancery Division, Somerset, Hunterdon, and Warren Counties, SOM-C-12055-04, August 5, 2005, not approved for publication. By Williams, P.J. (14 pages). Facts-on-Call Order No. 18372

In an action involving an ailing woman and her property, among other things (1) the plaintiff’s motion to remove the defendant as attorney-in-fact denied, (2) the plaintiff’s motion to appoint a conservator denied, and (3) the defendant’s motion to partition real property by sale denied; the woman deeded the real property to the plaintiff and the defendant as tenants in common, and the woman retained a life estate; removal of the defendant as attorney-in-fact was not appropriate because the plaintiff failed to provide “hard evidence” of malfeasance and because the defendant contested the allegations “in almost all respects”; the appointment of a conservator must be done according to Rule 4:86-11, and the plaintiff was given 30 days to comply with the Rule’s requirements; partition was not possible because the woman had a life estate that entitled her to live there for the rest of her life and because the parties disagreed about whether she was able to live at the real property.

FROM THE ADMINISTRATIVE AGENCIES
PENSIONS AND BENEFITS
MARKIEWICZ v. STATE HEALTH BENEFITS COMMISSION
OAL Docket No. TYP 6355-04S, Initial Decision: July 7, 2005, Final Agency Decision: August 18, 2005. By Masin, ALJ. (15 pages).

The State Health Benefits Commission adopted the recommendations of the administrative law judge and affirmed its original decision to deny the petitioner’s request for occupational and physical therapy for his son, who suffered from Pervasive Development Disorder-Not Otherwise Specified. The Commission had provided coverage for the therapy for 21 months before it denied coverage based on an exclusion in the NJ Plus Member Handbook for therapy provided “to promote development beyond any level of function previously demonstrated.” The ALJ concluded that the therapy was not covered. In response to the petitioner’s contentions, the ALJ determined (1) that it was “clear enough” that the therapy was being provided “to promote development beyond any level of function previously demonstrated,” (2) that the Handbook definition of “excluded services” was not ambiguous, (3) that there was no equal protection violation because the Handbook and the State Health Benefits Plan treat the disabled and the non-disabled equally, and (4) that the Commission reasonably interpreted the Handbook when it determined that the therapy was not covered because it would not cure the son’s congenital birth defect.


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.