NEW JERSEY LAWYER

DAILY BRIEFING      08/30/2005


News Briefs

TRENTON COP LOSES JOB-DISCRIMINATION APPEAL
The 3rd U.S. Circuit Court of Appeals has rejected an appeal by Trenton police officer Lawrence Davis in his discrimination case against the city. In Caver v. City of Trenton, Judge Franklin S. Van Antwerpen said, in part, that comments superiors made during roll call that it was “OK to be in the KKK,” their use of racial epithets when dealing with prisoners, plus the presence of racist graffiti in the department were insufficient to support a claim of hostile work environment under the state’s Law Against Discrimination (LAD). He said Davis cannot state such a claim solely by pointing to comments directed at others. The judge noted Davis’ LAD claim also was based on conduct directed toward him, but said the jury rejected that theory in the context of a whistleblower claim. (A full text of Caver, Facts-on-Call Order No. 92642, can be ordered from NJL Online or by calling 800-670-3370.) 8-29-05

CLINICAL-TRIAL LITIGATION ON THE RISE
Injuries from participation in medical clinical trials are creating a rapidly growing area of litigation. There are approximately 50,000 clinical trials under way worldwide, a number that’s increasing 8 percent to 10 percent annually, reports CenterWatch, a Boston-based monitor of the litigation. It also reports 3.6 million people enrolled in clinical trials in the United States in 2003. High-profile cases include Diagosto v. Fred Hutchinson Cancer Center, in which a Seattle jury in April 2004 cleared the center of negligence in the deaths of four participants in a medical experiment, but awarded $1 million to the family of a fifth participant, whose bone marrow was lost in a laboratory accident. 8-29-05

THIRD CIRCUIT APPROVES RANDOM SEARCH OF PRISON VISITORS’ CARS
The 3rd U.S. Circuit Court of Appeals has upheld the constitutionality of subjecting prison visitors’ vehicles to random searches. In Neumeyer v. Beard, a case from Pennsylvania, Judge Dolores K. Sloviter said that “considering the relatively minor inconvenience of the searches, balanced against … officials’ special need to maintain the security and safety of the prison,” the practice is valid. She also noted there was no evidence officers selected search targets on an improper basis, such as the race of the occupants. (A full text of Neumeyer, Facts-on-Call Order No. 92643, can be ordered from NJL Online or by calling 800-670-3370.) 8-29-05

INSURER MUST PAY ATTORNEY FEES DESPITE DROPPING SUIT
A workers compensation claimant is entitled to attorney fees when an insurer sues to contest an award and later drops the suit, an appeals court in Texas has ruled. In Pacific Employers Insurance Co. v. Severiano Torres, the insurer argued a claimant was not entitled to fees because the insurer dropped its suit appealing an award after 19 months of litigation and three weeks before trial. The appellate judges affirmed a trial court fee award of $15,175 plus interest. 8-29-05

AOL CHANGES POLICY ON SERVICE CANCELLATION REQUESTS
It may be easier for subscribers to terminate America Online service under terms of a settlement the internet service provider has reached with New York Attorney General Elliott Spitzer. AOL has agreed to pay refunds and a $1.25 million fine, plus alter a policy of rewarding customer service representatives for persuading customers not to drop the service. Spitzer’s office had investigated complaints from 300 AOL users. The company, which now will record all cancellation requests and use a third party to verify what occurs, says the settlement will “help us increase quality assurance.” 8-29-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, AUGUST 29, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, AUGUST 29, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, AUGUST 30, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON MONDAY, AUGUST 29, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
IONFRIDA v. McDERMOTT
Appellate Division, A-957-04T2, August 29, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18444

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed; as to the plaintiff’s argument that she had presented objective evidence of a permanent condition that would not heal to function normally with further treatment, the motion judge properly concluded that the plaintiff’s injury did not meet the verbal threshold because, at most, she had demonstrated that she suffered from trochanteric bursitis, which does not fall within any of the categories set forth in §39:6A-8a; as to the plaintiff’s argument that her injuries had a serious impact on her life, the New Jersey Supreme Court’s recent decisions in Serrano v. Serrano and DiProspero v. Penn held that a plaintiff must prove only an injury set forth in §39:6A-8a and that she does not have to show a serious impact.

VERBAL THRESHOLD
TATE v. DRITSAS
Appellate Division, A-2897-03T3, August 29, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18445

Summary judgment for the defendants based on the verbal threshold under the former version of N.J.S.A. 39:6A-8a affirmed substantially for the reasons expressed by the motion court; the plaintiff was injured in automobile accidents on June 18, 1999 and August 5, 1999; the plaintiff was subject to the verbal threshold, but she was not subject to the AICRA amendment because her policy was issued before March 22, 1999; the motion court properly concluded that there was no serious impact under the Oswin v. Shaw test and that there was no “adequate breakdown” of what conditions could be attributed to each of the two accidents.

INSURANCE
STORAGE OFFICE SOLUTIONS, INC. v. OLD REPUBLIC INSURANCE CO.
Appellate Division, A-5802-02T2, August 29, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18442

Dismissal with prejudice of the counterclaim asserted by the defendant insurer of a truck lessor for indemnification and reimbursement of defense costs arising from a wrongful death action affirmed; the wrongful death occurred when a pedestrian was struck by a truck that was leased by the truck lessor to the plaintiff company and was operated by its employee; the company was the named insured in a business liability policy issued by the plaintiff insurer that was “clearly excess” as to a non-owned vehicle that was insured under another policy; the defendant could not sustain a counterclaim against the plaintiff insurer or the company because the company was covered by the defendant’s policy, which was primary according to its express terms, and because the plaintiff insurer had fulfilled its obligations as excess insurer; the rental agreement between the truck lessor and the company did not create a right to contractual indemnification from the plaintiffs.

UNEMPLOYMENT COMPENSATION
SPIVAK v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-7080-03T3, August 29, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18443

Final decision of the Board of Review that found the claimant ineligible for “additional benefits during training” affirmed; after being terminated from her position as a computer department manager, the claimant received unemployment benefits; her application for additional benefits was denied because she was found not to have been permanently separated from employment due to a substantial reduction in work opportunities in her job classification; instead, it was found that her separation from employment was “an isolated termination”; the record “amply” supported the conclusion that the claimant was not terminated due to a lack of work; additionally, the claimant did not meet her burden of showing that she was terminated for economic reasons that brought about a reduction in force.

LAW AGAINST DISCRIMINATION
PARKER v. INSERRA SUPERMARKETS, INC.
Appellate Division, A-540-03T5, August 26, 2005, not approved for publication. (43 pages). Facts-on-Call Order No. 18441

Summary judgment for the defendant employer and the defendant co-worker in an action under the Law Against Discrimination alleging that the employer and the co-worker had engaged in conduct that created a hostile work environment for the plaintiff African-American employee reversed and remanded; the motion court erred (1) by concluding that the racial harassment that the employee alleged was not sufficiently severe or pervasive to constitute a hostile work environment as a matter of law and (2) by finding on summary judgment that the co-worker was not the employee’s supervisor.

EDUCATION
BOARD OF EDUCATION OF THE CITY OF PATERSON v. BOARD OF CHOSEN FREEHOLDERS
Appellate Division, A-2022-02T3, August 26, 2005, not approved for publication. (19 pages). Facts-on-Call Order No. 18439

Dismissal with prejudice of the plaintiff Board of Education of the City of Paterson’s action in lieu of prerogative writs affirmed; pursuant to N.J.S.A. 18A:54-20.1, the Passaic County Vocational Technical School charged Passaic County school districts tuition for their students that attended the School; the plaintiff claimed that the tuition method caused “fiscal inequities” among the Passaic County school districts and prevented the plaintiff from providing the “thorough and efficient” system of public education required by the New Jersey Constitution to its own students; the trial court properly determined that the plaintiff had not demonstrated an impairment to its constitutional obligation and that the plaintiff, as a political subdivision of the State, lacked standing to challenge state action on equal protection grounds; there was “no merit” to the plaintiff’s argument that §18A:54-20.1 was unconstitutional or was contrary to the Abbott v. Burke jurisprudence.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. R.E.
Appellate Division, A-4617-03T4 and A-4793-03T4, August 26, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18440

Order granting kinship legal guardianship over each of the defendant parents’ three children to the paternal grandparents affirmed; the Family Part’s findings were “thorough,” “incisive,” and well supported by the evidence when it applied the 12-part standard under N.J.S.A. 3B:12A-6a to determine whether the paternal grandparents qualified for appointment as kinship legal guardians and when it applied the four-part standard under N.J.S.A. 3B:12A-6d to assess the parents’ capacities to discharge their parenting responsibilities; there was no reason to reject the Family Part’s discretionary evaluations about the parents’ lack of capacity to discharge their parental obligations, the grandparents’ capacity to discharge a guardianship role, the children’s best interests, and other required factors; the alternatives suggested by the father, which included supervised reunification with him, and by the mother, which sought placement of the children with her outside the presence of the father, were “without sufficient merit to warrant further discussion.”

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
G.C. v. WEST WINDSOR-PLAINSBORO BOARD OF EDUCATION
OAL Docket No. EDS 8731-04, Agency Docket No. 2005-9387, Final Agency Decision: August 8, 2005. By Bruno, ALJ. (12 pages).

On the petitioner parents’ request to place their 20-year-old autistic son in “a highly specialized program” for autistic students, the administrative law judge ordered (1) that the son continue his placement in the respondent Board of Education’s district, (2) that he have a psychiatric or neurological evaluation, and (3) that the behavior management plan and the services of a behavior consultant continue as compensatory education. The ALJ found that the son was making “satisfactory academic progress” as a student in the respondent Board of Education’s district but that his behavior was “most inappropriate.” Under a 2003 settlement agreement between the parties, the respondent Board was required to provide “a new, more specific behavior management plan,” a medical specialty evaluation, and input from a behavior consultant, but the ALJ found that none of those services had been provided. Based on the settlement agreement, the ALJ concluded that the Board had not provided a free appropriate public education for the son and that the parents had agreed that an out-of-district placement was not necessary for the son to receive a free appropriate public education. Therefore, the ALJ concluded that the son was entitled to the services identified in the settlement agreement through compensatory education.


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