NEW JERSEY LAWYER

DAILY BRIEFING      08/31/2005


News Briefs

DRUG COURTS SAVING STATE $15,800 PER PARTICPANT, AOC REPORTS
New Jersey’s statewide drug court program will celebrate its first anniversary Thursday as a proven “cost effective alternative to incarceration,” said Judge Philip S. Carchman, administrative director of the courts. The program, which last year was expanded to all vicinages, cost $19,200 per participant, including six months of in-patient treatment, vs. $35,000 for incarceration. The drug courts, which have served 5,110 people so far, have 2,152 current participants, including 334 in the five vicinages the program added last year — Bergen, Monmouth, Ocean, Cumberland/Gloucester/Salem and Morris/Sussex. The Administrative Office of the Courts also noted that each baby born drug-free to a program participant saves $750,000 to $1 million in lifetime medical expenses. Fifty-four babies have been born to participants since drug courts began in Camden and Essex counties in 1996. 8-30-05

NEW LAW SETS PROCEDURES FOR RANDOM STUDENT DRUG TESTS
The new school year may bring a new way of evaluating some New Jersey students — drug tests. Acting Gov. Richard J. Codey signed a law that sets procedures to randomly test certain students for drugs, including steroids. S-500/A-1193, whose sponsors include Sen. Nicholas J. Sacco (D-Bergen) and Assemblyman Vincent Prieto (D-Hudson), affects students who participate in athletics or other extracurricular activities or hold permits to park on school grounds. Such students and their guardians must consent to the testing. 8-30-05

EMPLOYEE WITH PERCEIVED DISABILITY ENTITLED TO ACCOMMODATION
An employee merely regarded or considered disabled is entitled to reasonable accommodation under the Americans with Disabilities Act (ADA), ruled the 10th U.S. Circuit Court of Appeals. In Kelly v. Metallics West, a customer service representative who required supplemental oxygen after being treated for a pulmonary blood clot sued after her employer rejected her request for an oxygen tank at work and subsequently fired her. The employer appealed the $50,000 jury verdict, arguing the ADA doesn’t require accommodation for employees “regarded as disabled” but not actually disabled. The 10th Circuit said ADA protection applies to those regarded as disabled who could perform their essential job functions with reasonable accommodation. 8-30-05

INSURED MUST BE NOTIFIED OF HIGHER RATE TIED TO CREDIT CHECK
An insurer can be sued for failing to provide notice it is charging higher rates for new automobile or homeowner insurance policies because of information obtained from a policyholder’s credit report, the 9th U.S. Circuit Court of Appeals has ruled. In Reynolds v. Hartford Financial Services Group, the court reversed summary judgment in a class action alleging Hartford violated Fair Credit Reporting Act notification rules when it refused to give new customers who are members of AARP a 10 percent discount offered that association’s members because of their credit history. Hartford argued the notice rule is triggered only when rates are increased for existing customers. 8-30-05

HOTELS RAKING IN $1.4 BILLION IN FEES FOR NICETIES
If your next hotel bill is a little more than expected, don’t be alarmed. Hotels nationwide are fast increasing fees for everything ranging from snacks in room goody bars to bellhop services and just about anything performed in their business centers. Hotels this year will collect more than $1.4 billion by tacking on extra fees, more than doubling the $600 million collected in 2002, according to a study by PricewaterhouseCoopers. For example, while faxing typically cost $1 a page a few years ago, hotel business centers now charge $5 the first page and $2 or $3 each additional page. And that innocent-looking bottle of spring water once left in rooms as a complimentary gesture, now can cost $5 or more. 8-30-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, AUGUST 30, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, AUGUST 30, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, AUGUST 31, 2005.


APPROVED FOR PUBLICATION
PUBLIC RECORDS
MICHELSON v. WYATT
Appellate Division, A-6839-02T3, approved for publication August 26, 2005. (21 pages). Facts-on-Call Order No. 92644

In an action arising from the plaintiff’s request for information about the health insurance benefits received by participants in the defendant City’s health plans, the personal information about the participants that the City withheld was not subject to disclosure under the Open Public Records Act. The plaintiff did have a common law right to inspect public records about the type of coverage that the participants selected but no right to obtain the participants’ addresses, the names of their dependents, their personal health information, or any other confidential information about them.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
MATAGA v. HASKINS
Appellate Division, A-4607-03T2, August 30, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18451

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; in its statement of reasons in support of the summary judgment order, the motion court concluded that the plaintiff was required to show that his injury had a serious impact on his life; however, the recent New Jersey Supreme Court decision in DiProspero v. Penn held that the plain language of §39:6A-8a does not include a serious-life-impact standard; thus, the Appellate Division reversed and remanded for consideration of the sufficiency of the plaintiff’s proofs in light of DiProspero.

VERBAL THRESHOLD
SWEENEY v. BODENHEIM
Appellate Division, A-2971-03T5, August 30, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18452

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the motion court concluded that the plaintiff had failed to meet the subjective standard under Oswin v. Shaw that her injury had resulted in a serious impact on her life; the Appellate Division reversed and remanded in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn — which held that the plain language of §39:6A-8a does not contain a serious-life-impact standard — and Serrano v. Serrano — which held that a plaintiff must prove by objective medical evidence only that she suffered an injury described in §39:6A-8a.

VERBAL THRESHOLD
GIBSON v. DEMARTINO
Appellate Division, A-150-04T3, August 30, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18453

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 specifically relied on the Appellate Division’s 2004 opinion in Serrano v. Serrano — which held that a plaintiff must demonstrate that he sustained an injury set forth in §39:6A-8a and that the injury was serious — to determine that the plaintiff did not suffer an injury that was sufficient to overcome the verbal threshold; however, Serrano was recently reversed by the New Jersey Supreme Court, and the requirement that a plaintiff must establish a “serious injury” was eliminated; remand was required to determine whether the plaintiff’s proofs were sufficient to overcome the verbal threshold in light of the Supreme Court’s recent decisions in Serrano and in DiProspero v. Penn, which eliminated the plaintiff’s obligation to demonstrate a serious impact on her life.

DRUNK DRIVING
STATE v. De SANTIS
Appellate Division, A-6681-03T3, August 30, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18450

Denial of the defendant’s motion to suppress evidence, conviction of driving while under the influence of alcohol, and sentence as a second offender affirmed; a police officer observed the defendant sleeping in his vehicle in the middle of an intersection at about 2 a.m.; contrary to the defendant’s arguments on appeal, (1) the officer had probable cause to arrest him based on his admission that he drank “a few beers,” the odor of alcohol in his vehicle, and his sleeping at the wheel, (2) he was properly sentenced as a second offender because he did not meet his burden of proving by clear and convincing evidence that his earlier out-of-state conviction was based on a blood alcohol level of less than .08 percent, and (3) the trial court did not err by relying on a driver abstract rather than the out-of-state judgment of conviction.

HUSBAND AND WIFE
MIICKE v. MIICKE
Appellate Division, A-3200-03T3, August 29, 2005, not approved for publication. (79 pages). Facts-on-Call Order No. 18446

Final judgment of divorce affirmed in part, modified in part, reversed in part, and remanded; the Appellate Division (1) affirmed the trial court’s refusal to conduct a plenary hearing on the issue of whether there was a settlement between the parties, the trial court’s ruling that the plaintiff ex-wife was entitled to an award of permanent alimony, and the order that required family counseling, (2) modified the equitable distribution award and the requirements for disclosure of income and for life insurance, (3) reversed the calculation of the defendant ex-husband’s income and the amount of spousal support and child support ordered, the escalator provision in the alimony award, the denial of retroactive modification of the pendente lite support obligation, and the entry of judgment against the ex-husband on the invasion-of-privacy marital tort, (4) vacated the award of attorney’s fees, and (5) remanded for further proceedings.

CRIMINAL TRIALS
STATE v. CAESAR
Appellate Division, A-6656-94T4, August 29, 2005, not approved for publication. (74 pages). Facts-on-Call Order No. 18447

Convictions of first-degree carjacking, four counts of first-degree robbery, first degree-attempted murder, two counts of second-degree aggravated assault, the lesser-included offense of second-degree robbery, third-degree aggravated assault, third-degree receipt of stolen property, and weapons offenses affirmed but remanded for entry of an amended judgment to reflect the Appellate Division’s modification of the defendant’s sentence and to reflect the presence of the mitigating factors found by the trial court; contrary to the defendant’s arguments, (1) he was not denied due process and his right to a fair trial as a result of prosecutorial misconduct, (2) the failure to give a specific instruction that informed the jury that it could consider whether the procedures used by the police tainted the identification evidence did not constitute plain error, (3) the instructions allowed proper jury deliberations on the robbery charges and an appropriate verdict, and (4) the trial court did not err by admitting evidence of an identification of the defendant because the testimony at the Wade hearing did not reveal that the police procedures had produced an unreliable out-of-court identification.


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