NEW JERSEY LAWYER

DAILY BRIEFING      09/30/2005


News Briefs

STATE POLICE FACING TROOPER’S ‘DE-POLICING’ CLAIM
New Jersey State Police officials will be defending a case in which they’re accused of reverse profiling. Mercer County Judge Mary C. Jacobson rejected the state’s motion to dismiss a whistleblower suit filed by a trooper who alleges superiors harassed him for making legitimate traffic stops solely because commanders were trying to avoid even any semblance of racial profiling. In Gacina v. State, Sgt. Richard Gacina, a 19-year veteran of the force, claims supervisors began the “de-policing” or discouragement policy at the end of 1999 after federal authorities started monitoring troopers’ activities on the state’s roadways. The judge rejected the state’s contention that Gacina’s suit missed the statute of limitations. (A full text of Gacina, Order No. 18585, is available from the NJL Facts-on-Call Service, 800-670-3370.) 9-29-05

STATE REFUNDING $8.25 MILLION TO SETTLE TRUCKERS’ SUIT
The state will refund $8.25 million to out-of-state truckers to settle a class-action claim that it has disproportionately applied a fee. The settlement of American Trucking Associations, Inc. v. State, approved by Tax Court Presiding Judge Joseph C. Small, also enjoins the state from imposing flat fees on the trucking industry. Truckers complained an annual fee for companies transporting waste unfairly benefited in-state companies, which might make thousands of hauls, compared to infrequent trips by truckers from other states. Plaintiffs’ attorneys from Roseland’s Connell Foley will share a $2.475 million fee award with co-counsel from the ATA (American Trucking Associations) Litigation Center. Connell Foley partners Kevin J. Coakley and Brendan Judge handled the case. 9-29-05

EAST MEETS WEST WINDSOR
The West Windsor office of Morgan Lewis & Bockius has expanded its ability to service clients’ needs in Japan. The Philadelphia-based firm is forming a joint venture with Japan’s sixth-largest firm, TMI Associates, to focus on international transactions. Recent changes in Japanese law to facilitate mergers and acquisitions opened the door for the two firms to expand a relationship they’ve had for several years, Morgan Lewis said. TMI has 100 lawyers, all in Japan, and Morgan Lewis has 1,200 worldwide. 9-29-05

J&J TO PAY $2M AND 10 PERCENT OF REVENUE IN PATENT CASE
New Brunswick’s Johnson & Johnson marketed an implant used in breast cancer detection and now must pay the inventors $2 million, a federal jury in Miami has ruled. J&J also must pay them 10 percent of an estimated $39 million in annual revenue the device is expected to generate. Dr. John Corbitt and his assistant, Lori Leonetti, of Atlantis, Fla., had talked with J&J about marketing the device in the late 1990s, but J&J declined and subsequently bought another company that was selling a similar product. That patent, though, was invalid because it was approved after the one obtained by Corbitt and Leonetti. 9-29-05

WHAT NOT TO DO WHILE IN A NJ PRISON
A federal grand jury in Vermont has indicted Rex J. Butterfield on several counts of fraud he allegedly committed earlier this year while behind bars in Mid-State Correctional Facility in Wrightstown for armed robbery. He allegedly learned about Joan C. Cunningham, a rich widow in Benson, Vt., and began a stream of phone calls in which he professed his undying love and convinced her to transfer an estimated $200,000 to him. 9-29-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, SEPTEMBER 29, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, SEPTEMBER 29, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, SEPTEMBER 30, 2005.


APPROVED FOR PUBLICATION
MUNICIPAL CORPORATIONS
ARISTIZIBAL v. CITY OF ATLANTIC CITY
Law Division, Atlantic County, ATL-L-289-05, approved for publication September 22, 2005. (51 pages). Facts-on-Call Order No. 92677

Barring extraordinary circumstances, N.J.S.A. 40A:14-147 requires that investigations into violations of police department rules and regulations be started promptly after events that may warrant disciplinary action. A failure to comply with §40A:14-147 may result in an order enjoining the prosecution of disciplinary actions against police officers who are charged with violating department rules and regulations.

CONSUMER PROTECTION
ARTISTIC LAWN & LANDSCAPE, CO., INC. v. SMITH
Law Division, Special Civil Part, Burlington County, DC-1234-05, approved for publication September 22, 2005. (14 pages). Facts-on-Call Order No. 92678

In a matter of first impression, a home improvement contract between a homeowner and an unlicensed landscape irrigation contractor was not enforceable on the contractor’s claim for the balance due on the contract, and the homeowner was entitled on his counterclaim under the Consumer Fraud Act to a refund of the funds paid under the contract pursuant to N.J.S.A. 56:8-2.11. However, the homeowner was not entitled to treble damages.

NOT APPROVED FOR PUBLICATION
INSURANCE
PEREZ v. OHIO CASUALTY INSURANCE CO.
Appellate Division, A-2707-03T3, September 29, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18587

Summary judgment for the defendant automobile insurer on its counterclaim for the recovery of PIP benefits and judgment of $188,571.63 against the plaintiff insured affirmed in part and reversed in part in an action arising from the insurer’s cancellation of a policy after learning that the insured had supplied a false Social Security number; the insurer sought rescission of the insurance contract, recovery of $62,857.21 it had paid in PIP benefits, and treble damages under the New Jersey Insurance Fraud Prevention Act; summary judgment was appropriate because, by knowingly providing a false Social Security number on his application for PIP benefits, the insured made a material misrepresentation that entitled the insurer to rescind the policy based on fraud; however, there was an insufficient showing in the record of a pattern of violation to support the trial court’s imposition of treble damages under the Act.

ESTATES AND TRUSTS
LEVCHUK v. JOVICH
Appellate Division, A-5970-03T3, September 29, 2005, not approved for publication. (23 pages). Facts-on-Call Order No. 18586

Jury verdict of no cause of action against the plaintiff executor of an estate in a suit for the return of $441,000 from the defendant affirmed; the decedent gave the defendant the funds to help him with some financial difficulties; in 1998, shortly before dying, the decedent executed a power of attorney in which he purportedly left his “worldly possessions” to the defendant for the care of the decedent’s companion; in an earlier action to probate a 1995 will prepared by the plaintiff for the decedent, the defendant claimed that the power of attorney was the decedent’s will, but the Probate Part rejected the 1998 document because the defendant failed to prove that it did not result from undue influence; in this action, the jury found that the defendant had proved that the funds constituted an inter vivos gift that was not obtained through undue influence; the trial court properly rejected the plaintiff’s request for a jury instruction regarding the Probate Part’s ruling on the 1998 document because that ruling had no res judicata or collateral estoppel effect in this case.

VERBAL THRESHOLD
HERNANDEZ v. GOELLNER
Appellate Division, A-6821-03T2, September 28, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18584

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court concluded that the plaintiff’s injuries were neither permanent nor serious, that there was no objective medical evidence of an injury under the statute, and that her injury did not cause any “significant limitation” on her life; in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the issue was whether the plaintiff had made a prima facie showing of a permanent injury; after reviewing the medical reports submitted by the plaintiff, the Appellate Division concluded that summary judgment was inappropriate because a jury could reasonably find that the plaintiff had sustained permanent injuries in her accident if it found her doctors to be credible witnesses.

EMPLOYMENT LAW
NOTO v. SKYLANDS COMMUNITY BANK
Appellate Division, A-322-04T3, September 28, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18583

Summary judgment for the defendant employers affirmed as to the plaintiff mortgage originator’s claim under the Conscientious Employee Protection Act but reversed as to his contractual claims for unpaid wages and for breach of the covenant of good faith and fair dealing; the plaintiff resigned about 20 minutes after he had received a performance review stating that he was not meeting expectations; as to the CEPA claim, the trial court properly determined that the employers did not take an adverse employment action and that the plaintiff was not constructively discharged; as to the unpaid wages claim, a jury had to decide what tasks the plaintiff was required to complete to be entitled to commissions; as to the claim for breach of the covenant of good faith and fair dealing, the plaintiff’s status as an at-will employee did not mean that no employment contract existed.

ENVIRONMENTAL LAW
TOWN OF KEARNY v. NEW JERSEY RAIL CARRIERS, LLC
Appellate Division, A-1304-04T5, September 28, 2005, not approved for publication. (10 pages). Facts-on-Call Order No. 18582

Dismissal of the suit filed by the plaintiff Town and its Health Department, alleging that the defendant company and its sole members and managers were operating a solid waste facility without obtaining the approvals required by the Solid Waste Management Act, affirmed; the trial court had concluded that the company was a rail carrier and was therefore exempt from the SWMA pursuant to the federal Interstate Commerce Commission Termination Act; the plaintiffs argued on appeal that the trial court erred because the defendants had agreed to comply with the SWMA in their earlier settlement agreement with the New Jersey Department of Environmental Protection; however, the settlement agreement specifically disavowed the creation of rights for third-party beneficiaries, and the plaintiffs therefore lacked standing to enforce it.

FROM THE ADMINISTRATIVE AGENCIES
SPECIAL EDUCATION
F.D. v. RAMSEY BOARD OF EDUCATION
OAL Docket No. EDS 9938-04, Agency Docket No. 2005 9434, Final Agency Decision: August 29, 2005, released for publication September 19, 2005. By McGill, ALJ. (48 pages).

The administrative law judge ordered the respondent Board of Education to reimburse the petitioner parents for half of the costs of a home-based program for their daughter from its inception until an individualized education program that provides the daughter with a free appropriate public education is offered and to supply the daughter with two months of remedial education. The parents moved with their daughter from Mississippi into the Board’s school district in the summer of 2004, and they notified the Board in November 2004 that they were withdrawing their daughter from its school and would seek reimbursement for a home-based program. The ALJ concluded (1) that the Board did not comply with the requirements concerning interim educational programs, (2) that the Board had not timely provided a free appropriate public education, (3) that the home-based program provided an appropriate education, (4) that reimbursement for the home-based program should be reduced by half because the unreasonable acts of the parties were “similar and approximately equal in seriousness,” and (5) that the daughter should receive two months of remedial education.

SPECIAL EDUCATION
D.T. v. ROCKAWAY TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 7593-05, Agency Docket No. 2005 10260, Final Agency Decision: September 6, 2005, released for publication September 19, 2005. By McKeown, ALJ (temporarily assigned). (6 pages).

On the petitioner mother’s request for due process, the administrative law judge authorized an independent evaluation of her 10-year-old son’s need for assistive technology in the form of computer programs but dismissed the remainder of her request, which sought an order to allow her to review her son’s entire educational record. The son’s individualized education program provided for him to attend fourth grade in the respondent Board of Education’s district and to receive language arts and mathematics instruction in the school’s resource room. Although the Board’s child study team did not believe that the son required any assistive technology, it was willing to provide the son with certain computer programs for in-school use. Based on the record, the ALJ determined that the mother was entitled to an independent evaluation pursuant to N.J.A.C. 6A:14-2(c) at the Board’s expense because assistive technology was a related service to which the son possibly was entitled. The ALJ also found a lack of evidence to support the mother’s assertion that her son’s educational record was not being shared with her.

SPECIAL EDUCATION
D.F. v. LIVINGSTON TOWNSHIP BOARD OF EDUCATION
OAL Docket No. EDS 11549-04, Agency Docket No. 2005 9389, Final Agency Decision: August 22, 2005, released for publication September 15, 2005. By LaFiandra, ALJ. (12 pages).

The administrative law judge ordered that the petitioner parents’ due process request to prevent the declassification of their daughter be dismissed and that an appropriate individual assistance plan be developed and implemented for the 2005-2006 school year. The daughter attended private school before enrolling as a freshman at the respondent Board of Education’s high school for the 2003-2004 school year. While in eighth grade, the daughter had been designated “other health impaired” based on her Attention Deficit Hyperactivity Disorder, but her individual service plan did not provide for special education services. The Board’s individualized education program for the daughter for the 2003-2004 school year was a “mirror image” of her ISP, she did not receive any special education services, and her IEP for the 2004-2005 school year essentially replicated her previous IEP. Based on a re-evaluation during the summer of 2004, the child study team determined that the daughter was not in need of special education services, and it moved to declassify her. The parents argued that the daughter fell within the “other health impaired” and “specific learning disability” classifications. The ALJ concluded that the Board’s decision to declassify the daughter was appropriate because her ADHD did not adversely affect her educational performance, because she did not suffer from a specific learning disability, and because she therefore did not need special education or related services.


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.)


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