NEW JERSEY LAWYER

DAILY BRIEFING      09/08/2005


News Briefs

BIRTH MALPRACTICE CASE SETTLES FOR $1.5 MILLION
A Sussex County woman agreed to accept $1.5 million from a doctor, nurse and a hospital she accused of malpractice that resulted in brain damage to her daughter at birth. In O’Gorman v. Maugeri filed in Morris County, Jane O’Gorman alleged her daughter, Jane, was deprived of oxygen at birth in 2000 because of complications that could have been avoided if Dr. Joseph P. Maugeri and the nurse at the then-Northeast Covenant Medical Center and now part of Saint Clare’s Health Systems in Denville, had read a fetal monitor’s reading of distress. The girl is permanently paralyzed in one arm and leg, and is learning disabled, said plaintiff’s attorney Herbert M. Korn of Morristown. The defense argued the monitor did not show distress and that damage occurred before birth. MIIX, the medical malpractice insurer, will pay $1 million for the doctor — the maximum allowed under the state’s management of the carrier’s claims — and Princeton Insurance Co. will pay $500,000 for the nurse and hospital. Korn noted that if the case went to trial, MIIX’s payment would have been capped at $300,000 under the state’s future plan for back claims. Scott T. Heller of Morristown’s Giblin & Combs represented Maugeri, and Raymond J. Fleming of Sachs Maitlin Fleming Greene Marotte & Mullen in West Orange represented the nurse and hospital. 9-7-05

IOLTA FUND URGES LAWYERS TO ENSURE THEY’RE REGISTERED
The Interest on Lawyers’ Trust Accounts (IOLTA) program is advising lawyers the deadline to register their trust accounts with the agency is fast approaching. Attorneys failing do so face being declared administratively ineligible to practice. IOLTA will transmit a list of lawyers who haven’t registered by Sept. 23 to the New Jersey Supreme Court. Executive Director Ellen D. Ferrise urges those who haven’t received registration firms mailed last December to immediately call the fund at (732) 247-8222. 9-7-05

ASSOCIATION CREATED FOR CIVIL-RIGHTS ABUSE PRACTITIONERS
There’s a new organization being formed for lawyers focusing on civil rights abuses by police and other government entities. Robert A. Bianchi of Bianchi & Bianchi in Bloomfield and Jeffrey G. Garrigan of Jersey City’s Cammarata Nulty & Garrigan say their Association of Civil Rights Attorneys of New Jersey (ACRA) will provide a forum to exchange research and ideas, including evidence of illegal activities. ACRA will focus on a gamut of civil-rights abuses, primarily false arrests, malicious prosecution, assaults and police brutality. For details, contact Bianchi at (973) 680-9900 or HYPERLINK "mailto:robert@bianchilaw.net" robert@bianchilaw.net. 9-7-05

WHEN POLITICS DOESN’T MAKE FOR STRANGE BEDFELLOWS
Veteran Toms River attorney Lawrence R. Jones and his wife, Joni, apparently will make history of sorts when voters go to the polls in November to choose two Assembly members for the 10th District in largely Ocean County. They may well be the epitome of togetherness as they’re believed the first married couple seeking election here as running mates. The Joneses ran unopposed for the Democratic nominations in June and will face two long-serving Republican assemblymen, former Ocean County Prosecutor James W. Holzapfel and David W. Wolfe, in what historically shapes up as an uphill battle in a heavily Republican district. In fact, Republicans have held the Assembly seats there since 1992, even easily overcoming the landslide victory at the top of the 2001 election ballot by Democratic gubernatorial candidate James E. McGreevey. Jones does mediation work, is a member of the editorial board of New Jersey Lawyer magazine, and he and his wife, a nurse, are deeply involved in community work, especially focusing on children with disabilities. So what does a fellow say about running for election with his wife — a two-fer, if you will? “This has been a unique experience from a personal and marital standpoint, to say the least.” 9-7-05

BEER SALE BAN PROPOSED TO KEEP HOMELESS FROM PARKS
A Jersey City councilman has a new idea for reducing the number of homeless people in city parks — ban the sale of single containers of beer. “Panhandling and homelessness is becoming a real problem, so we have tried to stop feeding the beast,” said Steven Fulop, whose proposal is being reviewed by the city attorney’s office. Downtown merchants complain a ban would be bad for business because they make much more selling beer in single-serving containers than larger quantities. If there’s a ban, “they might as well come in here and shut my store down,” said one liquor storeowner. 9-7-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, SEPTEMBER 7, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, SEPTEMBER 7, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, SEPTEMBER 8, 2005.


APPROVED FOR PUBLICATION
SEARCH AND SEIZURE
STATE v. O’HAGEN
Appellate Division, A-2211-03T4, approved for publication September 7, 2005. (23 pages). Facts-on-Call Order No. 92656

The collection of a blood sample or other biological sample for DNA testing pursuant to New Jersey’s DNA Database and Databank Act of 1994 does not violate the right to be free from unreasonable searches and seizures. N.J.S.A. 53:1-20.20(g), which expands the Act to apply to every person convicted of a crime, does not violate the right to equal protection of the law.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
HANSULT v. HEINOWITZ
Appellate Division, A-6175-03T3, September 7, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18489

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA affirmed in part, reversed in part, and remanded; the motion court concluded (1) that there was insufficient objective evidence of a permanent injury to the plaintiff’s left wrist but that there was sufficient objective evidence of permanent injuries to her neck and back, (2) that she had presented a sufficient comparative analysis of the injuries that she sustained in the 1999 accident, which was the subject of this case, and a 1995 accident, but (3) that she had not presented sufficient evidence that her injuries had a serious impact on her life; the matter was reversed and remanded because the motion court’s decision regarding a serious life impact was not consistent with the New Jersey Supreme Court’s recent decision in DiProspero v. Penn; however, contrary to the defendant’s argument, the comparative analysis satisfied Polk v. Daconceicao; the claims relating to the plaintiff’s wrist were properly dismissed.

VERBAL THRESHOLD
TORRES v. SHANNON
Appellate Division, A-5799-03T2, September 7, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18490

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the motion court concluded (1) that the plaintiff was required to show that his injuries had caused a serious impact on his life and (2) that he had failed to do so; the New Jersey Supreme Court’s recent decision in DiProspero v. Penn held that the serious-life-impact requirement under Oswin v. Shaw did not survive AICRA; the defendant acknowledged that one of the predicates for the motion court’s grant of summary judgment no longer was sustainable in light of DiProspero; thus, the Appellate Division reversed the summary judgment order and remanded for further proceedings to consider the sufficiency of the proofs in light of DiProspero.

VERBAL THRESHOLD
MORGAN v. BIGGS
Appellate Division, A-6134-03T5, September 7, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18488

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 determined that the plaintiff’s injuries did not “substantially affect” his life, and the defendant appeared to acknowledge that one of the predicates for the trial court’s decision was its conclusion that a plaintiff must prove that his injury had a “serious impact” on his life; however, that conclusion was not sustainable after the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, which held that a plaintiff is not required to demonstrate a serious impact on his life under AICRA; on remand, the trial court must consider whether the proofs were sufficient in light of DiProspero.

INSURANCE
LEPORE v. FIRST TRENTON INDEMNITY CO.
Appellate Division, A-278-04T5, September 7, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18487

Jury verdict for the plaintiff insured in an action for underinsured motorist coverage and personal injury protection benefits affirmed; the defendant insurer denied coverage, asserting that the plaintiff had failed to pay his premium by the due date and that coverage had been cancelled due to non-payment by that date; the trial court allowed the plaintiff to assert that, under the mailbox rule, payment of the premium was made when it was mailed; the evidence supported the jury’s verdict, and there was no error in using the mailbox rule to determine the date by which the plaintiff had made his premium payment.

CIVIL ACTIONS
SEGAL v. GENERAL ELECTRIC CO.
Appellate Division, A-5307-03T2, September 6, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18486

Summary judgment for the defendant manufacturer in the plaintiff consumer’s action alleging fraud by deception and breach of contract affirmed in part, reversed in part, and remanded; as to the claims relating to the breach of service contracts that the consumer had purchased, summary judgment was proper (1) because, in all but one instance, the manufacturer amended or cancelled the contracts only when the appliance to which the contract related was replaced or when the contract duplicated the coverage provided by another contract and (2) because, in the remaining instance, the consumer offered no evidence of damage from the breach of contract that had not been satisfied; as to the claim for consequential damages to the consumer’s kitchen floor that resulted from the explosion of his oven, it was not barred by the service contract that applied and was remanded for trial; as to the claim arising from a damaged gas cooktop, the manufacturer had issued two $100 good will certificates that were cashed, and the doctrine of accord and satisfaction barred further relief.

PUBLIC EMPLOYEES
IN RE HICKS
Appellate Division, A-3568-03T5, September 6, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18484

Merit System Board judgment of $170,160.14 in gross back pay for the petitioner reinstated Newark police officer reversed and remanded to the Office of Administrative Law for a hearing on the issue of mitigation of damages; before the officer’s reinstatement, he was allegedly unemployed for 139 weeks, and the Board ordered that his back-pay award be reduced by the income that he could have earned during that period; the Board erred (1) by failing to refer the mitigation issue to the OAL for a hearing, (2) by concluding that the respondent City of Newark’s documentation did not constitute prima facie evidence that security guard positions were available, (3) by requiring the City to show that the officer “could have secured” a job like those contained in the newspaper advertisements that it presented, (4) by concluding that the officer demonstrated that he had made adequate efforts to mitigate, and (5) by concluding that the officer must have performed a job search because he had received unemployment compensation.

TAXATION
METUCHEN I, LLC v. METUCHEN BOROUGH
Appellate Division, A-1621-04T5 and A-1622-04T5, September 6, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18485

Tax Court order that granted the plaintiff landowner’s motion for relief under the Freeze Act for its 2001 and 2002 property tax assessments affirmed; in 2000, the Tax Court had reduced the assessment on the landowner’s property by subtracting the present value of the costs to remediate contamination on the property from the fair market value of the property “clear of contamination”; the Tax Court had based its calculation of the present value of the remediation costs on its assumption that the remediation would occur over a five-year period; because the landowner did not perform any remediation during 2001 and 2002, the Borough claimed on appeal that the present value of the remediation costs was reduced and that the value of the property was increased; however, the Tax Court properly held that there was no internal or external change regarding the property that warranted the denial of relief under the Freeze Act.

FROM THE FEDERAL COURTS
EMPLOYMENT LAW
MOSCA v. COLE
U.S. District Court (DNJ), Civil Action No. 03-168 (JEI), August 25, 2005. By Irenas, Senior U.S.D.J. (27 pages). Facts-on-Call Order No. 92654

In an action arising from the plaintiff’s termination from his position as a part-time Assistant City Solicitor for Atlantic City, the District Court granted the defendants’ motion for partial summary judgment as to the plaintiff’s federal law claims and declined to exercise supplemental jurisdiction over his state law claims, which were remanded to the New Jersey Superior Court. The District Court rejected the plaintiff’s claims that his termination (1) violated 42 U.S.C. §1981 because the reason for it was that he is white, (2) violated his right to procedural due process and equal protection of the laws under the Fourteenth Amendment, and (3) violated his right to free speech under the First and Fourteenth Amendments.


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