To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Kenneth Vercammen was included in the 2011 “Super Lawyers” list published by Thomson Reuters.

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on litigation topics. He was awarded the NJ State State Bar Municipal Court Practitioner of the Year. He lectures for the Bar and handles litigation matters. He is Past Chair of the ABA Tort & Insurance Committee,GP on Personal Injury and was a speaker at the ABA Annual Meeting attended by 10,000 attorneys and professionals. To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or

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Kenneth Vercammen & Associates, P.C.

2053 Woodbridge Avenue - Edison, NJ 08817

(732) 572-0500

Sunday, April 19, 2015

I/M/O TOWN OF HARRISON AND FRATERNAL ORDER OF POLICE,LODGE NO. 116

I/M/O TOWN OF HARRISON AND FRATERNAL ORDER OF POLICE,LODGE NO. 116;I/M/O VERNON TOWNSHIP PBA LOCAL 285 CONTRACT;I/M/O BOROUGH OF RAMSEY AND PBA LOCAL NO. 155;I/M/O TOWNSHIP OF WOODBRIDGE AND PBA LOCAL 38;I/M/O CITY OF LINDEN AND FMBA LOCAL NO. 234;I/M/O TOWN OF HARRISON AND FMBA LOCAL NO. 22;I/M/O TOWN OF
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HARRISON AND PBA LOCAL NO. 22;I/M/O TOWN OF HARRISON AND FMBA LOCAL NO. 22;I/M/O CITY OF LINDEN AND FMBA LOCAL 234 A-0083-11T2/A-0099-11T2/A-0123-11T2/A-0124-11T2/A- 0157-11T2/A-0158-11T2/A-0159-11T2/A-0195-11T2/A-0208- 11T2(CONSOLIDATED)
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Five
officers and firefighters employed by them have mounted a collective legal challenge to the Acting Director of the Division of Pensions and Benefits' decision to refuse to implement the final determination of the Board of Trustees of the Police and Firemen's Retirement System, which found certain senior officer and longevity pay provisions in the collective bargaining agreements entered into by appellants were creditable compensation for pension purposes under N.J.S.A. 43:16A- 1(26)(a).

The singular legal question before us is whether the Acting Director of the Division of Pensions and Benefits has the legal authority to refuse to implement a final decision of the PFRS Board of Trustees because the Acting Director has independently concluded that the decision of the PFRS Board of Trustees is legally incorrect. We hold the action of the Acting Director to refuse to implement a final determination made by the PFRS Board of Trustees concerning what constitutes creditable compensation for pension purposes under N.J.S.A. 43:16A-1(26)(a) in these cases was ultra vires, without legal force or effect. Final determinations of the PFRS Board of Trustees are reviewable only by this court. N.J.A.C. 17:4-1.7(e); R. 2:2-3(a)(2).
     Judge Ashrafi has filed a separate concurrence.

ENVIROFINANCE GROUP, LLC AND EARTHMARK NJ KANE MITIGATION, LLC VS. ENVIRONMENTAL BARRIER COMPANY, LLC A-2475-12T4/

ENVIROFINANCE GROUP, LLC AND EARTHMARK NJ KANE
          MITIGATION, LLC VS. ENVIRONMENTAL BARRIER COMPANY, LLC
          A-2475-12T4/A-6202-12T3(CONSOLIDATED)
In this complex litigation, plaintiff EFG, provided construction financing to plaintiff Earthmark, to develop an
municipalities and the unions that represent police
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environmental
Meadowlands
contractor,
leasehold interest in the project when payment was not made. Defendant later moved for a default judgment against Earthmark and EFG attempted to oppose the motion. We concluded, as did the trial judge, EFG's secured creditor status was not a sufficient financial stake in the outcome to confer standing to

mitigation bank on wetlands owned by the Conservation Trust. Defendant, the primary filed construction liens against Earthmark's

challenge the nature and amount of obligations between Earthmark and defendant. EFG had the opportunity but chose not to invoke provisions of its financing agreements allowing it to assume Earthmark's role in the project.
Also examined were respective contract and equitable relief claims, including whether the construction liens were barred by the public works exception of N.J.S.A. 2A:44A-5(b). We upheld the liens, determining they did not attach to the public property, but to Earthmark's private leasehold interest. 

LISA LLEWELYN VS. JAMES SHEWCHUK A-0596-13T1


LISA LLEWELYN VS. JAMES SHEWCHUK
          A-0596-13T1
In this case, we consider whether an adult child made a sufficient showing that she is not emancipated and entitled to continued support from her father, who had adopted her at an early age and later became divorced from her mother. The daughter voluntarily left her mother's home at the age of twenty to live with her biological father, obtained part-time employment, sporadically attended school and arranged for her support in reliance upon the financial relationship she entered into with her biological father and his wife, who were under no obligation to support the daughter. We reject the daughter's argument she is not emancipated and that she has not moved beyond her parents' sphere of influence or responsibility or obtained an independent status of her own. While we recognize a child's right to pursue support from a parent, even if the child no longer resides with either, we affirm the Family Part's order, granting the father's motion to terminate child support because his adult daughter was emancipated. 

NEW JERSEY HEALTHCARE COALITION, ET AL. VS. NJ DEP'T OF BANKING AND INSURANCE //

NEW JERSEY HEALTHCARE COALITION, ET AL. VS. NJ DEP'T OF BANKING AND INSURANCE // NEW JERSEY COALITION FOR QUALITY HEALTHCARE VS. NJ DEP'T OF BANKING AND INSURANCE // NEW JERSEY ASS'N FOR JUSTICE VS. NJ DEP'T OF BANKING AND INSURANCE // UNITED ACUPUNCTURE SOCIETY OF NEW JERSEY VS. NJ DEP'T OF BANKING AND INSURANCE
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A-1038-12T2/A-1445-12T2/A-1636-12T2/A-1792-
          12T2(CONSOLIDATED)
On a facial challenge by health care providers and other interested parties, we upheld Department of Banking and Insurance regulations, governing reimbursement to health care providers in PIP cases and related issues. We noted that, in some important respects, the Department had clarified its interpretation of the regulations in ways that appeared to satisfy appellants' concerns, and we found the Department's interpretation of the regulations reasonable. We also considered the Department's expressed commitment to monitor the regulations as implemented, to ensure that accident victims are not prevented from obtaining prompt and appropriate medical treatment. We declined to adjudicate a challenge to a portion of the regulations that had not become effective pending planned further amendments. 03/31/15

RACHEL A. PARSONS, ET AL. VS. MULLICA TOWNSHIP BOARD OF EDUCATION, ET AL. A-0643-14T4


RACHEL A. PARSONS, ET AL. VS. MULLICA TOWNSHIP BOARD OF EDUCATION, ET AL.
A-0643-14T4 3/30/15 
Plaintiffs sued the Board of Education and the school nurse for failing to report the results of a school vision acuity screening as required by N.J.A.C. 6A:16-2.2(k)(6). We hold the nurse was not immune under N.J.S.A. 18A:40-4.5 as it applies only to the Act requiring scoliosis examinations. We hold the nurse and the Board are immune under N.J.S.A. 59:6-4 of the Tort Claims Act (TCA) for "failure . . . to make an adequate physical or mental examination." A vision screening is a physical examination under the TCA, and failure to report the results is a failure to make an adequate examination.
Reporting the results is a ministerial act, but N.J.S.A. 59:2-3 and 3-2 only exempt ministerial acts from the general discretionary immunity in those sections, not the specific immunities in the TCA. N.J.S.A. 59:6-4 provides absolute immunity, including for ministerial acts. That specific immunity trumps the TCA's general liability provisions, which are subject to any immunity provided by law. 

Terry Kuchera v. Jersey Shore Family Health Center


Terry Kuchera v. Jersey Shore Family Health Center
          (A-60-13; 073483)
          The site of plaintiffs fall was part of a nonprofit
          health care corporation organized exclusively for
          hospital purposes.  Defendants, therefore, are not
          entitled to absolute immunity, but rather are entitled
          to the limitation of damages afforded to nonprofit
          institutions organized exclusively for hospital
          purposes. 3-31-15   
In this appeal concerning a premises liability action, the Court addresses whether a health care facility is entitled to charitable immunity pursuant to N.J.S.A. 2A:53A-7, or the limited liability afforded to nonprofit entities organized exclusively for hospital purposes pursuant to N.J.S.A. 2A:53A-8. 
On Saturday, March 7, 2009, plaintiff attended a free eye screening conducted by the New Jersey Commission for the Blind and Visually Impaired (Commission) at the Jersey Shore Family Health Center (Family Health Center). After registering for her screening, plaintiff slipped and fell on the tile floor. As a result, plaintiff allegedly sustained injuries, including a torn ligament in her ankle, and herniated and bulging discs in her back.
The Family Health Center is a nonprofit charitable clinic in the Meridian Health hospitals system. It is located in Neptune in a separate building next to the Jersey Shore University Medical Center (Medical Center). The Family Health Center provides medical care for those “who are uninsured, underinsured, without a primary care physician and/or who lack access to regular medical care.” The Medical Center, a 600-bed hospital, is one of six hospitals that comprise the Meridian Health system. The Medical Center provides a spectrum of specialized care including cardiac, oncology, behavioral health, and pediatrics, and conducts several residency programs. Meridian Health and its constituent hospitals were organized as a nonprofit organization within the meaning of Section 501(c)(3) of the Internal Revenue Code. Meridian Health was organized, generally, to operate hospitals and health care facilities, to promote or carry on educational and research activities, to render necessary health care regardless of the patient’s ability to pay, and to promote and protect the health and welfare of the general public.
Plaintiff filed a complaint against the Family Health Center, the Medical Center, Meridian Health, and Modern Health Realty, the record owner of the property (collectively the Meridian Health defendants), seeking compensatory damages for her injuries. An initial motion for summary judgment was denied, but, on the day of trial, the Meridian Health defendants renewed their motion, and the trial judge conducted a hearing focused on the Medical Center’s status. Noting that the central issue was whether the entity is organized exclusively for hospital purposes or for religious, educational, and/or hospital purposes, the court determined that the Medical Center has a hybrid purpose that includes educational and charitable services as well as the operation of a hospital. The court, therefore, concluded that the Meridian Health defendants are entitled to the absolute immunity conferred on certain charitable organizations by N.J.S.A. 2A:53A-7, and dismissed plaintiff’s complaint with prejudice.
The Appellate Division affirmed in an unpublished decision. The panel accepted the hybrid purpose analysis, concluding that “in addition to maintaining a hospital, defendants also provide the beneficial services listed in [N.J.S.A. 2A:53A-7] and are, therefore, not engaged solely in hospital functions to the exclusion of educational and charitable purposes.” The Court granted plaintiff’s petition for certification. 217 N.J. 287 (2014).
HELD: The site of plaintiff’s fall was part of a nonprofit health care corporation organized exclusively for hospital purposes. Defendants, therefore, are not entitled to absolute immunity, but rather are entitled to the limitation of damages afforded to nonprofit institutions organized exclusively for hospital purposes.
1. The Charitable Immunity Act, N.J.S.A. 2A:53A-7 to -11 (CIA or the Act), provides immunity for certain charitable institutions. However, the Legislature’s codification of charitable immunity was not universal: certain personnel were not immune from liability for negligence, and nonprofit hospitals were granted a cap on damages from liability for negligence rather than immunity.  N.J.S.A. 2A:53A-7 to -13.1. (pp. 9-10).
2. To emphasize the distinction between certain entities, the CIA addressed nonprofits organized exclusively for charitable, religious, or educational purposes, and those organized for hospital purposes in separate sections.  N.J.S.A. 2A:53A-7 and -8. The most prominent distinction between nonprofit entities organized exclusively for charitable, religious, or educational purposes and nonprofits organized exclusively for hospital purposes is that the former are immune from liability, N.J.S.A. 2A:53A-7(a), while the latter are subject to liability for negligence, albeit with a cap on its damages, N.J.S.A. 2A:53A-8. The immunity bestowed by the CIA extends to the buildings and other facilities actually used for the purposes of the qualifying organization, such as a hospital.  N.J.S.A. 2A:53A-9. Further, N.J.S.A. 2A:53A-10 instructs that the CIA is remedial legislation and should be liberally construed so as to further the legislative purpose of immunity. (pp. 11-12) 
3. By the plain language of N.J.S.A. 2A:53A-7 and -8, a hospital is subject to limited liability under section 8 if it is formed as a nonprofit corporation, society, or association, is organized exclusively for hospital purposes, was promoting those objectives and purposes at the time the plaintiff was injured, and the plaintiff was a beneficiary of the activities of the hospital. Thus, this appeal is confined to the issue of whether the free eye screening conducted at the Family Health Center can be considered a hospital purpose. (pp. 13-14)
4. Few cases have addressed the phrase “organized exclusively for hospital purposes” in the context of the CIA. To begin, the term “exclusively” used in sections 7 and 8 of the CIA has been interpreted as meaning single or sole. Recently, the Court discussed the meaning of the phrase “organized exclusively for hospital purposes” in the context of considering whether an offsite facility owned and operated by a nonprofit hospital was exempt from local property taxation.  Hunterdon Med. Ctr. v. Twp. of Readington, 195 N.J. 549 (2008). There the Court stated that “the core aspects of a hospital’s purposes are to address the needs of all of the types of patients that a hospital is expected to serve,” and further held that the site of the delivery of the service does not detract from its inclusion as a hospital purpose.  Id. at 572. Thus, as recognized by the courts of this State and courts around the country, the modern hospital is a place where members of the community not only seek emergency services but also preventative services, therapy, educational programs, and counseling, and the conception of “hospital purposes” must expand to reflect the many health-related pursuits of the modern hospital. Accordingly, to advance the legislative mandate that the CIA be liberally construed to effectuate its purpose, the Court focuses on the many medical pursuits of a modern New Jersey hospital. (pp. 14-18)
5. Whether a nonprofit entity, whose certificate of incorporation and by-laws provide that it is organized exclusively for charitable, religious, educational, or hospital purposes, actually conducts its affairs consistent with its stated purpose often requires a fact-sensitive inquiry. After reviewing the principles applicable to a modern hospital, the Court concludes that the Meridian Health defendants, and specifically the Medical Center and its Family Health Center, are governed by the more specific expressions of legislative intent regarding hospitals articulated in N.J.S.A. 2A:53A-8. Thus, the Meridian Health defendants are subject to liability for negligence applicable to nonprofit corporations, associations, and societies organized exclusively for hospital purposes with any damage award capped at $250,000. The Appellate Division’s judgment to the contrary – specifically that the Meridian Health defendants were immune from liability pursuant to N.J.S.A. 2A:53A-7 – utilized a restrictive concept of a hospital that did not account for the multi-function nature of the modern hospital and its role in the provision of health care in this society. (pp. 19-23)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for further proceedings consistent with this opinion. 
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON join in JUDGE CUFF’s opinion.

MANUEL GUAMAN, et al. v. JENNIFER VELEZ, COMMISSIONER OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES


MANUEL GUAMAN, et al. v. JENNIFER VELEZ, COMMISSIONER
          OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES, et al.
          (A-87-13; 073371)
          Judgment of the Appellate Division is affirmed,
          substantially for the reasons expressed in Judge
          Reisner’s majority opinion reported at 432 N.J. Super.
          230 (App. Div. 2013).  3-30-15 
Manuel Guaman, et al. v. Jennifer Velez, Commissioner of New Jersey Department of Human Services, et al. (A-87-13) (073371)

(NOTE: The Court did not write a plenary opinion in this case.  Instead, the Court affirms the judgment of the Appellate Division, substantially for the reasons expressed in Judge Reisner’s majority opinion reported at 432 N.J. Super. 230 (App. Div. 2013).  Two members of the Court dissent, substantially for the reasons expressed in Judge Harris’s dissenting opinion reported at 432 N.J. Super. 230, 249 (App. Div. 2013).)

Argued February 2, 2015 -- Decided March 30, 2015

PER CURIAM 

In this appeal, the Court considers whether, consistent with the United States Constitution and the New Jersey Constitution, the State may eliminate state-funded Medicaid benefits for adult legal permanent resident aliens who, because they do not meet the federal five-year residency requirement set forth in the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), 8 U.S.C. §§ 1601-1646, do not qualify for federally-funded Medicaid benefits.

U.S.C. § 1601(3). PRWORA, in part, excludes lawfully admitted permanent resident aliens from receiving any Federal means-tested public benefit for a period of five years following their entry into the United States. 8 U.S.C. § 1613(a). 

New Jersey responded to PRWORA by excluding legal aliens from the Medicaid program unless they satisfied the Federal five-year residency requirement. In 2005, however, the State deleted the residency requirement in light of findings that limiting State subsidized healthcare coverage had resulted in increased costs for emergency hospital charity care. In 2010, due to a budget crisis, the Senate reinstated the five-year residency requirement for most adult legal aliens, continuing to provide coverage only for legal aliens who were pregnant women or children under the age of nineteen and for existing enrollees receiving on-going life sustaining treatment or treatment for life threatening illnesses. Additionally, per Medicaid Communication 10-01 and N.J.A.C. 10:78-3.2, legal resident aliens who did not meet the residency requirement were terminated from enrollment in the NJ FamilyCare Program, a state-funded Medicaid program offering subsidized health insurance to qualifying low-income adults and children.

2 On January 11, 2011, the Appellate Division granted plaintiffs, who are legal resident aliens who have resided in this country for less than five years, leave to file a motion for emergent relief seeking to enjoin the enforcement of the termination of their enrollment in FamilyCare. Plaintiffs contended, in part, that the termination of their benefits violates the equal protection guarantees of the Federal and State Constitutions. On July 12, 2011, the Appellate Division denied plaintiffs’ motion for a preliminary injunction, Guaman v. Velez, 421 N.J. Super. 239 (App. Div. 2011) (Guaman I), and this Court denied plaintiffs’ motion for leave to appeal.

2 On August 13, 2013, the Appellate Division issued a published opinion affirming the adoption and amendment of the relevant regulations and finding that the challenged policy does not violate either the Federal or State Constitutions.  Guaman v. Velez, 432 N.J. Super. 230 (2013) (Guaman II). The panel noted that it agreed with the legal analysis in Guaman I and that the opinions should be read together. It further explained that, although discrimination against aliens ordinarily must be justified under a strict scrutiny standard of review, Congress’s broad constitutional power over immigration means that the rational basis standard of review applies to Congressional enactments affecting immigrants and to state enactments authorized by a uniform federal policy. In support of this conclusion, the panel referred to Mathews v. Diaz, 426 U.S. 67 (1976), in which the United States Supreme Court reinforced the deference due to Congress’s authority over immigration-related benefit issues, noting that, not only may Congress treat aliens differently from citizens, but it may differentiate between different classes of aliens in determining how to distribute welfare benefits. The Court also determined that it is unquestionably reasonable for Congress to base an alien’s eligibility on the character and duration of his residence. Likewise, in Plyler v. Doe, 457 U.S. 202 (1982), the Court determined that if the Federal Government issued a uniform rule prescribing appropriate standards for the treatment of an alien subclass, states may follow that direction.

Considering the “uniform rule” doctrine in the context of PRWORA, the Appellate Division panel noted that 8 U.S.C. § 1601(7) expresses Congress’s finding that important national immigration policy is furthered by state statutes that follow the Federal classification in determining the eligibility of aliens for public assistance. The panel points out that Congress’s decision to leave the states some discretion to fund healthcare coverage for non-qualifying aliens does not necessarily mean that it created a “non-uniform” system. The question, then, is whether this statement of national policy, viewed in light of the overall structure of Medicaid, is sufficiently “uniform” to constitutionally authorize states to follow Congress’s policy choice. 

Viewing the uniform rule through a broad lens, the panel determined that when states conclude that they cannot afford to provide state Medicaid or Medicaid-like benefits to aliens, they are implementing Congress’s choice that recent immigrants should not unduly burden the public treasury. Moreover, in the face of a congressional decision to cut off funding for a group of aliens, states cannot be required to restore that coverage using solely state funds. Here, there is no dispute that the State opted to exclude legal resident aliens from FamilyCare for solely financial reasons, rather than some invidious discriminatory purpose. Thus, the panel held that the State’s action was authorized by PRWORA, falling “within the umbrella of the uniform policies articulated in § 1601,” and that neither the Federal nor State Constitutions bar the State from acting consistent with PRWORA by denying Medicaid benefits to legal aliens who do not meet the five-year residency requirement.

Judge Harris dissented, unable to reconcile the termination of long-provided, state-funded health insurance benefits for thousands of impoverished resident aliens with the principles of equality guaranteed by the Federal and State Constitutions. Specifically, Judge Harris does not agree that the State’s residency requirement is immunized by its mirroring of federal objectives, correspondence to an identifiable congressional policy, or harmony with the federal program. Consequently, Judge Harris would deem the regulations unconstitutional and would remand to the trial court to fashion appropriate remedies.

Plaintiffs appealed as of right.

HELD: The judgment of the Appellate Division is AFFIRMED, substantially for the reasons expressed in Judge Reisner’s majority opinion. 

CHIEF JUSTICE RABNER and JUSTICE ALBIN dissent, substantially for the reasons expressed in Judge Harris’s dissenting opinion. 

JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and SOLOMON join in this opinion. CHIEF JUSTICE RABNER and JUSTICE ALBIN dissent. JUDGE CUFF (temporarily assigned) did not participate.