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Sunday, October 15, 2017

AIR MASTER & COOLING, INC. VS. SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. A-5415-15T3


 AIR MASTER & COOLING, INC. VS. SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. 
A-5415-15T3 
In this declaratory judgment action, the court addresses legal issues of property damage coverage under a Commercial General Liability ("CGL") insurance policy. The coverage issues stem from lawsuits brought by a condominium association and unit owners to remediate construction defects within a residential building. The insured, an HVAC subcontractor, worked on the roof and elsewhere in the building. The defects concern the progressive infiltration of water within the building. 
After the contractor was named as a third-party defendant in the underlying construction defect cases, it sought a defense and indemnity from the insurers that had issued CGL policies to it over successive policy periods. The trial court granted summary judgment to Selective, one of those insurers, finding that the property damage had already manifested before its policy period commenced. 
In reversing summary judgment and remanding for further development of the record, the panel held: (1) a "continuous trigger" theory may be applied to third-party liability claims involving progressive damage to property caused by an insured's allegedly defective construction work; and (2) the "last pull" of that trigger occurs when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know of it. 

The panel rejected the subcontractor's novel argument that the last pull of the trigger does not occur until there is proof that "attributes" the property damage to faulty conduct by the insured. 

Sunday, October 8, 2017

Debra Dugan v. TGI Friday’s, Inc. (A-92-15; 077567)

Debra Dugan v. TGI Friday’s, Inc. (A-92-15; 077567) 
Ernest Bozzi v. OSI Restaurant Partners, LLC 
(A-93-15; 077556) 

Because CFA class action jurisprudence rejects “price-inflation” theories, such as the theory presented by the Dugan plaintiffs, as incompatible with the CFA’s terms, the Dugan plaintiffs have not established predominance with respect to their CFA claims. Bozzi’s allegations focus primarily on a specific pricing practice. If the Bozzi class is redefined to include only customers who make that specific CFA claim, and the claim is limited accordingly, plaintiff Bozzi has met the requirements of Rule 4:32-1 and may attempt to prove that claim on behalf of the class. As to the TCCWNA claims in both appeals, plaintiffs have failed to satisfy the predominance requirement of Rule 4:32-1. 

Tuesday, September 26, 2017

BBB VALUE SERVICES, INC. VS. TREASURER, STATE OF NEW NEW JERSEY, DEPARTMENT OF THE TREASURY, ETC. A-2973-14T3/


BBB VALUE SERVICES, INC. VS. TREASURER, STATE OF NEW
          NEW JERSEY, DEPARTMENT OF THE TREASURY, ETC.
          A-2973-14T3/A-4880-14T3
In these back-to-back appeals, Bed Bath & Beyond, Inc. (BB&B) and its subsidiary BBB-VSI appeal the denial by the Treasury Department's Unclaimed Property Administration (UPA) of their claim for a refund of the value of certain unclaimed merchandise return certificates. These certificates were provided by BB&B and BBB-VSI to customers who returned merchandise without a receipt. They could only be redeemed for other merchandise or services, and not for cash. The court concludes that for BB&B certificates issued between July 1, 1999 to June 30, 2010, the unused balances of these certificates should have been refunded by the UPA because they were not "property" within the scope of New Jersey's Uniform Unclaimed Property Act, N.J.S.A. 46:30B-1 to -109 (UUPA). UPA's denial of a refund is reversed. For certificates issued by BBB- VSI from July 1, 2010 to June 30, 2011, the certificates are not "credit memoranda" but rather constitute "stored-value cards" under the plain language of the UUPA as it was amended in 2010. The UPA erred in not refunding the value of these certificates because they were prematurely remitted by BBB-VSI. 

Sunday, September 17, 2017

JEFFREY SAUTER VS. COLTS NECK VOLUNTEER FIRE COMPANY NO. 2 A-0354-15T1


 JEFFREY SAUTER VS. COLTS NECK VOLUNTEER FIRE COMPANY NO. 2 
A-0354-15T1 

The court affirms the dismissal on summary judgment of a volunteer firefighter's whistleblower claim against Colts Neck Volunteer Fire Company No. 2, and several individual officers and members of the fire company, finding volunteer firefighters are not entitled to the protections of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. Because plaintiff is not an employee of the fire company, its vote to strip him of his membership in the organization in alleged retaliation for his letters to the fire company's fidelity carrier and Colts Neck's Executive Fire Council, even if true, is not a violation of CEPA. 

The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisades, LLC (A-101/102/


 The Palisades at Fort Lee Condominium Association, 
Inc. v. 100 Old Palisades, LLC 
(A-101/102/103/104-15; 077249) 

A construction-defect cause of action accrues at the time that the building's original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a claim. From that point, the plaintiff has six years to file a claim. A subsequent owner stands in no better position than a prior owner in calculating the limitations period. If a prior owner knew or reasonably should have known of a basis for a construction-defect action, the limitations period began at that point. Here, the Court cannot determine when the accrual clock commenced for each defendant based on the record before it and accordingly remands to the trial court. 

Sunday, September 10, 2017

NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION VS. JOSEPH DIVINCENZO AND JORGE MARTINEZ A-4131-15T3


 NEW JERSEY ELECTION LAW ENFORCEMENT COMMISSION VS. 
JOSEPH DIVINCENZO AND JORGE MARTINEZ 
A-4131-15T3 

The New Jersey Election Law Enforcement Commission (ELEC) appeals from an initial decision by an Administrative Law Judge (ALJ) that it lacked jurisdiction to issue a complaint. The initial decision was deemed adopted pursuant to N.J.S.A. 52:14B-10(c) at a time when the Commission lacked a sufficient number of members to act due to longstanding vacancies. The resulting question of first impression implicates the primacy of an administrative agency's decisional authority, the exclusive jurisdiction of this court to review agency action, and the interpretation of the deemed-adopted provision as applied to the circumstances here. An ALJ lacks any independent decisional authority and may not encroach upon the ultimate decisional authority of the agency. Interpreting the deemed-adopted provision under the circumstances here and in light of the constitutional mandate for appellate review of administrative agency action, we will not infer a legislative intent to foreclose review. Finally, we conclude that the common law quorum requirement applies to the Commission's issuance of a complaint and reverse the ALJ's decision. 

Monday, September 4, 2017

PATRICIA J. MCCLAIN VS. BOARD OF REVIEW, ET AL. A-4319-15T3

PATRICIA J. MCCLAIN VS. BOARD OF REVIEW, ET AL. 
A-4319-15T3 
Appellant left one job upon another's promise of employment. The new employer, however, rescinded the offer the day after appellant voluntarily quit the first job. The Board of Review affirmed the denial of appellant's application for unemployment benefits based on its interpretation of a 2015 amendment to N.J.S.A. 43:21-5(a), which exempts from disqualification "an individual who voluntarily leaves work with one employer to accept from another employer employment which commences not more than seven days after the individual leaves . . . the first employer." The Board determined that because appellant did not commence employment with the new employer, she was not entitled to the statutory exemption from disqualification. The court rejects the Board's interpretation of N.J.S.A. 43:21-5(a) and finds the exemption from disqualification does not require that the claimant actually commence employment with the new employer.