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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, call or

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Kenneth Vercammen & Associates, P.C.

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Sunday, July 17, 2016


          SUPREME COURT'S DECISION IN In Re Adoption of N.J.A.C.
          5:96, 221 N.J. 1 (2015)
We granted leave to appeal from an order entered by a designated Ocean County Mount Laurel judge requiring the court's Special Regional Master to include, as a new, "separate and discrete" component, an additional calculation for establishing a municipality's affordable housing need from 1999 to 2015 (the gap period). In entering the order, the judge concluded that a municipality's fair share affordable housing obligation for the third-round cycle is comprised of (1) its newly-created, court- imposed, "separate and discrete" gap-period obligation; (2) unmet prior round obligations from 1987 to 1999; (3) present need; and (4) prospective need.
The narrow legal issue on appeal is whether such a retrospective obligation is authorized by (1) the core principles of the Mount Laurel doctrine, as codified in the Fair Housing Act of 1985 (FHA), N.J.S.A. 52:27D-301 to -329; and (2) In re Adoption of N.J.A.C. 5:96 & 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015). Resolution of this legal question specifically addresses whether a municipality's prospective need involves a retroactive housing obligation starting in 1999. We focused on the propriety of the court's conclusion that such a "separate and discrete" obligation was "constitutionally mandated."
Applying the Mount Laurel doctrine and the plain language of the FHA, including its unambiguous definition of "prospective need" a forward "projection of housing needs based on development and growth which is reasonably likely to occur in a region or a municipality" and following the Supreme Court's admonition not to become an alternative administrative decision maker for unresolved policy issues surrounding the Third Round Rules, we held that the FHA does not require a municipality to retroactively calculate a new "separate and discrete" affordable housing obligation arising during the gap period. We acknowledged that identifiable housing need that arose during the gap period would be captured by a town's present need obligation.
We emphasized that under our tripartite system of government, the imposition of a new retrospective calculation, designed to establish affordable housing need during the gap
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period a new methodology that essentially addresses "unresolved policy details of replacement Third Round Rules" is best left for consideration by the Legislative and Executive branches of government, where public policy issues associated with such an additional obligation can be fairly and fully debated in the public forum. The Legislature may craft new legislation addressing such a retrospective need that may have arisen during any gap period between housing cycles if that is the course it wishes to take. Enforcement of subsequent legislation promoting affordable housing needs and its effect on a municipality's Mount Laurel obligation would still be a matter that may be brought to the courts. 


In this case, we address the constitutionality of N.J.S.A. 19:31-6.3(b), which requires all eligible persons to register to vote no later than twenty-one days prior to an election. Plaintiffs assert they should be permitted to register to vote on election day, and that the twenty-one-day advance registration requirement improperly infringes on their right to vote under N.J. Const. art. II, § 1, ¶ 3(a). Based upon our review of the record and applicable law, we conclude that the statute furthers the fundamental State interest in preserving the integrity of New Jersey's electoral process, while imposing no unreasonable burden upon plaintiffs' right to vote. Therefore, we conclude that N.J.S.A. 19:31-6.3(b) is constitutional.
In a concurring opinion, Judge Ostrer notes that it is the job of the Legislature to determine the mode and manner of voting, and our role is limited to reviewing the constitutionality of legislative policy judgments enacted into law. Therefore, he would find twenty-one-day advance registration constitutional without adopting the policy judgments discussed in the majority opinion that support it. 

IMO the Imposition of Probation on Eastwick College LPN to RN Bridge Program (A-35-14

IMO the Imposition of Probation on Eastwick College
          LPN to RN Bridge Program (A-35-14; 074772)
          Based on the plain language of N.J.A.C. 13:37-
          1.3(c)(2), the Board’s construction of its regulation
          is plainly unreasonable.  Accordingly, the Board
          improperly denied accreditation to Eastwick’s Bridge

Brenda Ann Schwartz v. Accuratus Corporation (A-73-14; 076195)

Brenda Ann Schwartz v. Accuratus Corporation (A-73-14;
          The duty of care recognized in Olivo v. Owens-
          Illinois, Inc., 186 N.J. 394 (2006) may, in proper
          circumstances, extend beyond a spouse of a worker
          exposed to a workplace toxin that is the basis for a
          take-home toxic-tort theory of liability.

Globe Motor Company v. Ilya Igdalev (A-43-14

Globe Motor Company v. Ilya Igdalev (A-43-14; 074996)
          The record before the motion court, when viewed under
          the summary judgment standard prescribed by Rule 4:46-
          2(c), did not establish plaintiffs’ right to judgment
          as a matter of law.  When all legitimate inferences
          are drawn in defendants’ favor, as required by the
          summary judgment standard, there exists a genuine
          issue of material fact on the critical question of
          whether the settlement monies paid to Globe were Auto
          Point’s assets, or, instead, were owned by defendant’s
          friend and owed to defendant.

Workers comp carrier gets reimbursed from PI settlement








June 22, 2016

Argued May 16, 2016 - Decided

Before Judges Lihotz, Fasciale and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-401-13.


                                                                                    SUPERIOR COURT OF NEW JERSEY
                                                                                    APPELLATE DIVISION
                                                                                    DOCKET NO.  A-3160-14T1
Plaintiff Tina Talmadge appeals from a January 29, 2015 order denying to declare the medical benefits portion of a workers' compensation lien unenforceable.  The Hartford intervened in this matter seeking reimbursement from any recovery the defendant tortfeasor paid to plaintiff.  On appeal, plaintiff argues because benefits that could have been paid through plaintiff's personal injury protection (PIP) provisions of her automobile liability policy are not recoverable from the tortfeasor, a workers' compensation lien for payment of similar costs should be denied.  We disagree and affirm.
The facts are not disputed.  Plaintiff, while working for her employer, Child and Family Services, Inc., was driving her personal automobile when involved in an auto accident caused by defendant Connie Burns.  As a result of the accident, plaintiff underwent an anterior cervical fusion.  The Hartford, as the workers' compensation carrier of plaintiff's employer, paid plaintiff over $127,000 in medical, wage, and indemnity benefits. 
Plaintiff filed a complaint and ultimately settled her claims against Burns in the amount of Burn's auto insurance policy limit of $250,000.  The Hartford asserts a workers' compensation lien of $84,510.78 against this third-party recovery. 
Plaintiff moved to reduce The Hartford's claimed lien.  She argued The Hartford's inclusion of any medical benefits paid to plaintiff was legally unenforceable and not subject to reimbursement.  The Law Division judge denied plaintiff's motion, citing N.J.S.A. 34:15-40 (section 40) of the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -142.  Plaintiff filed this appeal.   
In enacting the Act, the Legislature sought to streamline recovery of benefits to workers injured in the course of employment.  Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 583-84 (2015).  Under the Act's remedial no-fault system, qualified employees receive medical treatment and limited compensation "without regard to the negligence of the employer."  Id. at 584 (quoting N.J.S.A. 34:15-7); see also Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006) ("[T]he remedial purpose of the Workers' Compensation Act [is] to make benefits readily and broadly available to injured workers through a non-complicated process.").
Section 40 permits a workers' compensation insurance carrier to seek reimbursement of benefits it pays when a third party, other than the employer, caused the employee's injury.  Utica Mut. Ins. Co. v. Maran & Maran, 142 N.J. 609, 613 (1995) ("Under section 40, the workers' compensation carrier is entitled to reimbursement whether or not the employee is fully compensated.").  The statute provides:
(a)       The obligation of the employer . . . under this statute to make compensation payments shall continue until the payment, if any, by such third party or his [or her] insurance carrier is made.

(b)       If the sum recovered by the employee   . . . from the third person or his [or her] insurance carrier is equivalent to or greater than the liability of the employer  . . . under this statute, the employer . . . shall be released from such liability and shall be entitled to be reimbursed, . . . for the medical expenses incurred and compensation payments theretofore paid to the injured employee . . . less employee's expenses of suit and attorney's fee as hereinafter defined.

[N.J.S.A. 34:15-40(a)-(b).]

More specifically, "section 40 prevents the worker from retaining any workers' compensation benefits that have been supplemented by a recovery against the liable third party."  Utica, supra, 142 N.J. at 613. 
Plaintiff argues, as a no-fault insured, she may not recover medical benefits from another no-fault insured.  Since The Hartford's subrogation rights are limited to claims plaintiff may assert, N.J.S.A. 34:15-40(f), she concludes the workers' compensation carrier has no entitlement to attach the recovery from the tortfeasor to recover medical expenses it previously paid.  We reject this syllogism as an inaccurate statement of the law. 
The statutory construct under the no-fault insurance system provisions of the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1 to -35, is "intended to serve as the exclusive remedy for payment of out-of-pocket medical expenses arising from an automobile accident" as a "trade-off for lower premiums and prompt payment of medical expenses."  Caviglia v. Royal Tours of Am., 178 N.J. 460, 466-67 (2004) (citing Roig v. Kelsey, 135 N.J. 500, 503, 511-12 (1994)).  Accordingly, an injured no-fault insured person who receives PIP benefits may not seek recovery from the tortfeasor for claims resulting from "medical, hospital and other losses for which he had already been reimbursed."  Bardis v. First Trenton Ins. Co., 199 N.J. 265, 279 (2009) (quoting Cirelli v. Ohio Cas. Ins. Co., 72 N.J. 380, 387 (1977)).  Thus, the Legislature did not intend "to leave the door open for fault-based suits when enacting the No-Fault Law."  Roig, supra, 135 N.J. at 516.
When an employee suffers an automobile accident while in the course of employment, workers' compensation is the primary source of satisfaction of the employee's medical bills, as provided by the collateral source rule, N.J.S.A. 39:6A-6, which "relieves the PIP carrier from the obligation of making payments for expenses incurred by the insured which are covered by workers' compensation benefits."  Lefkin v. Venturini, 229 N.J. Super. 1, 7 (App. Div. 1988).  "Where only workers' compensation benefits and PIP benefits are available, the primary burden is placed on workers' compensation as a matter of legislative policy by way of the collateral source rule of N.J.S.A. 39:6A-6."  Id. at 9 (citing Aetna Ins. Co. v. Gilchrist Bros., Inc., 85 N.J. 550 (1981)).
In instances where an employee, as a result of a work related automobile accident injury, also has a claim for recovery against a third party, the Legislature overcame the possible "inequity of double recovery" by including section 40, which requires an injured employee to refund paid workers' compensation benefits once recovery is obtained from the tortfeasor, thereby avoiding duplication of the workers' compensation benefits by the tort recovery.  Frazier v. New Jersey Mfrs. Ins. Co., 142 N.J. 590, 597-98 (1995).  The statute clearly permits an employee who received workers' compensation benefits to seek recovery against the third-party for those benefits, including paid medical expenses.  The statute also expressly entitles the workers' compensation carrier to repayment of all benefits paid to the employee.  See Greene v. AIG Cas. Co., 433 N.J. Super. 59, 68 (App. Div. 2013).  
In Greene, we stated "[i]t has long been understood that the clear intent of [s]ection 40 . . . is to prevent an injured employee from recovering and retaining workers' compensation payments, while at the same time recovering and retaining the full damages resulting from a third-party tort suit."  Id. at 64 (citing United States Cas. Co. v. Hercules Powder Co., 4 N.J. 157, 163–65 (1950)).  This is so even if the net recovery after satisfaction of the workers' compensation lien does not fully compensate the employee.  Frazier, supra, 142 N.J. at 602.
            Accordingly, there is no basis to interfere with the Law Division order.  The employer's workers' compensation carrier's lien, which includes medical expenses paid, must be satisfied from plaintiff's $250,000 recovery from Burns.  N.J.S.A. 34:15-40(b). 

Sunday, June 26, 2016

Mortgage Grader, Inc. v. Ward & Olivo, LLP (A-53-14;

Mortgage Grader, Inc. v. Ward & Olivo, LLP (A-53-14; 075310) 

The requirement in Rule 1:21-1C(a)(3) that law firms organized as LLPs maintain malpractice insurance does not extend to the firm’s windup period when the law firm has ceased performing legal services, and does not require purchase of tail insurance. In addition, the violation of Rule 1:21-1C(a)(3) does not result in automatic conversion of a law firm organized as an LLP into a GP. As a result, Mortgage Grader had no vicarious liability claim against Ward.