Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

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

(732) 572-0500

Saturday, December 22, 2007

ABA GP Solo TORT AND INSURANCE COMMITTEE NEWSLETTER December, 2007

ABA GP Solo TORT AND INSURANCE COMMITTEE NEWSLETTER December, 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Chair: Patricia Sexton, Kansas City

Kenneth Vercammen, Esq. Deputy Chair & Editor

In this Issue:
1.What to Expect in a Personal Injury Case
2 Season's greetings
3. More Personal Injury and Civil Litigation articles added to website http://njpersonalinjurylawcenter.com/:
4. WE PUBLISH YOUR FORMS AND ARTICLES


1.What to Expect in a Personal Injury Case


Compiled by Kenneth A. Vercammen, Esq

The procedures in a Plaintiff personal injury case may take from six months to several years, and a client’s patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice. The following a is portion of the details you may wish to inform your new personal injury clients after you have been retained:

Procedurally, the following events occur in most personal injury cases. First, your Attorney must complete our investigation and file. This will involve the collection of data from your physician, your employer, and our investigator. When we feel that we have sufficient information to form an opinion as to the financial extent of your damages, we will commence negotiations with the opposition for a settlement.

Filing of Complaint

If early settlement is not productive, then a complaint is filed, and the parties
served with notice that a claim has been made. The opposition then is given a fixed time to file what is known as an "Answer." The Answer if usually followed by a request for written interrogatories. These are questions that must be answered by the claimant with the aid of counsel. Generally, written interrogatories are followed by the taking of depositions, which is recorded testimony given under oath by any person the opposition wishes to question.


Doctor/ Treatment

It will help your case to tell us and your doctors about any injury or
medical problems before or after your accident. Good cases can be lost by
the injured person's concealing or forgetting an earlier or later injury or
medical problem. Insurance companies keep a record of any and all claims
against any insurance company. The insurance company is sure to find out if you have ever made a previous claim.

Tell your doctors all of your complaints. The doctor's records can only be
as complete as what you have given. Keep track of all prescriptions and
medicines taken and the bills therefore. Also save all bottles or containers
of medicine.

Diary

You should keep a diary of your experiences since your accident. In addition to this daily record, we also ask you to start describing a single day in the course of your life. In other words, describe what you do when you get up in the morning, the first thing you do after you go to work, what type of work and effort do you put into your employment, what activities you engage in after work, etc.

In other words, we need you to describe the changes in your working life,
your playing life, your life as a husband or wife or child or parent. In your written description of your day, we would appreciate your explanation in the greatest detail possible and in your own words how the accident and subsequent injuries have affected your life, your personality, and your outlook.

And remember that suffering does not entail mere physical pain; suffering can be emotional and can be transmitted to your family and friends, at work and at play. When you have completed this description, please return it to this office in the enclosed envelope.

Record Medical and out of pocket expenses

You can also begin to set up a system for recording the expenses incurred in conjunction with your claim in minute detail. Medical and legal expenses are a strong part of the value of your lawsuit, so good records of these expenses must be kept at all times. Your attorney will keep track of your legal expenses, which may include costs of filing, service of process, investigation, reports, depositions, witness fees, jury fees, etc.

From time to time, however, there will be expenses incurred that you must keep track of yourself. We ask you to make every effort to avoid any possible error or inaccuracy as jurors have a relentless reverence for the truth. Keep your canceled checks and your list of expenses together, for we will need them at a later date.

The Deposition

The deposition is just as important as the trial itself, and in the event you are deposed during the course of this action, you will receive detailed instructions as to procedure. After taking depositions, the case will be set down for trial. Following the setting of the case for trial, there will be preliminary conferences commonly known as pretrial hearings.

Altogether, these procedures may take from six months to several years, and your patience may be sorely tried during this time. However, it has been our experience that clients who are forewarned have a much higher tolerance level for the slowly turning wheels of justice.


Do not discuss the case

The insurance company may telephone you and record the conversation or send an adjuster (investigator) who may carry a concealed tape recorder. You should not discuss your case with anyone.

Obviously, we cannot stress too strongly that you not discuss this matter
with anyone but your attorney or immediate, trusted family. You should sign no documents without the consent of this office. Remember that at all times you may be photographed and investigated by the opposition. If you follow the simple precautions which we have set out in your checklist, we feel that we will be able to obtain a fair and appropriate amount for your injuries. If you get any letters from anyone in connection with your case, mail or fax them to your attorney immediately.

* Questioning: If any person approaches you with respect to this accident without your attorney's permission, make complete notes regarding the incident. These notes should include the name and address of the party, a description of the person, and a narrative description of what was said or done. Under no circumstances should you answer any question(s). All questions should be referred to your attorney's office.


* Surveillance: Remember at all times that you may be under surveillance and, therefore, subject to being photographed or filmed by the adverse party. Be advised that there are cases where photographs and films have been introduced in court showing claimants who were allegedly in serious condition participating in activities which they alleged they were unable to do. You do not have to live in fear of being photographed, of course, if your cause is a just one.

However, when carrying on your usual activities, keep in mind at all times that you are subject to investigation. If you have been seriously injured, do not do anything that will jeopardize your case during the course of your daily life. You should always follow your doctor's advice. If you have to do things which cause you pain, this can usually be explained to the full satisfaction of any court or jury.

There are cases where the insurance agent has attempted to discredit a
personal injury plaintiff by taking movies of the claimant engaged in various physical activities. In one case, large rocks weighing over one hundred pounds were placed at the door of the garage during the night so that claimant would have to be forced to remove the rocks in order to drive to work. This, of course, was filmed and used to discredit the plaintiff's claim in court.

Kenneth Vercammen, Esq.
Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appears in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

2 Season's greetings from Kenneth Vercammen, Esq., his family and Frizby the dog.
See photo http://www.njlaws.com/vercammen_family_2007.htm
One of the pleasures of this holiday season is the opportunity it gives to thank many people for their friendship, goodwill and the very pleasant association we enjoy. We sincerely appreciate this relationship and are thankful for the confidence many people have shown in us. We appreciate continued referrals. We want to take the time to extend to our friends and clients our sincere gratitude because it is good friends and clients that make our business grow. Client recommendation is a very important source of new clients to us. We are grateful for the recommendation of new clients. We will do our best to give all clients excellent care. We shall do our best to justify all recommendations.
In the true spirit of the season, may we all be thankful and share in the hope for peace on earth and goodwill toward our fellow man.
May the new year bring happiness and good health to you and those you love.

More Holiday cheer at this great site:
http://holidays.blastcomm.com/


HAPPY HOLIDAYS & SEASON'S GREETINGS WORLDWIDE:
Wesoly Siat, Bozega Narodzenia [Merry Christmas in Polish}
FROHE
WEIHNACHTEN
PRÓSPERO AÑO NUEVO
HAPPY NEW YEAR
FRIEDEN
GLÜCKLICHES NEUES JAHR
JOYEUX NOËL
PRETTIGE
KERSTDAGEN
GELUKKIG
NIEUWJAAR
BUON
NATALE
BONNIE ANNEE
HYVÄÄ JOULUA

3. More Personal Injury and Civil Litigation articles added to website http://njpersonalinjurylawcenter.com/:

What to do in an Accident
What to Expect in a Personal Injury Case
What is a Deposition?
Dog Bites
Uninsured & Underinsured Injury Cases
Workers' Compensation
Hit and Run Injuries
Fall Down Law in New Jersey Based on Jury Request to Charge
Accident Victims Rights: Insurance to Pay for Medical Treatment
NJ Medical Fee Schedule
Lost Wages
Submission of Bills to Car Ins.
Filing of Complaint
Investigation of Defendant Ins.
Interrogatory Questions to Plaintiff
Diary & Record keeping
Subpoenas in a Court Case
Wrongful Death
Medical Malpractice
Personal Injury: Winning Strategies - Book Available
Fighting Insurance Companies
Personal Injury Interview Form
Personal Injury Fact Sheet



4. WE PUBLISH YOUR FORMS AND ARTICLES

The American Bar Association Tort & Insurance Law Committee of the General Practice Division monitors federal and state legislation affecting rules of procedure and tort reform The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.
Articles needed for American Bar Association Tort & Insurance Law Committee Newsletter
They feature a newsletter with Personal Injury forms and articles plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Tort and Insurance Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.


_______________________

TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division

Chair: Patricia Sexton, Kansas City

Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
kenv@njlaws.com
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/

Sunday, December 2, 2007

In Re the Contest of the November 8, 2005 General Election for the Office of Parsippany-Troy Hills

11-8-07

This election contest petition is sufficient to withstand the
motion to dismiss for failure to state a claim.

Pascack Valley Regional High School Board of Education v. Pascack Valley Regional Support Staff Association

10-29-07 (A-96-05)

When the parties have agreed that nontenured school employees
may be disciplined only for just cause and have defined any
dismissal as a disciplinary action subject to the grievance
procedures at the employees’ option, a mid-term contract
termination imposed as punishment for behavior that would
otherwise call for imposition of discipline falls within the
collective agreement’s definition of dismissal subject to the
grievance procedures.

Talib Turner v. Associated Humane Societies, Inc.

11-30-07 A-2604-06T2

Plaintiff employee of defendant non-profit animal shelter
expressed reservations to his supervisor, and through him, to
the owner, about adopting out a Doberman that had attacked its
previous owner, who then paid the shelter to euthanize it.
Instead of putting the animal to sleep, and despite plaintiff's
reservations, defendant approved the adoption, only to have the
Doberman maul its new owner to death eleven days later.
Plaintiff cooperated with defendant's internal investigation by
outside counsel and shortly thereafter, he was terminated. His
CEPA lawsuit was dismissed on directed verdict after plaintiff's
case-in-chief, the trial judge finding that plaintiff did not
have a reasonable belief that defendant's conduct violated any
public policy (N.J.S.A. 34:19-3(c)(3)), or any law (N.J.S.A.
34:19-3(c)(1) and (a)(1)) inasmuch as defendant, as a non-profit
entity, was exempt from the provisions of the Consumer Fraud Act
(CFA).

We reversed and remanded for trial, finding that for
purposes of section (c)(3), our Legislature, in a number of
enactments, has recognized the serious and widespread threat
that unprovoked dog attacks pose to the safety and welfare of
our citizens, and that there was proof that plaintiff had an
objectively reasonable belief that defendant's decision to adopt
out this dog was inherently incompatible with New Jersey's
public policy.

As to plaintiff's claim under section 3(c)(1) and (a)(1),
the fact that defendant may not be subject to the CFA is not
dispositive. A CEPA plaintiff need not show his or her employer
actually violated a specific law, rule or regulation, only that
plaintiff reasonably believes this to be the case. It suffices
that from the proofs here there appears an arguably reasonable
basis for believing that defendant engaged in activity violative
"of a law . . . involving deception of, or misrepresentation to,
any . . . customer . . . of the employer . . . ." N.J.S.A.
34:19-3(a)(1).

Ted M. Rosenberg, et al. v. State of New Jersey, Department of Law and Public Safety

11-30-07 A-0578-06T3

We remanded for a more detailed articulation of reasons
where Law Division denied plaintiff's request, under the common
law "right to know" doctrine, to release approximately 2000
pages of documents. We held that the Law Division judge should
have made specific factual findings, focusing either on
individual documents or groups of documents. Without such
findings, we are unable to determine if the Law Division judge
abused his discretion. If necessary, those factual findings
should be made in a separate, sealed decision, pending appellate
review. Plaintiff has a personal interest in the release of
these public records, as the documents relate to an
investigation focused on an alleged attempt to impact
plaintiff's appointment to a public position.

Nicholas Impink v. David Reynes

11-29-07 A-3448-06T5

We decided in this case that a trial court may not modify a
settlement agreement using its parens patriae powers without the
consent of the parties in approving an infant settlement
pursuant to Rule 4:44-3. Instead, it may reject the settlement
if it finds it not to be "fair and reasonable as to its amount
and terms."

Thomas and Karen Janicky v. Point Bay Fuel, Inc.

11-28-07 A-1165-06T3

The sole purpose of a certification of finality under Rule
4:42-2 is to permit execution on a partial summary judgment
fully adjudicating a separable claim for affirmative relief.
The appealability of an interlocutory order certified as final
is solely an ancillary consequence of such a certification.
Therefore, a litigant may not secure a certification of finality
from a trial court to circumvent this court's exclusive
authority to determine whether leave should be granted to appeal
an interlocutory order.

Angela Hoag v. Commissioner Devon Brown

11-27-07 A-5537-05T2

Plaintiff is a licensed clinical social worker employed by
Correctional Medical Services, an independent contractor, who
assigned her to Southern State Correctional Facility to provide
mental health services for prison inmates. Plaintiff alleged
that a corrections officer threatened and physically and
verbally abused her. She appeals from a summary judgment
dismissing her hostile work environment claim under the New
Jersey Law Against Discrimination. The court dismissed her
claim because she was not an employee of the State. The judge
also dismissed her negligent retention and supervision claim
against the State because she failed to meet the verbal
threshold of the Tort Claims Act based on her psychological
injuries. We reinstated both claims and discussed in the
opinion why she could be considered an employee of the State for
purposes of the Law Against Discrimination. We also discussed
the elements necessary to vault the Tort Claims Act verbal
threshold when a plaintiff only suffers psychological injuries.

Christopher P. Calbi v. Linda J. Calbi

11-21-07 A-5053-05T1

Former husband sought termination of alimony obligation to
former wife for causing the death of their fifteen-year-old son
and her subsequent conviction for second-degree assault. Held
that the facts of the case did not constitute "egregious fault"
so as to terminate alimony. However, the former husband is
entitled to show how the death of his son and its effect upon
him led to adverse economic consequences including accumulated
arrears. Further held that both alimony and payment on arrears
suspended while former wife is incarcerated, and upon her
discharge she is required to make an a new application for
alimony.

Housing and Redevelopment Authority of the Township of Franklin v. Bertha Miller

11-19-07 A-2463-06T2

In federally subsidized public housing, the commission of a
disorderly persons offense, or a petty disorderly persons
offense, justifies eviction of the tenant when the tenant's
conduct threatens the health or safety of other tenants, or
their right to peaceful enjoyment of the public housing
premises.

Michael Koruba v. American Honda Motor Co., Inc.

11-19-07 A-5953-05T5

Despite manufacturer's warnings in the owner's manual and
oral warnings by the retail seller at time of sale, plaintiff
attempted an extreme jump on his sports all terrain vehicle
(ATV), resulting in serious injury. We affirmed the summary
judgment dismissal of his product liability failure-to-warn
lawsuit, finding the expert's opinion on the need for on-product
labeling a net opinion based on neither epidemiological data or
empirical research linking such need to the magnitude of the
risk associated with jumping.

We also found no basis for the expert's other opinion that
Honda's promotional marketing of its ATV sent a "mixed message"
to consumers, resulting in their failure to heed the warnings
actually given. Although in some circumstances counteracting
representations may nullify an otherwise suitable warning, here
there was no evidence that Honda promoted its product in such a
manner, and furthermore Honda was not responsible for general
depictions appearing elsewhere in the media. Nor was Honda
under a duty, as suggested by plaintiff's expert, to instruct on
how to "safely" jump its ATV, that is to instruct on how to use
a product in a manner the manufacturer has expressly warned
against.

Lastly, we upheld the dismissal of plaintiff's negligence
action against the seller, finding that the Product Liability
Act is the exclusive remedy for personal injury claims arising
out of product use.

Bienvenido Morel v. State Farm Insurance Company

11-16-07 A-1464-06T5

There is generally no right to appeal from a trial judge's
decision in a case arising under The New Jersey Alternative
Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30.
But the losing party may appeal when, as here, the judge
completely failed to apply the standards of review required of
trial judges by that statute. Our review of a failure to apply
the statute at all comes within our supervisory function over
the trial courts.

Shana Faith Massachi v. AHL Services Inc.

11-15-07 A-1113-06T1

The Tort Claims Act immunity afforded by N.J.S.A. 59:5-4
for failure to provide police protection or sufficient police
protection does not immunize a public entity from liability for
a 9-1-1 operator's negligent performance of his or her
ministerial responsibilities in the handling of an emergency
call. We do not address the public entity's alternate immunity
claim under N.J.S.A. 52:17C-10(d).

Ocean Medical Imaging Associates d/b/a Ocean Medical Imaging Center

11-13-07 (A-0362-06T1)

The appellants-ambulatory care facilities (ACF) challenge
the validity of the Department of Health and Senior Services
regulations adopted to implement N.J.S.A. 26:2H-18.57 imposing
an assessment charged to certain ACFs. The revenues collected
from the assessment finance hospital charity care.

The assessment calculation is bottomed on an ACF's gross
receipts. Appellants sought to exclude from annual gross
receipts "pass through" payments made to independent contractors
and revenue for services other than those listed in the statute.
We conclude the Legislature purposely chose to use gross
receipts to calculate an ACF's assessment, rather than some
other calculation, such as adjusted gross income or net income.
The statute failed to provide for exclusions as proposed by
appellants. Thus, the agency's rulemaking falls within the
bounds of its statutory authority.

Finally, we reject appellants' constitutional challenge to
the regulation that uses a prior year's gross receipts to
compute the future year's assessment.

Vincent F. Baldassano v. High Point Insurance Company

11-08-07 A-2183-06T1

Plaintiff was a passenger in a car involved in a one
vehicle accident. He settled with the driver for the driver's
policy limit of $100,000 but claimed his damages exceeded that
amount and sought underinsured motorist (UIM) coverage from his
auto insurance carrier, High Point Insurance Company (High
Point). The UIM claim was denied because plaintiff's UIM limit
of $100,000 had been met by the driver's insurance policy.
Plaintiff claimed that in 1998 when he first purchased the
policy, the agent failed to explain the coverage options, the
agent checked the boxes on the coverage selection form, and the
agent failed to provide a buyer's guide. Plaintiff renewed the
policy twelve times before the accident without inquiring about
or changing the policy limits and transferred the policy twice
to new vehicles.

We affirmed and held that under N.J.S.A. 17:28-1.9 the
insurer is immune from liability under the circumstances
presented where (1) the insured executed a coverage selection
form on which the coverage selections had been checked by the
agent; (2) the insured renewed the policy twelve times before
the accident; and (3) the insured could not refute the carrier's
claim that the agent provided "a written notice identifying [all
coverage information] and containing a buyer's guide and
coverage selection form" as required by N.J.S.A. 39:6A-23(a) and
(c).

Citizens Voices Association v. Collings Lakes Civic Association

11-08-07 A-1025-06T3

We affirmed the Chancery judge's holding that certain deed
restrictions in a lake community were still enforceable. In the
decision, we reviewed the standards for modifying or terminating
servitudes. In addition, we reviewed the standards for an
abandonment of restrictive covenants. Lastly, we examined the
res judicata consequences of a judgment that deals with
continuing relief.

The Port Authority of New York and New Jersey v. Airport Auto Services, Inc.

11-01-07 A-1458-06T5

In an action brought by the Port Authority of New York and
New Jersey, a counterclaim may not be pursued unless the
counterclaimant has filed the required notice of claim and
waited the required sixty days before filing the counterclaim.
Invoices submitted to the Port Authority in the ordinary
course do not constitute substantial compliance with the notice
of claim statutes.

Andrew McKenzie v. Jon Corzine

10-26-07 A-0703-07T3

Plaintiffs filed this action seeking a determination that
the interpretive statement the New Jersey Stem Cell Research
Bond Act of 2007 unfairly describes the question the voters are
being asked to decide at the upcoming general election because
it fails to discuss the impact on human cloning and fails to
adequately discuss the Act's fiscal impact on the State. The
court affirmed the trial judge's denial of injunctive relief and
dismissal of the complaint, concluding that the Legislature's
interpretive statement was entitled to great deference and that
it represented a fair description of the contents of the Act.

Rock Work, Inc. v. Pulaski Construction Co., Inc.

10-25-07 A-0381-06T2

Under the Arbitration Act of 2003, N.J.S.A. 2A:23B-1 to
-32, when an arbitration agreement was made before January 1,
2003, and the parties did not agree thereafter on the record
that the Act would govern their arbitration, the Act only
applies if the arbitration was commenced after January 1, 2005,
and "commencement" refers, not to the date the hearings began,
but to the date on which the request for arbitration was made.
The arbitrators' rulings on procedural matters, such as the
order and extent of closing arguments, are not reviewable in
court.

Under the Act, the "American Rule" applies to fee shifting
unless fee shifting is authorized by law in a civil action
involving the same claim or by the express agreement of the
parties. An implied agreement is insufficient.

Camie Livsey v. Mercury Insurance Group

10-24-07 A-1238-06T5

Uninsured motorist benefits are available to a plaintiff in
a random, drive-by shooting.

ABA TORT AND INSURANCE COMMITTEE NEWSLETTER Fall, 2007

ABA TORT AND INSURANCE COMMITTEE NEWSLETTER Fall, 2007
ABA General Practice, Solo and Small Firm Division American Bar Association
Chair: Patricia Sexton, Kansas City

Kenneth Vercammen, Esq. Deputy Chair & Editor

In this Issue:
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
3. BALANCE BILLING between the Medicaid program and the Medicare program.
4. WE PUBLISH YOUR FORMS AND ARTICLES


1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN

By: Thomas D. Begley, Jr., Esquire

What could be done when the Medicaid lien is so large that it would consume all or a substantial portion of the recovery.

A recent United States Supreme Court case has provided personal injury attorneys with ammunition to reduce a Medicaid lien in a personal injury case so that the payment to the State Medicaid Agency is fair and reasonable. After a series of cases around the country divided on the issue as to whether the State Medicaid Agency may recover from that portion of a settlement not earmarked for past medical expenses the United States Supreme Court decided the issue in the Ahlborn case,[1]The Court held that federal law requires states to ascertain the legal liability of third parties and to seek reimbursement for medical assistance to the extent of such legal liability. The state is considered to have acquired the rights of the injured party to payment by any other party for such health care items or services. As a condition of Medicaid eligibility, the individual is required to assign to the state any rights to payment for medical care from any third party. The Arkansas statute required that if the lien exceeds the portion of the settlement representing medical costs, satisfaction of the lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings.

In the Ahlborn case, the plaintiff was involved in an automobile accident. Medicaid paid $215,645.30 on her behalf. Plaintiff filed suit for past medical costs and for other items, including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled for $550,000, which was not allocated between categories of damages. The parties stipulated that the settlement amounted to approximately 1/6th of the reasonable value of Ahlborn’s claim. The court stated that the federal requirement that states “seek reimbursement for medical assistance to the extent of such legal liability” refers to the legal liability of third parties to pay for care and services available under the plan.” Here, because the plaintiff received only 1/6th of her overall damages, the right of the state of Arkansas was limited to 1/6th of the past medical claim or $35,581.47.

The court also held that 42 U.S.C. §1396p(a)(1) prohibits states from imposing liens “against the property of any individual prior to his death on account of medical assistance paid...on his behalf under the state plan.” This prevents the state from attaching the non-past medical portion of the settlement. As a result of this ruling, states can assert a Medicaid lien only against that portion of a settlement earmarked for past medical expenses. The state may not recover against non-medical expense claims, such as pain and suffering, loss or earnings and permanent loss of future earnings. Needless to say, it is good practice in a personal injury settlement to make a clear allocation of damages.

Allocation is not only important, but must be fair. As Justice Stevens said in the Ahlborn opinion, “Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the state’s interest can be avoided either by obtaining the state’s advanced agreement to an allocation or, if necessary, by submitting the matter to a court for a decision.”

Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.

2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE

By Kenneth Vercammen, Esq.

In the 21 years I have been practicing law I have developed many ideas and systems to better serve Personal Injury clients. My clients consist primarily of Middle class working people who need a good attorney. I was fortunate early in my career to realize that skills in running an office and handling staff were essential whether I became a partner or opened my own practice. Help your practice by inexpensive improvements in service to clients.
YOU WORK FOR YOUR CLIENTS
Famous Department stores instruct all employees "The Customer is Always Right". You should adopt this maxim. I am a solo which several support staff so I am manage the business. Yet, I am still an employee. You work for your clients. They can fire you whenever they want. Use to Dale Carnegie approach to win friends and influence people. Be nice to your clients. Even if you win, clients will not come back if you don't "serve" and please them.
The waiting area is an excellent area to provide clients with Legal Consumer Material. I write brochures to educate my clients on different areas of law. We now have 19 brochures which cover basic topics such as Auto Accidents, Wills, Criminal Law, Probate, Personal Injury, Cooperating With Your Attorney, Living Will, Expungements and Drunk Driving. These assist clients by given them an idea about how cases may progress and sometimes explaining their responsibilities. Hopefully they will read them and save them for future use.
Insurance companies do not pay money even on good cases unless plaintiff's counsel is properly prepared. Preparation for the case begins during the initial telephone call by the perspective client to your office. Your secretary should ascertain the person's name, who referred them, and what type of matter (i.e. automobile, fall down, medical malpractice, products liability). The following are 15 quick tips to better serve your clients in soft tissue cases and maximize recovery:
1. Referrals to Doctors - Don't just give one referral, give at least three. Advise your clients that under law they are primarily responsible for all medical bills. The primary responsibility for medical bills is not their car insurance or their private insurance or the defendant.

2. Contested Liability Auto - Go to the scene of the accident. Determine the size of the streets. Look at the location of businesses. This shows greater traffic than a residential area. In a more substantial case, have your investigator go door to door to speak with potential witnesses.

3 Obtain Time Sheets of Property Owner in Slip and Fall Cases - In slip and fall cases, you may wish request from production of documents the time sheets and payroll for the date of the accident prior to the deposition of the manager and other employees.

4. Certified Copies - Obtain certified copies of hospital records and other documents that are prepared in the ordinary course of business. If they are certified there is less of an obstacle to admission of these records at trial.

5. Deposition of Plaintiff - The witness should say "That's all I remember" instead of "Those are the only injuries that I have." Explain to your clients that a deposition is not their opportunity to tell their story. Their clients should be frustrated that they did not get to tell their story the way they wanted. Make sure they know that they should answer yes or no but not to volunteer information.

6. Witnesses - It is a good idea to have all witnesses interviewed and provide a signed statement. You want them to be the witness, not yourself to be the witness and disqualify yourself if their statement at trial is inconsistent with what they may have told you over the phone.

7. Docket Numbers on Correspondence Help the Court - In all letters to the court and motion's clerk, put the complete case name and docket number. If it is to an adjuster or a defense insurance counsel, put the claim number.

8. Defense Doctor Reports - Send the defense doctor reports to the treating doctor prior to trial so they can review the report and advise you as to the weakness in the defense report and the weakness of the defense doctor. It is not recommended to give a report to the plaintiff because that will make them angry.

9. Lien Considerations - Protect yourself. There will occasionally be Medicare, potential welfare liens, workman's compensation liens, and doctors liens. If a Letter of Protection was signed, you as the attorney will be responsible. If there is a Letter of Protection or lien, write it in big letters on the outside of the file. However, doctors also have responsibilities to cooperate.

10. Rules for Professional Conduct - Be careful in what you say and do. I lived in Edison where there were four attorneys, with offices outside Edison, who faced serious disciplinary charges in connection with solicitation at the Texas Eastern Gas Pipeline/ Durham Woods explosion.

11. Preparing Arbitration Statements and Settlement Conference Brochures - These should be easy to read for the Arbitrator or Judge to get to the immediate point of what your damages are. Set forth:

1 - Date and details of accident;
2 - Injuries;
3 - Medical treatment;
4 - Present complaints;
5 - Medical expenses;
6 - Other damages (e.g. Wage loss)
7 - Other important information; and
8 - Medical and evidence documents.

We send a draft Arbitration Statement to our client first for them to review and modify, especially what their present complaints may be. Arbitration should be considered a dry run for trial. You should have proof of your wage lost claim rather than your client just simply testifying what they lost. You should have everything there present to go except the $3,000.00 doctor testifying.
Waiting Time at Arbitration - While waiting for the arbitration, spend every minute preparing the client over and over again until you know the file blindfolded. We often have the client's read every doctor's report.


12. Request for Admissions - When we send the Arbitration Statement to arbitration, we also send the Arbitration Statement to the Defense Attorney with all the medical and evidence documents together with a Request for Admissions Regarding the Genuiness of Documents. Therefore, we are asking them to admit the genuineness and accurateness of documents such as police reports, hospital records, tax records or wage loss forms plus certain doctor's records. In addition, this provides a useful exhibit list for trial. Computers are great to store information and this will help you to pre-mark exhibits in case the matter has to go to trial.

13. Subpoena Witnesses to Arbitration - We have, on occasion, served subpoenas on defendants and witnesses to appear at the Arbitration. I want to determine (1) If they are available; and (2) what they would say at trial or deposition.

14. Settlement Conference Days - We have found success in contacting our Civil Case Manager and asking that they schedule 6-7 of our cases post-arbitration for a Settlement Conference. This way this is much more efficient use of time as the plaintiff's attorney rather than making 7 separate trips for free to the courthouse. The judges will often try to assist you because they wish to wrap the cases up. By having many cases there, you as the plaintiff's attorney are operating in a position of strength and you are not wasting an afternoon.

15. Preparation for Trial of the Case - Preparing your witnesses - There are many excellent videos to prepare clients for trial, depositions, and defense exams. Chiropractors often give patients brochures describing how to explain pain.
CONCLUSION
Keeping clients informed and happy goes a long way to improving the public perception of the Legal Profession. Work hard and keep your clients happy.
As a practicing trial attorney I try to be pleasant to our clients and all people would contact our office. Being a solo in a full service Law Office, we have to rely on our commitment to clients to pay office expenses, the mortgage and travel to Bar events in exciting places.
Be proud of the Legal Profession, communicate to your clients and be civil. Hopefully, the few ideas which have helped me succeed may help you develop your practice. If you have any suggestions on improving service and representation to Soft Tissue personal injury clients, drop me a note, fax or email: kenvnjlaws@verizon.net


Kenneth A. Vercammen is an Edison, Middlesex County, New Jersey trial attorney who has published 125 articles in national and New Jersey publications on personal injury and litigation topics. He has lectured on Personal injury and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton, PA District Magistrate.



3. BALANCE BILLING between the Medicaid program and the Medicare program.

By: Thomas D. Begley, Jr., Esquire


There is a significant difference on the issue of balance billing between the Medicaid program and the Medicare program.

1. Medicaid. Medicaid reimbursement rates are very low and as a result it is often difficult to obtain services because providers refuse to accept Medicaid. It is not possible for the patient to pay the difference between the private pay rate and the Medicaid pay rate. This is known as balance billing. Medicaid participating providers must accept the Medicaid payment as “payment in full.”[1] This means that providers accepting Medicaid waive their right to bill Medicaid beneficiaries for any amounts over the Medicaid payment.

Several states have refused to allow providers to assert liens against Medicaid beneficiaries where there is clear third party liability and the Medicaid beneficiary has obtained a significant tort recovery.

In Illinois,[2] the hospital brought an action against the Medicaid agency to allow it to refund the Medicaid reimbursement so that it could sue the Medicaid beneficiary who had obtained a substantial tort judgment. The Seventh Circuit held that the hospital could not refund the Medicaid payment to the Medicaid agency and sue the Medicaid beneficiary. The Court noted, “Medicaid is a payer of last resort.” The state can seek reimbursement from third parties, but private providers may not.

In a similar case in Florida,[3] the hospital placed a lien on the settlement award, but the court held that when a Medicaid patient obtains a tort recovery in excess of the medical expenditures paid by Medicaid, that recovery is meant to go to the injured party, not the provider. A similar result was reached in another Florida case.[4]

A federal appellate court has found that a hospital’s lien on the proceeds of a malpractice settlement was invalid and unenforceable because the hospital had already accepted Medicaid payments for the care provided to the patient.[5] “By accepting Medicaid payments, Spectrum waived its right to its customary fee for services provided to Bowling...” “Although Medicaid rates are typically lower than a service provider’s customary fees, medical service providers must accept state-approved Medicaid payment as payment in full and may not require that patients pay anything beyond that amount.”

California invalidated two state statutes authorizing provider liens against Medicaid beneficiaries.[6] The statutes authorized providers to file liens against recoveries obtained by Medicaid beneficiaries even after the provider received Medicaid. The court found that the state statutes were preempted by federal legislation banning balance billing.

2. Medicare. Previously, Medicare had a prohibition against billing Medicare beneficiaries in excess of the payment made by Medicare. Participation has been limited to providers who agreed to accept Medicare as payment in full. Recent changes in the Medicare law[7] now permit a provider to bill a Medicare beneficiary or assert a lien against the beneficiary's recovery obtained from the tortfeasor by way of settlement or award.[8]

In the seminal case,[9] a hospital sought to recover from the Medicare patient more than it received from Medicare reimbursement. The 1st Circuit held that the fact that the patient recovered more than Medicare reimbursed the hospital did not entitle the hospital to charge the patient the difference between its full fee and Medicare's lower flat fee. The agreement between Medicare and the hospital was that in exchange for Medicare guaranteeing payment to the hospital, there would be no additional payment required from the Medicare beneficiary.

The recent changes now allow providers to bill the liability insurer or place a lien against the Medicare beneficiary's recovery.

142 U.S.C. §1396a(a)(25)(c); 42 C.F.R. §447.15; 42 U.S.C. §1320a-7b(d) .
2 Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).
3 Mallo v. Public Health Trust of Dade County, 88 F.Supp.2d 1376 (S.D. Fla. 2000).
4 Public Health Trust of Dade County v. Dade County School Board, 693 So.2d 562 (Fla. Dist. Ct. App. 1996).
5 Spectrum v. Bowling, 410 F.3d 304 (6th Cir. 2005).
6 Olszewski v. Scripps Health, 135 Cal. Rptr. 2d 1 (Cal. 2003).
7 68 Fed. Reg. 43940 (July 25, 2003).
8 42 C.F.R. 411.54(c)(2).
9 Rybicki v. Hartley, 782 F.2d 260 (1st Cir. 1986).

Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.

4. WE PUBLISH YOUR FORMS AND ARTICLES

The American Bar Association Tort & Insurance Law Committee of the General Practice Division monitors federal and state legislation affecting rules of procedure and tort reform The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.
Articles needed for American Bar Association Tort & Insurance Law Committee Newsletter
They feature a newsletter with Personal Injury forms and articles plus tips on marketing and improving service to clients. Kenneth Vercammen of Edison serves as the Editor. Please email articles, suggestions or ideas you wish to share with others in the Tort and Insurance Committee. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. The ABA is increasing the frequency of publication of their email newsletter. Send us your short tips on your great or new successful marketing techniques. You can become a published ABA author.


_______________________

TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division

Chair: Patricia Sexton, Kansas City

Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
kenv@njlaws.com
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/

Sunday, November 25, 2007

ABA TORT AND INSURANCE COMMITTEE NEWSLETTER Fall, 2007

ABA TORT AND INSURANCE COMMITTEE NEWSLETTER Fall, 2007
American Bar Association General Practice, Solo and Small Firm Division
Chair: Patricia Sexton, Kansas City

Kenneth Vercammen, Esq. Deputy Chair & Editor

In this Issue:
1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN
2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE
3. BALANCE BILLING between the Medicaid program and the Medicare program.
4. WE PUBLISH YOUR FORMS AND ARTICLES


1. USING THE AHLBORN DECISION TO REDUCE A MEDICAID LIEN

By: Thomas D. Begley, Jr., Esquire

What could be done when the Medicaid lien is so large that it would consume all or a substantial portion of the recovery.

A recent United States Supreme Court case has provided personal injury attorneys with ammunition to reduce a Medicaid lien in a personal injury case so that the payment to the State Medicaid Agency is fair and reasonable. After a series of cases around the country divided on the issue as to whether the State Medicaid Agency may recover from that portion of a settlement not earmarked for past medical expenses the United States Supreme Court decided the issue in the Ahlborn case,[1]The Court held that federal law requires states to ascertain the legal liability of third parties and to seek reimbursement for medical assistance to the extent of such legal liability. The state is considered to have acquired the rights of the injured party to payment by any other party for such health care items or services. As a condition of Medicaid eligibility, the individual is required to assign to the state any rights to payment for medical care from any third party. The Arkansas statute required that if the lien exceeds the portion of the settlement representing medical costs, satisfaction of the lien requires payment out of proceeds meant to compensate the recipient for damages distinct from medical costs, such as pain and suffering, lost wages, and loss of future earnings.

In the Ahlborn case, the plaintiff was involved in an automobile accident. Medicaid paid $215,645.30 on her behalf. Plaintiff filed suit for past medical costs and for other items, including pain and suffering, loss of earnings and working time, and permanent impairment of her future earning ability. The case was settled for $550,000, which was not allocated between categories of damages. The parties stipulated that the settlement amounted to approximately 1/6th of the reasonable value of Ahlborn’s claim. The court stated that the federal requirement that states “seek reimbursement for medical assistance to the extent of such legal liability” refers to the legal liability of third parties to pay for care and services available under the plan.” Here, because the plaintiff received only 1/6th of her overall damages, the right of the state of Arkansas was limited to 1/6th of the past medical claim or $35,581.47.

The court also held that 42 U.S.C. §1396p(a)(1) prohibits states from imposing liens “against the property of any individual prior to his death on account of medical assistance paid...on his behalf under the state plan.” This prevents the state from attaching the non-past medical portion of the settlement. As a result of this ruling, states can assert a Medicaid lien only against that portion of a settlement earmarked for past medical expenses. The state may not recover against non-medical expense claims, such as pain and suffering, loss or earnings and permanent loss of future earnings. Needless to say, it is good practice in a personal injury settlement to make a clear allocation of damages.

Allocation is not only important, but must be fair. As Justice Stevens said in the Ahlborn opinion, “Although more colorable, the alternative argument that a rule of full reimbursement is needed generally to avoid the risk of settlement manipulation also fails. The risk that parties to a tort suit will allocate away the state’s interest can be avoided either by obtaining the state’s advanced agreement to an allocation or, if necessary, by submitting the matter to a court for a decision.”

Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.

2. 15 TIPS ON HANDLING THE SOFT TISSUE PERSONAL INJURY CASE

By Kenneth Vercammen, Esq.

In the 21 years I have been practicing law I have developed many ideas and systems to better serve Personal Injury clients. My clients consist primarily of Middle class working people who need a good attorney. I was fortunate early in my career to realize that skills in running an office and handling staff were essential whether I became a partner or opened my own practice. Help your practice by inexpensive improvements in service to clients.
YOU WORK FOR YOUR CLIENTS
Famous Department stores instruct all employees "The Customer is Always Right". You should adopt this maxim. I am a solo which several support staff so I am manage the business. Yet, I am still an employee. You work for your clients. They can fire you whenever they want. Use to Dale Carnegie approach to win friends and influence people. Be nice to your clients. Even if you win, clients will not come back if you don't "serve" and please them.
The waiting area is an excellent area to provide clients with Legal Consumer Material. I write brochures to educate my clients on different areas of law. We now have 19 brochures which cover basic topics such as Auto Accidents, Wills, Criminal Law, Probate, Personal Injury, Cooperating With Your Attorney, Living Will, Expungements and Drunk Driving. These assist clients by given them an idea about how cases may progress and sometimes explaining their responsibilities. Hopefully they will read them and save them for future use.
Insurance companies do not pay money even on good cases unless plaintiff's counsel is properly prepared. Preparation for the case begins during the initial telephone call by the perspective client to your office. Your secretary should ascertain the person's name, who referred them, and what type of matter (i.e. automobile, fall down, medical malpractice, products liability). The following are 15 quick tips to better serve your clients in soft tissue cases and maximize recovery:
1. Referrals to Doctors - Don't just give one referral, give at least three. Advise your clients that under law they are primarily responsible for all medical bills. The primary responsibility for medical bills is not their car insurance or their private insurance or the defendant.

2. Contested Liability Auto - Go to the scene of the accident. Determine the size of the streets. Look at the location of businesses. This shows greater traffic than a residential area. In a more substantial case, have your investigator go door to door to speak with potential witnesses.

3 Obtain Time Sheets of Property Owner in Slip and Fall Cases - In slip and fall cases, you may wish request from production of documents the time sheets and payroll for the date of the accident prior to the deposition of the manager and other employees.

4. Certified Copies - Obtain certified copies of hospital records and other documents that are prepared in the ordinary course of business. If they are certified there is less of an obstacle to admission of these records at trial.

5. Deposition of Plaintiff - The witness should say "That's all I remember" instead of "Those are the only injuries that I have." Explain to your clients that a deposition is not their opportunity to tell their story. Their clients should be frustrated that they did not get to tell their story the way they wanted. Make sure they know that they should answer yes or no but not to volunteer information.

6. Witnesses - It is a good idea to have all witnesses interviewed and provide a signed statement. You want them to be the witness, not yourself to be the witness and disqualify yourself if their statement at trial is inconsistent with what they may have told you over the phone.

7. Docket Numbers on Correspondence Help the Court - In all letters to the court and motion's clerk, put the complete case name and docket number. If it is to an adjuster or a defense insurance counsel, put the claim number.

8. Defense Doctor Reports - Send the defense doctor reports to the treating doctor prior to trial so they can review the report and advise you as to the weakness in the defense report and the weakness of the defense doctor. It is not recommended to give a report to the plaintiff because that will make them angry.

9. Lien Considerations - Protect yourself. There will occasionally be Medicare, potential welfare liens, workman's compensation liens, and doctors liens. If a Letter of Protection was signed, you as the attorney will be responsible. If there is a Letter of Protection or lien, write it in big letters on the outside of the file. However, doctors also have responsibilities to cooperate.

10. Rules for Professional Conduct - Be careful in what you say and do. I lived in Edison where there were four attorneys, with offices outside Edison, who faced serious disciplinary charges in connection with solicitation at the Texas Eastern Gas Pipeline/ Durham Woods explosion.

11. Preparing Arbitration Statements and Settlement Conference Brochures - These should be easy to read for the Arbitrator or Judge to get to the immediate point of what your damages are. Set forth:

1 - Date and details of accident;
2 - Injuries;
3 - Medical treatment;
4 - Present complaints;
5 - Medical expenses;
6 - Other damages (e.g. Wage loss)
7 - Other important information; and
8 - Medical and evidence documents.

We send a draft Arbitration Statement to our client first for them to review and modify, especially what their present complaints may be. Arbitration should be considered a dry run for trial. You should have proof of your wage lost claim rather than your client just simply testifying what they lost. You should have everything there present to go except the $3,000.00 doctor testifying.
Waiting Time at Arbitration - While waiting for the arbitration, spend every minute preparing the client over and over again until you know the file blindfolded. We often have the client's read every doctor's report.


12. Request for Admissions - When we send the Arbitration Statement to arbitration, we also send the Arbitration Statement to the Defense Attorney with all the medical and evidence documents together with a Request for Admissions Regarding the Genuiness of Documents. Therefore, we are asking them to admit the genuineness and accurateness of documents such as police reports, hospital records, tax records or wage loss forms plus certain doctor's records. In addition, this provides a useful exhibit list for trial. Computers are great to store information and this will help you to pre-mark exhibits in case the matter has to go to trial.

13. Subpoena Witnesses to Arbitration - We have, on occasion, served subpoenas on defendants and witnesses to appear at the Arbitration. I want to determine (1) If they are available; and (2) what they would say at trial or deposition.

14. Settlement Conference Days - We have found success in contacting our Civil Case Manager and asking that they schedule 6-7 of our cases post-arbitration for a Settlement Conference. This way this is much more efficient use of time as the plaintiff's attorney rather than making 7 separate trips for free to the courthouse. The judges will often try to assist you because they wish to wrap the cases up. By having many cases there, you as the plaintiff's attorney are operating in a position of strength and you are not wasting an afternoon.

15. Preparation for Trial of the Case - Preparing your witnesses - There are many excellent videos to prepare clients for trial, depositions, and defense exams. Chiropractors often give patients brochures describing how to explain pain.
CONCLUSION
Keeping clients informed and happy goes a long way to improving the public perception of the Legal Profession. Work hard and keep your clients happy.
As a practicing trial attorney I try to be pleasant to our clients and all people would contact our office. Being a solo in a full service Law Office, we have to rely on our commitment to clients to pay office expenses, the mortgage and travel to Bar events in exciting places.
Be proud of the Legal Profession, communicate to your clients and be civil. Hopefully, the few ideas which have helped me succeed may help you develop your practice. If you have any suggestions on improving service and representation to Soft Tissue personal injury clients, drop me a note, fax or email: kenvnjlaws@verizon.net


Kenneth A. Vercammen is an Edison, Middlesex County, New Jersey trial attorney who has published 125 articles in national and New Jersey publications on personal injury and litigation topics. He has lectured on Personal injury and criminal law for the New Jersey State Bar Association, New Jersey Institute for Continuing Legal Education and Middlesex County College. He often lectures for the New Jersey State Bar Association on personal injury, criminal / municipal court law and drunk driving. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey and also successfully defended hundreds of individuals facing Municipal Court and Criminal Court charges.

In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested administrative law hearings.

Since 1985, his primary concentration has been on litigation matters. Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court),with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton, PA District Magistrate.



3. BALANCE BILLING between the Medicaid program and the Medicare program.

By: Thomas D. Begley, Jr., Esquire


There is a significant difference on the issue of balance billing between the Medicaid program and the Medicare program.

1. Medicaid. Medicaid reimbursement rates are very low and as a result it is often difficult to obtain services because providers refuse to accept Medicaid. It is not possible for the patient to pay the difference between the private pay rate and the Medicaid pay rate. This is known as balance billing. Medicaid participating providers must accept the Medicaid payment as “payment in full.”[1] This means that providers accepting Medicaid waive their right to bill Medicaid beneficiaries for any amounts over the Medicaid payment.

Several states have refused to allow providers to assert liens against Medicaid beneficiaries where there is clear third party liability and the Medicaid beneficiary has obtained a significant tort recovery.

In Illinois,[2] the hospital brought an action against the Medicaid agency to allow it to refund the Medicaid reimbursement so that it could sue the Medicaid beneficiary who had obtained a substantial tort judgment. The Seventh Circuit held that the hospital could not refund the Medicaid payment to the Medicaid agency and sue the Medicaid beneficiary. The Court noted, “Medicaid is a payer of last resort.” The state can seek reimbursement from third parties, but private providers may not.

In a similar case in Florida,[3] the hospital placed a lien on the settlement award, but the court held that when a Medicaid patient obtains a tort recovery in excess of the medical expenditures paid by Medicaid, that recovery is meant to go to the injured party, not the provider. A similar result was reached in another Florida case.[4]

A federal appellate court has found that a hospital’s lien on the proceeds of a malpractice settlement was invalid and unenforceable because the hospital had already accepted Medicaid payments for the care provided to the patient.[5] “By accepting Medicaid payments, Spectrum waived its right to its customary fee for services provided to Bowling...” “Although Medicaid rates are typically lower than a service provider’s customary fees, medical service providers must accept state-approved Medicaid payment as payment in full and may not require that patients pay anything beyond that amount.”

California invalidated two state statutes authorizing provider liens against Medicaid beneficiaries.[6] The statutes authorized providers to file liens against recoveries obtained by Medicaid beneficiaries even after the provider received Medicaid. The court found that the state statutes were preempted by federal legislation banning balance billing.

2. Medicare. Previously, Medicare had a prohibition against billing Medicare beneficiaries in excess of the payment made by Medicare. Participation has been limited to providers who agreed to accept Medicare as payment in full. Recent changes in the Medicare law[7] now permit a provider to bill a Medicare beneficiary or assert a lien against the beneficiary's recovery obtained from the tortfeasor by way of settlement or award.[8]

In the seminal case,[9] a hospital sought to recover from the Medicare patient more than it received from Medicare reimbursement. The 1st Circuit held that the fact that the patient recovered more than Medicare reimbursed the hospital did not entitle the hospital to charge the patient the difference between its full fee and Medicare's lower flat fee. The agreement between Medicare and the hospital was that in exchange for Medicare guaranteeing payment to the hospital, there would be no additional payment required from the Medicare beneficiary.

The recent changes now allow providers to bill the liability insurer or place a lien against the Medicare beneficiary's recovery.

142 U.S.C. §1396a(a)(25)(c); 42 C.F.R. §447.15; 42 U.S.C. §1320a-7b(d) .
2 Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).
3 Mallo v. Public Health Trust of Dade County, 88 F.Supp.2d 1376 (S.D. Fla. 2000).
4 Public Health Trust of Dade County v. Dade County School Board, 693 So.2d 562 (Fla. Dist. Ct. App. 1996).
5 Spectrum v. Bowling, 410 F.3d 304 (6th Cir. 2005).
6 Olszewski v. Scripps Health, 135 Cal. Rptr. 2d 1 (Cal. 2003).
7 68 Fed. Reg. 43940 (July 25, 2003).
8 42 C.F.R. 411.54(c)(2).
9 Rybicki v. Hartley, 782 F.2d 260 (1st Cir. 1986).

Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.

4. WE PUBLISH YOUR FORMS AND ARTICLES


To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.

The Tort & Insurance Law Committee monitors federal and state legislation affecting rules of procedure and tort reform. In a newsletter produced twice a year, this committee reviews recent developments in tort reform. The committee presents and sponsors programs at the Annual Meeting often dealing in tort and litigation issues.

_______________________

TORT AND INSURANCE COMMITTEE General Practice, Solo and Small Firm Division

Chair: Patricia Sexton, Kansas City

Kenneth Vercammen, Esq. Deputy Chair and Past Chair
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website- http://njpersonalinjurylawcenter.com/
Personal Injury blog- http://njlawspersonalinjury.blogspot.com/

Saturday, November 17, 2007

If You Are In A Slip & Fall Accident, We Can Help

If You Are In A Slip & Fall Accident, We Can Help



Next to car accidents, the most common type of accident is a slip and fall. If you are hurt in a slip and fall accident, you have rights, including the right to compensation for your injuries. You may have this right even if you are partly at fault for the accident.
If you are injured in a slip and fall accident, please call us. We have helped many victims of slip and fall accidents recover the maximum compensation for their injuries and losses, and we can help you. Call promptly, as the time right after the accident can be vital to your claim.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

City Not Liable for Injury When Injury is Not Permanent.

City Not Liable for Injury When Injury is Not Permanent.

TORT CLAIMS ACT. BRITTON v. CITY OF ELIZABETH. Appellate Division, A-2203-06T2, November 5, 2007, not approved for publication. Summary judgment for the defendant City and the defendant City Department of Health and Human Services based on the N.J.S.A. 59:9-2(d) verbal threshold under the Tort Claims Act affirmed substantially for the reasons expressed by the trial court; the plaintiff fractured her left fibula when she fell from a swing; the Appellate Division rejected the plaintiff's arguments (1) that, because she remained under the care of her doctor through the date of the appeal, summary judgment had been improperly granted and (2) that, because there were material questions of fact as to whether she had suffered a permanent injury that was substantial, summary judgment should be vacated.

Source: NJ Lawyer Daily Briefing November 6, 2007

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Landlord Not Liable for Tenant's Dog's Bite.

Landlord Not Liable for Tenant's Dog's Bite.

TORTS. SPELLS v. UPLAND. Appellate Division, A-1373-06T1, November 5, 2007, not approved for publication. Summary judgment for the defendant landlords affirmed in a personal injury action; the plaintiff child was bitten and dragged by a dog owned by the defendant tenant; the dog had gotten loose and had run onto the sidewalk in front of the next-door neighbor's house; the trial court had concluded that a landlord cannot be held liable for a bite by a tenant's dog that occurs outside the common areas of the apartment house over which the landlord has control; there were no facts on which the fact-finder could conclude that the landlords knew or should have known that the tenant's dog was vicious or that it was likely to get loose; thus, even if the landlords owed a duty of care to persons on adjoining properties, there was no basis to conclude that they were negligent with regard to the dog biting the plaintiff.

Source: NJ Lawyer Daily Briefing November 6, 2007

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Uninsured Motorist Benefits are Available to a Plaintiff in a Random, Drive-By Shooting.

Uninsured Motorist Benefits are Available to a Plaintiff in a Random, Drive-By Shooting.

Livsey v. Mercury Insurance Group. A-1238-06T5 10-24-07. Uninsured motorist benefits are available to a plaintiff in a random, drive-by shooting.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Business Not Liable When Neighbor's Customer Hit by Car.

Business Not Liable When Neighbor's Customer Hit by Car.

Brierley v. Rode. 09-27-07 A-0637-06T3. A business that permits another business, which is on the other side of a public road, to use its lot for customer parking, has no duty to the other business's customers to make passage over the road reasonably safe. Source: NJ Lawyer

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Insurance Company Required to Participate in Injured Person's Underinsured Motorist Arbitration.

Insurance Company Required to Participate in Injured Person's Underinsured Motorist Arbitration.

KARAMOLEGOS v. YUNGER Appellate Division, A-991-06T1, October 16, 2007, not approved for publication. Law Division order that required that the defendant/third-party plaintiff insurer of the plaintiff appear at underinsured motorist arbitration within 90 days affirmed substantially for the reasons expressed by the Law Division; the plaintiff was injured in an accident with the defendant driver in December 2002; in February 2004, the driver and the defendant owner of the vehicle he was operating offered to settle, and the plaintiff's attorney requested permission from the insurer to accept the offer and to pursue a UIM claim under Longworth v. Van Houten; in December 2004, the plaintiff filed her automobile negligence action; in January 2005, the insurer stated its parameters for UIM arbitration, which the plaintiff's attorney accepted; the insurer did not respond thereafter, and the plaintiff accepted the settlement in August 2005; the insurer then rejected the plaintiff's claim for UIM benefits, asserting that its subrogation rights had been jeopardized by the plaintiff's failure to give notice before settling; however, the Law Division properly determined that the plaintiff had substantially complied with both Longworth and Rutgers Cas. Ins. Co. v. Vassas.
source: NJ Lawyer

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Municipality Could Be Liable for Slip & Fall On Snow

Municipality Could Be Liable for Slip & Fall On Snow

TORT CLAIMS ACT. ANTHONY v. TRI-COUNTY SECURITY. Appellate Division, A-361-06T3, October 9, 2007, not approved for publication

Summary judgment for the defendant Camden County and the defendant County Board of Chosen Freeholders reversed and remanded in a personal injury action; the plaintiff was injured when she slipped and fell on the steps inside City Hall in the City of Camden on "a very snowy day"; the Appellate Division agreed with the plaintiff's argument that summary judgment should not have been granted because there was sufficient evidence to raise a genuine issue of material fact as to whether the defendants had actual or constructive notice of the dangerous condition on the steps where the plaintiff slipped and fell; a fact-finder reasonably could infer (1) that the steps had been wet for a sufficient period of time to place the defendants on notice of the condition and of its dangerous nature and (2) that the defendants' failure to take action to protect against that condition was palpably unreasonable; there was an adequate factual foundation for a jury to find that any puddles of water on the steps could have been dealt with readily through the use of warning signs, runners, or a mop.

Source: NJ Lawyer Daily Briefing dailybriefing@njsba-njldailybriefing.com, October 10, 2007
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com

Wednesday, November 7, 2007

Uninsured motorist benefits are available to a plaintiff in

Camie Livsey v. Mercury Insurance Group
A-1238-06T5 10-24-07

Uninsured motorist benefits are available to a plaintiff in
a random, drive-by shooting.

Monday, October 22, 2007

New Jersey Animal Rights Alliance and the Bear Education and Resource Group v. New Jersey Dept. of Environmental Protection

10-22-07* A-1463-05T3; A-1382-06T3

The 2005 Comprehensive Black Bear Management Plan should
have been, but was not, adopted pursuant to the rulemaking
provisions of the Administrative Procedure Act. Having not been
so adopted, there was no black bear management policy in effect
in 2006 or 2007, and the decision of the Commissioner of the
Department of Environmental Protection not to implement the
policy is therefore affirmed. [*Approved for Publication date]

Mercer Mutual Insurance Company v. Joseph N. Proudman, Sr.

10-22-07 A-1287-06T5

Third-party plaintiffs (plaintiffs) brought a products
liability action against cigarette manufacturer after a
cigarette that was left burning caused a fire. We held that
plaintiffs failed to state a claim upon which relief can be
granted because burning is an inherent characteristic of
cigarettes that is apparent to the ordinary user, which cannot
be eliminated without impairing the usefulness of the product.
Plaintiffs conceded at oral argument on appeal that a selfextinguishing
cigarette could only reduce, not eliminate the
danger.

Michael Sternesky v. Ana Cecilia Salcie-Sternesky

10-22-07 A-5932-05T3

We consider equitable distribution of an accidental
disability retirement allowance awarded by the Board of Trustees
of the Police and Fire Retirement System (PFRS). The Board has
not provided guidance on segregation of the marital and
individual components of a disability pension, as we encouraged
in Larrison v. Larrison, 392 N.J. Super. 1, 18 (App. Div. 2007).
The parties in this case did not provide the trial court with
evidence that would permit such segregation, which we found
necessary in Larrison and Avallone v. Avallone, 275 N.J. Super.
575 (App. Div. 1994). We provide a formula for identification
of the marital component of a PFRS accidental disability
retirement allowance, which is inferable from the statutory
scheme and decisions of our courts addressing equitable
distribution of retirement assets, and we hold that a trial
court should apply that formula in the absence of relevant
evidence or guidance from the Legislature or Board.

Walter Sroczynski v. John Milek

10-19-07* A-3103-06T1

In order for an insurer's cancellation of a workers'
compensation policy to be effective, the insurer must file a
"certified statement" of cancellation with the Commissioner of
Banking and Insurance as required by N.J.S.A. 34:15-81(b). The
failure to do so renders the cancellation ineffective, even if
the insurer has complied with all other applicable statutory
requirements for cancellation. We also reject the insurer's
substantial compliance argument under Bernstein v. Bd. of Trs.,
151 N.J. Super. 71, 76-77 (App. Div. 1977). (*Approved for
Publication Date)

New Jersey Department of Environmental Protection v. Town & Country Developers, Inc.

10-19-07 A-5940-05T1

In this environmental enforcement action under the Water
Pollution Control Act (Act), N.J.S.A. 58:10A-1 to -35, we upheld
a civil administrative penalty of $604,110 against a developer
for not securing a DEP permit for sewer hookup prior to
construction of a major residential development, even though
there was no discharge of pollutants. We rejected defendant's
contention that its violation was "minor" and therefore exempted
as falling within the Grace Period Law, N.J.S.A. 13:1D-125 to
-133, finding instead that the violation was purposeful,
irremediable, and undermines the very purpose of the dry-sewer
law prohibitions under the Act. As to the latter, we conclude
that defendant's failure to obtain pre-approval deprived the DEP
of its authority to decide, in the first instance, whether the
project may adversely affect sewer infrastructure and statewide
water quality.

Rachel G. Shuster v. Board of Review

10-18-07 A-1880-06T2

Defendant employer notified plaintiff that she was not a
candidate for partner at his veterinary office, and that she
would need to find new employment as soon as possible. After
leaving her employer on the basis of tension in the workplace,
giving sixty days notice pursuant to her contract of employment,
plaintiff's claim for unemployment was contested by defendant
employer and subsequently denied. Plaintiff first appealed to
the Appeal Tribunal, which affirmed the denial of her claim, and
next to the Board of Review of the Department of Labor, which
also affirmed the denial of her claim. Both the Appeal Tribunal
and the Board of Review relied upon N.J.S.A. 12:17-9.5 in
determining that plaintiff was ineligible for benefits, stating
that plaintiff's separation from her employer was not imminent.
We held that the Appeal Tribunal and Board of Review
mistakenly relied upon N.J.S.A. 12:17-9.5 in finding that
plaintiff's separation from her employer was not imminent. The
parties were obligated to each other under the employment
contract to provide sixty days notice before terminating the
employment relationship. Thus, the "within" sixty days
provision of N.J.S.A. 12:17-9.5 did not apply to plaintiff.
Further, the regulation does not mandate disqualification from
unemployment benefits. Because plaintiff had good cause for
voluntarily leaving her employer attributable to defendant
employer's statements regarding her seemingly imminent layoff,
we reversed the decision of the Board of Review.

Rhonda Bosland v. Warnock Dodge, Inc., d/b/a Warnock Dodge/Chrysler/Jeep

10-18-07 A-1369-06T5
In this Consumer Fraud Act case, we hold that as long as a
consumer is able to demonstrate a loss that is quantifiable and
measurable, the consumer need not demand a refund of any
overcharge prior to filing suit in order to satisfy the Act's
"ascertainable loss" requirement. In so holding, we part
company with the decision in Feinberg v. Red Bank Volvo, 331
N.J. Super. 506 (App. Div. 2000), which held otherwise.
We further hold that in order to satisfy the requirements
of the Truth-in-Consumer Contract, Warranty and Notice Act,
N.J.S.A. 56:12-14 to -18 (TCCWNA), a consumer need not allege
that the contract language was confusing. Such provision is a
part of the Plain Language Act, N.J.S.A. 56:12-2 to -13, which
is separate and distinct from the TCCWNA.

In the Matter of the Trust Under Agreement of Blanche P. Billings Vander Poel

10-17-07 A-0983-04T5

The settlor established a trust in 1950 under New Jersey
law with her son as income beneficiary for life and a gift of
the remainder to his "issue." Two years later the son married a
woman with a ten-year-old daughter, the appellant, and three
natural children resulted from that marriage. The son inquired
into adopting the appellant as a minor, but was unable to do so
because the family was then living abroad. Later he adopted the
appellant as an adult, some thirteen years after the settlor's
death.

Held that while an adopted child will equally participate
in a remainder class gift to "issue," an adult adoptee may not
so inherit from a "stranger to the adoption." The concept of
equitable adoption, while providing a judicial remedy in the
case of a child, is inapplicable to an adult adoptee. The
record indicated that the settlor's probable intention was not
to include an adopted child in the remainder gift to her son's
issue.

Long Branch Housing Authority vs. Toni Villano

10-16-07* A-4617-05T1

A tenant in public housing that is under the control of a
public housing agency may be removed from the leased premises
pursuant to N.J.S.A. 2A:18-61.1e(2) when the tenant
substantially violates a covenant or agreement pertaining to
illegal uses of controlled dangerous substances, provided the
covenant or agreement conforms to applicable federal guidelines.
Moreover, federal law permits a tenant to be evicted from public
housing when a member of the household or guest engages in drugrelated
criminal activity in the leased premises, regardless of
whether the tenant knew or should have known of the illegal
activity. (*Approved for Publication date)

Housing Authority of the city of Bayonne v. Deborah Mims

10-15-07 A-5158-05T3

In this eviction action, the trial court found that
plaintiff had established grounds for eviction but also found
that the action was retaliatory, in violation of the Tenant
Reprisal Act (TRA), N.J.S.A. 2A:42-10.10 to -10.14. However,
the judge then determined that the TRA was preempted by federal
law governing public housing authorities. We reversed,
concluding that the TRA was not preempted by the federal
statutes and regulations.

Elizabeth Trimarco v. Anne Trimarco

10-15-07 A-4093-05T5

The issue is whether an allegedly oppressed minority
shareholder, whose derivative lawsuit on behalf of a corporation
under N.J.S.A. 14A:12-7 ultimately settled, is otherwise
entitled to counsel fees under Rule 4:42-9(a)(2)'s "fund in
court" provision where there is no actual or specific "fund" out
of which such fees could be awarded.
We upheld the trial court's discretionary award of counsel
fees in this case, finding that the Rule is satisfied where
shareholder litigation confers some benefit on the corporation,
whether pecuniary or intangible, justifying shifting of the
financial burden of producing the benefit to all those who would
enjoy it.

Philip Menichetti v. Palermo Supply Company

10-10-07 A-2290-06T1

We construed N.J.S.A. 34:15-64c of the Workers'
Compensation Act, which permits an employer to pay a reduced
amount of the employee's counsel fees if the employer makes a
good faith offer of compensation prior to the hearing. We held
that the employer is entitled to the statutory reduction in fees
where the employer makes an offer of compensation before having
the employee examined by its doctor, even if the offer is higher
than the percentage of disability the doctor eventually
determines. We noted that the statutory scheme may deprive a
petitioner's attorney of fees for work performed before the
employer makes an offer, but arguments for amendment of the
statute must be directed to the Legislature.

Saturday, October 20, 2007

Extension of Time for Discovery in civil in NJ

Parties may extend the track-allotted discovery period up to 60 days, by consent.
Such extension may be obtained by signed stipulation filed with the court or by
application to the Civil Division Manager or team leader, by telephone or by letter copied
to all parties, representing that all parties have consented to the extension. Any such
consensual extension of discovery must be sought prior to the expiration of the discovery
period, and any telephone application for extension must thereafter be confirmed in
writing to all parties by the party seeking the extension. See R. 4:24-1(c). If parties do
not agree, or if an extension greater than 60 days is sought, a formal motion must be filed
with the Civil Presiding Judge or his or her designee. Any such application for discovery
may be granted for good cause shown, and the order must describe the discovery to be
engaged in and specify the date by which discovery is to be completed. Absent
exceptional circumstances, no discovery extension is to be permitted once an arbitration
or trial date is set.

More information can be obtained from “ A PRACTITIONER’S GUIDE TO NEW JERSEY’S CIVIL COURT PROCEDURES”

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Personal Injury Dept.: 732-572-0024
website: www.njpersonalinjurylawcenter.com
Types of Discovery
In any civil action, parties may obtain discovery by one or more of the following
methods:
 Depositions upon oral examination or written questions (R. 4:14)
 Written interrogatories (R. 4:17)
 Production of documents or things (R. 4:18)
 Permission to enter upon land for inspection (R. 4:18)
 Physical and mental examinations (R. 4:19)
 Requests for admissions (R. 4:22).


Parties may obtain discovery regarding any matter which is relevant to the subject
matter involved in the pending action whether it relates to the claim or defense of the
party seeking discovery or to the claim or defense of any other party.
e. Track IV Discovery Period
Rule R. 4:24-1(a) states that Track III and Track IV cases are entitled 450 days’
discovery, except as otherwise provided by R. 4:69-4 (prerogative writs).
f. Posting of Discovery End Dates on Web
The discovery end dates for all pending civil cases are posted on the Judiciary’s
website www.njcourtsonline.com. The information posted on the website is updated
nightly.

More information can be obtained from “ A PRACTITIONER’S GUIDE TO NEW JERSEY’S CIVIL COURT PROCEDURES”

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Personal Injury Dept.: 732-572-0024
website: www.njpersonalinjurylawcenter.com

Time for Discovery in civil in NJ

The time for completion of discovery and other pretrial procedures depends upon
the track to which the case is assigned. The case type normally determines the track on
which the case will be placed. The applicable discovery periods for each track are:
Track I (150 days’ discovery)
Track II (300 days’ discovery)
Track III (450 days’ discovery)
Track IV (450 days’ discovery).
b. Calculation of Discovery Period
Discovery runs from the date the first answer is filed or from 90 days after the first
defendant is served, whichever is first. See R. 4:24-1.
c. Discovery End Date Notice
Pursuant to R. 4:36 -2, the court must send every party a discovery end date notice
60 days prior to the end of the prescribed discovery period.

More information can be obtained from “ A PRACTITIONER’S GUIDE TO NEW JERSEY’S CIVIL COURT PROCEDURES”

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Personal Injury Dept.: 732-572-0024
website: www.njpersonalinjurylawcenter.com

Time for Amendment of pleading in NJ

A pleading may be amended without obtaining court permission at any time before
the opposing party responds to the original pleading. Thereafter, pleadings may be
amended with the written consent of the adversary or with the court’s permission. Such
written consent may include a consent order, a letter from both attorneys, or a letter from
one attorney representing that all parties consent and copying all counsel and pro se
parties. Permission to amend and/or supplement is obtained by filing a motion, which
must have attached to it a copy of the proposed amended pleading. All amended or
supplemental pleadings require responses from the adversaries in the litigation. See R.
4:9.
More information can be obtained from “ A PRACTITIONER’S GUIDE TO NEW JERSEY’S CIVIL COURT PROCEDURES”

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Personal Injury Dept.: 732-572-0024
website: www.njpersonalinjurylawcenter.com

Individual Judge Management of Cases on Tracks I, II and III

Individual judge management may be available to cases on Tracks I, II, and III, if
the court determines it to be necessary, either on the request of a party or sua sponte; this
degree of management, however, should not result in reassignment of the case to Track
IV.
b. Pretrial Judge Upon Consolidation
When two or more cases are consolidated, and one or more, but not all, of the
cases eventually are disposed, the remaining case (s) will generally stay with the judge
who had managed the consolidated case.
c. Judicial Case Management/Calendaring
Cases on Tracks I, II and III should be handled by the same pretrial judge from
filing at least through discovery, and for cases on Track IV by the same managing judge
from filing through trial, barring exceptional circumstances. See R. 4:5A-1, -2. A judge
other than the designated pretrial or managing judge may nonetheless handle a settlement
conference in any case, and block scheduling of settlement conferences (e.g., “settlement
days” involving many cases from a designated carrier) may continue. The oversight of
the designated pretrial judge in cases on Tracks I, II and III does not necessarily extend
beyond the track-allotted discovery period plus 60 days. Thereafter, motions to extend
discovery further may be handled by the Civil Presiding Judge or his or her designee.
See R. 4:24-1. Civil Presiding Judges retain the authority to assign particular cases or
classes of cases to particular judges for oversight of all pretrial activity prior to the end of
the track-allotted discovery period plus 60 days. For example, a single pretrial judge may
be designated to handle all medical malpractice cases filed in the vicinage. An initial
case management conference in all Track IV cases is to be conducted within 60 days of
joinder (except in prerogative writ cases, which are governed by R. 4:69 -4).
In cases on any track the number of case management conferences is within the
discretion of the pretrial or managing judge. Case management conferences should not
ordinarily be held after a case is ready for trial. All decisions and directives issued at a
case management conference must be memorialized by court order, pursuant to R. 1:2- 6.

More information can be obtained from “ A PRACTITIONER’S GUIDE TO NEW JERSEY’S CIVIL COURT PROCEDURES”

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Personal Injury Dept.: 732-572-0024
website: www.njpersonalinjurylawcenter.com

Intervention

A party seeking to intervene in a pending civil action must file a motion. The
motion must be accompanied by the proposed complaint or answer, a CIS and the
applicable filing fee. See R. 4:33- 3. A party seeking to intervene normally has not
suffered a personal harm, as did the plaintiff, but nonetheless may have an interest in the
litigation because the litigation may, for example, involve a matter of some greater public
significance.

When a plaintiff seeks interpleader, he or she must file a complaint setting forth all
the claims which may expose the plaintiff to double or multiple liability and joining all
persons having claims as defendants. The complaint usually demands a judgment
requiring the defendants to interplead their claims, enjoining them from prosecuting those
claims against the plaintiff, discharging the plaintiff from liability and seeking costs. The
defendants answer the complaint and assert their claims by cross- claims against each
other.


More information can be obtained from “ A PRACTITIONER’S GUIDE TO NEW JERSEY’S CIVIL COURT PROCEDURES”

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Personal Injury Dept.: 732-572-0024
website: www.njpersonalinjurylawcenter.com