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Thursday, December 18, 2008

Walter Sroczynski v. John Milek

(A-68/77-07)
12-17-08

A carrier does not satisfy N.J.S.A. 34:15-81 merely by transmitting electronic notice of cancellation of coverage to the Commissioner by way of the FTP. The statute clearly requires that to effectuate the cancellation, a carrier also must file a statement certified by an employee that the required notice was provided to the insured.

In re Opinion 39 of the Committee on Attorney Advertising

(A-30/31/32-08)
12-17-08

Opinion 39 of the Committee on Attorney Advertising is vacated and the matter is referred jointly to the Advisory Committee on Attorney Advertising, the Advisory Committee on Professional Ethics and the Professional Responsibility Rules Committee for expedited review and modification of RPC 7.1(a)(2) and (3).

Maria Tartaglia v. UBS PaineWebber Incorporated and Herbert Janick

(A-107/108-06)
12-16-08

Tartaglia should have been given the benefit of an adverse inference charge relating to her spoliation of evidence laim; the trial court erred in determining that certain evidence could not be considered by the jury in relation to Tartaglia's claim that she had engaged in protected activity; the complained of comments by defense counsel in summation were improper; and summary judgment on Tartaglia's common law wrongful termination claim was improperly granted.

Riverside Chiropractic Group, a/s/o Megan Machado v. Mercury Insurance Company

A-3034-07T2
12-17-08

In this personal injury protection (PIP) action, the assignee of an insurance contract challenged the Alternative Procedure for Dispute Resolution Act's (APDRA), bar to appellate review, arguing that the statute was unconstitutional as applied. N.J.S.A. 2A:23A-18(b). We dismissed, holding that the statutory bar to appellate review was not unconstitutional as applied because the applicable insurance contract did not require the insured to file any claims he/she had in arbitration. The fact that the assignee in this case opted to arbitrate instead of sue amounted to a voluntarily waiver of the right to appellate review.
We further held that the facts before us did not give rise to our exercising our "supervisory function" to review the Law Division's actions.

Polarome International, Inc., formerly known as Polarome Manufacturing Co., Inc. v. Greenwich Insurance Company and Zurich Insurance Company

A-0566-07T1
12-17-08

Where complaints in two toxic-tort actions alleging personal injuries are ambiguous as to the dates of exposure and injury triggering coverage, the carriers may examine evidence extrinsic to the complaints to determine when the last pull of the "continuous trigger" of Owens-Illinois, Inc. v. United
Insurance Co., 138 N.J. 437 (1994), occurred in order to establish that they had no duty to indemnify, and thus, no duty to defend. Because the time of initial manifestation of the toxic-tort personal injuries at issue here predated the applicable coverage periods, neither insurer had a duty to defend or indemnify, even though further progression of the disease may have occurred while the relevant policies were in effect.

Larry Price v. Strategic Capital Partners

A-2494-07T2
12-16-08

Larry Price is a pro se litigant who frequently challenges the actions of the Union City Zoning Board. In this case, he challenged the Board's issuance of a density variance that permitted the trebling of the density of a high-rise building in a zone in which the zoning ordinance sought to prohibit the granting of any density variance. We affirmed the trial court's determination that a zoning ordinance cannot lawfully prohibit the granting of density variances, because such a prohibition conflicts with the specific statutory grant of authority to do so found in N.J.S.A. 40:55D-70(d)(5). We remanded the matter back to the Board for further consideration of whether the density problem, i.e., that it is not economic to build tall, low density buildings, was unique to this project or common to the zone and whether it is appropriate to treble the density in that particular zone. We also required that the Board provide a fuller explanation of the reasons for its actions.

Leonard Felicioni v. Administrative Office of the Courts, et als.

A-2716-07T1
12-15-08

Appellant, who is one of several victims of a fraudulent scheme perpetrated by a criminal defendant ordered to pay restitution to all of them, challenges the State's current system of paying restitution on a first-in-time rather than automatic pro-rata basis. We rejected his multi-faceted challenge, finding the method of distribution violates neither his substantive due process nor equal protection rights under the federal and State constitutions; nor his State constitutional rights under the Victims Rights Amendment (VRA), N.J. Const., art. I, ¶ 22; nor his statutory rights under New Jersey's Crime Victim's Bill of Rights, N.J.S.A. 52:4B-34 to -70, and Civil Rights Act, N.J.S.A. 10:6-1 to -2.

Praxair Technology, Inc. v. Director, Division of Taxation

A-6262-06T3
12-15-08

In administering N.J.S.A. 54:10A-2, a section of the Corporation Business Tax Act, the Director may not give retroactive application to the clarifying example in N.J.A.C. 18:7-1.9(b), i.e., to tax years antedating the promulgation in 1996 of the clarifying example dealing with the tax liability of foreign corporations that earn licensing fees from parent corporations in New Jersey.

Save Hamilton Open Save vs. Hamilton Township Planning Board, et al.

A-1795-07T2
12-12-08

The Phase II stormwater management regulations adopted by
the DEP do not include any provision for DEP review to determine compliance. Therefore, unless a developer is required to obtain a permit under another DEP regulatory program, such as the Freshwater Wetlands Protection Act, the determination of compliance with the Phase II regulations must be made by the planning board as part of its review of a land use application under the Municipal Land Use Law and the statewide rules that govern streets, water supply, sanitary sewer systems, and stormwater management, adopted pursuant to the Residential Site Improvement Standards Act.

Sealed Air Corporation vs. Royal Indemnity Company, et al.

A-5951-06T3
12-12-08

In this case, we examined whether a directors and officers
(D&O) insurance policy affords coverage for defense costs and damages arising from a suit alleging misrepresentations regarding contingent liabilities for pollution claims made in connection with a multi-step transaction to reorganize and merge businesses. We held that, based on the "substantial nexus" standard set forth in Am. Motorists Ins. Co. v. L-C-A Sales Co., 155, N.J. 29, 35 (1998), the complaint clearly arose from alleged violations of the Securities Exchange Act of 1934 and the rules promulgated there under, and not from intentional pollution. We found that the language of the pollution exclusion in the applicable insurance policy, as well as the reasonable expectations of the insured, prevented the insurer from disclaiming coverage.

Fernando Piniero, et al. v. New Jersey Division of State Police, et al.; Martin Temple, et al. v. Peter C. Harvey, et al.; David Kushnir, et al. v....

Fernando Piniero, et al. v. New Jersey Division of State Police, et al.
Martin Temple, et al. v. Peter C. Harvey, et al.
David Kushnir, et al. v. New Jersey Department of Law and Public Safety, et al.

A-2507-07T3
12-12-08

In this appeal, we were required to determine whether the contents of a four-way investigation report of the background check of Joseph Santiago, who was nominated by Governor James McGreevey for the position of Superintendent of the New Jersey State Police, was subject to discovery by plaintiffs, New Jersey State troopers, who alleged that they were retaliated against because of their involvement in preparing and compiling the information for the report. Three separate groups of State troopers sought discovery of the four-way investigation. We determined that two of the groups of State troopers did not have the requisite interest in the four-way investigation report to warrant disclosure of the report, and the third group, while having such an interest, was not entitled to the report as its interest did not outweigh the public's interest in keeping the report confidential. Consequently, we reversed the general equity judge who permitted discovery of a redacted version of the four-way investigation report.

Ricki R. Rogers v. Felipe Noguera

A-1531-07T2
12-12-08

The parties entered into a prenuptial agreement (agreement) prior to their 1981 marriage. In 1998, the Legislature adopted the Uniform Pre-Marital Agreement Act (the Act), N.J.S.A. 37:2-31 to -41. The agreement was governed by pre-Act case law articulated in D'Onofrio v. D'Onofrio, 200 N.J. Super. 361, 366 (App. Div. 1985), and Marschall v. Marschall, 195 N.J. Super. 16 (Ch. Div. 1984). Those pre-Act cases held that prenuptial agreements are valid and enforceable under certain conditions, but subject to modification at the time of enforcement if the spouse sought to be bound by the agreement will suffer a substantial diminution in his standard of living after the divorce.

Here, after lengthy evidentiary hearings, the trial court declared the entire agreement unenforceable and determined that defendant was entitled to seek equitable distribution and alimony. We modified the trial court's conclusion to allow defendant to seek alimony if and when he demonstrates substantially changed circumstances under the standard articulated in Lepis v. Lepis, 83 N.J. 139 (1980). The remainder of the agreement remains in full force and effect.

J.A v. A.T.

The Court held that application of the first filed doctrine to register and enforce a custody order issued by a Greek court would contravene public policy, despite the fact that there was evidence that plaintiff participated in the Greek proceeding through a representative and filed a counterclaim for custody in that action. We found that apart from the fact that the order granting custody to defendant was temporary, the record was devoid of evidence that the court considered any of the statutory factors outlined in N.J.S.A. 9:2-4(c) before reaching its decision. Thus, we concluded that "special equities" militated against according deference to the temporary custody determination by the Greek court.

Editor: Caitlin Yaeger

Bertha Bueno v. Board of Trustees, Teacher’s Pension and Annuity Fund, Division of Pensions and Benefits

A-0916-07T2
12-11-08

Where an applicant for public-employee ordinary disability retirement benefits is only disabled from performing the duties of her assigned public-employee position but the employer has no other work available for her in the general area of her ordinary employment, then the applicant must prove that she is disabled from performing duties in the general area of her ordinary employment for other employers and may even be required to prove that she is disabled from performing substantially different duties for other employers or is generally unemployable in order to qualify for ordinary disability retirement benefits.

Sophie Bubis v. Jack Kassin, et al.

A-5783-06T2
12-11-08

Owners of private property adjoining oceanfront property below the mean high water mark held by the State under the public trust doctrine may not limit the public's use of that property to enhance the enjoyment of their own property. However, such property owners have no obligation to allow public access to their own property above the mean high water mark that they maintain exclusively for their own recreational use.

Scott Evans v. Atlantic City Board of Education, et al.

A-1939-07T3
12-10-08

In this appeal, the court held that a sending-district representative on a receiving district's board of education was not entitled to vote on the appointment of the receiving board's solicitor. The court observed that N.J.S.A. 18A:38-8.1 enumerates those matters on which a sending-district representative is eligible to vote and held that the statute should be literally interpreted because its unambiguous language, as illuminated by its legislative history, reveals an intent to permit voting only on the matters expressly enumerated.

The Biber Partnership, P.C. v. Diamond Hill Joint Venture, LLC and McManus Design Group, Inc.

A-1766-07T1
12-10-08

The section of the New Jersey version of the Uniform Arbitration Act that authorizes consolidation of separate arbitration proceedings recognizes that, even in the absence of an express prohibition against consolidation in a contract providing for arbitration, the legitimate expectations of the contracting parties may limit a court's authority to order consolidation of arbitration proceedings.

&H Securities, Inc. v. Duane D. Pinkney, Marc J. Palladino, Michael Poisler and Advanced Integration Security, LLC

A-3642-07T3
12-09-08

An employee's claim under the Wage Act that is removed from the Department of Labor to the Superior Court for a jury trial is a Superior Court action, which is subject to the same rules of practice and procedure, including the court's authority to consolidate with other pending actions, as any other Superior Court action.

David A. Ames v. Dama Gopal

A-2522-07T1
12-09-08

Plaintiff was not entitled at trial to an instruction that a herniated disc constitutes a permanent injury, entitling him to non-economic damages. We distinguish Pardo v. Dominguez 382 N.J. Super. 489 (App. Div. 2006).

In Re Election Law Enforcement Commission Advisory Opinion No. 01-2008

A-2816-07T1
12-04-08

The Court affirmed an advisory opinion issued by the Election Law Enforcement Commission, concluding that an elected official being criminally prosecuted by the United States Attorney for alleged corruption in office may not use campaign funds to pay for legal defense costs.

Editor: Caitlin Yaeger

Antonia Verni, et al. v. Daniel R. Lanzaro, et al.

A-1816-07T3
12-03-08

The Court reversed a June 7, 2007 order sealing the settlement proceedings, the settlement documents, and all further proceedings in this personal injury action as contrary to the Rule 1:1-2 and the guidelines identified by the Supreme Court that guide judicial discretion in any decision to seal a court record.

Editor: Caitlin Yaeger

Wednesday, December 3, 2008

Garvin McKnight v. Office of the Public Defender

(A-109-07)
11-26-08

In a legal malpractice action brought by a criminal defendant
against the attorney who represented him or her in a criminal
case, the claim does not accrue and the statute of limitations
does not begin to run until the criminal defendant receives
relief through some form of exoneration.

P.V. v. Camp Jaycee

(A-31-07)
11-24-08

Although the Court recognizes the vitality of New Jersey’s own
policy of immunizing charities, in this case, it must yield to
the presumption favoring application of Pennsylvania law, which
has not been overcome.

Antonia Verni, et al. v. Daniel R. Lanzaro, et al.

A-1816-07T3
12-03-08

We reverse a June 7, 2007 order sealing the settlement
proceedings, the settlement documents, and all further
proceedings in this personal injury action as contrary to the
Rule 1:1-2 and the guidelines identified by the Supreme Court
that guide judicial discretion in any decision to seal a court
record.

Senator Nia H. Gill v. N.J. Department of Banking and Insurance

A-0886-07T1
11-28-08

The issue presented in this appeal is the right of GEICO,
which filed documents with the New Jersey Department of Banking
and Insurance, to intervene in a Government Records Council
proceeding held pursuant to the Open Public Records Act, in
which a third party seeks public disclosure of GEICO's
documents. GEICO moved to intervene, claiming that its
documents did not constitute public records, as they contained
confidential, proprietary information.
The GRC denied the motion to intervene and we reversed,
concluding that GEICO was entitled to participate in the GRC
proceeding to protect what it considers to be its confidential
and proprietary information.