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Saturday, October 30, 2010

SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. V. HUDSONEAST PAIN MANAGEMENT OSTEOPATHIC MEDICINE AND PHYSICAL THERAPY, ET AL. A-0433-09T1

SELECTIVE INSURANCE COMPANY OF AMERICA, ET AL. V. HUDSONEAST PAIN MANAGEMENT OSTEOPATHIC MEDICINE AND PHYSICAL THERAPY, ET AL. A-0433-09T1 10-07-10

We hold that a private automobile insurer providing PIP coverage is not entitled to declaratory relief compelling expansive discovery from assignee health care providers in its internal investigation of suspected insurance fraud. Neither the PIP statute's limited discovery provision, N.J.S.A. 39:6A- 13(g), nor the cooperation clause of the insurance policies in which medical providers are assigned the rights of the insureds, support the imposition of a corresponding duty on the assignees to produce extensive documentation beyond that authorized in the PIP statute.

We also found no entitlement to the requested information under the umbrella of statutory schemes mandating that insurance carriers investigate putative fraud. Such discovery may be appropriate in an insurer's private cause of action under the Insurance Fraud Protection Act (N.J.S.A. 17:33A-1 to -30), seeking to recover compensatory damages for violations by medical providers of statutes or regulations governing their profession. Here, however, the insurer filed a declaratory judgment action exclusively for the purpose of obtaining information to further its investigation, alleging no violation of governing law and seeking no compensatory damages as a result thereof.

Raymond Marcinczyk v. State of New Jersey Police Training Commission (A-19-09)

Raymond Marcinczyk v. State of New Jersey Police Training Commission (A-19-09)

The agreement that plaintiff Raymond Marcinczyk was required to sign before attending police academy training, in which he agreed that he would not assert any claims for injuries or other damages sustained as a result of the training, was invalid because it contravened public policy as expressed in the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. A public entity cannot condition the provision of a public service on the recipient’s execution of a waiver of liability.

Wednesday, October 6, 2010

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v. C.H. A-4786-08T1

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES v. C.H.

A-4786-08T1 10-05-10

An ALJ found that a parent's corporal punishment of a four-

year-old who reported to a neighbor that there was no

electricity in their home was insufficient to sustain an

allegation of abuse under N.J.S.A. 9:6-8.21(c). The Director

disagreed, finding that given the reason for inflicting the

corporal punishment, the fact that the child was struck multiple

times, and the parent's history of questionable corporal

punishment, the abuse had been substantiated. We affirmed and

agreed the Director properly considered the parent's past

admitted history of corporal punishment inflicted upon the

child.

Arthur Andersen, LLP v. Federal Insurance Company, et al. A-2155-08T1

Arthur Andersen, LLP v. Federal Insurance Company, et al.

A-2155-08T1 09-30-10

Although Arthur Andersen, LLP neither owned nor leased any

space at the World Trade Center or the Pentagon on September 11,

2001, it filed a claim with its insurers for $204 million in

business losses, contending that such losses were caused as a

result of the property damage to the WTC and the Pentagon and

covered under the Contingent Business Interruption (CBI) clause

and the Interdependency clause of its policy. The loss claimed

was a generalized revenue shortfall that represented the

difference between expected revenue trends and actual revenue

earned in the three and one-half months that followed the

terrorist attacks. Andersen appealed from orders granting

summary judgment to the insurer. We affirm.

Because Andersen failed to show that its claimed business

loss was caused by damage to property that prevented a client

from accepting its services, its loss was not covered under the

CBI provision of its policy. We also reject Andersen's argument

that it had an "insurable interest" in the World Trade Center

and therefore conclude that its claim was not covered under the

Interdependency provision of the policy.

W.J.A. v. D.A. A-0762-09T3

W.J.A. v. D.A.

A-0762-09T3 09-27-10

In this appeal from the grant of summary judgment

dismissing plaintiff's defamation action, we determine whether

Internet postings by defendant accusing plaintiff of sexually

molesting him and another male are the type of defamatory

statements for which damages may be presumed and therefore do

not require proof of actual harm to reputation. The motion

judge concluded that although the Internet postings were

defamatory per se, the statements were akin to libel rather than

slander, and as such, plaintiff was required to prove actual

injury to reputation, which plaintiff admittedly had not done.

We reversed. Although acknowledging a trend away from the

notion of presumed damages in defamation cases, we concluded

that existing law in this state still remains that actionable without proof of actual harm to reputation.

Melissa Lee v. Carter-Reed Company, L.L.C. (A-38-09)

Melissa Lee v. Carter-Reed Company, L.L.C. (A-38-09) 9-30-10

Based on a review of the record, Melissa Lee’s claims,

Carter Reed’s defenses, and the applicable substantive

law, and in light of the analysis of the predominance,

superiority, and manageability factors of Rule 4:32-

1(b) (3), the trial court mistakenly exercised its

discretion in not certifying the class of New Jersey

Relacore purchasers on Lee’s Consumer Fraud Act claim.

In the Matter of D.C. & D.C., Minors (A-71-09)

In the Matter of D.C. & D.C., Minors (A-71-09) 9-29-10

Under the Child Placement Bill of Rights Act, N.J.S.A.

9:6B-1 to -6, visitation between siblings placed

outside the home is presumed in the period before

adoption, and the Division has an independent

obligation to facilitate visitation. To oppose

visitation, the Division must prove it is contrary to

the child’s welfare under the standards provided in

the Child Placement Bill of Rights Act. After

adoption, adoptive parents are free, within the same

limits as biological parents, to raise their child as

they see fit. Parental autonomy is not absolute,

however. A biological or adoptive family may be

ordered to permit third-party visitation where

necessary to avoid harm to the child.