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Thursday, February 10, 2011

OHIO CASUALTY INSURANCE COMPANY VS. ISLAND POOL & SPA, INC. A-3216-09T2

OHIO CASUALTY INSURANCE COMPANY VS. ISLAND POOL & SPA,

INC.

A-3216-09T2 02-09-11

We construe the "ongoing operations" j(5) exclusion

contained in the comprehensive general liability insurance

policy issued by Ohio Casualty to its insured, a company that

maintains and installs swimming pools. During the course of the

repainting project Island Pool had been hired to perform, the

swimming pool was damaged when it popped out of the ground. We

held that j(5) "ongoing operations" exclusion entitled the

carrier to deny coverage for the expenses Island Pool incurred

in repairing the pool because, as specified in the j(5)

exclusion, the property damage occurred while Island Pool's work

was ongoing, the damage arose out of the work Island Pool was

performing, and the damage was to the particular part of the

real property on which Island Pool was working

MARK PETERSEN VS. TOWNSHIP OF RARITAN A-3290-09T3

MARK PETERSEN VS. TOWNSHIP OF RARITAN

A-3290-09T3 02-09-11

We are asked to examine whether the terms of a collective

negotiation agreement, which was in effect upon the retirement

of a municipal police officer, mandates that the retiree is

vested in the specific insurance benefit plan offered at the

time of retirement. As a cost cutting measure, defendant

municipality who paid for its employees' and retirees' health

benefits pursuant to N.J.S.A. 40A:10-23, discontinued

participation in the traditional indemnity insurance plan in

favor of a point of service plan. Plaintiff, who was enrolled

in the traditional plan, filed this action asserting the

municipality could not alter the type of insurance coverage he

received at retirement.

We affirmed the summary judgment dismissal of plaintiff's

complaint, determining the agreement required that he be

provided with the same benefits defendant offered all of its

current municipal employees and that defendant's contractual

obligation to pay the cost of health insurance premiums did not

create an entitlement to a particular plan or level of coverage.

MARK PETERSEN VS. TOWNSHIP OF RARITAN A-3290-09T3

MARK PETERSEN VS. TOWNSHIP OF RARITAN

A-3290-09T3 02-09-11

We are asked to examine whether the terms of a collective

negotiation agreement, which was in effect upon the retirement

of a municipal police officer, mandates that the retiree is

vested in the specific insurance benefit plan offered at the

time of retirement. As a cost cutting measure, defendant

municipality who paid for its employees' and retirees' health

benefits pursuant to N.J.S.A. 40A:10-23, discontinued

participation in the traditional indemnity insurance plan in

favor of a point of service plan. Plaintiff, who was enrolled

in the traditional plan, filed this action asserting the

municipality could not alter the type of insurance coverage he

received at retirement.

We affirmed the summary judgment dismissal of plaintiff's

complaint, determining the agreement required that he be

provided with the same benefits defendant offered all of its

current municipal employees and that defendant's contractual

obligation to pay the cost of health insurance premiums did not

create an entitlement to a particular plan or level of coverage.

JUDITH CARRIE RUSAK VS. RYAN AUTOMOTIVE, L.L.C., ET AL. A-2002-09T1

JUDITH CARRIE RUSAK VS. RYAN AUTOMOTIVE, L.L.C., ET

AL.

A-2002-09T1 02-08-11

Plaintiff's complaint alleged violations of the LAD and the

common law tort of intentional infliction of emotional distress.

At the close of the plaintiff's case, and at the end of the

case, the trial judge rejected defendants' motions to dismiss

plaintiff's punitive damages claim. The jury found for

plaintiff on her LAD claims and awarded her compensatory damages

for back pay. It rejected, however, he claim for LAD emotional

distress damages.

As to plaintiff's common law tort claim, the jury

interrogatory asked: "Did the acts of the [d]efendants

constitute such willful, wanton and reckless conduct that you

find for [plaintiff] on the legal theory of intentional

infliction of emotional distress as defined by the Court?" The

jury answered no.

After receipt of the verdict, the judge dismissed the jury.

Plaintiff objected, arguing that the punitive damages phase

should commence. The judge disagreed, concluding that the

jury's answer to the above-cited interrogatory, and its

rejection of plaintiff's LAD emotional distress claim, meant

that the jury found that defendants' conduct did not support an

award under the Punitive Damages Act.

We reversed, concluding that the judge's interpretation of

the jury's response to the interrogatory was error, and that

defendants' conduct, viewed in a light most favorable to

plaintiff, supported an award of punitive damages under the LAD.

We also provided guidance as to what instructions should be

provided to a second jury if the matter is tried again.

IN RE DENIAL OF REGIONAL CONTRIBUTION AGREEMENT BETWEEN GALLOWAY TWP. AND CITY OF BRIDGETON A-1252-08T1/A-1290-08T1

IN RE DENIAL OF REGIONAL CONTRIBUTION AGREEMENT

BETWEEN GALLOWAY TWP. AND CITY OF BRIDGETON

A-1252-08T1/A-1290-08T1 (Consolidated)

In an earlier appeal, we reversed a resolution adopted by

the Council on Affordable Housing (COAH) approving a regional

contribution agreement (RCA). We held that resolution lacked

the requisite findings of fact and remanded to the agency. On

remand, COAH denied further review due to an intervening

statutory amendment prohibiting any RCA approval after the

effective date of amendment. We affirmed holding that the

absence of findings of fact could not be considered a procedural

flaw and our prior disposition rendered the prior approval

without force or effect. We also held that the Legislature had

clearly expressed its intention that COAH lacked authority to

consider any RCA not approved prior to the effective date of the

amendment. 02-07-11

TWENTY-FIRST CENTURY RAIL CORPORATION, ET AL. V. THE NEW JERSEY TRANSIT CORPORATION, ET AL. A-0975-10T3

TWENTY-FIRST CENTURY RAIL CORPORATION, ET AL. V.

THE NEW JERSEY TRANSIT CORPORATION, ET AL.

A-0975-10T3

In this interlocutory appeal we address in a plenary and de

novo fashion the question of attorney disqualification in the

context of successive representation under Rule of Professional

Conduct 1.9. In so doing, we affirm the denial of the motion

for disqualification because the side-switching law firm was not

shown to be engaged in a present representation that is

substantially related to its former representation, within the

principles of City of Atlantic City v. Trupos, 201 N.J. 447

(2010). 02-03-11

Paul Morgan v. Kristin Morgan (n/k/a Leary) A-1-10)

Paul Morgan v. Kristin Morgan (n/k/a Leary) A-1-10) 2-8-11

The Appellate Division correctly found that defendant

Paul Morgan did not establish de facto shared custody

and that the trial court’s decision prohibiting

plaintiff Kristin Morgan from relocating required

reversal. The Appellate Division’s remand order,

however, is modified to permit the trial court to take

into account the changes in circumstances that have

occurred since the evidence was heard by the trial

judge four years ago.

Wednesday, February 2, 2011

N.H. vs. H.H. A-4124-09T2 2-02-11

N.H. vs. H.H. A-4124-09T2 2-02-11

In this matrimonial action we affirm the Family Part's enforcement of the parties' Martial Settlement Agreement, finding that its resolution of child custody and parenting time issues was consistent with Fawzy v. Fawzy, 199 N.J. 456 (2009), as refined by Johnson v. Johnson, ___ N.J. ___ (2010).

PAUL G. SKLODOWSKY v. JOHN F. LUSHIS, JR., ESQ. A-3918-09T3

PAUL G. SKLODOWSKY v. JOHN F. LUSHIS, JR., ESQ. A-3918-09T3 2-02-11

The entire controversy doctrine does not require a client to assert legal malpractice claims against his or her attorney in this action, which arose from the attorney's alleged negligent advice, even though the attorney is a party to that action. Furthermore, if the doctrine could be applied in such a case, it would not be fair to do so here because the assertion of the legal malpractice claims in the underlying action would have further compromised an already strained attorney-client relationship and prejudiced the parties' ability to advance their respective interests in that lawsuit.

WADE STANCIL V. ACE USA A-1438-09T1

WADE STANCIL V. ACE USA A-1438-09T1 02-01-11

The enforcement remedies in the Workers' Compensation Act and corresponding regulations constitute the sole relief available to an aggrieved claimant for willful noncompliance by an employer or its insurer with an order of the compensation court. The compensation court order is enforceable in Superior Court, but the claimant has no common law claim for pain, suffering and increased disability. We therefore affirmed the dismissal of the Law Division complaint for failure to state a claim upon which relief can be granted.