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Friday, August 31, 2012

IN THE MATTER OF THE LIQUIDATION OF INTEGRITY INSURANCE COMPANY/SEPCO CORPORATION IN THE MATTER OF THE LIQUIDATION OF INTEGRITY INSURANCE COMPANY/MINE SAFETY APPLIANCES COMPANY A-3850-10T1/ A-5191-10T1


 IN THE MATTER OF THE LIQUIDATION OF INTEGRITY
          INSURANCE COMPANY/SEPCO CORPORATION
          IN THE MATTER OF THE LIQUIDATION OF INTEGRITY INSURANCE
          COMPANY/MINE SAFETY APPLIANCES COMPANY
          A-3850-10T1/ A-5191-10T1 (CONSOLIDATED)
          In these appeals from the denial of toxic tort claims
     asserted against Integrity Insurance Company in Liquidation
     by Sepco Corporation and Mine Safety Appliances Company, we
     applied choice of law principles to the insurance contracts
     at issue and concluded that the trial court properly held
     that the law of New Jersey applied to the question of the
     allocation of coverage among excess insurance policies
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potentially covering the claims for which recovery was
     sought.  We further affirmed the court's determination
     that, under New Jersey's pro rata approach to allocation,
     which takes account of the insurer's time on the risk and
     the degree of risk that was assumed, Integrity's excess
     policies were not triggered by these claims.  We rejected
     the insureds' argument that an "all sums" allocation,
     recognized by the courts of California and Pennsylvania,
     which permits the insured to recover in full under any
     triggered policy that it chooses, was applicable, thereby
     triggering Integrity's coverage. 
08-23-12 

SHATINA D. SUAREZ VS. EASTERN INTERNATIONAL COLLEGE F/K/A MICROTECH TRAINING CENTER, INC. A-2705-10T2


SHATINA D. SUAREZ VS. EASTERN INTERNATIONAL COLLEGE
          F/K/A MICROTECH TRAINING CENTER, INC.
A-2705-10T2
Plaintiff Shanita D. Suarez enrolled in the diagnostic medical ultrasound technician (DMUT) program of Micro Tech, a for-profit school, after an admissions representative told her that upon graduation, she would be able to perform ultrasounds on patients in hospitals and clinics and earn $65,000 per year. In this lawsuit, alleging violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195, and common law fraud, she contends that these representations were false. She alleges that, to obtain employment in this field, it was necessary to obtain American Registry for Diagnostic Medical Sonography certification. Because Micro Tech lacked necessary accreditation, she was not eligible upon graduation to take the examination administered by ARDMS to obtain the certification required by potential employers. She contends that, as a practical matter, she cannot either attain the credentials necessary to be eligible to take the ARDMS examination or obtain employment as an entry level sonographer.
Plaintiff now appeals from an order that granted summary judgment to defendant, dismissing her complaint. We conclude that, because a jury could find that defendant's statements were so misleading as to a material fact as to effectively deprive her of the ability to make an intelligent decision as a consumer, the statements were actionable under the CFA and summary judgment was inappropriate. We affirm the dismissal of her common law fraud claim.
Defendant cross-appeals, arguing that plaintiff's CFA claim should have been dismissed as barred under a "learned professional" exemption. We reject defendant's argument that the "learned professional" exemption applies. 08-23-12  

Saturday, August 18, 2012

C.A., ET AL. VS. ERIC BENTOLILA, M.D., ET AL. A-1261-11T1


C.A., ET AL. VS. ERIC BENTOLILA, M.D., ET AL. A-1261-11T1
In this case of first impression, we construe the confidentiality provisions within the Patient Safety Act (the "PSA"), N.J.S.A. 26:2H-12.23 to -12.25, and their interplay with other laws and procedures, including the qualified common-law privilege for self-critical analysis of medical peer review documents set forth in Christy v. Salem, 366 N.J. Super. 535 (App. Div. 2004).
We hold that post-event investigatory and analytic documents exclusively created by a medical facility in compliance with the PSA and its associated regulations, and not created for some other statutory or licensure purpose, are absolutely privileged from disclosure under the PSA. The PSA's confidentiality provisions insulate such documents from outside access. They do so regardless of a plaintiff's asserted needfor disclosure and regardless of whether the documents contain factual information in addition to subjective opinions.
However, if the specified procedures of the PSA and the related regulations have not been observed, or if the documents have been generated for additional non-PSA purposes, then the PSA's absolute privilege does not apply. Instead, other legal principles govern, such as those expressed in Christy, depending upon the kind of document involved. 8-09-12 

MAUREEN CASTRIOTTA VS. BOARD OF EDUCATION OF THE TOWNSHIP OF ROXBURY, MORRIS COUNTY A-5222-10T3


MAUREEN CASTRIOTTA VS. BOARD OF EDUCATION OF THE TOWNSHIP OF
ROXBURY, MORRIS COUNTY A-5222-10T3
Petitioner, an elected member of the Roxbury Board of Education, was censured by her fellow Board members for conduct that allegedly undermined the orderly administration of the school district. On petitioner's appeal, the Acting Commissioner of Education found the Board did not have the power to review and sanction a fellow member. Despite finding in petitioner's favor, the Commissioner denied her request for indemnification, under N.J.S.A. 18A:12-20, for legal fees and costs she incurred in connection with defending herself against the censure resolution adopted by the Board. In reaching this conclusion, the Commissioner found the disciplinary proceeding initiated by the Board against petitioner was not a "legal proceeding" under N.J.S.A. 18A:12-20.
We reversed. When the Board decided that petitioner had committed an ethical infraction warranting the sanction of censure, it was performing an adjudicatory act and functioning in a quasi-judicial capacity. This process constituted a "legal proceeding" under N.J.S.A. 18A:12-20.   08-09-12 

A.Z. VS. HIGHER EDUCATION STUDENT ASSISTANCE AUTHORITY A-4827-10T1


 A.Z. VS. HIGHER EDUCATION STUDENT ASSISTANCE AUTHORITY A-4827-10T1
The Higher Education Student Assistance Authority denied a Tuition Assistance Grant (TAG) to a United States citizen who lived in New Jersey since 1997, because her parents were not "legal New Jersey residents," specifically, her mother was an undocumented immigrant. We reverse, concluding: the TAG belongs to the dependent student, not the parent, so the statute barring grants to ineligible non-citizens does not apply; the dependent student here has satisfied the statutory residence requirement, based on her evident intent to make New Jersey her permanent home; the agency's 2005 regulation, which provides that adependent child's legal residence is conclusively determined to be the same as the parent's domicile, was ultra vires, and reversed longstanding prior interpretation, implicitly approved by the Legislature through intervening enactments, that a dependent child's residence was only rebuttably presumed to be that of the parents. Here, such presumption was rebutted. 08-08-12

 A.Z. VS. HIGHER EDUCATION STUDENT ASSISTANCE AUTHORITY A-4827-10T1
The Higher Education Student Assistance Authority denied a Tuition Assistance Grant (TAG) to a United States citizen who lived in New Jersey since 1997, because her parents were not "legal New Jersey residents," specifically, her mother was an undocumented immigrant. We reverse, concluding: the TAG belongs to the dependent student, not the parent, so the statute barring grants to ineligible non-citizens does not apply; the dependent student here has satisfied the statutory residence requirement, based on her evident intent to make New Jersey her permanent home; the agency's 2005 regulation, which provides that adependent child's legal residence is conclusively determined to be the same as the parent's domicile, was ultra vires, and reversed longstanding prior interpretation, implicitly approved by the Legislature through intervening enactments, that a dependent child's residence was only rebuttably presumed to be that of the parents. Here, such presumption was rebutted.

F.H.U. VS. A.C.U. A-4668-10T4


F.H.U. VS. A.C.U. A-4668-10T4
We affirm the April 29, 2011 Family Part order directing A.C.U., to turn over his nine-year-old daughter, M.U., to her mother, F.H.U. This will allow the return of M.U. to her former home in Turkey. We hold that when petitioning for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction, although the Convention requires an analysis of a wrongfully removed child's "well-settled" status in his or her new country when the petition is filed more than one year after the removal, this required analysis is not a jurisdictional limitation. Therefore, based on the merits and other criteria set by the Hague Convention, a court may order the return of such child to the home country despite a finding that he or she is well-settled here.

F.H.U. VS. A.C.U. A-4668-10T4
We affirm the April 29, 2011 Family Part order directing A.C.U., to turn over his nine-year-old daughter, M.U., to her mother, F.H.U. This will allow the return of M.U. to her former home in Turkey. We hold that when petitioning for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction, although the Convention requires an analysis of a wrongfully removed child's "well-settled" status in his or her new country when the petition is filed more than one year after the removal, this required analysis is not a jurisdictional limitation. Therefore, based on the merits and other criteria set by the Hague Convention, a court may order the return of such child to the home country despite a finding that he or she is well-settled here.

TOWNSHIP OF JEFFERSON VS. DIRECTOR, DIVISION OF TAXATION, ET AL. TOWNSHIP OF JEFFERSON VS. MORRIS COUNTY BOARD OF TAXATION A-3013-10T3 / A-0613-11T3 (CONSOLIDATED)


TOWNSHIP OF JEFFERSON VS. DIRECTOR, DIVISION OF TAXATION, ET AL.
TOWNSHIP OF JEFFERSON VS. MORRIS COUNTY BOARD OF TAXATION A-3013-10T3 / A-0613-11T3 (CONSOLIDATED)
In these tax appeals, the Township of Jefferson challenges the Table of Equalized Valuations promulgated by defendant, the Director, Division of Taxation, for the year 2010 and adopted by the Morris County Board of Taxation, arguing that the use for equalization purposes in that table of average true value in excess of equalized true value violated New Jersey statutes and the New Jersey Constitution's Uniformity Clause. Tax Court Judge Bianco rejected the Township's arguments in decisions reported at 26 N.J. Tax 1 (Tax 2011) and 26 N.J. Tax 129 (Tax 2011). On appeal, we have affirmed the orders resulting from Judge Bianco's decisions, substantially for the reasons stated in his reported opinions. 08-06-12 

AVIS BUDGET GROUP, INC., AND THE HERTZ CORPORATION VS CITY OF NEWARK, ET AL. A-3801-10T4


AVIS BUDGET GROUP, INC., AND THE HERTZ CORPORATION VS CITY OF NEWARK, ET AL.
A-3801-10T4
We determine that Ordinance 6PFS-I 050510 (the Ordinance), enacted by defendant City of Newark, levying a tax on all car rental transactions within the City's Second and Third Industrial Zones, the latter of which encompasses parts of Newark Liberty International Airport is valid and does not violate the Anti-Head Tax Act, 49 U.S.C.A. § 40116, 42 U.S.C.A. § 1983 or the Commerce Clause of the United States Constitution, Article I, Section 8, Clause 3.
We conclude that the Ordinance is a valid exercise of municipal authority and affirm the decision of the Law Division. 8-01-12 

Jamie Gannon and Rebecca Gannon v. American Home Products, Inc., et al. (A-80-10; 066899)


Jamie Gannon and Rebecca Gannon v. American Home Products, Inc., et al. (A-80-10; 066899)
Federal principles must govern the preclusive effect of a federal judgment. For collateral estoppel purposes, plaintiffs were afforded a full and fair opportunity to be heard on the essential claims of their dispute. The appellate panel erred in concluding that equitable considerations demand that plaintiffs be permitted to have their claims heard again.

Jamie Gannon and Rebecca Gannon v. American Home Products, Inc., et al. (A-80-10; 066899)


Jamie Gannon and Rebecca Gannon v. American Home Products, Inc., et al. (A-80-10; 066899)
Federal principles must govern the preclusive effect of a federal judgment. For collateral estoppel purposes, plaintiffs were afforded a full and fair opportunity to be heard on the essential claims of their dispute. The appellate panel erred in concluding that equitable considerations demand that plaintiffs be permitted to have their claims heard again.

Jamie Gannon and Rebecca Gannon v. American Home Products, Inc., et al. (A-80-10; 066899)
Federal principles must govern the preclusive effect of a federal judgment. For collateral estoppel purposes, plaintiffs were afforded a full and fair opportunity to be heard on the essential claims of their dispute. The appellate panel erred in concluding that equitable considerations demand that plaintiffs be permitted to have their claims heard again.

Jamie Gannon and Rebecca Gannon v. American Home Products, Inc., et al. (A-80-10; 066899)
Federal principles must govern the preclusive effect of a federal judgment. For collateral estoppel purposes, plaintiffs were afforded a full and fair opportunity to be heard on the essential claims of their dispute. The appellate panel erred in concluding that equitable considerations demand that plaintiffs be permitted to have their claims heard again.

N.J. Division of Youth and Family Services v. F.M. (A-108-10; 067611)


N.J. Division of Youth and Family Services v. F.M. (A-108-10; 067611)
In this termination of parental rights case pursuant to N.J.S.A. 30:4C-15, the record supports the family court’s decision to terminate defendant F.M.’s parental rights, and the doctrine of laches bars her claim, raised for the first time on appeal, that a statutory prerequisite for the commencing the termination of her parental rights was not met.

Vonnie Cornett v. Johnson & Johnson and Cordis Corp. (A-88/89-10; 066671)


Vonnie Cornett v. Johnson & Johnson and Cordis Corp. (A-88/89-10; 066671)
The Cornett complaint is time-barred. The failure to warn claim as to approved and off-label uses is preempted, except to the extent plaintiffs base the claim on allegations of deliberate non-disclosure or fraudulent representations of known adverse information apart from defendants’ failure to comply with FDA disclosure requirements or promotion of off- label uses outside the safe harbor. The breach of express warranty claim is also preempted, except to the extent plaintiffs allege defendants have made voluntary statements to third parties beyond and different from the information on the approved label or packaging.

Friday, August 10, 2012

Moses Segal v. Cynthia Lynch and Linda A. Schofel (A-127-10; 067683)


Moses Segal v. Cynthia Lynch and Linda A. Schofel
          (A-127-10; 067683)
          The judgment of the Appellate Division is affirmed to
          the extent that it affirmed the trial court’s April
          14, 2008, order awarding fees to Schofel for her work
          as a parent coordinator in responding to the
          grievances and to the extent that it affirmed the
          trial court’s rejection of Segal’s argument that he
          was entitled to an evidentiary hearing on his
          grievances; in all other respects the judgment of the
          Appellate Division is reversed.  
8-2-12    

Wade Stancil v. ACE USA (A-112-10; 067640)


 Wade Stancil v. ACE USA (A-112-10; 067640)
          An injured employee does not have a common law right
          of action against a workers’ compensation carrier for
          pain and suffering cause by the carrier’s delay in
          paying for or authorizing treatment because 1) the
          workers’ compensation system was designed to provide
          injured workers with a remedy outside of the ordinary
          tort or contract remedies cognizable in the Superior
          Court; 2) in amending the Workers’ Compensation Act in
          2008, the Legislature rejected a provision that would
          have given the compensation courts broader permission
          to authorize a resort to the Superior Court and
          adopted a remedy that permits compensation courts to
          act through a contempt power; and 3) allowing a direct
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common-law cause of action against a carrier would
          undermine the workers’ compensation system by
          substituting a cause of action that would become the
          preferred manner of securing relief. 
8-1-12