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Thursday, September 26, 2013

BARBARA MINKOWITZ VS. RON S. ISRAELI

BARBARA MINKOWITZ VS. RON S. ISRAELI
A-2335-11T2
This matter considers whether the arbitrator, having
once mediated issues in dispute, can thereafter resume the
role of arbitrator. On appeal, plaintiff challenges five
separate orders confirming arbitration awards. She
maintains each must be set aside under N.J.S.A. 2A:23B-23
or, alternatively, requests the final judgment of divorce
be vacated pursuant to Rule 4:50-1, based on alleged
procedural violations, the arbitrator's bias and
substantive errors causing an unconscionable result.
We affirmed orders confirming arbitration awards
incorporating the parties written mediated settlement
agreements. Willingboro Mall, Ltd. v. 240/242 Franklin
Ave., L.L.C., ___ N.J. ___, ___ (2013) (slip op. at 10,
31). However, after concluding an arbitrator may not
conduct arbitration hearings once he or she functioned as a
mediator, we vacated orders confirming arbitration orders
entered after the arbitrator exceeded his powers. N.J.S.A.
2A:23B-23a(4). 09-25-13

NUWAVE INVESTMENT, ET AL. VS. HYMAN BECK

NUWAVE INVESTMENT CORPORATION, ET AL. VS. HYMAN
BECK & COMPANY, ET AL.
A-5275-10T1/ A-5451-10T1(CONSOLIDATED)
In this libel case, the jury awarded presumed damages
to plaintiff NuWave Investment Corp., and two of its
principals, Buckner and Ryan, in excess of $1 million in
total. The jury also awarded NuWave $1.4 million in
"actual" damages, rejected any award of actual damages to
the two principals, and awarded NuWave $250,000 in punitive
damages.
We affirmed the jury verdict on liability, but
remanded the matter for a new trial on damages. We
concluded that in light of the Supreme Court's recent
opinion, W.J.A. v. D.A., 210 N.J. 229 (2012), a jury may
award nominal presumed damages in a libel case, but it may
not make an award of both "actual" damages and presumed
damages. An award in excess of $1 million dollars in
presumed damages cannot stand.
We also concluded that the matter should be
remanded for a new trial on damages in light of the Model
Jury Charge which is, in some respects, inconsistent with
the Court's holding in W.J.A. and its discussion of damages
in defamation actions. As a result, we also vacated the
punitive damages award.
Lastly, we affirmed the dismissal of plaintiffs'
complaint against other defendants based upon the one-year
statute of limitations applicable to defamation suits,
finding that the "discovery rule" has been held to be
inapplicable to defamation actions. 09-19-13

CITIZENS UNITED RECIPROCAL EXCHANGE VS. SABRINA A PEREZ

CITIZENS UNITED RECIPROCAL EXCHANGE VS. SABRINA A
PEREZ, ET AL.
A-3100-11T1
An insurance exchange appealed the trial court's
holding that when an automobile insurance policy is
declared void from its inception due to a fraudulent
application, an innocent injured third party is entitled to
the statutory mandatory minimum liability coverage of up to
$15,000/$30,000. The majority reaffirmed our holding in
New Jersey Manufacturers Insurance Co. v. Varjabedian, 391
N.J. Super. 253 (App. Div.), certif. denied, 192 N.J. 295 09-13-13

Advance Housing, Inc. v. Township of Teaneck

Advance Housing, Inc. v. Township of Teaneck
(069436; A-72/73/74/75/76/77/78/79-11)
Advance Housing has established that it is a not-forprofit corporation, organized exclusively for a
charitable purpose, and that the properties for which
it seeks tax exemptions are actually used for the
charitable purpose of providing supportive housing for
the mentally disabled, entitling them to tax-exempt
status under N.J.S.A. 54:4-3.6. 9-25-13

Farmers Mutual Fire Insurance v. New Jersey Property-Liability Insurance

Farmers Mutual Fire Insurance Company of Salem v. New
Jersey Property-Liability Insurance Guaranty
Association as Administrator of Claims Against Newark
Insurance Company (A-42-11; 068824)
In long-tail, continuous-trigger cases where an
insolvent carrier is on the risk along with solvent
carriers, the PLIGA Act’s exhaustion provision
mandates that an insured first exhaust the policy
limits of the solvent carriers prior to seeking
statutory benefits from the Guaranty Association. 9-24-13

Darnice Green v. Morgan Properties (A-100-11; 069540)

Darnice Green v. Morgan Properties (A-100-11; 069540)
Applying the indulgent standard used to review motions
for dismissal under Rule 4:6-2(e), plaintiffs have
alleged sufficient facts to state causes of action
against the corporate defendants for consumer fraud
and negligence. Plaintiffs have not, however, alleged
sufficient facts to support a consumer fraud or
negligence claim against the individual defendant. 9-17-13

Wednesday, September 25, 2013

Potomac Insurance Company of Illinois v. Pennsylvania Manufacturers’ Association Insurance Company (A-2-12; 070756)


Potomac Insurance Company of Illinois v. Pennsylvania Manufacturers’ Association Insurance Company (A-2-12; 070756) 
OneBeacon’s contribution claim was valid because an insurer may assert, against a co-insurer, a claim for defense costs incurred in litigation arising from property damage manifested over a period of several years, during which the policyholder is insured by successive carriers. The release negotiated between Aristone and PMA had no bearing on OneBeacon’s contribution claim against PMA because OneBeacon was not a party to the release. 9-16-13 

Alex Perez and Cathy Perez v. Professionally Green, LLC, et al. (A-66-11; 069482)


Alex Perez and Cathy Perez v. Professionally Green, LLC, et al. (A-66-11; 069482) 
When a trial court grants a defendant’s motion for involuntary dismissal of plaintiffs’ CFA claim under Rule 4:37-2(b), no bona fide ascertainable loss claim exists within the meaning of N.J.S.A. 56:8-19, and thus plaintiffs are not entitled to attorneys’ fees. 9-12-13 

In the Matter of John C. Johnson, Cape May County (A-39-11;068900)


In the Matter of John C. Johnson, Cape May County 
(A-39-11;068900) 
The reclassification of Johnson’s position was an arbitrary and capricious agency action that was manifestly unjust. Johnson is entitled to restoration of his prior unclassified title of prosecutor’s agent. 9-10-13 

Sunday, September 15, 2013

LINDA KUBERT, ET AL. VS. KYLE BEST, ET AL. A-1128-12T4


LINDA KUBERT, ET AL. VS. KYLE BEST, ET AL. 
A-1128-12T4 
The sender of a text message has a duty under the common law of negligence to refrain from sending a text to a person who the sender knows, or has special reason to know, is then driving and is likely to read the text while driving. Plaintiffs in this case, who were grievously injured by a driver who was texting, did not produce sufficient evidence to withstand summary judgment on the remote texter's breach of such a duty. (The concurring opinion disagrees with the imposition of such a 
duty on a remote texter, concluding that traditional tort principles are adequate to determine whether liability can be imposed.) 08-27-13 

GENE FEDOR VS. NISSAN OF NORTH AMERICA, INC./ JINGESH GHANDI VS. NISSAN OF NORTH AMERICA, INC. A-6034-11T3/ A-0116-12T1


GENE FEDOR VS. NISSAN OF NORTH AMERICA, INC./ 
JINGESH GHANDI VS. NISSAN OF NORTH AMERICA, INC. 
A-6034-11T3/ A-0116-12T1(CONSOLIDATED) 
We determine whether plaintiff-consumers, who were granted a repurchase of their respective vehicles through defendant- manufacturer's informal dispute settlement mechanism, Auto Line, specifically established pursuant to the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act (MMA), 15 U.S.C.A. §§ 2301 to 2312, retain the right to file a separate action solely to recover attorney's fees under the MMA or the New Jersey Motor Vehicle Warranty Act (Lemon Law), N.J.S.A. 56:12-29 to -49, notwithstanding that Auto Line's procedures expressly excluded attorney fee awards. 
We conclude a warrantor's informal dispute resolution mechanism adopted under the MMA is not required to include a fee-shifting component for successful consumers, and may properly exclude an award of attorney's fees. Further, we discern no support for the suggestion a consumer who successfully elects relief through a manufacturer's informal dispute resolution mechanism created pursuant to the MMA has a right to attorney's fees under the Lemon Law. 08-23-13 

MORRISTOWN ASSOCIATES VS. GRANT OIL COMPANY, ET AL. A-0313-11T3


MORRISTOWN ASSOCIATES VS. GRANT OIL COMPANY, ET AL. A-0313-11T3 
The general six-year statute of limitations for damage to property, N.J.S.A. 2A:14-1, as mitigated by the discovery rule of Lopez v. Swyer, 62 N.J. 267 (1973), applies to a private claim for contribution pursuant to N.J.S.A. 58:10-23.11f(a)(2), which is part of the New Jersey Spill Compensation and Control Act. 08-23-13 

TOWNSHIP PHARMACY VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES A-3849-10T1


TOWNSHIP PHARMACY VS. DIVISION OF MEDICAL ASSISTANCE 
AND HEALTH SERVICES 
A-3849-10T1 
Plaintiff appeals from the decision of the Director of the New Jersey Division of Medical Assistance and Health Services denying its application to participate in the State's Medicaid program as a pharmaceutical service provider. The Director's decision was based on plaintiff's failure to disclose the criminal record of one of its employees. We affirm. 
We hold that the Director correctly construed the disclosure requirements to enroll in the State's Medicaid program as a provider of health care, in this case pharmaceutical services. Here, plaintiff failed to perform basic due diligence before answering a question intended to disclose information material to a proper determination of an applicant's eligibility to participate in the Medicaid provider program. Although plaintiff did not intend to deceive or conceal this information, public policy supports the Director's determination that, under these circumstances, failure to provide accurate, truthful, and complete information constitutes good cause to deny the application. 08-22-13 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.S. and J.C A-3353-12T3


 NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY 
v. C.S. and J.C 
A-3353-12T3 
In this interlocutory appeal of an order transferring temporary custody of a child from foster parents to grandparents prior to trial of a Title 30 action, the court reversed the trial court's refusal to permit the admission of evidence regarding any bond that may have formed between the child and the foster parents, and the impact of its severance, and remanded. Although the court observed that in such a circumstance there is a statutory preference for temporary placement with the grandparents, the child's best interests 
warranted a consideration of any bonding evidence opponents of the transfer might wish to present. 08-19-13

BRUCE KAYE, ET AL. VS. ALAN P. ROSEFIELDE, ET AL. VS. DEBORAH KAYE, ET AL. A-1120-07T1


 BRUCE KAYE, ET AL. VS. ALAN P. ROSEFIELDE, ET AL. VS. 
DEBORAH KAYE, ET AL. 
A-1120-07T1 
This civil dispute originated in the Chancery Division where plaintiff filed a complaint against defendant alleging, inter alia, unfaithful servant, civil fraud, and legal malpractice. Although monetary damages were potentially available, plaintiff sought primarily equitable relief. Defendant answered and filed a counterclaim alleging, in part, violations of the protections afforded whistleblowers under the Conscientious Employee Protection Act (CEPA) and common law breach of contract. 
We hold that the trial court did not misuse its discretionary authority when it invoked the doctrine of ancillary jurisdiction to adjudicate the entire controversy, including trying, without a jury, the claims raised by defendant in his counterclaim. We also hold that attorneys hired to serve as in-house counsel are bound by the conflict of interests proscription in RPC 1.8(a), including specifically providing the client/employer with written notice of potential conflicts. 
On the question of damages, we hold that the Chancery Division has the authority to award punitive damages, provided such damages are warranted under the Punitive Damages Act. In a legal malpractice action, if punitive damages are based on defendant's "actual malice" as defined in N.J.S.A. 2A:15-5.10, counsel fees awarded to the plaintiff constitute "compensatory damages" as defined in N.J.S.A. 2A:15-5.10. 
Finally, under the facts of this case, we hold that defendant, who was hired to be the chief operating officer and general counsel of plaintiff's varied businesses, was not an "employee" entitled to the protections afforded under CEPA, pursuant to standards established by the Court in D'Annunzio v. Prudential Insurance Co. of America, 192 N.J. 110 (2007), and Stomel v. City of Camden, 192 N.J. 137 (2007). 08-16-13