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Sunday, May 10, 2015

PATRICIA C. MYSKA, DAX MORALES, KATHERINE K. WAGNER AND JOHN B. OTDISCO VS. NEW JERSEY MANUFACTURERS INSURANCE COMPANY, AAA MID-ATLANTIC INSURANCE COMPANY OF NEW JERSEY AND PALISADES INSURANCE COMPANY A-4398-13T4


PATRICIA C. MYSKA, DAX MORALES, KATHERINE K. WAGNER
          AND JOHN B. OTDISCO VS. NEW JERSEY MANUFACTURERS
          INSURANCE COMPANY, AAA MID-ATLANTIC INSURANCE COMPANY
          OF NEW JERSEY AND PALISADES INSURANCE COMPANY
          A-4398-13T4/A-0275-14T4 (CONSOLIDATED)
On remand from the Supreme Court, we consider these appeals, calendared back-to-back and consolidated for purposes of our opinion, reviewing orders dismissing plaintiffs' putative class action complaints, attacking defendant-insurers alleged denial of diminution in value damages, as a covered component of the underinsured and uninsured motorist provisions in their respective automobile insurance policies. Plaintiffs argue striking class allegations prior to discovery was premature and unprecedented. Although we agree courts must liberally view class allegations, allowing reasonable inferences to be gleaned from the complaint's allegations, and must also search for a possible basis for class relief so as to avoid premature dismissals, Lee v. Carter-Reed Co., 203 N.J. 496, 505-06, 518 (2010), we do not abide a view that precludes dismissal of a complaint at the incipient stage of litigation, upon a determination claims do not properly lend themselves to class certification, when made following the required searching analysis. See Riley v. New Rapids Carpet Center, 61 N.J. 218, 225 (1972) (holding "a class action should lie unless it is clearly infeasible"). We flatly reject plaintiffs' urging to impose a bright-line rule prohibiting examination of the propriety of class certification until discovery is undertaken.
Our review also examines whether plaintiffs allege cognizable claims under the Consumer Fraud Act and whether the arbitration clause in one policy withstands scrutiny, under Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014), petition for certiorari filed Jan. 21, 2015. 

THE PITNEY BOWES BANK, INC. VS. ABC CAGING FULFILLMENT A-2287-13T3

THE PITNEY BOWES BANK, INC. VS. ABC CAGING FULFILLMENT
          A-2287-13T3
In this case we consider the effect of N.J.S.A. 34:11-31 and -32 on a levy of a debtor's bank account, which the debtor claimed was used to pay employees' wages. As the statutes hold that wages owing at the time of the levy must be paid before the sheriff disburses funds to the creditor, we hold that the wages owed at the time of the levy were exempt funds. On the other hand, we hold that wages that became due after the date of the
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levy, but before the levied funds were turned over to the creditor, were not exempt under N.J.S.A. 34:11-32. 

Robert Occhifinto v. Olivo Construction Company


Robert Occhifinto v. Olivo Construction Company (A-77-
          13; 073174)
          Occhifinto was a successful claimant entitled to
          counsel fees under Rule 4:42-9(a)(6).  In the
          declaratory judgment action, the trial court properly
          concluded that Mercer would be required to indemnify
          Keppler in the event Keppler was found liable, and
          therefore determined that the liability action alleged
          claims that, if proven, would fall within the coverage
          of Keppler’s liability policy with Mercer.  That
          determination had the practical effect of enforcing
          Mercer’s duty to defend.  By forcing Mercer to defend
          the liability action, Occhifinto obtained a favorable
          adjudication on the merits on a coverage question as
          the result of the expenditure of counsel fees,
          rendering Occhifinto a successful claimant under Rule
          4:42-9(a)(6).

Bridgewater-Raritan Education Association v. Board of Education of the Bridgewater-Raritan School District


Bridgewater-Raritan Education Association v. Board of
          Education of the Bridgewater-Raritan School District
          (A-85-13; 073873)
          N.J.S.A. 18A:16-1.1 requires a board of education to
          give an employee notice of his or her designation as a
          “replacement.”  With respect to the claim of Tamara
          Manzur, a genuine issue of material fact exists
          regarding whether she was provided such notice as to
          her status during the 2007-08 school year.

388 Route 22 Readington Realty Holdings, LLC v. Township of Readington


388 Route 22 Readington Realty Holdings, LLC v.
          Township of Readington (A-63-13; 073322)
          A blanket policy of not recapturing unused sewer
          capacity is the functional equivalent of a moratorium
          on development.  The Court approves of the trial
          court’s approach, requiring the Township both to
          undertake a detailed analysis of the unused capacity
          in the hands of private parties and to explain whether
          any of that capacity can be recalled.