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Wednesday, August 31, 2016

ANTHONY MCCORMICK VS. STATE OF NEW JERSEY A-3493-14T2


ANTHONY MCCORMICK VS. STATE OF NEW JERSEY
          A-3493-14T2
An injured plaintiff who alleges that he received inadequate medical care while housed in a government facility cannot avoid his obligation to serve an Affidavit of Merit (AOM) under N.J.S.A. 2A:53A-27 by naming only the public entity as a defendant in his complaint and not suing the individual licensed professionals who provided the allegedly inadequate care. We extend the holding of Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1 (App. Div. 2010) (requiring an AOM where a legal malpractice complaint named only law firms as defendants and not their associate, the licensed attorney who acted negligently) to cases involving public entity defendants and involving other forms of malpractice. 

JENNIFER LAMBERT AND GARY LAMBERT VS. TRAVELERS INDEMNITY COMPANY OF AMERICA/PAUL REED VS. QUAL-LYNX AND TOWNSHIP OF MARLBORO AND MONMOUTH MUNICIPAL JOINT INSURANCE FUND/WILLIAM AGAR VS. QUAL-LYNX AND TOWNSHIP OF HAZLET AND MONMOUTH MUNICIPAL JOINT INSURANCE FUND A-1073-14T3


JENNIFER LAMBERT AND GARY LAMBERT VS. TRAVELERS INDEMNITY COMPANY OF AMERICA/PAUL REED VS. QUAL-LYNX AND TOWNSHIP OF MARLBORO AND MONMOUTH MUNICIPAL JOINT INSURANCE FUND/WILLIAM AGAR VS. QUAL-LYNX AND TOWNSHIP OF HAZLET AND MONMOUTH MUNICIPAL JOINT INSURANCE FUND A-1073-14T3/A-3040-14T1/A-3107-14T1(CONSOLIDATED)
page3image14192 page3image14352 page3image14512 page3image14672 page3image14832
In these consolidated appeals, we hold that when a worker is injured in the course of his or her employment in a motor vehicle accident and workers' compensation coverage is available, the right of the injured worker to pursue claims against a third-party tortfeasor and the right of the workers' compensation insurer to be reimbursed are governed by the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142. Accordingly, the injured worker may recover medical expenses from a third-party tortfeasor, and N.J.S.A. 39:6A-12, which is part of the Automobile Insurance Cost Reduction Act, does not apply. The workers' compensation insurer, in turn, has the right to be reimbursed for the appropriate portion of the medical expenses it has already paid under Section 40 of the Workers' Compensation Act, N.J.S.A. 34:15-40. 

NICOLE PRAGER VS. JOYCE HONDA, INC. A-3691-14T3


NICOLE PRAGER VS. JOYCE HONDA, INC.
          A-3691-14T3
We consider whether the trial court correctly dismissed plaintiff Nicole Prager's claims of retaliation and constructive discharge at the close of her proofs pursuant to Rule 4:37-2(b).
Although we reject the trial court's conclusion that plaintiff's report to the police of a workplace incident, in which a customer of her employer tugged down the sleeve of her shirt revealing her bra, was not protected activity under the LAD, we affirm the dismissal because the proofs were otherwise insufficient to sustain a judgment in plaintiff's favor.
We conclude plaintiff's constructive discharge claim was properly dismissed because no reasonable juror could find her receipt of two written warnings, which she contended were issued in retaliation for her pressing charges against the customer, and the coldness of her co-workers following her decision to go to the police "so intolerable that a reasonable person would be forced to resign rather than continue to endure it." Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 28 (2002) (quotation omitted). 

PHILIP VITALE VS. SCHERING-PLOUGH CORPORATION A-1156-14T4


PHILIP VITALE VS. SCHERING-PLOUGH CORPORATION
          A-1156-14T4
In the context of a worker for a security guard service, this opinion resolves a novel question of law in New Jersey: Whether a provision in an employment contract limiting a worker's right to sue a third party for negligence is enforceable. The court determines such a provision, eliminating an employee's remedies from a non-employer, and allowing only those remedies provided from his or her employer pursuant to the Workers' Compensation Act, N.J.S.A. 34:15-1 to -142, is against New Jersey public policy and therefore unenforceable.
Because plaintiff could have contributed to the fall by not turning on the light prior to stumbling, the court also remands for a new trial as to comparative negligence only, where plaintiff, in the course of his work duties, was injured after tripping over an object negligently left on a dark staircase 

Roy Steinberg v. Sahara Sam’s Oasis, LLC (A-41-14;


Roy Steinberg v. Sahara Sams Oasis, LLC
          (A-41-14; 075294)
          The summary-judgment record, viewed in the light most
          favorable to plaintiff, would allow a reasonable
          finder of fact to conclude that plaintiff’s injuries
          were caused by Sahara Sam’s gross negligence.
          Further, while a violation of the Safety Act, standing
          alone, does not give rise to a private cause of
          action, particular violations of the Safety Act,
          individually or in their aggregate, may be considered
          as evidence in determining whether Sahara Sam’s acted
          with gross negligence.

In re: Reglan Litigation (A-56-14;


 In re: Reglan Litigation (A-56-14; 075269)
          Plaintiffs’ state-law failure-to-warn claims under the
          PLA, based on the alleged inadequate labeling of
          metoclopramide which did not match the brand-name
          labeling and warn of the dangers of the long-term use
          of the drug, are not preempted by federal law, and may
          proceed before the trial court.

Sunday, August 21, 2016

RICHARD CATENA VS. RAYTHEON COMPANY, ET AL. A-4636-13T4

RICHARD CATENA VS. RAYTHEON COMPANY, ET AL. 
A-4636-13T4 

In this appeal, we apply the discovery rule to fraud claims under common law and the Consumer Fraud Act arising from the sale of commercial real property. The seller and his lender, both defendants, knew about environmental contamination on the property, which they partly remediated before the closing. Rather than disclose that information, the seller provided plaintiff an affidavit stating that he was unaware of any contamination on the site. In reversing the summary judgment dismissal on statute of limitations grounds, we hold that discovery did not occur until plaintiff was aware of facts indicating defendant knew his statements were false, and intended plaintiff to rely upon their falsity. We base this on the rule that a plaintiff cannot discover the basis for a fraud claim until he is aware of facts establishing the essential elements of the claim, one of which is mens rea. 

Rachel A. Parsons v. Mullica Township Board of Education (A-69-14;

Rachel A. Parsons v. Mullica Township Board of Education (A-69-14; 075859) 

The failure to timely communicate the results of a preventative public health examination falls within the purview of N.J.S.A. 59:6-4. Therefore, defendants are immune from liability under the TCA. The Court further holds that immunizing defendants under N.J.S.A. 59:6-4 does not render meaningless the provisions of N.J.A.C. 6A:16-2.2(1)(6). 

Salvatore Puglia v. Elk Pipeline, Inc. (A-38-14; 075171)

 Salvatore Puglia v. Elk Pipeline, Inc. 
(A-38-14; 075171) 

Under the circumstances here, Puglia’s CEPA claim, which neither requires interpretation of the CBA nor presents a question that would be within the jurisdiction of the NLRB, is not preempted by the LMRA or the NLRA. 

Northwest Bergen County Utilities Authority v. Kathleen A. Donovan (A-36/37-14;

Northwest Bergen County Utilities Authority v. Kathleen A. Donovan (A-36/37-14; 075060) 

The County Executive’s termination of the Authority commissioners was not conducted in accordance with her authority, and her unilateral action was contrary to and in violation of N.J.S.A. 40:14B-16. Likewise, the County Executive’s use of the veto power to diminish the compensation (the $5000 stipend) being paid to the commissioners since 1979 violated N.J.S.A. 40:14B-17 and must be declared void. However, in respect of the health benefits provided to the commissioners in more recent years, the County Executive’s supervisory authority to review and reject Authority action through her veto power is broad and easily encompasses authority to disapprove such administrative action. 

Sunday, August 14, 2016

JOHN GIOVANNI GRANATA VS. EDWARD F. BRODERICK, JR., ESQ., ET AL. A-2928-14T2/

JOHN GIOVANNI GRANATA VS. EDWARD F. BRODERICK, JR., 
ESQ., ET AL. 
A-2928-14T2/A-3036-14T2(CONSOLIDATED) 

In a case of first impression, we hold that an attorney's pledge of anticipated counsel fees can be considered a receivable under UCC Article 9 and a creditor may perfect a security interest in those fees that were pledged as collateral for a loan made to the attorney. Because the creditor filed a UCC-1 financing statement and fully complied with Article 9, it had a perfected security interest which attached, even though the counsel fees had not been awarded, and enjoyed priority over subsequent lien creditors claiming against the same collateral. 

Stephen Meehan v. Peter Antonellis, DMD (A-45-14

Stephen Meehan v. Peter Antonellis, DMD 
(A-45-14; 075265) 

The enhanced requirements of section 41 of the Patients First Act which govern the qualifications of persons permitted to submit an affidavit of merit, or provide expert testimony, in a medical malpractice action, apply only in medical malpractice actions. In all other actions against a licensed professional, section 27 of the AOM statute prescribes the qualifications of the person who may submit an affidavit of merit against a licensed professional. The affidavit of merit that plaintiff submitted in this action, from a licensed dentist with experience in the treatment of sleep apnea, satisfies section 27. The trial court therefore improperly dismissed the complaint. 

Cypress Point Condominium Association, Inc. v. Adria Towers, LLC (A-13/14-15;

Cypress Point Condominium Association, Inc. v. Adria Towers, LLC (A-13/14-15; 076348) 

The consequential damages caused by the subcontractors’ faulty workmanship constitute “property damage,” and the event resulting in that damage – water from rain flowing into the interior of the property due to the subcontractors’ faulty workmanship – is an “occurrence” under the plain language of the CGL policies at issue here. 

IE Test, LLC v. Kenneth Carroll (A-63-14

IE Test, LLC v. Kenneth Carroll (A-63-14; 075842) 
A disagreement among LLC members over the terms of an operating agreement does not necessarily compel the expulsion of a dissenting LLC member. If an LLC’s members can manage the LLC without an operating agreement, invoking as necessary the default majority-rule provision of the LLCA, then a conflict among LLC members may not warrant a member’s expulsion under the LLCA. Subsection 3(c) does not warrant a grant of partial summary judgment expelling Carroll from IE Test.