Kenneth Mr. Vercammen was included in the 2017 “Super Lawyers” list published by Thomson Reuters.

To schedule a confidential consultation, email us at VercammenAppointments@NJlaws.com, call or visit www.njlaws.com

(732) 572-0500

Wednesday, April 19, 2017

KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC. A-3450-15T4


KEITH WILLIAMS VS. RAYMOURS FURNITURE CO., INC.
          A-3450-15T4
The Division of Workers' Compensation dismissed the petition of Keith Williams for lack of jurisdiction. The judge of compensation determined that because Williams worked in New York and the accident happened there, there was no reason for New Jersey to assume jurisdiction of Williams' claim. We reverse.
As the facts are undisputed that Williams accepted employment from respondent by telephone from his home in Paterson, thereby establishing New Jersey as the place the contract was created, the law is clear that New Jersey is an appropriate forum for resolution of petitioner's claim petition, certainly in conjunction with his residency here. 

JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND A-5028-14T1


JACLYN THOMPSON VS. BOARD OF TRUSTEES, TEACHERS' PENSION AND ANNUITY FUND
A-5028-14T1
Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 34 (2008), held that to obtain accidental disability benefits for a purely mental disability, "[t]he disability must result from direct personal experience of a terrifying or horror-inducing event that involves actual or threatened death or serious injury, or a similarly serious threat to the physical integrity of the member or another person." Following the example of Russo v. Bd. of Trs., Police & Firemen's Ret. Sys., 206 N.J. 14 (2011), the Appellate Division holds the Patterson requirement applies to mental disability arising from incidents involving mental and physical stressors if any physical injury was temporary or minor, despite Caminiti v. Bd. of Trs., Police & Firemen's Ret. Sys., 431 N.J. Super. 1 (App. Div. 2013).
The majority rules that the incidents triggering petitioner's mental disability did not meet the Patterson requirement and that her diagnosis of PTSD was not dispositive. Judge Ostrer dissents from that ruling.
The court rules the incidents were undesigned and unexpected given petitioner's lack of training. 

NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO

NEW YORK-CONNECTICUT DEVELOPMENT CORP. VS. BLINDS-TO- GO (U.S.) INC. VS. ANTHONY NARDOZZI, ET AL.
UNIQUE MECHANICAL SERVICES, LLC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP.

COUNTY GLASS & METAL INSTALLERS, INC. VS. NEW YORK- CONNECTICUT DEVELOPMENT CORP., ET AL.
A-5660-14T4

page2image14280 page2image14440 page2image14600 page2image14760 page2image14920 page2image15080
In this matter arising out of the construction of a building, we address whether a verdict can be sustained where the jury found that plaintiff, New York-Connecticut Development Corp. (NYCT), breached the pertinent contract, but nevertheless, awarded it damages under a quantum meruit theory.
Quantum meruit is a form of quasi-contractual recovery and is "wholly unlike an express or implied-in-fact contract in that it is 'imposed by the law for the purpose of bringing about justice without reference to the intention of the parties.'" St. Barnabas Med. Ctr. v. Cnty. of Essex, 111 N.J. 67, 79 (1988)
page2image20576 page2image20736

(citations omitted). It has long been recognized, however, "that the existence of an express contract excludes the awarding of relief regarding the same subject matter based on quantum meruit." Kas Oriental Rugs v. Ellman, 394 N.J. Super. 278, 286 (App. Div. 2007).
Although a party may plead and pursue alternative, and even inconsistent theories, Kas, supra, 394 N.J. Super. at 287, a party is not entitled to recover on inconsistent theories. Ibid. (emphasis added). Once the jury determined that an express contract existed between the parties, it was erroneous for it to be directed to a consideration of quantum meruit. The jury instructions and verdict sheet both misstated the applicable legal principles of contract law. Consequently, we are constrained to reverse and remand for a new trial. 

Sunday, April 9, 2017

STATE OF NEW JERSEY VS. MICHAEL D. MILLER A-0459-15T4


 STATE OF NEW JERSEY VS. MICHAEL D. MILLER 
A-0459-15T4 
Following a bench trial, defendant was convicted of second-degree child endangerment for distributing child pornography, N.J.S.A. 2C:24-4b(5)(a), and fourth-degree child endangerment by possessing child pornography, N.J.S.A. 2C:24-4b(5)(b). In affirming defendant's conviction, we hold that the trial court did not err in allowing a detective, who was not presented as an expert witness, to testify as a fact witness regarding his forensic examination of defendant's computer and defendant's use of peer-to-peer file sharing programs. In any event, any error 
in the admission of the challenged testimony was harmless as the detective possessed sufficient education, training, and experience to qualify as an expert in the field of computer forensics, and defendant was not surprised or prejudiced by the detective's testimony. 

We further hold that, in applying aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the trial court engaged in impermissible double-counting. We also conclude that, under the specific facts presented, defendant's convictions for fourth-degree possession of child pornography and second-degree distribution of child pornography merge. Accordingly, we remand for the court to resentence defendant without consideration of aggravating factor one, and for merger of the two offenses. 

N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF NEW JERSEY, ET AL. A-3717-13T2

N.E., AS LEGAL GUARDIAN FOR INFANT J.V. VS. STATE OF NEW JERSEY, ET AL. 
A-3717-13T2 
Plaintiff is the legal guardian of a child who was severely and permanently injured by the criminal acts of his biological father. Plaintiff filed a civil action against the Division and a caseworker, and his supervisor claiming it was vicariously liable for the negligent manner these employees investigated plaintiff's allegations of child abuse and parental unfitness. The trial court rejected the Division’s argument that its employees are entitled to immunity from civil liability under the Tort Claims Act. A jury found the Division 100 percent liable and awarded plaintiff a total of $165,972,503. 

In this appeal, this court is required to determine whether the State of New Jersey can be held vicariously liable based on a Division caseworker’s good faith execution of this State’s child protection laws. This court holds the Division caseworkers were entitled to the qualified immunity afforded to public employees who act in good faith in the enforcement or execution of any law under N.J.S.A. 59:3-3 of the Tort Claims Act. An ordinary negligence standard is an insufficient basis to impose civil liability on a public employee involved in the execution of the law. For these reasons, this court reverses the jury's verdict and vacates the final judgment entered against defendants. 

Michael Conley, Jr. v. Mona Guerrero (A-65-15;


 Michael Conley, Jr. v. Mona Guerrero (A-65-15; 076928) 

In this case, because Buyers received actual notice of disapproval within the three-day attorney-review period by a method of communication commonly used in the industry, the notice of disapproval was valid. The Court also exercises its constitutional authority over the practice of law and finds that an attorney’s notice of disapproval of a real estate contract may be transmitted by fax, e-mail, personal delivery, or overnight mail with proof of delivery. Notice by overnight mail will be effective upon mailing. The attorney-review period within which this notice must be sent remains three business days. 

Sunday, April 2, 2017

RICHMOND LAPOLLA VS. COUNTY OF UNION, ET AL. A-2411-14T3

 RICHMOND LAPOLLA VS. COUNTY OF UNION, ET AL. 
A-2411-14T3 

Plaintiff claimed to be the victim of political patronage, suffering adverse employment actions in part because his politically active brother sparred with the chairwoman of the Union County Democratic Party. Plaintiff's appeal from the dismissal of his complaint presents the question whether his familial and social affiliations qualify as constitutionally protected conduct that satisfies an essential element of his claims for violation of the New Jersey Civil Rights Act (NJCRA), N.J.S.A. 10:6-1 to -2, and retaliation. We hold that they do not. 

IN THE MATTER OF JOHN RESTREPO, DEPARTMENT OF CORRECTIONS A-2951-14T4

IN THE MATTER OF JOHN RESTREPO, DEPARTMENT OF CORRECTIONS 
A-2951-14T4 
After an ALJ reduced a corrections officer's disciplinary sanction, the Civil Service Commission (Commission) issued a preliminary decision within forty-five days and obtained two fifteen-day extensions before issuing its final determination reinstating his termination. His appeal raises the issue of whether the timeliness of Commission decisions in disciplinary cases involving law enforcement officers and firefighters is governed by the recent legislation addressing such cases, N.J.S.A. 40A:14-200 to -212 (2009 Act), or by the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15. 

The Appellate Division holds the specific 2009 Act governs the conflicting provisions of the general APA. Under N.J.S.A. 40A:14-204, the Commission's extensions were proper. Its lack of a quorum was an adequate grounds for an extension. Thus, its decision was timely even though its preliminary decision was inadequate. The court upheld the Commission's decision that progressive discipline was not required. 

Motorworld, Inc. v. William Benkendorf, et al. (A-64-15;


 Motorworld, Inc. v. William Benkendorf, et al. 
(A-64-15; 077009) 

The record reveals no reason to abandon the corporate form. By virtue of the Release, Motorworld received no value at all, let alone value commensurate with the loss of its sole asset: a debt in the amount of $600,000 plus accumulating interest and penalties. The disputed transfer was not made for “reasonably equivalent value” under N.J.S.A. 25:2-27(a), and plaintiffs established all elements of a constructively fraudulent transfer. 

Sunday, March 26, 2017

STEVEN CALTABIANO V. GILDA T. GILL A-2805-16T4

STEVEN CALTABIANO V. GILDA T. GILL 
A-2805-16T4 
After the voters of Salem County approved a referendum at the November 2016 General Election, pursuant to N.J.S.A. 40:20-20, to reduce the size of the Freeholder Board from seven to five members, the County Clerk determined that the transition procedure would be to place five new freeholders positions on the 2017 ballot, with those elected to take office on the Monday following that election, at which time the terms of all existing freeholders would terminate. 

A challenge was brought, and the trial court approved the Clerk's determination. We reversed, holding that the transition should be accomplished by placing on the 2017 ballot only one freeholder position. Because the terms of three existing freeholders expire at the end of 2017, the reduction to five members would thus be accomplished without prematurely terminating the terms of any existing freeholders. 

H. JAMES RIPPON VS. LEROY SMIGEL, ESQ., ET AL. A-2722-15T2

H. JAMES RIPPON VS. LEROY SMIGEL, ESQ., ET AL. 
A-2722-15T2 
In this case, a Pennsylvania lawyer and his law firm represented plaintiff's spouse in a highly contentious divorce action in Pennsylvania. During that proceeding, the lawyer sent a letter to a New Jersey bank that plaintiff had contacted about obtaining a mortgage on a house he hoped to purchase in New Jersey. Among other things, the lawyer's letter intimated that plaintiff was improperly using marital funds to purchase the home. After the bank denied plaintiff a mortgage, he filed an action in New Jersey against his spouse, the lawyer, and his firm for defamation and tortious interference with contractual relations. 

The trial court dismissed the New Jersey action, finding that it did not have jurisdiction over the lawyer and the law firm and that the complaint was barred on the basis of forum non conveniens and the doctrine of res judicata. In this opinion, the court remands the matter to the trial court to permit plaintiff to engage in discovery on the questions of jurisdiction and forum non conveniens. The court also concludes that plaintiff's complaint was not barred on res judicata grounds. 

Sunday, March 19, 2017

BRIAN SULLIVAN VS. THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY, ET AL. A-3506-14T1

BRIAN SULLIVAN VS. THE PORT AUTHORITY OF NEW YORK AND 
NEW JERSEY, ET AL. 
A-3506-14T1 
Plaintiff filed a complaint against the Port Authority of New York and New Jersey and individual Port Authority employees, alleging retaliation and civil conspiracy in violation of the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14. We affirmed the trial court's grant of summary judgment based on a finding that the Port Authority is not subject to suit under CEPA. 
The Port Authority is a bi-state agency created by a compact that prohibits unilateral action by one state without express authorization in the compact or the concurrence of the legislature of the other state. The corollary to this proposition is that the Port Authority may be subject to complementary or parallel state legislation. Under the complementary or parallel legislation principle, one compact state's law can be applied to the bi-state agency if it is substantially similar to the legislation of the other state. If there is no complementary legislation, then it must be determined whether the bi-state agency impliedly consented to unilateral state regulation. 

We determined that the compact did not expressly provide for application of CEPA against the Port Authority. We then compared CEPA to the New York Whistleblower Law, N.Y. Lab. Law § 740, and held they were not substantially similar so as to alter the compact. We also held that the clear and unambiguous language in the state legislations creating the Port Authority and the lack of complementary and parallel whistleblower statutes confirmed that New York and New Jersey did not mutually intend to consent to suit against the Port Authority under CEPA. 

Monday, March 13, 2017

175 EXECUTIVE HOUSE, LLC VS. ELESHA MILES A-1604-15T2


175 EXECUTIVE HOUSE, LLC VS. ELESHA MILES
          A-1604-15T2
Although tenant received a rent subsidy voucher under the State's Rental Assistance Program (S-RAP) and timely paid her portion of the monthly rent, the landlord obtained a judgment of possession because she failed to pay late fees, attorney's fees and court costs ("additional rent").
The court vacated the judgment of possession, holding that a tenant with an S-RAP voucher cannot be evicted based solely on the non-payment of additional rent because to do so contravenes applicable regulations. 

GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC. A-2651-13T3


GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC.
          A-2651-13T3
In previously ruling on the merits, the court, among other things, dismissed defendant's cross-appeal from the denial of summary judgment because defendant failed to comply with Rule 2:6-1(a)(1), which requires inclusion in the appendix of all items, and a statement of all items, presented to the trial court on the motion for summary judgment. Noren v. Heartland Payment Sys., Inc., __ N.J. Super. __, __ (App. Div. 2017) (slip op. at 14-15). Defendant moved for reconsideration, arguing that the cited Rule refers only to appeals "from a summary judgment," which, in defendant's view, could only mean an appeal from a grant of summary judgment, not a denial. The court denied the motion and rejected defendant's argument, holding that the Rule's critical phrase "from a summary judgment" incorporates appeals from any disposition of a motion for summary judgment. 

DIANA ACEVEDO AND REX FORNARO VS. FLIGHTSAFETY INTERNATIONAL, INC., ET AL. A-1295-14T2


DIANA ACEVEDO AND REX FORNARO VS. FLIGHTSAFETY
          INTERNATIONAL, INC., ET AL.
A-1295-14T2
A back pay award under the Law Against Discrimination (LAD) is not to be reduced by the amount of unemployment compensation which the plaintiff has received. The collateral source statute, N.J.S.A. 2A:15-97, does not apply to monetary awards under the Law Against Discrimination (LAD). 

GREG AND RENEE MATEJEK VS. MARTHA AND GUY WATSON, ET AL. A-4683-14T1

GREG AND RENEE MATEJEK VS. MARTHA AND GUY WATSON, ET AL.
A-4683-14T1
In this action, one condominium unit owner sued neighboring unit owners, seeking their participation in an investigation of the site for the purpose of removing the cloud on title imposed by the New Jersey Department of Environmental Protection's open file, which was initiated years earlier when oil was found in a nearby brook. At the conclusion of a bench trial, the judge granted the relief sought by plaintiffs, and one of the neighboring owners appealed, arguing the New Jersey Spill Compensation and Control Act limited plaintiffs' private cause of action to a claim for contribution that required proof of defendants' actual discharge of contamination. The court agreed with the trial judge that an equitable remedy was appropriate -- and not precluded by the Spill Act -- and affirmed the judgment that compelled all the impacted property owners to initially share the cost of an investigation, subject to adjustment by later litigation if necessary. 

Tahisha Roach v. BM Motoring, LLC (A-69-15;


Tahisha Roach v. BM Motoring, LLC (A-69-15; 077125)
          Defendants’ non-payment of filing and arbitration fees
          amounted to a material breach of the DRA.   Defendants
          are therefore precluded from enforcing the arbitration
          provision, and the case will proceed in the courts.

Sunday, February 26, 2017

IN THE MATTER OF TANAYA TUKES, ET AL. A-3374-14T3

IN THE MATTER OF TANAYA TUKES, ET AL. 
A-3374-14T3 

In early 2015, the Department of Human Services closed the Woodbridge Developmental Center and privatized the operation of some State-operated group homes. This decision resulted in the need to lay off, demote, or reassign a number of employees. In this appeal, we reviewed the Department's employee layoff plan, which was approved by the Civil Service Commission, and affirmed the Commission's determination that employees in two job titles had lateral title displacement rights relative to each other. 

Wednesday, February 22, 2017

KATHLEEN WOLENS VS. MORGAN STANLEY SMITH BARNEY, LLC, ET AL. A-1028-15T1


 KATHLEEN WOLENS VS. MORGAN STANLEY SMITH BARNEY, LLC, 
ET AL. 
A-1028-15T1 
Plaintiff appeals an order granting summary judgment and dismissing her complaint against her deceased mother's former investment company and its account manager. Plaintiff claims that defendants acted negligently and improperly in carrying out a written request to have her mother's bank accounts changed from accounts solely in her name to joint accounts with one of plaintiff's sisters. 

This court affirms the dismissal. It has not been shown that defendants owed or breached any legal duties to plaintiff, who was neither their customer nor a person known to them with whom they had any established contractual or special relationship. 

LUCIA SERICO, ET AL. VS. ROBERT M. ROTHBERG, M.D. A-1717-15T1


 LUCIA SERICO, ET AL. VS. ROBERT M. ROTHBERG, M.D. 
A-1717-15T1 
In this appeal, we address the viability of a plaintiff's claim for fees under the offer of judgment rule, R. 4:58-1 to -6, after the parties enter into a high-low settlement agreement and the jury returns a verdict in excess of the high. The Law Division denied plaintiff's motion for fees under the Rule because plaintiff and defendant entered into the agreement and plaintiff did not expressly reserve her right to recover fees under the Rule. Based on the court's experience, it found that the "custom and usage" in the practice of law dictated that without evidence of a reservation of rights, a claim under the Rule was waived by entering into a high-low agreement. On appeal, plaintiff contended that although she did not reserve her rights, she did not waive them by entering into the agreement. Defendant argued that plaintiff's failure to reserve her rights gave rise to a waiver or abandonment of any claim she had for attorney's fees and, in any event, as the trial court found, the "custom and usage" practiced in the area provides that such claims are deemed abandoned when a party enters into a high-low agreement. 
We concluded that, while the trial court's reliance on its personal experience was misplaced, it correctly determined that the amount of plaintiff's total recovery from defendant was limited by the ceiling imposed by the high-low agreement because 

plaintiff did not indicate any intention to preserve her claim under the Rule when the parties placed the agreement on the record. 

DUNBAR HOMES, INC. VS. THE ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF FRANKLIN, ET AL. A-3637-14T1

DUNBAR HOMES, INC. VS. THE ZONING BOARD OF ADJUSTMENT 
OF THE TOWNSHIP OF FRANKLIN, ET AL. 
A-3637-14T1 

We consider what is required for a submission to a municipal agency to constitute an "application for development" that triggers the protection of the "time of application" statute, N.J.S.A. 40:55D-10.5, a matter of first impression. We reject arguments from the Township that the application must be "complete" and from the applicant that a "substantial bona-fide application which does not constitute a sham" is sufficient. We hold that the definition of "application for development" contained in the Municipal Land Use Law, N.J.S.A. 40:55D-3, is a mandatory term and that, pursuant to that definition, a submission must include "the application form and all accompanying documents required by ordinance for approval" for the "time of application" statute to apply. 

RICCI N/K/A MAURA MCGARVEY VS. MICHAEL RICCI AND CAITLYN RICCI A-1832-14T1/A-2409-14T1

RICCI N/K/A MAURA MCGARVEY VS. MICHAEL 
RICCI AND CAITLYN RICCI 
A-1832-14T1/A-2409-14T1 (CONSOLIDATED) 
We reversed Family Part orders requiring divorced parents to pay college tuition costs to their estranged daughter. The child left her mother's home and the parents agreed she was emancipated. Thereafter, the child sought to intervene in the matrimonial action, and the judge concluded the child was "unemancipated" for purpose of college costs, without review of the divergent facts in support of and in opposition to emancipation. He ordered payment of "de minimus" community college costs; a different judge extended this obligation, after a summary proceeding. 

Whether a child is unemancipated is a threshold legal determination to a parent's obligation to pay college costs. The required parent-child relationship is one of interdependence: the child's right to support and the parents' obligation to provide payment are inextricably linked to the child's acceptance and the parents' measured exercise of guidance and influence. A finding of emancipation recognizes a child's independence from a parental influence and eliminates the obligation for support. 

Bound Brook Board of Education v. Glenn Ciripompa (A-57-15; 076905)


Bound Brook Board of Education v. Glenn Ciripompa 
(A-57-15; 076905) 

The arbitrator impermissibly converted the second charge of unbecoming conduct into one of sexual harassment. The re-characterization of Count II erroneously tasked the Board with substantiating charges it did not file with evidence it did not proffer. The arbitrator’s review was not “consonant with the matter submitted,” Grover v. Universal Underwriters Ins. Co., 80 N.J. 221, 231 (1979); rather, he “imperfectly executed his powers” as well as exceeded his authority by failing to decide whether Count II stated a successful claim of unbecoming conduct in support of termination. N.J.S.A. 2A:41-8(d). The arbitrator’s award is therefore invalid. 

Sunday, February 12, 2017

KEAN FEDERATION OF TEACHERS, ET AL. VS. ADA MORELL, ET AL. A-5481-14T3


KEAN FEDERATION OF TEACHERS, ET AL. VS. ADA MORELL, ET AL.
A-5481-14T3
In this action in lieu of prerogative writs, plaintiffs alleged the Board of Trustees of Kean University violated the Open Public Meetings Act (OPMA) by delaying ninety-four days and fifty-eight days before releasing the minutes of two Board meetings. On cross-motions for summary judgment, the trial court found the Board violated the "promptly available" standard under N.J.S.A. 10:4-14 of the OPMA. This court affirms. The trial court issued a permanent injunction directing the University to release the Board minutes within forty-five days of each future meeting. This court vacates the injunction, but orders the Board to adopt a meeting schedule for academic year 2017-2018 that will enable it to make its meeting minutes available to the public within thirty to forty-five days, absent extraordinary circumstances.
In Rice v. Union Cty. Reg'l High Sch. Bd. of Educ., 155 N.J. Super. 64, 73 (App. Div. 1977), this court held public bodies were required to send affected employees reasonable advance notice to enable them to (1) make a decision on whether they desire a public discussion; and (2) prepare and present an appropriate request in writing. Here, the trial court ruled that absent any discussion of the employees' status during closed session, or any stated intention to engage in such discussion, the Board is not required to send a Rice notice to the affected employees.
This court now reverses and holds a public body is required to send a Rice notice to all affected employees any time it places on its agenda its intention to take action affecting these employees' employment status. The notice requirement in Rice is predicated on the presumption that members of public bodies will discuss personnel matters and deliberate before reaching an ultimate decision. Not sending a Rice notice stifles the Board's deliberative process, inhibits the robust discussion by individual Board members that the Supreme Court endorsed in S. Jersey Pub. Co. v. N.J. Expressway, 124 N.J. 478, 493 (1991), and creates the impression the Board has colluded to violate the OPMA. As authorized under N.J.S.A. 10:4-16, this court declares the actions concerning personnel matters taken by the Board of Trustees of Kean University at its December 6, 2014 meeting null and void. 

JANELLE BRUGALETTA VS. CALIXTO GARCIA, D.O., ET AL. A-4342-15T1


JANELLE BRUGALETTA VS. CALIXTO GARCIA, D.O., ET AL.
          A-4342-15T1
In this interlocutory appeal, the court reverses the trial court's order piercing the self-critical analysis privilege under the Patient Safety Act, N.J.S.A. 26:2H-12.25(g). The trial court pierced the privilege because defendant hospital failed to report to plaintiff or the Department of Health that plaintiff suffered a "serious preventable adverse event" (SPAE), see N.J.S.A. 26:2H-12.25(a) as the Act required. See N.J.S.A. 26:2H-12.25(c), -12.25(d). In reversing, the appellate panel holds that the self-critical analysis privilege is conditioned solely on compliance with statutory and regulatory mandates governing formation of a patient safety plan and related procedural requirements. N.J.S.A. 26:2H-12.25(g). Furthermore, there was insufficient evidence of causation to support the trial court's finding of a SPAE. Specifically missing was expert evidence that any serious adverse event occurred "because of an error or other system failure." N.J.S.A. 26:2H-12.25(a). 

GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC. A-2651-13T3


GREG NOREN VS. HEARTLAND PAYMENT SYSTEMS, INC.
          A-2651-13T3
In this appeal, plaintiff conceded a jury-waiver provision in his employment contract applied to his breach of contract claim against his employer but argued it did not apply to his claim that defendant violated the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19 to -14. The provision in the employment contract stated the parties "irrevocably waive any right to trial by jury in any suit, action or proceeding under, in connection with or to enforce this Agreement." There was no reference to statutorily conferred rights or to causes of action arising from plaintiff's employment. We conclude the jury-waiver provision failed to clearly and unambiguously explain the right to a jury trial was waived as to a CEPA claim and remand for a jury trial on that issue. We further vacate the counsel fee award to defendant of over $2 million and remand to the trial court to determine what portion of the award is warranted for the defense against the breach of contract claims. 

Sunday, February 5, 2017

Givaudan Fragrances Corporation v. Aetna Casualty & Surety Compan

Givaudan Fragrances Corporation v. Aetna Casualty & 
Surety Company 
(A-16/17/18/19/20/21/22/23/24/25-15; 076523) 

The Court adopts the policy that, once an insured loss has occurred, an anti-assignment clause in an occurrence policy may not provide a basis for an insurer’s declination of coverage based on the insured’s assignment of the right to invoke policy coverage for that loss. The assignment at issue in this case was a post-loss claim assignment and therefore the rule voiding application of anti-assignment clauses to such assignments applies. 

Sunday, January 29, 2017

HARRY SCHEELER VS. OFFICE OF THE GOVERNOR, ANDREW J. MCNALLY, ET AL./ HEATHER GREICO VS. NEW JERSEY DEPARTMENT OF EDUCATION, ET AL./ JOHN PAFF VS. NEW JERSEY MOTOR VEHICLE COMMISSION, ET AL. A-1236-14T3/


 HARRY SCHEELER VS. OFFICE OF THE GOVERNOR, ANDREW J. 
MCNALLY, ET AL./ HEATHER GREICO VS. NEW JERSEY DEPARTMENT OF EDUCATION, ET AL./ JOHN PAFF VS. NEW JERSEY MOTOR VEHICLE COMMISSION, ET AL. 
A-1236-14T3/A-3170-14T4/A-3335-14T3(CONSOLIDATED) 

The Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, does not permit government agencies to deny a citizen access to all requests for public records by third-parties, and Gannett N.J. Partners, LP v. County of Middlesex, 379 N.J. Super. 205 (App. Div. 2005), does not provide authority for the blanket denial of access to all third-party OPRA requests. 

IN THE MATTER OF THE ESTATE OF ARTHUR E. BROWN A-1086-14T4

 IN THE MATTER OF THE ESTATE OF ARTHUR E. BROWN 
A-1086-14T4 
In this appeal, the decedent was institutionalized in a nursing home, suffering from Alzheimer's disease. His wife, who predeceased him, had disinherited him, and he did not claim his one-third elective share of her augmented estate pursuant to N.J.S.A. 3B:8-1. We affirmed the trial court's denial of entry of judgment discharging a priority lien the Division of Medical Assistance and Health Services filed against the decedent's estate pursuant to N.J.S.A. 30:4D-7.8 for reimbursement of Medicaid benefits the decedent received during his lifetime. We also affirmed the court's calculation of the decedent's elective share. 
We determined that the decedent was entitled to an elective share of his deceased wife's augmented estate that included the proceeds from the sale of the couple's former marital home, which had been transferred to the wife as sole owner prior to the decedent's admission into the nursing home. We rejected appellant's argument that N.J.S.A. 3B:8-1 did not apply to the decedent because he and his wife had been living separate and apart at the time of her death, and the couple ceased to cohabit as man and wife under circumstances that gave the wife a cause of action for divorce under N.J.S.A. 2A:34-2(d) or (f). We also rejected appellant's argument that the decedent's estate had no right to an elective share because that right was personal to him and could only be exercised during his lifetime as per N.J.S.A. 3B:8-11. 
We rejected appellant's alternative argument that the decedent's elective share was zero because the proceeds from the 

sale of the former marital home were excluded from the wife's augmented estate under N.J.S.A. 3B:8-5. Lastly, we rejected appellant's argument that the value of some of the decedent's assets should be deducted from his elective share. 

Sunday, January 22, 2017

LINDA TISBY VS. CAMDEN COUNTY CORRECTIONAL FACILITY/ LINDA TISBY VS. CAMDEN COUNTY, ET AL. A-0326-15T3/

LINDA TISBY VS. CAMDEN COUNTY CORRECTIONAL FACILITY/ LINDA TISBY VS. CAMDEN COUNTY, ET AL. 
A-0326-15T3/A-0344-15T3(CONSOLIDATED) 
In this case, we affirm the dismissal of two complaints filed by a Camden County Corrections Officer who was removed from her position because she wore a khimar with her work uniform, consistent with the practice of her faith. Based on the reasoning of the trial judges, we find an accommodation would impose an undue hardship on defendants based upon safety and security concerns, and the second dismissal was appropriate based upon the entire controversy doctrine. 
Plaintiff filed her complaint alleging violations under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49, asserting defendant's failure to accommodate sincere religious beliefs, and a complaint in lieu of prerogative writ seeking reinstatement and back pay. After considering arguments, the trial judge recognized plaintiff's sincerely held religious belief, but dismissed the complaint, determining an accommodation would impose an undue hardship on defendants because of overriding safety and security concerns of the prison and the importance of uniform consistency and neutrality. 
A different judge dismissed the second prerogative writ complaint, citing the entire controversy doctrine because plaintiff's complaints were only slightly distinguishable and should have been heard as one action. 

Reviewing federal authority touching on this issue, we conclude summary judgment dismissal was correctly entered. Any "inference of discrimination" based on the rejection of the accommodation request grounded on plaintiff's sincerely held religious beliefs was soundly rebutted by the employer's evidence of risks to safety, security and maintaining orderly objective operations in the prison. Further, plaintiff offered no proof of pretext. See Zive v. Stanley Roberts, Inc.; 182 N.J. 436, 447 (2005) (adopting burden shifting test set forth in McDonnell Douglass Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). 

NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY VS. S.W. AND R.W. IN THE MATTER OF AL.W, AN.W., M.W. AND N.W. A-4020-14T4

NEW JERSEY DIVISION OF CHILD PROTECTION AND 
PERMANENCY VS. S.W. AND R.W. 
IN THE MATTER OF AL.W, AN.W., M.W. AND N.W. 
A-4020-14T4 
In this Title Nine matter, the date of defendant's fact-finding hearing was advanced from September 12 to September 11, 2013. There is no indication that defendant was advised of the date change and he did not appear for the hearing. Defendant's counsel agreed to proceed with a fact-finding hearing "on the papers." Based solely on documents submitted by the Division, the judge found defendant abused or neglected his four children when he relapsed and used cocaine after his arrest for failure to pay child support for the four children who were in his custody. 
After defendant's arrest, the children were cared for by their older siblings and then taken to their mother's house. The children were not harmed and there was no proof that defendant's use of cocaine exposed any of the children to imminent danger or a substantial risk of harm. 
There was also no evidence that defendant knowingly waived his right to a fact-finding hearing and agreed to have the judge decide whether he abused or neglected his children solely based on her review of reports prepared by Division caseworkers. Because statutory and constitutional rights are impacted when a defendant waives the right to testify on his own behalf, to call witnesses, to cross-examine witnesses who testify against him, and to have a judge make credibility determinations, there is no reason why the protections afforded to defendants entering stipulations of abuse or neglect announced in Div. of Youth & Family Servs. v. M.D., 417 N.J. Super. 583, 617-18 (App. Div. 2011), should not be required when a defendant waives the right to a fact-finding hearing. 

Even where a defendant makes a knowing waiver and agrees to a determination on the papers, the judge must reject the abbreviated procedure and proceed with a testimonial hearing if the record contains conflicting facts critical to the determination. 

DOMINIC ANDALORA, ET AL. VS. R.D. MECHANICAL CORP., ET AL. VS. SWIFT CONSTRUCTION, LLC A-3724-14T4

DOMINIC ANDALORA, ET AL. VS. R.D. MECHANICAL 
CORP., ET AL. VS. SWIFT CONSTRUCTION, LLC 
A-3724-14T4 
This case addresses a series of procedural errors in the handling of insurance coverage issues relating to a construction accident lawsuit. Once the injury lawsuit was settled, the general contractor's (gc's) insurer, which had contributed to the settlement under protest, was the real party in interest 

with respect to an action seeking reimbursement of its contribution from the subcontractor's insurer. The trial court erred in dismissing, with prejudice, the gc's contractual indemnification lawsuit against the subcontractor. Thereafter, the gc's insurer sued the subcontractor in its own name. On this appeal, the appropriate remedy was to amend the order on appeal to a without-prejudice dismissal, and permit the insurer to pursue its own complaint as subrogee. 

In re the Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court’s Decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) (A-1-16;

In re the Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court’s Decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) (A-1-16; 077565) 

Towns are constitutionally obligated to provide a realistic opportunity for their fair share of affordable housing for low- and moderate-income households formed during the gap period and presently existing in New Jersey. A form of present-need analysis under the Fair Housing Act—redefined to include a component premised on a calculation of those low- and moderate-income New Jersey households, newly formed since 1999, that presently exist and are entitled to their opportunity of access to affordable housing—provides the appropriate approach to addressing statewide and regional need. The modification of the previous definition of a present-need analysis is essential in order to address the failure of COAH to perform its required mission, in connection with a constitutional obligation, for a period of time affecting almost a generation of New Jersey citizens. 

Brian Royster v. New Jersey State Police (A-1-15;


 Brian Royster v. New Jersey State Police 
(A-1-15; 075926) 
The Court agrees with the Appellate Division that sovereign immunity precludes Royster’s ADA claim. The NJSP’s litigation conduct did not amount to a waiver of immunity, nor is the NJSP estopped from asserting the 

defense of sovereign immunity against Royster’s ADA claim. However, the interests of justice require reinstatement of Royster’s LAD failure-to-accommodate claim. The Court reinstates the LAD claim and remands to the trial court to mold the jury’s verdict and enter judgment on Royster’s LAD claim in favor of Royster and against the NJSP in the amount of $500,000. 

Thursday, January 5, 2017

CRUZ-LEON V. IFA INS. CO. : Insurance Coverage Offered to Permissive Driver

                                           CRUZ-LEON V. IFA INS. CO.
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano and Suter. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-11751-14. Toni A. DeGennaro, attorney for appellant. Robert A. Hoffman, attorney for respondent (Patrick M. Nerney, on the brief). The opinion of the court was delivered by SUTER, J.A.D. (temporarily assigned) 
Defendant IFA Insurance Company (IFA) appeals an order granting uninsured motorist (UM) coverage to plaintiff Maria M. Cruz-Leon under an IFA standard automobile insurance policy, and ordering arbitration of her personal injury claim. We affirm. 

I.

Plaintiff was driving a van that was owned by an individual who was a named insured under a standard personal automobile insurance policy issued by IFA. That insurance policy provided uninsured and underinsured motorist coverage (UM/UIM) with maximum policy limits of $50,000/$100,000. Plaintiff was a named insured under her own automobile insurance policy issued by Praetorian Insurance Company, but that policy was a "special automobile insurance policy" authorized pursuant to the provisions of N.J.S.A. 39:6A-3.3. Special automobile insurance policies are intended to assist low income individuals to comply with mandatory private passenger automobile insurance requirements. They provide emergency personal injury protection (PIP) coverage up to $250,000, death benefits up to $10,000 and are subject to the verbal threshold. N.J.S.A. 39:6A-3.3(b)(1)-(3). Special automobile insurance policies "shall not provide for liability, collision, comprehensive, uninsured or underinsured motorist coverage." N.J.S.A. 39:6A-3.3(c). As such, plaintiff's policy did not provide UM/UIM coverage. 
On October 8, 2010, the van plaintiff was driving was rear-ended by a vehicle driven by Roderick Swan. The parties agree that Swan was uninsured. Plaintiff alleges she sustained personal injuries in the accident. 
IFA denied plaintiff's request for PIP benefits and UM coverage under the IFA policy, and also denied plaintiff's request for arbitration. Plaintiff filed an Order to Show Cause seeking to require IFA to arbitrate the UM claim.
Plaintiff has not appealed the denial of PIP benefits. 
In granting the Order to Show Cause, Judge Travis L. Francis found that plaintiff was not excluded from UM coverage by IFA's UM Exclusion Endorsement, which he construed to be "inapplicable" because plaintiff was not operating her own vehicle at the time of the accident, but was operating a vehicle insured by IFA. He did not find any inconsistency between the "UM statute, N.J.S.A. 17:28-1.1(a), and the IFA policy."
In doing so, the judge rejected plaintiff's contention that the IFA policy conflicted with N.J.S.A. 17:28-1.1 by denying her UM coverage. See Rider Ins. Co. v. First Trenton Cos.354 N.J. Super. 491, 500 (App. Div. 2002) (holding that a policy provision that eliminates UM coverage when multiple insurance policies are available is invalid under N.J.S.A. 17:28-1.1(a)). Plaintiff has not cross-appealed. We have no need to decide whether IFA's policy conflicts with any statutory provision. 
IFA appeals, contending the judge erred in interpreting its UM Exclusion Endorsement so as not to exclude coverage for plaintiff. IFA contends its policy exclusions are clear and unambiguous. On appeal, IFA also contends the judge did not adequately address the policy's UM Limitation of Liability Endorsement. 

II.

A.

We generally defer to the factual findings of the trial court. Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am.65 N.J. 474, 483-84 (1974). However, "[t]o the extent that the trial court's decision constitutes a legal determination, we review it de novo." D'Agostino v. Maldonado216 N.J. 168, 182 (2013) (citing Manalapan Realty v. Twp. Comm. of Manalapan140 N.J. 366, 378 (1995)). 
IFA asserts that plaintiff's claim is excluded under its policy. Insurance policies should be interpreted to give effect to their plain and ordinary meaning. Progressive Cas. Ins. Co. v. Hurley166 N.J. 260, 272-73 (2001). An insurance policy "should be construed liberally in [the insured's] favor to the end that coverage is afforded to the full extent that any fair interpretation will allow." Id. at 273 (quoting Kievit v. Loyal Protective Life Ins. Co.34 N.J. 475, 482 (1961) (other citations omitted)). However, it is well established that the insurer bears the burden of demonstrating that an exclusion applies. Flomerfelt v. Cardiello202 N.J.432, 456 (2010); S.T. Hudson Eng'rs, Inc. v. Pa. Nat'l Mut. Cas. Co.388 N.J. Super. 592, 603 (App. Div. 2006), certif. denied189 N.J. 647 (2007). Exclusions in an insurance policy are to be narrowly construed. Doto v. Russo140 N.J. 544, 559 (1995). 
IFA appears largely to have abandoned its initial contention made in opposition to plaintiff's Order to Show Cause that plaintiff was excluded from coverage by IFA's UM Exclusion Endorsement. That exclusion provided: 
A. We do not provide coverage under this endorsement for "property damage" or "bodily injury" sustained by an "insured":

1.
 Who is an owner of a motor vehicle:

a.
 Insured under a basic automobile insurance policy issued in accordance with New Jersey law or regulation; or 
b.
 Required to be insured in accordance with New Jersey law or regulation, but not insured for this coverage or any similar coverage.


This includes a trailer of any type used with a vehicle described in a. and b.above.
However, this Exclusion (A.1.) does not apply to you unless you are "occupying", at the time of the accident, a motor vehicle described in a. and b. above.
[(emphasis in original).]

We apply the plain language of the policy in interpreting this exclusion. See Progressivesupra166 N.J. at 272. Because plaintiff was driving the van insured by IFA and not her own vehicle, the express language of the exclusion did not apply to her because she was not "occupying" a vehicle described in "a or b above." 

B.

IFA contends that because plaintiff's special insurance policy did not include UM coverage, and because IFA's policy has a step-down provision under the UM Limit of Liability Endorsement that restricts coverage, there is therefore no UM coverage for plaintiff under the IFA policy. The applicable provision provides: 

LIMIT OF LIABILITY
 

. . . .
 

1.
 If:

a.
 An "insured" is not the named insured under this policy; 
b.
 That "insured" is a named insured under one or more other policies providing similar coverage; and 
c.
 All such policies have a limit of liability for similar coverage which is less than the limit of liability for this coverage;
then our maximum limit of liability for that "insured", for all damages resulting from any one accident, shall not exceed the highest applicable limit of liability under any insurance providing coverage to that "insured" as a named insured.


[(Emphasis added).]


In applying paragraph a of the foregoing endorsement, plaintiff is not a named insured under the policy. Under paragraph b, plaintiff is named as an insured under another policy. Under paragraph c, plaintiff's special insurance policy has no UM coverage, while IFA's standard policy has $50,000/$100,00 in coverage. The question then is whether the policies provide similar coverages because "similar coverage" is required for paragraph b and c to apply. 
We are satisfied that the step-down provision does not apply to exclude coverage for plaintiff under the IFA policy because the policies do not offer similar coverages. We recently interpreted a similar step-down provision in a standard personal automobile insurance policy to determine whether the step-down provision applied in the context of UIM coverage. In Rivera v. McCray445 N.J. Super. 315, 323-24 (App. Div. 2016), we reversed a trial court decision that denied UIM coverage. There, a family member who was separately insured under a special automobile insurance policy sought UIM coverage under her mother's standard automobile insurance policy because she was injured while operating her mother's vehicle. Id. at 317. We noted that "a step-down clause in an insurance policy can restrict the amount of UIM coverage available to an individual who is not named in that policy to the limit of UIM coverage that the individual may recover under his or her own insurance policy." Id. at 319 (quoting Pinto v. N.J. Mfrs. Ins. Co.183 N.J. 405, 413 (2005), superseded in part by N.J.S.A. 17.28-1.1(f) (prohibiting step-down provisions in certain business auto insurance policies)). We also observed that a UIM step-down provision can be enforced if its language is clear and unambiguous. Ibid. (citing Temple Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh224 N.J. 189, 200 (2016)). However, in Rivera, we declined to "step-down" the standard policy with UIM coverage to the special insurance policy that had no UIM coverage. Id. at 320. 
Like the policy at issue here, the term "similar coverage" was not defined in Rivera. The word "similar" is "generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat like, or has a general likeness to some other thing . . . although in some cases 'similar' may mean 'identical' or 'exactly alike.'" Id. at 321-22 (quoting Fletcher v. Interstate Chem. Co.94 N.J.L. 332, 334 (Sup. Ct. 1920) aff'd o.b.95 N.J.L. 543 (E. & A. 1921)). In Rivera, we found that the policy did not provide "similar coverage" because it did "not provide any form of 'UIM coverage' whatsoever." Id. at 322. As such, we held that the step-down provision did not apply to Rivera "because she [was] not a named insured under another policy 'providing similar coverage.'" Id. at 323. 
IFA's UM Limit of Liability Endorsement uses almost identical language to that used in the Rivera policy. We agree that plaintiff's special insurance policy had no UM coverage. However, we reject the notion that a policy, which by definition has no UM coverage, is then "similar" to the IFA policy that included UM coverage up to certain limits. The policies are not "similar" in coverage when one provides UM coverage and the other is prohibited by statute from providing that coverage. 
We discern no lack of fairness in providing plaintiff UM coverage under IFA's policy. An insured may have coverage under multiple policies that offer UM. N.J.S.A. 17:28-1.1(c) prohibits stacking the policies, but provides instead that "any recovery shall not exceed the higher of the applicable limits of the respective coverages," meaning that a covered individual might receive a higher limit of coverage under a policy he did not purchase. In certain other instances, automobile insurance policies may be "deemed" to include certain provisions that have not been purchased. See N.J.S.A. 17:28-1.4 ("deeming" a policy to include PIP coverage and the verbal threshold). Moreover, in construing the IFA policy to provide coverage, the claims exposure remains with the insurer and not with the Unsatisfied Claim and Judgment Fund (UCJF), which pays claims of victims of uninsured motor vehicle accidents, but is a "remedy of last resort." Sanders v. Langemeier199 N.J. 366, 379 (2009). See also N.J.S.A. 17:30A-2.1.
The issue of coverage under the UCJF is not before us and we expressly do not decide it. In Sanderssupra199 N.J. at 380, the Court dismissed plaintiff's complaint against the UCJF for PIP coverage because his special insurance policy provided for emergency PIP coverage. The Court did not address whether the UCJF would be available for a special automobile insurance policy holder who was uninsured because of the absence of UM coverage. -------- 
Therefore, plaintiff is not excluded from UM coverage under the IFA policy, because plaintiff's special automobile insurance policy does not provide "similar coverage" to that of the IFA policy, making IFA's UM Limitation of Liability Endorsement inapplicable. 
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.