07-10-09 ALLSTATE INSURANCE CO. V. OTTO FISHER
A-4445-06T3
The failure of the motion judge to comply with Rule 1:7-4
requires that the uncontested summary judgment entered in
plaintiffs' favor be reversed and remanded; however, defendant's
dilatory conduct warrants that the vacating of the judgment be
conditioned on the payment of reasonable attorney's fees and
costs.
Richard Sadowski
Assistant Editor
Wednesday, July 15, 2009
7-15-09 Amalgamated Transit Union, Local 880 v. NJ Transit Bus Operations (A-20-08)
7-15-09 Amalgamated Transit Union, Local 880 v. New Jersey
Transit Bus Operations, Inc. (A-20-08)
Applying the “reasonably debatable” standard of review for
arbitration decisions, the Court defers to the arbitration
panel’s conclusion that the employee in this case, who was
terminated during his probationary period, did not have the
right to access the grievance provisions of the collective
bargaining agreement.
Richard Sadowski
Assistant Editor
Transit Bus Operations, Inc. (A-20-08)
Applying the “reasonably debatable” standard of review for
arbitration decisions, the Court defers to the arbitration
panel’s conclusion that the employee in this case, who was
terminated during his probationary period, did not have the
right to access the grievance provisions of the collective
bargaining agreement.
Richard Sadowski
Assistant Editor
7-9-09 Khan, et al. v. Singh (A-73-08)
7-9-09 Mohammed Khan, et al. v. Sunil K. Singh, M.D.
(A-73-08)
There was no foundational proof for the plaintiff’s experts’
testimony that it is common knowledge in the medical community
that the injury ordinarily occurs only because of negligence.
Although lack of experience alone does not necessarily preclude
an expert from offering such an opinion, the experts did not
point to any training, education, or medical literature as an
alternate source of support for their common knowledge
testimony. Even if the Court were to embrace the “conditional
res ipsa” theory, application of that charge is not supported by
this factual record.
Richard Sadowski
Assistant Editor
(A-73-08)
There was no foundational proof for the plaintiff’s experts’
testimony that it is common knowledge in the medical community
that the injury ordinarily occurs only because of negligence.
Although lack of experience alone does not necessarily preclude
an expert from offering such an opinion, the experts did not
point to any training, education, or medical literature as an
alternate source of support for their common knowledge
testimony. Even if the Court were to embrace the “conditional
res ipsa” theory, application of that charge is not supported by
this factual record.
Richard Sadowski
Assistant Editor
Tuesday, July 7, 2009
7-1-09 Fawzy v. Fawzy (A-38/39-08)
7-1-09 Christine Saba Fawzy v. Samih M. Fawzy (A-38/39-08)
The constitutionally protected right of parental autonomy
includes the right of parents to choose the forum in which to
resolve their disputes over child custody and parenting time,
including arbitration. An agreement to arbitrate must be in
writing or recorded and must establish that the parties are
aware of and have knowingly and voluntarily waived their rights
to a judicial determination. A record of documentary evidence
adduced during the proceedings must be kept; testimony must be
recorded; and the arbitrator must issue findings of fact and
conclusions of law in respect of the award. The arbitrator’s
award is subject to review under the Arbitration Act, N.J.S.A.
2A:23-B-1 to -32, except that judicial review is also available
if a party establishes that the award threatens harm to the
child.
Richard Sadowski
Assistant Editor
The constitutionally protected right of parental autonomy
includes the right of parents to choose the forum in which to
resolve their disputes over child custody and parenting time,
including arbitration. An agreement to arbitrate must be in
writing or recorded and must establish that the parties are
aware of and have knowingly and voluntarily waived their rights
to a judicial determination. A record of documentary evidence
adduced during the proceedings must be kept; testimony must be
recorded; and the arbitrator must issue findings of fact and
conclusions of law in respect of the award. The arbitrator’s
award is subject to review under the Arbitration Act, N.J.S.A.
2A:23-B-1 to -32, except that judicial review is also available
if a party establishes that the award threatens harm to the
child.
Richard Sadowski
Assistant Editor
07-06-09 CASILLI V. SOUSSOU, ET ALS. A-5205-07T2
07-06-09 ARCANGELO & DENISE CASILLI V. GEORGE SOUSSOU, ET ALS.
A-5205-07T2
We hold that the unambiguous terms of an insurance policy's
exclusion clause denies coverage when use of a family memberowned
vehicle other than the "named insured's" "covered auto"
was involved, except when it was the "named insured's"
themselves who were using the family member-owned vehicle. We
found that excluding coverage for a separately-insured family
member's use of a non-covered auto is not uncommon, is legally
sound, and supported by policy.
Richard Sadowski
Assistant Editor
A-5205-07T2
We hold that the unambiguous terms of an insurance policy's
exclusion clause denies coverage when use of a family memberowned
vehicle other than the "named insured's" "covered auto"
was involved, except when it was the "named insured's"
themselves who were using the family member-owned vehicle. We
found that excluding coverage for a separately-insured family
member's use of a non-covered auto is not uncommon, is legally
sound, and supported by policy.
Richard Sadowski
Assistant Editor
07-01-09 TAC V. NJ DEPT OF and ENVIRONMENTAL PROTECTION and NJ ECONOMIC DEVELOPMENT A-1044-08T1
07-01-09 TAC ASSOCIATES V. NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION and THE NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY
A-1044-08T1
In this appeal, we invalidate N.J.A.C. 19:31-8.2, a
regulation promulgated by the New Jersey Economic Development
Authority (EDA) to implement certain sections of the Hazardous
Discharge Site Remediation Fund. We determine that the
regulatory definition for eligibility to a special revolving
fund, established by the Legislature for the purpose of
financing remediation activities, is inconsistent with the
statutory criteria in N.J.S.A. 58:10B-6(b)(4).
Richard Sadowski
Assistant Editor
ENVIRONMENTAL PROTECTION and THE NEW JERSEY ECONOMIC
DEVELOPMENT AUTHORITY
A-1044-08T1
In this appeal, we invalidate N.J.A.C. 19:31-8.2, a
regulation promulgated by the New Jersey Economic Development
Authority (EDA) to implement certain sections of the Hazardous
Discharge Site Remediation Fund. We determine that the
regulatory definition for eligibility to a special revolving
fund, established by the Legislature for the purpose of
financing remediation activities, is inconsistent with the
statutory criteria in N.J.S.A. 58:10B-6(b)(4).
Richard Sadowski
Assistant Editor
07-01-09 HAND V. PHILADELPHIA INSURANCE A-1957-07T1
07-01-09 DONNA HAND V. PHILADELPHIA INSURANCE COMPANY
A-1957-07T1
Contrary to the result reached by our colleagues in Olkusz
v. Brown, 401 N.J. Super. 496 (App. Div. 2008), we conclude that
the Legislature implicitly intended the so-called "Scutari
Amendment," N.J.S.A. 17:28-1.1(f), to be applied retroactively.
However, under the facts of this case, we also conclude that to
do so would result in a manifest injustice to defendant insurer.
Richard Sadowski
Assistant Editor
A-1957-07T1
Contrary to the result reached by our colleagues in Olkusz
v. Brown, 401 N.J. Super. 496 (App. Div. 2008), we conclude that
the Legislature implicitly intended the so-called "Scutari
Amendment," N.J.S.A. 17:28-1.1(f), to be applied retroactively.
However, under the facts of this case, we also conclude that to
do so would result in a manifest injustice to defendant insurer.
Richard Sadowski
Assistant Editor
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