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Sunday, July 3, 2022

Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. (085939) (Middlesex County & Statewide) (A-5-21

 Thomasenia L. Fowler v. Akzo Nobel Chemicals, Inc. (085939) (Middlesex County & Statewide) (A-5-21; 085939)

As to the duty to warn, an asbestos manufacturer or supplier that places inadequate warnings on asbestos bags used in the workplace has breached its duty to the worker, regardless of whether it provides the employer with the correct information, which is reasonably intended to reach its employees. As to medical causation, the trial court’s modified Model Jury Charge on proximate cause sufficiently guided the jury.

Sunday, June 26, 2022

Robert Sipko v. Koger, Inc. (085022) (Bergen County & Statewide) (A-74-20

 Robert Sipko v. Koger, Inc. (085022) (Bergen County & Statewide) (A-74-20; 085022)

In light of all the defendants’ conduct regarding KDS and KPS to strip Robert of his rightful interests, equity cannot abide imposing a marketability discount to the benefit of defendants. The trial court’s acceptance of Robert’s expert’s valuation of the company fell within its broad discretion and was fully supported by the record. Defendants were given the opportunity to present an expert valuation of the companies on remand but made the strategic decision not to do so. The Court declines to provide defendants with another bite of this thoroughly chewed apple and reinstates the judgment of the trial court.

Monday, June 20, 2022

MAC PROPERTY GROUP ET AL. VS. SELECTIVE FIRE AND CASUALTY INSURANCE CO. PRECIOUS TREASURES LLC VS. MARKEL INS. ET AL. (L-2629-20, L 2630-20, L-2631-20, CAMDEN COUNTY and L-0820-20 and L-0892-20, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0714-20/A-0962-20/A-1034-20/A-1110-20/A-1111-20/A-1148-20)

 MAC PROPERTY GROUP ET AL. VS. SELECTIVE FIRE AND CASUALTY INSURANCE CO. PRECIOUS TREASURES LLC VS. MARKEL INS. ET AL. (L-2629-20, L 2630-20, L-2631-20, CAMDEN COUNTY and L-0820-20 and L-0892-20, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0714-20/A-0962-20/A-1034-20/A-1110-20/A-1111-20/A-1148-20)

These six back-to-back appeals arising from Law Division orders in two vicinages have been consolidated for the issuance of a single opinion. They require the court to consider an issue of first impression –– whether in the context of Rule 4:6-2(e) motions to dismiss with prejudice, insurance policies issued by defendants did not cover business losses incurred by plaintiffs that were forced to close or limit their operations as a result of Executive Orders issued by Governor Philip Murphy to curb the COVID-19 global health crisis.

We affirm because we conclude the motion judges were correct in granting Rule 4:6-2(e) dismissals of plaintiffs' complaints with prejudice for failure to state a claim on the basis that plaintiffs' business losses were not related to any "direct physical loss of or damage to" as required by the terms of their insurance policies. We conclude plaintiffs' business losses were also not covered under their insurance policies' civil authority clauses, which provided coverage for losses sustained from governmental actions forcing closure or limiting business operations under certain circumstances. We further conclude defendants' denial of coverage was not barred by regulatory estoppel. In the alternative, we conclude that even if plaintiffs' business losses otherwise satisfied the requirements of the relevant clauses, coverage was barred by their insurance policies' virus exclusions and endorsements because the Executive Orders were a direct result of COVID-19.

FAYE HOELZ VS. ANDREA LEGATH BOWERS, M.D., ET AL. VS. LUTHERAN CROSSINGS ENHANCED LIVING, ET AL. (L-0620-16, BURLINGTON COUNTY AND STATEWIDE) (A-1534-21)

 FAYE HOELZ VS. ANDREA LEGATH BOWERS, M.D., ET AL. VS. LUTHERAN CROSSINGS ENHANCED LIVING, ET AL. (L-0620-16, BURLINGTON COUNTY AND STATEWIDE) (A-1534-21)

After settling her medical malpractice suit with plaintiff's estate, defendant-doctor Bowers was prepared to try her third-party contribution claim against third-party defendant Comiskey, who also treated plaintiff but was never named as a direct defendant. Comiskey moved to dismiss, arguing the Joint Tortfeasor Contribution Law, (the JTCL), N.J.S.A. 2A:53A-1 to -5, predicated a contribution-only claim upon plaintiff's recovery of a "money judgment" against Bowers. The settlement and release executed by the parties did not satisfy the JTCL. The motion judge denied Comiskey's motion, finding it was untimely, and because the settlement was placed on the public website of the Division of Consumer Affairs, as required by regulation, the settlement was the equivalent of a money judgment.

On leave granted, the court reversed. The court reviewed a line of cases from the Supreme Court and the Appellate Division that have consistently construed the right to contribution under the JTCL as requiring entry of a money judgment against the contribution claimant.

The court also raised concern about continued application of the Court's holding in Young v. Steinberg, 53 N.J. 252 (1969). In Young, the Court held that "[a] suit for contribution based on a settlement which has been elevated to the status of a judgment by formal court proceeding, and which discharges the injured party's claim against a non-settling joint tortfeasor, comports with the intent of our statutory scheme." Id. at 255 (emphasis added). At trial, the contribution claimant must still "establish a common liability . . . and the quantum of the damages ensuing from the joint offense." Ibid.

The court noted Young was decided prior to enactment of the Comparative Negligence Act (the CNA), N.J.S.A. 2A:15-5.1 to -5.8. As a result, pro rata apportionment of damages under the JTCL was supplanted by apportionment of liability and damages based on comparative fault.

SHEILA BRYANT, ET AL. VS. COUNTY OF CUMBERLAND (L-0084-20, CUMBERLAND COUNTY AND STATEWIDE) (A-0726-20)

 SHEILA BRYANT, ET AL. VS. COUNTY OF CUMBERLAND (L-0084-20, CUMBERLAND COUNTY AND STATEWIDE) (A-0726-20)

The trial court dismissed plaintiffs' personal injury complaint against Cumberland County because plaintiffs served their notice of claim on the county clerk rather than the clerk of the board of county commissioners. Recognizing that N.J.S.A. 59:8-7 and -10 do not specifically identify the county office or officer to be served with a notice of claim, the court held as a matter of first impression that service on the county clerk suffices.

VADIM CHEPOVETSKY, ET AL. VS. LOUIS CIVELLO, JR. (C-000008-19, MIDDLESEX COUNTY AND STATEWIDE) (A-0476-21)

 VADIM CHEPOVETSKY, ET AL. VS. LOUIS CIVELLO, JR. (C-000008-19, MIDDLESEX COUNTY AND STATEWIDE) (A-0476-21)

In January 2007, defendant sold a business to a relative of the plaintiffs. All but $12,500 of the $196,5000 purchase price was financed by defendant. The loan was secured by a mortgage on plaintiffs' residence and the personal guaranty of plaintiff Vadim Chepovetsky. Shortly thereafter, the buyer defaulted. The maturity date of the mortgage was February 22, 2012. Litigation in 2008 did not result in a judgment. In 2011, plaintiffs filed a joint Chapter Seven bankruptcy. The debt schedules list defendant as an unsecured creditor. The bankruptcy trustee abandoned his interest in the plaintiffs' residence. A discharge was granted to plaintiffs and a final decree was entered closing the case a no-asset bankruptcy. Defendant received timely notice of the bankruptcy filing and the discharge.

Thereafter, plaintiffs filed this action to quiet title. Defendant filed a counterclaim, seeking to enter judgment for personal liability against plaintiffs on the guaranty and to fix the amount due on the mortgage. Plaintiffs did not raise the affirmative defense of discharge in bankruptcy. Plaintiffs' complaint was dismissed for failing to provide discovery. The court conducted a bench trial on the counterclaim. Plaintiffs did not attend the trial and their attorney did not raise the defense of discharge in bankruptcy. The court entered judgment for $410,800 against Chepovetsky but not Svetlana Nashtatik.

Thereafter, plaintiffs moved to vacate the judgment, alleging it was void due to their bankruptcy discharge, and to vacate the dismissal of their complaint, because they were not required to respond to defendant's discovery demands related to a debt discharged in bankruptcy. They also argued that foreclosure was barred by the six-year statute of limitations imposed by N.J.S.A. 2A:50-56.1. Defendant opposed the motion, relying on equitable principles, including unclean hands, and asserted that plaintiffs did not prove that Chepovetsky's liability on the guaranty was discharged.

The trial court vacated the judgment and the order dismissing the quiet title action. The court found the judgment was void ab initio because Chepovetsky's "personal debt" to defendant was discharged in bankruptcy. The court stated it was unaware of the discharge in bankruptcy when it entered judgment against Chepovetsky. The court found the order dismissing the complaint was "improvidently entered" and reinstated the complaint, noting that pursuant to 11 U.S.C. § 524, plaintiffs were "not obligated to do anything" and were "entitled to disregard" discovery that was part of an attempt to collect a discharged debt. The court also found that the mortgage matured on February 22, 2012, and defendant failed to institute a timely foreclosure action within six years. Therefore, an action to quiet title was appropriate.

We granted defendant leave to appeal. Applying the Supremacy Clause, the court held that the nature, extent, and enforceability of a discharge in bankruptcy is controlled by the Bankruptcy Code and interpretative federal case law. Pursuant to 11 U.S.C. § 524, debtors are not required to defend a postdischarge collection action. Consequently, they were not required to provide discovery, and the failure to plead discharge in bankruptcy as an affirmative defense did not waive that defense or estop plaintiffs from asserting it. Enforcing the waiver of the affirmative defense of discharge in bankruptcy under Rule 4:5-4 would violate the Supremacy Clause and be inconsistent with substantial justice. The court rejected defendant's reliance on the Rooker-Feldman doctrine.

The court held that Chepovetsky's personal liability on the guaranty was discharged in bankruptcy and that Nashtatik was not a guarantor of the loan. Accordingly, the judgment imposing personal liability on Chepovetsky was void ab initio and properly vacated.

As to the mortgage lien, the court held that defendant was entitled to a judgment fixing the amount due on the mortgage, explaining that a discharge in bankruptcy only discharges the personal liability of the debtors, and the mortgage lien remains enforceable against their real property if the foreclosure action is timely filed. The court expressed no opinion on whether a future action to foreclose the mortgage would be time-barred by the applicable statute of limitations. The ruling that foreclosure was time-barred was vacated, with that issue to be reconsidered on remand.

C.V., ET AL. VS. WATERFORD TOWNSHIP BOARD OF EDUCATION, ET AL. (L-1981-14, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0626-20)

 C.V., ET AL. VS. WATERFORD TOWNSHIP BOARD OF EDUCATION, ET AL. (L-1981-14, CAMDEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-0626-20)

The court considered a matter of first impression relating to the application of the New Jersey Law Against Discrimination (LAD). Specifically, the court considered whether the LAD applies to claims arising from a sexual predator's criminal assaults against a young schoolgirl where those crimes were committed on a school bus. Under the circumstances of this case, the court concluded the LAD did not apply, especially where, as here, there was no evidence that the predator's compulsive and repetitive behavior was the result of any proven intention to discriminate specifically against young women. The court found the LAD was simply not intended to provide a civil remedy for child sex abuse committed by compulsive pedophiles. Even if it was, it concluded a victim must demonstrate the discriminatory conduct would not have occurred 'but for' the student's protected characteristic. The court concluded the plaintiffs did not meet that burden. The court's opinion construing the LAD did not address or preclude relief under other laws that were not invoked by plaintiffs on appeal.