IN RE: VICINAGE 13 OF THE NEW JERSEY SUPERIOR COURT; WARREN COUNTY OFFICE OF THE PROSECUTOR; NEW JERSEY OFFICE OF THE PUBLIC DEFENDER, WARREN REGION; WARREN COUNTY BOARD OF CHOSEN FREEHOLDERS

IN RE: VICINAGE 13 OF THE NEW JERSEY SUPERIOR COURT; 

WARREN COUNTY OFFICE OF THE PROSECUTOR; NEW JERSEY OFFICE OF THE PUBLIC DEFENDER, WARREN REGION; WARREN COUNTY BOARD OF CHOSEN FREEHOLDERS 

The remodeling of Courtroom No. 2 in Warren County has been the subject of years of litigation. The matter was first initiated by the Office of Public Defender (OPD), when it successfully objected to a criminal trial being conducted there, after renovations made in 2008. The OPD took the position that a defendant's right to a fair trial was prejudiced by the design of the courtroom. Warren County eventually filed an action for judgment under the Declaratory Judgment Act, N.J.S.A. 2A:16-5 to -62, that more recent modifications satisfied any constitutional concerns. The panel reversed the judge's decision that the OPD lacked standing to participate in the proceedings, remanded the case, and suggested the appointment of a special master to make findings and develop a more complete factual record under Rule 4:41-1. 

04/12/

Freedom from Religion Foundation v. Morris County Board of Chosen Freeholders (A-71-16; 079277)

 Freedom from Religion Foundation v. Morris County 

Board of Chosen Freeholders (A-71-16; 079277) 

The plain language of the Religious Aid Clause bars the use of taxpayer funds to repair and restore churches, and Morris County’s program ran afoul of that longstanding provision. Based on its understanding of the current state of the law, including the United States Supreme Court’s recent decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012 (2017), the Court concludes that that the application of the Religious Aid Clause in this case does not violate the Free Exercise Clause. 

Mark R. Krzykalski v. David T. Tindall

 Mark R. Krzykalski v. David T. Tindall 

The jury properly apportioned fault between defendant and the John Doe defendant because plaintiff and defendant acknowledged the role of John Doe in the accident, plaintiff’s UM carrier was aware of the litigation, and plaintiff had fair and timely notice that defendant would assert that John Doe was the cause of the accident. 

David Spade v. Select Comfort Corp.; Christopher Wenger v. Bob’s Discount Furniture, LLC (A-57-16;

David Spade v. Select Comfort Corp.; Christopher 

Wenger v. Bob’s Discount Furniture, LLC 

(A-57-16; 078611) 

(1) The inclusion of language prohibited by N.J.A.C. 13:45A-5.3(c) in contracts of sale or sale orders for the delivery of household furniture may alone give rise to a violation of a “clearly established legal right of a consumer or responsibility of a seller” for purposes of the TCCWNA. N.J.S.A. 56:12-15. (2) A consumer who receives a contract that includes language prohibited by N.J.A.C. 13:45A-5.3(c), but who suffers no monetary or 

other harm as a result of that noncompliance, is not an “aggrieved consumer” entitled to a remedy under the TCCWNA. N.J.S.A. 56:12-17. 

DWIGHT MORRIS VS. T.D. BANK, ET AL. A-2268-16T1

 DWIGHT MORRIS VS. T.D. BANK, ET AL. 

A-2268-16T1 

Plaintiff was in line at the bank behind a man of the same race who passed a note to defendant-bank's teller demanding money. The teller complied and the robber left. Another employee, seeing the note and believing the man in front of the teller's window — plaintiff — was the robber, called 9-1-1 and provided a description, including the race of the suspect. Police arrived and questioned defendant, who claimed he suffered from PTSD as a result of the incident. 

Plaintiff sued the bank alleging negligence in the violation of bank policies and in his misidentification as the robber. The 

court concludes, consistent with decisions in several other states, that there is no cause of action for negligent identification/misidentification, nor should New Jersey recognize such a tort, given the state's strong public policy to foster cooperation between citizens and law enforcement. 

Robert Ferrante v. New Jersey Manufactures Insurance Group (A-87-16

 Robert Ferrante v. New Jersey Manufactures Insurance 

Group (A-87-16; 078496) 

Due to the complete absence of notice by Ferrante to NJM at any point over years of litigation, including the lack of notice about the high-low agreement or completed jury trial during the UIM process, NJM may refuse to pay the UIM benefits. 

TAMYRA L. COTTMAN VS. BOARD OF REVIEW, ET AL. A-1908-16T2

 TAMYRA L. COTTMAN VS. BOARD OF REVIEW, ET AL. 

A-1908-16T2 

The panel reversed the Board of Review's denial of unemployment compensation. The Board affirmed the Appeal Tribunal's decision that the claimant voluntarily quit her job as a group home worker without good cause related to her work. Her child care fell through unexpectedly and she could not find a co-worker to cover her shift. The panel held that the Board overlooked evidence that the claimant was entitled to benefits under N.J.A.C. 12:17-9.5, because she quit in the face of imminent discharge: her supervisor threatened she might be fired if she did not come in. Had the claimant been fired for staying home, she would have been eligible for benefits. Although "good cause related to the work" under the voluntary quit statute, N.J.S.A. 43:21-5(a), excludes compelling personal reasons, "good cause for being absent from work," in the regulation defining simple misconduct, includes "any compelling personal circumstance, which would normally prevent a reasonable person under the same conditions from reporting work." N.J.A.C. 12:17-10.2(b). The panel concluded that, in order to be eligible for benefits, the claimant was not required to wait to be fired when discharge was imminent. 

J.H. AND A.R. VS. R&M TAGLIARENI, LLC, ET AL. A-0031-16T4

 J.H. AND A.R. VS. R&M TAGLIARENI, LLC, ET AL. 

A-0031-16T4 

The trial court granted summary judgment to defendants, landlord and property manager of a multi-family apartment building, on the basis that they did not owe a duty of care to plaintiff, who at the time was an infant staying in the apartment with the tenant's consent, to protect him from the apartment's excessively-hot-uncovered radiator. We conclude that, under the circumstances of this case, the radiator is part of the building's heating system that defendants have control of under common law and N.J.A.C. 5:10-14.3(d), and should have been covered, and reverse. 

NORTHFIELD INSURANCE COMPANY VS. MT. HAWLEY INSURANCE A-1771-16T4

 NORTHFIELD INSURANCE COMPANY VS. MT. HAWLEY INSURANCE 

A-1771-16T4 

The court considered, among other things, whether a third party may take advantage of an estoppel doctrine – first recognized in Merchants Indemnity Corp. v. Eggleston, 37 N.J. 114 (1962) – 

that has been found to apply when an insurer, while reserving its rights or declining coverage, fails to clearly seek its insured's consent to the insurer's control of the defense. The court held that the insurer here could not, as a matter of law, be estopped from denying coverage because there was no clear evidence that the defunct insured changed its position to its detriment even if the insurer assumed the defense without consent. The court also rejected the argument that Eggleston permits avoidance of estoppel only if the insurer uses certain magic words in communicating with its insured; the insurer's disclaiming letter, which expressed the insurer's "willingness" to provide a "courtesy defense," could reasonably be interpreted as conveying an offer rather than a unilateral declaration of a right to control the defense. Consequently, the court reversed the summary judgment entered in favor of the parties seeking estoppel – the victim of the insured's alleged negligence and its property-damage insurer. 

IN THE MATTER OF THE TRUST OF VIOLET NELSON A-4004-15T1

IN THE MATTER OF THE TRUST OF VIOLET NELSON 

A-4004-15T1 

Applying the doctrine of probable intent, see Fidelity Union Trust Co. v. Robert, 36 N.J. 561 (1962), the panel reverses summary judgment and holds that the trial court was obliged to consider extrinsic evidence to interpret a trust, even though the language on its face appeared clear. Relying on extrinsic evidence, including the settlor's alleged personal usage of the apparently plain term, "grandchildren," the trustee contended the settlor's gift to her "grandchildren" was intended to exclude the children of her daughter who married outside the settlor's faith. The panel rejects, as contrary to caselaw, the dictum in In re Estate of Gabrellian, 372 N.J. Super. 432, 443 (App. Div. 2004) that "[t]he doctrine of probable intent is not applicable where the documents are clear on their face and there is no failure of any bequest or provision." The matter is remanded for trial on the issue of the settlor's intent.