FINANCIAL SERVICES VEHICLE TRUST VS. JAMES PANTER NISSAN INFINITY LT VS. BENJAMIN A. FRATTO SANTANDER CONSUMER USA VS. ALBARI M. EL FINANCIAL SERVICES VEHICLE TRUST VS. DEBORAH MOORE (SC-002133-17, SC-002646-17, SC-002661-17 AND SC-000367-18, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-2142-17T3/A-2691-17T3/A-2709-17T3/

FINANCIAL SERVICES VEHICLE TRUST VS. JAMES PANTER NISSAN INFINITY LT VS. BENJAMIN A. FRATTO SANTANDER CONSUMER USA VS. ALBARI M. EL FINANCIAL SERVICES VEHICLE TRUST VS. DEBORAH MOORE (SC-002133-17, SC-002646-17, SC-002661-17 AND SC-000367-18, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-2142-17T3/A-2691-17T3/A-2709-17T3/A-3487-17T3)

In these four small claim suits, plaintiffs sought relief from defendants because their negligence caused damage to plaintiffs' vehicles. Of interest, plaintiffs sought damages because databases like CarFax mention the vehicles' newly-acquired accident histories that – plaintiffs claimed – diminished the vehicles' value even though they were repaired to their pre-accident condition and function. In finding these damages recoverable, the court held that fixing an amount for the stigma of this accident history did not require undue speculation. Such a claim, the court held, is merely subject to proof, which plaintiffs provided via an expert who testified that the "scarlet letter" of an accident history reduces a vehicle's value; in other words, the court found the claim cognizable because it is reasonable to assume that, all other things being equal, a buyer will likely pay less for a vehicle with an accident history than a vehicle without.

MARY C. DUTTON, ETC. VS. STEPHEN V. RANDO (L-6051-13, ATLANTIC COUNTY AND STATEWIDE) (A-1049-16T1)

MARY C. DUTTON, ETC. VS. STEPHEN V. RANDO (L-6051-13, ATLANTIC COUNTY AND STATEWIDE) (A-1049-16T1)
This appeal arises from a tragic highway collision in which defendant Stephen Rando's sports utility vehicle fatally struck plaintiff's son, Patrick Dutton, as he was riding his bicycle. Following a trial, the jury found that defendant was sixty percent responsible for the accident while Patrick was responsible for the remaining forty percent. The jury awarded plaintiff Mary Dutton, representing her son's estate, $500,000 in wrongful death damages and $108,000 in survivorship damages. The trial court entered judgment in the sum of $364,800 in damages and additional interest, fees, and costs.

Defendant appeals from the judgment memorializing the verdict and from the trial court's order denying his motion for a new trial. Among other things, defendant contends that the jury's award of wrongful death damages is unsupported by the evidence, particularly without any expert testimony to substantiate the pecuniary value of the loss of Patrick's advice, guidance, and companionship. This court rejects defendant's contention and reaffirms the long-standing principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12, 32-33 (1989), that expert testimony is not required to establish the pecuniary value of such services in claims for wrongful death. This holding is consistent with the common law in the fourteen other jurisdictions that, like New Jersey, restrict recovery in wrongful death actions to pecuniary loss, but do not require expert testimony to substantiate damages.

IN RE ADOPTION OF N.J.A.C. 17:2-3.8 AND 17:2-3.13 (DIVISION OF PENSIONS AND BENEFITS) (A-4327-17T4)

IN RE ADOPTION OF N.J.A.C. 17:2-3.8 AND 17:2-3.13 (DIVISION OF PENSIONS AND BENEFITS) (A-4327-17T4)

This appeal affects members of the Public Employees' Retirement System (PERS) who converted their group life insurance policy into an individual policy, but died while their retirement applications were pending and whose beneficiaries chose "retired" benefits. In upholding N.J.A.C. 17:2-3.8(b) (clarifying the effective date for converted individual insurance policies) and N.J.A.C. 17:2-3.13 (addressing benefits payable to beneficiaries when members die with retirement applications pending), this court recognized the longstanding practice that beneficiaries of PERS members may receive either a "retired" benefit or an "active" benefit, but not both.

JEFFREY S. JACOBS VS. MARK LINDSAY AND SON PLUMBING & HEATING, INC., ET AL. (L-3120-14, ESSEX COUNTY AND STATEWIDE) (A-3854

JEFFREY S. JACOBS VS. MARK LINDSAY AND SON PLUMBING & HEATING, INC., ET AL. (L-3120-14, ESSEX COUNTY AND STATEWIDE) (A-3854-16T1)

In this Consumer Fraud Act action, the Law Division found defendants engaged in an unconscionable commercial practice by filing a criminal complaint against plaintiff as a means of collecting a consumer debt. The parties settled on damages and defendants reserved the right to appeal the summary -judgment decision on liability. A different judge awarded plaintiff six percent of the counsel fees requested and no costs of suit or filing fees. Both parties now appeal.

This court holds defendants bargained away their right to challenge the summary judgment decision and dismisses their appeal pursuant to Winberry v. Salisbury, 5 N.J. 240, 255 (1950). With respect to the award of counsel fees, this court holds the Law Division did not follow the standards established by the Court in Rendine v. Pantzer, 141 N.J. 292, 316-45 (1995) and violated N.J.S.A. 56:8-19 because it failed to award plaintiff costs of suit and filing fees.

Jennifer Kocanowski v. Township of Bridgewater (080510) (Statewide) (A-55-17

Jennifer Kocanowski v. Township of Bridgewater (080510) (Statewide) (A-55-17; 080510)

The Appellate Division’s judgment is reversed. While N.J.S.A. 34:15-75’s language is unclear, its legislative history indicates a strong intent to provide temporary disability coverage to volunteer firefighters at the maximum compensation provided for in the Act.

IN THE MATTER OF THE CIVIL COMMITMENT OF A.Y. SVP-545-09 (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-5240-16T5)

IN THE MATTER OF THE CIVIL COMMITMENT OF A.Y. SVP-545-09 (ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) (A-5240-16T5)

Appellant A.Y. appeals from a judgment civilly committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. He was convicted of the predicate act of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and was diagnosed as suffering from Antisocial Personality Disorder and other conditions.

The State's experts opined appellant's personality disorder affects his cognitive, volitional, or emotional capacity, making it highly likely he will sexually reoffend if not kept under the care, control and treatment of a secure facility such as the STU. The State's experts relied, in part, on the results of the MnSOST-R and Static-99R actuarial instruments to determine whether A.Y. was highly likely to sexually reoffend.

Appellant argued he had regained volitional control over his sexually assaultive behavior through treatment and medication compliance. Appellant further argued the State's experts rendered inadmissible net opinions lacking any probability basis to find him highly likely to sexually reoffend. Appellant also argued the State's experts could not point to any methodology or objective standards used to reach their sexual recidivism risk findings.

The court found the State's experts relied on information reasonably relied on by experts in the field, the State's experts did not render inadmissible net opinions, the actuarial instruments were properly used by the State's experts in the formation of the basis of their opinions, and the methodology utilized by the State's experts satisfied the requirements imposed by the Court in In re Accutane Litig., 234 N.J. 340 (2018). Accordingly, the court determined the trial court did not abuse its discretion in admitting and considering the testimony of the State's experts, including their use and reliance upon the MnSOST-R and Static-99R actuarial instruments.

The court affirmed, finding the credible evidence in the record supported the trial court's finding that appellant suffered from a personality disorder that makes it highly likely he will not control his sexually violent behavior and will reoffend if not confined to the STU for treatment.

NEW JERSEY LAND TITLE ASSOCIATION VS. DANA RONE, COUNTY REGISTER OF THE COUNTY OF ESSEX (L-2077-17,

NEW JERSEY LAND TITLE ASSOCIATION VS. DANA RONE, COUNTY REGISTER OF THE COUNTY OF ESSEX (L-2077-17, HUDSON COUNTY AND STATEWIDE) (A-5028-16T1)

The issue presented on this appeal is whether a county register or clerk has the authority to charge a "convenience fee" or surcharge for the electronic filing of documents concerning real property. The Legislature has prescribed the fees a county register or clerk may charge for the filing of documents, and a convenience fee is not one of the legislatively authorized fees. Accordingly, the court holds that a county register or clerk cannot impose such a fee. The court therefore reverses a June 23, 2017 order granting summary judgment to the Essex County Register of Deeds and Mortgages (Essex Register) and dismissing the complaint of plaintiff, the New Jersey Land Title Association (Association). The court remands with direction that the Association be granted partial summary judgment on its claim to enjoin, prospectively, the Essex Register from collecting the convenience fee. On remand, the trial court will also address the Association's claim for disgorgement of the fees previously paid.

MARIA I. TIRPAK VS. BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, ET AL. (L-2918-17

MARIA I. TIRPAK VS. BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, ET AL. (L-2918-17, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED) (A-5088-17T1/A-5147-17T1)

Defendants, the Borough of Point Pleasant Beach and the Borough's Zoning Board of Adjustment, appeal the trial court's May 3, 2018 decision in this land use case. The court declared invalid and unenforceable a variance provision and associated deed restriction that requires one unit of the subject two-family dwelling to be occupied by the owner and not rented to a third-party tenant.

These owner-occupancy limitations were imposed by the Board in 1999 as a condition of approving a variance allowing plaintiff Maria I. Tirpak and her now-deceased husband to raze their then-existing dwelling and construct a new two-family dwelling in a zone limited to single-family residences. The Board also required the Tirpaks to memorialize the condition as a recorded deed restriction.

The trial court concluded the variance condition and deed restriction impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property upon the identities of its occupants.

On appeal, defendants argue the trial court should have dismissed plaintiff's challenge to the restrictions as untimely. They further contend the trial court misapplied the law and principles of equity in nullifying the variance condition and deed restriction.

This appellate court rejects defendants' arguments, substantially for the sound reasons expressed in Assignment Judge Marlene Ford's May 3, 2018 written decision, which is published in tandem with this opinion at ___ N.J. Super. ___ (App. Div. 2019).

LEWIS STEIN VS. DEPARTMENT OF LAW & PUBLIC SAFETY, NEW JERSEY RACING COMMISSION (NEW JERSEY RACING COMMISSION) (A-5589-16T3)

LEWIS STEIN VS. DEPARTMENT OF LAW & PUBLIC SAFETY, NEW JERSEY RACING COMMISSION (NEW JERSEY RACING COMMISSION) (A-5589-16T3)

The Off-Track and Account Wagering Act, N.J.S.A. 5:5-127 to -160, does not permit persons with accounts in New Jersey's account-wagering system (AWS) from placing wagers with the AWS while located outside the State, and this restriction on wagering does not violate the Commerce Clause of the United States Constitution.

MARGARET FATTORE VS. FRANK FATTORE (FM-11-0224-97, MERCER COUNTY AND STATEWIDE) (A-3727-16T1)

MARGARET FATTORE VS. FRANK FATTORE (FM-11-0224-97, MERCER COUNTY AND STATEWIDE) (A-3727-16T1)

In Mansell v. Mansell, 490 U.S. 581 (1989), the United States Supreme Court held the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, federally preempted state family courts from equitably distributing a disability retirement pension in a divorce. In 2017, the Court in Howell v. Howell, __ U.S. __, 137 S. Ct. 1400 (2017), held family courts are federally preempted from indemnifying a spouse for the inability to distribute disability benefits, but could take such a contingency into consideration by other means, including modifying or awarding alimony.

In this case, the court reverses the trial court's order, which required the spouse receiving disability benefits to indemnify the payee spouse by paying her a hypothetical value of her share of the pension, because indemnification was preempted by Howell. However, the court holds conversion of the pension into a disability benefit was a substantial and permanent change in circumstances, which invalidated the parties' alimony waiver, and accordingly reverses the trial court's order denying alimony for consideration of such an award.