MEDFORD TOWNSHIP SCHOOL DISTRICT VS. SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC. (L-0787-18, BURLINGTON COUNTY AND STATEWIDE) (A-5798-17T4)

MEDFORD TOWNSHIP SCHOOL DISTRICT VS. SCHNEIDER ELECTRIC BUILDINGS AMERICAS, INC. (L-0787-18, BURLINGTON COUNTY AND STATEWIDE) (A-5798-17T4)

At issue in this appeal is an arbitration clause of a contract for work performed by a general contractor to implement an energy services program for a school district. The arbitration clause provided disputes "may be settled by binding arbitration." In that respect, it conflicted with a request for proposals for the contract and another prior agreement between the parties for the same project, both of which mandated litigation of disputes in a judicial forum.

The court concludes the terms of the arbitration clause, when read in pari materia with the mandatory governing law provisions of the prior documents between the parties are permissive and not mandatory. Accordingly, the court affirms the Law Division order enjoining and dismissing the arbitration proceedings filed by defendant.

GONZALO CHIRINO V. PROUD 2 HAUL, INC., (A-0703-15T2)

GONZALO CHIRINO V. PROUD 2 HAUL, INC., (A-0703-15T2)

The panel publishes this opinion at the Supreme Court's request. Trucking companies registered with the Federal Motor Carrier Safety Administration, subject to the Truth in Leasing regulations, 49 C.F.R. pt. 376, in conjunction with the Motor Carrier Act, 49 U.S.C. §§ 13901, 13902, 14102, and 14704, are required to have lease agreements in place with independent drivers enumerating all deductions taken from their pay. The Truth in Leasing requirements apply even if the trucking company retains a third party to manage payments to drivers and to manage delivery paperwork. The trucking company's purpose in contracting the functions to a third party was to avoid the perception it was the drivers' employer, and to maintain the drivers' status as independent contractors. The trucking company alone, however, scheduled deliveries. That the trucks were "leased," to the third party was inconsequential so long as the trucking company retained exclusive control over the shipping schedule.

The majority further found that defendant's failure to raise a new fact-sensitive argument to the trial judge, based on records not available to the trial court, precluded the issue from being considered on appeal. Judge Accurso dissented on that point.

ADRIAN SOSA VS. MASSACHUSETTS BAY INSURANCE COMPANY (L-0160-16, BERGEN COUNTY AND STATEWIDE) (A-5349-16T3)

ADRIAN SOSA VS. MASSACHUSETTS BAY INSURANCE COMPANY (L-0160-16, BERGEN COUNTY AND STATEWIDE) (A-5349-16T3)

In this insurance coverage dispute, the court interprets a homeowner's insurance policy's water-damage exclusion. The court holds that damage caused by a water-main break under a public street, which released water that flowed down a driveway into plaintiff's first-floor apartment, was not excluded as a loss caused by "flood," "surface water," or "water below the surface of the ground." Therefore, the court reverses the trial court's order granting summary judgment dismissal of the homeowner's complaint for coverage, and remands for further proceedings.

JOHN E. SUSKO, ET AL. VS. BOROUGH OF BELMAR, ET AL. (L-1427-15, MONMOUTH COUNTY AND STATEWIDE) (A-3059-16T2)

JOHN E. SUSKO, ET AL. VS. BOROUGH OF BELMAR, ET AL. (L-1427-15, MONMOUTH COUNTY AND STATEWIDE) (A-3059-16T2)

The Appellate Division held that when a municipality violates the beach fee statute, N.J.S.A. 40:61-22.20, by charging unreasonable beach fees, that violation constitutes the deprivation of a substantive civil right under the New Jersey Civil Rights Act (CRA), and a successful plaintiff is entitled to counsel fees. However, because the CRA requires the violation of an unambiguous, specific statutory or constitutional provision, most of the conduct plaintiffs proved in this case, while wrongful, did not establish CRA violations or entitle them to counsel fees.

IN THE MATTER OF THE CIVIL OF COMMITMENT OF C.M. IN THE MATTER OF THE CIVIL COMMITMENT OF M.H. IN THE MATTER OF THE CIVIL COMMITMENT OF C.R.(CASC-561-18, CASC-426-18, AND SACC-168-18, CAMDEN COUNTY, SALEM COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) (A-4684-17T2/

IN THE MATTER OF THE CIVIL OF COMMITMENT OF C.M. IN THE MATTER OF THE CIVIL COMMITMENT OF M.H. IN THE MATTER OF THE CIVIL COMMITMENT OF C.R.(CASC-561-18, CASC-426-18, AND SACC-168-18, CAMDEN COUNTY, SALEM COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED) (A-4684-17T2/A-4699-17T2/A-0015-18T2)

In these three similar matters, appellants were involuntarily held for longer than the law permits prior to entry of a temporary commitment order. By the time their motions to vacate could be heard, they were discharged from confinement; the trial judge thus denied the motions on mootness grounds. In these appeals, which were consolidated, the court held that, even if appellants' motions were technically moot because they had been released, they were entitled to a ruling on the merits because of the significant liberty interests at stake and because such occurrences were capable of repetition yet likely to evade review.

EDWARD CORREA AND NEW JERSEY DEMOCRATIC STATE COMMITTEE (A-4883-17T4)

EDWARD CORREA AND NEW JERSEY DEMOCRATIC STATE COMMITTEE (A-4883-17T4)

The court holds that where N.J.S.A. 19:23-22.4 requires that sample primary ballots be printed in Spanish and English, the official primary ballots, including mail-in ballots, must also be printed in Spanish and English.

ACE AMERICAN INSURANCE COMPANY VS. AMERICAN MEDICAL PLUMBING, INC. (L-0299-17, UNION COUNTY AND STATEWIDE) (A-5395-16T4)

ACE AMERICAN INSURANCE COMPANY VS. AMERICAN MEDICAL PLUMBING, INC. (L-0299-17, UNION COUNTY AND STATEWIDE) (A-5395-16T4)

Affirming the grant of summary judgment dismissing the plaintiff-insurer's subrogation action, the court broadly interprets the waiver-of-subrogation provisions of a widely used American Institute of Architects (AIA) form construction contract. The court relies on the contract's plain language, the majority view of other states' courts, and the evident goal to transfer the risk of construction-related losses to insurers and preclude lawsuits among contracting parties. In particular, the court rejects the insurer's argument that the subrogation waiver was limited to damages to the "Work" incurred during construction. Rather, the subrogation waiver extended to claims related to damages to property outside the Work, incurred after completion, because the insurance the owner obtained to comply with the contract also provided coverage for those damages.

COREY DICKSON VS. COMMUNITY BUS LINES, INC., ET AL. (L-0633-16, PASSAIC COUNTY AND STATEWIDE) (A-3857-17T3)

COREY DICKSON VS. COMMUNITY BUS LINES, INC., ET AL. (L-0633-16, PASSAIC COUNTY AND STATEWIDE) (A-3857-17T3)

In this case, the court holds that a perceived disability claim based on obesity under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49, must be grounded upon direct or circumstantial evidence that defendants perceived the plaintiff to be disabled due to a medical condition that caused him or her to be overweight. Such proof is absent from this record and, accordingly, the court determined that summary judgment was correctly granted.

LIBERTY MUTUAL INSURANCE, ETC. VS. JOSE R. RODRIGUEZ (L-2564-17, MIDDLESEX COUNTY AND STATEWIDE) (A-0112-17T4)

LIBERTY MUTUAL INSURANCE, ETC. VS. JOSE R. RODRIGUEZ (L-2564-17, MIDDLESEX COUNTY AND STATEWIDE) (A-0112-17T4)

In this appeal, the court held that reimbursement of a section 40 workers' compensation lien following a recovery in a third-party action should be based on the fee ratio calculated for the overall settlement and not the sliding contingent fee scale set forth in Rule 1:21-7. Our Supreme Court's holding in Caputo v. Best Foods, Inc., 17 N.J. 259 (1955) is still controlling law.

ROSANNA PRUENT-STEVENS VS. TOMS RIVER TWP. (TAX COURT OF NEW JERSEY) (A-1264-17T2)

ROSANNA PRUENT-STEVENS VS. TOMS RIVER TWP. (TAX COURT OF NEW JERSEY) (A-1264-17T2)

N.J.S.A. 54:4-3.30(b) provides that the surviving spouse of a military veteran who meets the statutory requirements for a property tax exemption is also entitled to the exemption which "shall continue during the surviving spouse's widowhood or widowerhood."

Plaintiff was married to a veteran who met all the statutory requirements except that he was not "declared to have suffered a service-connected disability." Although the veteran passed away in 1989, the United States Veteran's Administration declared in 2014 that he suffered from a service-related disability as a result of his exposure to Agent Orange, thus qualifying him for an exemption. As a result, plaintiff filed for a surviving spouse exemption.

Because plaintiff had remarried in 1993, the court determined plaintiff did not qualify for the exemption. The court interpreted the property-tax-exemption statutory scheme and concluded the Legislature intended the right to an exemption for a veteran's surviving spouse continued only during her widowhood from the veteran. The right to the exemption was extinguished upon her remarriage notwithstanding that she, at the time of her application for the exemption, was again widowed after the passing of her second husband in 1997. Recognizing that statutes granting property tax exemptions are subject to strict construction, the court held: "It is not our intent to deny a tax exemption to the widow of a disabled combat-veteran. But it is not our role to amend statutes to ordain what we may deem laudable."

PARK CREST CLEANERS, LLC, ET AL. VS. A PLUS CLEANERS AND ALTERATIONS CORP., ET AL. (C-000078-14,

PARK CREST CLEANERS, LLC, ET AL. VS. A PLUS CLEANERS AND ALTERATIONS CORP., ET AL. (C-000078-14, CAMDEN COUNTY AND STATEWIDE)(A-1867-17T4)

Defendants failed to perfect a prior appeal, which the court dismissed on its own motion, leaving for disposition only issues raised by a non-party in a cross-appeal, to which only plaintiffs responded. The cross-appeal was decided on its merits, with the court remanding only for entry of an amended judgment in the cross-appellant's favor.

After entry of the amended judgment, defendants filed an appeal. The court dismissed the appeal because the arguments posed by defendants in the new appeal – arguments that challenged evidence rulings made during a trial that occurred more than two years earlier, as well as the trial judge's disposition of pretrial and post-trial motions – could have been pursued and decided in defendants' prior, abandoned appeal.

JUSTIN WILD VS. CARRIAGE FUNERAL HOLDINGS, INC., ET AL. (L-0687-17, BERGEN COUNTY AND STATEWIDE) (A-3072

JUSTIN WILD VS. CARRIAGE FUNERAL HOLDINGS, INC., ET AL. (L-0687-17, BERGEN COUNTY AND STATEWIDE) (A-3072-17T3)

Plaintiff appeals the dismissal, pursuant to Rule 4:6-2, of his complaint, which alleged defendant terminated his employment as a funeral director because, as a cancer sufferer, he was prescribed and used medical marijuana in conformity with the Compassionate Use Act, N.J.S.A. 24:6I-1 to -16. Plaintiff claimed his termination violated the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The trial judge dismissed the action, concluding that the Compassionate Use Act does not require employers to accommodate an employee's use of medical marijuana. The court reversed because the Compassionate Use Act only declares that "nothing" in that Act "requires" such an accommodation, N.J.S.A. 24:6I-14; while that language plainly expressed that the Compassionate Use Act had not created such an obligation, it also plainly did not foreclose the existence of such an obligation elsewhere, such as in the Law Against Discrimination, which makes it unlawful for an employer to discriminate because of an employee's disability, N.J.S.A. 10:5-12(a). Moreover, the Compassionate Use Act expressly disavowed in that Act only an obligation to accommodate the use of medical marijuana "in any workplace," N.J.S.A. 24:6I-14, and plaintiff alleged he sought an accommodation for his use "off site" and after hours.

Vincent and Rose Mary Piscitelli v. City of Garfield Zoning Board of Adjustment, et al. (079900) (Bergen County and Statewide) (A-68-17

Vincent and Rose Mary Piscitelli v. City of Garfield Zoning Board of Adjustment, et al. (079900) (Bergen County and Statewide) (A-68-17; 079900)

The Court reverses and remands for further proceedings to decide whether any Zoning Board member had a disqualifying conflict of interest in hearing the application for site plan approval and variances in this case. The trial court must assess two separate bases for a potential conflict of interest. First, did Dr. Kenneth -- as president or a member of the Board of Education -- have the authority to vote on significant matters relating to the employment of Zoning Board members or their immediate family members? Second, did any Zoning Board members or an immediate family member have a meaningful patient-physician relationship with any of the three Conte doctors? If the answer to either of those questions is yes, then a conflict of interest mandated disqualification and the decision of the Zoning Board must be vacated. The Court does not possess sufficient information to answer those questions.

Joshua Haines v. Jacob W. Taft; Tuwona Little v. Jayne Nishimura (079600) (Camden County and Statewide) (A-13/14-1

Joshua Haines v. Jacob W. Taft; Tuwona Little v. Jayne Nishimura (079600) (Camden County and Statewide) (A-13/14-17; 079600)

The Court cannot conclude that there is evidence of a clear intention on the part of the Legislature to deviate from the carefully constructed no-fault first-party PIP system of regulated coverage of contained medical expenses and return to fault-based suits consisting solely of economic damages claims for medical expenses in excess of an elected lesser amount of available PIP coverage. Unless the Legislature makes such an intent clearly known, the Court will not assume that such a change was intended by the Legislature through its amendments to the no-fault system in the Automobile Insurance Cost Reduction Act.

Frank Caraballo v. City of Jersey City Police Department (080467) (Hudson County and Statewide) (A-71-17; 080467)

Frank Caraballo v. City of Jersey City Police Department (080467) (Hudson County and Statewide) (A-71-17; 080467)

Caraballo’s failure to utilize the Act’s administrative remedies to obtain knee replacement surgery precludes his failure-to-accommodate claim under the LAD. In addition, Caraballo’s total knee replacement surgery cannot qualify as a reasonable accommodation under the LAD.