NICOLE PICKET, ETC. VS, MOORE'S LOUNGE, ET AL. (L-5298-15, HUDSON COUNTY AND STATEWIDE) (A-2330-17T2)

NICOLE PICKET, ETC. VS, MOORE'S LOUNGE, ET AL. (L-5298-15, HUDSON COUNTY AND STATEWIDE) (A-2330-17T2)

In this insurance coverage case, the court interprets a policy provision that excludes damage claims "arising out of any act of 'assault' or 'battery' committed by any person," including claims "arising out of . . . any act or omission in connection with the prevention or suppression of such 'assault' or 'battery.'" The court concludes that the exclusion barred an insured tavern's demand for a defense and indemnification arising out of one patron's fatal shooting of another. Specifically, the exclusion encompassed claims by the estate of the deceased patron that the tavern negligently hired, trained, and retained staff, and negligently failed to maintain a place free of reasonably foreseeable criminal activity. Those claims related to acts or omissions in connection with preventing the assault or battery of the victim. In reaching its conclusion, the court distinguished L.C.S., Inc. v. Lexington Insurance Co., 371 N.J. Super. 482 (App. Div. 2004).

Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark

 Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark (083197)(Essex County & Statewide) (A-15-19; 083197)

The Ordinance is sustained subject to the Court’s further modifications to comply with current legislative enactments. The Court concludes that state law permits the creation by ordinance of this civilian board with its overall beneficial oversight purpose. The Court holds that this review board can investigate citizen complaints alleging police misconduct, and those investigations may result in recommendations to the Public Safety Director for the pursuit of discipline against a police officer. In addition, the review board may conduct its oversight function by reviewing the overall operation of the police force, including the performance of its IA function in its totality or its pattern of conduct, and provide the called-for periodic reports to the officials and entities as prescribed by municipal ordinance. However, to the extent some investigatory powers that the City wishes to confer on its oversight board conflict with existing state law, the Court modifies the Appellate Division’s judgment. The board cannot exercise its investigatory powers when a concurrent investigation is conducted by the Newark Police Department’s IA unit. An investigation by the IA unit is a function carefully regulated by law, and such an investigation must operate under the statutory supervision of the police chief and comply with procedures established by Newark’s Public Safety Director and the mandatory guidelines established by the Attorney General. Concurrent investigations would interfere with the police chief’s statutory responsibility over the IA function, and the review board’s separate investigatory proceedings would be in conflict with specific requirements imposed on IA investigations and their results. The Court also invalidates the conferral of subpoena power on this review board.

Amy Skuse v. Pfizer, Inc. (A-86-18;

 Amy Skuse v. Pfizer, Inc. (082509)(Mercer County & Statewide) (A-86-18; 082509)

Pfizer’s Agreement and related communications informed Skuse that if she remained a Pfizer employee more than sixty days from her receipt of that Agreement, she was deemed to assent to it. Those communications clearly and unmistakably explained the rights that Skuse would waive by agreeing to arbitration, thus complying with waiver-of-rights case law, and Pfizer’s delivery of the Agreement by e-mail did not warrant its invalidation. Pfizer’s use of the word “acknowledge” was appropriate in the circumstances of this case, given the terms of Pfizer’s arbitration policy and other expressions of assent that immediately preceded that request. Pfizer should not have labeled its communication explaining its arbitration agreement a “training module” or training “activity,” but that is not a basis to invalidate the Agreement. The Agreement was valid and binding, and the Court concurs with the trial court’s decision to enforce it.

In the Matter of Ridgefield Park Board of Education (A-2-19

In the Matter of Ridgefield Park Board of Education (083091) (Statewide) (A-2-19; 083091)

The health insurance premium contribution rates paid by the Association’s members were preempted by statute and therefore non-negotiable. PERC’s construction of Chapter 78 comports with the statute’s language and the Legislature’s stated objective to achieve a long-term solution to a fiscal crisis.

SYNCHRONY BANK v. APRIL DANIELS (DC-004705-16)

 SYNCHRONY BANK v. APRIL DANIELS (DC-004705-16)

A levy was placed on a bank account belonging to defendant judgment-debtor. Defendant objected to the levy on the grounds that the only money in the account was from the part of defendant’s wages that were exempt from a wage garnishment. The question presented is whether a levy can be made on money deposited in a bank account from wages that were previously subject to garnishment. Based on the applicable statutes, the court found that previously garnished wages deposited in a bank account does not exempt the money from levy.

STATE OF NEW JERSEY, by the COMMISSIONER OF TRANSPORTATION VS. ST. MARY'S CHURCH, ET AL. (L-3076-10, CAMDEN COUNTY AND STATEWIDE) (A-4452-18T3)

 STATE OF NEW JERSEY, by the COMMISSIONER OF TRANSPORTATION VS. ST. MARY'S CHURCH, ET AL. (L-3076-10, CAMDEN COUNTY AND STATEWIDE) (A-4452-18T3)

The court considers whether interest on a jury award of compensation for the condemnation of property by the Commissioner, Department of Transportation (Commissioner), is subject to the fixed six percent per annum interest rate established in N.J.S.A. 27:7-22. The court held that N.J.S.A. 27:7-22, which applies only when property is condemned by the Commissioner, was impliedly repealed by the subsequently enacted N.J.S.A. 20:3-50. That provision of the Eminent Domain Act of 1971 established uniform standards for the condemnation of property by all State entities. Because of the implied repeal of N.J.S.A. 27:7-22, interest on an award of compensation for the condemnation of property by the Commissioner must be determined in accordance with N.J.S.A. 20:3-32. That statute vests in the trial court broad discretion to establish an interest rate based on evidentiary submissions. This discretion includes the authority to determine when the rate of interest should be simple or compound.

CAROLYN REPKO VS. OUR LADY OF LOURDES MEDICAL CENTER, INC. (L-3559-18, CAMDEN COUNTY AND STATEWIDE)(A-2181-19T1)

 CAROLYN REPKO VS. OUR LADY OF LOURDES MEDICAL CENTER, INC. (L-3559-18, CAMDEN COUNTY AND STATEWIDE)(A-2181-19T1)

The court considers, on leave granted, the denial of defendant Our Lady of Lourdes Medical Center, Inc.'s motion to dismiss the complaint filed in the name of plaintiff Carolyn Repko ten months after her death and granting the motion of her estate to amend the complaint to substitute itself as plaintiff after the running of the statute of limitations. Because a complaint by a dead person is a nullity, leaving nothing for an amended complaint to "relate back" to under Rule 4:9-3, the court reverses the denial of Lourdes' motion and remands for entry of an order dismissing the complaint with prejudice

New Jersey Republican State Committee v. Philip D. Murphy (084731)(Mercer County and Statewide) (A-82-19; 084731)

 New Jersey Republican State Committee v. Philip D. Murphy (084731)(Mercer County and Statewide) (A-82-19; 084731)

Subject to the limits imposed here by the Court, the Bond Act does not violate the Constitution

IN THE MATTER OF THE GUARDIANSHIP OF SALLY DINOIA (A-5276-17T3)

 IN THE MATTER OF THE GUARDIANSHIP OF SALLY DINOIA (A-5276-17T3)

In this appeal, the court affirmed the trial court's granting of counsel fees to a former court-appointed attorney in this guardianship action involving Sally DiNoia. The counsel fee application was opposed by Sussex County counsel. The amount awarded was $43,397.20. The County of Sussex, Division of Social Services, Adult Protective Services (APS) appealed the order

Appellant filed a verified complaint seeking to declare Sally DiNoia incapacitated and for the appointment of a guardian over her person and property under the Adult Protective Services Act (the Act), N.J.S.A. 52:27D-406 to -425. The matter was highly contentious and Sally's son, John DiNoia, was enjoined from interfering with her care and treatment. An order was entered adjudging Sally an incapacitated person and appointing her daughter as guardian.

Rule4:86-2(b).

Applying a deferential standard of review, the court held that the trial court was authorized to compel APS payment of fees for a court-appointed attorney. The court held, as a matter of law, that the trial court was authorized under Rule 4:86-4(e) and the Act to require APS to pay the fees of the court-appointed attorney for Sally. Further, the court found that whether the trial court erred in requiring APS to pay fees was subject to review under an abuse of discretion standard. Therefore, the court affirmed the decision of the trial court.

CARLTON HOCUTT III VS. MINDA SUPPLY COMPANY (L-6537-17, BERGEN COUNTY AND STATEWIDE) (A-4711-18T1)

 CARLTON HOCUTT III VS. MINDA SUPPLY COMPANY (L-6537-17, BERGEN COUNTY AND STATEWIDE) (A-4711-18T1)

The New Jersey Workers Compensation Act (WCA), N.J.S.A. 34:15-1 to -146, generally prohibits employees from suing their employers for injuries sustained in workplace accidents. This case probes the boundaries of the "intentional wrong" exception to that general rule.

Plaintiff suffered serious injury while riding as a passenger on a forklift in defendant's warehouse. It was a common practice at the warehouse for workers to ride on the forklift while another worker drove the forklift. This practice violates workplace safety regulations promulgated by the U.S. Department of Labor Occupational Safety and Health Administration (OSHA).

Kelly v. Geriatric & Medical Services, Inc., 287 N.J. Super. 567, 571–72 (App. Div. 1996), and determined that plaintiff was a "special employee" of defendant and thus subject to the exclusive remedy of workers compensation.

The court turned next to plaintiff's contention that he is not barred from suing defendant because the company's practice of allowing, if not encouraging, workers to stand on moving forklifts was an intentional wrong, thereby exempting this case from the exclusive remedy of workers' compensation. Plaintiff argued defendant's misconduct constitutes intentional wrong because it occurred repeatedly. The court rejected the argument that violative conduct is an intentional wrong merely because it is an ongoing practice. The court interpreted  Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985) as narrowing the circumstances when the intentional wrong exemption applies in recognition that reckless or negligent conduct often reflects a "deliberate" business decision by employers to promote speed and efficiency at the expense of workplace safety. The court concluded the intentional wrong exception would significantly erode the legislative preference for the workers' compensation remedy if all a plaintiff must show is that the negligent or reckless conduct was committed repeatedly.

The court surveyed a series of Supreme Court cases that applied the  Millison analytical framework and concluded that defendant's violative conduct was not sufficiently egregious to rise to the level of an intentional wrong. The court noted the cases following  Millison that found intentional wrong involved violative conduct that was not just committed on multiple occasions but was repeated in the face of efforts by government regulators or others to put a stop to the practice. An employer's wrongful conduct is especially egregious when deception is used to conceal the repetition

In this case, there were no prior forklift-related accidents or injuries, no prior OSHA citations pertaining to forklift operations, and no prior complaints from workers about unsafe forklift practices. Nor did defendant attempt to conceal its violative practice or otherwise deceive safety investigators. The court thus concluded that plaintiff failed to show his injury was substantially

certain to occur and that the circumstances of its infliction were more than a fact of life of industrial employment.

BRANDI CARL, ET AL. VS. JOHNSON & JOHNSON JOHNSON CONSUMER COMPANIES, INC., ET AL (L-6546-14 AND L-6540-14, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0387-16T1/A-0978-16T1)

 BRANDI CARL, ET AL. VS. JOHNSON & JOHNSON JOHNSON CONSUMER COMPANIES, INC., ET AL (L-6546-14 AND L-6540-14, ATLANTIC COUNTY AND STATEWIDE) (CONSOLIDATED) (A-0387-16T1/A-0978-16T1)

Post Accutane, the court reversed summary judgment granted to defendants regarding plaintiffs' claims that their use of Johnson & Johnson baby powder had a causal connection to their development of ovarian cancer. In re: Accutane, 234 N.J. 340 (2018). The cases were the first two selected to be tried in the talc-based baby powder multi-county litigation.

Applying the analytical structure found in the Federal Judicial Center's Reference Manual on Scientific Evidence (Third Ed. 2011), the court concluded, after detailed consideration of the experts’ lengthy N.J.R.E. 104 hearing testimony and reports, that their methodology was generally recognized in the field and the data upon which they relied was generally accepted for that use in the field. See Accutane, 234 N.J. at 352-53, 390. The experts hypothesized a connection between the migration of talc and inflammation to explain the development of ovarian cancers like plaintiffs’. The trial judge's suppression of their opinions was an abuse of discretion, as he failed to limit his decision to whether their methodology and data were generally accepted and relied upon in the relevant scientific field and instead rejected the merits of the opinions themselves, finding them less credible than those of defendants’ experts

EILEEN McNELLIS-WALLACE, ET AL. VS. JOSEPH HOFFMAN, JR., ESQUIRE, ET AL. (L-1429-18, GLOUCESTER COUNTY AND STATEWIDE) (A-1488-19T1)

EILEEN McNELLIS-WALLACE, ET AL. VS. JOSEPH HOFFMAN, JR., ESQUIRE, ET AL. (L-1429-18, GLOUCESTER COUNTY AND STATEWIDE) (A-1488-19T1)

Applying the three-step sequential analysis of Beauchamp v. Amedio, 164 N.J. 111, 118 (2000), in this legal malpractice action to ascertain the last possible date a motion to permit a late tort claim notice could have been filed to preserve plaintiff's medical malpractice claim, we reverse, on leave granted, the denial of third-party defendant attorney's motion to dismiss his predecessor's contribution claim. Because the Beauchamp analysis makes clear that plaintiff's claim was irretrievably lost by the first lawyer who represented her, a year before the second lawyer entered his appearance, the first lawyer could have no claim for contribution against his successor. Accordingly, the second lawyer's motion to dismiss the third-party complaint for contribution and indemnification should have been granted as a matter of law.

NINA SEIGELSTEIN VS. SHREWSBURY MOTORS, INC., ET AL. (L-4072-15, MONMOUTH COUNTY AND STATEWIDE) (A-3801-18T2)

NINA SEIGELSTEIN VS. SHREWSBURY MOTORS, INC., ET AL. (L-4072-15, MONMOUTH COUNTY AND STATEWIDE) (A-3801-18T2) In this appeal of an award of counsel fees in a class action consumer fraud lawsuit that resulted in a settlement, the court held that the trial court mistakenly exercised its discretion when it relied on personal experience in private practice as well as unpublished decisions to reduce the hourly rates for the participating attorneys. In support of the fee application, class counsel submitted certifications by the lead attorneys, both highly experienced in class action consumer protection litigation, attesting that the hourly rates were consistent with their standard hourly rates and had been previously approved in several New Jersey state and federal cases. The claimed rates were further bolstered by supporting certifications from three experienced unaffiliated practitioners, certifying that the hourly rates billed were reasonable and consistent with rates charged in the community by lawyers of comparable experience. The court concluded that class counsel's submissions, which were not contested by defense counsel but were rejected by the trial court, mirrored the methodology deemed acceptable in Rendine v. Pantzer, 141 N.J. 292 (1995), governing the award of attorney's fees under a fee-shifting statute.

D.C. AND M.L. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, ET AL. (DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES) (A-5749-17T1)

D.C. AND M.L. VS. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES, ET AL. (DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES) (A-5749-17T1)

Appellants' Medicaid benefits under the New Jersey FamilyCare Aged, Blind, and Disabled (ABD) Program were terminated by the Department of Human Services, Division of Medical Assistance and Health Services (the Division). Prior to termination, appellants applied for benefits under another Medicaid Program, the Specified Low-Income Medicare Beneficiaries (SLMB) Program, but the Division rejected their application. Although appellants qualified for the SLMB Program, they were advised their application could not be processed until the ABD Program benefits were terminated. Because State Medicaid agencies are required under federal regulations to assess beneficiaries' eligibility for other Medicaid programs before terminating benefits, the court held that the Division was required to conduct an ex parte pre-termination review, and, based on appellants' undisputed eligibility, transition them from the ABD Program to the SLMB Program with no gap in coverage. As a result, the court reversed the Division's final agency decision and remanded for further proceedings.

Sun Chemical Corporation v. Fike Corporation (082815)(Statewide) (A-89-18;

Sun Chemical Corporation v. Fike Corporation (082815)(Statewide) (A-89-18; 082815)

The Court answers the certified question in the affirmative. A CFA claim alleging express misrepresentations -- deceptive, fraudulent, misleading, and other unconscionable commercial practices -- may be brought in the same action as a PLA claim premised upon product manufacturing, warning, or design defects. It is the nature of the claims brought, not the nature of the damages sought, that is dispositive of whether the PLA precludes the separate causes of action. In other words, the PLA will not bar a CFA claim alleging express or affirmative misrepresentations.