Daily Decision Service Alert: Vol. 21, No. 190 - September 28, 2012

 

04-2-7802 Wismer v. Weinman, D.C., App. Div. (per curiam) (28 pp.) This appeal concerns an attorney fee award to a chiropractor for fees incurred in a coverage action against his professional malpractice insurer following the carrier's declination of coverage and rescission of the policy. While conceding it is required to reimburse the chiropractor for the attorney's fees incurred to defend the negligence action, the insurer argues the award of attorney's fees for fees incurred during an arbitration proceeding regarding the coverage dispute is barred by the disposition of the coverage arbitration award. The appellate panel holds the issue of an allowance of attorney's fees incurred in the coverage dispute was not within the scope of the issue referred to the arbitrator or submitted to the arbitrator for resolution. Also, the motion judge had the authority to award fees incurred in the coverage action following an arbitration award finding that the insured denied coverage wrongfully without any legal and factual grounds. The panel remands, however, for findings of fact and application of the governing standards regarding fee awards due to the absence of a detailed explanation of the basis for the fee award. Further, a fee enhancement is not appropriate under the circumstances of this case.

 

17-2-7803 State Farm Fire And Casualty Company v. Shea, App. Div. (per curiam) (21 pp.) At issue in this appeal is the liability of a residential property owner to remediate contamination, which migrated to an adjacent property, caused by an abandoned underground storage tank on his property. The property owner contends he cannot be considered a responsible party as a matter of law and the trial judge improperly imposed liability on him for preexisting damage to the neighboring property. Shea contends that the judge incorrectly imposed an affirmative duty on him to conduct a pre-purchase environmental investigation, and that the judge never addressed whether the contamination occurred during his ownership of the property. The issue is not whether every buyer of a home must conduct an environmental assessment prior to purchase but whether, having observed a pipe protruding from the ground, Shea had a duty, at a minimum, to inquire. Also, there is substantial credible evidence in the record to permit the fact-finder to find that fuel oil escaped the tank, entered the soil and migrated while Shea owned the property. The appellate panel affirms, finding the judge properly applied the law to the facts as found at trial and not contested on appeal, and properly allocated contribution according to the responsibility of each party.

20-2-7804 J.S. v. D.G, App. Div. (per curiam) (10 pp.) Defendant appeals from a final restraining order (FRO) entered against him in favor of his girlfriend based on a finding of the predicate offense of harassment under the Prevention of Domestic Violence Act of l99l. He asserts a due process violation by the court in entering the FRO based on acts that were not alleged in the complaint, and challenges the record as insufficient to support the offense and to warrant issuance of restraints under the Act. The appellate panel agrees and reverses, finding the type of conduct testified to at trial is not of sufficient magnitude to constitute acts of domestic violence but, rather, falls more into the category of "domestic contretemps," which does not warrant issuance of a restraining order under the Act.

 

23-2-7805 Beadling v. Rode's Fireside Restaurant And Tavern, App. Div. (per curiam) (14 pp.) Nicole Beadling worked as a bartender for Rode's Fireside Restaurant and Tavern, David Rode, Joyce Rode, Emily Rode, and Earl C. Rode, Jr., Inc. (the Rode defendants). In November 2008, after reporting for work, she became physically impaired (apparently from intoxication), left work early, drove her vehicle, and sustained fatal injuries in an automobile accident. Beadling's Estate sued the Rode defendants, asserting claims for negligence, Dram Shop Act violations, wrongful death, and survivorship. In this declaratory judgment lawsuit, Harleysville Insurance Company of New Jersey appeals from three orders (1) compelling Harleysville, the general liability carrier, to defend and indemnify the Rode defendants in the underlying lawsuit; (2) declaring that New Jersey Manufacturers Insurance Group (NJM), the workers' compensation carrier, had no obligation to defend or indemnify the Rode defendants; and (3) denying Harleysville's request that NJM reimburse Harleysville's defense costs and fees. The appellate panel affirms the three orders, finding NJM had no obligation in this case where the complaint did not allege that the injuries arose out of and in the course of Beadling’s employment. Moreover, the fundamental claim is not against the Rode defendants based on Beadling’s status as an employee, which would be barred under the Workers’ Compensation Act.

 

25-2-7806 Harris v. Ramapo College Of New Jersey, App. Div. (per curiam) (18 pp.) Sixty-eight-year-old plaintiff Pinese Harris ended her employment at defendant Ramapo College of New Jersey after twenty eight years. She then sued the College under the Law Against Discrimination (LAD), among other legal theories, claiming age discrimination and a hostile work environment. The court granted summary judgment in favor of the College. Harris appeals, arguing that the judge erred when he did not draw all reasonable inferences from the record in favor of Harris, resolved issues of disputed material facts, made determinations of credibility and intent which are instead appropriate for a jury, and failed to account for the sensitive context of employment discrimination. The appellate panel disagrees with Harris’s contentions and concludes that summary judgment was properly granted. There was no adverse employment action, thus Harris was unable to establish a prima facie discrimination claim under the LAD. The test for hostile work environment under the LAD is objective - the focus is not on Harris's actual, subjective reaction, nor on the College's intent, but on whether a reasonable person in Harris's position would consider the work environment hostile. The panel finds Harris failed to satisfy the burden, even under summary judgment standards, that she was exposed to a hostile work environment.

 

25-2-7807 Wescott v. Board Of Review, App. Div. (per curiam) (6 pp.) Wescott appeals from a final decision by the Board of Review, Department of Labor and Workforce Development, upholding an Appeal Tribunal's determination that his claim for unemployment benefits is invalid. The Appeal Tribunal concluded that Wescott was ineligible for benefits because he lacked sufficient base year weeks or base year wages. The appellate affirms the Board's affirmance of the Appeal Tribunal's decision, which was consistent with the controlling statutes and regulations, was not arbitrary and is supported by substantial credible evidence in the record. The Appeal Tribunal properly considered Wescott's claim. Wescott was unemployed and had no earnings between June 2009 and November 14, 2011, the date of his claim for unemployment benefits. Wescott did not establish twenty base weeks in employment within the normal base year, or either of the two alternative base years.

 

26-2-7808 Chiesa v. D. Lobi Enterprises, Inc., App. Div. (per curiam) (23 pp.) In 1993, in anticipation of a major beach replenishment project along the shoreline, Sea Bright Beach Club (the Club) granted a temporary construction easement to the State of New Jersey to enter its property "to pump, place, transport and spread sand beach fill" on its property. The Club also granted "a continuing easement for the purpose of conducting periodic beach nourishment" and "a perpetual easement for a right of limited public access" limited to pedestrian right of transit and fishing, the latter activity subject to reasonable restrictions by the Club. Following the 2005 decision in Raleigh Avenue Beach Ass'n v. Atlantis Beach Club, Inc., in which the Court held that upland sand beach owned by a private club is required to be made available to the public under the public trust doctrine, the State filed a complaint against nine beach clubs, including the Club, and the Borough of Sea Bright seeking reformation of the 1993 Agreements. In response to cross-motions for summary judgment, the judge found that most of the Club's ocean frontage was ungranted State tidelands but denied summary judgment on the issue of remedy. The judge granted summary judgment concluding the 1993 Agreement was void. Arguing that the State was equitably estopped from seeking reformation of the 1993 agreement, the Club contends the judgment should be reversed. The appellate panel holds the provision granting limited public access to the dry upland beach area controlled by the Club is contrary to public interest and unenforceable. The panel remands for further proceedings to address the appropriate remedy.

 

46-7-7809 Wone v. Querzeque, Dist. Ct. (Hillman, U.S.D.J.) (11 pp.) Plaintiff, incarcerated at the Atlantic County Justice Facility in Mays Landing, New Jersey at the time of filing, brings this civil rights action, pursuant to 42 U.S.C. § 1983, against Defendant Sergeant Querzeque. Plaintiff seeks to bring this action in forma pauperis. Reviewing the complaint, the Court finds Plaintiff’s due process property claim fails as a matter of law because the New Jersey Tort Claims Act (“NJTCA”) provides an adequate post-deprivation judicial remedy to him, providing all the process which is due. In addition, Plaintiff failed to assert a cognizable claim for a violation of his right to adequate medical care. Even if assuming, for purposes of this analysis, that ringworm is a serious medical need, Plaintiff does not satisfy the prong requiring deliberate indifference where he was provided with medication. Plaintiff’s complaint is dismissed in its entirety for failure to state a claim upon which relief may be granted. [Filed September 18, 2012]

46-7-7810 Bacon v. Burns, Dist. Ct. (Simandle, U.S.D.J.) (7 pp.) Defendant Dr. Burns was the treating psychiatrist for Plaintiff at Ancora Psychiatric Hospital. Plaintiff claims, in this 42 U.S.C. § 1983 action, that his due process rights have been being violated by involuntary injections of medication(s) prescribed to him by Defendant Dr. Burns. Plaintiff maintains Dr. Burns did not follow the proper three step procedure required by New Jersey Administrative Bulletin 5:04 and Rennie v. Klein. The Court previously denied Defendant Burns' motion for summary judgment. Reviewing the supplemental submission, the Court finds genuine issues of material fact remain regarding whether Dr. Burns substantially complied with N.J.A.B. 5:04. Defendant Burns’ supplemental motion for summary judgment is denied. [Filed September 18, 2012]

 

24-7-7811 Shaffer v. Gallubi, Dist. Ct. (Hillman, U.S.D.J.) (6 pp.) Before the Court is the motion of defendant to dismiss the complaint filed against him by plaintiff for lack of subject matter jurisdiction. Plaintiff claims that defendant has failed to pay on an agreement in which defendant agreed to make child support payments to plaintiff on behalf of plaintiff’s ex-husband in the event that plaintiff’s ex-husband failed to make those payments himself. Plaintiff claims that jurisdiction exists because there is complete diversity of citizenship between the parties – plaintiff is a citizen of New Jersey and defendant is a citizen of Pennsylvania - and the amount in controversy exceeds $75,000. Defendant contends that diversity of citizenship does not exist because he is citizen of New Jersey, not Pennsylvania. Defendant’s motion to dismiss plaintiff’s complaint for lack of subject matter jurisdiction and plaintiff’s cross-motion for jurisdictional discovery are both denied without prejudice. The Court orders Defendant to file a certification attesting to his state of citizenship to aid in resolving the jurisdictional issue. [Filed September 19, 2012]

25-7-7812 Mazzoccoli v. Merit Mountainside LLC, Dist. Ct. (Linares, U.S.D.J.) (15 pp.) Dr. Mazzoccoli filed an Amended Complaint against Defendants Merit Mountainside LLC d/b/a Mountainside Hospital, Dr. Soroko, Dr. Brenner, and AHS Hospital Corp./Mountainside Hospital Campus. The claims arise out of incidents involving Dr. Mazzoccoli’s privileges at the hospital. Count One alleges that Defendants, by “engaging in fraudulent, unlawful peer reviews; by engaging in anti-competitive acts; by conspiring to slander his personal and professional reputation; and by seeking to deprive him of his good name and livelihood,” conspired to deprive Plaintiff of his civil rights. Having failed to allege membership in a group that has been subjected to “historically pervasive discrimination” orfacts suggesting that Defendants were motivated by class-based invidious discriminatory animus, Plaintiff has failed to state a viable section 1985(3) claim. Count Two alleges unreasonable restraint of trade, in violation of section 1 of the Sherman Act, and alleges that “defendants acted in concert to deprive [plaintiff] of his ability to practice his trade and thus eliminate him as a competitor.” Such allegations, without more, are insufficient to state a section 1 claim that is plausible on its face. The Court declines to exercise supplemental jurisdiction over the remaining state law claims and the Declaratory Judgment Act claim. Plaintiff’s complaint is dismissed without prejudice. [Filed September 17, 2012]

 

14-7-7813 United States of America v. Scarfo, Dist. Ct. (Kugler, U.S.D.J.) (30 pp.) Before the Court are motions submitted by multiple defendants seeking severance of various counts and parties in this case arising out of an indictment charging thirteen defendants in twenty-five counts of criminal activity. The indictment includes eight conspiracy allegations. While only one defendant, Scarfo, is named in all twenty-five counts, all defendants now seeking severance are charged in the RICO conspiracy. The Government alleges that while Defendants, led by Scarfo and co-defendant Pelullo, formed a criminal enterprise to achieve an array of illegal ends, all of the various acts are united by a common theme: specifically, a conspiracy to “take over, loot, and/or conceal the looting of a publicly-held financial services company located in Texas [called] FirstPlus Financial Group. Therefore, the Government concludes, a joint trial of all defendants on all counts charged in the indictment is both appropriate and warranted. Defendants’ severance motions assert that a single trial will be unmanageable from a logistical and managerial standpoint and will unduly strain the Court’s resources, and the evidence that the Government plans to introduce at trial will create so-called “spillover prejudice” which will compromise the moving defendants’ right to a fair trial. Rejecting Defendants’ arguments, the Court denies the motions without prejudice. [Filed September 19, 2012]