Daily Decision Service Alert: Vol. 21, No. 246 ? December 20, 2012

 

23-2-8516 Aggour v. GEICO, App. Div. (per curiam) (5 pp.) Plaintiff, injured in a five-car collision negligently caused by Jason Olejarz, appeals the order granting defendant's motion for summary judgment in this declaratory judgment action seeking an order declaring the defendant is contractually obligated to provide underinsured motorist (UIM) coverage for her claim for $58,000, the difference between her $100,000 per person UIM limit and the amount she received from the tortfeaser's carrier in settlement of her claim. Because when multiple claimants are injured by a single tortfeasor, a claimant's per accident UIM limit must be compared with the tortfeasor's per accident limit, and because Olejarz's liability coverage was equal to plaintiff's UIM per accident limit, the panel affirms, finding that Olejarz is not an underinsured motorist and plaintiff is not entitled to a UIM claim.

 

23-2-8517 Rodriguez v. Ocean Risk Retention Group, Inc., App. Div. (per curiam) (4 pp.) Defendant Ocean Risk Retention Group, Inc., appeals an order that declared that plaintiff, injured when the cab he was driving for Al's Cab Inc. was struck by an uninsured vehicle, was entitled to uninsured motorist (UM) coverage under a policy issued by defendant to the cab company. Deferring to the trial judge's findings that the company's president was credible in testifying that defendant permitted the addition of drivers by oral request and that he had sought defendant's approval prior to hiring plaintiff, and finding that those findings conclusively establish that plaintiff was entitled to UM benefits under the policy, the panel affirms. 

 

25-2-8518 Chiarello v. Board of Trustees, Public Employees Retirement System, App. Div. (Fisher, P.J.A.D.) (11 pp.) Appellant sought an ordinary disability retirement from one PERS position with the intention to retain an elected office, another PERS position, in reliance on N.J.S.A. 43:15A-47.2, which authorized a multiple PERS member’s retention of an elected office on retirement from another PERS position. The court held, among other things, that appellant was not required to terminate his mayoral position even though N.J.S.A. 43:15A-47.2 was repealed before his retirement application was ruled on. The court reasoned that simple fairness and the principle that favors prospective application of statutes required that appellant’s eligibility to retain his position as mayor should be governed by the laws existing at the time of the application, particularly when appellant applied for a disability retirement four months before the repeal. The court, however, remanded for a determination of whether appellant could be totally and permanently disabled from one position without being similarly disabled from the other. [Approved for publication.]

 

26-2-8519 Montague v. Joint Planning And Zoning Board Of The Borough Of Deal, App. Div. (per curiam) (12 pp.) The Law Division entered a final judgment reversing a determination of the Joint Planning and Zoning Board of the Borough of Deal, which denied an application by plaintiffs for variances required to construct a tennis court on their property. Tennis courts are permitted accessory uses; however, plaintiffs required a variance to locate the tennis court in their front yard. The Board concluded that plaintiffs had not demonstrated that the variances were required due to hardship. The appellate panel affirms the trial court’s finding that the Board's denial of plaintiffs' application was arbitrary, capricious and unreasonable. Plaintiffs presented sufficient evidence to show that variance relief was warranted because of the exceptional topographic conditions, physical features, and environmental constraints of their property. Strict application of the Borough's zoning ordinance would create an exceptional and undue hardship by limiting the extent to which plaintiffs could use the property. Further, there was insufficient evidence before the Board to show that the hardship claimed was self-created. Moreover, the evidence showed that the benefits of deviating from the requirements of the zoning ordinance would substantially outweigh any detriment.

 

07-7-8520 Dewey v. Volkswagen Of America, Dist. Ct. (Shwartz, U.S.M.J.) (44 pp.) This class action concerns allegedly defective pollen filter gasket areas and sunroof drains on various Volkswagen and Audi vehicles. It is before the Court on remand from the Third Circuit for proceedings consistent with that Court’s finding that the class could not be certified under the parties’ prior settlement because the representative plaintiffs were not adequate to represent the interests of the entire class. On remand, the parties reached a new settlement addressing the Third Circuit’s adequacy concern, which allows class members who owned or leased vehicles in a so-called “residual group” to seek reimbursement in the same way as those who were in the so-called “reimbursement group.” Here, the Court grants Plaintiffs’ new motion for: (1) certification of the settlement class; (2) final approval of the class settlement; (3) an award of attorneys’ fees; (4) reimbursement of costs; and (5) an incentive award. The Court further grants the separate motion filed by the Objectors who pursued an appeal to the Third Circuit for: (1) attorneys’ fees; (2) reimbursement of costs; and (3) an incentive award. [Filed December 14, 2012]

 

53-7-8521 Master Cutlery Inc. v. Panther Trading Co., Inc., Dist. Ct. (Hammer, U.S.M.J.) (12 pp.) In this action asserting causes of action for, inter alia, patent and trademark infringement and unfair competition arising out of defendant's alleged manufacture and sale of a product identical to one of plaintiff's products for which it holds a design patent and its infringement of several copyrights and trademarks plaintiff holds for cutlery products, defendant moves to transfer venue to the District of Maryland. Applying the Jumara factors, the court concludes that defendant has not met its burden of showing that the private interest factors favor transfer denies the motion or that it would be more convenient for all parties and witnesses to have the case transferred. It therefore denies defendant's motion. [Filed December 17, 2012]

 

53-7-8522 Sunovian Pharmaceuticals Inc., v. Teva Pharmaceuticals USA, Inc., Dist. Ct. (Cavanaugh, U.S.D.J.) (8 pp.) Defendants (collectively “DRL”) filed a motion for summary judgment in this matter, claiming the then-existing Amended New Drug Application (“ANDA”) did not infringe upon Plaintiff’s Sunovian Pharmaceuticals, Inc.’s patent. The Court denied DRL’s motion for summary judgment of non-infringement without prejudice and permitted DRL to file a renewed motion provided it was accompanied by a certification assuring the Court that DRL would not market a product containing less than 0.3 percent of the levorotatory isomer of eszopiclone (“May 25^th Order”). DRL has submitted a certification stating it will not market an eszopiclone tablet with a levorotatory isomer content below 0.3 percent (“the Certification”). Plaintiff now moves for this Court to reconsider certain portions of the May 25th Order which could be read to suggest that the Certification by DRL providing it will not market generic eszopiclone tablets containing less than 0.3 percent levorotatory isomer would be sufficient to avoid infringement. Plaintiff motion for reconsideration is denied. [Filed December 14, 2012]

25-7-8523 DeJesus v. RBS/ABN Amro, Inc., Dist. Ct. (Hochberg, U.S.D.J.) (5 pp.) Plaintiff brings this suit, pro se, against his former employer (“RBS”). Plaintiff alleges that he was injured in a car accident in June 2009, but that he continued to work until July 2009, contrary to his doctor’s instructions. Plaintiff further contends that an unnamed insurance company denied his disability insurance claim because he continued to work after the injury. Plaintiff contends—and RBS does not dispute—that his employment at RBS was terminated as a result of his refusal to relocate. Plaintiff alleges that he was then offered a severance agreement, which he rejected because “it contained a clause which prevented [him] from receiving [his] workers[’] compensation benefits.” Plaintiff filed seeking his severance pay, workers’ compensation, and reimbursement for the money he had to borrow from his 401(k) plan, as well as reimbursement for the tax consequences of the 401(k) borrowing. Here the Court grants Defendant’s motion to dismiss the complaint on the grounds that it fails to provide Defendant adequate notice of his claims or the grounds on which those claims rest. Plaintiff’s complaint does not allow RBS—or the Court—to identify what statute or right was violated by RBS. [Filed December 17, 2012]

 

04-7-8524 Connor v. Sedgwick Claims Management Services Inc., Dist. Ct. (Hillman, U.S.D.J.) (18 pp.) Plaintiff moves for reconsideration of the court's prior opinion and order awarding plaintiff attorney fees but reducing the overall amount of the award to $29,947.62. Finding that the proper forum was the District's Camden vicinage and that all parts of the underlying complaint and litigation took place in southern New Jersey, the court reaffirms its initial conclusion that plaintiff's counsel should be held to the reasonable hourly rate of an attorney in southern New Jersey ($250) not the higher rate applicable to an attorney in northern New Jersey where his office is located. The court also reconsiders its prior findings regarding the time counsel spent on tasks that could have been delegated to a paralegal or legal assistant, calculates the lodestar, and awards plaintiff $35,891 in attorney fees. [Filed December 18, 2012]

 

14-2-8525 Edwards v. Correctional Medical Services, Dist. Ct. (Shipp, U.S.D.J.) (6 pp) The CMS Defendants filed a motion to dismiss pro se Plaintiff’s complaint for failure to produce an expert medical report. Plaintiff alleges, pursuant to Section 1983 and the New Jersey Civil Rights Act, that the CMS Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment and the New Jersey Constitution. Plaintiff also alleges state law tort claims. Plaintiff alleges that Defendants ignored his reports of severe pain and requests for treatment for a decade before providing him with a specialist for treatment. He also alleges that Defendants' policies required denying access to a specialist until an arbitrary quota of prisoners requested the same treatment. Plaintiff’s allegations are not manifested in specific medical conduct, but focus on the alleged delay in providing access to treatment by a specialist. This type of culpability shifts the proof required outside the realm of the technical expertise and is of the kind that is readily apparent to anyone of average intelligence and ordinary experience. The Court finds expert testimony is not required for Plaintiff to proceed against the CMS Defendants and denies the motion to dismiss. [Filed December 17, 2012]