STATE COURT CASES
 
CONSUMER FRAUD – ATTORNEYS’ FEES
09-1-4999 Walker v. Guiffre, etc., Sup. Ct. (Hoens, J.) (52 pp.) The mechanisms for awarding attorneys’ fees, including contingency enhancements, adopted in Rendine remain in full force and effect as the governing principles for awards made pursuant to New Jersey fee-shifting statutes.
 
CONTRACTS
11-3-5000 Aire Enterprises Inc. v. County of Warren, Law Div. (Warren Cty.) (O’Connor, J.S.C.) (20 pp.) In this action to recover payment allegedly outstanding for work done pursuant in a building owned by defendant, in which plaintiff allegedly paid $9,095 more than 30 days after the billing date and $12,250 is still outstanding, plaintiff asserts claims for violation of the Prompt Payment Act and for breach of contract. Defendant counterclaims, alleging that plaintiff’s installation of carpet tiles was faulty and that it installed carpet of inferior quality. It asserts claims for breach of contract and violation of the Consumer Fraud Act. The court finds that defendant violated the PPA because it failed to give plaintiff a written statement within 20 days of receiving the bill stating that it was not going to honor the bill and the reason why, and failed to make timely payment under the act; there is nothing in the parties’ contract indicating that plaintiff waived its rights under the act. Therefore, defendant must pay plaintiff the $12,250 outstanding plus interest, reasonable costs and attorneys’ fees. The court declines to award plaintiff an additional $12,250 for the breach of contract claim as plaintiff shall be made whole for the breach by the award under the PPA. Defendant’s counterclaim for breach of the Consumer Fraud Act is dismissed as there is no evidence that the carpet was defective and thus plaintiff could not have made an affirmative misrepresentation about the absence of any alleged defects or have failed to disclose any defects and because defendant did not show that the installer did not meet specified requirements. On the breach of contract counterclaim, the court finds that plaintiff breached the contract and that defendant did not waive its rights to assert the claim or fail to act in good faith. The court awards defendant the cost of 20 tiles which it had to replace plus pre-judgment interest. [Filed December 30, 2012]
 
ENVIRONMENT – INSURANCE
17-3-5001 Newport Associates Phase I Developers Limited Partnership v. Travelers Casualty and Surety Company, Law Div.-Hudson Cy. ( Sarkisian, J.S.C.) (39 pp.) Plaintiff initiated this declaratory judgment action against several insurers seeking indemnification for the costs and expenses incurred relating to the remediation of the former Elk Trucking Site in Jersey City. The insurance carriers named in the original complaint included Travelers Casualty and Surety Company (“Travelers”), successor to Aetna Casualty and Surety Company, the comprehensive general liability (CGL) insurer for non-party Melvin Simon & Associates, Inc. (“MSA”), and several excess liability insurers that issued policies to MSA, including Pacific Employers Insurance Company. Discovery was limited to two threshold issues: the enforceability of the Absolute Pollution Exclusion endorsements contained within certain of the CGL insurance policies; and the “named insured” status of plaintiffs pursuant to the CGL policies. As to the first issue, in Morton v. International, Inc. v. General Accident Insurance Company of America, the evaluation of the pollution exclusion language was expressly restricted to CGL policies. It is undisputed that MSA only had an excess policy with Pacific Employers, not a CGL. As to the second issue, plaintiffs are not persons insured and do not qualify as “Named Insured” under the 1985 Travelers Policy. Summary judgment is granted in favor of Defendants.
 
FAMILY LAW – EQUITABLE DISTRIBUTION
20-2-5002 Quijano v. Quijano, App. Div. (per curiam) (8 pp.) Defendant appeals from the Family Part order enforcing an arbitrator’s decision pursuant to the parties’ dual judgment of divorce providing for binding arbitration of unresolved financial issues primarily involving equitable distribution of the former marital residence and an increase in its value. The panel affirms the order as modified to reflect the court’s omission of credits awarded by the arbitrator which plaintiff concedes were due to defendant, finding that the court did not hold the parties’ unsigned property settlement agreement to be enforceable with respect to the marital home – the only issues defendant challenged were those decided by the arbitrator – and that, while by the terms of the divorce judgment, the arbitrator’s decision was subject to appeal, review is limited and defendant did not challenge the award as procured by corruption or fraud or claim that the arbitrator exceeded his powers or erred in his analysis of the marital home’s value and his after-acquired market analysis and new request to the trial court to list the house for sale is not a valid defense to the arbitrator’s binding decision.
 
WILLS AND ESTATES
38-4-5003 I/M/O Estate of Barua, Chan. Div., Probate Part (Essex Cty.) (Koprowski, J.S.C.) (6 pp.) Here, where plaintiff’s husband did not return from a visit to his native Bangladesh and two years later she filed for and was granted a divorce wherein she was determined to be entitled to his interest in real property and any and all choses in action including monies due to him from any taxing authority, State or Federal, and three years later she filed for and was granted a declaration of death, the court grants her motion for summary judgment in this action in which she seeks the turnover of the proceeds of a life insurance policy on his life which named her as beneficiary, finding that as a life insurance policy is a chose in action and she was granted, as equitable distribution in the judgment of divorce, any and all choses in action, the exception in N.J.S.A. 3B:3-14 applies and plaintiff’s divorce did not revoke her designation as primary beneficiary on her husband’s insurance policy. [Filed January 23, 2012]            
 
FEDERAL COURT CASES
 
ANTITRUST
59-7-5004 Deborah Heart and Lung Center v. Penn Presbyterian Medical Center, Dist. Ct. (Bumb, U.S.D.J.) (29 pp.) Plaintiff Deborah Heart and Lung Center alleges filed a complaint against Defendants Virtua Health, Inc. and Virtua Memorial Hospital Burlington County (the “Virtua Defendants”), Presbyterian Medical Center of the University of Pennsylvania Health System, University of Pennsylvania Health System, Penn Cardiac Care at Cherry Hill, Clinical Health Care Associates of New Jersey, P.C., and The Cardiology Group, P.A. Plaintiff claims Defendants conspired to exclude Plaintiff and drive it out of business and allow Virtua Memorial Hospital to monopolize the market for certain emergency procedures. Plaintiff claims Defendants violated Section 1 of the Sherman Act (conspiracy to restrain trade); and Section 2 of the Sherman Act (conspiracy to monopolize the emergency procedures market). The Court denies Defendants’ motion to dismiss as to Plaintiff’s Section 1 claim. Plaintiff has adequately plead that Defendants are engaging in concerted action to exclude Plaintiff from receiving patient transfer from the Virtua Defendants and has plausibly alleged direct anticompetitive effects. The Court grants Defendants’ motion to dismiss as to Plaintiff’s Section 2 claim. Plaintiff’s allegations relating to monopolization of the emergency procedures market are implausible given the competitive landscape and that the Virtua Defendants were not approved for such procedures, let alone market participants. [Filed December 30, 2011]
 
CIVIL RIGHTS – CRIMINAL LAW AND PROCEDURE
46-7-5005 Pitman v. Ottehberg , Dist. Ct. (Hillman, U.S.D.J.) (42 pp.) Plaintiff contends that he was wrongfully arrested and imprisoned for a murder he did not commit. After spending two years in jail because he was unable to make bail, Plaintiff pled guilty to a downgraded charge of manslaughter. Two years later, the Camden County Prosecutor’s Office disclosed exculpatory evidence, at which time Plaintiff’s Judgment of Conviction and guilty plea were vacated and Plaintiff was released from jail. It now appears, by its own admission, that the State should never have allowed Plaintiff to plead guilty. Plaintiff filed the present civil action pursuant to Section 1983 and state law based on his wrongful arrest and subsequent prosecution. Defendants Camden County Prosecutor’s Office, Ottenberg, and Woshnak filed in lieu of an answer a motion seeking dismissal of Plaintiff’s claims. Here, the moving defendants’ motion to dismiss, contending they are immune from suit and, even if they not immune, the allegations are insufficient to state a claim, is granted in part and denied in part. [Filed December 30, 2011]
 
DAMAGES AND REMEDIES – DISCRIMINATION
60-7-5006 Holland v. Macerich, Dist. Ct. (Bumb, U.S.D.J.) (13 pp.) Plaintiff visited the Deptford Mall to investigate whether the handicapped parking was compliant with relevant ADA and LAD laws. The only direct allegation of retaliation in Plaintiff’s Amended Complaint is that Defendants illegally revoked his status as a business invitee and/or banned him from the Mall in retaliation for investigating potential ADA and LAD violations. Plaintiff’s other claims of retaliation, first voiced in Plaintiff’s opposition to summary judgment, are not fairly encompassed by the Amended Complaint. To the extent Plaintiff asserts that Defendants calling the police and asking that the police request that Plaintiff leave the premises constituted “adverse actions,” Defendants advanced a legitimate nondiscriminatory reason for those actions – Plaintiff’s refusal to comply with the Mall’s policy of obtaining permission before videotaping, and his argumentative and threatening behavior. Plaintiff failed to offer any evidence suggesting those reasons were pretextual.  Defendants’ motions for summary judgment are granted and the case is dismissed with prejudice. [Filed December 29, 2011]
 
EDUCATION – TERMINATION – LIMITATIONS ON ACTIONS
16-7-5007 Stephenson v. McWilliams, Dist. Ct. (Linares, U.S.D.J.) (5 pp.) Pro se plaintiff, whose contract as an adjust faculty member at Sussex County Community College was not renewed and whose state court action alleging wrongful termination and other wrongful actions by the named defendants was dismissed on summary judgment, moves for a rehearing after her essentially identical federal action was dismissed as untimely. The court denies plaintiff’s motion because she fails to allege that the court overlooked a factual or legal issue that may alter the disposition of the matter since she cites no intervening change in controlling law, she does not indicate any new evidence that was previously unavailable, and she fails to present the need to correct a clear error of law or fact. [Filed January 20, 2012]
 
INTELLECTUAL PROPERTY – TRADEMARK INFRINGEMENT
53-7-5008 Sabinsa Corp. v. Creative Compounds LLC, Dist. Ct. (Cavanaugh, U.S.D.J.) (9 pp.) In this trademark infringement action in which the Third Circuit reversed and remanded with instructions to enter judgment in favor of plaintiff, and in which the District Court granted plaintiff’s motion for damages of $139, 388.40 and denied its motion for attorneys’ fees, defendant’s motion to alter or amend that judgment or in the alternative for a new trial is denied because (1) defendant has not shown a clear error of law by the court when it relied on Mishawaka Rubber & Woolen Mfg. in finding that the second factor set forth in Banjo Buddies v. Renosky weighed in favor of a disgorgement of profits as the Lanham Act did not alter the burden placed on defendant as stated in Mishawak; (2) the court did not rely on the trial exhibit that defendant now asserts contains inaccuracies and the parties entered into a stipulation regarding damages specifically to avoid the need for an evidentiary hearing; and (3) granting a new trial would simply permit defendant to re-litigate its case under a different strategy which is not an appropriate ground for granting a new trial. [Filed January 23, 2012]
 
LABOR AND EMPLOYMENT – EMPLOYEE BENEFITS – ERISA
25-7-5009 Papotto v. Hartford Life And Accident Insurance Company , Dist. Ct. (Bumb, U.S.D.J.) (16 pp.) Plaintiff, the widow of Frank Papotto Jr., claims that, under the Employee Retirement Income Security Act of 1974 (ERISA), Defendant wrongfully denied accidental death and dismemberment benefits. The policy at issue excluded from its coverage any loss caused or contributed to by injury sustained while intoxicated. After playing golf and consuming alcohol, Mr. Papotto fell out of a golf cart while reaching for a cell phone, struck his head, and died five hours later. A subsequent toxicology report showed Mr. Papotto as having a blood alcohol level of .115 grams per decileter. Because the Court concludes that the administrator applied an unreasonable and incorrect construction of the policy, the parties’ summary judgment motions are denied, and the Court remands the case to the administrator. On remand, because it is the insurer’s responsibility to show facts that bring a loss within an exclusionary clause, Defendant will bear the burden of demonstrating that intoxication caused Mr. Papotto’s injury. [Filed December 30, 2011]
 
REAL ESTATE – JURISDICTION
34-7-5010 Probola v. Long & Foster Real Estate Inc., Dist. Ct. (Thompson, U.S.D.J.) (8 pp.) This action, originally filed in state court, arises from alleged overcharges in connection with real estate sales in which defendant served as a real estate broker, specifically, its practice of charging participants a $345 “document fee” at closing, in violation of the New Jersey Consumer Fraud Act, the New Jersey Truth in Consumer Contract Warranty and Notice Act and New Jersey state law regarding the fiduciary duties owed by real estate brokers to their principals. Plaintiffs purport to represent themselves and a class of similarly situated persons who have bought or sold a home in New Jersey since September 7, 2005 using Long & Foster or an affiliated independent contractor as a broker. Finding that defendant has not met its burden of showing that the amount in controversy requirement for federal jurisdiction under the Class Action Fairness Act has been met, the court declines to exercise jurisdiction on the basis of CAFA. Because plaintiffs do not asset a federal cause of action and because the CFA and TCCWNA claims can proceed without defendants having to be found in violation of RESPA, the court finds that plaintiffs’ claims do not necessarily raise a stated federal issue and declines to exercise jurisdiction under 28 U.S.C. section 1331. [Filed January 23, 2012]