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Vol. 2, No. 38 DECISIONS ISSUED MARCH 4, 1994 CIVIL PROCEDURE – HEALTH 22-2-2760 Richard W. Knecht and Robyn Knecht v. Lynn E. Gieger and Jersey Central Power and Light Co., App. Div. (7 pp.) Where defense medical expert report indicated that plaintiff’s medical records did not reveal condition alleged by plaintiff’s doctor and defense doctor found nothing to explain plaintiff’s chronic back pain, and defense doctor during trial testimony indicated that plaintiff’s back injury was caused by a condition the defense doctor had not mentioned in his report, trial court properly admitted defense doctor’s trial testimony, since there was no evidence that defense counsel intended to mislead plaintiff’s counsel and defense doctor had just explained during trial testimony an opinion he had previously expressed in his report. INSURANCE 23-2-2761 Emily Venetsanos v. Aucher, Facher & Zucher and Homestead Insurance Co. and Walter Kolody, App. Div. (21 pp.) Where defendant insurance company, which was not licensed to do business in New Jersey, was a 100 percent reinsurer for primary insurer, which was licensed to do business in New Jersey, trial court properly held that plaintiff could sue reinusurance company in New Jersey, since where a locally admitted primary insurer merely provided the use of to its policy to enable a non-admitted carrier to write and handle policies here, it is inequitable to force an insured to litigate a matter in a foreign jurisdiction. INSURANCE – AUTOMOBILES 23-2-2762 James T. McReady, II v. General Accident Insurance Co. et al., App. Div. (4 pp.) Where plaintiff and plaintiff’s passenger were injured in an automobile accident, and PIP benefits from defendant’s policy were exhausted after compensating plaintiff’s passenger, trial court properly held that plaintiff was not entitled to underinsured motorist coverage under his policy, since defendant’s liability limits were greater than plaintiff’s underinsured motorist coverage. LAND USE 26-2-2763 Thomas Desiderio, et al. and C & J Rental and Maintenace, Inc. and George Messina v Joseph Geswaldo, App. Div. (7 pp.) Where three surveying companies created entirely different surveys which supposedly incorporated easement terms reached between two abutting commercial property owners, after two days of trial, trial judge erred in holding that parties had reached an agreement to end the case, since an examination of the record revealed sufficient ambiguity in the settlement terms to explain the different interpretations. 26-2-2764 County of Ocean v. Zekaria Realty, Inc., App. Div. (12 pp.) Where landowner had conveyed an easement about 15 years ago at the front of its property for possible road widening as a condition of variance and site plan approval, and county took the land without compensating landowner, landowner waived its right to object to the taking of land without compensation, since landowner should have brought suit within 45 days after conveying easement to county, pursuant to R. 4:69- 6. WILLS AND TRUSTS 38-2-2765 Barbara Stewart v. Estate of Louis Bort and Ohio Casualty Surety Co., App. Div. (5 pp.) Where niece of intestate decedent lived out of state and administrator even hired a private investigator to locate niece and other potential heirs, and niece filed claim five years after distribution judgment, trial court properly allowed estate to be disbursed, since administrator made diligent effort to locate all potential heirs. WORKER’S COMPENSATION 39-2-2766 Lois Fallat v. Kathleen M. White and Eileen R. Epstein, App. Div. (4 pp.) Where employee was car-pooling with co-worker to a company office where they were temporarily assigned and were being compensated by employer for mileage, trial court properly ruled that employees were covered, since the “special mission” exception applied. CRIMINAL LAW AND PROCEDURE 14-2-2767 State v. Therese Afdahl, App. Div. (11 pp.) Where defendant was convicted of aggravated manslaughter, trial court properly did not allow defense counsel to treat as a hostile witness a doctor who had treated defendant several times, since the doctor did not meet the hostile-witness requirements. 14-2-2768 State v. Betty Brown, App. Div. (6 pp.) Trial court erred in charging defendant with contempt for interrupting judge during sentencing, since the judge did not give defendant an opportunity to explain her circumstances and defendant’s behavior did not undermine judge’s authority to control court room. 14-2-2769 State v. Trevor Burroughs, In the Matter of Ann Sorrel Esq., App. Div. (5 pp.) Where public defender was reassigned to another case and initially told court that she could not be present at defendant’s sentencing, and trial court ordered her to be present at sentencing or sanctions would be imposed under R. 1:2-4 for violation of R. 1:11-2 and she arrived just on time, trial court erred in imposing sanctions for violation of R. 1:11-2, since 1) public defender did comply with order and 2) noncompliance with R. 1:11-2 rule is not sanctionable under R. 1:2-4. 14-2-2770 State v. Les Evans, App. Div. (6 pp.) Where defendant, who was indicted for participation in a conspiracy to defraud his employer and alleged he had played only a minor role, had no prior criminal record and his application for pretrial intervention program (PTI) was rejected, defendant’s PTI denial was reversed, since the record did not support program director’s decision. 14-2-2771 State v. Robert Stemmer, App. Div. (24 pp.) Where defendant was convicted of aggravated manslaughter for hitting a toll collector as defendant drove through a closed toll plaza lane at about 60 miles per hour, trial court erred in not charging the jury with the lesser-offense of reckless manslaughter, since trial judge on his own accord is under a duty to charge to charge a jury on a particular offense where “the facts clearly indicate the appropriateness of the charge,” as in this case.

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