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Vol. 2, No. 89 DECISIONS ISSUED MAY 19, 1994 INSURANCE – AUTOMOBILES [See May 20 Star Ledger front page for interview of Anthony Bartell, representing plaintiff Roig] 23-1-3317 Michael Roig v. David T. Kelsey, Supreme Ct. (26 pp.) Where defendant passenger, who was injured in an automobile accident, sought compensation from plaintiff, who caused the auto accident, because the PIP benefits of defendant’s sister had a 20 percent copayment for medical expenses, trial court properly dismissed defendant’s motion for summary judgment, since the state’s no-fault law prohibits a party from recovering directly from the tortfeasor. ATTORNEY/CLIENT – INSURANCE 04-2-3313 Angelina Montanez v. Santos Irizarry-Rodriguez and Cataldi Buick Dealership, Gen. Motors Co.,et al., App. Div. (16 pp.) Where plaintiff wife sued her husband for reckless driving, trial court erred in allowing an attorney, who was hired by an insurance company to represent the husband, an insured, to impeach the insured’s credibility on the ground that the attorney was surprised by the insured’s testimony, since the attorney’s conduct was prejudicial to the insured, and affected the outcome of the trial. ATTORNEY/CLIENT – NEGLIGENCE 04-2-3314 Carole Owens v., Cole, Schotz, Bernstein, Meisel & Forman, P.A., et al., App. Div. (10 pp.) Where plaintiff sought to consolidate this case alleging legal malpractice and slander of title against defendant law firm with the defendant’s suit for legal fees against plaintiff, trial judge erred in not consolidating the cases, since the matters should have been consolidated under the entire controversy doctrine. CIVIL PROCEDURE 07-2-3315 Avis Rent-A-Car, Inc. v. Douglas Cooper, App. Div. (7 pp.) Where plaintiff car-rental agency got permission to take telephone depositions of three witnesses in Hawaii about damage to a vehicle that defendant driver, a New Jersey resident, leased from plaintiff in Hawaii, trial judge (1)erred in not allowing the use of the telephone deposition taken of a lay witness in Hawaii, since this is permitted under R. 4:16-1(c), (2) and properly did not allow the use of the telephone depositions of two of plaintiff’s employees from Hawaii, since under R. 4:14-2(c) plaintiff was compelled to produce its employees at trial. CIVIL PROCEDURE – ATTORNEY/CLIENT 07-2-3316 Joan Byron-Marasek v. Joseph Jack Merola, et al., App. Div. (8 pp.)Where plaintiff sued defendant for selling horse meat allegedly contaminated with toxic drugs, which plaintiff fed to her tigers, trial court properly dismissed plaintiff’s complaint with prejudice, since plaintiff repeatedly refused to comply with court-ordered discovery. INSURANCE – CONTRACTS – AUTOMOBILES 23-2-3318 Geraldine Tsanglis and Antoine Tsanglis v. Prudential Ins. Co. and Douglas Hertel, App. Div. (15 pp.) Where plaintiff insureds, who were both injured in an automobile accident, sued defendants, insurer and broker, alleging that the insurance documents were ambiguous as to whether the insurer issued the insureds at least $1,000,000 in UIM coverage, trial court properly dismissed the insureds’ complaint, since the insurance documents were not ambiguous. INSURANCE – REAL ESTATE 23-2-3319 Luther Holmes, et al., and Luther Holmes Mason Contractors v. Selective Ins. Co. of Am. and Morris County Agency/West, Inc., App. Div. (14 pp.) Where plaintiff contractor filed a declaratory judgment action seeking indemnification in a suit filed against it by landowners for the collapse of a septic sewage system the contractor designed, trial court erred in granting contractor’s summary judgment motion, since the allegations in the landowners’s complaint were excluded from coverage. LANDLORD/TENANT 27-2-3320 Philip W. Daughtry v. Chandra K. Jain and Akash Jain, App. Div. (4 pp.) Where plaintiff tenant sued defendant landlords for damages for failure to timely return a security deposit, under N.J.S.A, 46:8-21.1, trial court erred in awarding damages that were too high, and in holding that the lease converted into a month-to-month tenancy, since plaintiff did not give timely notice when he would be moving out under the lease, so landlords were entitled to a set-off for one month’s rent when they could not lease the apartment. PUBLIC EMPLOYEES 33-2-3321 In the Matter of Jersey City Superior Officers Ass’n, et al., App. Div. (11 pp.)Where city demoted police officers to their previous ranks for economy and efficiency reasons, Merit System Board properly approved settlements which provided that the demoted officers would be returned to their higher positions, and would waive all claims for back pay and counsel fees, since there was no evidence of fraud, mistake or duress to warrant vacating the settlements. CRIMINAL LAW AND PROCEDURE 14-2-3322 State v. Colleen E. Jones, App. Div. (10 pp.) [See, companion case 14-2-3325] Where defendant and a co-defendant were convicted of first-degree aggravated manslaughter, and third- degree endangering the welfare of a child, trial judge properly denied defendant’s motion to file a notice of diminished capacity defense, since the notice was not filed timely, and an expert opinion report did not support defendant’s claim. 14-2-3323 State v. Todd B. Miller, App. Div. (5 pp.) Where defendant was convicted of first-degree cocaine possession with intent to distribute, trial court erred in denying defendant’s acquittal motion, since the state’s proofs were inadequate to establish defendant’s constructive possession of the cocaine. 14-2-3324 State v. Frank Pennington, App. Div. (12 pp.) Where prosecutor in his summation implied that the jury would violate its oath if it found defendant guilty of only felony murder rather than capital murder, prosecutor’s remarks did not constitute reversible error, since the remarks did not contribute to the jury finding the defendant guilty of felony murder. 14-2-3325 State v. Jeffrey Saluka, App. Div. (14 pp.) [See, companion case 14-2-3322] Where defendant and co-defendant were convicted of first-degree aggravated manslaughter, and third- degree endangering the welfare of a child, trial court correctly (1) held that defendant was properly convicted of third-degree endangerment, since it was based on substantial evidence and (2) charged the jury on various types of accomplice liability, because they were warranted under the evidence, and were properly explained to the jury.

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