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VOL. 2 NO. 81 DECISIONS RELEASED MAY 9, 1994 ALCOHOLIC BEVERAGES – TORTS 47-1-3230 Natalie Fisch, et al. v. Richard Bellshot, et al., Sup. Ct. (27 pp.) Where plaintiff daughter of decedent mother, who was killed in a one-car accident, sued defendant tavern owner for allowing her mother to drink alcoholic beverages, trial court properly instructed the jury on a comparative negligence charge which did not adhere to the state Supreme Court outline in Lee v. Kiku Restaurant, 127 N.J. 170 (1992) (where the Court held that in an ordinary case, (1) once a defendant is found to have been negligent, the defendant is responsible for the plaintiff’s decision to drive or to accompany an intoxicated driver, and (2) that responsibility may be diminished only to the extent that the plaintiff’s drinking before becoming intoxicated contributed to his/her inability to appreciate the risk of his/her behavior), since the decedent, a bartender at defendant establishment, had served herself. CONTRACTS – MUNICIPAL LAW – CONSTITUTIONAL LAW 11-2-3231 In the Matter of Determination of the Responsibility of the Joint Venture of PJ Carlin Const. Co., Inc. and Tap Elec. Contracting Serv. Inc., App. Div. (10 pp.) Where both parties, as a joint venture, submitted the lowest bid for construction of a bus facility, New Jersey Transit erred in rejecting the parties’ bid based on an evaluation of the construction company’s status as a financially responsible bidder, since (1) the parties’ joint venture is a partnership for the project duration, because a general partnership’s financial responsibility is properly evaluated on a composite basis, and (2) New Jersey Transit’s substantive reliance on ex parte communications with surety companies on earlier construction company jobs violated the parties’ procedural due process. DEBTOR/CREDITOR 15-2-3232 Richard J. Edgar v. T & F Fashion Design, Inc. Anthony Feudale and Marie B. Edgar, App. Div. (8 pp.) Where plaintiff lent money to corporate defendant, of which defendant Feudale and plaintiff’s wife were principals, trial court erred in not vacating the default judgment entered against the defendants’ individually for failure to answer, since the trial judge during the motion hearing did not give defense counsel an opportunity to respond or present an argument. FAMILY LAW 20-2-3233 Richard Carlucci v. Kathleen M. Carlucci, App. Div. (11 pp.) Where plaintiff father sought joint sole custody, or alternatively joint legal and physical custody, of his children, trial court properly held that primary legal custody of the children should remain with the wife, since trial court found that cooperation between the parents essential to a successful joint- physical- custody arrangement was not established. HEALTH – GOVERNMENT – ADMINISTRATIVE LAW 22-2-3234 State, Dep’t of Health (DOH) v. Continental Care Centers of New Jersey, App. Div. (10 pp.) Where defendant operated two nursing homes and an alcohol rehabilitation center, and defendant’s parent company agreed to sell its nursing homes nationwide to Continental Medical Systems, who would manage the nursing homes and apply to the state DOH for approval, Health Commissioner (1) properly determined that defendant had transferred ownership in violation of N.J.A.C. 8:39-2.5(d) and N.J.A.C. 8:42A-2.5(d), since decision was supported by the record, (2) but erred in imposing a penalty, since the commissioner did not have proper authority. INSURANCE 23-2-3235 Hermann Forwarding Co. and Hermann Leasing Co. v. Pappas Ins. Co., and A.I. Credit Corp. and Liberty Mut. Ins. Co., App. Div. (12 pp.) Where plaintiff/trucking company’s insurance was canceled for non-payment of premiums, even though trucking company claimed that it had overpaid defendant/insurance broker, trial court erred in holding that insurer was liable for all unearned premiums because the broker was acting as its agent under N.J.S.A. 17:22-6.2a, since an issue of material fact existed as to whether the insurer “delivered” the policy to the broker under N.J.S.A. 17:22-6.2a. INSURANCE – AUTOMOBILES 23-2-3236 Herwin Alvarado and Janet Alvarado v. Nelson Navas and Carl Fazio, App. Div. (6 pp.) Where plaintiff suffered from an acute cervical sprain from injuries sustained in an automobile accident, trial court properly dismissed plaintiff’s complaint for failure to meet verbal-threshold criteria, since there was no objective medical evidence to prove that plaintiff continued to suffer from back problems. 23-2-3237 Nancy Sotomayor v. Allstate Ins. Co., App. Div. (8 pp.) Where defendant insurer advised plaintiff insured, who was injured in an automobile accident, that it would no longer make “voluntary no fault payments” based on a defense medical exam and the insured’s orthopedist report, which said that no additional treatment would be beneficial at that time, trial court erred in compelling insurer to continue to pay insured’s medical expenses, since insured’s action for further benefits should have been filed within two years from the last payment of benefits, or if the claims only arose and were timely submitted at the end of that period, within a reasonable period thereafter. PRODUCT LIABILITY 32-2-3238 Antonio Mercado v. Gen. Motors Corp. and Wigder Chevrolet, App. Div. (7 pp.) Where while driving a Chevrolet Blazer, plaintiff was injured when the wheels continued to spin even though he applied the brakes, and there was no explanation for the car’s wild acceleration, trial court properly dismissed plaintiff’s complaint, since plaintiff was unable to exclude driver error as the cause of the accident. PUBLIC EMPLOYEES 33-2-3239 In the Matter of Dep’t of Personnel Employees, App. Div. (8 pp.) Where department employees, who were not paid when the department shut down for budgetary reasons, claimed that the department did not act in good faith, administrative law judge properly dismissed the complaint, since a temporary layoff is authorized by N.J.S.A. 11A:8-1. WILLS AND TRUSTS – INSURANCE 38-2-3240 In the Matter of the Estate of James W. Jackson, Jr., deceased, App. Div. (6 pp.) Where decedent, after finding out that he had brain cancer, prepared a will naming the woman he had been living with as his primary beneficiary and his daughter as the contingent beneficiary, and changed the beneficiary designations on his retirement insurance to mirror the will, trial court properly dismissed daughter’s complaint challenging insurance beneficiary designations, since the daughter failed to raise an inference of undue influence. WORKERS’ COMPENSATION 39-2-3241 Israel Gonzalez v. Johanson Mfg. Co., App. Div. (7 pp.) Where employee suffered from back problems from repetitive lifting at his job, court remanded, stating that workers’ compensation judge erred in awarding the employee five percent of partial total disability, since the judge failed to make the proper factual findings necessary to permit proper appellate review. CRIMINAL LAW AND PROCEDURE 14-2-3242 State v. Daniel Simpson Johnson, App. Div. (20 pp.) Where defendant was convicted of murdering his girlfriend after an argument, trial court properly did not instruct the jury on passion/provocation manslaughter, since there was no evidence that the girlfriend’s words or actions significantly threatened the defendant.

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