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VOL. 2, NO. 189 DECISIONS RELEASED OCTOBER 27, 1994 ARBITRATION AND MEDIATION – LABOR AND EMPLOYMENT 03-3-4189 Chris E. Bleumer v. Parkway Ins. Co., et al., Law Div. (42 pp.) Where a former company president’s private employment contract required that any dispute be arbitrated, trial court held that a claim under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 et seq. is subject to arbitration under the Federal Arbitration Act, 9 U.S.C. Sections 1 to 15, since the insurance company was involved in interstate activity and pursuant to the holding in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), all remedies available from a court are also available from an arbitrator. [Approved for publication Oct. 24, 1994.] CONTRACTS – GOVERNMENT 11-2-4190 Tony’s Truck Tire Repair, Inc. v. New Jersey Turnpike Auth., App. Div. (4 pp.) Where company had an exclusive contract to provide tire repair and road service on a portion of the turnpike, trial court erred in granting summary judgment that the authority’s pilot tire repair service did not violate the contract, since discovery was incomplete. DEBTOR/CREDITOR – FAMILY LAW 16-2-4191 FCC National Bank, v. Dharam Meta, App. Div. (3 pp.) Where creditor obtained a judgment for the balance on a credit card debt, trial court erred in vacating the order for turnover of a bank account, since a divorce action may affect the rights of the husband and wife against each other but cannot affect a third party’s rights. EVIDENCE – PRODUCT LIABILITY – AUTOMOBILES 32-2-4192 David W. Hardy and Lynn Hardy v. Ford Motor Co. and Stillman and Hoag, App. Div. (5 pp.) Trial court properly admitted into evidence police officer’s testimony at trial to the substance of an out-of-court statement recounting what happened at an accident, since no timely objection was made. FAMILY LAW 20-4-4193 Loretta E. Scott v. Robert R. Scott, Jr., Ch. Div. (16 pp.) Husband’s recording of wife’s phone conversations from within the marital home violated the “New Jersey Wiretapping and Electronic Surveillance Control Act,” N.J.S.A. 2A:156A-3, and husband is subject to punitive damages under N.J.S.A. 2A:156A-24 since the conduct was so egregious. [Approved for publication Oct. 24, 1994.] 20-2-4194 Harold A. Steiner III v. Donna S. Steiner, App. Div. (7 pp.) In post-judgment proceedings, trial judge erred in compelling wife to execute a mortgage modification agreement in order to stave off foreclosure of the collateral property, since husband established only a change in financial conditions, which is insufficient to justify relief under R. 4:50-1(f). INSURANCE – AUTOMOBILES 23-2-4195 Alfredo Carlomango, et al. v. Craig A. Savnovsky, et al., App. Div. (6 pp.) Where plaintiff injured his back in an automobile accident, trial court erred in dismissing the complaint for failure to meet verbal threshold, since the CT scan and a doctor’s report showed a significant limitation of a body part. 23-2-4196 Karen Carter v. Aetna Life & Casualty Co., App Div. (7 pp.) Trial court erred in awarding insured extended medical benefits above policy limits on grounds that the insured’s failure to read the policy did not constitute bad faith, since an insured is under an affirmative duty to examine the policy. 23-2-4197 Benjamin Jones, et al. v. Nyisha Bennett, et al.,App. Div. (6 pp.) Where plaintiff injured his back in a car accident, trial court erred in dismissing the complaint for failure to meet verbal threshold, since plaintiff suffered from chronic back pain and could no longer socialize with his friends. 23-2-4198 Deborah Laird et al. v. Kathleen Murphy et al., App. Div. (7 pp.) Where plaintiff alleged that automobile accident aggravated a pre-existing injury, trial judge properly found that without a Polk v. Daconceicao comparative analysis of the residual injuries and those suffered in the most recent accident, there is no objective, credible medical evidence to overcome the verbal threshold. 23-2-4199 Michelle Maguire v. Millie M. Wilson, App. Div. (8 pp.) Where store cashier injured her back in a car accident, trial court erred in dismissing the complaint for failure to meet verbal threshold, since she cannot stand for long periods of time and is unable to lift and carry groceries. 23-2-4200 Robin Randazzo et al. v. Kristine Crowley, App. Div. (6 pp.) Where plaintiff’s physician provided objective, credible medical evidence of a carpal tunnel injury, and plaintiff claimed to have been unable to work because of the injury, but the physician failed to expressly relate the conditions to the automobile accident, additional discovery is appropriate and summary judgment for defendant is vacated. PHYSICIAN/PATIENT – NEGLIGENCE 29-3-4201 Lourdes G. Herrara, et al. v. Atlantic City Surgical Group, et al., Law. Div. (11 pp.) Although radical-mastectomy patient was not told about other treatment options, trial court dismissed patient’s claims against physicians who referred her to the surgeon, since they did not subject her to a course of treatment or perform the surgery. [Approved for publication Oct. 24, 1994.] TORTS – GOVERNMENT 36-1-4202 Donald R. Sikes, Jr. v. Township of Rockaway, et al., Supreme Ct. (7 pp. incl. appellate decision) Trial court in Tort Claims Act suit improperly reduced award of damages to motorcycle rider, who was injured in a collision with a township ambulance, by deducting the amount he had been reimbursed from collateral sources for medical expenses and lost wages, since the Act allow plaintiff to withhold evidence of such payments. WORKERS’ COMPENSATION 39-2-4203 Madeline Niedzialek v. Riverside Mills Corp., Where an employee hurt her lower back and right arm on the job, workers’ compensation judge erred in holding that she had 12.5 percent permanent partial disability, since there was no objective medical evidence that the bulging disk was related to the accident. CRIMINAL LAW AND PROCEDURE 14-2-4204 State v. Al-Wahid Karim Ali, App. Div. (6 pp.) Where defendant and co-defendant were convicted separately of handgun possession without a permit, trial court properly denied defendant’s motion to dismiss the indictment, since despite the arresting officer’s inconsistent grand jury and trial testimony, there was no evidence of perjury or prosecutorial misconduct. [See related case No. 4206] 14-1-4205 State v. James Baker, Supreme Ct. (21 pp. incl. dissent) Where defendant, who was convicted of kidnapping, was resentenced to a longer parole ineligibility period after his petition for post-conviction relief was denied, appellate court properly held that if an original sentence imposed is illegal, it may be corrected at any time even if the resentencing is for a longer term. [Decided Oct. 27, 1994.] 14-2-4206 State v. James Diggs, App. Div. (9 pp.) Where a rear seat passenger and a co-defendant were convicted separately of possessing a handgun without a permit which was located on the front floor of the car, trial court erred in denying defendant’s judgment of acquittal, since there was insufficient proof that defendant was in constructive possession of the gun. [See related case no. 4204.] 14-2-4207 State v. Joan Fabry, App. Div. (13 pp.) Where defendant was convicted of aggravated manslaughter, trial court after a Miranda hearing properly held that statements defendant had made at her house before and after she was read her rights were admissible, since the questioning was noncustodial and the statements were voluntary.

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