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Vol. 3, No. 17 DECISIONS RELEASED JANUARY 26, 1995 COMMERCIAL TRANSACTIONS – INSURANCE 08-2-4818 A&S Welding & Boiler Repair, Inc. v. Langer Transport Corp. v. The Hartford Steam Boiler Inspection and Ins. Co. App. Div. (5 pp.) Where face of check contained the word “partial” under provision entitled “settlement of claim under policy” and check was accompanied by a notice stating that the payment discharged all liability, there was sufficient question of accord and satisfaction to defeat insurer’s motion for summary judgment. ENVIRONMENTAL LAW 17-2-4819 In re: Raymond and Theresa Thomas, App. Div. (11 pp.) Claimants under the Spill Compensation and Control Act are not entitled to counsel fees as an element of “all direct and indirect damages” for which the fund is liable. [Approved for publication Jan. 26, 1995] FAMILY LAW 20-2-4820 Ira A. Schwartz v. Adele Schwartz, App. Div. (5 pp.) Disbarred attorney, whose changed circumstances were recognized in a reduction of his alimony payments, did not sustain burden of proof for further reduction inasmuch as he had the capacity to earn substantially more than he did selling men’s clothing, despite his disbarment. 20-2-4821 Jacqueline Massar v. Cyril J. Massar, App. Div. (8 pp.) Wife cannot sue for divorce on the grounds of extreme cruelty where she signed an agreement not to seek divorce on grounds other than 18-month separation in return for which her husband agreed to vacate the marital home, since there was consideration and husband upheld his part of the bargain. [Approved for publication Jan. 26, 1995] INSURANCE – AUTOMOBILES 23-2-4822 Matilda Wilson v. Lawrence Jiggetts, et al., App. Div. (3 pp.) School teacher’s injuries did not have a “serious impact” on her life as required by the verbal threshold standard articulated in Oswin v. Shaw, where her confinement to bed was during summer recess and her only current complaints were intermittent. 23-2-4823 Diane Carmon et al. v. Antonio Moreira, et al., App. Div. (4 pp.) Trial court was correct in deciding that defendant’s van, customarily used in connection with his business, did not constitute an automobile under N.J.S.A. 39:6A-2a and therefore that the verbal threshold is inapplicable. 23-2-4824 John Padalino and Elizabeth Padalino v. Thuy T. Vo, App. Div. (7 pp.) Doctor’s failure to make a differential diagnosis to explain why the serious impact to plaintiff’s life was exclusively attributable to the subject accident — not a pre-existing condition — was fatal in plaintiff’s attempt to cross verbal threshold. LABOR AND EMPLOYMENT 25-1-4825 Scotch Plains-Fanwood Bd. of Educ. v. Scotch Plains- Fanwood Educ. Ass’n, Supreme Ct. (21 pp.) The arbitrator did not exceed his authority when he determined, under a just-cause standard, that the board of education improperly withheld a teacher’s salary increment on disciplinary grounds. 25-2-4826 Barry S. Perl v. Metropolitan Ins. and Annuity Corp., App. Div. (7 pp.) Employer was properly granted summary judgment in discharged employee’s suit for breach of contract and discrimination based on clear “employment at-will” language in employment application and lack of special oral contract between the parties. 25-2-4827 J.S. Paluch Co. v. Charles Cobb, App. Div. (4 pp.) Weighing the hardships, the court vacated an injunctive order enforcing a post-employment noncompetition agreement where employer had had six months to re-establish contacts with its customers and ex-employee possessed no real confidential information and could not find work in his field because of the covenant. NEGLIGENCE 31-2-4828 John Orchulli, Adm’r v. North Jersey Training Center et al., App. Div. (7 pp.) Although parents of a mildly retarded and institutionalized woman could not recover damages under wrongful death statute because they could not have any reasonable expectation of receiving services from the daughter which had any pecuniary value, the statute does allow for recovery for hospital, medical and funeral expenses, and therefore summary judgment in favor of defendant must be reversed and remanded. PHYSICIAN/PATIENT 29-2-4829 Sharon Hait and William Hait v. Alan Friedman, App. Div. (9 pp.) (1) Refusal of trial court to charge to jury that defendant doctor’s conduct be measured against standard of care of a specialist in care and treatment of secondary glaucoma — instead charging only that the doctor be held to the standard of care of an average specialist in the field of ophthalmology — was immaterial where no testimony was adduced at trial that the former standard was different or higher. (2) Defendant was properly permitted to refer to other medical authorities during his testimony, since he necessarily had to rely on expert opinion to explain and defend his own practices. PRODUCTS LIABILITY – EVIDENCE 32-2-4830 Jose Alberto Rodriguez v. Ford Motor Co. et al., App. Div. (16 pp.) Trial judge mistakenly exercised his discretion in failing to qualify plaintiff’s expert to testify as to design defect of truck. REAL ESTATE 34-2-4831 Elizabeth Motel Corp. v. Sylvan G. Rothberg, et al. App. Div. (15 pp.) Lessors properly declined to consent to an assignment of lease because the lessee never provided adequate financial information on, or proof of, the business experience of assignee and trial court’s finding that the lessors wrongfully withheld consent was reversed. REAL ESTATE – ATTORNEY FEES 34-4-4832 Park Place East Condominium Association v. Hovbilt, Inc., App. Div. (9 pp.) Collection of assessments for maintenance charges against individual units is the financial life-blood of a condominium association and the Legislature clearly did not intend that the income stream be reduced by the payment of reasonable attorneys fees incurred in the process of collection of the charges, therefore association is entitled to recover attorneys fees from defendant owner in foreclosure litigation. [Approved for publication Jan. 26, 1995] WORKERS’ COMPENSATION 39-2-4833 Michael Locascio v. South Old Bridge Fire Co., Inc. App. Div. (9 pp.) While N.J.S.A. 34:15-7.2 creates a rebuttable presumption that a cardiovascular injury or death suffered while a petitioner is responding to an emergency is compensable, the trial judge erred in stating that this shifted the burden of proof to the respondent to disprove compensability. CRIMINAL LAW AND PROCEDURE 14-2-4834 State of New Jersey v. Enoch Brimage, App. Div. (5 pp.) Defendant was not entitled to vacate or modify his plea agreement despite his expectation that he might be entitled to such consideration based upon his claim of cooperation with the police where record reflects no such promise and defendant knowingly and voluntarily entered into the plea agreement which was express in its terms. 14-2-4835 State of New Jersey v. Willie Malone, App. Div. (4 pp.) Detective’s cursory search of defendant and removal of his gloves was reasonably necessary for self-protection in a darkened, high-crime area where defendant acted furtive and suspicious, and drugs found inside the gloves were therefore properly admitted as evidence. 14-2-4836 State of New Jersey v. Walter Press, App. Div. (24 pp.) The Supreme Court, in requesting guidelines to promote uniformity in plea bargaining policies in drug school zone cases, did not mandate such uniformity; thus, defendant is wrong in his contention that his sentence violates equal protection and was unfair and illegal because it may have been different in another county. [Approved for publication Jan. 26, 1995} 14-2-4837 State of New Jersey v. Isaac Lane, App. Div. (18 pp.) In trial of aggravated assault case, where defendant secretly taped telephone conversations involving victim-wife and her mother and proffered them as state-of-mind evidence, suppression was proper since, under New Jersey Wiretapping and Electronics Surveillance Act, it is unlawful to tape telephone conversations of others, including one's spouse, without consent when the person taping the conversation is not a party thereto. [Approved for publication Jan. 26, 1995] OPINIONS APPROVED FOR PUBLICATION 01-2-4806 In the Matter of Crown/Vista Energy Project (Approved Jan. 25, 1995)

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