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Vol. 3 No. 79 DECISIONS RELEASED APRIL 27, 1995 CONSTITUTIONAL LAW 10-2-5509 In the Matter of D.C., App. Div. (28 pp.) Because N.J.S.A. 30:4-27.1b provides that statutory safeguards must be strictly adhered to in involuntary commitment proceedings, the attorney general had no authority to bypass the requirement that a screening service shall serve as the facility where the person believed to be in need of commitment undergoes an assessment, and therefore the commitment is reversed. [Approved for publication April 27, 1995.] [Available online in N.J. Full-Text Decisions.] INSURANCE 23-2-5510 Personnel Pool of Mercer County, Inc. v. Amgro, Inc., App. Div. (7 pp.) Since a factual context is necessary to resolve the legal issues presented in the interpretation of statutes and regulations dealing with insurer’s duty to insured’s assignee to monitor and advise the assignee (which provides nursing services to the insured) of the depletion of available insurance funds, summary judgment in favor of insurer was erroneous. 23-2-5511 Arthur J. Rogers v. William Penn Assoc., App. Div. (12 pp.) The motion judge erred in shifting the burden of proof to plaintiff to establish the applicable standards for the determination of his “disability” under the Social Security Act and a claim for disability benefits under a disability income certificate, since the defendant, who alleged that the social security determination was conclusive as to the insurance determination and as a result the income certificate proceeding was barred by collateral estoppel, has the burden of proving that affirmative defense. 23-2-5512 Hertz Claim Management v. Joseph and Candolora Marchetta, App. Div. (5 pp.) Since the insurance contract limits indemnification within the underinsured motorist policy to the amount that the insured would have been able to recover from the tortfeasor (less the amount of the tortfeasor’s coverage, for which plaintiff settled), the wrongful death statute of Virginia, where tortfeasor resided, should apply, and plaintiffs are entitled to recover not only economic damages, but sorrow and mental anguish damages. [Approved for publication April 27, 1995.] [Available online in N.J. Full-Text Decisions.] NEGLIGENCE 31-2-5513 Stuart Smith, et al. v. The Port Authority of N.Y. and N.J., et al., App. Div. (8 pp.) Where there was evidence that an accident was caused by the failure of the brakes of the leased truck that hit plaintiff, and further evidence that the truck had recently undergone repairs, the trial judge erred by dismissing defendant’s cross-claims against lessor of truck. PRODUCT LIABILITY 32-2-5514 Joseph Benevides, et al. v. General Motors Corp., et al., App. Div. (11 pp.) Where, after plaintiff’s car accident and retention of counsel for a possible personal injury suit, plaintiff received a recall notice from Corvette manufacturer for a possible mechanical problem with the differential, the plaintiff was charged with knowledge that a potential claim existed against manufacturer and that preservation of the differential was critical as evidence, and since he did not preserve the evidence, the order dismissing the product liability complaint against the car manufacturer was proper. WORKERS’ COMPENSATION 39-2-5515 Robert Noye v. Hoffmann La-Roche, Inc., App. Div. (3 pp.) The dismissal of petitioner’s claim for total psychological disability resulting from his wrongful discharge by his employer was proper as time-barred, and petitioner’s claim that the time limits for filing of his workers’ compensation claim were tolled while he pursued a civil action against employer alleging breach of employment contract and wrongful discharge is meritless. -

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