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Vol. 3 No. 115 – JUNE 20, 1995 STATE COURT CASES ARBITRATION 03-2-5929 Max Bayroff Corp. v. Imperial Casualty & Indemnity Co., App. Div. (9 pp.) In a case where a building contractor and roofing contractor submitted their dispute to arbitration- -despite the fact that the action was not properly subject to compulsory arbitration–the resulting judgment is subject to the limitations inherent in that procedure, and, although it is binding on roofing contractor to the extent that the roofer owes a certain amount to the general contractor, the judgment is not preclusive in subsequent litigation between the building contractor and the roofing contractorTs insurer on the issue of whether the roofing contractor is liable to building contractor for indemnification. CIVIL PROCEDURE — ENTIRE CONTROVERSY 07-2-5930 N.J. Alcoholic Beverage Council Health and Life Benefit Program v. Slough & Horneff, et al., App. Div. (5 pp.) Where, in an earlier case, plaintiff sued insurer for terminating coverage and insurer answered that plaintiff had breached its insurance contract by becoming insolvent, and plaintiff was denied (due to the age of the case) permission to amend its complaint to add its accountants who were alleged to have negligently advised plaintiff on its solvency, the denial does not preclude plaintiff from litigating a separate suit against accountants later, since plaintiff asserted that it was not aware until late in the first case that it had a claim against the accountants and the judge should not have dismissed the second case without a hearing and a particularized evaluation of the facts and equities. CORRECTIONS 13-2-5931 Douglas Riley, et al. v. Dept. of Corrections, App. Div. (13 pp.) The Merit System Board had the authority to reconsider, sua sponte, its decision permitting reinstatement of two senior correction officers, and then reverse itself, sustain disciplinary charges for officers’ refusal to submit to urine testing, and order their removal, and the board’s decisions that exigent circumstances excused the preparation of a written report prior to the issuance of the drug testing orders and that there was reasonable suspicion to require officers to submit to such testing were not arbitrary or capricious and were supported by the evidence. FAMILY LAW — DOMESTIC VIOLENCE 20-2-5932 E.P. v. R.P., Jr., App. Div. (11 pp.) Where the judge found, by a preponderance of the evidence, that wifeTs testimony regarding physical abuse was more credibl, and that in episodes where husband kicked and slapped wife, husband acted intentionally and purposefully despite his denials and Rexplanations of the events, a final restraining order was appropriate. INSURANCE — P.I.P. 23-2-5933 Steven Kashkin v. Material Damage Adjustment Co., et al., App. Div. (3 pp.) Where papers suddenly fell out of driverTs sun visor and he reacted by slamming on brakes and reaching forward to grab the papers, sustaining back injuries, these facts constitute an RaccidentQ within the meaning of the law, and order terminating insuredTs PIP benefits is reversed. INSURANCE — VERBAL THRESHOLD 23-2-5934 Dorothy M. Stepalovitch v. Timothy Williams, et al., App. Div. (2 pp.) Where plaintiff testified that, as a result of her constant neck pain, she is restricted in her housework, has gained weight because of her inability to exercise regularly, cannot engage in her regular swimming or bicycling, and is restricted in turning around to look backward while performing her work as an airport security guard, she showed sufficient limitations to create a genuine issue of material fact as to whether her injuries substantially impaired her quality of life, and summary judgment for the defendants is reversed. 23-2-5935 Shirley Woods v. Deborah A. Negri, et al., App. Div. (8 pp.) The motion judge erroneously granted the defendantsT summary judgment motion on the basis that plaintiff had failed, under Polk v. Daconceicao, 268 N.J.Super. 568 (App. Div. 1993), to present an analysis of her pre-existing condition with injuries suffered in the respective accidents, since plaintiff was not only claiming an aggravation of a pre-existing back condition, but had clearly proved the existence of new cervical and thoracic injuries unrelated to the other accident. LABOR AND EMPLOYMENT 25-2-5936 Johnny Walcott v. City of Plainfield, App. Div. (10 pp.) Where employee was indefinitely suspended pending investigation and disposition of drug charges, and where he later pled guilty to a disorderly persons offense and was reinstated with a six-month suspension, employee is not entitled to back pay, benefits and seniority for the period of his indefinite suspension, since he was not exonerated, but was conditionally discharged, and his back pay, benefits and seniority were correctly calculated to commence after the six-month suspension concluded, until the actual reinstatement date. [Approved for publication June 20, 1995.] 25-2-5937 David Weller v. Bd. of Review, App. Div. (3 pp.) Where amputee was told that he could return to part-time work since full-time work required more standing and bothered his prosthetic device, but also was advised that he would then lose benefits, and where amputee then stated that he was resigning because he had Rother plans, including hauling junk and scrap iron,Q he left work without good cause attributable to his work, and was properly denied unemployment compensation benefits. LABOR AND EMPLOYMENT — EDUCATION 25-2-5938 Thomas Jabour v. Bd. of Educ. of the Delaware Valley Regional High School Dist., Hunterdon County, App. Div. (5 pp.) Where, due to declining enrollments, board dismissed industrial technology teacher, and teacher appealed, stating that if board had properly counted his military service as a credit toward his seniority, the other industrial arts teacher would have been dismissed instead, the commissioner of education properly affirmed the dismissal, noting that, while teacher was correct, it was teacherTs burden to prove his tenure of military service, and his failure to do so, other than to verbalize it at the hearing, was fatal to his claim. 25-2-5939 Reba J. Lippincott v. Bd. of Educ. of the Watchung Hills Regional High School, Somerset County, App. Div. (4 pp.) Claim of an educational media specialist– that the local board violated school laws when it assigned supervisory authority over the media center and its staff to a vice principal who does not possess an educational services certificate or an EMS endorsement–was properly dismissed since petitioner had no standing to challenge a local board’s administrative decisions beyond their impact on her, and the board’s decision was not arbitrary or capricious. NEGLIGENCE 31-2-5940 Francisco Lopez, Jr., et al. v. Alan R. James, et al., App. Div. (12 pp.) In a case where plaintiffs were injured in an accident with a vehicle driven by a DominoTs Pizza employee and filed a negligence suit, while the apparently dilatory conduct of plaintiffsT first attorney is of serious concern, there admittedly was much confusion regarding the proper party designation because of the franchise structure, as well as the franchiseTs failure to record proper title to its vehicle and, since the defendants cannot show prejudice if the complaint is reinstated, while the plaintiffs will be left without a remedy if it is not, the Law Division judge’s order denying plaintiffsT motion to vacate their complaint’s dismissal for lack of prosecution is reversed. PARENT/CHILD 28-2-5941 In the Matter of the Guardianship of L.M.R., et al., App. Div. (16 pp.) While the judgeTs decision to terminate parental rights as to parents’ two, developmentally disabled, RmiddleQ children is affirmed, the decision to return the two youngest children to the parents within 30 days is reversed and remanded, since, although the parents may have made progress and be ready to care for these children, there was evidence that they had bonded with their foster mother, and, further evaluation of the removal’s effect is required, with, perhaps, some consideration of a more gradual transition. CRIMINAL LAW AND PROCEDURE 14-2-5942 State v. Robert String, App. Div. (8 pp.) In a case in which defendant was convicted of manslaughter, where prosecutor in her summation falsely stated to the jury that she was an inexperienced litigator; that defendant was not sorry that the victimTs parents had lost Rtheir babyQ without any proof in the record; and, most egregiously, using the victimTs clothes, assembled a RmannequinQ before the jury and topped it with the autopsy photograph of the victimTs face, these acts had a clear capacity to inflame the jury and defendant was deprived of the juryTs dispassionate, reasoned and fair consideration of his defense, and reversal is required. FEDERAL COURT CASES BANKRUPTCY 42-8-5943 In re: Stanton L. Segal and Elizabeth Crowe Segal; Santa Fe Medical Services, Inc. v. Stanton L. Segal, et al., Third Cir. (14 pp.) A loan made to a doctor, pursuant to the terms of her employment contract with a hospital, which loan was used to pay off previously-existing educational debt, is not dischargeable within the meaning of 11 U.S.C. Sec.523(a)(8), since the educational benefit was not provided by the employer, and the loan was not in furtherance of an educational program established by the employer. 42-6-5944 In re: William J. Van Nostrand, U.S. Bankruptcy Ct. (11 pp.) Since, under Section 522, the debtor may select either the federal or the state exemptions, and the debtor has clearly chosen the federal exemptions, his claim of exclusion of his individual retirement account (IRA) is improper, and the trusteeTs motion seeking a declaration that the IRA is the property of the debtorTs estate is granted. [Approved for publication.] BANKRUPTCY — SECURITIES 42-6-5945 Kenneth A. Barton v. Securities Investor Protection Corp., U.S. Bankrupcy Ct. (11 pp.) In this adversary proceeding, where plaintiffTs broker did not properly execute a sell order, causing plaintiff to suffer a loss which the broker could not satisfy due to its insolvency, plaintiff is not entitled to recover the full amount of his loss from defendant, since the Securities Investor Protection Act was meant to protect customers from the insolvency of broker-dealers, not from customer claims based on breach of contract and fraud. [Approved for publication.] CIVIL PROCEDURE — CONTEMPT 07-7-5946 Placontrol, Inc. v. Seneca Laboratories, Inc., et al., U.S. Dist. Ct. (8 pp.) Where court had ordered defendant to pay the expenses of plaintiffTs expert and defendant knew of that order but failed to pay the invoices until plaintiff filed a motion for contempt, the payment does not excuse the disobedience of the order, and defendant is held in contempt. INSURANCE 23-7-5947 George A. Zoller, et al. v. Prudential Ins. Co. of Am., U.S. Dist. Ct. (9 pp.) In an uncertified class action claiming that defendant insurer is QchurningR life insurance policies, (1) plaintiffsTmotion seeking to restrict insurerTs communications with putative class members, alleging that insurer has engaged in a systematic effort to defeat the prospective class action by pressuring individual settlements, is denied since plaintiffs have failed to offer any evidence that insurer is acting improperly in settling its claims, and (2) insurerTs motion for a stay of the proceedings is granted pending resolution of its motion to transfer several other federal court matters to this court, since there is a hearing scheduled shortly, and the brief stay will not prejudice the plaintiffs and will promote judicial efficiency. LABOR AND EMPLOYMENT — PENSIONS 25-7-5948 Bd. of Trustees of Dist. No. 15 MachinistTs Pension Fund v. Kahle Engineering Corp., U.S. Dist. Ct. (7 pp.) Where defendant (a contributing employer to the plaintiff pension fund pursuant to a collective bargaining agreement) defaulted in contributions, the fundTs summary judgment motion against the defendant is granted, and the defendantTs argument that the action is time-barred because the fund earlier exercised its right to accelerate payments on the default is not borne out by the facts. TRANSPORTATION 49-7-5949 Town of Secaucus, et al. v. U.S. Dept. of Transp., et al., U.S. Dist Ct. (29 pp.) PlaintiffsT motion to enjoin the expenditure of federal funds for the construction of a $448 million transportation hub in Secaucus is denied, and their complaint dismissed in its entirety, since plaintiffs have misconstrued the Inter-Model Surface Transportation Efficiency Act (ISTEA) to prohibit the use of federal funds to pay for a foundation sufficiently strong to support the commercial structure contemplated by an agreement between N.J. Transit and a private company since the joint arrangement is specifically authorized by the statute. [Approved for publication.]

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