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Vol. 3 No. 106 DECISIONS RELEASED JUNE 7, 1995 STATE COURT CASES AUTOMOBILES 05-2-5799 State v. Sam B. Birnhak, App. Div. (4 pp.) Where, at the time of an automobile accident, defendant was clearly intoxicated but later admitted that his minor son had been driving the vehicle, and the municipal court judge found the defendant guilty of operating his vehicle while intoxicated but at a different time than at the time of the accident, the fact that the Law Division judge heard the case de novo and found the defendant guilty of DWI at the time of the accident is not vitiated by the municipal court findings. HEALTH — MEDICAID 22-1-5800 L.M. v. State, Div. of Medical Assistance and Health Svcs., et al., Supreme Ct. (32 pp.) Where Medicaid applicant had been ordered to distribute his pension to his ex-spouse in a divorce judgment, the pension is “owned” by the ex-spouse and does not constitute available income to the applicant in assessing his Medicaid benefits eligibility. INSURANCE 23-2-5801 In the Matter of First Trenton Indem. Co.’s Termination of Able Professional Svcs., Inc. under the Producer Assignment Program, App. Div. (4 pp.) Where there was no showing that agent knew or should have known of its agency status, as opposed to broker status, there was insufficient evidence to find that the agency’s actions in charging fees to applicants for insurance policies (which is allowed to brokers but not to agents) constituted “gross and willful misconduct” by virtue of which its producer assignment was terminated. INSURANCE — AUTOMOBILES 23-2-5802 Rehab Health Corp. of N.J. v. David Gugger, et al., App. Div. (12 pp.) Although a de facto ward or foster child can be considered a “family member residing in the insured’s household,” such that PIP benefits under the household’s automobile policy would be extended, a 19-year-old who cohabits with an unrelated family, although the relationship may be a supportive, close and loving one, does not fall within the statutory definition, and PIP benefits were properly denied by carrier. INSURANCE — VERBAL THRESHOLD 23-2-5803 Ralph Campo v. Hesham A. Sabry, App. Div. (7 pp.) There was a triable issue of fact regarding the impact upon plaintiff’s life of the injuries suffered in an accident, where plaintiff suffered from preexisting limits due to a heart condition, but where the things he could do were even further limited by the accident, and summary judgment should not have been granted to the defense. NEGLIGENCE — AUTOMOBILES 31-2-5804 Robert McGee v. Rafael C. Ramos, App. Div. (5 pp.) The fact that the jury heard the judge’s reference to the fact that the defendant had liability insurance coverage was not sufficient to prejudice and taint its $900,000 verdict against defendant, since mere awareness of the existence of coverage is a far cry from awareness of the extent of the coverage. CRIMINAL LAW AND PROCEDURE 14-2-5805 State v. Joseph Artesi, Jr., App. Div. (11 pp.) Where, following the jury verdict acquitting defendant of manslaughter charges but finding him guilty of lesser charge of aggravated assault, jury forewoman advised judge that defendant’s brother had stalked the jury panel and the jurors had discussed their fears during deliberations, the judge erred in not making further inquiry into these incidents, and conviction is reversed and remanded for a new trial. FEDERAL COURT CASES REAL PROPERTY — QUIET TITLE ACTION 34-7-5806 Samco Rockaway 90, Inc. v. Lawyers Title Ins. Corp., U.S. Dist. Ct. (9 pp.) Lots held by municipality for recreational or conservation purposes under the Green Acres program could not be sold without permission from the N.J.Dept. of Environmental Protection & Energy, and, since such permission was not obtained, the municipality’s sale of the property is ultra vires and void ab initio. A

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