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VOL. 3 NO. 95 DECISIONS RELEASED MAY 22, 1995 ALCOHOLIC BEVERAGES — DRAM SHOP 47-2-5678 William Hanson, Adm r, et al. v. Harry Grabel, et al., App. Div. (3 pp.) Merely because corporation which ran tavern did not maintain dram shop or other liability insurance, and therefore was unable to pay off plaintiff’s wrongful death case verdict, the record did not reveal facts that would warrant piercing the corporate veil, nor does it suggest that the failure to maintain such insurance was based on tavern owner’s intent to flout public policy underlying dram shop liability, so summary judgment in favor of the defendant was proper. EVIDENCE 19-2-5679 Harry M. Fox v. Mercedes-Benz Credit Corp., App. Div. (10 pp.) Where belatedly provided discovery was not concealed but provided in supplemental discovery which gave plaintiff full use of all the documents at a deficiency action remand trial, and the new evidence had no bearing on the remand’s outcome, relating only to plaintiff’s ability to defend the deficiency action, summary judgment was properly entered in favor of the defendants on plaintiff’s action for concealing evidence. [Approved for publication May 22, 1995.] FAMILY LAW 20-2-5680 Mary Lou Mineo v. Ludovico J. Mineo, App. Div. (6 pp.) (1) The trial judge properly used a case information statement as direct evidence of the value of defendant’s assets, and was within his discretion to consider the original statement more credible than the second statement by having fully explained his reasons. (2) Where the parties disputed an oral separation agreement, the separation date and the relative extent of the division of assets, the judge was within his discretion to choose the complaint filing date as the date the marriage terminated. 20-2-5681 Joyce Degondea v. Frank Degondea, Jr., App. Div. (5 pp.) Where wife and husband lived in the same home although separated, and husband refused to move his clothes out of wife s closet and pulled the telephone jack out of the wall when wife tried to interfere with a call, these actions do not rise to the level of harassment contemplated by the statute, and a restraining order entered against the husband is vacated. 20-2-5682 Patricia F. Carey v. Robert Moorhouse, App. Div. (6 pp.) A parent’s obligation to support his child is not reduced by reason of the child’s loss of affection for that parent, and is but one factor to be considered on an application for a determination of the child’s emancipation; the judge did not err in denying father’s application to have the son declared emancipated. 20-2-5683 Susan McLaughlin, n/k/a Susan D. Piel v. James McLaughlin, App. Div. (7 pp.) Where parties were long-time New Jersey residents, were divorced in New Jersey and lived in accordance with the terms of the New Jersey judgment, including a consent order for mother to relocate to Delaware with the children, New Jersey had continuing jurisdiction when the mother absconded with the children to Wyoming over father’s objection, despite mother’s attempt to change venue to Delaware. HEALTH 22-1-5684 Douglas R. Colkitt, M.D. v. Bruce Siegel, M.D., et al., Supreme Ct. (19 pp.) In a hospital’s challenge to an application for a certificate of need waiver by a doctor, February 1993 regulations governing certificate-of-need eligibility for radiation oncology services are not an immediate and direct implementation of State Health Plan goals and objectives and do not conflict with the enactment of Chapter 31. INSURANCE 23-2-5685 Anthony Arico v. Twp. of Brick, et al., App. Div. (6 pp.) An excess insurer under a policy purchased by a self-insured municipality, to pay all claims above a fixed amount arising out of accidents involving motor vehicles owned by the municipality, does not become liable to provide primary underinsured coverage when the municipality has elected not to provide basic UIM benefits in connection with its motor vehicles. [Approved for publication May 22, 1995.] 23-2-5686 Antoinette Morrone v. Harleysville Mutual Ins. Co., et al., App. Div. (12 pp.) Since the general rule in construing an occurrence (which holds that injuries that are manifested after the policy has expired have not occurred within the policy period) does not apply to environmental exposure litigation (which uses a continuous trigger approach), insurer owes a duty to defend former owners of gas station for damages arising to subsequent owner as a result of fuel leakage and groundwater contamination. INSURANCE — VERBAL THRESHOLD 23-2-5687 Diane Martin v. Antoinette Handy, App. Div. (5 pp.) Summary judgment for defendant was proper since plaintiff s objective medical evidence of spasm was confined to the initial one-month period following the accident and was not brought up to date by any more recent examination to verify the continuation of the spasm. 23-2-5688 Gerald A. Bleth v. Patricia Drozd, et al., App. Div. (6 pp.) Although plaintiff showed objective evidence of injury, he failed to show that the injuries resulted in a significant limitation of his body or its functions; therefore he did not prove the nexus between the injuries and any disability, and summary judgment for the defense was proper. 23-2-5689 Janice Conti v. Marcelino Landron, et al., App. Div. (7 pp.) Although trial judge was correct in finding that plaintiff sufficiently established the nexus between accident and injury, the trial judge granted summary judgment for the defendant on the mistaken conclusion that the use of the word nexus under Oswin means something more than casual relationship between the accident and the injury, and therefore he erroneously found that plaintiff’s treating physician failed to explain the mechanism of how the injury occurred in the accident and how the mechanics relate to treatment; nevertheless, summary judgment for the defense is proper because plaintiff did not establish the requisite nexus between the injury and any disability. LABOR AND EMPLOYMENT 25-2-5690 Richard F. O Malley v. Bd. of Review, et al., App. Div. (4 pp.) Where business of which employee was vice president and 50 percent shareholder ceased operation but was never dissolved, and employee never resigned as an officer, a significant question arises as to the corporation’s viability since, if corporation is still viable, claimant’s 50 percent interest and officer status disqualifies him from seeking unemployment compensation, as determined below, but, if the business is not viable, he can qualify, and therefore these matters must be determined on remand. PRODUCT LIABILITY 32-2-5691 Victor Urbanovich, Executor v. General Motors Corp., et al., App. Div. (16 pp.) Where neither former owner of vehicle nor driver involved in accident (where car sped forward suddenly as a result of either driver error or vehicle defect) had experienced a problem of unintended or unexpected acceleration, disinterested witnesses said they saw the car jerk forward and the brake lights were never applied, and a subsequent examination of the vehicle revealed no defects, there was no evidence supporting the theory that the mechanical function of an interlock system would have prevented the accident, and the jury’s no cause finding against car manufacturer is sustainable. TAXATION 35-2-5692 Twp. of Wantage v. Ernest Brummel, et al., App. Div. (9 pp.) The Tax Court had sufficient basis to reject taxpayers comparable sales since they were taken from properties in a different municipality, presumably with a different date of most recent valuation and certainly with a different tax rate, and with different applied adjustments. CRIMINAL LAW AND PROCEDURE 14-2-5693 State v. Todd Slinger, App. Div. (7 pp.) Coordinator’s certificate, which verifies that established Breathalyzer machine testing procedures have been followed, is sufficient to satisfy the state’s burden of proving that the machine has been appropriately tested for accuracy, and to the extent that the certificate does not answer all of the questions necessary to decide whether the readings obtained as to a given defendant are accurate in certain circumstances, the state s ability to prove the number of times a simulator solution has been used and the actual readings obtained when the machine was tested go to the weight of the evidence of Breathalyzer readings, not to admissibility. [Approved for publication May 22, 1995.] 14-2-5694 State v. Robert Riche, App. Div. (5 pp.) Where the jury was told generally that it was its function to determine the credibility of the witnesses and their testimony, but not told that they also must assess out-of-court statements for their truthfulness, and, if one or the other was found untruthful, it must be disregarded, the instruction was erroneous and a new trial is mandated.

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