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Vol. 3 No. 203 Decisions Released Oct. 26, 1995 STATE COURT CASES ARBITRATION — INDEMNITY — COUNSEL FEES 03-3-6844 Intl. Fidelity Ins. Co., etc. v. Robert Jones, et al., Law Div. (8 pp.) Where contractor defaulted and insurer was required to defend a claim on a performance bond, (1) the contractor was the “client” of the insurer’s attorneys and, therefore, an indemnity agreement between contractor and insurer providing that contractor would reimburse plaintiff for legal fees paid, is contrary to the policy of R. 1:20A-6, which allows a client to request fee arbitration, and, (2) since the insurer failed to give contractor notice of its intent to file suit for such fees as required by the rule, its fee claim is dismissed. [Approved for publication Oct. 26, 1995.] ARBITRATION — POLICE 03-2-6845 Port Auth. of N.Y. and N.J. v. Port Auth. Police Benevolent Assn. Inc., App. Div. (7 pp.) Since a decision not to offer overtime is a management prerogative which is not subject to negotiation, the arbitrator exceeded his jurisdiction in addressing the issue, and the Law Division properly vacated that portion of the arbitration award. CONTRACTS — UTILITIES 11-2-6846 In the Matter of the Petition of Midatlantic Cogen Inc., etc., App. Div. (12 pp.) The Board of Public Utilities properly determined that PSE&G and plaintiff were negotiating during the relevant time period, and there was never an enforceable obligation for plaintiff to provide energy or capacity to PSE&G. GOVERNMENT — NOMINATING PETITIONS 21-2-6847 In the Matter of a Challenge by Gale Wactor, etc., App. Div. (2 pp.) Although candidate did not sign his own nominating petition, this failure to abide by the strict letter of the statute constituted a de minimus lack of compliance, was a technical oversight with no suggestion of fraud, and did not disqualify the petition and the candidate. INSURANCE — INCOME CONTINUATION BENEFITS 23-3-6848 Michael MacKenzie v. N.J. Auto. Full Underwriting Assn., Law Div. (13 pp.) The fact that a real estate salesman was eligible to collect Social Security disability benefits did not foreclose his right to collect income continuation benefits from his own automobile insurance carrier pursuant to the no-fault statutes, and insurer improperly terminated such benefits, although the insurer’s methodology for calculating such lost income will be adopted over that suggested by the salesman. [Approved for publication Oct. 26, 1995.] LABOR AND EMPLOYMENT — DISCRIMINATION 25-2-6849 Agnes Clark v. Merchants Ins. Group, App. Div. (3 pp.) Although the investigation by the state Division of Civil Rights confirmed that there was a large degree of animosity between complainant and her supervisor, the division properly found that the animosity had nothing to do with complainant’s age or gender, and that her termination was related to an unauthorized absence, and was not a product of discrimination by the employer. LAND USE 26-2-6850 Ivy Hill Preschool Inc., et al. v. Planning Bd. of Rumson Borough, App. Div. (14 pp.) Planning Board unreasonably denied plaintiff’s application — for site plan approval to use its substandard lot for a day care center — because of an unsubstantiated fear of off-site traffic congestion. NEGLIGENCE — TORT CLAIMS ACT 31-2-6851 William F. Randazzo Jr., et al. v. Twp. of Washington, etc., App. Div. (7 pp.) While plaintiff may have been incorrect in his assumptions regarding the sufficiency of his oral notice to municipality (regarding his fall on an icy municipal parking lot), the notice was sufficient, together with plaintiff’s ignorance of the statutory Tort Claim Act notice requirements, such that the trial judge should have granted permission for the late filing of a notice of claim. PARENT/CHILD 28-2-6852 In the Matter of the Guardianship of S.H.E., App. Div. (4 pp.) Where birth mother failed to complete a substance abuse program, which was the one last hope she had of salvaging her life and regaining custody of her child, judge’s decision that her parental rights should be terminated is affirmed. TORTS — CONVERSION 36-2-6853 Suresh Gidwani, etc., et al. v. Indur T. Thadani, et al., App. Div. (3 pp.) Finding that defendants had converted proceeds of insurance policy — placed in their hands in India by one of the defendant’s mother for the express purpose of delivering the money to that defendant’s sister in the United States — is affirmed since it is supported by substantial credible evidence. WORKERS’ COMPENSATION 39-2-6854 Samuel R. Edmonds v. Engelhard Corp., App. Div. (6 pp.) The judge of compensation correctly determined that millwright had not carried his burden of proving that his work effort caused his myocardial infarction and had not proved an increase in his pulmonary disability. FEDERAL COURT CASES ATTORNEYS — APPOINTMENT OF COUNSEL — CORRECTIONS 04-7-6855 Juan A. Andrades, pro se v. Jack Terhune, Sheriff, etc., U.S. Dist. Ct. (7 pp.) Since inmate has failed to allege the elements necessary to support a meritorious constitutional challenge to his treatment in prison, his application for appointment of counsel must be denied. GOVERNMENT — APPOINTMENTS — DISCRIMINATION 21-7-6856 Richard C. Wright v. City of East Orange, et al., U.S. Dist. Ct. (11 pp.) Summary judgment is granted to defendants since plaintiff has failed to prove that the Board of Police Commissioners used race as a factor in promoting police chief or that the mayor unlawfully manipulated the eligibility list. LABOR — UNFAIR LABOR PRACTICES 25-8-6857 Metropolitan Dist. Council …United Bhd. of Carpenters, etc. v. Natl. Labor Relations Bd., Third Cir. (11 pp.) The NLRB was correct in its decision that builder did not commit an unfair labor practice — by denying union representatives access to its property to distribute handbills to prospective customers — since other reasonable alternative means were available by which union could communicate its message to builder’s potential customers, and nonemployees do not have a right of access to employer’s private property if an alternative means of communication exists. SECURITIES — EVIDENCE 50-7-6858 S.E.C. v. Hughes Capital Corp., et al., U.S. Dist. Ct. (6 pp.) In a case where the defendants are alleged to have orchestrated a sham public offering, and the S.E.C. seeks disgorgement of the proceeds, S.E.C.’s motion to exclude a defense exhibit and photocopies of certain check stubs used in preparing the exhibit is granted, since the check stubs are inadmissible both as hearsay and under the best evidence rule, and the exhibit, since it is based on the inadmissible check stubs, is also rendered inadmissible. Approved for publication: 35-8-6843 Alan K. Lauckner v. U.S.A. v. John Hug, et al. (Alert dated Oct. 25, 1995.)

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