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Vol. 3 No. 156 – AUGUST 18, 1995 Decisions Released August 18, 1995 STATE COURT CASES WORKERS’ COMPENSATION 39-11-6400 Debra Smith v. Hoffmann-La Roche, Workers’ Comp. Ct. (9 pp.) In petitioner’s application for benefits from the Second Injury Fund, the court finds that respondent is entitled to a reduction based upon petitioner’ s receipt of Social Security disability benefits for herself and auxiliary benefits for her son, as provided in N.J.S.A.34:15-95.5. 39-11-6401 King Batie Jr. v. Shieldalloy, Workers’ Comp. Ct. (27 pp.) Where petitioner, a furnace operator, suffered foot injuries in two separate accidents during his work shift, (1) since the petitioner s testimony is uncontradicted and is corroborated by a co-worker, he has proved that the first accident, where a large piece of aluminum struck him in the left foot, arose out of and in the course of his employment, and that he suffered a compensable 7.5 percent permanent partial disability, although he is not also entitled to temporary disability benefits, and (2) with respect to the second accident, which was admitted by respondent, where a co-worker dropped aluminum into the furnace causing molten aluminum to splash on petitioner s right foot, causing severe burn injuries, the court finds that the petitioner is entitled to a an award of 35 percent permanent partial total of the right foot for the disability and 6.5 percent permanent partial total for the cosmetic scarring, but respondent is entitled to a credit toward the disability award for the period in which petitioner was incarcerated for a drug offense. FEDERAL COURT CASES CIVIL PROCEDURE — RELIEF FROM JUDGMENT 07-7-6402 Lightning Lube Inc., et al. v. Witco Corp., et al. v. Ralph Venuto, et al., U.S. Dist. Ct. (9 pp.) In a case where franchise executed an assignment to franchisers for an amount certain, franchisee’s application to reduce the amount of the judgment entered in franchisers’ favor is denied, since the change requested would significantly affect the parties’ substantive rights, and is therefore beyond the scope of Rule 60(a), and relief under 60(b)(1)-(3) is time-barred; franchisers application to have the judgment amount changed to the amount in the assignment is granted, since this is clearly the amount that should have been granted. CONTRACTS 11-7-6403 E.I.DuPont de Nemours & Co. v. Bengal Graphics Inc., U.S. Dist. Ct. (26 pp.) In a case where, over the years, various graphic arts systems were sold to printing company by DuPont and its predecessor, but none of the systems performed up to printer’s needs and expectations, on DuPont’s motion for summary judgment seeking to dismiss counterclaims brought by printer in collection suit for amounts due under the systems sale contract, (1) DuPont’s motion to dismiss express warranty claims is denied, since there are issues of material fact regarding the parties intentions in dealing with the express warranties, (2) the counterclaim for implied warranty of merchantability will be dismissed since the agreements clearly disclaim them, and (3) printer’s claims for consequential and incidental damages, negligent misrepresentation, negligent installation and tortious interference with prospective economic advantage are dismissed. DEBTOR/CREDITOR — CONSTRUCTION 15-7-6404 Frank Briscoe Co. v. Travelers Indemnity Co., et al., U.S. Dist. Ct. (81 pp.) Where construction company/contractor defaulted on loan given by insurance company (which also issued performance bonds for contractor) and insurance company, under the loan agreement, chose to liquidate contractor’s assets, but allowed contractor to continue to pursue its receivable claims under an agreement for the disposition of collateral (ADC), insurance company is a secured creditor, not a fiduciary, under the ADC, and contractor is a defaulting debtor; therefore, insurance company is the owner of all collateral deposited by contractor under the ADC, and debtor is not entitled to interest on the disposition of the collateral proceeds. [For publication.] EVIDENCE — WORKPLACE INJURY 19-7-6405 Jerry Diaz, et al. v. Johnson Matthey Inc., et al., U.S. Dist. Ct. (55 pp.) In case where maintenance mechanic developed lung problems from on-the-job exposure to platinum dust, (1) the employer is not collaterally estopped from relitigating the issues in mechanic’s civil action because the workers’ compensation court found that mechanic’s lung injury was caused by his employment, since workers compensation and negligence liability are mutually exclusive remedies, (2) since the court finds mechanic’s expert unqualified and unreliable, the employer’s motion to strike him as a witness is granted, and (3) since mechanic has no expert testimony and cannot prove causation, summary judgment must be granted in favor of employer. SECURITIES 50-7-6406 S.E.C. v. Hughes Capital Corp., et al., U.S. Dist. Ct. (8 pp.) The court affirms the magistrate judge’s order–granting S.E.C.’s motion for leave to file an amended complaint for restitution in its action for alleged violations in connection with defendant’s public offering–since the restitution remedy, which may alter the amount of damages, will not materially alter the case’s factual or legal issues, and since the court could order the relief even without the amendment due to the fact that the S.E.C.’s original prayer for relief sought ‘such other and further relief as the Court may deem just and equitable.’ –END– A Daily Reporter of New Jersey Court Decisions

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