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Vol. 3 No. 150 Decisions Released August 10, 1995 STATE COURT CASES ADMINISTRATIVE LAW — DENTISTS — ADVERTISING 01-2-6350 In the Matter of the Adoption of Amendments to N.J.A.C. 13:30-8.6, App. Div. (5 pp.) To the extent that communications from the FTC to the state Board of Dentistry or the attorney general, made in conjunction with proposed amendments to professional advertising regulations, were the motivating factors in the adoption of the rule amendments and framed the board’s discussion and decision-making, the communication is an integral part of the rule-making record and should have been disclosed, and therefore the amendments’ adoption is reversed and the matter remanded. CIVIL PROCEDURE — JUDGMENTS — INTEREST 07-2-6351 R. Jennings Mfg. Co., Inc. v. Northern Elec. Supply Co. Inc., et al., App. Div. (7 pp.) Where parties’ contract specified a certain percentage of interest to be paid on a debt that was higher than the rate allowed by the court rules on judgments, the best approach would be to apply the contract rate up until the time the judgment is entered, and the court rules’ rate after, although the matter is remanded to allow the trial judge to determine whether it would be equitable to allow interest to run on the judgment at the higher contract rate to avoid prejudice to the judgment creditor caused by delays in satisfying the judgment. CONSTRUCTION — NEGLIGENCE — INDEMNIFICATION 43-2-6352 Frances A. Bradford, Executrix v. Kupper Assoc., et al.; John E. Ware v. Agate Constr. Co., et al., App. Div. (40 pp.) Jury charges were proper in case where construction company employees were injured or killed when they inhaled poisonous gas on work site, and any errors did not warrant reversal of no cause verdict in favor of project engineer and utilities authority; nevertheless, dismissal of engineer’s and authority’s indemnification claims for legal fees against construction company should not have been granted and is reversed. [Approved for publication Aug. 10, 1995.] [Available online in N.J. Full-Text Decisions.] FAMILY LAW 20-2-6353 Alicia Kathryn Parker (formerly Kern) v. Steven Ira Kern, App. Div. (10 pp.) Since wife established a prima facie case of changed circumstances predicated upon children’s maturation and increased needs, as well as the children’s right to share in their father’s substantially increased earnings, a hearing should have been held and the denial of her motion for a child support increase is reversed; that portion of her motion requesting an increase in alimony is affirmed, since she did not meet her burden on that claim. INSURANCE 23-2-6354 N.J. Transit Rail Operations Inc., et al. v. William Hyndman III Ins. Agency, et al., App. Div. (30 pp.) In a complex insurance coverage case, arising out of the construction and rehabilitation of three rail stations, and a wrongful death claim filed when a man was hit by a train at one of the stations, (1) while railroad protective liability policy requiring insurer to defend and indemnify train company was in full force and effect on the date of the accident, the policy did not cover the individual train crew members, and summary judgment ordering such coverage is reversed, and (2) insurer of contractor under performance and payment bond is not liable for coverage on the tort claim because its bond is a surety bond, not an insurance policy. INSURANCE — VERBAL THRESHOLD 23-2-6355 Randy Conley v. Cindy Evans, et al., App. Div. (3 pp.) Motion judge erred in crediting plaintiff’s deposition testimony regarding the effect of an accident and injuries on his athletic activity more heavily than the recitations in plaintiff’s affidavit, since the evidence presented a question as to whether the sports activity had been a significant component of plaintiff’s life, and the credibility and weight issues as to each piece of evidence should be left for determination at trial. WORKERS’ COMPENSATION 39-2-6356 Frederick Bell v. Asbury Graphite Mills, App. Div. (6 pp.) Judgment that employee was totally and permanently disabled as a result of pulmonary disease caused by his occupational exposure to graphite dust is affirmed since there is substantial credible evidence to support the judge’s findings, and the judge did not err in failing to give employer a credit for disability caused by the employee’s cigarette smoking, since the employer failed to sustain its burden of establishing a preexisting loss of function. A

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