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Vol. 3 No. 146 Decisions Released August 4, 1995 INSURANCE — UIM/UM COVERAGE 23-2-6314 Jenny Flynn, et al. v. Allstate Ins. Co., App. Div. (7 pp.) Trial judge’s decision–denying plaintiff reformation of automobile insurance policy’s uninsured/ underinsured motorist provisions issued by defendant — is reversed, since the fact that plaintiff did not carefully read the contract’s declarations section was not a basis for refusing to consider her claim that its contents varied from the parties’ understanding, and the matter is remanded to the trial judge for an analysis under applicable contract laws. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-6315 Lauriano S. Paulo v. Bd. of Review, App. Div. (12 pp.) Since N.J.S.A. 43:21-16(d) requires the full repayment of unemployment benefits received by an individual who was not actually entitled to them regardless of the individual’s good faith, and, in light of the crucial importance of preserving the Unemployment Trust Fund for individuals genuinely entitled to benefits, an erroneous initial decision by the Division of Programs to pay unemployment benefits to a claimant does not justify applying estoppel against the agency from recouping the wrongfully issued benefits. (This decision is a reconsideration of the opinion issued under DDS No. 25-2-5764 on June 2, 1995.) CRIMINAL LAW AND PROCEDURE 14-2-6316 State v. Rodney Harris McKenzie, App. Div. (3 pp.) Since the trial court should have merged the conviction for possession of a firearm for an unlawful purpose with the armed robbery convictions, and the conviction for possession of a handgun without a permit should not have been merged with the conviction of possession with a handgun for an unlawful purpose, and since separate convictions should have been entered for each of the two armed robberies, the convictions are reversed and the matter is remanded for entry of an amended judgment of conviction. State Opinion Approved for Publication: 16-2-6267 Roxbury Twp. Bd. of Educ. v. West Milford Bd. of Educ., et al. [Approved for publication July 31, 1995.] [Available online in N.J. Full-Text Decisions.] FEDERAL COURT CASES ARBITRATION — LABOR — CONSTRUCTION 03-7-6317 Laborers Local Union, etc., et al. v. Carbro Constr. Corp., et al., U.S. Dist. Ct. (6 pp.) Arbitration pursuant to collective bargaining agreement was proper, and arbitrator’s finding that corporation was liable to union for delinquent pension benefit contributions and payment of attorneys’ and arbitrator’s fees is affirmed, since corporation’s actions–in signing remittance forms, voluntarily submitting to union’s audit, and deducting and withholding union dues and vacation monies from union members’ paychecks–indicated consent to be bound by the collective bargaining agreement, despite the fact that corporation was not an original signatory to the agreement and denied being bound. BANKING — RESOLUTION TRUST CORPORATION 06-7-6318 Clarice McClendon v. Resolution Trust Corp., etc., et al., U.S. Dist. Ct. (5 pp.) Since the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) provides a comprehensive and exclusive framework within which claims can be made in cases regarding failed banks, and there is nothing before the Court that indicates that plaintiff has filed a claim directly with the RTC, as receiver of Carteret Federal Savings Bank, before filing suit against it, the RTC’s motion to dismiss plaintiff’s complaint is granted, without prejudice, pending exhaustion of the administrative remedies afforded to plaintiff by FIRREA. CONTRACTS — COPYRIGHT 11-7-6319 McGraw-Hill Inc. v. Guaranteed Destruction Inc., et al., U.S. Dist. Ct. (10 pp.) In a case involving a contract for book destruction between publisher and destruction company, where publisher retained full ownership and legal title to the books until they were destroyed, and where publisher alleged that destruction company diverted books destined for destruction and placed them into the stream of commerce through a book company, (1) publisher’s motion to assert additional facts is granted, since in light of the contract’s reservation of title provision, there is a question of fact as to whether publisher retained title to the books, and the “first sale” defense, which precludes liability for copyright infringement, does not necessarily render plaintiff’s proposed amendments futile, and, (2) since it is well established that a corporate officer can be liable as a joint tortfeasor with the corporation in a copyright infringement case where the officer was the dominant influence in the corporation, and determined the policies that resulted in the infringement, publisher s motion to add as a defendant the president, chairman and sole shareholder of book company, who had the authority to authorize payment for the diverted books, is granted. CORRECTIONS — SENTENCING — IMMIGRATION 13-7-6320 Harold Holguin-Hernandez v. U.S.A., U.S. Dist. Ct. (7 pp.) Inmate’s request to have his sentence vacated, set aside or corrected is denied, and his contentions that, as a deportable alien, he was entitled to “downward departure,” and that post-sentencing amendments should be applied retroactively to reduce his sentence, are without merit. LABOR AND EMPLOYMENT — EDUCATION — CONSTITUTIONAL LAW 25-7-6321 Robert Harrington v. Cheryl Lauer, et al., U.S. Dist. Ct. (17 pp.) On reconsideration of a prior motion (see June 16, 1995, Alert under DDS No. 25-7-5915) where it is clear from reviewing plaintiff’s submissions in opposition to defendants’ motion for reconsideration that plaintiff intended to allege that defendants conspired to deprive plaintiff of his privileges under the law in violation of Section 1983, then summary judgment on that count must be granted to the defendants, since an individual cannot be held liable under Section 1983 unless he caused or participated in an alleged constitutional deprivation, and no such direct participation can be shown here. [Approved for publication.] A

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