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Vol. 3 No. 134 Decisions Released July 19, 1995 STATE COURT CASES LABOR AND EMPLOYMENT 25-2-6185 Charles Loring, t/a Loring Wertley & Co., CPA’s, App. Div. (16 pp.) On accounting firm’s complaint against former employee alleging that employee had breached an employment-contract promise not to serve any of the firm’s clients for a two-year period after the termination of her employment, judge erred in finding that the provision was ambiguous and must be construed against firm, and judgment in favor of former employee is reversed. LABOR AND EMPLOYMENT — WHISTLEBLOWERS 25-2-6186 Robert N. Barratt v. Cushman & Wakefield of N.J. Inc., et al., App. Div. (13 pp.) Since the Conscientious Employee Protection Act, which originally protected an employee only from retaliatory action by his or her own employer in response to disclosures about that employer, was amended to include protection from the employer in response to disclosures about another employer with whom the original employer has a business relationship, the trial judge erroneously dismissed broker’s CEPA complaint where broker was terminated for advising an administrative agency of alleged improprieties of individual with whom his employer had a significant business relationship. LABOR AND EMPLOYMENT — LAW AGAINST DISCRIMINATION 25-3-6187 Christine Baliko, et al. v. Joseph P. Stecker, et al., Law Div. (15 pp.) Although the comments made to employees trying to cross a picket line might have been sexually harassing in nature, since application of the L.A.D. to sanction picket line speech and expressive conduct would violate the picketers’ constitutionally protected free speech rights under the First and Fourteenth Amendments, employees’ sexual harassment claim is dismissed. [Available online in N.J. Full-Text Decisions.] PUBLIC RECORDS 52-1-6188 Southern N.J. Newspapers, Inc. v. Twp. of Mt. Laurel, et al., Supreme Ct. (33 pp.) Although newspaper’s Right-To-Know Law request to obtain access to firearm permits and related documentation has been rendered moot by an Attorney General’s office regulation exempting from public disclosure background checks and firearm purchase applications, the matter is remanded to the trial court to conduct an appropriate balancing test under the common law right of access. [Available online in N.J. Full-Text Decisions.] 52-1-6189 Higg-A-Rella Inc., etc., et al. v. County of Essex, etc., et al., Supreme Ct. (27 pp.) Seller of tax assessment data is not entitled to access to computer tapes of tax assessment records under the state Right to Know Law, since (1) the records are not “required to be maintained” by the county, and (2) since the Legislature has amended the law to provide that the right to gain access to such records means the right to receive only printed copies of such records, but seller has established a common law interest in these public records and, under the common law balancing test, the seller is entitled to the release of the computerized records, and the case is remanded to the trial court to determine what constitutes a “reasonable fee” for the service. [Available online in N.J. Full-Text Decisions.] REAL ESTATE 34-2-6190 Dr. Samuel Rubin, et al. v. Barry Kessler, et al., App. Div. (7 pp.) Where proposed contract purchasers of real estate failed to exercise a mortgage contingency within the 30-day period provided for in the contract, but chose to void the contract on a site plan contingency clause, the judge correctly found that the purchasers were deemed to have waived the mortgage contingency and could not avail themselves of any of its protections when their attempt to void the contract under the site plan contingency was adjudicated against them. 34-2-6191 Tudora Dinu, et al. v. Deborah Bragen, et al., App. Div. (9 pp.) Trial judge erred in enforcing contract’s liquidated damages provision and in allowing seller to retain the purchasers’ full deposit without proving actual damages, and the judgment against breaching contract purchasers is modified to provide for calculation of actual loss for a six-month period from the ultimate deadline date that seller set for the closing until the home ultimately was sold to third parties. WORKERS’ COMPENSATION — LIENS 39-2-6192 Ins. Co. of North Am. v. Richard Weinbrenner, et al., App. Div. (5 pp.) In case where beer distributor’s employee fell in a tavern and was compensably injured, since the evidence shows that the injured employee’s attorney knew that insurer had perfected its compensation lien against tavern owner and tavern’s liability carrier, and knew that insurer was paying medical bills and temporary disability benefits to employee, attorney is liable to insurer for reimbursement of its lien since he disbursed settlement proceeds without protecting the lien. FEDERAL COURT CASES ADMINISTRATIVE LAW — SOCIAL SECURITY — DISABILITY 01-7-6193 Jacqueline Fabel v. Donna E. Shalala, Sec’y of Health and Human Services, U.S. Dist. Ct. (10 pp.) Because Social Security Ruling 82-52, which makes the timing of a trial work period contingent upon the approval of a disability insurance benefit award, does not comport with the Social Security Act’s plain language, the Secretary of Health and Human Services’ decision, denying claimant’s disability insurance benefits application because of that ruling, is reversed. [Available online in N.J. Full-Text Decisions.] CONTRACTS — DEFAULT JUDGMENT 11-7-6194 MCI Telecommunications Corp. v. Costamar Travel Cruise & Tours Inc., U.S. Dist. Ct. (7 pp.) Where travel agency did not answer MCI’s complaint or oppose the entry of default in MCI’s action for unpaid services because it had advised MCI of an alleged misidentification of the party that actually accrued the debt, even though travel agency’s neglect may not be excusable, since its defenses of accord and satisfaction and misidentification would serve as a total bar to liability and since there is no prejudice to the plaintiff, the default judgment will be vacated upon the posting of a bond. INSURANCE — SPILL ACT COVERAGE 23-7-6195 Caldwell Trucking PRP Group v. Spaulding Composites Co., Inc., et al., U.S. Dist.Ct. (39 pp.) In plaintiff’s action seeking contribution for contamination cleanup and remediation efforts from various allegedly responsible parties, (1) since a review of the conflicting interpretations of the New Jersey Spill Act leads to the conclusion that the Spill Act does not authorize the plaintiff’s direct action against the defendant insurers, that aspect of the complaint is dismissed, and (2) since the express terms of the defendant insurer’s policies, which were issued to the allegedly responsible party, preclude that party from joining the defendants in the action in which the party’s underlying liability will be determined, the party’s cross-complaint is dismissed. [For publication.] [Available online in N.J. Full-Text Decisions.] NEGLIGENCE — RENTED AUTOMOBILES — CHOICE OF LAW 31-7-6196 Kevin B. Roland, et al. v. Michael B. Boring, et al., U.S. Dist. Ct. (12 pp.) Based upon an analysis of the policies underlying the New York and New Jersey laws concerning a vehicle owner’s accident liability, and the finding that New York has a more compelling interest in seeing its law applied, rental company’s summary judgment motion is denied, since New York allows a plaintiff to recover against the vehicle owner despite the lack of an agency relationship between the driver and the owner. TRUSTS — ERISA — FIDUCIARIES — LIMITATIONS 38-7-6197 Robert B. Reich v. James R. Johnson Sr., et al., U.S. Dist. Ct. (5 pp.) Since Labor Secretary’s complaint against trustees of employee benefit and profit-sharing plan is concerned with trustees’ alleged failure to diversify assets, and such conduct would constitute an omission, the statute of limitations is measured from the last date on which trustees could have cured the alleged breach of fiduciary duty, and, since trustees had the opportunity to sell the stock and cure the breach up until 1991 at least, and secretary’s complaint was filed within six years of that time, trustees’ motion to dismiss the complaint on the grounds that it is time-barred is denied. [Available online in N.J. Full-Text Decisions.]

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