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Vol. 4 No. 94 – MAY 16, 1996 STATE COURT CASES ATTORNEYS — FEE-SHARING 04-2-8921 Rosemarie DePinto v. George McQuilken, M.D., et al.; Morrow and Curzi v. Baker, Garber, et al., App. Div. (6 pp.) In resolving fee-sharing counsel fee dispute between plaintiff’s successive attorneys, the judge cited but did not apply the criteria from LaMantia v. Durst, 234 N.J. Super. 534 (App. Div.), cert. denied, 118 N.J. 181 (1989), and matter is remanded for an analysis under those criteria. CONTRACTS — ENTIRE CONTROVERSY 11-2-8922 Kaselaan & D’Angelo Assocs., Inc. v. Warren L. Soffian, Esq., et al., App. Div. (8 pp.) The entire controversy doctrine precludes only successive suits involving related claims, and does not require the dismissal of a state court action arising out of the same sequence of events as a previously filed federal district court action where the federal action has not yet been concluded. [Approved for publication May 16, 1996.] EDUCATION — PAROCHIAL TEACHERS RIGHT TO ORGANIZE 16-2-8923 S. Jersey Catholic School Teachers Ass’n v. St. Teresa of the Infant Jesus Church Elementary School, et al., App. Div. (45 pp.) The compelling state governmental interest expressed in the grant of the fundamental right to organize and bargain collectively by the state constitution prevails over the claim of an unconstitutional burden on parish schools’ and Diocese’s free exercise of religion, and Chancery Division is directed to order an official representational election and require defendants to collectively bargain with the chosen representative of the lay teachers. [Approved for publication May 16, 1996.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-8924 C.N. v. A.R.T., App. Div. (4 pp.) The domestic violence permanent restraining order against defendant must be reversed for refusal of the trial court to permit defendant to subpoena or call plaintiff’s nephew, a material witness, which denied him his right to a fair trial. INSURANCE 23-2-8925 Christina Bailey v. Garden State Hospitalization Plan, et al., App. Div. (3 pp.) The court affirms the Law Division decision — reported at 280 N.J. Super. 206 (1994) — requiring a secondary health care provider to pay benefits prior to the exhaustion of all applicable personal injury protection benefits. [Approved for publication May 16, 1996.] 23-2-8926 Liberty Mut. Ins. Co. v. Selective Ins. Co. of Am., et al., App. Div. (6 pp.) Trial judge correctly held that garage policy insurer’s exclusionary clause — denying coverage where the insured’s motor vehicle was leased or rented to others — must be voided as not complying with the statutorily-mandated policy that all motor vehicles registered in the state be covered by liability insurance, however, since the judge did not resolve issues regarding the existence of other insurance policies which might have provided coverage for the accident in question, the judge’s proration of the respective responsibilities of the two primary carriers must be reversed and remanded. LABOR AND EMPLOYMENT — SEXUAL HARASSMENT 25-2-8927 Pamela Woods-Pirozzi v. Nabisco Foods, App. Div. (24 pp.) A rational juror could conclude that employer had an adequate measure of control over its independent contractor’s relationship with its employees, and therefore was negligent regarding male independent contractor’s sexual harassment of female employee, and the dismissal of female employee’s sexual harassment claim is reversed. [Approved for publication May 16, 1996.] NEGLIGENCE — ENGINEERS 31-2-8928 Gary Knight v. Land Dimensions Eng’g Corp., et al., App. Div. (24 pp.) Since a reasonable person could have found that engineers were liable to landowners under a theory of negligent misrepresentation — for negligently representing that land was free of “wetlands” — judge erred in granting directed verdict for engineers on contract theory. PARENT/CHILD — PATERNITY — INTESTATE SUCCESSION 28-2-8929 Joanne Wingate, et al. v. Estate of John J. Ryan, et al., App. Div. (17 pp.) The Legislature intended the Parentage Act’s procedures and standards to apply to all paternity claims, including those designed to establish a right to intestate succession, and the court should not have denied defendant’s motion to dismiss paternity claim against intestate father’s estate as time-barred. [Approved for publication May 16, 1996.] PHYSICIAN/PATIENT 29-2-8930 Mary Kitchell, et al. v. Mountainside Hosp., et al., App. Div. (6 pp.) Plaintiffs’ medical malpractice case was properly dismissed for lack of expert testimony, and the trial judge did not err in refusing to admit expert’s deposition since, although the expert rendered a report and gave a deposition, he advised plaintiffs all along that he would not testify in the case, and plaintiffs had ample opportunity to obtain another expert who would testify at trial, but never requested an adjournment to procure a substitute. 29-2-8931 Arthur Frost, et al. v. Erwin Bruce Hallett, M.D., App. Div. (16 pp.) Although the liability findings against doctor in plaintiff’s medical malpractice case are supported and affirmed, as is the per quod award to plaintiff’s wife, a new trial on damages must be held, as the judge apparently miscalculated plaintiff’s lost earnings, and there was a miscarriage of justice in the excessive award for pain, suffering and disability. CRIMINAL LAW AND PROCEDURE — CARJACKING 14-2-8932 State v. Hratch Zadoyan, App. Div. (17 pp.) Although the evidence supported a determination beyond a reasonable doubt that defendant exercised control of victim’s vehicle with a purpose to temporarily withhold it, and carjacking conviction is affirmed, the matter must be remanded for resentencing, since the defendant was convicted under the least serious “accompanying element” and yet was sentenced at the high end of the sentencing range, reserved for carjackings that involve the most serious “accompanying elements.” [Approved for publication May 16, 1996.] FEDERAL COURT CASES ADMINISTRATIVE LAW — FIREARMS LICENSES 01-7-8933 John Cimisi v. Robert Rubin, Secretary of the Treasury, U.S. Dist. Ct. (16 pp.) Bureau of Alcohol, Tobacco and Firearms properly denied plaintiff’s application for a firearms dealer’s license since he did not have a premises from which he conducted such business or intended to conduct such business within a reasonable period of time and because he made a false statement regarding his business address on his application. ATTORNEY/CLIENT — MALPRACTICE INSURANCE 04-7-8934 Norman Shabel, P.C., et al. v. Nat. Union Fire Ins. Co., U.S. Dist. Ct. (6 pp.) Since the allegations of clients’ complaints against lawyer indicate clearly that the relief sought is limited to the return of excessive attorney’s fees deducted from settlement proceeds — although the addendum clause seeks the recovery of “damages” — insurer is granted summary judgment on attorney’s suit seeking coverage and a defense, since the return of “fees” is expressly excluded from the policy. [For publication.] BANKRUPTCY 42-6-8935 In re: Alan Baker, Debtor, U.S. Bankruptcy Ct. (22 pp.) In a bankruptcy proceeding where the court had approved the sale of debtor’s real estate and operating assets of funeral business, trustee’s motion to hold the operator of the funeral home in civil contempt of the court’s order is granted, since the operator removed files, records and inventory of the business that were to be included in the sale, forcing the trustee to reduce the selling price and to incur additional costs. CIVIL RIGHTS 46-7-8936 Kenneth Ridgeway v. City of Woolwich Twp. Police Dept., et al., U.S. Dist. Ct. (17 pp.) Given the circumstances after an extensive automobile pursuit, and the plaintiff’s conduct, which shaped the pursuing officer’s perception of the incident, it was not feasible for the officer to issue a warning before firing at the plaintiff, and, as a matter of law, the officer’s use of deadly force was reasonable and not excessive; therefore summary judgment is granted to the officer on plaintiff’s civil rights claim and to the city and police department on the claim for inadequate training. LABOR/EMPLOYMENT — E.R.I.S.A. — MEDICAL BENEFITS 25-7-8937 Maureen McGurl, et al. v. Teamsters Local 560 Trucking Employees, etc., U.S. Dist. Ct. (32 pp.) In a case of first impression, the court resolves the conflict between mutually repugnant coordination of benefits or “other insurance” clauses appearing in two self-funded multi-employer benefit plans, both of which are governed by ERISA. [For publication.] PHYSICIAN/PATIENT — CONFIDENTIALITY — ABSTENTION 29-7-8938 Rev. Joseph C. Bordonaro v. Cosmo L. Bordonaro, et al., U.S. Dist. Ct. (11 pp.) Where father participated in son’s therapy sessions, and then filed complaint against the therapist with state Board of Psychological Examiners, the court will abstain from deciding son’s motion to quash state’s subpoena seeking production of son’s therapy records required by the state to conduct its investigation into father’s claim, since the board’s investigation constitutes an ongoing state judicial proceeding, the proceeding implicates important state interests, and there is adequate opportunity in the state proceeding for son to raise constitutional challenges. Additional opinions approved for publication: 14-2-8592 State v. Blaine Holmes; 26-2-8742 Henry Pullen v. Twp. of South Plainfield Pl. Bd., et al.; 14-2-8749 State v. Walter Singleton. A Daily Reporter of N.J. Court Decisions

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