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Vol. 4 No. 82 – APRIL 30, 1996 STATE COURT CASES CONSTRUCTION — INSURANCE 43-2-8735 Selective Ins. Co. v. Samler Bros. Inc., et al., App. Div. (9 pp.) (1) Given ambiguous reservation of rights as to provision of defense, insurer’s control of defense for 13 months, insureds’ reliance thereon, and the cost and inherent prejudice in changing counsel midstream after extensive discovery, judge correctly ruled that insurer should be estopped from its belated effort to discontinue defense of defendants in construction case. (2) Insureds’ success in obtaining judgment requiring insurer to defend them makes them successful litigants entitled to counsel fees, notwithstanding their lack of success in portion of suit seeking indemnification. CONTRACTS 11-2-8736 Centerbank, etc., et al. v. Lew Sharpless, etc., et al., App. Div. (9 pp.) Defendants were properly granted summary judgment in plaintiffs’ case alleging that defendants acted improperly in hiring plaintiffs’ financial service representatives, since defendants, as employers, had equal rights to compete for employees so long as they used neither improper means nor acted from an improper motive. FAMILY LAW 20-2-8737 Nicholas Magnapera v. Beatrice Magnapera, App. Div. (24 pp.) Reversal and remand are required, since, in assessing support arrears, awarding permanent alimony and determining equitable distribution, the trial court failed to consider and apply the required statutory factors or make adequate findings of fact and conclusions of law. 20-2-8738 James M. Saltzman v. Cindy Saltzman, etc., App. Div. (9 pp.) Order directing plaintiff to appear before the court to prove his financial condition was proper, regardless of whether plaintiff had disclosed or concealed his interest in a mortgage; and ordering a hearing and commanding plaintiff to pay on threat of incarceration was not an abuse of discretion. [Approved for publication Apr. 30, 1996.] FAMILY LAW — DOMESTIC VIOLENCE 20-2-8739 IAS v. FWS, App. Div. (6 pp.) Where the evidence showed a systematic case of long-term serious mental abuse precipitated by alcohol abuse, entry of domestic violence order is affirmed. INSURANCE — SUBROGATION 23-2-8740 Arnold L. Geller, etc. v. Donne Realty, L.P., etc., et al. v. Argyle Roofing, App. Div. (9 pp.) Summary judgment — in action for business damages sustained due to roof leaks at several locations — was improperly granted to defendants since there were unresolved factual issues, inter alia, regarding allocation of losses between sites, and the intended scope of plaintiff’s business interruption claim settlement with insurer. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8741 Ramon Barrientos-Morales v. Bd. of Review, et al., App. Div. (5 pp.) Where migrant farmworker was granted compassionate leave to return to his homeland to be with his ailing father, and then could not return to work because of his inability to pay for plane fare back to this country, he was properly denied unemployment compensation benefits because his inability to return constituted leaving work voluntarily without good cause attributable to the work. LAND USE 26-2-8742 Henry Pullen v. Twp. of South Plainfield Planning Bd., et al., App. Div. (10 pp.) The judge correctly rejected plaintiff’s argument that a “flexible c” variance allowed only the benefits from the grant of the suggested variance to be considered by the planning board, rather than the benefits of the entire development proposal, the neighborhood and the zoning plan and plaintiff’s challenge to subdivision approval and related variances was properly dismissed. PRODUCT LIABILITY — CIVIL PROCEDURE 32-2-8743 Noreen London Batson v. Lederle Laboratories, etc., App. Div. (7 pp.) The trial judge correctly invoked the principle of offensive collateral estoppel insofar as it established the dates upon which the defendant became aware of the tooth-staining problems associated with its products; on its own motion, however, the court consolidates this case with the companion case noted below on remand so that other common questions of fact can be determined in a single proceeding. [Approved for publication Apr. 30, 1996.][Companion case to 32-2-8744 below.] PRODUCT LIABILITY — TETRACYCLINE 32-2-8744 Cathy A. London v. Lederle Laboratories, etc., et al., App. Div. (20 pp.) Due to misleading interrogatories, the jury never passed judgment on the issue of whether plaintiff’s doctor would have prescribed defendant’s drug in the manner he did, the manner that actually caused the harm, if he had received a warning, and therefore the jury never rendered a verdict on the issue of proximate cause, requiring reversal and remand. [Approved for publication Apr. 30, 1996.][Companion case to 32-2-8743 above.] REAL ESTATE — EASEMENTS 34-2-8745 App. Div. (9 pp.) Judgment dismissing plaintiffs’ suit for utility easement against condominium association must be reversed, since the plaintiffs failed to join the municipality as an indispensable party, did not present specific proofs concerning the exact location of pertinent utilities, and did not adduce testimony concerning the intended scope of an easement conveyed to the municipality, all of which must be resolved on remand. REAL ESTATE — REALTORS 34-2-8746 App. Div. (15 pp.) Because actual reliance is not required by the Consumer Fraud Act, judge erred in holding that home buyers’ engagement of their own termite inspector relieved defendant realtors from liability for damages caused by known pervasive termite infestation of house. (2) Motion judge also erred in dismissing plaintiffs’ common law fraud and misrepresentation counts against defendants, since, even though plaintiffs procured their own termite inspection, this does not mean that they did not also rely on the representations of the defendants. [Approved for publication Apr. 30, 1996.] TAXATION 35-5-8747 Leonard Van Wingerden v. Lafayette Twp., Tax Ct. (27 pp.) Taxpayer’s greenhouse is taxable as real property under N.J.S.A. 54:4-1, and, although N.J.S.A. 54:4-23.12 applies to exempt the greenhouse from that tax, the exemption is void because it confers a private benefit, a preference, and is an impermissible classification of real property. [Approved for publication.] 35-2-8748 Daniel Dowd, et al. v. Twp. of Howell, App. Div. (2 pp.) Since grazing alone, without breeding, does not satisfy the statutory requirements for agricultural use under N.J.S.A. 54:4-23.3, plaintiffs’ land was properly disqualified from farmland assessment. CRIMINAL LAW AND PROCEDURE 14-2-8749 State v. Walter Singleton, App. Div. (18 pp.) (1) Because the evidence indicated that defendant was a squatter and not a thief, the judge erred in failing to submit the lesser included offense of criminal trespass to the jury. (2) The judge erred in dismissing a juror whose native language was not English, but who was nevertheless still able to explain that his disagreement with other jurors stemmed from his reasonable doubts about an element of the offense. FEDERAL COURT CASES ATTORNEY/CLIENT — BANKRUPTCY — MALPRACTICE CARRIERS 04-7-8750 Melvin Fischman, et al. v. Martin G. Margolis, et al., U.S. Dist. Ct. (7 pp.) Clients’ argument — that without an expansion of liability on the part of attorneys’ malpractice carrier they will be unable to collect the full amount from the bankrupt attorneys — is nothing more than a restatement of the heart of the bankruptcy code, and does not present the type of extraordinary circumstance to justify altering the basic nature of the insurance contract or the general rule prohibiting direct action against an insurer; motion to amend complaint to assert a direct claim against the insurer was properly denied. CIVIL PROCEDURE — RECONSIDERATION 07-7-8751 Robert Edwards v. Fox, et al.; Robert Edwards v. Kemp, et al., U.S. Dist. Ct. (7 pp.) Since plaintiff has not submitted any evidence which he could not, with reasonable diligence, have presented earlier, and since he has shown no clear error of law to correct nor any manifest injustice to prevent, his motion for reconsideration of dismissal of his claims is denied. INSURANCE — CLASS ACTIONS — REMAND 23-7-8752 Martin D. Aita, etc., et al. v. State Farm Fire and Casualty Co., U.S. Dist. Ct. (11 pp.) Since, in a class action, each plaintiff in the class must independently satisfy the amount in controversy requirement to maintain federal diversity jurisdiction, and since, from the data before the court, there is no way that each plaintiff in this suit alleging insurance claims consumer fraud could satisfy the requirement, remand to state court is proper. INTELLECTUAL PROPERTY — PATENT INFRINGEMENT 53-7-8753 Colgate Palmolive Co. v. W.L. Gore & Associates, Inc., U.S. Dist. Ct. (18 pp.) (1) Since defendant’s dental floss products are coated with beeswax, a chemically distinct product from plaintiff’s coating, defendant’s products do not literally infringe plaintiff’s patent; (2) Since plaintiff expressly stated that its claim was patentable because its coating was used differently than prior art and that other coatings, including beeswax, were ineffective for the purpose expressed in the patent, it cannot now assert that the defendant’s beeswax coating infringes by equivalency. [For publication.] LABOR AND EMPLOYMENT — SECURITIES 25-7-8754 Michael R. Gannon v. Continental Ins. Co., et al., U.S. Dist. Ct. (53 pp.) (1) Plaintiff’s only federal claim regarding his wrongful termination is that defendant violated ERISA by refusing to provide severance pay, and since the plan, as written, does not cover plaintiff, his claim must be dismissed. (2) Analyzing plaintiff’s various allegations of securities fraud and RICO violations, it is clear that all federal claims must be dismissed, and the remaining state claims are remanded for disposition by the state courts. [For publication.] Additional opinion approved for publication: 30-2-8673 Schulmann Realty Group, etc. v. Hazlet Twp. Rent Control Bd. [April 23, 1996.] A Daily Reporter of N.J. Court Decisions

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