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Vol. 4 No. 68- APRIL 10, 1996 STATE COURT CASES EDUCATION — UNIONS — ARBITRATION 16-2-8529 Middletown Twp. Bd. of Educ. v. Local No. 11, Int’l Brotherhood of Teamsters, App. Div. (4 pp.) Arbitrator’s finding that board of education acted in an arbitrary and discriminatory manner when it discharged school bus driver for her thirteenth accident — because it had not disciplined her for the earlier accidents, failed to timely discipline her for the subject accident, and renewed her contract — is affirmed. FAMILY LAW — PATERNITY 20-2-8530 E.P.D. v L.C.B., App. Div. (4 pp.) In paternity action, Family Part judge erred in holding that mother was equitably estopped from denying her previous representation of her child’s paternity in her Kansas divorce decree, since parentage during that proceeding had been stipulated, not adjudicated. INSURANCE 23-2-8531 Cmm’r, Dep’t of Ins. v. Marcial Huertas, etc., App. Div. (3 pp.) Commissioner’s decision ordering fines and restitution and revoking defendant’s insurance producer license is affirmed since defendant deposited insurance premiums into his own bank account, charged excess service fees, and allowed clients’ insurance to lapse. 23-2-8532 Hermann Forwarding Co., et al. v. Pappas Ins. Co., et al., App. Div. (7 pp.) The trial court properly held that insurer was liable to refund clients’ overpayments of premiums paid to broker, even though broker never paid the premiums to the insurer, since insurer violated sections of the Commercial Automobile Insurance Procedure (CAIP) regarding notification of billing and collections procedures, and is estopped from denying that payment to the broker constituted payment to it. INSURANCE — U.I.M. 23-2-8533 Edward Jose, et al. v. N.J. Rent-A-Wreckers Ass’n Inc., et al., App. Div. (5 pp.) Although defendant auto leasing company could contractually limit its insurance liability to its lessees, it should have offered plaintiff lessee the option to purchase UIM coverage, but even if such coverage had been offered and chosen in this case, it would have been limited to the $15,000 minimum, and plaintiff’s settlement for that amount with the tortfeasor would have canceled out any UIM coverage for which plaintiff might have been eligible, so defendant was properly granted summary judgment. NEGLIGENCE — RELEASES 31-2-8534 Gary Robbins v. Wayne Robinson, et al., App. Div. (6 pp.) In a case where plaintiff sues for injuries he sustained while unloading clams from a ship, the judge erred in holding that a release plaintiff signed barred his action against dock owner/operator, since the release’s plain terms indicate that it releases only claims that plaintiff may have as a seaman against the owner and officers of the vessel, etc., and specifically reserves any claims that plaintiff may have against the owner/operator of the dock. PRODUCT LIABILITY — NEGLIGENCE — CONSTRUCTION 32-2-8535 John Dawson, et al. v. Bunker Hill Plaza Assocs., et al., App. Div. (20 pp.) In a case where three construction workers were injured by collapsing trusses on project, and sued various parties, (A) Land owner was properly granted summary judgment because (1) the builder had sole responsibility for worksite safety as the general contractor for the project, (2) the owner owed no duty to employees of an independent contractor to prevent injury from a risk which was incident to the task they were hired to perform, and (3) OSHA regulations do not apply to owners, nor do they impose any affirmative duty of compliance upon landowners; (B) Crane company was properly granted summary judgment since, although there are allegations that crane company damaged trusses by improperly dragging, lifting or storing them, there is no proof that these actions were a substantial factor in causing the collapse, and plaintiffs’ expert opinion in that regard is a net opinion; and (C) Lumber company was properly granted summary judgment because the proofs tended to show that the trusses would have collapsed even if lumber company had not supplied (allegedly) defective boards, and lumber company had no responsibility for determining the amount of lumber needed to brace the trusses, which wsa a determination to be made by the general contractor. [Approved for publication April 10, 1996.] PUBLIC EMPLOYEES 33-2-8536 Rita Brown, et al. v. City of Jersey City, etc., App. Div. (9 pp.) Although this court had held that a health officer who has served for five years is entitled to whatever the maximum salary then is for that employee’s labor grade, it had not addressed two variables, namely, increases in maximum salary for the labor grade thereafter, and the movement of the employee from the labor grade in which he or she was when the maximum was attained to a higher labor grade; analyzing N.J.S.A. 26:3-25.1 and the N.J. Employer-Employee Relations Act, N.J.S.A. 34:13A-1, et seq. on public health officers’ claims for adjustment of their respective salaries to maximum salary for their labor grades and an award of retroactive pay, the court modifies the judgment entered by the trial court, considering those variables. [Approved for publication April 10, 1996.] REAL ESTATE 34-2-8537 Phyllis Mangina, et al. v. Robert Taylor, et al., App. Div. (10 pp.) Motion judge erred in dismissing home buyers’ suit for damages — limited to the increased interest the buyers had to pay due to sellers’ delay — relying solely on language contained in the standard Fannie Mae affidavit, which states that no fees are to be paid by the seller, since this affidavit is designed to prevent fraudulent inflation of the property’s purported value, and has no relevance to whether a court should award a buyer damages for the sellers’ partial breach of a contract to convey. WORKERS’ COMPENSATION 39-2-8538 Patrick Laffey v. City of Jersey City, App. Div. (20 pp.) Police officer’s award of permanent partial disability for pulmonary disease is reversed, since the officer failed to show that the conditions surrounding his work environment were peculiar to his employment, and also failed to demonstrate with objective medical evidence that his ailment is related to exposure to the environment as a result of his employment. [Approved for publication April 10, 1996.] CRIMINAL LAW AND PROCEDURE — GRAND JURIES 14-2-8539 State v. Curtis Brown, App. Div. (8 pp.) The trial judge correctly concluded that, under State v. Murphy, 110 N.J. 20 (1988), the prosecutor’s failure to ask the assignment judge to decide whether two grand jurors should participate — after conversations with those jurors revealed that there might be reasons to question their bias or personal interest in the case — required an indictment’s dismissal. [Approved for publication April 10, 1996.] CRIMINAL LAW AND PROCEDURE — JUVENILES 14-2-8540 State, in the Interest of B.G., App. Div. (13 pp.) Twelve-year-old defendant’s conviction for sexual assault on his four-year-old stepbrother is affirmed because (1) judge did not deny him due process when she refused to allow defendant to call another brother as a witness, and ordered that counsel be appointed for that brother, even though mother had no objection to the testimony, since the prospect that that brother could be charged as well was not remote, and the prosecutor cannot be said to have raised the possibility without any basis for doing so, solely to prevent the boy from testifying; and (2) there is no merit to defendant’s position that Megan’s Law registration and notification requirements should not be applied to juveniles. [Approved for publication April 10, 1996.] CRIMINAL LAW — POLICE — OFFICIAL MISCONDUCT 14-1-8541 State v. John F. Hinds, Supreme Ct. (19 pp.) In engaging in the theft and receipt of stolen goods, the police officer’s conduct was sufficiently related to his official status that it constituted the crime of official misconduct. FEDERAL COURT CASES CIVIL PROCEDURE — SMALL BUSINESS ADMINISTRATION 07-7-8542 U.S.A. v. Japanese Am. Capital Corp., U.S. Dist. Ct. (7 pp.) Since the uncontradicted evidence shows that defendant defaulted on principal and interest payments on its SBA-guaranteed debenture, failed to make payment upon acceleration, and failed to submit audited annual financial reports, all as required by small business regulations, injunctive relief and appointment of a receiver is appropriate to preserve the government’s investment while defendant is liquidated and removed from the small business program. CIVIL PROCEDURE — VACATING DEFAULT 07-7-8543 Patricia Reynolds Weigel v. John L. Del Buono v. Richard F.X. Regan, Esq., et al., U.S. Dist. Ct. (15 pp.) (1) While it may have been unwise for the third-party defendants to fail to respond to the third-party complaint because of their then-pending 12(b) motion against the counterclaim, their error is excusable given that the arguments against the counterclaim are substantively equivalent to the arguments to be made against the third-party complaint, and, therefore, defendant/third-party plaintiff cannot show any prejudice that would result from vacating default. (2) The third-party complaint is dismissed, since it alleges claims that have nothing to do with the action on its merits, and therefore does not meet the requirements of Rule 14(a). (3) Defendant’s counterclaim is likewise dismissed, since defendant cannot prove the elements of its allegations of fraud and deception, negligence, malicious use and abuse of process, and intentional infliction of emotional distress. CONTRACTS 11-7-8544 Am. Cyanamid Co. v. Mylan Pharmaceuticals Inc., U.S. Dist. Ct. (37 pp.) Since a merger with, or acquisition of, a corporation is not equivalent to a “sale” of a subsidiary of the acquired or merged corporation, defendant may not terminate a pharmaceuticals contract between the parties under the plain, unambiguous terms of the contract, which give the defendant the right to terminate the contract if plaintiff “sells or assigns, in any manner whatsoever its subsidiary’s ethical pharmaceutical business,” despite plaintiff’s merger with another company. LABOR AND EMPLOYMENT — LAW AGAINST DISCRIMINATION 25-7-8545 John A. Campbell, et al. v. Merchandise Drivers, etc., et al., U.S. Dist. Ct. (17 pp.) (1) Dismissal is required of plaintiffs’ claim that union breached its duty of fair representation in failing to secure their employment following termination of a service contract — and that such breach occurred through the alleged conduct of two individuals who hired friends in lieu of plaintiffs — since the evidence establishes that no member of the union had any role in the hiring decision. (2) Plaintiffs’ claims of age discrimination under the New Jersey Law Against Discrimination likewise are dismissed, because plaintiffs have produced no evidence to show that the legitimate business reasons proffered by the employer for hiring others are pretextual. LABOR AND EMPLOYMENT — RACE, GENDER AND AGE BIAS 25-7-8546 Louis Metsopulos Jr. v. Marvin Runyon, etc., U.S. Dist. Ct. (24 pp.) In a complaint alleging that plaintiff — a white male of Greek ancestry — was denied various promotions due to race, gender and age discrimination, (1) plaintiff’s Title VII claim, that the “continuing violation” theory excuses his failure to exhaust administrative remedies, fails, since the theory merely affects the time available to a complainant to file EEOC charges, and the unexhausted Title VII claims are dismissed. (2) The claims under the Age Discrimination in Employment Act are likewise dismissed for failure to provide the requisite notice to the EEOC of plaintiff’s intent to sue. (3) With respect to the administratively exhausted claims, since — in cases alleging federal employment discrimination, where reargument is timely requested, finality occurs when the request for reconsideration is granted or denied — only one of plaintiff’s claims is time-barred, and summary judgment is denied as to the others. [For publication.]

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