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Vol. 4 No. 66 – APRIL 8, 1996 STATE COURT CASES ATTORNEY/CLIENT — FEES AND COSTS 04-2-8504 Christine S. Cobb v. CDI Corp., et al., App. Div. (16 pp.) In a dispute over attorney’s fees and costs, (1) the trial court did not abuse its discretion in denying client’s request for a plenary hearing on the attorney’s fees, since the client signed a retainer agreement in which she agreed to a contingent fee arrangement under R. 1:21-7(c), and, because the litigation outcome was not appealed, there is no dispute with respect to the fee due, however, (2) since there are numerous questions concerning experts’ fees that can only be resolved by the experts’ oral testimony, a hearing should have been ordered with respect to litigation expenses. INSURANCE — ALL-RISK 23-2-8505 John Vadino, et al. v. Continental Cas. Co., et al., App. Div. (12 pp.) Where motel owners bring a coverage action against all-risk insurer for damage to motel pool, although trial judge correctly found two policy exclusions inapplicable, he erred in finding no coverage on the basis of a third exclusion, since the loss “ensued” from pressure caused by the water table’s rise during the night, and the consequent settling of the pool the next day, and not from the negligence of pool contractor for failing to open the “well points.” INSURANCE — P.I.P. — DEDUCTIBLES AND CO-PAYMENTS 23-2-8506 Louis S. Edwards v. Royal Ins. Co., App. Div. (7 pp.) In light of the clear and unambiguous language of N.J.S.A. 39:6A-4, all persons seeking PIP medical benefits are subject to the mandatory $250 deductible and 20 percent co-payment obligations, whether they are relatives or non-relatives of the named insured, and the Insurance Commissioner’s Bulletin No. 88-8, being in clear conflict, is void and unenforceable; plaintiff was properly denied further benefits. INSURANCE — VERBAL THRESHOLD 23-2-8507 Karen Brower v. Sandra R. Finelli, App. Div. (6 pp.) The trial judge correctly found objective, credible medical evidence of serious injury, but erred in his determination that the plaintiff failed to raise at least a material question of fact as to whether she suffered a serious impact on her life, where, coupled with plaintiff’s subjective recitations, the record reflects that plaintiff’s doctor stressed that her injuries would force her to substantially alter her lifestyle. MUNICIPAL LAW 30-2-8508 Dolores Brocco v. Twp. of Hainesport, App. Div. (15 pp.) The court affirms the determination that neither a municipal resolution nor an employee handbook operated to grant plaintiff tenure as the municipal court clerk, and further affirms the trial judge’s decision that the effect of a series of improperly executed appointments by the municipality was to grant plaintiff a three-year contract term. PHYSICIAN/PATIENT 29-2-8509 Kevin Chance, etc., et al. v. John Feltz, M.D., et al., App. Div. (9 pp.) In plaintiffs’ medical malpractice case, the trial judge did not err by precluding plaintiffs’ expert from referring to a particular medical article during his testimony, since the plaintiffs had not identified the article in answers to interrogatories requesting such information, and there was sufficient prejudice to the defendants to warrant exclusion of any reference to the article; a no cause verdict is affirmed. PUBLIC EMPLOYEES 33-2-8510 Camden Cy. Bd. of Social Servs. v. Jean Monroe, App. Div. (7 pp.) In light of the employee’s 16 years of unblemished and exceptional service, the comparatively short term of her aberrational conduct — coming to work intoxicated — and the Merit System Board’s commitment to the philosophy of progressive discipline, the board’s determination sustaining the ALJ’s disciplinary charges against the employee, but imposing a six-month suspension instead of removal, is affirmed. FEDERAL COURT CASES BANKING — FDIC — REAL ESTATE — LIENS 06-7-8511 Old Bridge Owners Coop. Corp., etc., et al. v. Twp. of Old Bridge, et al., U.S. Dist. Ct. (8 pp.) The court denies the FDIC’s motion for the court to reconsider its opinion that the FDIC is liable for property taxes, water and sewerage charges that accrue while the property at issue was subject to federal receivership, since, despite the FDIC’s argument to the contrary, property held in a federal receivership qualifies as “property of the Corporation” under 12 U.S.C. 1825(b), and the FDIC has introduced no new evidence or identified any authority originally overlooked that would persuade the court to conclude otherwise. [For court's prior opinion, see DDS No. 34-7-7707 in the Jan. 29, 1996, Alert.] CONTRACTS 11-7-8512 Mediquest Inc. v. MLC Geriatric Health of Kan. Inc., et al., U.S. Dist. Ct. (10 pp.) In a breach of contract action brought by plaintiff, marketer of defendants’ medical products, where prior consent orders had been entered placing disputed funds in escrow and staying the action pending resolution of Florida litigation between defendants and the federal government over Medicare reimbursements, plaintiff’s request to lift the stay is granted for the limited purpose of paying plaintiff commissions due, since the contract between the parties explicitly states that defendants must pay earned commissions and, should any claims later be rejected as ineligible by Medicare, plaintiff must then refund them. CONTRACTS — ARBITRATION — ENTIRE CONTROVERSY 11-7-8513 Robert W. Harrington v. Stirn Medical Prods. Inc., etc., et al., U.S. Dist. Ct. (13 pp.) The purpose of the entire controversy doctrine, to prevent fractionalized claims to the detriment of the judicial system, is not furthered by preventing a plaintiff from choosing to arbitrate certain claims and litigate others within a single case; where defendant had the ability to prevent this dichotomy by moving the court to compel arbitration of all arbitrable claims, but did not choose to do so, plaintiff is not subsequently barred by the doctrine from pursuing arbitrable claims in court. INSURANCE — SHIPPING 23-7-8514 Metal Processing Inc. v. Timothy Maxwell Humm, etc., et al., U.S. Dist. Ct. (18 pp.) In a coverage case for cargo losses sustained when a ship capsized, (1) plaintiff’s motion to amend its complaint a third time to add waiver and estoppel claims against insurer is granted, since discovery has not closed and insurer has identified no prejudice that involves the “serious impairment of (its) ability to present its case,” however, (2) the court denies plaintiff’s motion for summary judgment on insurer’s affirmative defense of breach-of-inspection warranty, since, even though insurer never returned plaintiff’s paid premiums, this fact alone does not carry plaintiff’s burden of establishing the lack of a genuine issue of material fact regarding insurer’s intention to waive its rights and defenses with respect to plaintiff’s policy. LABOR — CIVIL RICO — COLLATERAL ESTOPPEL 25-7-8515 Champion Dyeing & Finishing Co., Inc., et al. v. The Amalgamated Clothing & Textile Workers Union, AFL-CIO, et al., U.S. Dist. Ct. (7 pp.) Because defendants already have been criminally convicted for the extortion conduct upon which plaintiffs’ civil RICO action is predicated, the defendants are collaterally estopped from relitigating the issue of their conduct in this civil action, where the burden of proof is lower and the fact that defendants have appealed the conviction is of no consequence; plaintiffs are granted summary judgment and treble damages. LABOR — UNION DUES 25-7-8516 Peter Cassidy, et al. v. Local Union 50, et al., U.S. Dist. Ct. (14 pp.) In a case where plaintiffs challenge a union dues increase, defendants’ summary judgment motion against one plaintiff for failure to exhaust internal union remedies is denied because that plaintiff has established that exhaustion is waived since the union structure is so dominated by individuals opposed to plaintiff, and union policy so consistently adheres to a position contrary to his, that pursuit of such remedies would be futile; defendants’ motion is further denied because there are questions of material fact as to whether the union members were denied a fair and meaningful vote on the increase. LABOR AND EMPLOYMENT — AGE DISCRIMINATION 25-7-8517 Arnold I. Saltzman v. Ceco Filters Inc., S.E., U.S. Dist. Ct. (12 pp.) (1) Plaintiff’s claim under the Age Discrimination in Employment Act is dismissed as time-barred, and, even if it were considered on the merits, it would fail because he has failed to prove that he was qualified for the position from which he was terminated. (2) Plaintiff’s New Jersey Law Against Discrimination claims must be dismissed because the employer is in another state, plaintiff was hired in that state, and plaintiff’s territory did not include N.J.; therefore, his claims cannot invoke the law. (3) Plaintiff’s contract claims are dismissed because the alleged oral promise of a “lifetime” or “permanent” contract is not enforceable under Pennsylvania law, held to be applicable to this case. (4) Plaintiff’s claim for intentional infliction of emotional distress and outrageous conduct is dismissed because the court finds that the defendant’s conduct did not rise to that level, and an employee cannot recover for such a claim where an employer is exercising his legal right to terminate an employee. LABOR AND EMPLOYMENT — CIVIL RIGHTS 25-7-8518 Joseph Tedeschi v. Deutsche Wurlitzer GmbH, etc., et al., U.S. Dist. Ct. (15 pp.) In plaintiff’s civil rights action against his former employer, (1) employer’s motion to dismiss plaintiff’s retaliation claims for failure to present them to the EEOC is denied, since, although not specifically pled, the record permits the inference that the retaliation claims were within the scope of the EEOC investigation, and (2) the court denies employer’s motion to dismiss Title VII allegations — claiming that it is not an “employer” under Title VII because it employs 15 or fewer U.S. employees — since the court holds that it is the total number of workers employed by the company that qualifies under Title VII, not just the number of the workers employed in this country. LABOR AND EMPLOYMENT — RACIAL DISCRIMINATION 25-7-8519 Charles T. Tyson, et al. v. Cigna Corp., et al., U.S. Dist. Ct. (18 pp.) Since the New Jersey Law Against Discrimination does not impose liability on nonsupervisory employees, plaintiff’s racial discrimination claims against his co-workers are dismissed, and, since the L.A.D. imposes liability on supervisory employees only to the extent that the supervisory employees affirmatively engage in discriminatory conduct while acting in the scope of employment, and there has been no allegation of such conduct, plaintiff’s claims against his supervisors are also dismissed. TORTS — DEFAMATION — DISCOVERY OF TAX RETURNS 36-7-8520 Eugene H. Steele v. Maite Vazquez, U.S. Dist. Ct. (6 pp.) In plaintiff’s case for damages due to defendant’s alleged defamation of him, (1) magistrate judge’s ruling that plaintiff must produce complete copies of his federal income tax returns to counsel for the defendant is reversed, since the returns contain much financial information about other businesses and transactions which, by plaintiff’s own admission, are unaffected by the defendant’s actions, however, all W-2s, 1099s and other documents reflecting earnings shall be produced, and (2) it was neither clearly erroneous nor contrary to law for the magistrate to exclude production of the defendant’s personnel files, since they contained no relevant information to the case.

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