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Vol. 4 No. 58 – MARCH 26, 1996 STATE COURT CASES CONSTRUCTION — ENTIRE CONTROVERSY 43-2-8295 Marc Gelber, et al. v. The Zito Partnership, App. Div. (15 pp. — includes concurring/dissenting opinion) Trial judge properly applied the entire controversy doctrine and dismissed plaintiffs’ complaint because of their failure to join contractor in their action against architect, and for their failure to notify the court and architect that they were involved in arbitration with the contractor. CONSUMER PROTECTION 09-2-8296 T.F.H. Publications, Inc. v. Eastman Kodak Co., Inc., etc., App. Div. (8 pp.) In a case dealing with “gray market” film sales, motion judge correctly determined that defendant, inter alia, did not sell its film to plaintiff, and that third parties not controlled by defendant imported the film on the “gray market,” therefore defendant committed no fraud and breached no contract with plaintiff. FAMILY LAW 20-2-8297 Martha Michael v. Dennis Oliver, App. Div. (3 pp.) In case where father resided in Florida and mother in N.J., (1) although the N.J. trial judge failed to communicate with the Florida court in mother’s custody modification application, as required by the U.C.C.J.A., the Florida court subsequently declined jurisdiction in favor of N.J., mooting father’s procedural challenge; and (2) since father had effective notice of the proceeding, in personam jurisdiction was not required for N.J. court to entertain the matter. 20-2-8298 Debbie Diaz v. Norberto Diaz, App. Div. (3 pp.) Father’s motion to change custody — because his children were exposed second-hand to the dangers of his wife’s smoking � was properly denied, since the wife smoked at the time the original custody decision was made, and therefore there was no change in circumstances, and, further, judge considered a medical report stating that the children were healthy. INSURANCE 23-2-8299 The Travelers Ins. Co. v. A-P-A Truck Leasing, Inc., et al., App. Div. (13 pp.) Under insurance provisions of truck leasing agreement, (1) plaintiff, lessee’s insurer, was the primary insurer in the event of bodily injury — such as that sustained by lessee’s employee — unless defendant lessor negligently repaired truck, and since plaintiff made no allegation that negligent repairs were made, plaintiff owed a defense to lessor in lessee’s employee’s personal injury suit; and (2) plaintiff is estopped from denying a defense since it proceeded without a reservation of rights in its handling of the claim after having had an adequate opportunity to investigate the claim. INSURANCE — ENVIRONMENT 23-1-8300 General Accident Ins. Co. of America v. State of N.J., etc., et al. v. Hartford Ins. Co., et al., Supreme Ct. (26 pp.) Mandated remedial investigation and feasibility study costs should be fairly allocated between the defense and indemnity provisions of a comprehensive general liability insurance policy, and appellate panel’s judgment allocating all of the costs to the defense provisions of the policy is reversed. LANDLORD/TENANT — MOBILE HOME PARKS 27-2-8301 Jackson Estates v. Jackson Twp. Rent Leveling Bd., et al., App. Div. (4 pp.) The Rent Leveling Board properly determined that taxes were included in the rents collected by landlord, and were properly subtracted in calculating landlord’s base rent before determining landlord’s consumer price index adjustment. CRIMINAL LAW AND PROCEDURE 14-2-8302 State v. Corwin Barrett Seymour, etc., App. Div. (14 pp.) Since the plain language of the “eluding statute,” N.J.S.A. 2C:29-2(b), requires a motorist to immediately stop his vehicle when signaled by a law enforcement officer, and does not indicate that the motorist must stop only if the officer lawfully signals the stop, the trial court erred in concluding that the defendant had the right to ignore the officer’s signal and continue driving, and the officer therefore had the right to pursue the defendant and stop him. [Approved for publication Mar. 26, 1996.] FEDERAL COURT CASES BANKRUPTCY 42-6-8303 In the Matter of LAN Associates XIV, L.P., Debtor, U.S. Bankruptcy Ct. (28 pp.) Notwithstanding the good faith of the unsecured creditor/leasing agent, its application to file a late claim must be disallowed, due to the need to distribute debtor’s estate expeditiously, the prejudice of delay to those unsecured creditors who filed in a timely manner, the length of the creditor’s delay in filing, and the fact that the reason for the delay was simply a conscious business decision by the creditor. [For publication.] NEGLIGENCE — MILITARY 31-7-8304 Joyce Pottle v. U.S.A., U.S. Dist. Ct. (20 pp.) Navy recruitment officer’s assault on plaintiff during the recruitment physical examination occurred while the officer was acting within the scope of his employment, and therefore the assault cannot be the basis of a negligence claim against the federal government — whether premised upon respondeat superior liability, improper hiring, training or supervision, or premises liability � because it is barred by 28 U.S.C. 2680(h); defendant’s motion to dismiss for lack of subject matter jurisdiction is granted. PENSIONS — ERISA 56-8-8305 Theresa Lyn Ryan, etc., et al. v. Federal Express Corp., Third Cir. (15 pp.) The district court erred in failing to articulate how its effective revision of the subrogation terms of defendant’s health plan served to validate an important statutory policy of ERISA — a necessary antecedent to overriding an express plan provision — and its decision disallowing full subrogation reimbursement to defendant is reversed.

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