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Vol. 4 No. 47 Decisions Released March 11, 1996 STATE COURT CASES INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-8137 David Kerwien, et al. v. Jennifer Melone, App. Div. (9 pp.) Plaintiff, after obtaining a substantial settlement of his claim against certain parties based on their alleged — but not admitted — ownership and operation of the hit and run vehicle, may not obtain UM benefits from his own insurance company, and trial judge erred in ruling that such benefits were available to plaintiff. [Approved for publication March 11, 1996. Available online in N.J. Full-Text Decisions.] LABOR AND EMPLOYMENT — ARBITRATION — EDUCATION 25-2-8138 Rutgers, the State University of N.J. v. Rutgers Council of AAUP Chapters, App. Div. (11 pp.) The trial judge erred in holding that a grievance was not excluded from arbitration by a specific provision of the collective bargaining agreement. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-8139 Peter Prince v. Automated Business Products, Inc., App. Div. (6 pp.) Deferring to the judge’s assessment of credibility, the court affirms finding that an employer/employee relationship existed between the parties and therefore affirms the award for back pay to the plaintiff; however, since there was no proof concerning plaintiff’s allegation that he was denied unemployment compensation because of misrepresentations by the defendant to the unemployment compensation office, that aspect of the judgment is reversed. LANDLORD/TENANT 27-2-8140 Glendale Campus Associates v. Nicholas H. Troiano v. Donald F. Browne, et al., App. Div. (4 pp.) Four years after settlement of a suit brought by landlord to collect unpaid rent, the trial judge erred in denying restoration of defendant’s cross-claim against his former partner, which defendant claimed he had never intended to relinquish, without making findings of fact concerning the circumstances surrounding the settlement, and the case is remanded for such a determination. NEGLIGENCE — FIREFIGHTER’S RULE 31-2-8141 Michael J. Yost, et al. v. Chin Shou Huang, et al., App. Div. (7 pp.) The firefighter’s rule, abrogated prospectively, was correctly applied to this case where police officer fell in hole in defendant’s lawn while responding to a burglar alarm; however, the judge erred in holding that the officer was barred from recovering because of the rule, since the part of the lawn where the officer fell was not, beyond a question of fact, part of the “scene” to which he was responding but rather was part of an area where the general public might have an expectation of proper maintenance. PARENT/CHILD 28-2-8142 In the Matter of the Guardianship of RLS, a minor, App. Div. (3 pp.) The court affirms the findings of the Family Part judge that the child’s health and development were endangered by the parental relationship, that the natural mother was unable to eliminate the harm facing the child despite the diligent efforts of the Division of Youth and Family Services to reunite the family, and that no reasonable alternative to termination of parental rights existed. PARENT/CHILD — CONTEMPT OF COURT 28-2-8143 In the Matter of J.S., App. Div. (14 pp.) In a case involving the natural father of children under the control of the Division of Youth and Family Services, the judge erred in finding the father in contempt of court under R. 1:10-1 for writing the judge a letter, inter alia, demanding to know “what the hell was going on with [his] children” and for going to the home of parents of other children in foster care and speaking to them regarding his concerns, since neither of these acts obstructed any proceeding before the judge and did not constitute the willful and contumacious type of conduct sanctioned by the rule. WORKERS’ COMPENSATION 39-2-8144 Francisco Perez v. Capitol Ornamental, Concrete Specialties, Inc. v. Second Injury Fund, App. Div. (14 pp.) The court affirms the compensation judge’s determination that petitioner’s permanent partial disability is less than the 75% estimated by petitioner’s expert, but the matter must be remanded because the compensation judge failed to consider the impact that petitioner’s significant orthopedic injury had on his ability to secure work in view of petitioner’s limited educational and intellectual resources. [Approved for publication March 11, 1996. Avialable online in N.J. Full-Text Decisions.] FEDERAL COURT CASES CONTRACTS — TRADE SECRETS — NON-DISCLOSURE 11-7-8145 Ultra Additives, Inc. v. Alfred A. Lamy, U.S. Dist. Ct. (62 pp.) In suit against former employee alleging various breaches, employee’s motion for summary judgment is granted, inter alia, (1) since plaintiff has failed to establish that the information contained in its customer lists qualifies as “trade secrets” under N.J. law and employee therefore cannot be guilty of misappropriation of such trade secrets, and (2) since the non-disclosure covenants in the consultant service contract are unreasonable and unenforceable, in that they prohibit employee not only from divulging employer’s information, but also from using any of the job experience and know-how he had acquired during his tenure there. LANDLORD/TENANT — ENTIRE CONTROVERSY 27-7-8146 R & D Realty, etc. v. Hardee’s Food Systems, Inc., et al., U.S. Dist. Ct. (10 pp.) In landlord’s suit against former tenant for damages due to alleged breach of lease, the court denies landlord’s motion under the entire controversy doctrine to join proposed contract purchaser of the subject property — which joinder would destroy diversity and require remand of the case — since the landlord has failed to prove that the purchaser, a non-party to the lease, is a necessary party in the underlying action. TAXATION — LIMITATIONS 35-7-8147 U.S.A. v. Harry C. Jones, et al., U.S. Dist. Ct. (14 pp.) In a suit to collect taxes from defendant and to set aside an allegedly fraudulent conveyance of certain property to defendant’s wife, (1) defendant’s motion to dismiss, alleging failure to state a claim, is denied, since the pleadings sufficiently allege the facts and fulfill the requirements of the rules, and (2) motion to dismiss tax assessment counts is granted as to assessment of 1983, since the 10-year limitations period has run, but is denied as to the other assessments, as collection efforts were commenced within the 10-year period. [For publication. Available online in 3rd Circuit - District Court. ]

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