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Vol. 4 No. 41 Decisions Released March 1, 1996 STATE COURT CASES CONSUMER PROTECTION — LEMON LAW 09-2-8039 Virginia E. Conrad-Kessaris v. Mitsubishi Motor Sales of Am. Inc., App. Div. (7 pp.) Since, under the Lemon Law, a plaintiff must show a non-conformity that has been subject to repair three or more times and the judge found that the plaintiff’s third car problem, involving the electrical system, was unrelated to the first two stalling problems, plaintiff failed to prove her Lemon Law case, and the final decision of the state Division of Consumer Affairs director, denying plaintiff a remedy against defendant car dealership, is affirmed. ENVIRONMENT — LAWN CARE CHEMICALS 17-2-8040 Candy Svelling v. Chemlawn of Cape May, Inc., etc., et al., App. Div. (11 pp.) The trial judge incorrectly dismissed plaintiff’s complaint — for damages resulting from the toxic effects of chemicals sprayed or otherwise applied by defendant on the plaintiff’s neighbor’s lawn — determining that the claim was barred by the statute of limitations; plaintiff may recover for those acts and injuries occurring within the two years preceding the complaint. GOVERNMENT — BIDS 21-2-8041 Bayonne Durable Constr. Co., Inc. v. County of Hudson, etc., et al., App. Div. (9 pp.) Trial court applied the wrong statute and incorrectly invalidated defendant’s low bids for two park improvement contracts, finding that defendant lacked the required plumbing and electrical licenses, but the matter must be remanded for a determination of whether defendant is qualified to perform the plumbing and electrical work. HEALTH — CERTIFICATE OF NEED REGULATIONS 22-2-8042 Seashore Ambulatory Surgery Center Inc., et al. v. N.J. Dept. of Health, App. Div. (18 pp.) Current certificate of need regulations retroactively apply to plaintiffs’ ambulatory surgical facilities, even though plaintiffs initiated their facilities after prior regulations had lapsed, and before the current regulations were enacted. [Approved for publication March 1, 1996. Available online in N.J. Full-Text Decisions.] INSURANCE 23-2-8043 Universal Underwriters Group v. Allstate Ins. v. Deborah Whipple, App. Div. (6 pp.) Judge erroneously determined that defendant’s business auto policy provided co-primary coverage for employee of its car dealership with the dealership’s garage-liability policy insurer, since the defendant’s policy clearly only covered owned automobiles, and the automobile involved in the accident was leased, although it was mistakenly referred to in the policy as “owned”; the defendant’s policy only provides excess coverage for the vehicle. INSURANCE — VERBAL THRESHOLD 23-2-8044 Lori Rupp, et al. v. David J. Badurina; Robert Rupp, et al. v. David J. Badurina App. Div. (4 pp.) Where both plaintiffs suffered minor sprains and strains, and their doctors’ opinion of permanent injury was a net opinion, their cases were properly dismissed on summary judgment. INSURANCE — VERBAL THRESHOLD — WORKERS’ COMPENSATION 23-2-8045 Continental Ins. Co. v. Blanche McClelland, App. Div. (7 pp.) In a case concerning the interplay between the workers’ compensation lien and personal injury protection statutes, the judge erred in striking defendant’s verbal threshold defenses in a statutory subrogation action brought by the compensation carrier to recover payments it made on behalf of its insured, as a result of his work-related motor vehicle accident allegedly caused by defendant; since the insured employee was subject to the threshold, the compensation carrier also is subject to that defense in its subrogation action. [Approved for publication March 1, 1996. Available online in N.J. Full-Text Decisions.] PARENT/CHILD — ADOPTION — NATIVE AMERICANS 28-2-8046 In the Matter of the Adoption of Barbara Dean Mellinger, etc., App. Div. (6 pp.) To the extent necessary to implement its policies, the Indian Child Welfare Act, 25 U.S.C. 1901-1963, preempts the restricted access to adoption records under N.J.S.A. 9:3-52(a), and the adopted plaintiff, of Indian heritage, was improperly denied access to her sealed records. [Approved for publication March 1, 1996. Available online in N.J. Full-Text Decisions.] TAXATION 35-5-8047 Stella A. Schaevitz Trust, et al. v. Director, Div. of Taxation, Tax Ct. (38 pp.) In determining the basis of property, although N.J.S.A. 54A:5-1(c) provides that the taxpayer use a federal income tax adjusted basis, it is implicit in the statutory mandate that the federal adjusted basis used be correctly calculated under federal law, and the director and the court may review, adjust, modify or reject federal tax cost basis determinations, if appropriate. [Approved for publication.] WORKERS COMPENSATION 39-2-8048 Joseph Dasent v. Newark Bd. of Educ., et al., App. Div. (8 pp.) Judge’s findings as to former custodian’s orthopedic, psychiatric-neurological and pulmonary impairments are supported by the record and are affirmed, as is judge’s dismissal of the Second Injury Fund, however, matter is remanded for further findings and a determination as to the possible application of the odd-lot doctrine and for allocation and fixing of applicable wage levels. FEDERAL COURT CASES DEBTOR/CREDITOR 15-7-8049 F.D.I.C., etc. v. George Garidis, et al., U.S. Dist. Ct. (11 pp.) Note guarantors’ motion for reconsideration of dismissal of their counterclaim is denied, since there were no conditions on the face of the loan documents to support defendant’s claims, and side agreements affecting loan documents are prohibited. (For original opinion, see DDS No. 06-7-7182 in the Alert dated Nov. 30, 1995.) JURISDICTION — INTERPLEADER 24-8-8050 Robert Angst v. Royal Maccabees Life Ins. Co., et al., Third Cir. (10 pp.) The district court correctly declined to recognize an interpleader structure among the parties involved in dispute over life insurance proceeds; because the decedent’s receiver, a non-diverse intervenor of right, was a necessary and indispensable party under Rule 19 when the complaint was filed, the action must be dismissed for lack of subject matter jurisdiction. [Available online in 3rd Circuit - Appellate Court.]

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