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Vol. 4 No. 25 Decisions Released Feb. 7, 1996 STATE COURT CASES ENVIRONMENT — JURISDICTION 17-2-7816 Witco Corp. v. Aetna Cas. & Surety Co., et al., App. Div. (10 pp.) The judge’s decision to dismiss New Jersey environmental coverage action, in favor of previously filed New York action, based on principles of comity, must be revisited in light of this court’s decision in Am. Home Products Corp. v. Adriatic Ins. Co., No. A-5209-94T2 (App. Div. Dec. 11, 1995.), since, although the New York action definitely was filed first, there are questions whether both cases involve substantially all of the same parties, the same claims and the same legal issues. (For the American Home Products opinion, see DDS No. 23-2-7297 in the Alert dated Dec. 12, 1995.) ENVIRONMENT — CRIMINAL ACTIONS 17-2-7817 State v. David L. Robertson, App. Div. (8 pp.) Trial judge erred in failing to correctly instruct jury that the state needed to prove that defendant farmer knew or should have known that the area which he sought to fill in with wood chips was wetlands subject to environmental laws, and, since the effect of the instruction was to make defendant strictly liable and effectively directed a verdict against him, reversal is required. [Approved for publication Feb. 7, 1996. Available online in NJ Full-Text Decisions.] FAMILY LAW 20-2-7818 Ruthann Enriquez v. Carlos A. Enriquez, App. Div. (6 pp.) Trial judge correctly held that N.J.S.A. 2A:17-56.23a precluded mother from obtaining father’s contribution for the expenses of their son’s second- and third-year school expenses, and the judge’s computation of the father’s contribution for the fourth year also is affirmed; however, there is no basis for the court allowing the father 40 months to satisfy his additional obligation for the son’s education expenses. 20-2-7819 Joan Wheatley v. Bernard Wheatley, App. Div. (8 pp.) Denial of husband’s application for retroactive modification of child support is affirmed, since the judge, although not obligated to reduce husband’s support obligation while husband remained unemployed and unable to find work in his chosen field, granted him temporary relief through a series of gradual reductions, and, while he still was unable to make full payment, there is no legal imperative that mandates the elimination of accrued arrearages under these circumstances. INSURANCE — P.I.P. 23-2-7820 Christopher Poulos v. Market Transition Facility of N.J., etc., App. Div. (4 pp.) Although plaintiff sued carrier for more than $24,000 in medical expenses incurred after an accident, the court correctly ordered that carrier only was obligated to pay PIP payments of about $8,000, since the reasonableness and necessity of the expenses terminated after a certain date, and the prolonged and varied courses of treatment not only failed to help plaintiff, but seemed to allow his condition to worsen. INSURANCE — U.I.M. 23-2-7821 Theresa Lima v. Travelers Ins. Co., App. Div. (5 pp.) The trial judge erred in concluding that plaintiff’s suit for underinsured motorist coverage was time-barred because she did not file within six years of the accident, since the plaintiff’s UIM claim did not accrue until there was an exhaustion of the tortfeasor’s liability insurance limits by settlement; nevertheless, the dismissal of plaintiff’s suit is affirmed, since she failed to notify the carrier of her settlement with the tortfeasor, and thus irrevocably prejudiced the carrier’s subrogation rights. INSURANCE — VERBAL THRESHOLD 23-2-7822 Victor Toledo v. Maria Cabrera, App. Div. (5 pp.) Plaintiff’s case should not have been dismissed for failure to meet the verbal threshold, since plaintiff’s doctor found muscle spasm during the period of his active treatment and upon reexamination two years later, related those spasms to the accident, and opined that plaintiff was unable to work because of her injuries. REAL ESTATE — ENVIRONMENT 34-2-7823 Howard M. Rosengarten, et al. v. William Bolton, et al., App. Div. (14 pp.) In a case where purchasers of real property sued mortgagee sellers for misrepresentations about the property’s past environmental condition, the trial judge’s reasons for denying defendants’ motion to vacate default judgment against them cannot be faulted, however, the defendants’ subsequent motion to vacate only the part of the judgment that ordered the mortgage’s cancellation should have been granted, since it was limited to the issue of proof of damages, on which a hearing should be held. TORTS — DEFAMATION 36-2-7824 Arthur Abrams v. Patrick Andrews, App. Div. (6 pp.) Defamation suit was correctly dismissed because the plaintiff — a municipal community development representative — was a public figure, and the comments made about him, by the vice president of the municipal board of education, pertained to plaintiff’s participation in a matter of public importance in his capacity as a public figure. WORKERS’ COMPENSATION 39-2-7825 Ronald C. Mason v. RCA Corp., et al., App. Div. (20 pp.) The evidence supports a compensation judge’s decision that petitioner had suffered a nerve injury discrete and separate from an earlier nerve injury, that he had not filed a petition alleging an accident or occupational exposure encompassing that distinct injury, and that a claim for that injury was now time-barred. CRIMINAL LAW AND PROCEDURE 14-2-7826 State v. Kyle Johnson; State v. Wade Johnson, App. Div. (23 pp.) Although the prosecutor improperly used a second grand jury panel solely to conduct pre-trial preparation to preserve the testimony of a recalcitrant witness, such impropriety does not require reversal of the conviction, since the state obtained no undue advantage in the presentation of its case through the prosecutor’s action. [Approved for publication Feb. 7, 1996. Available online in NJ Full-Text Decisions.] FEDERAL COURT CASES CIVIL PROCEDURE — BILLS OF COSTS 07-7-7827 Anne F. McNierney v. N.J. Dept. of Education, U.S. Dist. Ct. (3 pp.) Defendant, in whose favor a verdict was entered with costs, had to file its bill of costs within 30 days of the verdict, and, since the rules of evidence indicate that no extension can be granted, and defendant does not establish that injustice would result if its motion for an extension is not granted, its motion for such extension is denied. INSURANCE — PRIVILEGED DOCUMENTS 23-7-7828 NL Indus. Inc. v. Commercial Union Ins. Co., et al., U.S. Dist. Ct. (6 pp.) In a coverage suit for claims against plaintiff arising from plaintiff’s nationwide lead processing operations, where certain documents previously had been classified by order into “non-privileged,” “originally privileged but waived,” and “privileged,” since insurers have shown the court that five documents previously classified as “originally privileged, but waived,” should be properly classified, according to the court’s definition, as “privileged,” the court grants the insurers’ motion to amend the prior order. LABOR AND EMPLOYMENT — APPOINTMENT OF COUNSEL 25-7-7829 Daniel McInnis, pro se v. Kern Foam Products, U.S. Dist. Ct. (4 pp.) Although the right to appointed counsel is not statutory in civil matters, it can be granted to an indigent plaintiff at the court’s discretion provided that the plaintiff show that he has a meritorious case; plaintiff’s counsel application is denied because he has failed to make such a showing in this employment discrimination case, since he has not set forth facts or information relating to his claim, has not requested any kind of relief, and the EEOC previously has reviewed the matter and found no violation by the employer.

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