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Vol. 4 No. 20 – JANUARY 31, 1996 STATE COURT CASES ATTORNEYS — FEES — JUDICIAL REVIEW 04-2-7727 Kerry A. Furey, etc. v. County of Ocean, App. Div. (6 pp.) A contingency fee retainer should not prevent a trial judge from exercising statutory discretion in assessing a reasonable fee award under N.J.S.A.59:9-5. [Approved for publication Jan. 31, 1996.] FAMILY LAW — EMANCIPATION 20-4-7728 Carlene Bishop v. Robert Bishop, Chancery Div. (12 pp.) Based upon the significant degree of support given and control that the government has over a West Point cadet, coupled with the fact that the cadet is considered as a full- time member of the military, the cadet’s status is inconsistent with parental control, and he is deemed emancipated. [Approved for publication Jan.30, 1996.] FAMILY LAW — LEGAL MALPRACTICE — ENTIRE CONTROVERSY 20-4-7729 Alexander J. Mustilli v. Joan Mustilli, Chancery Div. (14 pp.) Even though a legal malpractice action carries an entitlement to a jury and a marital dissolution action is an equitable action with no jury entitlement, the better practice recognizes that the legal malpractice action must be brought within the matrimonial action in which the alleged malpractice occurred; therefore, husband’s motion for leave to amend his complaint to join a legal malpractice claim is granted, but his motion to adjourn the matrimonial trial due to such joinder is denied, since the entire controversy doctrine does not mandate that the joined claims actually be litigated together, and the claims can be severed. [Approved for publication Jan.30, 1996.] FAMILY LAW — MARITAL TORTS 20-4-7730 Alexander J. Mustilli v. Joan Mustilli, Chancery Div. (8 pp.) Despite the fact that husband’s marital tort claim is based upon the same acts of extreme cruelty that were alleged in the complaint, the tort claim seeking damages must be considered independent and distinct from the original claim seeking dissolution of the marriage, and, therefore, the proposed complaint amendment does not “relate back” to the original filing date and is time-barred. [Approved for publication Jan.30, 1996.] GOVERNMENT — BIDS 21-2-7731 Carbro Constr. Corp., etc., et al. v. Twp. of South Brunswick, etc., et al., App. Div. (7 pp.) Order dismissing complaint challenging municipality’s contract award for road construction is affirmed, since the bid was awarded to the lowest bidder who had submitted a notarized, current state Department of Transportation prequalification form, and the municipality, on its unambiguous bid solicitation, could lawfully choose to consider only conforming bids. INSURANCE — J.U.A. — SERVICING CARRIERS 23-3-7732 Ilvia Miglicio v. HCM Claim Management Corp., et al., Law Div. (14 pp.) Because bad-faith acts are outside the scope of a servicing carrier’s duties and obligations under its contract with the JUA, the servicing carrier is not immune from suit by the insured for such bad-faith acts. [Approved for publication Jan. 30, 1996.] INSURANCE — U.M. AND U.I.M. 23-2-7733 Denise A. Hesser v. Harleysville-Garden State Ins. Co., App. Div. (8 pp.) Interpreting the insured’s entire automobile insurance policy together with the Buyer’s Guide and statute, the court concludes that the parties intended that the insured, in electing UM/UIM coverage, would be entitled to indemnification for all property damage and bodily injury up to a cumulative $75,000 limit for any one accident, and the trial judge erred in holding that the insured was entitled to $75,000 for each of the UM and UIM claims; to the extent that Coniglario v. Hanover Ins. Co., 233 N.J. Super. 627 (Law Div. 1989), implies that the total UM and UIM benefits can exceed the overall policy liability limits, it is overruled. [Approved for publication Jan. 31, 1996.] INSURANCE — VERBAL THRESHOLD — BICYCLISTS 23-2-7734 Steven Harbold v. Gerri Olin, App. Div. (8 pp.) The trial judge erred in holding that plaintiff, a bicyclist, was not subject to the verbal threshold, since he was entitled to PIP benefits as an immediate family member residing in his mother’s household, and she had elected the verbal threshold in her automobile insurance policy, by which he is bound. [Approved for publication Jan. 31, 1996.] LANDLORD/TENANT 27-2-7735 Guyon Gen. Piping Inc. v. Fabco Piping Inc., etc., et al., App. Div. (5 pp.) The motion judge correctly granted partial summary judgment to landlord on action for unpaid rent for balance of breached lease term, since the evidence offered regarding landlord’s mitigation of damages showed that the landlord’s efforts to relet the premises were reasonable, although unsuccessful. NEGLIGENCE 31-2-7736 Gina Capaldo v. Mattlind Inc., etc., et al., App. Div. (29 pp.) The court affirms the jury’s verdict in favor of go-go dancer who was injured in an altercation with a fellow dancer and the club’s bouncer, since (1) jury award may have been generous, but was not manifestly excessive or unjust, since plaintiff had pain, suffering and disability for four years before trial and had a 48-year life expectancy at the time of trial, and (2) it was not improper for judge to allow plaintiff to comment during closing about defendant’s failure to produce the bouncer as a witness, since the conditions that would make such a comment improper — that the bouncer was unavailable or was prejudiced against the defense, or that his testimony would be cumulative or unimportant — did not apply. PUBLIC EMPLOYEES — COLLECTIVE NEGOTIATIONS 33-1-7737 N.J. Turnpike Auth. v. N.J. Turnpike Supervisors Ass’n, Supreme Ct. (29 pp.) Disciplinary proceedings involving charges of sexual harassment were within the scope of collective negotiations, not precluded by the New Jersey Law Against Discrimination, and supervisory employee’s grievance relating to those procedures was subject to binding arbitration under the collective agreement. TAXATION 35-2-7738 Twp. of Kingwood, etc. v. Block 14, Lot 25, etc., App. Div. (2 pp.) Taxpayers were properly denied summary judgment in foreclosure action, since it was uncontested that the tax sale certificates were not redeemed within two years of issuance, nor at any time before judgment, and the issues raised by taxpayers are embodied in their severed counterclaim and can be addressed by the Law Division. CRIMINAL LAW 14-2-7739 State v. Edward L. Duncan, App. Div. (8 pp.) Defendant is entitled to a new trial since, in light of State v. Belluci, 81 N.J. 531 (1980), his attorney’s undisclosed partnership co-defendant’s attorney created a conflict of interest resulting in presumed prejudice. 14-2-7740 State v. Christopher Arthur, App. Div. (11 pp.) (1) Where two people, previously unknown to the police, sat conversing in a car in broad daylight, and there was no transaction observed, no exchange of money, and no furtive gestures, the totality of the circumstances involved in the police surveillance of defendant did not rise to the level of reasonable suspicion required to justify the subsequent pursuit and stop of defendant, but, rather, the officer acted on a hunch, which does not measure up to the required standard. (2) The taint of the officers’ illegal conduct in following and searching the person who had been talking with defendant in the first vehicle was not dissipated by the time they returned to and arrested defendant, and could not validate the search of defendant. [Approved for publication Jan. 31, 1996.] FEDERAL COURT CASES COMMERCE — TELECOMMUNICATIONS 08-7-7741 MCI Telecommunications Corp. v. Graphnet Inc., U.S. Dist. Ct. (7 pp.) In plaintiff’s action to recover monies due for voice transmission services provided to defendant, (1) since there is no evidence that defendant had a contractual right to offset charges owing to plaintiff, a wholly owned subsidiary of MCI, by charges due defendant from another wholly owned MCI subsidiary, plaintiff’s motion to dismiss this aspect of counterclaim is granted, but (2) since there exists a material issue of fact concerning defendant’s claim that it had a contractual right to credits for interrupted calls, summary judgment on this issue is denied. LABOR AND EMPLOYMENT — WIRETAPPING — ATTORNEYS’ FEES 25-7-7742 Lawrence V. Pascale, et al. v. Carolina Freight Carriers Corp., etc., et al., U.S. Dist. Ct. (2 pp.) Where plaintiff had prevailed on summary judgment motion — which held that defendants had violated the New Jersey Electronic Surveillance Act and the federal Omnibus Crime Control and Safe Streets Act — and now moves for attorneys’ fees, such application must be denied, since neither the applicable statutes nor the legislative history indicate any intent to authorize interim fee awards once liability has been determined but before final judgment. (For prior opinion, see DDS No. 25-7-6658 in Alert dated 10/3/95.) PENSIONS — ERISA — ATTORNEYS’ FEES 56-7-7743 Estate of Edward Karski, etc. v. Anheuser-Busch Cos., U.S. Dist. Ct. (5 pp.) Defendant’s attorneys’ fees application, after a prevailing summary judgment holding that pension plan administrator did not arbitrarily deny benefits to decedent’s heirs, is denied, since heirs did not act in bad faith in instituting or litigating the suit, and lack of ultimate merit in their position does not justify a counsel fee award against them. (For prior opinion, see DDS No. 25-7-6973 in Alert dated 11/8/95.)

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