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Vol. 4 No. 18 – JANUARY 29, 1996 STATE COURT CASES CONTRACTS 11-3-7701 Muffler Masters, Inc. v. Advanta Leasing Corp., Law Div. (5 pp.) Where defendant directed that plaintiff ship automotive muffler installation and repair equipment directly to a car dealership, and the equipment was so shipped, and the dealership retained it, and the defendant sent an employee to the dealership to train dealership’s employees on the usage of the equipment, the defendant is deemed to have accepted delivery of the equipment, irrespective of the fact that it did not take possession itself, since it exercised dominion over the disposition of the property, and it is therefore liable for payment to plaintiff. INSURANCE — P.I.P. — MEDICAL MALPRACTICE 23-3-7702 Unsatisfied Claim and Judgment Fund v. Allstate Ins. Co., Law Div. (7 pp.) (1) Assuming that the nature of PIP insurer’s duty to the Unsatisfied Claim and Judgment Fund includes a duty to investigate possible medical malpractice claims, to exhaust possible remedies and to consult with the UCJF board regarding payments in excess of $75,000, it is impossible for the court — on the facts of this case — to conclude that insurer breached these duties, and the court must deny UCJF’s motion for summary judgment seeking reimbursement from insurer for excess costs paid to PIP insured. (2) Court will also deny insurer’s motion for summary judgment against UCJF, choosing to follow the decision of Allstate v. Coven, 264 N.J. Super. 240 (App. Div. (1993), until the appellate court gives further guidance as to whether a PIP carrier has a viable cause of action against medical malpractice tortfeasors under N.J.S.A. 39:6A-9.1. State Opinion Approved for Publication: 44-2-6203 State, by the Commr. of Transportation v. John Van Northwick, et al.. FEDERAL COURT CASES BANKRUPTCY 42-7-7703 In the Matter of Tomas Mendes, U.S. Dist. Ct. (7 pp.) In a case arising out of debtor’s repeated attempts to thwart mortgagee’s efforts to foreclose on his property, (1) debtor’s motion to reopen his bankruptcy appeal is denied, since he has presented nothing other than the same allegations previously raised and rejected in the state court proceedings; (2) because he has presented the same claims before a multitude of judges, the court grants the mortgagee’s motion to enjoin debtor from filing further proceedings in this matter without the permission of the court; however, (3) monetary sanctions are denied, absent proof of debtor’s intent to harass. INSURANCE — WAREHOUSING — INDEMNIFICATION 23-7-7704 Cal Harvest Marketing, Inc. v. Action Leasing, Inc., etc. v. Albany Ins. Co., etc., U.S. Dist. Ct. (8 pp.) Since complaint against warehouse — for damage to stored fruit — is unambiguous and comes within the terms and coverage period of its warehouseman’s legal liability policy, warehouse is granted summary judgment ordering insurer to defend against the lawsuit, and, since there is an issue of material fact as to the cause of the damage to the fruit, insurer’s motion for summary judgment for indemnification based on policy exclusion is denied. LABOR AND EMPLOYMENT — ANCESTRY AND HANDICAP 25-7-7705 David Tarino v. Kraft Foodservice, Inc., et al., U.S. Dist. Ct. (32 pp.) Employer is granted summary judgment dismissing former salesman’s complaint alleging, inter alia, wrongful termination due to his Italian ancestry and alleged handicap, since, in both cases, salesman, who was guilty of a long-term, documented pattern of poor performance, failed to establish the second prong of his prima facie discrimination case — to wit — that he was qualified for the position from which he was terminated; further, even assuming that salesman had established a prima facie case, he did not prove that the alleged acts of discrimination bore a causal relationship with his termination, or that the reasons given for the termination were pretextual. PRODUCT LIABILITY — MOTIONS TO QUASH — TRANSFER 32-7-7706 Betsy Lakie v. Smithkline Beecham, U.S. Dist. Ct. (9 pp.) Where defense expert, a N.J. resident, moves to quash a subpoena issued in a products liability case in the District of Columbia, seeking his production of various records pertaining to his relationship with defendant, the court transfers motion the quash to the District of Columbia, since the interests of judicial economy will be furthered by allowing the court most familiar with the underlying action to resolve the discovery dispute. REAL ESTATE — MUNICIPAL LIENS — PRIORITIES — FDIC 34-7-7707 Old Bridge Owners Cooperative Corp., etc., et al. v. Twp. of Old Bridge, et al., U.S. Dist. Ct. (16 pp.) Although the FDIC is personally liable for real property taxes, water and sewer charges that accrue on a property in which it has an interest, these charges are precluded from acquiring lien status while the property is in federal receivership; therefore, no lien attaches to run with the land and the municipality must pursue the FDIC directly and may not seek payment from the subsequent purchaser once the property is transferred. TORTS — KNOWING PARTICIPATION/ BREACH OF FIDUCIARY DUTY 36-7-7708 Enprotech Corp. v. William Renda, et al., U.S. Dist. Ct. (10 pp.) Where defendants were aware that individuals with whom they entered into business were working for plaintiff at the time the competing business venture was planned and started, and accepted the benefits of the individuals’ actions in forming the new venture, defendants are guilty of knowing participation in the employees’ breach of their fiduciary duty to plaintiff/ their former employer. CRIMINAL LAW AND PROCEDURE — APPOINTMENT OF COUNSEL 14-7-7709 Ceverilo Chambers v. U.S.A., U.S. Dist. Ct. (6 pp.) Petitioner is not entitled to appointment of counsel since the factual matters implicated by his petition for habeas corpus are of record and do not require an evidentiary hearing, and the appointment of counsel would serve no useful purpose. Federal Opinion Approved for Publication: 36-7-7377 Perry Datoli v. Thomas Yanelli.

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