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Vol. 4 No. 9 Decisions Released Jan. 16, 1996 STATE COURT CASES CIVIL PROCEDURE — APPEALS 07-2-7564 Robert P. London, Jr. v. Lederle Laboratories, etc., et al., App. Div. (5 pp.) The court properly denied plaintiff’s motion to reopen his dismissed claim for the staining of his teeth by tetracycline since, although a similar case was favorably decided approximately five months after plaintiff’s dismissal, he is not entitled to the benefit of the decision changing the law and the final judgment is entitled to repose. FAMILY LAW 20-2-7565 Sonya Miccoli v. Mauro Miccoli, App. Div. (6 pp.) Trial judge erroneously applied Florida law in declaring daughter automatically emancipated at age 18 — since both parties have relocated since the original Florida order, have sought modification of the order in N.J., and daughter is now a resident of N.Y. — and matter is remanded for further consideration of daughter’s status under N.Y. law. FAMILY LAW — DOMESTIC VIOLENCE 20-2-7566 K.B. v. K.B., App. Div. (10 pp.) Where defendant had frequently contacted his children’s babysitter by phone to inquire as to their welfare, and began to telephone plaintiff when the babysitter got an unlisted telephone number, the calls were erroneously held to constitute harassment, since there was no threat or danger to the plaintiff, and the purpose of the calls was not to harass, but to inquire after the children. INSURANCE 23-2-7567 Nicholas Badalaty, et al. v. Hartford Underwriters Ins. Co., et al., App. Div. (4 pp.) Court properly dismissed plaintiffs’ suit alleging that insurer failed to properly advise and inform them concerning the nature of UM/UIM coverage, since the indemnity conferred upon insurers by N.J.S.A. 17:28-1.9a extends to plaintiffs’ policy even though the policy was issued before the effective date of the statute. 23-2-7568 St. Paul Fire and Marine Ins. Co. v. National Union Fire Ins. Co., etc., et al., App. Div. (7 pp.) Although the trial court erred in relying on N.J.S.A. 2A:40A-3 to conclude that contract language should be interpreted to indemnify county for its own negligence for defective street paving, summary judgment in favor of insurer for county was nevertheless proper, since there is a specific contractual provision unequivocally expressing contractor’s agreement to assume all risks in connection with paving project, whether or not such risks were within its control. 23-2-7569 Mary Riggins v. The Market Transition Facility of N.J., etc., et al., App. Div. (6 pp.) Where plaintiff was the owner of an automobile registered and principally garaged in N.J., which she allowed to be operated by her son without P.I.P. coverage at or around the time of the accident, complaint for P.I.P. benefits against insurer of driver of other vehicle was properly denied. LABOR AND EMPLOYMENT — L.A.D. 25-2-7570 Patricia Kuran v. Plainfield Bd. of Education, et al., App. Div. (6 pp.) Librarian’s claim that she was discriminated against when she returned to work after an accident and resulting disability was properly dismissed, since there was no unjustified delay in her return to work and was compensated for the weeks in which she had not received a paycheck; and her reasonable accommodation charges were likewise without merit, since she failed to tell her superiors of any dissatisfaction with her conditions. LABOR AND EMPLOYMENT — WRONGFUL DISCHARGE 25-2-7571 Ronald J. Pignatello v. A.K. Stamping Co., Inc., App. Div. (4 pp.) Trial judge correctly concluded that plaintiff was not wrongfully discharged for his failure to sign what he felt was an excessive and unreasonable non-compete agreement, since he was an at-will employee, there was no implied covenant of fair dealing and the case did not involve a clear mandate of public policy. NEGLIGENCE — PRODUCT LIABILITY 31-2-7572 Angelica Jimenez v. GNOC, Corp., etc., et al., App. Div. (17 pp.) On plaintiff’s suit for injuries suffered when a casino escalator allegedly malfunctioned, trial court correctly granted casino’s motion for an involuntary dismissal on the ground that casino’s duty was only to exercise reasonable care toward its guests, and plaintiff demonstrated no breach of that duty; court also properly granted escalator manufacturer’s motion to strike testimony of plaintiff’s expert because it constituted a net opinion, and, without such expert testimony, properly dismissed the case since the doctrine of res ipsa loquitur did not apply. [Approved for publication Jan. 16, 1996. Available online in NJ Full-Text Decisions.] PHYSICIAN/PATIENT — DENTISTS 29-2-7573 Clinton Bryant, et al. v. Charles Calantone, D.D.S., App. Div. (11 pp.) Since plaintiff engaged in no careless conduct during the course of negligent dental treatment by defendant, judge properly refused to instruct the jury on comparative negligence; but judge erred in failing to charge the jury on plaintiff’s conduct after the dental treatment and, although the issue of avoidable consequences was not raised below, the lack of a charge thereon constitutes plain error and mandates a new trial on damages only. [Approved for publication Jan. 16, 1996. Available online in NJ Full-Text Decisions.] PUBLIC EMPLOYEES — POLICE 33-2-7574 Michael Del Vecchio v. Borough of Haledon, App. Div. (4 pp.) N.J.S.A. 40A:14-179 — providing that the starting salary of a local police chief be set at a rate not less than 5 percent above the highest salary of the ranking police officer next in command — is applicable to all police chiefs after its effective date, irrespective of date of appointment, and the trial judge erred in refusing to give the statute retroactive effect to plaintiff. WORKERS’ COMPENSATION 39-2-7575 Royal Ins. Co., etc. v. Roy A. Pohlman, etc., App. Div. (8 pp.) Where landscaper was injured in an accident in his employer’s truck while returning to his place of business, his P.I.P. carrier was entitled to reimbursement from employer for monies it expended for his medical bills; however, trial court erred in holding that employer did not have the right to question the reasonableness of those medical bills. 39-2-7576 Ren F. Watson v. George Delp & Sons, App. Div. (6 pp.) Compensation judge correctly credited and relied on petitioner’s psychiatrist’s opinion, which was based on a psychiatric interview, clinical observations and testing and did not represent the mere parroting of petitioner’s symptoms and complaints, and the award for permanent disability based on petitioner’s psychiatric “conversion disorder” is affirmed; since petitioner’s temporary orthopedic disability award has neither been appealed nor stayed, respondent’s failure to pay it is inexcusable and sanctions are imposed. CRIMINAL LAW AND PROCEDURE 14-2-7577 State v. Michael Dent, App. Div. (8 pp.) The judge erred in his supplemental instruction on accomplice liability when he omitted, over defense objection, any reference to purpose, and reversal is required. FEDERAL COURT CASES BANKRUPTCY — LEGAL FEES AND EXPENSES 42-7-7578 Ravin, Sarasohn, Cook, et al. v. Thul Machine Works Co., Inc., U.S. Dist. Ct. (15 pp.) Bankruptcy Court correctly denied law firm’s application for allowance of fees and reimbursement of expenses pursuant to Section 506(c) since, although the expenditures were reasonable and necessary and incurred to dispose of the secured collateral, they did not directly benefit the secured creditor and any incidental benefits that might have been conferred upon the secured creditor are insufficient to justify recovery under Section 506(c). BANKRUPTCY — JURISDICTION 42-8-7579 In re: The Guild and Gallery Plus, Inc., Debtor; John B. Torkelsen v. Carmen J. Maggio, Third Cir. (30 pp.) Since it is uncontroverted that a painting that had been held by the debtor under a bailment, and was alleged to have been lost or stolen by the trustee, was never the property of the bankruptcy estate, and that the outcome of the painting owner’s suit against the trustee would have had no effect on the bankrupt estate, the courts below lacked subject matter jurisdiction and the district court erred in holding that the matter was a core proceeding. [Available online in 3rd Circuit - Court of Appeals.] PENSIONS — ERISA 56-7-7580 Paul S. Doherty, Jr., et al. v. Teamsters Pension Trust Fund of Philadelphia and Vicinity; Charles J. Schaffer, Jr., etc. v. Monomoy, Inc., et al., U.S. Dist. Ct. (12 pp.) A plan sponsor of a multi-employer pension fund under ERISA correctly determined that defendants were members of the “controlled group” of trades or businesses under “common control” of the bankrupt and withdrawing entity under the terms of the Multi-employer Pension Plan Amendments Act, and that defendants are therefore liable for interim payments for withdrawal liability obligations; having determined that interim payments are due, the court is also required to award attorney’s fees, liquidated damages and costs in favor of the fund. 56-7-7581 Phillip J. Connell, et al. v. Trustees of the Pension Fund of the Ironworkers District Council, etc., U.S. Dist. Ct. (26 pp.) Pension plan trustees’ application of the “break in service” rules was not arbitrary, nor was it a breach of their fiduciary duty under ERISA, since former ironworkers voluntarily left their trade, thus forfeiting pension credits they had earned prior to the breaks in service.

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