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Vol. 4, No. 184 — September 23, 1996 STATE COURT CASES ADMINISTRATIVE LAW AND PROCEDURE 01-2-0057 In the Matter of the Alleged Sexual Abuse of T.B., etc., App. Div. (9 pp.) Based on the evidence from an investigation, the D.Y.F.S. Institutional Abuse Investigation Unit could fairly and reasonably have determined by a preponderance of the evidence that the sexual abuse charge against appellant was substantiated. FAMILY LAW — CUSTODY — JURISDICTION 20-2-0058 Gerald L. Messerschmidt v. Katherine Ruth Mosley-Clark, App. Div. (6 pp.) Even if N.J. trial court had sufficient basis for exercise of emergency jurisdiction over child at one point, the court’s order purporting to exercise general jurisdiction regarding the custody of child is reversed, since Texas was clearly the child’s home state, her presence in N.J. was temporary for the limited purpose of enjoying summer visitation with her father, and jurisdiction under the Uniform Child Custody Jurisdiction Act is in the state of Texas. INSURANCE — VERBAL THRESHOLD 23-2-0059 Michael A. Sette v. Edward P. Kaplan, App. Div. (5 pp.) Jury’s finding that plaintiff’s injury did not satisfy the verbal threshold is reversed, since the judge committed reversible error in instructing the jury that a fracture must be either consequential or significant in order to satisfy the verbal threshold. INSURANCE — WRONGFUL DEATH — U.C.J.F. 23-2-0060 Patricia Campbell, etc., et al. v. James Sheppert, et al., App. Div. (5 pp.) The fact that plaintiff’s attorney did not possess the registration indicating the name of the defendant s insurance company within 90 days after the accident does not preclude plaintiff from relying on the 15-day provision of N.J.S.A. 39:6-65, which provides that, in lieu of giving the 90-day notice of claim against the Unsatisfied Claim and Judgment Fund, a claimant may give notice within 15 days of an insurer’s disclaimer. PHYSICIAN/PATIENT 29-2-0061 Mary Shaughnessy v. Dr. Martin Borsky, et al., App. Div. (9 pp.) Since the trial judge correctly determined that there was no required shifting of the burden of proof in this medical informed-consent case, there was no improper coercion of the jury, plaintiff’s expert was not mistakenly prohibited from testifying to certain evidence, and the verdict for the defendant was not against the weight of the evidence. FEDERAL COURT CASES BANKING — RECEIVERS 06-7-0062 Resolution Trust Corp., etc. v. Sam Halpern, et al., U.S. Dist. Ct. (14 pp.) Plaintiff, as receiver for failed savings bank, is denied summary judgment on its action on defendants admittedly defaulted note; although some of defendants’ claims — i.e. oral modification of their agreement — are barred by the D Oench, Duhme doctrine, others — such as estoppel and accord and satisfaction — are based upon actions taken by the RTC after it took over the bank, and are not barred by the doctrine, which does not protect the RTC from the consequences of its own actions. [Filed Sept. 12, 1996.] INSURANCE 23-7-0063 Lynn Mitchell v. The Guardian Life Ins. Co. of America, U.S. Dist. Ct. (12 pp.) Insurer is entitled to summary judgment both on plaintiff’s claim for additional benefits and on its own counterclaim for a refund of benefits already paid, since the injury was work-related and clearly was excluded by the applicable policy, and the fact that the insurer silently paid the employee s medical bills does not constitute an affirmative misrepresentation of coverage, nor has the plaintiff alleged the “extraordinary circumstances” necessary to maintain an equitable estoppel claim under ERISA. [Filed Sept. 12, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE A tactical error more than 30 years ago by Bergen County prosecutors could have mandated the parole of convicted police killer Thomas Trantino in 1988. The mistake was discovered by an appeals panel hearing the case last week. See page 1 of the Sept. 23 Law Journal.

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