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Vol. 4 No. 111 – JUNE 11, 1996 STATE COURT CASES ATTORNEY/CLIENT 04-2-9175 Robert Olds v. Dennis Donnelly v. Joe Maran, App. Div. (15 pp.) The trial court used an inappropriate standard in considering and granting defendant s motion for judgment notwithstanding the verdict, considering the credibility of the evidence rather than accepting as true all the evidence which supported the plaintiff s position. Approved for publication Jun. 11, 1996.] DEBTOR/CREDITOR — FORECLOSURE 15-2-9176 First Fidelity Leasing Group Inc. v. Mural Transport Inc., et al., App. Div. (3 pp.) The court correctly concluded that a bankruptcy court order prevented plaintiff from recovering more than the stated amount due on its mortgage and limited attorneys’ fees to those allowable under R. 4:42-9(a)(4). INSURANCE — DUTY TO DEFEND 23-2-9177 The Grand Cove II Condominium Ass n, Inc., et al. v. Barrett Allen Ginsberg, et al. v. Newark Ins. Co., et al., App. Div. (23 pp.) Due to a number of factors — including the fact that many of the claims against plaintiffs in underlying litigation were not covered and the fact that plaintiff s settlement agreement may have prejudiced the insurers rights — there was no factual or legal basis for the trial court s order that insurers must assume responsibility for defense of all claims against plaintiffs in the underlying litigation, and the insurers duty should have been converted to a duty to reimburse pending the outcome of the coverage litigation. [Approved for publication Jun. 11, 1996.] INSURANCE — P.I.P. 23-3-9178 Petrolina Camacho v. Steven Diaz, et al., Law Div. (12 pp.) Plaintiff, a pedestrian injured in a New Jersey accident by an uninsured motorcycle registered and garaged in New York, is not entitled to recover PIP benefits from the Unsatisfied Claim and Judgment Fund under N.J.S.A. 39:6-86.1, and her claim is dismissed. [Approved for publication Jun. 7, 1996.] INSURANCE — RETROACTIVE REVOCATION — THIRD PARTIES 23-1-9179 Christine Dillard v. Hertz Claim Management, et al., Supreme Ct. (5 pp.) Christine Dillard v. Hertz Claim Management, et al., Supreme Ct. (5 pp.) The retroactive revocation of a driver s liability policy, when the check for a premium payment was dishonored for insufficient funds, does not affect the right of an innocent third-party passenger to recover under the policy’s liability and uninsured motorist provisions, and the remedy of the N.J.A.F.I.U.A. was against the defaulting driver. [The court wrote no full opinion in this case, but based its decision on the reasons expressed in the Appellate opinion dated Nov. 22, 1994, available under DDS No. 23-2-4387.] [This is a companion case to 23-1-9180 below.] 23-1-9180 Concetta Marotta v. N.J.A.F.I.U.A., Supreme Ct. (5 pp.) Under N.J.S.A. 39:6-48 an automobile insurer cannot, on the ground of fraud or misrepresentation relating to the inception of the policy, retroactively avoid coverage under a compulsory or financial insurance law so as to escape liability to an innocent third party, and the N.J.A.F.I.U.A. is responsible for mandatory minimum coverage. [The court wrote no full opinion in this case, but based its decision on the reasons expressed in the Appellate opinion dated Mar. 31, 1995, available under DDS No. 23-2-5304.] [This is a companion case to 23-1-9179 above.] INSURANCE — UNINSURED MOTORIST COVERAGE 23-2-9181 Joanne Reight, etc., et al. v. ITT Hartford, et al., App. Div. (4 pp.) The existence of a phantom vehicle is subsumed within the liability issue, and is not a “coverage” issue within the meaning of policy’s arbitration clause, therefore the issue is arbitrable and need not be decided by the court. INSURANCE — VACATING DEFAULT 23-2-9182 Anna Czuprynski, etc. v. Indemnity Ins. Co. of N.A., etc., App. Div. (7 pp.) Judge’s refusal to grant defendant’s request to vacate default judgment was an abuse of discretion and is reversed, since defendant’s pleadings clearly demonstrate a sufficient reason why it failed to file a timely answer — namely, retrieval of a closed PIP file four years after the last payment of benefits — and defendant’s statute of limitations defense is meritorious. LANDLORD/TENANT 27-2-9183 Ethel Burt v. Bentley Woods Apts., etc., et al., App. Div. (5 pp.) Although the factual issue — whether landlord had responded reasonably to tenant’s notice of a ceiling leak — was a close one, the choice between the differing versions of the event was for the jury, and, since their verdict for landlord is supported by the record, it will not be overturned. PARENT/CHILD 28-2-9184 In the Matter of: the Guardianship of E.W., a Minor, App. Div. (4 pp.) Judge’s refusal to adjourn termination of parental rights trial due to birth mother’s incarceration in Florida was in the best interest of the child, and was not a violation of mother’s due process rights, since she was incarcerated due to her inability to stay drug-free, the child had been in foster care for five years while birth mother tried to rehabilitate her long-term drug abuse problem, and mother had the ability to participate in the trial via telephone. PHYSICIAN/PATIENT 29-2-9185 Robert Nevins, et al. v. Dr. Steven Potter, et al., App. Div. (18 pp.) Dismissal of plaintiffs’ medical malpractice case for noncompliance with discovery orders was an inappropriately severe sanction, since plaintiffs had had difficulty obtaining discovery, and defendants were not sanctioned. PRODUCT LIABILITY 32-2-9186 Cheryl Adelman, et al. v. Joseph A. Lupo, et al., App. Div. (18 pp.) The trial court erred when it permitted car manufacturer, over plaintiffs objection, to introduce evidence that the National Highway Traffic Safety Administration had not opened an investigation regarding an alleged defect in the harness/conduit on the subject type of vehicle, since (1) there was inadequate information presented to the jury regarding the NHTSA, its role, procedures, criteria and practices, (2) no threshold determination was made as to whether the existence or lack of such an investigation was a fact reasonably relied upon by experts in that particular field, and (3) the capacity for prejudice outweighed its probative value. [Approved for publication Jun. 11, 1996.] PUBLIC EMPLOYEES 33-2-9187 Leilani Kramer v. Bd. of Trustees of P.E.R.S., App. Div. (14 pp.) N.J.S.A. 43:15A-57.2 does not permit aggregating two periods of service where there has been an intervening retirement with benefits paid out and a lapse of service, which here was four years. [Approved for publication Jun. 11, 1996.] WILLS, ESTATES AND TRUSTS — REVOCATION 38-4-9188 In the Matter of the Estate of Mario Giacalone, deceased; Mario Giacalone v. Mary Speranza, et al., Chancery Div. (34 pp.) The court finds that the “whole complex of (decedent’s) circumstances” was tantamount to constructive revocation of his will, and divides the estate under the law of intestacy. [Please note that this is the unofficial transcript of the official videotape of the court's opinion, as well as the filed court order.] WILLS, ESTATES AND TRUSTS — TAXES 38-2-9189 In the Matter of the Marital Deduction Trust Under Will of Herbert J. Adair, deceased; J. Susan Emilio, etc. v. PNC Bank, N.A., etc., App. Div. (7 pp.) Judge, in applying applicable Florida law, properly concluded that the language of plaintiff’s decedent’s standby trust explicitly and clearly directed the trust to pay all taxes due on her gross estate, including nonprobate assets such as the QTIP trust, and therefore the court affirms the dismissal of plaintiff’s complaint seeking to require trustee of marital deduction trust created by decedent’s late husband to pay state death taxes owed on that trust and previously paid out of decedent’s estate. CRIMINAL LAW AND PROCEDURE 14-2-9190 State v. Joseph DeLeone, App. Div. (10 pp.) The trial judge erred in precluding defendant from introducing evidence of a diminished capacity defense, and conviction is reversed. 14-2-9191 State v. Sharon McNair, App. Div. (4 pp.) The trial judge committed reversible error in failing to charge the jury regarding the credibility of defendant’s confession as required by State v. Hampton, 61 N.J. 250 (1972). CRIMINAL LAW — PUBLIC ATTENDANCE AT JUVENILE PROCEEDINGS 14-4-9192 State, in the Interest of Phillip Presha, Chancery Div. (6 pp.) Application made by three newspapers to intervene and permit public attendance during all court proceedings in this juvenile delinquency matter is granted, since the juvenile has not proved that such access by the public will result in a substantial likelihood of specific harm, and has shown no extraordinary circumstances to persuade the court not to exercise its discretion to allow such access. [Approved for publication Jun. 7, 1996.] FEDERAL COURT CASES CIVIL PROCEDURE — TAXABLE COSTS 07-7-9193 The Indus. Network Sys. Inc. v. Armstrong World Indus. Inc., U.S. Dist. Ct. (5 pp.) On plaintiff’s appeal of the court’s award of taxable costs to defendant: (1) Monies that might have been spent for proper taxable costs cannot be collected and used to defray nontaxable costs which were actually incurred, therefore travel allowances that defendant claims as costs cannot be taxed for travel that they would have made if they did not make other plans, and such amount is disallowed. (2) Since plaintiff and defendant each “prevailed,” enjoying an equal amount of success in issues brought before the Court of Appeals for which a trial transcript was “required,” the equitable approach is to split the cost of the transcript and allow the defendant one-half as a taxable cost. CONTRACTS 11-7-9194 R.J. Longo Constr. Co., Inc., d/b/a EPIC v. Passaic Valley Sewerage Commrs., et al., U.S. Dist. Ct. (11 pp.) Since a prerequisite to obtaining a declaratory judgment is that plaintiff’s claim must appear in a pleading, not merely in a motion, and since plaintiff admits that its claim for release of retainage — during pending contract action — is not part of its complaint, the plaintiff’s declaratory judgment motion is not properly before the court and is dismissed. EDUCATION — DISABILITIES 16-7-9195 Susan Falk, et al. v. Bd. of Educ. of the School District of South Orange and Maplewood, U.S. Dist. Ct. (6 pp.) Dismissal is required of plaintiffs’ complaint — seeking to vacate administrative order continuing their disabled son’s current school placement, as well as requesting that he be educated at home — since plaintiffs have not yet completed the administrative process and this case is not yet ripe for judicial review. INSURANCE — ERISA — LONG-TERM DISABILITY 23-7-9196 Paul Rizzo v. Paul Revere Ins. Group, U.S. Dist. Ct. (24 pp.) The decision of defendant to deny plaintiff long-term disability insurance benefits, acting in its capacity as “claims administrator” under an ERISA plan, should be reviewed under a deferential “arbitrary and capricious” standard, and, since the record reveals no abuse of discretion in this case, the motion of defendant to dismiss plaintiff’s coverage complaint is granted. LABOR/EMPLOYMENT — RACIAL DISCRIMINATION — REMAND 25-7-9197 Steven P. Mitchell v. Village Super Market Inc., et al., U.S. Dist. Ct. (13 pp.) Since plaintiff’s racial discrimination claims against union and employer arise soundly under the New Jersey Law Against Discrimination, and do not require the court to interpret any terms of the collective bargaining agreement, they are not preempted by section 301 of the Labor Relations Act, 29 U.S.C. 185, and plaintiff’s motion to remand to state court is granted. The opinion ACLU v. Reno, decided yesterday in the U.S. District Court in Philadelphia, blocking the new law against indecency on the Internet is available in Soft Solutions under ME5B document # 615115 (The opinion is 200 pages long). A Daily Reporter of New Jersey Court Decisions

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