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Vol. 4 No. 106 – JUNE 4, 1996 STATE COURT CASES ATTORNEYS — SUCCESSOR COUNSEL — FEES 04-3-9102 Zukerman v. Piper Pools, et al., Law Div. (35 pp.) Despite charges of impropriety and conflict of interest against predecessor counsel, the court applied a quantum meruit theory and ordered that one-third of lead counsel’s $1.878 million contingency fee — in record $7.6 million dollar settlement in a pool injury case — must go to predecessor counsel, since it identified recovery sources without which this settlement would not have been available. CONSUMER PROTECTION — COUNSEL FEES 09-2-9103 Diane Ginter v. Robert Pickell, et al., App. Div. (4 pp.) Although plaintiff prevailed on liability against defendant in consumer fraud claim for defective Porsche, the jury awarded no damages, and therefore judge s decision to award plaintiff s counsel $10,000 in fees — instead of the $80,000 requested — is reasonable and affirmed. CORRECTIONS 13-2-9104 Margaret Ann Myers v. N.J. State Parole Bd., App. Div. (3 pp.) Although the record provides some support for the parole board s finding that inmate had insufficiently participated in group substance abuse programs, the record does not reflect to what extent this consideration affected the board s decision to deny parole as compared with inmate s failure to participate in individual counseling, which didn’t exist; therefore remand is required. 13-2-9105 Carl Gooding v. Dept. of Corrections, App. Div. (6 pp.) Prison officials were well within their authority in requiring inmate to submit a urine sample, and the evidence supports the conclusion that the laboratory results were not tainted, therefore disciplinary adjudication for inmate s drug use is affirmed. FAMILY LAW 20-2-9106 Lisa Mann v. David Nebel, App. Div. (5 pp.) Trial judge erred in summarily sentencing defendant to a 10-day term of imprisonment for violating a court order on plaintiff s motion for relief in aid of litigant s rights, since such a disposition would have been appropriate only if matter had involved a contempt prosecution. INSURANCE 23-2-9107 Farmers Mut. Fire Assurance Ass’n of N.J. v. John Doorhy, et al., App. Div. (17 pp. — includes concurring opinion) In an insurance coverage declaratory judgment action, the judge correctly found that the insured s conduct in underlying kidnapping and wrongful death action had been negligent, and not criminal or intentional, and properly concluded that he was entitled to a defense under plaintiff s policy. NEGLIGENCE — BLOOD BANKS 31-1-9108 William Snyder, et al. v. Am. Ass’n of Blood Banks, et al., Supreme Ct. (86 pp. — includes dissent) A blood banks associaton is not immune from liability under the Tort Claims Act, nor is it entitled to charitable immunity; the AABB owes a duty of ordinary care to persons receiving blood or blood products from its members, and breached its duty to the plaintiff in this case by not recommending surrogate testing of blood or direct questioning of donors, and that breach was a substantial factor is causing plaintiff to contract HIV. NEGLIGENCE — INDEPENDENT CONTRACTORS 31-2-9109 Michael Ponticelli, et al. v Trap Rock Indus., et al., App. Div. (7 pp.) Judge correctly found that Trap Rock was not vicariously liable to plaintiff for the failure of its independent contractor/hauler to maintain vehicle insurance. PARENT/CHILD 28-2-9110 In the Matter of the Guardianship of D.D.D.H., A Minor, App. Div. (4 pp.) D.Y.F.S. met its burden to establish by clear and convincing evidence that termination of birth mother s parental rights was in the child’s best interest since mother — who had a history of using consistently bad judgment in decisions concerning the child — had been offered a myriad of services to assist her in parenting skills and job training, but had failed to avail herself of those services. 28-2-9111 In the Matter of the Guardianship of M.A.-T., et al., Minors, App. Div. (6 pp.) Record supports the judge s determinations that birth father had totally abandoned any parental role or responsibility he had as a father to the children, and that birth mother was unfit to continue with her parental responsibilities, and termination of parental rights as to both parents was proper. PHYSICIAN/PATIENT 29-2-9112 Judith Woodis, et al. v. S. Jersey Hosp. Sys., et al., App. Div. (5 pp.) Trial court erred in directing defendants to pay plaintiffs expert witness and counsel fees incurred in conjunction with the declaration of a mistrial after opening statements in malpractice action, since there was no finding or evidence that the defense counsel’s actions constituted willful disobedience to the trial court’s oral order. REAL ESTATE 34-2-9113 Riad Kabakibi v. First Fidelity Bank, N.A., etc., et al., App. Div. (6 pp.) The trial court properly dismissed plaintiff s case, concluding that plaintiff/homebuyer had caused the property s water damage for which he sought compensation from the defendants — the bank/former owner and company that had winterized the property for the bank — since plaintiff/homebuyer had experience in buying older homes, had purchased this home in as is condition, and knew or should have known that the heating system had not been charged with water for some time and therefore should have consulted with the winterizing company before infusing the system with water. FEDERAL COURT CASES CONTRACTS 11-7-9114 Infomed Inc. v. ICF Information Technology, Inc., U.S. Dist. Ct. (45 pp.) In a case alleging breaches of an asset purchase agreement regarding health care industry software, (1) seller cannot be held liable for failing to provide a list of prospective customers, since it never agreed to do so, (2) since buyer has submitted no evidence indicating what software “bugs,” specifically, were omitted from seller’s “known bugs list,” and has submitted no evidence regarding what damages were caused by these omissions, it has not carried its burden to defeat the seller’s summary judgment motion for dismissal of claim that seller failed to provide computer software free of errors and defects, however, (3) summary judgment is not yet appropriate on buyer’s claim that seller failed to deliver “current contracts free of default or breach” since there are fact questions regarding buyer’s knowledge of problems with some of the contracts. PRODUCT LIABILITY — JURISDICTION 32-7-9115 Renee Esposito v. Pontiac Motor Div. of Gen. Motors Corp., U.S. Dist. Ct. (4 pp.) Since plaintiff has failed to join an indispensable party — the car dealership — in her suit alleging that she purchased a defective automobile, and since the dealership’s joinder would defeat diversity and deprive the court of subject matter jurisdiction, the court dismisses the complaint in its entirety.

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