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Vol. 4 No. 118 – JUNE 20, 1996 STATE COURT CASES FAMILY LAW 20-2-9288 Karen Trevarthen v. John Trevarthen, App. Div. (6 pp.) Order requiring defendant to pay child- support arrears based on Ohio proceedings pursuant to the Revised Uniform Reciprocal Enforcement of Support Act is affirmed, and defendant s due process claims as to the validity of the Ohio order must be addressed by the appropriate judge in other proceedings presently pending in this matter. INSURANCE 23-2-9289 Geoffrey L. Steiert v. Celtic Life Ins. Co., et al., App. Div. (3 pp.) Plaintiff failed to establish his claims of negligence, breach of contract and bad faith against defendants in his effort to reinstate his canceled health insurance policy, since he failed to show that he had timely mailed the premium check, and an involuntary dismissal of the case was proper. INSURANCE — SUBROGATION 23-2-9290 N.J.A.F.I.U.A., etc. v. N.J. Mfrs. Ins. Co., App. Div. (3 pp.) Statute of limitations was not tolled upon commencement of insured s declaratory action against PIP carrier to determine coverage, nor did limitations period commence upon the reaching of a good-faith settlement, and PIP carrier s notification of subrogation action against another insurer almost four years after the accident was properly dismissed as time barred. INSURANCE — UNDERINSURED MOTORIST COVERAGE — PARTNERSHIPS 23-2-9291 Peter S. Watson, etc. v. Agway Ins. Co., et al., App. Div. (14 pp.) Where insurance policy refers to partnership entity as the named insured, and then proceeds to list the names of the individual partners in describing the named insured, the policy must be read to cover the partners as individuals as well as the partnership as an entity, unless a contrary intention clearly appears, therefore a summary judgment ruling that there was UIM coverage available for the benefit of plaintiff/partner s wife under auto and excess policies issued to partnership is affirmed. [Approved for publication Jun. 20, 1996.] INSURANCE — UNINSURED MOTORIST COVERAGE — P.I.P. 23-2-9292 N.J.A.F.I.U.A. v. Haydee Soares, App. Div. (5 pp.) Since the snatching of defendant s pocketbook by motorist in passing vehicle was clearly an intentional criminal act, the trial court correctly concluded that insured was not entitled to UM benefits for injuries she sustained when she was dragged by the passing vehicle until her pocketbook strap broke. INSURANCE — VERBAL THRESHOLD 23-2-9293 Pasquale Esposito v. Colleen P. Wavrek, et al., App. Div. (4 pp.) Plaintiff s case was properly dismissed since his medical report fails to make the required comparative analysis between prior accidents and the subject accident which is necessary to assure the trial court that the objective findings of spasm are related to the accident at issue. LABOR AND EMPLOYMENT — HOSPITAL RESIDENTS — RIGHT TO COUNSEL 25-2-9294 Allyn Hernandez v. Overlook Hosp., App. Div. (16 pp. — 1 page Appellate opinion, published together with underlying 15 pp. Chancery Division opinion) Fundamental fairness requires that a resident terminated from a private hospital s residency program has the right to have counsel attend and introduce evidence at a hospital hearing concerning the resident s termination. [Approved for publication Jun. 19, 1996.] NEGLIGENCE — SOCIAL GUESTS — GATECRASHERS 31-2-9295 Stephen Alcott v. David Harris, et al., App. Div. (3 pp.) Where plaintiff sues for injuries suffered while he was a social guest at a party, and was attacked by a party crasher who returned to the home after being expelled by the owners daughter, (1) plaintiff s case against absent homeowners was properly dismissed, since the danger posed by gatecrashers was not a dangerous condition for which they would owe a duty to plaintiff, and (2) claim against the daughter also was correctly dismissed, since she had no reason to suspect that the crasher would return and attack plaintiff after being expelled, and had no duty to protect plaintiff against such an event. NEGLIGENCE — WORKPLACE INJURY — F.E.L.A. — DAMAGES 31-2-9296 Francis Murphy v. Port Auth. Trans-Hudson Corp. v. Up-Right, Inc., App. Div. (15 pp.) The court finds the $1,448,028.40 verdict — for injuries to otherwise healthy and young plaintiff s non-dominant thumb — to be grossly excessive, and finds that there is a substantial probability that several trial errors, including the omission of a mitigation of damages charge and the judge s enhancement of the credibility of the plaintiff s attorney, when considered cumulatively, contributed to the award’s excessive nature, requiring a new damages trial. TAXATION 35-5-9297 Mobil Admin. Service Co. v. Mansfield Twp., Tax Ct. (14 pp.) Purchaser of property during year of appeal, but after appeal filing deadline, lacks standing to intervene in appeal filed for such year by the seller. [Approved for publication.] 35-5-9298 Janice Bernstein v. City of Atlantic City, Tax Ct. (10 pp.) Where taxpayer had paid all taxes due to the municipality based on the original assessment, and the county tax board increased the assessment, taxpayer was not obligated to pay tax based on the county tax board s increase as a prerequisite to a Tax Court appeal of the county board judgment. CRIMINAL LAW AND PROCEDURE 14-1-9299 State v. Allen James, Supreme Ct. (33 pp.) Once a defendant seeks to introduce misidentification testimony after a trial court has determined that the identification process was impermissibly suggestive and that the victim s identification of the defendant was patently unreliable, the trial court must not allow the jury to have unlimited access to the suppressed evidence as part of the state s rebuttal testimony. FEDERAL COURT CASES CONSTITUTIONAL LAW 10-7-9300 Waterfront Comm’n of N.Y. Harbor v. Constr. and Marine Equip. Co. Inc., U.S. Dist. Ct. (40 pp.) Preliminary injunction under N.J.S.A. 32:23-90 — restraining defendant from performing stevedore services without a license and from employing registered longshoremen and checkers or unlicensed pier superintendents and hiring agents — is granted since (1) construction of an interstate agreement sanctioned by Congress presents a federal question and (2) Congress did not foreclose district court from exercising traditional equitable discretion. [For publication.] ENVIRONMENT 17-7-9301 Interfaith Community Org. et al. v. Allied Signal Inc., et al., U.S. Dist. Ct. (41 pp.) In suit seeking declaratory and injunctive relief, civil penalties and cleanup costs, motion to dismiss is denied as to count of complaint alleging that chromium-bearing waste at defendant’s site presents a danger to health and the environment in violation of the Resource Conservation and Recovery Act, since (1) private remediation efforts may not preclude a citizen suit under RCRA absent state action pursuant to a cooperative agreement with the Environmental Protection Agency, and (b) the case is sufficiently ripe for adjudication because plaintiffs may prove they are in danger of sustaining a direct injury. [For publication.] EQUITY — SPECIFIC PERFORMANCE — TELECOMMUNICATIONS 18-7-9302 O.R. Estman Inc., etc. v. Tel-Air Communications Inc., et al., U.S. Dist. Ct. (16 pp.) The court explains its reasoning for granting plaintiff s motion and ordering defendant to specifically perform an asset purchase agreement for the sale of Channel 9, ruling that the business is an asset sufficiently unique and difficult to value justifying specific performance, and that plaintiff s damages award did not compromise or vitiate its right to also obtain specific performance. INSURANCE 23-7-9303 Plywood Property Ass n., et al. v. Nat’l Flood Ins. Program, et al., U.S. Dist. Ct. (37 pp.) Summary judgment dismissing United States’ third-party complaint is denied since government presented sufficient evidence from which a reasonable trier of fact could conclude that plaintiff and third-party defendant knowingly presented a false or fraudulent “proof of loss” to collect benefits under a standard flood insurance policy and that the proof of loss constituted a “claim” within the meaning of the False Claims Act. [For publication.] INTELLECTUAL PROPERTY 53-7-9304 FM 103.1 and Jukebox Radio Inc. v. Universal Broadcasting of N.Y. Inc., et al., U.S. Dist. Ct. (28 pp.) In suit alleging service mark infringement under the Lanham Act, motion for preliminary injunction and TRO is denied where (1) the mark “Your Hometown Radio Station” was not shown to be associated by radio listeners with a particular station, (2) the mark “Make Believe Ballroom” might be shown to have come, through common usage, to describe a particular genre of music, (3) a third party’s registration of the “Hometown Radio” mark does not by itself establish it is inherently distinctive and (4) only one affidavit was submitted to show a likelihood of confusion by defendants’ use of the marks. [For publication.] INTELLECTUAL PROPERTY — ENTIRE CONTROVERSY 53-7-9305 Paul D. Gilley, et al. v. Project Strategies Corp., et al., U.S. Dist. Ct. (7 pp.) The court denies defendants motion for leave to file a consolidated amended counterclaim — which seeks to add plaintiffs lead trial counsel and his law firm on counts of conspiracy, restraint of trade and anti- trust violations based on their allegedly improper filings with the Patent and Trademark Office — since the joining of plaintiffs counsel as a party would severely prejudice plaintiffs, requiring them to seek new counsel, and the defendants entire controversy concerns may be addressed by the court s specifically explaining that the denial of this motion will not bar defendants proposed causes of action in subsequent litigation. JURISDICTION 24-7-9306 Ira A. Shapiro, D.C. et al. v. Middlesex County Mun. Joint Ins. Fund, et al., U.S. Dist. Ct. (17 pp.) Court rejects defendants’ request for removal and remands to state court a suit alleging conspiracy, intentional interference with contractual relationships and violation of state labor and antitrust laws, since complaint (1) is not made up of federal claims disguised as state law claims and thus does not implicate the “artful pleading” doctrine and (2) states a prima facie case under state law that does not necessarily raise a federal question. [For publication.] LABOR AND EMPLOYMENT — L.A.D. — JUDICIAL ESTOPPEL 25-7-9307 Barbara Morris, et al. v. Siemens Components Inc., et al., U.S. Dist. Ct. (32 pp.) Employee, discharged from employment at the conclusion of her maximum allowable medical leave, is judicially estopped from contending that her termination violated the N.J. Law Against Discrimination when at the time of her discharge she filed applications for short- and long-term disability benefits stating that she was totally disabled and could not work. [For publication.] SECURITIES 50-7-9308 Sec. & Exch. Comm’n v. Hughes Capital Corp., et al., U.S. Dist. Ct. (5 pp.) In this action involving alleged securities law violations in connection with a public offering statement and subsequent securities sales, defendants motion for reconsideration of order granting summary judgment to plaintiff is denied as untimely, yet would be denied even if it were assessed on the merits, since defendants have not identified an intervening change in the controlling law, nor submitted any previously unavailable evidence. CRIMINAL LAW/PROCEDURE — APPOINTMENT OF COUNSEL 14-7-9309 Stephen Nath Achamba v. U.S.A., U.S. Dist. Ct. (6 pp.) Since most of petitioner s claims — challenging the voluntariness of his confession to heroin distribution — are non-complex legal questions that are capable of resolution on the record without an evidentiary hearing to determine factual issues, and since there is no reason to believe that petitioner does not fully comprehend the issues or is incapable of presenting his own case, petitioner s request for appointment of counsel is denied. —END— A Daily Reporter of New Jersey Court Decisions

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