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Vol. 4, No. 157 – August 14, 1996 STATE COURT CASES ATTORNEYS — RETAINER AGREEMENTS 04-1-9852 Ernest Allen Cohen v. Radio-Elecs. Officers Union, Dist. 3, NMEBA, Supreme Ct. (47 pp. – includes dissent) Consistent with considerations of fairness and reasonableness, clients may limit their right to discharge a lawyer by agreeing to give the lawyer reasonable notice of termination of their relationship, but, to withhold judicial scrutiny, the limitation should be fair, reasonable and not unduly burden the client s right to choose its attorney, and on the facts of this case, attorney is entitled to recover under the retainer agreement. DEBTOR/CREDITOR — RECEIVERS 15-2-9853 Valley Savs. Bank, S.L.A. v. Tree Top Dev. Inc., et al., App. Div. (5 pp.) Judge correctly ordered bank to pay receiver for receivership expenses not covered by collected revenues on foreclosed condominium units. INSURANCE — ENVIRONMENT 23-2-9854 Trustees of Princeton Univ., etc. v. Aetna Casualty & Sur. Co., et al., App. Div. (19 pp.) An insured cannot unilaterally compel a liability insurance company to defend an environmental damage claim if the insured waives in advance any potential conflict of interest, however, if the insured prevails in a subsequent damage action against the carrier, the insurer must pay the costs of defense, indemnity for loss, interest and perhaps counsel fees. [Approved for publication Aug. 14, 1996.] INSURANCE — LIABILITY 23-2-9855 Schechner Lifson Corp. v. Employers Reinsurance Corp., App. Div. (18 pp.) In declaratory judgment action, the trial judge erred in granting summary judgment in favor of defendant insurer since there were genuine issues of material fact regarding whether plaintiff had knowledge of the potential claim against it when it completed the insurance coverage application, and judge erroneously imputed the attorney s knowledge of the claim possibility to plaintiff, and, further, plaintiff s coverage claim is not barred by the entire controversy doctrine for failure to join the claim in the underlying liability matter. LAND USE — PUBLIC OFFICIALS — CONFLICTS 26-2-9856 Gunther Jock, et al. v. Shire Realty Inc., et al., App. Div. (10 pp.) Member of zoning board of adjustment should not have testified as an expert witness in support of an application for certain “hardship variances on behalf of a corporation of which he was the controlling stockholder, due to the potential for conflict, and the variances granted are invalidated. NEGLIGENCE — AMUSEMENT PARKS 31-2-9857 Miriam Villanueva v. Vernon Valley Recreation Assn., Inc., et al., App. Div. (13 pp.) Jury finding that amusement park was not negligent is affirmed in plaintiff s case for injuries sustained when she hit her knee on concrete wall on a river raft ride, since the finding is supported by testimony that the accident, as described by plaintiff, could not have produced her injuries. PHYSICIAN/PATIENT 29-2-9858 Frank G. Martin v. Prudential Health Care Plan, etc., et al., App. Div. (12 pp.) Trial judge abused his discretion in prohibiting plaintiff s use of a 1991 publication concerning standards of care for cardiac catheterizations, in light of N.J.R.E. 803(c)(18), and verdict of no cause is reversed. FEDERAL COURT CASES INSURANCE — BAD FAITH 23-7-9859 Polizzi Meats Inc., et al. v. Aetna Life & Casualty Co., U.S. Dist. Ct. (11 pp.) Because plaintiff has failed to demonstrate that the court overlooked any dispositive factual matters or controlling law in reaching its decision granting partial summary judgment to plaintiff s insurer on consequential damages for “bad faith in a fire loss claim, plaintiff s motion for reargument is denied. [For publication.][Filed Aug. 2, 1996.][For prior decision, see DDS No. 23-7-9405 in the Alert of June 27, 1996.] LABOR AND EMPLOYMENT 25-7-9860 Phyllis Stinson v. Del. River Port Auth., et al., U.S. Dist. Ct. (25 pp.) (1) Since the court finds that the defendant is a “political subdivision of the state and therefore is not an “employer” under the Labor Management Relations Act, the court lacks jurisdiction over plaintiff’s LMRA claims and they are dismissed. (2) Since defendant has set forth evidence of a legitimate non-discriminatory reason for plaintiff’s discharge, plaintiff’s Title VII discrimination claims also are dismissed. [For publication.][Filed Aug. 2, 1996.] 25-7-9861 John M. Zipay, et al. v. NYNEX DPI Co., etc., et al., U.S. Dist. Ct. (25 pp.) In this case stemming from the sale of defendant’s assets to another corporation and the plaintiff’s’ corresponding loss or change in employment, defendants’ motion to dismiss is denied, inter alia, (1) since venue is proper because the instant case is not based solely upon diversity of citizenship and a substantial part of the acts or omissions giving rise to the cause of action occurred in New Jersey; (2) because plaintiffs set forth sufficient claims for relief under the WARN Act, 29 U.S.C. 2101-2106; and (3) because the plaintiffs’ contractual claims do not relate to the employee benefit plan and are not preempted by ERISA. [Filed Aug. 1, 1996.] 25-7-9862 Hector Torres v. U.S. Healthcare Inc., U.S. Dist. Ct. (11 pp.) (1) Since the employee manual provided in plaintiff’s supporting brief supports the contractual allegation in the original complaint, defendant’s motion to dismiss the breach of contract claim is denied, and (2) the motion to dismiss plaintiff’s wrongful discharge claim is denied without prejudice, however, the court notes the complaint’s lack of clarity, and plaintiff is directed to file an amended complaint. [Filed Aug. 5, 1996.] SECURITIES — TRANSFER OF VENUE 50-7-9863 Job Haines Home for the Aged, etc. v. Herbert J. Young, et al., U.S. Dist. Ct. (26 pp.) The court grants defendant’s motion to transfer to California this securities class action — arising from allegedly false and misleading public representations, statements and assurances affecting the offer, sale, purchase and trading in the public debt securities of Gibraltar Savings — since this case has virtually nothing to do with New Jersey, and the defendants, documents, and witnesses are largely located in California, where the alleged wrongdoing took place. [Filed Aug. 5, 1996.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Banking and Insurance Commissioner Elizabeth Randall has exactly one month to make up her mind about whether she’ll permit auto insurers to offer policies that provide treatment for accident victims through health maintenance organizations. Randall has made conflicting statements about the proposal during the last several months. See page 1 of this week’s Law Journal.

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