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Vol. 4, No. 243 — December 23, 1996 STATE COURT CASES FAMILY LAW — INTERNATIONAL JURISDICTION 20-1-0856 Ivaldi v. Ivaldi, Supreme Ct. (25 pp.) The jurisdictional provisions of the Uniform Child Custody Jurisdiction Act vest the Family Part with subject matter jurisdiction to determine an international child custody dispute, however, in light of the circumstances of this case, the matter is remanded to the trial court to determine whether New Jersey or Morocco provides a more appropriate forum. LABOR AND EMPLOYMENT — C.E.P.A. 25-2-0857 Zieniuk v. City of Camden, et al., App. Div. (22 pp.) Since actions of fire chief were at least incompatible with the public policy mandate to protect members of the fire department from unnecessary risks arising from exposure to hazardous materials incidents without proper training, plaintiff’s objection to such action was reasonable, and the trial judge erred in ruling to the contrary, and dismissing plaintiff’s CEPA claim. The remaining question — whether plaintiff met his burden of proving that defendants had retaliated against him for such reasonably based objection in violation of the CEPA — was never reached by the trial judge and matter is remanded. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0858 DeFrancesco v. Bd. of Review, etc., App. Div. (5 pp.) Although petitioner’s evaluation of her priorities resulting in her commendably choosing to place greater emphasis on her educational pursuits and family needs, her decision to terminate her employment because it interfered with these pursuits does not amount to leaving work for good cause attributable to the work, and she was properly disqualified from receiving unemployment benefits. PRODUCT LIABILITY — SPECIAL INTERROGATORIES — MOLDED VERDICTS 32-2-0859 Bialek, etc., et al. v. Pinto, et al., App. Div. (9 pp.) When considering the jury’s answers to the special verdict interrogatories, it is plain that there is an inconsistency between attributing ten percent of fault to car manufacturer in one answer and finding that riding in the open cargo area of a truck was an open and obvious danger. Such answers, even as supplemented by the trial court’s post-verdict questions put to the foreperson, leave this critical issue insufficiently resolved and require reversal of the judgment in favor of car manufacturer. FEDERAL COURT CASES BANKING — REMOVAL 06-7-0860 Lanham, etc. v. Internal Intelligence, et al., U.S. Dist. Ct. (5 pp.) Removal to the federal court by defendant Freddie Mac was proper because 28 U.S.C. Sec. 1442 is the governing statute for removal in cases involving that agency, and there is no requirement to obtain consent of all served defendants under that section, therefore plaintiff’s motion to remand is denied. [Filed Dec. 2, 1996.] DEBTOR/CREDITOR 15-7-0861 Hudson United Bank v. Litenda Mortgage Corp., et al., U.S. Dist. Ct. (12 pp.) Freddie Mac’s motion to dismiss plaintiff’s claims against it is granted, since (1) although plaintiff had a valid security interest against defunct mortgage servicer as a result of the servicer assigning its rights in all of its accounts, plaintiff did not have a security interest in servicer’s Freddie Mac accounts because the servicer had no ownership rights in those accounts, and (2) since plaintiff has not established the required elements of a conversion claim1996.] ENVIRONMENT — CERCLA — SPILL ACT 17-7-0862 Stearns & Foster Bedding Co. v. Franklin Holding Corp., et al., U.S. Dist. Ct. (75 pp.) (1) The court holds that one responsible party or potentially responsible party may not sue another under CERCLA Section 107, seeking to hold the defendant PRP’s jointly and severally liable if plaintiff prevails; the court chooses to follow the majority view reasoning that an action instituted by a PRP, no matter how denominated, is essentially one for contribution and is governed by section 113. (2) Analyzing operator liability under CERCLA, the court concludes that a secured creditor, which establishes that it has not participated in management, cannot be held liable under the Lansford-Coaldale “actual control” standard. (3) The question of whether one company defendant “actually controlled” the operation of former land occupier/fire-extinguisher manufacturer is inextricably intertwined with the question of the extent of principal’s involvement in day-to-day operational decision making while he acted as president, and such a decision cannot be made on the existing record, therefore summary judgment as to this defendant must be denied. (4) Two defendants are granted summary judgment on the issue of operator liability under CERCLA because the evidence does not support plaintiff’s assertion that either defendant “actually operated” either of the fire extinguisher companies which were operated on the land in question. (5) Plaintiff’s attempt to hold those same two companies liable as “operators” under an agency theory also fails. (6) Plaintiff has articulated no legally viable “continuity of enterprise” or successor liability theory upon which any member of investor group defendant could be held liable for the acts of predecessor companies. (7) Since the N.J. Spill Act is the state’s analog to CERCLA, plaintiff’s claims for violations of the Spill Act will be dismissed against the same two defendants and denied against the other until the determination of its “operator” liability has been determined. (8) Having no viable claim against the fire extinguisher company president for liability based upon his own actions, plaintiff can prove no claim for contribution or indemnification, nor unjust enrichment, and the president will be dismissed entirely as a defendant in the action. [Filed Dec. 3, 1996.][For publication.] HEALTH — ERISA 22-7-0863 Brennan v. The Kraus Organization, Ltd., U.S. Dist. Ct. (15 pp.) The court grants the motion of plaintiff — ex-spouse of a former employee of defendant — seeking statutory penalties, legal fees, and costs for the failure of the defendant to deliver to plaintiff a summary plan description for its employee health benefits plan, the court finding that, under ERISA, even if no official plan Administrator was named, defendant was the administrator by way of being the plan sponsor, and, as such, did not meet its statutory disclosure duty. [Filed Dec. 3, 1996.] JURISDICTION — AMOUNT IN CONTROVERSY — REMAND 24-7-0864 Bosques v. Harold Ives Trucking Co., et al., U.S. Dist. Ct. (6 pp.) The court concludes that plaintiff’s Statement of Damages is an “other paper” within the meaning of 28 U.S.C. Sec. 1446(b), and therefore qualified to establish the jurisdictional limit at the time the petition for removal was filed. The court will not allow the plaintiff to claim damages in excess of the jurisdictional limit in order to raise the stakes in the litigation, and then claim less than the jurisdictional limit in order to defeat federal jurisdiction; there is no basis for plaintiff’s reliance on its Amended Statement of Damages filed thereafter. [Filed Dec. 3, 1996.] —END— Copyright 1996 by American Lawyer Media, L.P. A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … An appeals court rules that a malpractice carrier must cover two innocent partners for claims arising from the criminal acts of a former managing partner. The carrier had argued that the two innocent partners were vicariously liable for the acts, based on, among other things, partnership principles. See page 1 of the Dec. 23 Law Journal.

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