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Vol. 4, No. 223 — November 21, 1996 STATE COURT CASES CONSTRUCTION — ENTIRE CONTROVERSY 43-2-0598 Satsky Development Corp. v. P&P Excavating, et al., App. Div. (8 pp.) (1) Where contractor was involved in lawsuit with homeowner, wherein homeowner alleged defects in workmanship, the contractor’s failure to join subcontractors barred the subsequent suit against them for contribution and indemnification of the damages paid by contractor to homeowner, and summary judgment dismissing the suit against the subcontractors on entire controversy grounds is affirmed. (2) Since contractor’s cause of action for defense costs and indemnification against insurer did not accrue until termination of the prior action, however, summary judgment should not have been granted to insurer. EVIDENCE 19-2-0599 Saunders v. Pollara, et al., App. Div. (11 pp.) The timing and substance of the court’s instruction to the jury about plaintiffs’ settlement with one of the defendants was well within its discretion. The trial judge did not abuse his discretion by refusing to permit defendant to cross-examine one of plaintiff’s experts about the report of the other of plaintiff’s experts, since the substance of the report was entirely outside of the scope of the first expert’s direct testimony. Although plaintiff’s economic expert violated rules in calculating lost wages, the error does not require reversal of the judgment as plain error. $250,000 per quod verdict, although high, is not so disproportionate as to shock the court’s conscience, and is affirmed. GOVERNMENT — BID QUALIFICATIONS 21-3-0600 Textar Painting Corp. v. Delaware River Port Authority, etc., et al., Law Div. (12 pp.) (1) The decision of the Delaware River Port Authority — an entity created by interstate compact — with respect to bidder qualifications is subject to judicial review since the laws of both NJ and Pennsylvania have a strong policy favoring open competitive bids of public contracts, and each state has determined that the decisions of public agencies in reviewing bid qualifications is to be scrutinized under the arbitrary and unreasonable standard. (2) The DRPA’s requirement that a contractor seeking the painting contract for the Commodore Barry Bridge must possess a QP-1 or QP-2 certification is not arbitrary nor unreasonable and plaintiff’s challenge thereto is dismissed. [Approved for publication Nov. 19, 1996.] LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0601 Cardell v. Bd. of Review, App. Div. (4 pp.) Independent contractor was properly ordered to refund unemployment benefits he received for a week that he actually worked as a freelance film producer, even though he did not actually get paid until the following week. LANDLORD/TENANT 27-10-0602 Housing Authority of Jersey City v. Myers, Special Civil Part (6 pp.) The court dismisses summary dispossess action — brought to terminate defendant’s tenancy because of alleged drug activity on the leased premises — since the court lacks jurisdiction as a result of public housing authority’s failure to comply with 30-day advance notice requirement under 42 U.S.C.A. 1437d(1)(3)(C), adopting dicta in Raindrop, 287 N.J. Super. 227-229. [Approved for publication Nov. 19, 1996.] NEGLIGENCE — TORT CLAIMS ACT 31-2-0603 Schneider v. City of Elizabeth, et al., App. Div. (7 pp.) Obscurity of facts in this non-complex sidewalk fall-down case was not a sufficient reason for filing late notice of claim, and the judge mistakenly exercise his discretion in holding that the plaintiff had shown extraordinary circumstances because she was not sure who was at fault. FEDERAL COURT CASES CIVIL PROCEDURE — AMENDMENTS TO PLEADINGS 07-7-0604 Day v. Union Cy. Jail, et al., U.S. Dist. Ct. (11 pp.) In a case alleging various claims arising from an alleged body search performed on plaintiff at the jail after she was arrested for bank fraud, (1) the court denies plaintiff’s motion to amend the complaint to add new claims since the delay has prejudiced the defendants, but (2) sua sponte permits the plaintiff to amend to restate her original claims for relief because her counsel should be afforded the chance to clarify the complaint that was filed pro se. (3) Motion to amend to add officer as additional defendant is granted, but motion to add warden is not, because the proposed amendment will not relate back to the original complaint. [Filed Nov. 8, 1996.] CIVIL PROCEDURE — ATTORNEYS’ FEES — REMAND 07-8-0605 Mints v. Educational Testing Svc., Third Cir. (26 pp.) Addressing procedural questions as to the time when a court may enter an order requiring payment of attorneys’ fees and costs when it remands a case to a state court, as well as substantive questions regarding the standard governing the consideration of applications for such fees and costs, the court determines that district court did not lose jurisdiction to award fees when the clerk mailed a copy of the order of remand to the clerk of Superior Court, and did not abuse its discretion in awarding counsel fees to plaintiff for moving for remand and opposing defendant’s motion for reconsideration. [Filed Nov. 14, 1996.] JURISDICTION 24-7-0606 Jacoby v. Abbott, et al., U.S. Dist. Ct. (6 pp.) In an action originally brought in the District of Columbia, but transferred to N.J. — wherein plaintiff sues state and federal officials, alleging a conspiracy to violate his rights — the court concludes that it cannot exercise jurisdiction over the defendants before they are served with a complaint and summons issued by the N.J. District Court, except as to those defendants who have waived such objection. [Filed Nov. 8, 1996.] LABOR AND EMPLOYMENT — HEALTH CARE 25-7-0607 Miller v. Central N.J. Medical Group, P.A., etc., et al., U.S. Dist. Ct. (40 pp.) In wrongful termination case brought by plaintiff/doctor against medical group employer, (1) plaintiff’s common law claims of defamation and injurious falsehood related to reports made by employer to federal Data Bank are preempted by the Health Care Quality Improvement Act, and (2) plaintiff’s wrongful termination and discrimination counts are dismissed since plaintiff has failed to demonstrate that she was performing at a level that met the employer’s expectations at the time of her termination. [Filed Nov. 7, 1996.] CRIMINAL LAW AND PROCEDURE 14-8-0608 Berryman v. Morton, etc., et al., Third Cir. (48 pp.) The court affirms the district court’s granting of writ of habeas corpus to appellee, based upon its determination that the appellee has met both prongs of the Strickland test and has shown that he was denied effective assistance of trial counsel. [Filed Nov. 14, 1996.] —END— A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … Running an automobile insurance defense firm can be hecic these da, thanks to the opening of insurance company branch offices and a decrease in work from state-run insurance pools.

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