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Vol. 4, No. 216 — November 12, 1996 STATE COURT CASES FAMILY LAW 20-2-0500 Allen v. Allen, App. Div. (4 pp.) Judge erred in considering that, since both parties were cohabiting with others, the evidence was a “wash” insofar as showing a change of circumstances, since cohabitation by the receiving party bears directly upon questions of whether and to what extent that party remains economically dependent, requiring a plenary reconsideration of alimony in light of changed circumstances, and the denial of defendant’s motion for elimination or reduction of alimony is reversed and remanded. 20-2-0501 Gelbman, etc. v. Gelbman, App. Div. (7 pp.) In the absence of fraud, motion judge correctly denied modification of defendant’s pension valuation, and refused to consider new actuarial reports submitted by defendant to suggest that a mistake had been made which would entitle him to reopen the judgment, but the judge erred in setting child support arrears, and matter is remanded for a recalculation under the formula contained in the property settlement agreement. INSURANCE — HOMEOWNERS’ INSURANCE 23-2-0502 Rowley v. Peerless Ins. Co., App. Div. (8 pp.) Judge erred in finding that plaintiffs were covered under their homeowners’ insurance policy for sexual harassment claims filed against them as a result of acts committed by their son, since the complaint did not allege physical manifestations, but “severe and permanent mental pain and anguish” and “damage to (the victim’s) reputation,” which did not constitute an “occurrence” within the policy period that caused bodily injury. Plaintiffs’ reliance on the “liberalization clause” — arguing that the expanded definition of bodily injury in a later policy should be retroactive — is without merit. LABOR AND EMPLOYMENT — UNEMPLOYMENT COMPENSATION 25-2-0503 Young v. Bd. of Review, App. Div. (5 pp.) Where refund order was rendered during the time in which to appeal to the Bd. of Review from the determination of disqualification, and the claimant filed a timely appeal from the refund determination premised on the disqualification, the Bd. of Review, under the circumstances, should examine the issue of disqualification as well as the requirement to repay, and whether formal criminal charges must be filed against corrections officer who failed to properly monitor inmate on suicide watch, and whether the facts constituted “the commission of an act punishable as a crime,” such that employee would be guilty of gross misconduct and disqualified from benefits, are questions which should be addressed on remand. 25-2-0504 Palmer v. Bd. of Review, etc., et al., App. Div. (4 pp.) Where claimant left her employment with a company that contracted with the state, believing that as a result of her marriage to a state employee a conflict of interest existed, such action constituted leaving work for personal reasons, and she was properly disqualified from receiving unemployment benefits. LANDLORD/TENANT 27-2-0505 Brand v. Jain & Jain, et al., App. Div. (3 pp.) Evidence supported finding of trial judge that plaintiff tenant had not breached her lease, but had acted reasonably in regarding her landlord’s notice to cease as a request that she vacate her apartment and judge therefore correctly disallowed landlord’s claim for rent during the period apartment remained vacant, and returned tenant’s deposit, less landlord’s costs of preparing the premises for a new tenant. NEGLIGENCE — WORKPLACE INJURY 31-2-0506 Johnson, et al. v. MGM Transport, Inc., et al., App. Div. (12 pp.) Court correctly dismissed truck driver’s common law tort action arising from a work-place back injury based upon the exclusivity of the workers’ compensation remedy, finding that employer’s direction to the driver — who was on light duty and could not unload his truck due to the back injury — to “do the best he could” in unloading a truck since no help could be found, did not rise to the level of intentional conduct necessary to surmount the exclusivity bar. PHYSICIAN/PATIENT 29-2-0507 Day, et al. v. Lorenc, et al., App. Div. (9 pp.) Although it was proper for plaintiff’s expert to consider the report of plaintiff’s subsequent treating physician in reaching his opinion, as well as proper for the expert to refer to it at trial, neither evidence rule 703 nor 705 provided a basis for the admission of the report into evidence in the absence of an independent basis for admissibility, and the error requires reversal of the no-cause verdict. [Decided Nov. 12, 1996, approved for publication Nov. 25, 1996] WORKERS’ COMPENSATION 39-2-0508 Morgan v. Ocean Steel Erectors, Inc., et al., App. Div. (6 pp.) Judge correctly dismissed Second Injury Fund from case, finding that petitioner was totally disabled solely as a result of his compensable injury with first employer, and the orthopedic, neurologic and psychiatric sequelae of that injury. FEDERAL COURT CASES CONSTITUTIONAL LAW — FREEDOM OF SPEECH — L.A.D. — SEXUAL ORIENTATION 10-8-0509 Presbytery of N.J. of the Orthodox Presbyterian Church, etc., et al. v. Christine Todd Whitman, etc., et al., Third Cir. (12 pp.) Once the district court determined that the challenged L.A.D. sexual orientation provisions were capable of some constitutional application and were not properly the subject of plaintiffs’ overbreadth challenge, there was no remaining issue of facial invalidity to be decided; rather, whether the L.A.D. was an unconstitutional content-based restraint on speech could only be determined within the context of its application to appellants. Since the district court correctly abstained under Pullman from deciding appellant’s as-applied challenge, its discussion of viewpoint discrimination and the secondary effects doctrine was unnecessary. [Filed Oct. 25, 1996.] CORRECTIONS 13-7-0510 Winstead v. State, et al., U.S. Dist. Ct. (12 pp.) Court denies inmate’s motion for a temporary restraining order and injunction — alleging that it is cruel and unusual punishment for prisoners who have been declared indigent to be charged for photocopying because it hinders the right of court access — since the modest limitation upon the prisoner’s access to the courts is not an actual bar or hindrance to the pursuit of his legal claims. [Filed Oct. 25, 1996.] INSURANCE — DISABILITY — GOOD FAITH 23-7-0511 Krasner v. Nationwide Mutual Ins. Co., et al., U.S. Dist. Ct. (12 pp.) Summary judgment is granted to insurer on insureds claim — that insurer breached its duty of good faith and fair dealing in summarily denying him lifetime disability benefits as a result of his “incisional hernia” — because there are genuine issues for trial regarding the coverage of the insured dentist’s underlying disability due to hernia claim, which defeats the bad faith claim. [Filed Oct. 30, 1996.] INTELLECTUAL PROPERTY — ANTITRUST 53-7-0512 Mita Copystar America, Inc., et al. v. Katun Corp., U.S. Dist. Ct. (18 pp.) Analyzing, inter alia, relevant product market, discount bundling and the totality of the acts and circumstances, the court denies plaintiff’s motion to dismiss the antitrust counts of defendant’s counterclaim, and defendant’s mere failure to plead predatory pricing and illegal tying does not mandate dismissal under the Sherman Act, nor should the counts be separated and stayed. [Filed Oct. 29, 1996.] JURISDICTION — AMOUNT IN CONTROVERSY — REMAND 24-7-0513 Deep, etc., et al. v. The Manufacturers Life Ins. Co., etc., et al., U.S. Dist. Ct. (15 pp.) In a class action alleging defendant’s fraudulent and misleading assertions regarding “vanishing premium policies,” plaintiffs’ motion to remand for lack of jurisdiction is denied, since, under 28 U.S.C. Sec. 1367, a district court can exercise supplemental jurisdiction over members of a class, although they do not meet the amount-in-controversy requirement, as long as the class representative does meet the requirement; the court concludes that section 1367 legislatively overrules Zahn v. International Paper Co., 414 U.S. 291 (1973), and, as such, it need not reach whether the rule in In re School Asbestos is fair to apply in the context of a removed class action suit. [Filed Oct. 23, 1996.][For publication.] A Daily Reporter of New Jersey Court Decisions THIS WEEK IN THE … For the first time, the members of the executive committee of the State Bar’s Board of Trustees have decided not to endorse any candidate for secretary, a position that leads to the organization’s presidency. See page 1 of the Nov. 11 Law Journal.

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