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STATE COURT CASES

PRODUCT LIABILITY — DIET DRUGS — CLASS ACTIONS

32-3-6577 In re: Diet Drug Litigation, Law Div. (Walsh, J.S.C.) (43 pp.) The trial judge holds that Wyeth Corporation, a diet-drug maker being sued for alleged heart-valve damage caused by its product Phen-fen, may challenge the eligibility of plaintiffs to opt out of the $3.75 billion federal class action settlement and to bring their own suits; Wyeth is not bound by a determination of doctors who read the echocardiagrams and found the requisite heart damage but “may challenge the medical reasonableness of that position.” [Decision dated Apr. 13, 2004.]

TAXATION — ASSESSMENTS — CONDOMINIUM COMMON ELEMENTS

35-5-6578 Olde Orchard Village Condo. Apts., Inc. v. Pequannock Twp., Tax Ct. (Kuskin, J.T.C.) (8 pp.) The Tax Court agrees with the plaintiff condominium association’s challenge to the imposition of a separate property tax assessment on a former meeting room at the complex, which was converted to a residential apartment and rented for that purpose through the assessment date in question. The rent, minus expenses, was used to defray condominium common expenses, and the municipality’s tax assessor treated the apartment as a common element, not subject to separate assessment, until the year in question. The Court holds that applying the rent from the unit to payment of common expenses constitutes a “common use” of the unit by the remaining unit owners, and therefore the unit may not be separately assessed. [Decision dated Mar. 26, 2004.][Approved for publication.]

FEDERAL COURT CASES

INSURANCE — OFFICERS’ AND DIRECTORS’ COVERAGE — RIPENESS

23-7-6579 G-1 Holdings, Inc., et al. v. Reliance Ins. Co., et al., U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (27 pp.) The plaintiffs seek coverage under directors’ and officers’ policies issued to GAF Corp. by defendant Reliance, the primary insurer; defendant Hartford and defendant Twin City, a wholly owned subsidiary of Hartford, the replacement insurers; and defendant Great American, the excess insurer, for three underlying lawsuits in which plaintiff Heyman, former CEO of GAF, was named as a defendant for making allegations to avoid liability for bodily injury claims arising from asbestos exposure. Reviewing the lawsuit claims, the pertinent policies, and certain insurance liquidation procedures, the court grants Great American’s motion to dismiss based on a lack of justiciable controversy under the ripeness doctrine. The court denies Hartford’s motion to dismiss, finding that the present state of facts could prove consistent with the allegations in the complaint. Finally, the court denies plaintiffs’ motion for summary judgment, finding genuine issues of material fact exist. [Filed Mar. 23, 2004.]

NEGLIGENCE — CIVIL AIR PATROL — FEDERAL PROPERTY

31-7-6580 Nazzaro, et ux. v. U.S.A., et al., U.S. Dist. Ct. (Irenas, Sr. U.S.D.J.) (37 pp.) The court grants summary judgment to the defendants and dismisses the complaint of plaintiff, a member of the Civil Air Patrol who was injured while using an obstacle course at the Fort Dix army base while participating in a recreational outing arranged by the CAP for its members; inter alia, the court: (1) examines the origins, purpose, and function of the Civil Air Patrol and concludes, as a matter of first impression, that it is entitled to charitable immunity under N.J. state law; (2) dismisses the claims against the army and air force because the U.S. is the only proper defendant in a tort claim case, not the individual agencies; and (3) although concluding that the U.S. cannot claim sovereign immunity under the FTCA under either the independent contractor or discretionary function exceptions, holds that it is nevertheless entitled to immunity under the N.J. Landowner Liability Act. Finally, plaintiff’s wife’s claim is dismissed because she failed to file a notice of tort claim and did not exhaust her administrative remedies. [Filed Jan. 28, 2004.]

TELECOMMUNICATIONS — SATELLITE T.V. — PIRATE ACCESS DEVICES

57-7-6581 DirecTV, Inc. v. Anthony, et al., U.S. Dist. Ct. (Linares, U.S.D.J.) (19 pp.*) The court denies defendant’s motion to dismiss in this dispute based on defendant’s purchase of an “unlooper” — a device that is designed to intercept and unscramble plaintiff’s satellite television signals — rejecting defendant’s assertions that: (1) unauthorized reception of satellite signals is not cognizable as a violation of 47 U.S.C. sec. 605; (2) the pleadings are inadequate to bring suit for unauthorized interception of electronic communications in violation of 18 U.S.C. sec. 2511(1)(a) because plaintiff did not argue interception, procurement, or endeavoring to intercept satellite signals, but merely asserted that defendant possessed the “unlooper”; and (3) there is no private cause of action for possession and use of pirate access devices in violation of 18 U.S.C. sec. 2512(1)(b), and allowing such prosecution is against public policy. [Filed Mar. 4, 2004.]

ADMINISTRATIVE LAW DECISIONS

CODE ENFORCEMENT — HOTEL AND MULTIPLE DWELLING INSPECTIONS

01-CAF-6582 Bureau of Housing Inspection v. Zanclea, Inc., etc., OAL (Bruno, A.L.J.) (9 pp. — includes initial decision by the A.L.J., and final decision modifying same by Levin, Commr.) Dismissing the notice of statutory violation and order to pay penalty, the ALJ found fault with the building inspector’s testimony, and concluded that respondent abated all the violations on the original building inspection list, and that no violations of the Hotel and Multiple Dwelling Law existed at the time of the reinspection. The Commissioner notes that, because inspectors perform many inspections over the years, and administrative proceedings take time to come to a hearing, no inspector can be expected to recall specifically each violation from an inspection; therefore, testimony from a building inspector based upon a signed and dated contemporaneous reinspection report concerning his visual observations must be accorded due weight, and the ALJ here erred by characterizing the Bureau’s case solely on the basis of his perceived inadequacy of the inspector’s testimony. While the presumption that the government properly exercised its power and discretion may have been overcome by respondent in this case, the Commissioner stresses that it remains applicable in cases of this nature. [Initial decision decided Mar. 12, 2004.][Final decision dated Apr. 14, 2004.]

CONSUMER PROTECTION — LEMON LAW

01-CMA-6583 Chiodo v. Ford Motor Co., OAL (Weiss, A.L.J.) (12 pp. — includes initial decision by the A.L.J. and final decision modifying same by Erdos, Dir.) The ALJ rejects the petitioner’s litany of complaints about his 2002 Ford F350 light truck — including improper acceleration, water penetration, door and dashboard rattles and squeaks, wheel “clunking,” body “flexes,” improper caulking, brake, steering, and ignition issues, excessive fuel consumption, wind noise, and tailgate and bumper problems — and finds that, of the problems that were not corrected, none constituted defects substantially impairing the vehicle’s use, value or safety. The Director upholds the result, but modifies the opinion by noting that the ALJ erred in his discussion of the burden of proof in Lemon Law cases. [Initial decision decided Feb. 19, 2004.][Final decision dated Mar. 18, 2004.]

PUBLIC EMPLOYEES — DISCIPLINE

01-CSV-6584 Szatkiewicz v. Andover Twp., OAL (Celentano, A.L.J.) (15 pp. — includes initial decision by the A.L.J. and final decision by Castro, Commissioner) The appellant, a police officer for the respondent, was suspended for sixty-nine days for violation of departmental rules and regulations after a domestic violence restraining order was entered against him, mandating seizure of his weapons; the Merit System Board does not adopt the ALJ’s recommendation to vacate the suspension; rather, the Board modifies the suspension to one of thirty days. [Initial decision decided Dec. 8, 2003.][Final decision dated Mar. 3, 2004.]

*Includes opinion and order in this case (57-7-6581 DirecTV, Inc. v. Anthony, et al.) as well as the court’s full opinion and order in DirecTV v. Rogers, et al., dated Feb. 28, 2004, on which the court relies.

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