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					Civil Case Law Update
    Mt. Laurel, New Jersey
        March 7, 2009
              Presenters
Honorable Paulette Sapp-Peterson, J.A.D.
               (moderator)
Honorable Francine Axelrad, P.J.A.D.
Honorable Marc Baldwin, P.J. Civ.
Honorable Peter A. Buchsbaum, J.S.C.
            Commentators
From the Bar:
Gregory J. Giordano, Esq.
Kenneth G. Andres, Jr., Esq.
CIVIL PRACTICE
       &
 PROCEDURE
   Owens v. Feigin, 194 N.J. 607 (2008) PER
    CURIAM [Civ 108 ].
    The Court noted that the CRA created a statutory
    cause of action for damages against public
    defendants, and arguably could fall within the TCA's
    purview. However, nothing in the language or
    legislative history of the CRA convincingly evidenced
    that the New Jersey Legislature meant to import the
    requirements for suit contained in the TCA as
    necessary predicates for bringing a CRA claim.
    Therefore, the notice of claim requirement in the TCA
    did not apply to causes of action under the CRA.
    Hisenaj v. Kuehner, 194 N.J. 6 (2008)
    LAVECCHIA, J. [Civ 107].
    The Supreme Court found the Appellate
    Division overstepped its bounds in considering
    material not part of the evidentiary record. The
    Court held that the trial court ruling that
    defendant’s expert, a biomechanical engineer,
    had an adequately reliable foundation from
    which to extrapolate an opinion, was not so
    wide off the mark as to constitute an abuse of
    discretion and a manifest denial of justice.
    Malick v. Seaview Lincoln Mercury, 398 N.J. Super. 182
    (App. Div. 2008) S.L. REISNER, J.A.D. [Civ 108].
    Because Rule 4:42-11 and Rule 4:58-2 now both refer to
    awards of “prejudgment interest, ” the Appellate
    Division concluded that the parties $1 million/$175,000
    high–low agreement in which plaintiff waived “pre-
    judgment interest,” but did not waive “attorneys fees
    and costs” under the offer of judgment rule was
    ambiguous. The trial judge should not have summarily
    awarded plaintiff interest but should have held a plenary
    hearing to resolve the ambiguity.
    Wilson v. Paradise Vill. Beach Resort &
    Spa, 395 N.J. Super. 520 (App. Div. 2007)
    SKILLMAN, P.J.A.D. [Civ 109].

    The Appellate Division held that the
    defendant resort’ s maintenance of
    websites in addition to advertisement by
    airlines was insufficient to establish
    jurisdiction.
    SWH Funding Corp. v. Walden Printing,
    399 N.J. Super. 1 (App. Div. 2008)
    FUENTES, J.A.D. [ Civ 109].

The Appellate Division held that when a
 party seeks to vacate an arbitration award
 entered by default pursuant to Rule
 4:21A-4(f), the party must establish “good
 cause” and a “meritorious defense.”
EVIDENCE
    Bardis v. First Trenton Ins. Co., 397 N.J. Super. 138 (App. Div.
    2007), certif. granted, 194 N.J. 444 (2008) (argued 11/17/08)
    WINKELSTEIN, J.A.D. [Ev 27].

    The Appellate Division held that although a UIM claim is a first-party
    claim by an insured against his insurance carrier, based on breach
    of contract, the proofs necessary to sustain that claim are the same
    proofs that an insured must establish against the tortfeasor. Thus,
    whether the carrier paid PIP benefits on behalf of the insured is not
    relevant. Second, the Appellate Division concluded that to permit
    evidence that an insurance carrier previously paid PIP benefits
    would complicate the insurance carrier’s decision to pay those
    benefits, thereby interfering with the public policy encouraging
    prompt payment of an injured party’s medical expenses.
IMMUNITIES & JURISDICTION
JURISDICTION
    Dolan v. Sea Transfer Corp., 398 N.J. Super.
    313 (App. Div.), certif. denied, 195 N.J. 520
    (2008) S.L. REISNER, J.A.D. [Jur 19].
    New York’s interest in fully compensating
    accident victims and promoting traffic safety
    predominated over New Jersey’s interest in
    limiting the liability of non-negligent vehicle
    owners, and mandated application of New York’s
    law imposing vicarious liability on a vehicle
    owner (including, as here, the owner of a
    component of a tractor-trailer) for the
    negligence of the vehicle’s driver.
    Goldhaber v. Kohlenberg, 395 N.J. Super. 380
    (App. Div. 2007) WEFING, P.J.A.D. [Jur 19].
    Determined that New Jersey has jurisdiction to
    adjudicate since defendant knew the plaintiffs lived in
    New Jersey and knew the municipality in which they
    resided, as he made specific disparaging references to
    that municipality, and also referenced plaintiffs’
    neighbors and posted their address. However,
    because defendant put up a meritorious defense in his
    motion seeking to set aside the judgment, the trial
    court’s determination denying the application to set
    aside default judgment is reversed.
    Nicastro v. McIntyre Machinery Am., Ltd., 399
    N.J. Super. 539 (App. Div.), certif. granted, 196
    N.J. 344 (2008) LISA, P.J.A.D.
    [Jur 19].
    The court held that the British manufacturer
    here is subject to jurisdiction in New Jersey
    under the stream of commerce theory based
    upon its establishment of an exclusive United
    States distributor agreement, through which the
    worker's New Jersey employer purchased the
    machine.
IMMUNITIES
   Dickson v. Twp. of Hamilton,
    400 N.J. Super. 189 (App. Div.),
    certif. denied, 196 N.J. 461
    (2008) LIHOTZ, J.A.D. [Immun
    33].
    The weather immunity provided
    by N.J.S.A. 59:4-7 extends to
    the township here, where the
    accident, which occurred on a
    state-owned roadway, was
    caused solely by the weather.
   Leidy v. County of Ocean,
    398 N.J. Super. 449 (App.
    Div. 2008) PARRILLO,
    P.J.A.D. [Immun 33].
    The delay in notice, caused by the
    lack of any reasonable efforts by
    plaintiff in 90 days to ascertain
    ownership of the roadway, likely
    prejudiced Monmouth County in its
    efforts to investigate the accident
    scene which, due to time and
    weather, might have changed.
    Sahli v. Woodbine Bd. of Educ., 193 N.J.
    309 (2008) WALLACE, J. [Immun 33].
    To the extent that he has incurred legal
    fees in his capacity as school board
    solicitor, plaintiff is not entitled to
    indemnification under N.J.S.A. 18A:16-6 or
    under the board's insurance policy; both
    afford him protection in his capacity as
    secretary pro tem.
INSURANCE
    Villa v. Short, 195 N.J. 15 (2008) WALLACE, J. [Ins 83].




    The exclusion in a homeowner’s policy for the intentional
     or criminal acts of an insured person excludes coverage
     for all insureds under the policy.
   Tyrell Hardy v. Abdul-Matin,
    ___ N.J. __ (2009)
    Wallace, J. [Ins. 80].

    The Supreme Court held that
    the unambiguous language in
    N.J.S.A. 39:6A-7(b)(2) and the
    Liberty Mutual insurance policy
    make it clear that the plaintiff
    may not receive PIP benefits
    because he did not have the
    permission of the owner to
    occupy the vehicle in which he
    was injured.
    Chubb Custom Ins. Co. v. The Prudential Ins.
    Co. of Am., 195 N.J. 231 (2008) LONG, J.
    [Ins 79].

    A service of suit clause is an agreement by the
    insurer to submit to personal jurisdiction in the
    court in which the insured has filed a coverage
    dispute; it does not allow the insured to trump
    the insurer’s first filing with a later filing of its
    own.
    Sensient Colors Inc. v. Allstate Ins. Co.,
    193 N.J. 373 (2008) ALBIN, J. [Ins 82].

    In this environmental clean-up insurance
    coverage action, special equities overcome
    the presumption favoring the first-filed
    action in New York and support
    proceeding in New Jersey.
BREAK
PUBLIC POLICY
    Cutler v. Dorn, 196 N.J. 419 (2008)
    LAVECCHIA, J. [Pub 75].

    The threshold for demonstrating a religion-
    based, discriminatory hostile work environment
    is no more stringent than the threshold that
    applies to sexually or racially hostile work
    environment claims. Plaintiff's case satisfied the
    standards for a hostile work environment claim
    to warrant, and subsequently uphold, a jury
    determination.
   Godfrey v. Princeton Theological Seminary, 196
    N.J. 178 (2008) LAVECCHIA, J. [Pub 75].
    The Lehmann v. Toys 'R Us standard for
    demonstrating a prima facie LAD hostile work
    environment claim based on sexual harassment
    is extended to non-workplace seminary; tenant-
    alumnus' repeated asking of two female
    students for a date does not satisfy the severe-
    or-pervasive prong.
    Tarr v. Ciasulli's Mack Auto Mall, l94 N.J. 212
    (2008) LaVECCHIA, J. [Pub 77].
    Arising in connection with a sexual harassment
    case, punitive damages may not be awarded for
    general deterrence but jury may only consider
    deterrence of the specific defendant before it; in
    assessing a punitive damages award the jury
    may consider the defendant's entire financial
    picture - its worth at the time of wrongdoing,
    subsequent events concerning the corporation's
    financial condition, including the reasons for
    those changes, and its worth at the time of trial.
    Mason v. City of Hoboken, 196 N.J. 51 (2008)
    RABNER, C.J.
    OPRA and common law right to access actions in
    Superior Court have a 45-day statute of
    limitations; under the "catalyst" theory,
    requestors qualify for attorneys fees as
    prevailing parties if they can show the lawsuit
    was causally related to relief obtained and relief
    had basis in law; burden of proof shifts to
    agency if it failed to respond at all to request
    within 7 business days.
    Borough of Glassboro v. Fraternal Order of Police Lodge
    No. 108, 197 N.J. 1 (2008) LONG, J.
    Under N.J.S.A. 40A:14-122.6, residence is a tie-breaker
    in promotion of police officer in a non-civil service
    municipality only if resident and non-resident achieve
    same score on qualifying test; arbitrator correctly found
    record did not support elevation of lower scoring,
    resident officer over higher-scoring, non-resident officer
    but it was beyond his authority to promote higher
    scoring officer on incomplete record as to Phase III of
    three-part promotional process; affirmed in part;
    reversed and remanded for Borough to conduct new
    Phase III proceeding.
   Tartaglia v. Paine Webber, 197 N.J. 81
    (2008) HOENS, J.
    A whistleblower need not complain first to
    an external authority in order to sustain a
    retaliatory discharge claim under Pierce.
TORTS/NEGLIGENCE
    Sciarrotta v. Global Spectrum, 194 N.J. 345
    (2008) RIVERA-SOTO, J. [TORTS 87].
    The limited duty rule, which pertains to the
    provision of screened seating in specific areas of
    sports venues, applies to pre-game warm-ups.
    Compliance with the limited duty rule by a
    sports venue owner or operator thereby satisfies
    the duty of care to patrons in the stands.
    Moreover, under the limited duty rule, there is
    no separate duty to warn of the risk of objects
    leaving the field of play.
    McDarby v. Merck, 401 N.J. Super. 10 (App.
    Div.), certif. granted, 196 N.J. 597 (2008).
    PAYNE, J.A.D.

    A state law cause of action for failure to warn is
    not preempted by the Federal Food Drug &
    Cosmetic Act (FDCA). Any action for consumer
    fraud is subsumed by the New Jersey Product
    Liability Act (PLA). A punitive damage award
    under the PLA is preempted by the FDCA.
    Bauer v. Nesbitt, 399 N.J. Super. 71
    (App. Div.), certif. granted, 196 N.J. 85
    (2008) PAYNE, J.A.D. [TORTS 85].

    Summary judgment in favor of bar was
    improper when evidence could support
    breach of Dram Shop Act with respect to
    decedent and common-law negligence
    with respect to defendant Nesbitt.
    Champion v. Dunfee, 398 N.J. Super. 112
    (App. Div.), certif. denied, 195 N.J. 420
    (2008) PARRILLO, P.J.A.D.
    [TORTS 85].
    A guest passenger who has no special
    relationship to a visibly intoxicated driver
    owes no duty to a fellow passenger to
    prevent him from driving.
   Mazzacano v. Happy Hour Social and Athletic Club
    of Maple Shade, Inc. 193 N.J. 307 (2009), ALBIN,
    J.

    Although the New Jersey Licensed Alcoholic Beverage
    Server Fair Liability Act permits a finding of liability when
    a licensed alcoholic beverage server allows a patron to
    become visibly intoxicated through the self-service of
    alcohol at a party, it does not impose a separate duty to
    monitor alcohol ingestion or define negligence as the
    failure to monitor. The Court declined to impose a
    monitoring duty that is not set forth in the Act.
   Ogborne v. Mercer Cemetery Corp., __
    N.J. __ , (2009) WALLACE, Jr., J.
    The “palpably unreasonable” standard of
    the Tort Claims Act should be applied
    where a cause of action involves the
    physical condition of public property.
ATTORNEY CLIENT
    DeNike v. Cupo, 196 N.J. 502 (2008) RABNER, C.J.
    Supreme Court imposed restrictions on job-seeking judges,
    effectively banning discussions between judges seeking
    post-retirement jobs and attorneys appearing before them
    based on RPC 1.12(c), which prohibits employment
    discussions outright between judge who is participating
    "personally and substantially" in matter and attorney for
    one of the parties, and Canon 3(C)(1) and Rule 1:12-1(f);
    holding Judge Escala committed the appearance of
    impropriety when he discussed a job offer with party's
    attorney while winding up a commercial dispute before him
    in 2006 that cast doubt on the integrity of the judicial
    process, warranting vacation of judgment and new trial.
    Brundage v. Estate. of Carambio, 195 N.J. 575
    (2008) HOENS, J. [Atty 31].
    While negotiating settlement in palimony action
    on behalf of plaintiff who did not cohabit,
    attorney failed to disclose unpublished Family
    Part decision on appeal in which he represented
    another palimony plaintiff whose case was
    dismissed for lack of cohabitation; Supreme Court
    reversed setting aside settlement, concluding
    attorney's behavior was "troubling sharp" but did
    not violate the professional conduct rule relating
    to conduct toward the tribunal, thus the
    imposition of a litigation sanction on the
    attorney's client was not warranted.
    McKnight v. Office of the Public Defender, 197 N.J. 180
    (2008). PER CURIAM.
    The Supreme Court reversed the Appellate Division majority and
    adopted Judge Stern’s dissent, holding that in a legal malpractice
    action brought by a criminal defendant against his attorney, the
    claim does not accrue and the statute of limitations does not begin
    to run until the criminal defendant receives relief through some
    form of exoneration; referred matter to Supreme Court Criminal
    Practice Committee to draft a rule requiring that a copy of any PCR
    petition alleging ineffective assistance of counsel be forwarded to
    the attorney whose performance has been placed in question and
    law firm or PD’s office to alert of a potential lawsuit.
    Hernandez v. Baugh, 401 N.J. Super. 539 (App.
    Div. 2008) WEFING, P.J.A.D. [Atty 31].
    Plaintiff's legal malpractice claim is not precluded
    on summary judgment by his statement in the
    underlying matter that the settlement was fair
    and reasonable because of the qualifying
    language "taking into account all relevant
    factors"; Puder v. Buechel is distinguished;
    defendant-attorney's malpractice was arguably
    one of the relevant factors behind plaintiff's
    decision to settle the underlying litigation on the
    terms he did.
   Schulman v. Wolff & Samson, P.C., 401
    N.J. Super. 467 (App. Div.), certif. denied,
    196 N.J. 600 (2008) MESSANO, J.A.D.
    [Atty 32].
    Plaintiffs' shareholder derivative claims for legal
    malpractice and breach of fiduciary duty, as well
    as their individual and derivative claims for fraud
    and breach of contract, are not subject to
    dismissal under Puder's rationale; defendant-
    attorneys did not represent plaintiffs individually;
    moreover, breach of contract and fraud are
    different claims than legal malpractice.
CONSUMER PROTECTION
    Bosland v. Warnock Dodge, __N.J.__
    (2009) HOENS, J. [Consum 37].

    The Supreme Court held that the plaintiff
    is not required to make a claim for a
    refund from the car dealer before filing a
    consumer fraud complaint that the dealer
    overcharged the buyer for registering the
    car for a fee.
    Czar, Inc. v. Heath, 398 N.J. Super. 133 (App.
    Div.), leave to appeal granted by 195 N.J. 414
    (2008) LYONS, J.A.D. [Consum 37].

    A claim under the New Jersey Consumer Fraud
    Act is legally viable where a customer cabin-
    maker’s services , in a newly constructed home,
    fell within the definition of “home improvement”
    under N.J.A.C. 13:45A-16.1A.
    Koruba v. American Honda Motor Co. Inc., 396 N.J.
    Super. 517 (App. Div. 2007), certif. denied, 194 N.J. 272
    (2008) PARRILLO, P.J.A.D. [Consum 37].

    Plaintiff's failure to adequately warn claim against the
    ATV’s manufacturer was properly dismissed as his sole
    proof of inadequacy, his expert opinion, lacked the
    requisite factual basis; his negligence claim against the
    seller was properly dismissed since negligence is not a
    basis for liability under his exclusive remedy, the PLA.
    Maguire v. Mohrmann, 397 N.J. Super. 103
    (App. Div. 2007) LIHOTZ, J.A.D. [Consum 37].

    Defendant-pet dealer is subject to regulations
    issued pursuant to the Consumer Fraud Act;
    since plaintiff- buyer substantially complied with
    the notice requirements of those regulations,
    she is entitled to damages after her puppy died
    five days after the purchase.
    Sinclair v. Merck & Co., Inc., 195 N.J. 51
    (2008) WALLACE, J. [Consum 38].

    The Products Liability Act is the sole source
    of remedy for defective products claims; it
    does not include the remedy of medical
    monitoring where, as here, no manifest
    injury is alleged.
JUDGMENT/DAMAGES
    Bolz v. Bolz, 400 N.J. Super. 154
    (App. Div. 2008) RODRIGUEZ, A.A.,
    J.A.D. [Jud 25].

    Where an automobile collision
    involves both public and private
    tortfeasors, apportionment of each
    driver’s negligence or fault must be
    assessed, even if there is a
    possibility that the public entity may
    not be liable for damages because
    plaintiff did not meet the Tort Claims
    Act injury threshold.
    DEG, LLC v. Twp. of Fairfield, 398 N.J. Super.
    59 (App. Div.), certif. granted, 195 N.J. 421
    (2008) SKILLMAN, P.J.A.D. [Jud 25].
     A governmental body that entered into a settlement
    agreement that it would not enforce its ordinance barring
    sexually oriented businesses on certain locations because it
    believed there was a substantial question as to the
    ordinance’s constitutionality was not precluded from
    seeking relief from the agreement if it could demonstrate
    that continued enforcement of the agreement was no
    longer equitable due to changes in the law or facts.
    Meyer v. Bixenholtz Construction, 402 N.J.
    Super. 1 (App. Div. 2008) STERN, P.J.A.D. [Jud
    25].

    Damages in the amount of actual monetary loss
    of $500 per violation, whichever is greater, may
    be assessed where unsolicited faxes are sent in
    violation of the Telephone Consumer Protection
    Act.

				
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