New Jersey
"QUICK HITTERS” Legal Update


Spring Edition 2008

Introduction

Bennett, Bricklin & Saltzburg LLP is committed toproviding our clients with high quality yet cost effectivecivil litigation services. From the inception of the firm in1946, our priority has been service and many of our clientshave retained us for 20, 30, and 40 or more years. The firm’slitigators are experienced in the areas of insurance coverageand bad faith, special investigations and fraud, premisesliability, automobile liability, employment law, aviation law,subrogration and medical malpractice. Our “Quick Hitters”Legal Update is designed to give New Jersey insuranceprofessionals a quick overview of the most recent NewJersey decisions involving the insurance industry.

Spotlight Case

Sanders v. Rosenberg, No. 06-1406 (NLH), 2008 WL1732980 (D.N.J. Apr. 10, 2008) – In a case in whichBennett, Bricklin & Saltzburg LLPparticipated as defensecounsel, plaintiffs brought claims against their landlords,alleging bodily injury and Consumer Fraud Act violations,among others, due to mold infestation. Plaintiffs claimedthat their townhouse had multiple leaks that caused mold todevelop. Plaintiffs asked defendants to repair the leaks,which persisted even though defendants attempted to repairthem. Plaintiffs alleged that the mold caused repeated andcontinuous respiratory illnesses, sleep disorders, and otherillnesses. Defendants removed the case to federal court.Thereafter, defendants moved for summary judgment onthe bodily injury claims because plaintiffs had not providedthe required expert witness or evidence to prove causation.Summary judgment was granted for this reason and also asto plaintiffs’Consumer Fraud Act claim. The court ruledthat plaintiffs failed to establish that defendants knowinglyconcealed the existence of the water leaks.

Negligence - Premises Liability

Cherry v.Whispering Waters Apartments, No. A-3600-06(N.J. Super. App. Div. Jan 8, 2008) – Plaintiffs appealed fromasummary judgment order dismissing a wrongful death andsurvivorship action. Plaintiffs’mother was a tenant indefendants’apartment complex. Her sons noticed that theirmother was showing signs of early-stage dementia. The sonsdecided that for their mother's safety they would disconnectthe gas supply to her stove without telling her. After theyturned off t0he valve that controlled the gas supply, theyorally informed defendants that they had disconnected theirmother's stove for safety reasons and that they did not want itto be reconnected until they had her medically evaluated.This was not confirmed in writing and was neveracknowledged by defendants. The decedent later told thedefendants that her stove was not working, and defendantsturned the gas supply back on. Two months later, decedent’sclothes caught on fire while she was operating the stove,resulting in her death. Defendants’motion for summaryjudgment was granted. The court held that the decedent’ssons did not have the authority to speak for the tenant andrequest something different, i.e., shutting off the stove, fromthose essential services to which she was entitled and whichshe requested. This ruling was affirmed on appeal.

Shosha v.Crofton Commons Assoc., No. A-4690-06 (N.J.Super. App. Div. Jan. 18, 2008) – Plaintiff sustainedpersonal injury when she slipped and fell on loose pebblesin the defendant’sparking lot. Upon motion for summaryjudgment, plaintiff’s complaint was dismissed by the trialjudge because she had acknowledged that she noticed thedangerous condition as she exited her vehicle. However,the plaintiff stepped on pebbles on the passenger side of hervehicle, not the driver’s side. The appellate court ultimatelyremanded, finding that it was inappropriate to impute toplaintiff knowledge that the dangerous condition waspresent in a different location on the lot.

Melilli v.ADM Clips, LLC, No. A-1342-06 (N.J. Super. App.Div.Jan. 30, 2008) – Plaintiffsustained personal injury whenshe fell on a public roadway directly in front of defendant’sbeauty salon. Plaintiff alleged that the injury was caused bydefendant's failure to keep the gutter area of the publicroadway in front of its business clear of snow and ice. Thesole issue for consideration on appeal was whether the trialjudge's in limine order was correct in holding that defendanthad no duty to maintain the gutter area adjacent to the curb infront of the salon. The appellate court affirmed the in limineorder,declining to extend the duty of a land owner tomaintain an abutting sidewalk in reasonable condition to thepublic roadway directly in front of such a sidewalk.

Negliegence - Respondeat Superior

Goldbergv.At Home Medical, Inc., No. A-3963-06 (N.J.Super.App. Div.Feb. 11, 2008) – The appellate divisionreversed a trial court order that involuntarily dismissedplaintiff’snegligence claim against At Home Medical.Plaintiffwas a hospice nurse who was tending to abedridden patient at his home. The home care required theplaintiff to operate a lift to assist moving the patient. Theplaintiff was injured when she tried to free the patient fromthe lift, which had become stuck and trapped the patient.She brought a negligence claim against At Home Medical,the supplier of the lift, alleging that one of At Home’semployees was negligent in cutting straps that trapped the patient on the lift. The trial court ruled that because theplaintiff did not name the employee as a defendant, shecould not prevail on a respondeat superior claim against theemployer company. The appellate court reversed, holdingthat the elements of respondeat superior could be metwithout naming the defendant’s employee as a party.

Neglience - Ski Statute

Neustadter v.Mountain Creek Resort, Inc., No. A-5671-05(N.J. Super. App. Div. Feb. 15, 2008) – Plaintiff, asnowboarding expert, was injured while snowboarding atdefendant's resort when he collided with a post supportingorange netting on the slope. The gravamen of his negligenceclaim was that the post was so deeply embedded in snowand of such an inflexible material that it was immovable.Plaintiffappealed from the trial court's grant of aninvoluntary dismissal at the end of the case. The appellatecourt rejected plaintiff’s appeal, noting that New Jersey’sski statute stated, in part, that a ski operator shall not be heldliable for failure to remove obvious man-made hazardsunless the operator "has knowledge of the failure to[remove man-made hazards]" or "should have reasonablyknown of such condition and having such knowledge hashad a reasonable time in which to correct [the] condition."N.J.S.A. 5:13-3(d). Here, the plaintifffailed to present anyevidence to support his allegations that the fence post wasan obvious man-made hazard; that defendant had actual orconstructive knowledge of such an obvious man-madehazard relating to plaintiff's injuries; or that defendant failedto remove such a hazard within a reasonable time.

Negligence - Tort Claims Act

Andrews v.City of Trenton, No. A-4374-06 (N.J. Super.App. Div. Mar. 4, 2008) – Plaintiff slipped and fell on thegrassy strip between defendant/homeowner’s abuttingsidewalk and the City owned and operated street. Plaintiffcontended that there was a presumption that the grassy stripwas public property, but offered no proofs to support thisclaim. The trial court granted the City’smotion forsummary judgment, holding that the plaintifffailed to provethat the City owned the area where plaintiff fell. Theappellate court affirmed, holding that plaintiff bore theburdenofproving prima facie ownership and control of thearea in question.

ConsumerFraud

Wendling v.Pfizer,Inc., No. A-3244-06 (N.J. Super. App.Div.Mar. 31, 2008) – Plaintiffs owned a horse whichallegedly died as result of a tapeworm infestation. Plaintiffsbrought an action against the manufacturer of a veterinaryproduct for violation of the Consumer Fraud Act. Plaintiffsalleged that the advertisement for the product was false andmisleading. The trial court granted summary judgment andthe plaintiffs appealed. The appellate court upheld the lower court decision, finding that the plaintiffslacked any proof that had they not relied on theadvertisement in choosing to use the product theyselected to prevent tapeworms, the horse wouldnot have become infested and died. Thus, becausethe plaintiffs could not demonstrate that any lossthey suffered was caused by defendant's allegedlymisleading advertisement, there was no ConsumerFraud Act liability.

Defamation

Stonehill v. Nesta, No. A-2145-06 (N.J. Super.App. Div. Dec. 6, 2007) – The appellate courtaffirmed the trial court’s dismissal of plaintiff’scomplaint for defamation upon motion to dismissfor failure to state a claim. Defendant, a policeofficer, told several people that he had concernsabout plaintiff’s mental abilities. The courtreasoned that the officer’s comment, althoughclearly offensive, constituted personal opinionrather than fact and, as such, was not actionable.The appellate court affirmed for the same reason.

Fraud – Sale of Private Home

Lane v. Schmied, No. A-5222-05 (N.J. Super.App. Div. Feb. 11, 2008) – Plaintiffs sued formerhomeowners for fraudulent misrepresentationwith regard to their knowledge of pre-existingwater and drainage problems. During a benchtrial, plaintiffs testified that defendants had toldthem that they put in an expensive drainagesystem after Hurricane Floyd and that there wouldbe no future problems. Defendants contended thatthey acknowledged a prior drainage problem andthat they believed the problem to be fixed. Thetrial judge ultimately concluded that thedefendants’statement was one of opinion, not fact,and, as such, defendants had not made anymaterial misrepresentations. The appellate courtfound the trial judge’s determination to be basedon the evidential record and affirmed the decision.

Expert Opinion

Calamia v. Kenton, No. A-4944-06 (N.J. Super.App. Div. Feb. 13, 2008) – Plaintiff sustainedinjuries in a fall on a short flight of stairs to thebasement of defendant's home. During trial,plaintiff’s expert was set to testify that thestaircase violated several building codes. It turnedout that the expert, although having a graduateengineering degree, did not have an engineeringlicense. Instead, he worked for a company with a"firm license." Defendant sought to have theexpert disqualified on this basis and because theexpert did not personally take the measurementswhich led to his conclusions. Defendant arguedthat such testimony would amount to inadmissiblenet opinion and also that the expert would not beable to opine about proximate cause because therewas no stated biomechanical relationship betweenthe alleged violation and the nature of plaintiff’sfall. The trial court barred plaintiff’s expert report.The appellate court reversed, noting thatdefendant’s mid-trial motion in limine to bar theexpert was a surprise to plaintiff and not incompliance with pre-trial disclosure obligations.The court further held that the report was not netopinion because the measurements were proven tobe reliable even if not taken personally by theexpert. Last, the court held that the expert was not required to opine about proximate cause becausethat issue was within the scope of knowledge ofthe average juror.

Warrington v. Pain Creek Supply, Inc., No. A-1284-06 (N.J. Super. App. Div. Jan. 4, 2008) –Plaintiff sustained personal injury while loadinghorses into a horse trailer. While plaintiff wasattempting to close the drop ramp on the trailer, ahorse bolted causing the ramp to hit plaintiff in thechest. Plaintiff presented an engineering expert tosupport his contention of a defective device (theramp assembly) under a product liability claim.The expert inspected the trailer, and though he hadno experience with horse trailers, did not conductany tests for his alternate design theory, and hadnot located any extrinsic scientific tests of hisalternate design theory, he opined that a simplemechanism change would have prevented theaccident and made the horse trailer safer. Uponmotion, the trial judge concluded that plaintiff’sengineer’s conclusions were net opinion andbarred his testimony. On appeal, the appellatecourt held that the expert’s proposed alternatedesign was a common mechanism, the technologyfor which has existed for hundreds of years, andtherefore no research, testing, or other analysiswere needed to support his conclusions. Reversedand remanded for trial.

Insurance Coverage

Markowski v. Humphrey, No. A-2427-06 (N.J.Super. App. Div. Feb. 14, 2008) – An insurancecarrier that was defending an action under areservation of rights based on claimed intentionalacts was denied its motion to intervene in aliability action in order to obtain a judgment as tothe existence or nonexistence of coverage inconnection with or in advance of the trial. Themotion to intervene was filed almost one year afternotice of the potential liability of all likelyinsureds was received by the carrier, after theperiod for discovery had ended, after arbitrationhad occurred, and when a trial within weeks wasreasonably anticipated. Affirming the trial court,the appellate division held that the insurer couldnot have intervened in the liability trial itself toassert its interest in demonstrating lack ofcoverage as the result of intentional conduct ondefendant’s part because such intervention wouldhave placed it and its insureds in irreconcilableconflict. The court also rejected the insurer’sargument that it would have been appropriateunder the circumstances for the coverage action toprecede the liability trial. The court determinedthat such a result could not be achieved by sittingback until the liability trial was imminent and thenseeking, by intervention, to force a determinationof coverage--a matter requiring independentdiscovery--while a resolution of plaintiff's claimson liability languished.

Matos v. Farmers Mut. Fire Ins. Co. of Salem County, 399 N.J. Super. 219 (App. Div. 2008) –More than one year after their claim was denied,the insureds brought an action against theirhomeowner’s insurer to recover for propertydamage. The trial court dismissed the complaintas time barred and the insureds appealed. Theappellate court held that the contractual limitationsperiod for filing suit, required by N.J.S.A. 17:36-5.20, was binding on the insureds even if it was omitted from their copy of the policy. The courtfurther held that a letter from the insureds' attorneystating that the insureds were appealing the denialof the claim did not toll the one-year contractuallimitations period for filing suit.

Bad Faith – Discovery

Allstate v. Humphrey, No. A-0570-07 (N.J. Super.App. Div. Feb. 14, 2008) – The plaintiff in anunderlying assault matter was awarded $5.2million against various defendants. Thereafter, thedefendants’insurance carrier, Allstate, filed adeclaratory judgment action seeking to disclaimcoverage under the intentional acts exception. Byway of counterclaim, the various defendantssought a determination of bad faith againstAllstate for failing to settle claims within thepolicy limit and for untimely moving to disclaimcoverage. The plaintiff in the underlying claimdid not obtain an assignment of rights fromdefendants. Upon motions to compel productionof Allstate’s file by all parties in the underlyingmatter, Allstate took the position that theunderlying plaintiff did not have standing torequest production and that the records wereotherwise privileged. The trial judge disagreedand ordered production. After denial of emergentappeal, the appellate court ultimately agreed thatthe underlying plaintiff did not have standing torequest documents from Allstate; however, theunderlying defendants, Allstate’s insureds, wereentitled to all claim files and log notes unlessprivileged, in which case Allstate was ordered toprovide a detailed privilege log.

Civil Procedure – Default Judgment

Bedia v. Musillo, No. A-2695-06 (N.J. Super. App.Div. Dec. 20, 2007) – Defendant attempted toopen a default judgment after ten months,claiming that he was never served. At anevidentiary hearing, the process server testifiedthat she mistakenly served defendant’s brotherwith the papers. Testimony further revealed thatthe brother was living with defendant at the timeand was an adult member of the household. Thejudge found service to be proper and denieddefendant’s motion to open the default judgment.The appellate court affirmed for the same reason.

For more information on any of the above articles, please feel free to contact Michael Dolich, Esquire at dolich@bbs-law.com or Michael Weiner, Esquire at weiner@bbs-law.com

Publications     Newsletters     Companies In Interest Letters     Recent Legal Developments     Articles