In Marcinczyk v. State Of New Jersey Police Training Commission, the Supreme Court considered whether an exculpatory agreement that a police recruit executed as a condition of participating in the Somerset County’s Police Academy program barred his claims for injuries. On August 5, 2010 in Stelluti v. Casapenn Enterprises, the Supreme Court held that a gym patron of a private health club could not sue for injuries sustained on faulty exercise equipment because she had signed a lawsuit waiver as a condition of her membership.

While the Supreme Court enforced the waiver of liability in the private health club setting, it found that a government run institution violated public policy by doing the same thing. The Court found that the agreement signed by Marcinczyk was invalid because it contravened public policy as expressed in the New Jersey Tort Claims Act. The Court found that a public entity cannot condition the provision of a public service on the recipient’s execution of a waiver of liability.

Please contact Robert Ball with any questions regarding either of these opinons.

http://www.judiciary.state.nj.us/opinions/supreme/A-19-09.pdf

In Rashabov v. Alfuso, the New Jersey Appellate Division affirmed summary judgment in favor of Selective Insurance Company based on plaintiff’s misrepresentation in the application. The issue was whether Selective was required to provide PIP benefits to the plaintiff/insured and three other family members despite inaccurate information in the application regarding the number of adult residents in his household. Plaintiff argued that he lacked experience in obtaining automobile insurance and did not speak English. His application was completed with assistance from the dealership where he purchased the vehicle and listed the plaintiff as the only resident of his household. Investigation revealed that plaintiff resided with his wife, father, mother and two brothers who were all adults and three of whom also sustained injuries in the accident. The Appellate Division affirmed summary judgment finding a material misrepresentation.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a3684-08.pdf

In W.J.A. v. D.A., the Apellate Division reversed summary judgment awarded to the defendant. The decision allows the plaintiff to go forward with a lawsuit against his nephew, who wrote on a website that the uncle molested him as a child . Plaintiff admitted that there had been no actual damage or injury to his reputation. The Court acknowledged the trend towards requiring proof of actual harm from defamation, however, noted that mandating such damages in a suit over online accusations of sexual abuse would “create a license to defame”.

Please contact Robert Ball with any questions regarding this post.

http://www.judiciary.state.nj.us/opinions/a0762-09.pdf

In Cupido v. Perez, the plaintiff was a resident of Pa. involved in a motor vehicle accident in NJ. Plaintiff selected the full tort option under his personal automobile insurance policy giving him the right to sue for any injuries sustained in a motor vehicle accident. Plaintiff’s carrier, Nationwide, was not authorized to transact any motor vehicle insurance business in NJ; however, it controlled 4 affiliated companies which were authorized to transact commercial motor vehicle insurance but not private passenger insurance business in NJ.

The issue on appeal was whether the NJ Deemer Statute , N.J.S.A. 17 :28-1.4 applied based on the control of an affiliate company authorized to transact commercial motor vehicle insurance business in NJ. The Appellate Division found that the Deemer Statute applied, and therefore that the plaintiff was subject to the NJ verbal threshold limitations on his right to sue for injuries.

Please contact Robert Ball with any questions.

http://www.judiciary.state.nj.us/opinions/a4557-08.pdf

In Flomerfelt v. Cardiello, the plaintiff attended a party hosted by the defendant where she became unresponsive and was ultimately treated for kidney and liver failure. A hospital toxicology report identified alcohol, marijuana, opiates and cocaine in her system. No expert determined the levels of each substance in plaintiff’s system however, the hospital found the injuries “probably secondary to drug overdose.” The defendant’s expert suggested her injuries may have resulted from prior drug abuse.

The defendant sought coverage under his parents homeowners policy which was denied, with the carrier relying on an exclusion in the policy for claims “arising out of” the use, transfer or possession of controlled dangerous substances. The trial court found coverage, the Appellate Division reversed and the New Jersey Supreme Court reversed and remanded finding the insurer’s use of the phrase ” arising out of” with no further qualification, made the exclusion ambiguous, requiring an interpretation consistent with the insured’s reasonable expectation. In remanding, the Court noted that the coverage issue could not be resolved because the record failed to answer questions about the sequence of events leading to the plaintiff’s injuries and the cause or causes of her injuries.

http://www.judiciary.state.nj.us/opinions/supreme/A409FlomerfeltvCardiello.pdf

Please contact Robert Ball with any questions regarding this post at .

In a recent unpublished New Jersey appellate decision, the court held that a plaintiff was barred from bringing a claim for UM benefits against his carrier under the entire controversy doctrine. Plaintiff, Harvey Johnson brought suit against defendant, Richard Dominques for injuries sustained in a motor vehicle accident. During the course of that litigation, plaintiff made a statement in court claiming that a ” phantom vehicle” contributed to the incident. At the conclusion of the trial, the jury found no cause for action, which was affirmed on appeal.

One year after the incident, the plaintiff filed a claim against his insurer, Allstate , for UM benefits. Allstate moved for summary judgment, arguing that the plaintiff’s claim was barred by the entire controversy doctrine and the motion was granted. On appeal, the court found that Allstate met the burden of demonstrating inexcuseable conduct by the plaintiff, as well as substantial prejudice. The court also held that the plaintiff failed to provide prompt notice of the claim, and that he knew at the time of the accident that the phantom vehicle could be implicated in the collision. As such, the court upheld dismissal of the claim against Allstate.

http://www.judiciary.state.nj.us/opinions/a4757-08.pdf

Thank you to Heather Aquino for this post.

The New Jersey Automobile Insurance Cost Reduction Act ( AICRA) bars uninsured drivers from suing for personal injuries sustained in automobile accidents. In Aronberg v. Tolbert, the trial court granted summary judgment to the defendant’s dismissing a survival action brought by an uninsured decedent’s estate, but denied summary judgment as to the wrongful death action brought by his heirs. The Appellate Division affirmed, concluding that while the AICRA statutory bar may apply to survival actions brought on behalf of the decedent, it did not apply to a wrongful death action seeking damages for losses suffered by the decedent’s heirs.

http://www.judiciary.state.nj.us/opinions/a4896-08.pdf

In Kusimba v. S & J Enterprises, the New Jersey Appellate Division affirmed the dismissal of plaintiff’s claim for coverage against Essex Insurance Company. The Court found the “PRODUCTS / COMPLETED OPERATIONS HAZARD EXCLUSION’ in the policy to be a clear, prominent and unambiguous exclusion, therefore enforceable. Coverage for plaintiff’s claim was excluded because plaintiff’s bodily injury took place away from the insureds premises ( motor vehicle accident) and arose out of the insureds work ( alleged negligent repair of brakes). The Court also found that Essex properly reserved its rights.

http://www.judiciary.state.nj.us/opinions/a3235-08.pdf

In Smithson v. Garcia, the Appellate Division reversed the denial of a new trial on damages where the jury found that plaintiff had sustained a permanent injury meeting the verbal tort threshold, but awarded nominal damages of one dollar. The Court found it clear that plaintiff’s permanent injury stemmed from 2 herniated discs attributable to the motor vehicle accident and concluded that allowing the jury’s one dollar damages award to stand would be manifestly unjust under the circumstances.

http://www.judiciary.state.nj.us/opinions/a2222-08.pdf

In Growney v. Glassman, plaintiff appealed from summary judgment and a denial of reconsideration based on plaintiff’s failure to satisfy the verbal threshold. Plaintiff’s medical expert changed his mind concerning the permanency of plaintiff’s injuries after summary judgment was granted , citing an examining physician’s note that “there appears to be a mildly displaced fracture in the sacrum”. The Appellate Division held that the note fell short of the standard for admissable testimony, which must be based on reasonable medical certainty or probability. Further, since the information was available before summary judgment was decided, it failed to provide an appropriate basis for reconsideration.

http://www.judiciary.state.nj.us/opinions/a2820-08.pdf