Opinion Summaries

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in panel majority’s per curiam opinion. The Court adds only the following.

The court affirms the trial court's termination of E.M.C.'s parental rights to his child, A.E.C. The child's mother did not appeal the judgment terminating her parental rights. The trial record supported that E.M.C. was given a meaningful opportunity to reunify with his child. The Division of Child Protection and Permanency's (Division's) requirement that E.M.C. attend a psychological and bonding evaluation was not unreasonable nor did it thwart his relationship with the child or reunification efforts. The Division made reasonable efforts to locate E.M.C., especially where, as here, E.M.C. was aware the child was in placement and had a phone number to contact him. The records supported the trial court's finding that E.M.C.'s absence from the child was voluntary. The court distinguishes this case from N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010), where the parent took affirmative steps to satisfy the conditions the Division set for him, which was not the case here for E.M.C.

Judge Guadagno wrote a dissent.

The primary question raised in this appeal is whether an auto insurer may combine uninsured and underinsured motorist coverage in a single section and include exclusions not listed on the policy's declaration page. We also consider if an insurer may exclude underinsured motorist coverage for an accident involving a vehicle owned by the insured but not covered under the subject policy. Because we find the exclusion does not violate public policy or result in ambiguity, we reverse.

Judge Suter wrote a dissent.

In this appeal, the panel extends to a Family Part context the ruling in State v. Doriguzzi, 334 N.J. Super. 530, 536 (App. Div. 2000) holding that a HGN test is not admissible at a trial to show an individual is guilty of driving under the influence. The court now holds that HGN test results cannot be considered in a Title 9 abuse or neglect hearing to establish that defendant was under the influence when supervising his four minor children while the mother was unconscious. However, the panel concludes the order finding abuse or neglect was consistent with the law because it was supported by substantial independent credible evidence that defendant was under the influence and that his conduct created a substantial risk to the children's mental health and physical safety. The panel affirms the order.

Plaintiffs purchased an auto policy from State Farm that provided $15,000 in PIP coverage and designated a private health insurance provider as primary. They filed a verified complaint seeking to reform their auto policy to provide the maximum $250,000 PIP benefits, claiming: (1) the policy was invalid because their adult son was not insured by private health insurance; (2) the State Farm agent required them to sign a blank coverage selection form and thereafter selected the lower PIP coverage option; (3) this act by the agent was willful, wanton, intentional, or grossly negligent. On cross-motions for summary judgment, the trial court found State Farm is entitled to immunity under N.J.S.A. 17:28-1.9.

This court affirms and holds that insureds are under a duty to examine their insurance documents and to notify the insurer if there is a discrepancy between what they initially requested and what the insurer has actually provided. State Farm met all of the requirements for immunity under N.J.S.A. 17:28-1.9.

Under N.J.S.A. 40A:14-117 and N.J.S.A. 59:10-4, the Legislature has provided that each county -- not the Attorney General -- is responsible for defending and potentially indemnifying its police officers.

In 2012, the Legislature amended N.J.S.A. 34:15-15, granting the Division of Workers' Compensation exclusive jurisdiction over claims brought by medical providers for payment of services rendered to injured employees. These appeals questioned whether, through its silence, the Legislature intended – via this 2012 amendment – to apply the two-year statute of limitations, N.J.S.A. 34:15-51, contained in the Workers' Compensation Act, or whether the Legislature intended to leave things as they were and continue to apply the six-year statute of limitations for suits on contracts, N.J.S.A. 2A:14-1, to such claims. The court concluded that subjecting medical-provider claims to the two-year time-bar would be like jamming a square peg into a round hole, and that to reinterpret the two-year time-bar to fit such claims would require the reshaping of the edges of this square peg contrary to principles of judicial restraint. The court reversed the judgments that dismissed these medical-provider claims.

This case exemplifies an inadequate way for an employer to go about extracting its employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.

The employer in this case emailed to its workforce what it called a "training module" (or "activity" or "course"). The module described the company's mandatory arbitration policy, as presented in a series of slides on computer screens. One screen provided employees with the opportunity to access a "Resource" link to the full text of the policy. In a separate email, the employer supplied a computer link to Frequently Asked Questions ("FAQs") concerning the policy.

On the third slide of the module presentation, the employees simply were asked to "acknowledge" it with the click of an electronic button. The module declared that if an employee did not click the acknowledgement, but continued to work for the company for sixty or more days, the employee would be "deemed" to be bound by the arbitration policy.

Although the arbitration policy is labeled an "agreement" and that word appears multiple times on the slides and within the linked policy, the module did not request employees to provide signatures conveying their agreement. Nor were the employees asked – within the four corners of the pivotal "click" box at the end of the presentation – to memorialize that they expressly agreed to the policy. They were only asked within the box to "acknowledge" it.

This oblique procedure does not yield the valid personal agreement of an employee to give up his or her statutorily protected rights to litigate claims against an employer in a public forum and seek a trial by jury. The procedure falls short of the requirements of New Jersey contract law, particularly the Supreme Court's longstanding precedent in Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) (holding an employee's valid waiver of statutory rights, there in the context of an employer's binding arbitration policy, "results only from an explicit, affirmative agreement that unmistakably reflects the employee's assent") (emphasis added), as well as the Court's more recent opinion in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 447 (2014) (holding the words of an arbitration agreement "must be clear and unambiguous that a [person] is choosing to arbitrate disputes rather than have them resolved in a court of law") (emphasis added).

The trial court did not err in the admission of the photographs, nor did the State commit reversible error when it commented on the defendant’s silence.

The primary question raised in this appeal is whether an appellant, who has served his sentence pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, can be compelled to undergo a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3) and 10A:71-7.19A, for violation of certain conditions of parole supervision for life (PSL), and mandatory parole supervision (MPS), imposed outside the SOA.

The panel reverses the Board's decision in part, holding it cannot compel such an evaluation. Absent further comment by the Legislature, these regulations only apply to individuals who have been released on parole before completing their sentence.

Under the limited circumstances of this case, extraordinary circumstances existed justifying O’Donnell’s late filing.

The court reverses defendant's conviction of purposeful murder and related firearms offenses. The court concludes that defendant's trial was tainted by a detective's reference, in violation of a prior court ruling, to defendant's alleged gang membership and the presence of gangs in the area of homicide. The panel concludes that the court's curative instruction was insufficient to alleviate the prejudice caused by the detective's remarks.

Judge Ostrer wrote a separate, unpublished concurrence.

The so-called “arbitration agreement” within this consumer contract fails to support a finding of mutuality of assent to form an agreement to arbitrate. The provision’s language is debatable, confusing, and contradictory -- and, in part, misleading. The “arbitration agreement” is also obscure when this consumer contract is viewed as a whole. The provision does not fairly convey to an ordinary person that arbitration would be the required method of dispute resolution. Accordingly, this arbitration agreement is not enforceable.

The main issue before the court is whether a non-monetary class-action settlement is "fair and reasonable" to the class pursuant to Rule 4:32-2. The parties agreed to settle the matter for "Supplemental Disclosures" and attorneys' fees. Stockholders received no financial compensation. In the analysis, the court formally adopts the nine Girsh factors to determine whether to approve the non-monetary settlement. Girsh v. Jepson, 521 F.2d 153 (3d Cir. 1975).

Tax Court: Arthur G. Nevins, JR. and Amanda Nevins v. Dir., Div.of Taxation,Docket No. 013075-2015; opinion by Bianco, J.T.C., decided January 8, 2019. For plaintiffs – Arthur G. Nevins, Jr.(pro se); for defendant – Abiola G. Miles (Gurbir S. Grewal,Attorney General of New Jersey, attorneys). Plaintiffs, Arthur G. Nevins, JR. and Amanda Nevins, moved to annul defendant’s final determination with regard to their 2008 New Jersey gross income tax. They argued that the defendant failed to timely assess the tax within the three-year limitations period under N.J.S.A. 54A:9-4(a). Defendant, the Director of the Division of Taxation (“Director”), moved to dismiss the complaint with prejudice claiming that exceptions to the statute of limitations under N.J.S.A. 54A:9-4(c) apply. The court determined that the general three-year statute of limitations period is not implicated as the amount of tax voluntarily reported as due by plaintiffs on their self-processed return is assessed on the date of filing of the return. The court also determined that a notice of deficiency is not required to be issued for self-assessed taxes. Lastly, the court ruled that the Director had the authority to assess the plaintiffs’ 2008 gross income tax at any time under N.J.S.A. 54A:9- 4(c)(1)(C), because plaintiffs did not appropriately report the changes made by the Internal Revenue Service to the Division of Taxation according to N.J.S.A. 54A:8-7. Therefore, the court granted the Director’s motion for summary judgment to dismiss the complaint with prejudice and affirmed the Director’s final determination.

(1) The term “person” in section 35.1 includes not only ticket brokers and resellers, but also other individuals and entities with “access to tickets to an event prior to the tickets’ release for sale to the general public.” N.J.S.A. 56:8-35.1. (2(a)) The sale of tickets to winners of the NFL’s ticket lottery constitutes a “release for sale to the general public” within the meaning of section 35.1. (2(b)) The Super Bowl tickets sold to lottery winners were the only 2014 Super Bowl tickets designated by the NFL for “release for sale to the general public” within the meaning of section 35.1, however. The NFL’s distribution of other tickets to the 2014 Super Bowl to its teams, other selected individuals, and entities therefore does not constitute the unlawful withholding of more than five percent of “tickets to an event prior to the tickets’ release for sale to the general public” under section 35.1.

Tax Court: Barbara J. Hertz v. Borough of Lincoln Park,, Docket No. 009897-2017; opinion by Bianco, J.T.C., decided January 8, 2019.or plaintiff – Barbara J. Hertz (pro se); for defendant – Jacquelin P. Gioioso (The Buzak Law Group, LLC, attorneys).

.Plaintiff, Barbara J. Hertz, appealed to the denial of her 2017 Farmland Assessment application on her property. Defendant, borough of Lincoln Park, sought affirmation of the denial by the Morris County Board of Taxation. For the reasons that follow, the court determined that plaintiff failed to establish that “not less than five acres of the property are . . . actively devoted to agricultural or horticultural use” as required for Farmland Assessment under N.J.S.A. 54:4-23.2. First, the court found that most of her alleged “crops” appear to be naturally occurring growth in a forest setting and determined that the haphazard and uncared for use of land does not necessarily qualify the land for farmland assessment. Second, the court determined that plaintiff failed to prove that the unused area of the Subject Property is “beneficial to the property” under N.J.A.C. 18:15-6.2. Third, the court determined that plaintiff’s land measurements were unreliable and unverifiable; and, her testimony was not credible, contradictory,and self-serving. Lastly, the court determined that the municipal tax assessor fulfilled his statutory obligation to address plaintiff’s application for Farmland Assessment. Therefore, the court affirmed the judgment of the Morris County Board of Taxation denying plaintiff’s 2017 Farmland Assessment application for the plaintiff’s property

Plaintiff filed a civil action against his employer alleging wrongful termination. The Law Division granted defendant's motion to compel arbitration. Plaintiff filed a motion for reconsideration pursuant to Rule 4:49-2 that was received by defendant and the trial court more than twenty days from the date defendant's served plaintiff with the order compelling arbitration. The trial court nevertheless granted plaintiff's motion and directed the matter to proceed to trial.

Subject matter jurisdiction cannot be waived by the parties' failure to object, nor conferred upon the court by the parties' agreement. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978). This court holds that judges have an independent, non-delegable duty to raise and determine whether the court has subject matter jurisdiction over the case whenever there is a reasonable basis to do so. Here, the Law Division did not have subject matter jurisdiction at the time it granted plaintiff's untimely motion for reconsideration under Rule 4:49-2.

The plain language of the 2016 drug court expungement statute requires judges to determine whether expungement would be consistent with the public interest. N.J.S.A. 2C:35-14(m)(2); id. § 52-2(c)(3). Successful graduates who have committed certain offenses and apply for expungement are entitled to a rebuttable presumption that expungement is consistent with the public interest.

The panel addresses the evidentiary implications of a key provision within the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A. 40A:12A-1 to -49. The provision in question, N.J.S.A. 40A:12A-8(c), authorizes a municipality or redevelopment agency to acquire by condemnation any lands or buildings which are "necessary for the redevelopment project."

The panel holds that if a landowner within the redevelopment area contests the necessity of a condemnation pursuant to N.J.S.A. 40A:12A-8(c), the statute logically requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. That articulated need must be more specific than the mere "stockpiling" of real estate that might hypothetically be useful for a redevelopment project in the future.

In addition, the condemning authority in such a contested case must present to the court at least some evidence – consisting of facts, expert opinion, or both – that provides reasonable substantiation of the need. To hold otherwise and allow the condemning authority merely to proclaim a need, without having any obligation to substantiate its existence, would improperly read the term "necessary" out of the Legislature's enactment.