Opinion Summaries

In Mansell v. Mansell, 490 U.S. 581 (1989), the United States Supreme Court held the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, federally preempted state family courts from equitably distributing a disability retirement pension in a divorce. In 2017, the Court in Howell v. Howell, __ U.S. __, 137 S. Ct. 1400 (2017), held family courts are federally preempted from indemnifying a spouse for the inability to distribute disability benefits, but could take such a contingency into consideration by other means, including modifying or awarding alimony.

In this case, the court reverses the trial court's order, which required the spouse receiving disability benefits to indemnify the payee spouse by paying her a hypothetical value of her share of the pension, because indemnification was preempted by Howell. However, the court holds conversion of the pension into a disability benefit was a substantial and permanent change in circumstances, which invalidated the parties' alimony waiver, and accordingly reverses the trial court's order denying alimony for consideration of such an award.

The State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial.

Tax Court: Abdul M. Momoh-Oare v. Dir., Div. of Taxation, Docket No. 013111-2016; opinion by Gilmore, J.T.C., decided January 28,2019. For plaintiff – Abdul M. Momoh-Oare (Pro se); for defendant – Steven J. Colby (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

A resident taxpayer challenged imposition of New Jersey sales tax on his in-state purchase of a motor vehicle, alleging that his export of the vehicle to Nigeria exempted the transaction from state sales tax. Taxpayer moved for summary judgment and the Director, Division of Taxation cross-moved for summary judgment. Held: Taxpayer’s purchase did not qualify for exemption from sales tax on motor vehicle purchases under New Jersey statutes or regulations, and imposition of sales tax in this matter did not violate the Import-Export Clause of the United States Constitution, art. I, § 10, cl. 2. Therefore, the court denied taxpayer’s motion for summary judgment, and granted the Director, Division of Taxation’s cross-motion for summary judgment denying taxpayer’s refund claim and dismissing the complaint.

In these back-to-back appeals involving automobile insurance, consolidated for purposes of this opinion, defendants appeal from Law Division orders vacating binding arbitration awards entered in their favor against plaintiff New Jersey Manufacturer's Insurance Company (NJM). In both cases, the Law Division held the PIP fee schedule does not provide for payment to an ambulatory surgical center (ASC) for procedures not listed as reimbursable when performed at an ASC. Defendants argue that N.J.A.C. 11:3-29.4(g) requires insurance companies to reimburse ASCs for any procedures performed under Current Procedural Terminology (CPT) codes subsequently approved by Medicare. Defendant's arguments are rejected and the trial court orders are affirmed.

Tax Court: Verizon New Jersey, Inc. v. Hopewell Borough Docket Number 12215-2009; opinion by Brennan, J.T.C., decided January 28,2019. For plaintiff – Susan A. Feeney and Farhan Ali (McCarter & English, LLP, attorneys); for defendant – Joseph C. Tauriello,attorney.

Following the court’s decision in Verizon New Jersey, Inc. v.Hopewell Borough, 26 N.J. Tax 400 (Tax 2012), the parties proceeded to trial to resolve the definition of the statutory term “local telephone exchange” and for a determination as to whether plaintiff provided 51% of the dial tone and access for the Hopewell Telephone Exchange, as of January 1, 2008. The Tax Court defined “local telephone exchange” as being a geographic area as depicted on the exchange maps filed with Verizon’s tariff. The court also found that having adopted this definition of a “local telephone exchange,” Verizon continued to furnish in excess of 51% of the dial tone and access in the Hopewell Telephone Exchange as of January 1, 2008. The Tax Court affirmed the imposition of the business personal property tax pursuant to N.J.S.A. 54:4-1 for tax year 2009.

The court rejects Regina Tasca's appeal of the final agency decision of the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS), denying her twenty-year service (early) retirement pension benefits under N.J.S.A. 43:16A-5(3). Tasca's transfer of six years of service credit that gave her more than the twenty-year service credit threshold needed for early retirement did not qualify her for early retirement pension benefits. The Board properly interpreted N.J.S.A. 43:16A-5(3) in determining that because she was not a PFRS "member" at the critical time of the statute's January 18, 2000 effective date, she was ineligible for early retirement pension benefits. The court also concludes that the doctrine of equitable estoppel does not afford Tasca relief against a governmental body, such as the Board, and there was no misrepresentation by the PFRS staff that she was eligible for early retirement pension benefits under N.J.S.A. 43:16A-5(3). The court further concludes that even though the Law Division action settlement with her former employer include her seeking early retirement pension benefits based on the good faith belief that she was eligible for the benefits, the public policy favoring settlements against parties who have entered into them serves no basis for granting her the benefits in this matter. The Board's decision is affirmed.

Appellants K.G, C.C., J.L., and D.C. are convicted sex offenders who are monitored by respondent New Jersey State Parole Board (the "Board") as offenders who are subject to parole supervision for life ("PSL") under N.J.S.A. 2C:43-6.4. Each appellant challenges certain conditions of PSL, most of which restrict Internet use, that the Board has imposed upon them. The instant appeals follow in the wake of the New Jersey Supreme Court's decision in J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017), which addressed the parameters of the Board's authority to impose conditions restricting Internet access.

We affirm in part, reverse in part, and remand in part. In particular, we reach the following major legal conclusions: (1) the Board's imposition of Internet monitoring conditions upon PSL offenders, including the use of monitoring software, mandatory password disclosure, and unannounced device inspections, does not facially violate the constitutional protections against unreasonable searches or the constitutional rights to privacy; (2) the Board's use of the terms "Internet-capable device," "social networking service," "frequenting establishments whose primary purpose is the sale of alcohol," and "sexually-oriented websites, material, information or data" does not violate due process under the void for vagueness doctrine; (3) all conditions restricting Internet access, including monitoring conditions, should be reasonably tailored to the circumstances of the individual offender, "taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety[,]" J.I., 228 N.J. at 224; and (4) in the administrative appeals process, PSL offenders are not entitled to discovery and are only entitled to a hearing when warranted based on "the timing of and justification for the Internet restriction, the severity and length of the restriction, whether facts are contested or uncontested, and whether credibility determinations must be made." Id. at 233.

The customized tow truck and rig fit within the CFA’s expansive definition of “merchandise” and, therefore, plaintiff’s CFA claim should not have foundered based on an application of that term. The Court further agrees with the appellate panel’s remand to the trial court for a determination of whether defendants’ other bases for seeking summary judgment are meritorious.

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 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 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.

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.

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.

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.