Opinion Summaries

After awarding dependent benefits under N.J.S.A. 34:15-13 to the surviving spouse of a worker who succumbed to an occupational disease, the judge of compensation awarded counsel fees based on the spouse's expected lifetime – in accordance with a 1995 amendment to N.J.S.A. 34:15-13(j) which provided that compensation shall be paid to a surviving spouse "during the entire period of survivorship" – as determined from the table of mortality and life expectancy printed as Appendix I to the New Jersey Rules of Court.

The court rejected the employer's argument on appeal that the proper calculation should have been based on the long-standing basis for counsel fee awards: the 450-week period of payments provided in N.J.S.A. 34:15-12(b) and portions of N.J.S.A. 34:15-13. N.J.S.A. 34:15-64 authorizes a judge of compensation to allow a prevailing party "a reasonable attorney fee, not exceeding [twenty percent] of the judgment." Although the court did not hold the use of the 450-week method traditionally used to calculate counsel fees was improper, it concluded the use of the table to calculate counsel fees was reasonable because it is designed to actuarially calculate the amount of time over which a surviving spouse can expect to receive benefits; in other words, it is based on the judgment amount calculated using the spouse's projected lifespan.

On leave granted, the Middlesex County Prosecutor's Office appealed from the suppression of inmate telephone calls recorded by the Essex County Correctional Facility and the Middlesex County Department of Adult Corrections. The court held that the production of the recordings by the jails pursuant to the authority of grand jury subpoenas served upon them by the Prosecutor's Office did not violate an inmate's reasonable expectation of privacy, as they were advised at the beginning of every phone call that the conversations would be monitored and recorded. The court further held that the investigation and process did not violate the New Jersey Wiretapping and Electronic Surveillance Control Act (the Act), N.J.S.A. 2A:156A-1 to -37, Title III of the Federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, and Article I Paragraph 7 of the New Jersey Constitution. The Act and Title III were not implicated by the sharing of the lawfully obtained information for lawful purposes by law enforcement agencies.

Alcatel-Lucent USA Inc. (Alcatel), is the owner of real property in the Township of Berkeley Heights on which is located its North American headquarters.1 There are approximately 1.5 million square feet of improvements on the 153.4 acre Berkeley Heights property – of which Alcatel contends 53 acres are woodlands.

N.J.S.A. 54:4-34 – commonly referred to as Chapter 91 (you have to read the decision to find out why) – requires every real property owner to provide "a full and true account of his [or her] name and real property and the income therefrom, in the case of income-producing property" to the municipal tax assessor upon the assessor's written request. The statute also precludes the owner from appealing the assessor's valuation and assessment if the owner fails or refuses to respond to the Chapter 91 request.

After Alcatel failed to respond to the tax assessor's request for information pertaining to its Berkeley Heights property, LTI filed a farmland assessment application for the woodland portion of the property. The assessor denied the application concluding agriculture was not the dominant use of the property; Alcatel filed a complaint with the Tax Court challenging the denial. The Tax Court dismissed the complaint holding it was precluded under Chapter 91 because Alcatel failed to respond to the assessor's Chapter 91 request.

The court rejected Alcatel's arguments that the Tax Court erred in: extending the application of the Chapter 91 preclusion penalty to its farmland assessment appeal; applying the Chapter 91 preclusion penalty to the woodland property because it is not income producing; and formulating a new rule that misinterprets our prior holding and undermines the legislative purpose of Chapter 91 and the Act. It also argued that technical deficiencies in the Township's Chapter 91 request bar preclusion of its claim.

The property was conveyed by Lucent Technologies, Inc. (Lucent) to LTI NJ Finance LLC (LTI), which simultaneously entered into a twenty-year agreement with Lucent, the sole member of LTI, pursuant to which Lucent was considered the "beneficial owner." Lucent merged with Alcatel, a French company, in 2006, to form Alcatel-Lucent USA Inc. The agreement between LTI and Lucent was terminated in 2013 and LTI was merged into Alcatel. The court was informed by Alcatel's merits brief that it is now known as "Nokia".

The court perceived no reason why Chapter 91's preclusion should not apply to Alcatel's farmland assessment complaint and affirmed Judge Joshua D.Novin's dismissal. The court recognized that the comprehensive statutory scheme requires tax assessors to assess every property at its full and fair value each year. Inasmuch as the Chapter 91 data is essential to the valuation of a split-use property, and, in turn, to the fulfillment of the assessor's statutory duties for the entire municipality, the court agreed with Judge Novin that the statute's preclusion provision should be applied to owners who fail to respond to the assessor's request.

The six members of the Court who participated in this matter agree upon the non-exclusive factors identified in the concurring opinion that govern a court’s determination when a requestor, not otherwise authorized by statute or regulation to have access to a given student record, seeks a court order mandating disclosure of that record pursuant to N.J.A.C. 6A:32-7.5(e)(15). An equally divided Court affirms the Appellate Division’s determination that a "student record" under N.J.A.C. 6A:32-2.1 retains its protected status under New Jersey law notwithstanding the school district’s redaction from that record of "personally identifiable information," as required by FERPA and its implementing regulations.

A jury awarded plaintiff $1.8 million in damages against New Jersey Transit and its bus driver for injuries she sustained when an unidentified bus passenger struck plaintiff in the head with a thrown glass bottle. We affirm the trial court's determination to hold defendants to the common carrier standard of negligence but conclude the trial court misinterpreted applicable statutes when it denied defendants' request to include the bottle thrower on the verdict sheet.

We hold that joint tortfeasors are not required to apportion liability in cases involving a public entity. Instead, a jury should be permitted to apportion liability when a public employee or entity is determined to be a tortfeasor in a cause of action with one or more other tortfeasors.

We therefore affirm the liability verdict and award of damages but vacate the final judgment and remand for another jury to address the issue of allocation of fault between the bottle thrower and defendants.

The Court does not agree that the trial court erred in refusing to grant defendants summary judgment on plaintiff’s CEPA claim related to the alleged refusal to destroy documents, but affirms as to the fraudulent timekeeping allegations.

Because the Utah court limited the presentation of evidence of a business dispute between respondent and the law firm, and because evidence that may exist in Utah cannot be compelled by respondent here, the Court cannot conclude that the OAE has proven by clear and convincing evidence that respondent knowingly misappropriated law firm funds under circumstances justifying greater discipline than that imposed in Utah.

This case is a domestic violence action in which plaintiff had employed defendant as a nanny. The issue is whether plaintiff is a party entitled to protection under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, given the economic relationship of the parties. It is held that under the circumstances, plaintiff is a party entitled to such protection.

The court held that the Chairperson of the Civil Service Commission was authorized to approve the creation of a new job title and did not act arbitrarily in approving the title at issue in this case.

In this appeal, the court considered whether an employee could seek damages from a former employer in a civil suit or was limited to recovery under the Workers Compensation Act (WCA) for injuries allegedly sustained from use of a nasal spray product developed by the employer. The court also examined whether frivolous litigation sanctions could be imposed, absent a finding the employee's attorneys acted in bad faith, particularly when the prevailing party's "safe harbor" letter failed to alert the employee's attorneys about the immunity.bar under the WCA and the prevailing party's initial motion for summary judgment was denied on all but one cause of action. The court affirmed the grant of summary judgment in the employer's favor, due to the employee's inability to demonstrate his employer had committed an "intentional wrong" under the two-prong test outlined in Millison v. E.I. du Pont de Nemours & Co.,101 N.J. 161, 178-79 (1985) and reversed the frivolous litigation sanction

this appeal, plaintiff's claims were similar to those considered by the New Jersey Supreme Court in Dugan v. TGI Fridays, Inc., 231 N.J. 24 (2017), as they related to defendant's sale of beverages from menus that did not include prices for the items sold. The court's majority determined that the Law Division improperly denied plaintiff's motion for class certification under Rule 4:32-1(b)(2). The majority concluded that the concerns raised by the Dugan Court about class certification under Rule 4:32-1(b)(3) of claims for damages under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210, and the Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18, did not apply to plaintiff's class action for injunctive relief under (b)(2) in this case.

According to the majority neither the Dugan's Court's concern about whether plaintiff could make a showing that members of the putative class sustained an ascertainable loss under the CFA, nor its trepidation that certifying a (b)(3) class exposed the Dugan defendant to a disproportional amount of civil penalties under the TCCWNA were considerations applicable to plaintiff's motion in this case. Here, the majority held that in determining whether cohesiveness existed among class members, the trial court should have considered whether the remedy sought would be applicable to all members or to none of them.

The dissenting opinion concludes that the trial court correctly denied the motion for class certification under Rule 4:32-1(b)(2). According to the dissent, certification of the class for the CFA claims was not warranted because plaintiff would be required to establish that all members of the class sustained a bona fide ascertainable loss, which is an essential element of a claim under the CFA. Such claims are not cohesive since they depend on the individual's experience in purchasing beverages at defendant's restaurants. The claims under the TCCWNA also lack cohesion because relief could only be awarded to members of the class are "aggrieved consumers," and such claims also are dependent upon the class members' personal experiences.

In this post-judgment matrimonial case, the trial court imposed a penalty on plaintiff, in accord with his matrimonial settlement agreement (MSA), for violating one of the MSA's terms. On appeal from the award, plaintiff invoked the contract law principle that bars, as an unenforceable penalty, liquidated damages that unreasonably exceed normally compensable contract damages. The court concludes that the contract rule against penalties does not apply with equal force to MSAs. The court emphasizes that family judges retain the authority to modify an MSA's penalty provision to assure fairness and equity. Since no modification was warranted under the facts of the case, the court affirms the penalty award.

Plaintiff F.K. appeals the trial court's December 11, 2018 order granting summary judgment to defendant Integrity House and dismissing her complaint with prejudice. The trial court determined that defendant was entitled to immunity from plaintiff's negligence action under New Jersey's Charitable Immunity Act ("the Act"), N.J.S.A. 2A:53A-7 to -11. On appeal, plaintiff contends that the amount of private contributions received by defendant, roughly $250,000 or 1.26% of annual revenue, is too insignificant to entitle defendant to charitable immunity.

"Charitable immunity is an affirmative defense, as to which, like all affirmative defenses, defendants bear the burden of persuasion." Abdallah v. Occupational Ctr. of Hudson Cty., Inc., 351 N.J. Super. 280, 288 (App. Div. 2002). The court concludes that defendant did not present sufficient evidence to support its entitlement to the affirmative defense of charitable immunity. The summary judgment record does not allow for a conclusive determination as to the source and use of Integrity House's funding. Therefore, the court is unable to determine whether Integrity House receives substantial funding from private contributions or relieves the government from a burden it would otherwise have to perform, as is required to be entitled to charitable immunity.

In addition, although a determination of the specific percentage of funding Integrity House receives from private contributions is not necessary for the court's analysis, the court notes that no published case has granted charitable immunity to a non-religious, non-educational entity with such a small portion of funding from private contributions.

Accordingly, the court reverses the trial court's grant of summary judgment.

The court reverses defendant's conviction after trial for murder of his estranged wife's lover. The court determines that testimony and an unabridged audiotape of defendant's invocation of the right to counsel, his refusal to consent to a search of his computer and car, and the interrogating officer's opinion that defendant was lying cumulatively constitute plain error. The court relies on federal and out-of-state case law to decide that a refusal of consent to search is inadmissible in these circumstances. Given the paucity of direct evidence of defendant's guilt, this improperly admitted evidence undermines the integrity of the verdict.

This lawsuit is brought by an Illinois resident against his New Jersey-based former employer. Plaintiff alleges the company wrongfully denied him a promotion to a position in New Jersey and thereafter wrongfully terminated him from his job with its subsidiary in Illinois.

Plaintiff claims the company engaged in "associational" discrimination against him, in violation of the New Jersey Law Against Discrimination ("NJLAD"), based on the fact that his wife was then terminally ill with cancer. The company maintains it treated plaintiff fairly, and that it justifiably discharged him for engaging in inappropriate conduct at a trade show.

The trial court concluded that Illinois law, rather than the NJLAD, must apply to plaintiff's claims of discrimination because he lived in Illinois and worked for defendants' subsidiary in Illinois. Given that Illinois law has yet to recognize a cause of action for associational discrimination, the court granted defendants' motion to dismiss plaintiff's claims with prejudice.

On appeal in this case of first impression, this court holds that the NJLAD, notwithstanding the solitary reference to "inhabitants" in its preamble, can extend in appropriate circumstances to plaintiffs who reside or work outside of this state. However, whether the NJLAD applies to a particular nonresident plaintiff's claims turns upon a weighing of the multiple choice-of-law factors set forth in the Restatement (Second) of Conflicts of Laws (Am. Law Inst. 1971), as adopted and construed by the New Jersey Supreme Court.

The court concludes that New Jersey law (specifically the NJLAD's ban against associational discrimination) applies to defendants' alleged failure to give plaintiff fair consideration for a promotion to a position in New Jersey. The Second Restatement factors strongly weigh in favor of applying New Jersey law, not Illinois law, to this failure-to-promote claim. This court therefore reverses the trial court’s dismissal of that discrete claim and reinstate it.

As for plaintiff's wrongful discharge claim, this court vacates its dismissal and remands the choice-of-law issue pertaining to that claim to the trial court, to enable the further development of critical facts and analysis bearing on the Second Restatement factors.

Plaintiff appeals from the trial court's denial of his recusal motion. Before trial of this commercial dispute, plaintiff learned that the judge secured the trial assignment in response to an ex parte communication from a former law clerk, who was an attorney with the law firm for defendant. The attorney asked the judge if she was available to preside, and identified the partner who would try the case. The judge said the partner "likes appearing before me." Plaintiff unsuccessfully argued this amounted to "judge shopping."

On appeal, the court concludes that an ex parte communication to have a case assigned to a particular judge is not a mere scheduling matter. The judge's affirmative response to the communication in this case created an appearance of impropriety. As for remedy, the court holds that less than a complete retrial can restore public confidence in the proceedings' integrity and impartiality. The court affirms the jury's verdict on liability. It decides de novo, or as a matter of original jurisdiction, the remaining evidentiary and legal issues on appeal, and remands for a new trial on damages before a new judge.

No reasonable trier of fact could find that Arthur knew or had special reason to know that Kenneth was engaged in a sexual relationship with a minor. Accordingly, Arthur had no duty to report Kenneth. The record similarly fails to provide a basis for liability to attach to GEM. Because the record here is determinative of Arthur’s and GEM’s liability, the Court need not decide whether a co-worker or employer with knowledge or a special reason to know that a co-worker or employee is engaged in a sexual relationship with a minor has a legal duty to report that co-worker or employee.

The court reversed the abuse or neglect finding under Title 9 against defendant, who was the boyfriend of the child's biological mother. During the eighteen months that defendant dated the child's mother, he provided no financial support for the child or the mother; never lived in the same house as the child and the mother; and the child never described defendant using any parental terms. Based on the unrefuted testimony, defendant had no ongoing responsibility or obligation to provide regular care or supervision for the child. The court held that a person who assumes brief or temporary supervision or care of a child, such as a one-time request to babysit or drive a child to a designated location at the request of a biological parent, does not impose a general and continuing obligation between the adult and the child to trigger the requisite duty of care to charge abuse or neglect under Title 9.

Defendant was sued by his former employer, a foreign corporation, and moved to quash two sets of subpoenas duces tecum and ad testificandum served on defendant's current employer, an out-of-state corporation, in New York and California. Defendant argued the discovery sought was not relevant, Rule 4:10-2(a), or otherwise burdensome or sought for annoyance or embarrassment. R. 4:10-3. Defendant alternatively sought a protective order. Plaintiff opposed the motion, arguing the court lacked jurisdiction to rule on the motion to quash.

The trial judge denied the motions without prejudice, reasoning she lacked jurisdiction under the Uniform Interstate Depositions and Discovery Act (UIDDA), as adopted in New Jersey by Rule 4:11-5(c). However, while defendant's motion for leave to appeal was pending, the judge supplemented her statement of reasons, clarifying that she did not lack jurisdiction to reach the merits of defendant's motion, but rather, that she lacked jurisdiction to compel out-of-state witnesses to appear for the depositions. See R. 4:11-5 ("A deposition for use in an action in this state . . . may be taken outside this state .. . pursuant to a subpoena issued to the person to be deposed in accordance with Rule 4:14-7 and in accordance with the procedures authorized by the foreign state . . . .").

The court affirmed the orders as modified, holding that a New Jersey court always has jurisdiction to decide the merits of a discovery dispute between parties to the litigation, and that the UIDDA and the express language of Rule 4:11-5 do not compel a contrary result.

Business partners entered into two separate settlement agreements to resolve disputes arising from the dissolution of their jointly-owned companies. The first agreement provided for binding arbitration of all disputes before a three-person arbitration panel, one of whom had served as the parties' corporate counsel and was designated as the neutral arbitrator on the three-person panel. In the event he withdrew or was dismissed from the panel by one of the parties, the agreement specified a mechanism for the selection of his replacement.

The second agreement provided for the resolution of disputes pertaining to the collection of accounts receivable from third-party debtors only, and designated corporate counsel as the sole final decision maker. Unlike the first agreement entered two years earlier, the second agreement made no mention of arbitration and provided no mechanism for the replacement of corporate counsel in the event he became unavailable.

When corporate counsel resigned his role as final decision maker under the second agreement, and the parties were unable to agree on a replacement, plaintiff filed an order to show cause and verified complaint, seeking to compel the appointment of a replacement. The court affirmed the Chancery Division's decision that, based upon the doctrines of impossibility and frustration of purpose, corporate counsel's unavailability rendered the second agreement void. Further, because there was no mention of arbitration in the second agreement, it was not an arbitration agreement governed by the New Jersey Uniform Arbitration Act, N.J.S.A. 2A:23B-1 to -32.