Monday, July 30, 2007

State v. Michelle L. Elders

7-30-07 (A-42-06)

The “reasonable and articulable suspicion” standard of State v.
Carty, 174 N.J. 351 (2002), which governs consent searches of
cars that are validly stopped applies equally to disabled
vehicles on the State’s roadways. In this case, the Court
concludes that there was sufficient credible evidence in the
record to support the trial judge’s findings that the troopers
engaged in an unconstitutional investigatory detention and

Monday, July 23, 2007

Commercial Insurance Company of Newark v. Mary Steiger

07-20-07 A-1314-05T1

Decedent perished in a one-car collision. His Estate sued
the vehicle's manufacturer, alleging the products liability
theory that the death occurred because the vehicle was not
"crash worthy." After the products liability suit was settled,
the Estate filed a UM claim, alleging that the accident was
caused by a "phantom" vehicle. UM insurer filed a declaratory
judgment action to preclude the UM claim on several grounds.

We hold that the Estate is not barred from pursuing a UM
claim based on the doctrines of judicial estoppel, which applies
when a party has convinced a court to accept its position. The
doctrine does not apply here because a settlement does not imply
endorsement of a party's position by the court.

We also hold that the settlement of the products liability
claim without the consent of the UM insurer does not bar the UM
claim because the products liability defendant is neither an
uninsured motorist nor the owner of an uninsured vehicle.

Lastly, we hold that, in order to avoid a double recovery,
the UM insurer is entitled to a credit for the amount of the
products liability settlement.

Bogey's Trucking & Paving, Inc. v, Indian Harbor Insurance Company

07-19-07 A-2529-05T3

We consider the automobile exclusion in a CGL policy and
conclude that the business's auto insurer, not the CGL insurer,
owed a duty to defend and indemnify. We also determine that a
passenger in the insured dump truck, who left that truck to
direct its driver and was hit by the driver of an insured car
was "occupying" the dump truck and is entitled to UM coverage.

State v. Tammy Buczkowski

07-18-07 A-4671-05T1

We apply the Supreme Court's dictum in State v. Fisher, 180
N.J. 462, 474 (2004), that N.J.S.A. 39:5-3a requires service of
process within thirty days from the date of the alleged offense
in most instances of charged motor vehicle violations. We,
therefore, affirm the Law Division's dismissal of a charge of
reckless driving, N.J.S.A. 39:4-96, as untimely. We also apply
the doctrine requiring "[t]he government [to] 'turn square
corners' in its dealings with the public."

Monday, July 09, 2007

Mohammad F. Ahammed v. Jeffrey P. Logandro

06-27-07 A-4993-05T1

This is an automobile accident personal injury negligence
case. Plaintiff and defendant were both pizza delivery drivers
engaged in the course of their employment when their vehicles
collided. Defendant asserted the bar of the Workers
Compensation Act (Act) as an affirmative defense in his answer
to plaintiff's complaint. Plaintiff's counsels' actions during
the course of the litigation lulled defense counsel into
mistakenly believing that the fellow-servant rule was not a
viable defense to plaintiff's cause of action. After belatedly
becoming informed of the viability of the defense, defendant one
week prior to the scheduled trial date, asserted the defense as
a bar to plaintiff's complaint. We found that equitable
principles and the strong public policy underpinnings of the
fellow-servant provision supported the trial judge's finding
that defendant did not waive his workers compensation defense by
his late assertion of the defense.

Leslie Conrad v. Michelle & John, Inc., d/b/a Nipper's Pub

06-19-07 A-1131-05T5

This appeal concerns the propriety of the trial court's
order dismissing with prejudice a dram shop cause of action, as
a sanction for plaintiff's failure to produce her expert at a
court-ordered N.J.R.E. 104 hearing. The trial court also
granted defendant's summary judgment motion, finding that there
were no material facts in dispute, thus entitling defendant to a
judgment in its favor as a matter of law.

We reversed. We held that, absent a bona fide and timely
in limine application by defendant seeking to bar plaintiff's
expert testimony, the trial court had no basis to order
plaintiff's expert to respond to an N.J.R.E. 104 hearing to
determine the scientific validity of his opinions. The trial
court also erred in imposing the ultimate sanction of dismissal
with prejudice, before first exhausting lesser sanctions.
Finally, we concluded that there are sufficient material issues
of fact in dispute, giving plaintiff the right to present her
case to a jury. An eyewitness's recantation of a crucial part
of his testimony presents a fundamental jury issue.

Robert M. Alpert v. Sharon Harrington

06-26-07 A-5686-05T3

An applicant for a driver's license cannot obtain an
exemption from the requirement of submission of a social
security number with the application by simply showing that he
tendered an "Affidavit of Revocation and Rescission" of his
social security registration to the Social Security

Progressive Group v. Luz Mirian Hurtado

06-14-07 A-4362-05T1
Plaintiff instituted this declaratory action seeking to
have its policy declared automatically terminated as of June 1,
2002, because the owner of the insured vehicle allegedly
transferred legal title to another individual on that date.
Although the motion judge likely erred by concluding that there
was no valid transfer of legal title because the assignment of
the certificate of title was not filed with the Division of
Motor Vehicles, we affirm on different grounds. We held that
the owner's failure to strictly comply with the Motor Vehicle
Certificate of Ownership Law by not providing an odometer
reading, as required by N.J.A.C. 13:21-5.9(a), rendered the
purported assignment of the certificate of title incomplete and
thus did not legally serve to transfer title. As a result,
plaintiff's policy was not automatically terminated and coverage
remained with plaintiff.