Moran v. Board of Trustees, Police & Firemen’s Retirement System, ___ N.J. Super. ___ (App. Div. 2014).  This appeal was by a firefighter who sought an accidental disability retirement pension under N.J.S.A. 43:16A-7.  Here is the first paragraph of Judge Reisner’s opinion for the Appellate Division yesterday, minus the final sentence of that paragraph: read more

Hurwitz v. AHS Hospital Corp., ___ N.J. Super. ___ (App. Div. 2014).  The Healthcare Quality Improvement Act of 1986 (“HCQIA”), 42 U.S.C. §§11111-11112, creates an immunity from damages claims arising out of a “professional review action of a professional review body,” provided that the action was taken in the reasonable belief that it furthered quality healthcare, that the professional review body made a reasonable effort to obtain the facts of the matter, and that adequate notice and hearing procedures were afforded to the physician involved.  To defeat HCQIA immunity, a physician plaintiff must show, by a preponderance of the evidence, “that the defendant took action without a reasonable belief in initiating the action, failed to provide adequate notice and hearing procedures, or otherwise took action without a reasonable belief it was warranted by the facts after a reasonable investigation.”  A cognate New Jersey statute, N.J.S.A. 2A:84A-22.10, provides a similar immunity.  Federal courts have ruled that the HCQIA immunity is a question of law, to be decided by a judge “whenever the record in a particular case becomes sufficiently developed,” and that there is a need for strong “judicial deference to hospital decision-making.”  read more

As reported here, Judge Gibbons Whipple was previously elevated to the Appellate Division, to serve on Part G, for a term extending from September 15, 2014 through November 23, 2014.  Today, a November 21, 2014 Order from Chief Justice Rabner was published.  That Order states that Judge Gibbons Whipple is “temporarily assigned to the Superior Court, Appellate Division, Part G, effective November 24, 2014.” read more

Dispenziere v. Kushner Companies, ___ N.J. Super. ___ (App. Div. 2014).  In Atalese v. United States Legal Services Group, L.P., 219 N.J. 430 (2014), discussed here, the Supreme Court ruled that an arbitration clause that does not contain “clear and unambiguous language that the plaintiff is waiving her right to sue or go to court to secure relief” is not enforceable.  In today’s opinion, by Judge Carroll, the Appellate Division reversed a Law Division decision that had been issued before Atalese was decided.  The ruling applies Atalese in two respects that the Supreme Court did not address.  read more

Rutgers University Student Assembly v. Middlesex Cty. Bd. of Elections, ___ N.J. Super. ___ (App. Div. 2014).  Plaintiffs challenged the constitutionality of N.J.S.A. 19:31-6.3b, which, as Judge Haas described it in this opinion today, “requires all eligible persons to register to vote no later than twenty-one days prior to an election.”  Plaintiffs argued that, among other things, the development of a computerized Statewide Voter Registration System makes advance registration no longer necessary to protect the integrity of the election process, and that the advance registration requirement now violates the constitutional burden right to vote.  According to plaintiffs, only a same-day registration process would be constitutional. read more

L.T. v. F.M., ___ N.J. Super. ___ (App. Div. 2014).  This case began with plaintiff obtaining a final restraining order (“FRO”) against defendant in the Family Part because defendant had assaulted plaintiff on multiple occasions.  The FRO resulted from a three-day trial at which defendant, an attorney, was not represented by counsel and as to which no discovery was exchanged.  The judge who issued the FRO based that ruling on a February 27, 2008 assault.  The judge also found that two other alleged assaults, in April and August 2007, had occurred but could not determine whether a third alleged assault, in November 2007, had taken place.  Plaintiff stated that she also wished to sue defendant for damages arising out of the assaults, but the Family Part judge was not sure that that issue was ripe and reserved decision on plaintiff’s request to pursue a damage claim.  Defendant did not seek to appeal the interlocutory decision issuing the FRO against him. read more

Mortgage Grader, Inc. v. Ward & Olivo, LLP, ___ N.J. Super. ___ (App. Div. 2014).  In the legal malpractice context, a “tail” insurance policy is one that “provides insurance coverage for malpractice that occurs during the claims-made policy coverage period but is reported after the claims-made policy has lapsed.”  This involved a legal malpractice claim against the defendant LLP and its two named partners that was made after the firm had ceased practicing law and had begun winding up its affairs, and after the firm’s claims-made policy had expired.  Defendant Ward sought summary judgment on the grounds that he could not be liable for the alleged malpractice of his former partner, Olivo, under N.J.S.A. 42:1A-8c, which provides that a partner in an LLP is protected against from liability for the acts of another partner.  Alternatively, Ward argued that plaintiff had failed to follow the procedures of the Affidavit of Merit statute, N.J.S.A. 2A:53A-27, by serving Ward with an affidavit of merit.  Plaintiff responded that because the LLP had not purchased a “tail” policy, a violation of Rule 1:21-1C(a)(3), the LLP designation was to be stripped away, so that the entity would then become a general partnership.  In a general partnership, partners are liable for each other’s acts.  Plaintiff also asserted that it had substantially complied with the Affidavit of Merit statute by serving an affidavit of merit on Olivo and the LLP. read more

In an article in Tuesday’s New York Times, Adam Liptak reported that opponents of same-sex marriage are challenging the composition of Ninth Circuit panels that have heard cases involving gay rights.  The opponents assert that, against what they say are 441-1 odds, certain liberal judges have repeatedly been assigned to panels in such cases, while eighteen other judges of the Ninth Circuit have never sat on a panel in a gay rights appeal.  The article goes on to report that there are serious questions about the validity of the opponents’ challenge, and cites some scholarly articles about how Circuit Courts of Appeal assign judges to panels.  But the Times article provoked this question:  what are the odds of getting any particular Appellate Division judge on an appeal? read more