Badiali v. New Jersey Manufacturer’s Insurance Group, ___ N.J. ___ (2015).  [Disclosure:  My firm, Lite DePalma Greenberg, LLC, represents New Jersey Manufacturers Insurance Company in certain litigation, but the firm had no involvement in this case].  When an insurer wrongfully denies an insured’s claim, the insured can sue for bad faith denial.  In order to do so successfully, however, the insured must show that “no debatable reasons existed for denial of the benefits.”  Simple negligence or failure to settle a debatable claim does not constitute bad faith.  As the Supreme Court said in Pickett v. Lloyd’s, 131 N.J. 457, 473 (1993), “a claimant who could not have established as a matter of law a right to summary judgment on the substantive claim would not be entitled to assert a claim for an insurer’s bad faith refusal to pay the claim.” read more

State v. Cherry Hilll Mitsubishi, Inc., ___ N.J. Super. ___ (App. Div. 2015).  The State brought a summary action against the defendant car dealers, alleging that those dealers had been encroaching on a portion of a state highway right of way.  Defendants counterclaimed for money damages and injunctive relief.  Their damage theories were that the State had violated the Civil Rights Act, 42 U.S.C. §1983, and that the State had been unjustly enriched because the dealerships had maintained the area on which they encroached.  The State moved to dismiss the counterclaim for failure to state a claim, relying on qualified immunity.  The Law Division denied that motion.  The Appellate Division granted the State’s motion for leave to appeal, and today issued a decision by Judge Alvarez that reversed the ruling below and dismissed the counterclaim. read more

Carlyle Investment Management LLC v. Moonmouth Company SA, ___ F.3d ___ (3d Cir. 2015).  Parties can, and often do, include forum selection clauses in their contracts.  Such clauses are frequently found to be enforceable.  But can such clauses by enforced by non-parties to the contract?  And can they be applied against non-parties to the agreement?  Those were the key issues in today’s decision of the Third Circuit, written by Judge Roth.  She answered both questions in the affirmative, upholding a decision by the United States District Court for the District of Delaware. read more

Fox v. Lincoln Financial Group, ___ N.J. Super. ___ (App. Div. 2015).  A man had a life insurance policy on which he designated his sister as beneficiary.  He then married, and allegedly promised his new wife that he would name her as the beneficiary instead.  The man then died, without having changed the beneficiary.  His wife filed suit against his sister and the insurance company, Lincoln.  Plaintiff contended that where an insured designates someone as a beneficiary of life insurance and then marries, “there should be a presumption that [the insured] intended to revoke that [earlier policy] designation.”  Plaintiff conceded, however, that no New Jersey case supported that argument.  The sister moved to dismiss for failure to state a claim and plaintiff cross-moved for summary judgment.  The Chancery Division granted the sister’s motion and denied that of plaintiff.  Plaintiff appealed, but the Appellate Division affirmed in an opinion by Judge Carroll, issued today, that rejected plaintiff’s “broad public policy argument.” read more

Moraes v. Wesler, ___ N.J. Super. ___ (App.  Div. 2015).  Plaintiff was injured in a car accident in November 2011, for which she filed suit in 2012.  Then, in 2013, she was in another auto accident in which she again sustained injuries, including aggravation of the injuries from the first accident.  She filed suit in that case in January 2014 and then sought to consolidate the two cases.  That motion was unopposed.  The Law Division judge who heard the motion acknowledged that there were “common issues of injury.”  Despite that, the court denied consolidation and then denied a motion for reconsideration on a record that included expert medical evidence.  Plaintiff sought leave to appeal, which the Appellate Division granted.  Today, in an opinion by Judge Nugent, the Appellate Division reversed and ordered that the two cases be consolidated. read more

The Supreme Court announced today that it has granted certification to review E&J Equities, LLC v. Franklin Tp. Bd. of Adj., 437 N.J. Super. 490 (App. Div. 2014).  The question presented, as phrased by the Supreme Court Clerk’s Office, is “Was this municipal ordinance banning digital billboards constitutional and was the municipality’s denial of plaintiff’s application for a variance for such a billboard valid?” read more

On this date in 1973, the Supreme Court decided Lopez v. Swyer, 62 N.J. 267 (1973).  That opinion, written by Justice Mountain for a unanimous Court, applied and extended the “discovery rule,” under which “in an appropriate case a cause of action will be held not to accrue until the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim.”  The case involved an allegedly gross incident of medical malpractice in connection with x-ray treatments that followed a radical mastectomy.  Maria Lopez knew that she was injured but allegedly did not find out until years later that her injury might have been the fault of the doctor who administered the radiation.  She allegedly learned of the potential malpractice when she overheard a doctor who had been examining her say to other doctors “And there you see, gentlement, what happens when the radiologist puts a patient on the table and goes out and has a cup of coffee.” read more

Electronic filing in the Appellate Division was heralded several years ago, and the rollout began in June 2013.  But the process has been slow to expand.  This week, however, a notice to the bar was issued that contains the latest schedule for the gradual expansion of electronic filing in the Appellate Division.  Under that schedule, by “Late 2015/Early 2016,” any appeal or motion, submitted by any attorney, will be electronic.  The notice to the bar also includes a January 21, 2015 Order of the Supreme Court that relaxes certain rules and contains some details as to how the process will work. read more