A Busy Day for the Appellate Division

On most days, the Appellate Division issues a significant number of opinions. But on many of those days, there are no published opinions among them, or only one or two such opinions. Yesterday, however, the Appellate Division issued four published opinions, more than on any other day in recent memory. Here are summaries of those decisions:

Branch v. Cream-O-Land Dairy, ___ N.J. Super. ___ (App. Div. 2019). In this class action case under the Wage and Hour Law, N.J.S.A. 34:11-56a to -56a38, the Appellate Division reversed a summary judgment that the Law Division had granted to the defendant employer. In an opinion by Judge Mitterhoff, the court held that determinations by the Department of Labor in cases brought by individual employees did not entitle defendant to the statute’s “good faith defense,” on which the Law Division based its ruling. That was because those determinations were subject to further administrative appeal and thus did constitute an “administrative practice or enforcement policy” that could support the good faith defense.

New Jersey Division of Child Protection and Permanency v. M.M., ___ N.J. Super. ___ (App. Div. 2019). In another decision by the same three-judge panel, Judge Sabatino wrote the opinion in this termination of parental rights matter. Six children were removed from their parents’ care due to alleged abuse and neglect. The Family Part approved a plan under which three of those children would be adopted by their maternal grandmother, and the other three would be adopted by a maternal great aunt. That plan was endorsed by the Division and the Law Guardian for the children. On the parents’ appeal, the Appellate Division held that the Division had met its burden of proof as regarded the first two prongs of the termination statute, N.J.S.A. 30:4C-15.1(a), but remanded for further proceedings as to the final two prongs. The panel sought more clarity about issues surrounding a potential alternative to adoption, Kinship Legal Guardianship.

C.H. v. Rahway Bd. of Educ., ___ N.J. Super. ___ (App. Div. 2019). Judge Gilson wrote the opinion in this case, which arose out of a junior high school student-faculty fundraising basketball game in which plaintiff, then an eighth-grader, was injured when she and a teacher went up for a rebound. Plaintiff sued the teacher, the Board, and others for her injuries, but the Law Division granted summary judgment to defendants. The court found that there was no recklessness or intentional conduct by the teacher, and no negligent supervision, since the game had a referee, and approximately five non-playing teachers were present to provide supervision. Applying de novo review, the Appellate Division upheld that ruling.

Endo Surgi Center v. NJM Ins. Group, ___ N.J. Super. ___ (App. Div. 2019). Finally, in the shortest of this group of published opinions, Judge Suter wrote for the court. An insured of defendant who was injured in an auto accident received a lumbar discography at the facility of plaintiff, an ambulatory surgical center. Plaintiff sought reimbursement from NJM for that procedure, but NJM denied payment because the personal injury protection (“PIP”) medical fee schedule did not provide for reimbursement for that procedure. Plaintiff sued and won summary judgment in the Law Division. But the Appellate Division reversed,. The panel ruled that the case was controlled by N.J. Mfrs. Ins. Co. v. Specialty Surgical Ctr. of N. Brunswick, ___ N.J. Super. ___ (App. Div. 2019)., which had held that “the PIP medical fee schedule [did] not provide for payment to an ambulatory surgical center (ASC) for procedures not listed as reimbursable when performed at an ASC.”