Making Up for Lost Time

Several days out of the office last week, and work on a large appellate brief, have left me well behind our appellate courts, who have produced a number of decisions in that interim.  To try to catch up, here are summaries of some of those rulings by the Appellate Division:

Leggette v. Government Employees Ins. Co., ___ N.J. Super. ___ (App. Div. 2017).  This opinion by Judge Lihotz addressed in detail the Deemer Statute, N.J.S.A. 17:28-1.4.  That statute “generally requires an insurer, authorized to do business in New Jersey, [to] provide PIP [personal injury protection] coverage for policies sold outside New Jersey, whenever the insured automobile is ‘used or operated’ in this state.”  On cross-motions for summary judgment, the Law Division ruled that the Deemer Statute did not apply to plaintiff’s Virginia insurance policy.  Judge Lihotz found the Deemer Statute ambiguous, but affirmed the decision below.

Jiwungkul v. Directior, Div. of Taxation, ___ N.J. Super. ___ (App. Div. 2017).  Plaintiff and his partner registered as domestic partners pursuant to the Domestic Partnership Act, N.J.S.A. 26:8A-2(d) (“DPA”).  They never entered into a civil union, and plaintiff’s partner died shortly before they were to marry.  Plaintiff sought a refund of inheritance tax paid on behalf of the partner’s estate.  The Tax Court denied that request, and the Appellate Division, speaking through Judge Espinosa, affirmed substantially for the reasons that the Tax Court gave.  Plaintiff argued that his right to equal protection had been violated, but the Appellate Division did not agree.  As New Jersey law regarding same-sex relationships evolved, the Legislature amended the DPA to apply certain tax benefits to registered domestic partners, but it did not do so as to the estate tax.  Since plaintiff and his partner had but did not exercise the options of civil union or marriage, statuses that would have made plaintiff eligible for the refund he sought, the panel declined to rewrite the DPA to give plaintiff that refund.

Haines v. Taft, ___ N.J. Super. ___ (App. Div. 2017).  In yet another statutory interpretation matters that attracted five amici curiae (three of whom were permitted to argue as well as brief), Judge O’Connor authored an opinion that addressed “whether N.J.S.A. 39:6A-12 precludes the recovery of medical expenses above those collectible or paid under an insured’s PIP provision in a standard automobile insurance policy, including medical expenses exceeding any elected PIP option allowed in a standard policy pursuant to N.J.S.A. 39:6A-4.3(e).”  Reversing the decisions below in these two consolidated cases under the de novo standard of review, the panel concluded that the statute did not preclude recovery of the medical expenses in question.

T.M.S. v. W.C.P., ___ N.J. Super. ___ (App. Div. 2017).  This ruling, involving the reinstatement of a final restraining order in a domestic violence case was Judge Mawla’s first opinion for the Appellate Division since his elevation.  The panel concluded that defendant’s right to due process had been violated because he was not afforded a proper opportunity to demonstrate that he was not properly served.  Judge Mawla noted that while factual findings of the Family Part are reviewed deferentially, this was a pure legal issue, as to which the de novo standard of review applied.  Under that standard, reversal was required.

Woodlands Community Association, Inc. v. Mitchell, ___ N.J. Super. ___ (App. Div. 2017).  This opinion was issued today, with Judge Currier writing for the panel.  The issue was “whether a lender’s assignee that takes possession of a condominium unit when the owner/mortgagor has defaulted on the loan, and thereafter winterizes the unit and changes the locks, is considered a ‘mortgagee in possession’ of that unit, responsible for the payment of condominium fees and assessments.”  The Law Division entered summary judgment holding that the assignee was a mortgagee in possession.  The Appellate Division, applying de novo review, reversed.

 

 

 

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  1. […] making up for lost time, a separate post was warranted to take note of three new grants of review by the Supreme Court.  […]

  2. […] opinion in Jiwungkul v. Director, Div. of Taxation, ___ N.J. Super. ___ (App. Div. 2017), discussed here, and Judge Fisher’s opinion in Matejek v. Watson, 449 N.J. Super. 179 (App. Div. 2017), for […]

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