An enjoyable sojourn in Atlantic City for the New Jersey State Bar Association Annual Meeting and Convention delayed this post. I had the privilege of being part of a panel on “Effective Oral Argument in Appellate and Trial Courts,” which featured Justice Albin, Judge Shwartz of the Thgird Circuit, Judge Fisher of the Appellate Division, and Judge Williams of the District of New Jersey, which was great fun for the panelists and well-received by the overflow crowd of attendees. But now, on to summaries of this week’s published opinions (two other decisions this week were already discussed here):
State v. Bell, ___ N.J. ___ (2022). This was the week’s only Supreme Court opinion. In a unanimous opinion authored by Judge Fuentes, the Court held that N.J.S.A. 2C:11-5.1, which criminalizes the act of leaving the scene of an accident resulting “in the death of another person,” constitutes one offense no matter how many people died as a result of a defendant’s conduct. That opinion affirmed the decision of the Appellate Division, which had reversed a Law Division ruling that had found that each victim’s death constituted grounds for a separate offense.
McVey v. Atlanticare Medical System, Inc., ___ N.J. Super. ___ (App. Div. 2022). Issued today, this opinion by Judge Mawla, which applied de novo review, upheld a Law Division grant of summary judgment to the defense in this wrongful termination case. Plaintiff, a Corporate Director of defendant, was terminated because she posted on her Facebook page (on which her title with defendant was “prominently stated) in the wake of the murder of George Floyd statements that the phrase “Black Lives Matter” was “racist,” that the Black Lives Matter movement “causes segregation,” and that Black citizens were “killing themselves.” Defendant had a social media policy that told employees that, when posting, one should “not be afraid to be yourself, but do so respectfully,” and to eschew “ethnic slurs, personal insults …,” while giving “proper consideration of privacy and of topics that may be considered objectionable or inflammatory—such as politics and religion. . . .” The policy also told employees that “[w]hen you identify yourself publicly as being employed by/and or affiliated with AtlantiCare, ensure your profile and related content is consistent with how you wish to present yourself with colleagues and clients.”
Plaintiff contended that her termination violated the free speech guarantees of the United States and New Jersey Constitutions, but the Law Division disagreed and the Appellate Division affirmed. Judge Mawla noted that there were “no New Jersey cases directly on point.” But he cited many cases elsewhere that supported a ruling for the defense, as had the Law Division, and plaintiff did not cite “any contrary authority.”
C.E. v. Elizabeth Public School District, ___ N.J. Super. ___ (App. Div. 2022). In another opinion by Judge Mawla, the Appellate Division affirmed a decision in favor of the plaintiff requestors in an Open Public Records Act case. Plaintiffs successfully obtained in the Law Division copies of settlements between the defendant District in a particular type of case in the Office of Administrative Law, which made plaintiffs prevailing parties entitled to attorneys’ fees under the statute. The Appellate Division upheld the Law Division’s merits ruling for plaintiffs and its award of attorneys’ fees.
Knightbrook Ins. Co. v. Tandazo-Calopino, ___ N.J. Super. ___ (App. Div. 2022). When an insured does not cooperate with an insurer’s investigation of a claim, the insurer may disclaim coverage. But the insurer may do so only if the insured’s non-cooperation produced “appreciable prejudice” to the insurer’s rights. In this opinion by Judge Mayer, the Appellate Division reversed a summary judgment for Knightbrook that had been based on its insured’s failure to cooperate. The panel found no “appreciable prejudice” in the circumstances.
Hoover v. Wetzler, ___ N.J. Super. ___ (App. Div. 2022). This was a nursing malpractice case. The Law Division dismissed plaintiff’s claims for failure to provide an Affidavit of Merit. On appeal, the Appellate Division reversed in an opinion by Judge Mitterhoff. The panel ruled that the Affidavit of Merit statute was limited to physicians and thus did not apply to the defendant nurse. The decision resulted from de novo review of the statutory interpretation issue presented.