The Appellate Division issued four published opinions this week (two on Monday and two yesterday). Here are summaries of those rulings:
Wilhelm v. Ryder Logistics & Transportation Solutions, ___ N.J. Super. ___ (App. Div. 2021). This case actually involved four appeals that were argued back to back. Judge Currier’s opinion artfully summarized the issue and the result in its very first paragraph: “In these four back-to-back appeals, we consider whether N.J.S.A. 34:15-95.5 requires a triennial redetermination of petitioners’ combined awards of state workers’ compensation disability benefits and social security disability benefits (SSD). Because our Legislature did not include a cost-of-living increase in the statute, and 42 U.S.C. ยง 424a(d) explicitly states a triennial redetermination is not applicable in states that calculate their benefits in the manner New Jersey does, we affirm. Petitioners are not entitled to a redetermination of benefits.”
In re N.J.A.C. 17:2-6.5, ___ N.J. Super. ___ (App. Div. 2021). The issue in this case revolved around the action of the Public Employees’ Retirement System to change the definition of “willful negligence” in the subject regulation. Judge Ostrer’s opinion explained that change as follows:
“For over fifty years, the Public Employees’ Retirement System (PERS) Board defined ‘[w]illful negligence’ as ‘1.[a] [d]eliberate act or deliberate failure to act; or 2. [s]uch conduct as evidences reckless indifference to safety; or 3. [i]ntoxication, operating as the proximate cause of injury.’ In 2017, the Board amended the first alternative to read: ‘Deliberate act or deliberate failure to act that reflects an intentional or purposeful . . . deviation from the standard of care exercised by a reasonable person in similar circumstances.'”
The New Jersey Education Association attacked the revised regulation as having extended the governing statute beyond its intended meaning, “thereby disqualif[ying] public employees from receiving accidental disability benefits who are properly qualified for such benefits under the statute.” The Appellate Division agreed, voiding the amended definition because it “strays from the Legislature’s intent, and because the Board’s own reasoning supporting its rule is arbitrary and self-contradictory.”
Judge Ostrer rightly recognized that administrative regulations are presumed valid, and are reviewed “narrowly and deferentially.” But he observed that a “newly minted agency interpretation that “has not previously been subjected to judicial scrutiny or time-tested agency interpretation” receives “less deference.” As he went on to explain, though the governing statute did not define “willful negligence” or ‘deliberate act or deliberate failure to act,” related statutes and regulations that did offer definitions furnished a guide. So did an opinion of Nebraska’s intermediate appellate court. The panel thus invalidated the regulation.
State v. W.C., ___ N..J. Super. ___ (App. Div. 2021). Judge Vernoia’s opinion in this case addressed the action of the State in seeking forfeiture of defendant’s firearms, which were initially seized pursuant to a temporary domestic violence restraining order entered in response to a complaint filed his wife under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq. The Family Part denied the State’s motion. The State’s argument on appeal was that “defendant was disqualified from owning or possessing weapons or holding a firearms purchaser identification card under N.J.S.A. 2C:25-29(b) for two years following entry of a final restraining order on [his wife’s] complaint,” as result of which the State was entitled to forfeiture pursuant to N.J.S.A. 2C:25-21(d)(3).
Applying de novo review to the issue of statutory interpretation presented, Judge Vernoia observed that the forfeiture statute on which the State relied referred to a criminal complaint, not a domestic violence complaint as here. He cited a Supreme Court case to that effect. Moreover, the Family Part later determined that the final restraining order had been entered in error and vacated that restraining order.
Romero v. Gold Star Distribution, LLC, ___ N.J. Super. ___ (App. Div. 2021). Judge Firko wrote the opinion in this case under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (“CFA”), which affirmed in large part a final judgment by default and the Law Division’s decision not to vacate it on defendant’s motion to do so. The opinion is an excellent resource for the law applicable to default judgments and the circumstances under which such judgments will or will not be vacated.
The Appellate Division did, however, reverse a portion of the damage award made at the proof hearing. Besides awarding plaintiff lost wages and income, and trebling that as required by the CFA, the Law Division awarded and trebled damages for infliction of emotional distress. Judge Firko held that such damages were proper, but that it was improper to treble them. She also remanded for further consideration the issue of whether reputational damages, which the Law Division had awarded to plaintiff, a professional mixed martial arts athlete who ingested one of defendant’s dietary supplements believing that it did not contain any banned substances but who was then suspended when a urine sample tested positive for such a substance, were appropriate, and whether they constituted “ascertainable loss” under the CFA so as to justify trebling.