Recent Case Summary Reports On Matters Involving Insurance Coverage

In Skeete v. Dorvius, decided by our Supreme Court on June 10, 2005, the Court held that a step-down clause for UIM coverage in an automobile policy was
unenforceable. Specifically, the reduction in UIM coverage for passengers in the policy was buried in approximately two hundred pages of materials.

In this case, Shedrack Skeete was a passenger in a vehicle being driven by Queenie Thomas when the vehicle was struck by defendant Chaisner Dorvius. Skeete was not entitled to any other UIM coverage because he did not own a vehicle nor was he a member of a household with insurance coverage. As a result, he brought a UIM claim against the host vehicle’s policy with $100,000 UIM policy limits.

In 1999, Prudential changed Queenie Thomas’ policy. Specifically, Ms. Thomas
received notice of a step-down clause in two packages of material from Prudential totaling over two hundred pages. The amended declaration page listed coverage for UIM benefits for $100,000 per person with no notation about the step-down clause in coverage.

Insurance Coverage Bulletin.pdf

Verbal Threshold Defeats Lawsuits Once Again

Involved in a motor vehicle accident and governed by the verbal threshold, plaintiff, Ortenzio, undergoes electromyography demonstrating right C5 and C6
radiculopathies and bilateral L5 and S1 radiculopathies. A cervical MRI reveals disc bulging at C4-5 through C6-7, but no herniation. An MRI of plaintiff ‘s jaw shows hypermobile condyle with retro-discal inflammation and internal derangement.

Plaintiff, Wachala, also involved in a motor vehicle accident and governed by the verbal threshold, has traumatically displaced discs of the cervical spine at C6-7; traumatically displaced discs of the lumbar spine at L2-3, L3-4; L5-S1; radiculopathy, bilateral carpal tunnel syndrome, thoracic sprain and strain,
cervical sprain and strain, lumbar sprain and strain, myofascial pain syndrome, traumatic cephalgia and post-traumatic stress disorder. A lumbar MRI shows L2-3, L3-4 and L4-5 disc thinning and disc bulging, but no extrusions or herniations. A cervical MRI reveals disc bulging at C6-7, but with no herniations.

Does it not appear that both plaintiffs have the permanent injuries to overcome the verbal threshold?

Verbal Threshold Defeats Lawsuits Once Again.pdf

What’s So Special About A Special Employer

When an accident occurs on a construction site, the injured party typically sues
the owner of the property, the general contractor and the various subcontractors. There is a wellestablished, yet under utilized doctrine of law which, under the right circumstances, provides the same immunity from liability to
a general contractor or subcontractor as that provided to the plaintiff ‘s employer under the Workers Compensation Bar. The New Jersey Special Employer Doctrine provides immunity under the Workers Compensation Bar for qualified parties, regardless of who actually paid the employee’s salary and Workers Compensation benefits.*

1.New Jersey’s Special Employer Doctrine In determining whether a general contractor or a subcontractor can be considered a special employer, the court must look at the following factors:

a. the employee has made a contract of hire, express or implied, with the special
employer;

b. the work being done is essentially that of the special employer;

c. the special employer has the right to control the details of the work;

d. the special employer pays the employee;

e. the special employer can hire or fire the employee.

Blessing v. T Shriver and Co. 94 NJSuper 426, (App.Div. 1967); Kelly v. Geriatric and Medical Services Inc. 287 NJSuper 567 (App Div. 1996); 1996); Gore v Hepworth 316 NJSuper 234 (App.Div. 1998); Marino v Industrial Crating Co. 358 F3rd 241 (2004); Volb v. G.E. Capital Corp. 139 NJ 110; Murin v. Frapual Construction Co. 240 NJSuper 600 (App.Div. 1990); Antheunisse v. Tiffany & Co. 229 NJSuper 399 (1988).

What’s so Special about a Special Employer.pdf

The Art of Asset Protection

The average individual spends most of his adult life working to maintain or improve the lifestyle of his family and loved ones. Many have the foresight to create and follow strategic plans which maximize economic return on their investment of time, energy and effort. Frequently, these same individuals have the foresight to retain accountants and/or tax attorneys to minimize the amount of federal and state taxes paid annually or upon their death.

Unfortunately, few of these individuals devote any meaningful resources to
protecting these assets which they have worked so hard to enlarge. Sure, most obtain the requisite insurance to protect hard assets from fire, flood or other catastrophe. Many even obtain general liability insurance with the expectation that this will protect them from future claims by individuals injured on their residential or commercial property.

Far too few take the next step and incorporate in their business plan any
meaningful level of asset protection. In today’s litigious society, this failure can
quickly eradicate a lifetime of business and personal successes. Irrespective of the industry or profession, there exists an everpresent risk that someone will successfully convince a jury that these assets should be liquidated to compensate someone for their alleged physical or other loss.

Art of Asset Protection.pdf

Commercial Landowner Liability Extended To A Street Sigh

Prior to February 9, 2004, a commercial property owner generally was able
to escape liability if a public street sign located upon the owner’s sidewalk or curb was missing or obstructed or down since the sign was a matter outside
of the landlord’s control. However, the New Jersey Supreme Court in Monaco v. Hartz Mountain Corporation, decided on the above date, has ruled otherwise.

The issue in this case centered upon the liability of a commercial landowner where a traffic sign, situated on its sidewalk, became dislodged and caused injury to the landowner’s invitee.

Both the Trial Court and the Appellate Division ruled in favor of the commercial
landowner, holding that there was no “legal” duty with respect to the sign that
was owned and installed by the municipality and over which the landowner
had no control.

Commercial Landowner Liaility Extended to a Street Sign.pdf

Important Warnings with Respect to Property Held as Tenancy by the Entireties

Several states, including Florida and Texas, have statutory laws which prevent creditors from seizing real property held by, among others, married individuals under defined circumstances. These states explicitly make property held by Florida or Texas residents as a primary resident exempt from execution, levy and sale by a creditor.

New Jersey protects real property held by spouses that is deemed to be held as
tenancies by the entireties from the reach of one spouse’s creditors. This is designed to provide protection for the surviving spouse. Ten Eyck v. Walsh, 139 N.J. Eq. 533 (Prerog. Ct. 1947); See Also Gery v. Gery, 113 N.J. Eq. 59 (E. & A. 1933).

Each spouse is deemed to have a right of survivorship which entitles him or her to obtain the property by operation of law upon the death of the other spouse. If a creditor of one spouse obtains a judgment against the one spouse, he can execute and levy upon the interest of this spouse in the property but he cannot terminate the right of survivorship in the other spouse and force the sale or partition of the property. See Newman v. Chase, 70 N.J. 254 (1976). The creditor would have to wait for the other spouse to die before he could force the partition of the property. If the other spouse, who is not indebted to the creditor, outlives the spouse who has a judgment against him, then the creditor would lose all
interest in the property.

Important Warnings (EB).pdf

Important Warnings with Respect to Property Held as Tenancy by the Entireties

Several states, including Florida and Texas, have statutory laws which prevent creditors from seizing real property held by, among others, married individuals under defined circumstances. These states explicitly make property held by Florida or Texas residents as a primary resident exempt from execution, levy and sale by a creditor.

New Jersey protects real property held by spouses that is deemed to be held as tenancies by the entireties from the reach of one spouse’s creditors. This is designed to provide protection for the surviving spouse. Ten Eyck v. Walsh, 139 N.J. Eq. 533 (Prerog. Ct. 1947); See Also Gery v. Gery, 113 N.J. Eq. 59 (E. & A. 1933).

Each spouse is deemed to have a right of survivorship which entitles him or her to obtain the property by operation of law upon the death of the other spouse. If a creditor of one spouse obtains a judgment against the one spouse, he can execute and levy upon the interest of this spouse in the property but he cannot terminate the right of survivorship in the other spouse and force the sale or partition of the property. See Newman v. Chase, 70 N.J. 254 (1976). The creditor would have to wait for the other spouse to die before he could force the partition of the property. If the other spouse, who is not indebted to the creditor, outlives the spouse who has a judgment against him, then the creditor would lose all
interest in the property.

Important Warnings with Respect to Property.pdf

Jobs & Growth Tax Relief Reconciliation Act Of 2003

On Wednesday, May 28, 2003, President Bush signed the Jobs & Growth Tax Relief Reconciliation Act of 2003 into law. It is currently estimated that this legislation will result in three hundred fifty billion dollars in tax relief. Many of these provisions are retroactive to May 6, 2003.

Here is a rundown of the major provisions of the legislation.

Accelerated tax relief for married couples The 2001 tax legislation promised relief from the marriage penalty, which taxes most dualincome couples at higher rates than if they were unmarried and filing as singles. The relief, however, was not scheduled to apply for most taxpayers until 2005.

The new tax act accelerates this relief. The standard deduction for married couples will be raised from the current $7,950 to $9,500 – twice the standard deduction for single taxpayers. Taxpayers who itemize deductions will not enjoy any benefits, but the majority of couples who take the standard deduction will save $155.

Jobs & Growth Tax Relief Reconciliation Act of 2003 (RobS).pdf

Sick Leave Abuse Policy Found Not To Violate Fmla

Most employers recognize the challenges presented in managing a workforce on a day-to-day basis. Those challenges are compounded for employers employing more than 50 people who are subject to the
provisions of the Family Medical Leave Act (FMLA). This Act, in essence, provides eligible employees of covered employers with the absolute right to take up to 12 weeks of unpaid leave for their own serious
health condition, for the birth or adoption of a child, or to care for an immediate family member with a serious health condition.

The purpose behind the FMLA is clearly laudatory. It addresses the Hobson’s choice formerly facing employees between dealing with their own illness, the illness of a close family member or the birth or adoption of a child, and the need to continue to provide an income stream for their family. In fact, in the introductory comments to the FMLA, Congress points out that the purpose of the FMLA is to “balance the demands of the workplace with the needs of families, to promote the stability and economic security of families and to promote national interest in preserving family integrity.”

Sick Leave Abuse Police Not to Violate FMLA.pdf

Appellate Division Speaks Again

On November 18, 2003, the Appellate Division of the New Jersey Superior
Court reversed a Trial Court decision on the issue of whether survival act and
wrongful death act claims trigger a single policy limit or twice that policy limit. Anthony Galante v. Michael A. May, et al v. Liberty Mutual Insurance Company,
Superior Court of New Jersey, Appellate Division, Docket No: A 2248 02T5

The Trial Judge ruled that where the applicable insurance policy limits were $100,000.00 per person and $300,000.00 per accident, the sum of $200,000.00 would be available, $100,000.00 for the survival act claim and $100,000.00 for the wrongful death act claim.

However, the Appellate Division disagreed and construed the Liberty Mutual Insurance policy language on its face as requiring a single $100,000.00 limit for all claims under both acts.

Appellate Division Speaks Again.pdf