Powell, Kugelman & Postell, LLC

Powell, Kugelman & Postell Welcomes Alina A. Big to the Firm

Thu, 20 Jan 2022 14:25:00 GMT

Powell, Kugelman & Postell is pleased to announce the addition of Alina A. Big, Esq. as the newest attorney to join the firm. Alina is a savvy and resilient professional who initially trained in civil and common law in Romania five years ago. She then immigrated to the United States, with her dream of becoming an attorney licensed to practice law in the United States being fulfilled in December 2021. Alina joined Powell, Kugelman & Postell, LLC, in 2019 in her second year at Seton Hall University School of Law, as a law clerk and continued her employment with the firm after graduating from Seton Hall University School of Law in May 2021. Prior to attending law school in the United States, Alina received a Bachelor of Law (L.L.B.) from Romania in 2017. Alina was sworn into the New Jersey Bar in December and is expected to be sworn into the New York bar within the next several months. To further enhance her studies while attending law school, Alina simultaneously interned with the Honorable Robert J. Mega, J.S.C. of the Superior Court of the State of New Jersey, Union County, Civil Division, where she assisted the court with research and legal writing for the Complex Business Litigation Program. Assisting Judge Mega in various cases, including commercial disputes, has validated her pursuit of a career in business law. Alina thrives under pressure and is looking forward to walking up those courthouse steps to litigate cases. Alina was also a member of the Seton Hall Law Health Justice Clinic, Seton Hall Legislative Journal , and the Co-Chair of the Seton Hall Election Committee. As a Seton Hall Legislative Journal member, Alina authored an article that advocates for stringent federal regulation of biometric data in financial institutions.

We are excited to welcome Alina in her new role as an Associate Attorney, where she will handle insurance defense and coverage litigation, international business transactions, intellectual property matters, and commercial litigation and transactions.

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Should an insurance broker advise all members of an LLC to opt into a workers’ compensation policy? NJ Appellate Division says a jury must decide.

Mon, 02 Aug 2021 20:00:00 GMT

In Friedauer v. Purdy , the New Jersey Appellate Division recently decided that a jury must make the decision, and not the trial judge, as to whether an insurance agent’s duty to provide insurance advice extends to all of the members of a Limited Liability Company. The insurance agent, Daniel Purdy had been procuring insurance coverage for a family-owned landscaping business, Holmdel Nurseries for years. When the next generation became members of this LLC, Purdy did not advise the new members of an opt-in provision in the workers compensation policy in place, resulting in no coverage for those members. In this tragic case, thirty-six year old Christopher Friedauer was in the process of entering a snow-plow truck when he slipped on ice and hit his head on the pavement resulting in a fatal head injury. His family was not eligible for workers’ compensation death benefits and sued Purdy for malpractice.

Christopher and his brother Michael Friedauer were both long-time employees of Holmdel Nurseries working alongside their father Robert Friedauer and uncle Walter Friedauer. As employees, Christopher and Michael were covered for work-related injuries or death under the workers’ compensation policy; however, in 2012 the brothers obtained ownership in the company. Unlike employees, members of an LLC are not covered under the workers’ compensation policy unless they elect to opt in for coverage at an additional cost. All of the members of an LLC must opt in for such coverage for any member to be eligible for the benefits. The question of whether or not Daniel Purdy, the longtime insurance agent for Holmdel Nurseries, was professionally negligent in his failure to advise all members of the LLC to opt in or out of the workers’ compensation policy arose following the death of Christopher.

At the trial level, Purdy’s motions for involuntary dismissal and judgment were granted, taking the decision out of the jury’s hands. The court rejected the Plaintiff’s claim that an insurance broker’s duty extended beyond the LLC to its individual members. Purdy argued that he only owed a legal duty to the LLC to provide workers’ compensation coverage for employees; thereby, not to Christopher once he became a member. Robert Friedauer was aware that owners of an LLC needed to opt in for coverage, he consciously opted out in 2002 and continued to do so for over ten years including during the time period in which his sons obtained ownership, therefore the LLC was charged with knowledge through Robert. As a result, the judge found that Purdy met his duty to inform the LLC about workers’ compensation coverage.

Additionally, Purdy argued that the Plaintiff presented no medical evidence to establish the cause of death or whether or not it was work related. As a result of this lack of evidence, the Plaintiff failed to prove Christopher suffered a compensable injury under the Workers’ Compensation Act. The judge concluded that she could not reach the issue of whether the injury was a work-related compensable injury because there was no expert testimony or medical evidence of injury at the trial.

The Appellate Division disagreed, finding that the trial court erred in concluding that Purdy only owed a duty to the LLC and not the individual members. The Appellate Division further found that the Plaintiff should not held to the technical rules of evidence on the issue of compensability regarding the injury under the Workers’ Compensation Act.

On appeal, the court further noted that Purdy violated the workers’ compensation statute by failing to provide notice of the election of coverage in each workers’ compensation application and to provide the workers’ compensation election form. “N.J.S.A. 34:15-36 imposes a non-waivable duty on an insurance broker to advise new members of an LLC of the availability of workers’ compensation coverage and the right to elect to opt in for such coverage.” At the annual meeting in 2012, Purdy never notified the brothers of their right to elect workers’ compensation coverage as LLC members and failed to inform them they were no longer covered under the policy. Although Robert was aware of the fact that owners needed to opt in for coverage, he was unaware that each LLC member needed to opt in for there to be any coverage. He assumed his sons were still covered when they became members because they had coverage as employees. Purdy never notified the brothers of their right to elect worker’s compensation coverage and failed to inform them they were no longer covered despite the brothers expressing their desire to “make sure that they were protected” during a meeting with Purdy. The alleged violation of the workers’ compensation statute and agent’s testimony was sufficient to provide a prima facia case of negligence so that a jury was to decide this issue.

Furthermore, because this professional liability action resulted in the proverbial “trial within a trial” the relaxation of the evidence rules applied to this aspect of the case, therefore the Plaintiff should not be held to the technical rules of evidence on the issue of compensability under the Workers’ Compensation Act.

The NJ Appellate Division has left it up to a jury to decide whether or not an insurance agent has the professional responsibility to inform each member of an LLC of a worker’s compensation opt in clause. This case serves as a notice for all insurance brokers that it is prudent to communicate with all members of an LLC when procuring insurance for them, otherwise their fate may be left to six unknown strangers.

By Sophia Powell, Legal Intern.

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NJ Court Rules on EIFS and Continuous Damages Exclusions

Fri, 23 Jul 2021 15:49:00 GMT

In a recent opinion, the NJ Appellate Division decided that insurance providers’ EIFS and continuous and progressive damage exclusions are enforceable, despite being challenged by appeals. In American Properties v. Interstate Fire , Plaintiffs American Properties at Madison (APM) and First Speciality Insurance Company (FSIC) challenged a lower court’s ruling on the application of Exterior Insulation and Finish Systems (EIFS) exclusion and pre-existing damages exclusion. The appeals court affirmed the trial judge’s opinion that Crum & Forster Speciality Insurance Company (C&F) and Interstate Fire and Casualty Company (Interstate) were valid in their reasoning to deny coverage to APM on a construction defect case involving water infiltration.

American Properties at Madison had insurance policies with three separate insurance providers from 2005 to 2014. The policies went from C&F (2005-2008) to Interstate (2008-2010) to FSIC (2010-2014). The case traces back to a complaint filed by the Madison Condominium Association asserting that APM’s subcontractors were negligent in the construction of dwellings developed by APM. This negligence resulted in the EIFS causing damages by permitting water intrusion over time.

Interstate and C&F each argued that their policies barred coverage for APM under their EIFS exclusion and their continuous/progressive damage exclusion. The continuous and progressive damage exclusion applies to bar coverage as to water damage that occurred before the inception of an insurance policy. Interstate referenced a consultant report in their argument, citing that the damage at the buildings began to occur following the completion of construction between July 2005 and July 2006. Considering that Interstate’s first policy began in 2008, the damages were established well before the beginning of Interstate’s policy. APM also acknowledged in the underlying litigation that all damage began “before the inception of the 2007-2008 (C&F) policy.”

APM attempted to argue that the continuous-trigger theory of coverage applies in this case. The court under the circumstance found the continuous and progressive damage exclusion to apply.

At the trial level, the court granted C&F summary judgment finding that their three policies did not cover APM regarding the underlying litigation. The court reached its decision based on contract documents establishing that an EIFS system was installed at the site.

In the Appellate Division, APM argued that C&F did not present enough proof “of the presence of EIFS at the building.” They also asserted that C&F should have proven the presence of EIFS with expert testimony. However, the Appellate Division affirmed the lower court’s ruling, finding the motion judge relied on sufficient evidence in consulting reports, various work orders, and correspondence between APM’s council and the Condominium Association that specifically identify EIFS as the construction method used for the development of this property. A previous case on this matter also revealed that EIFS were present in all six of the condominium buildings.

Ultimately, the court held there was sufficient evidence of the use of EIFS during construction and sufficient proof of damages occurring prior to the commencement of the applicable policies to preclude coverage under the EIFS exclusion and continuous/progressive damage exclusion. Both of these exclusions are therefore valid and enforceable in the State of New Jersey when sufficient factual proofs are presented. The court ruled that C&F and Interstate had no duty to defend nor indemnify APM, for the claims asserted in the underlying matter.

Article written by Katherine Geraghty.

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NEW JERSEY SUPREME COURT RULES COMMERCIAL LANDOWNERS DO NOT HAVE A DUTY TO REMOVE AN ACCUMULATION OF SNOW AND ICE UNTIL THE CONCLUSION OF A STORM

Fri, 25 Jun 2021 14:50:00 GMT

The New Jersey Supreme Court has ruled in a case entitled Pareja v. Princeton Int’l Properties that commercial landowners do not have a duty to remove an accumulation of snow and ice until the conclusion of a storm, but unusual circumstances may give rise to a duty before then. There are two exceptions that could impose a duty: (1) if the owner’s conduct increases the risk, or (2) the danger is pre-existing.

In Pareja , the commercial landowner obtained summary judgment at the trial level when sued by a pedestrian who slipped on ice on a driveway apron. At the appellate level, the appellate court reversed and held there were issues of material fact as to whether the commercial owner had actual or constructive notice of the dangerous condition and whether it had acted reasonably. The New Jersey Supreme Court reversed the appellate court.

The relevant facts in Pareja were Plaintiff slipped on ice at a driveway apron after having parked across the street of his workplace. He crossed the street, was walking on the driveway apron and fell. “Temperatures that morning were below freezing, and, unable to see ice on the driveway apron due to the rain, [Plaintiff] stepped directly onto it, fell, and broke his hip.” According to weather reports, between 1:30 a.m. and 2:00 a.m., a wintry mix of light rain, freezing rain and sleet fell. Between 7:00 a.m. and 8:00 a.m., directly at the time of Plaintiff’s fall, “light rain and pockets of freezing rain were falling” and the temperature was about “thirty-two to thirty-three degrees.” “Snow cleared from an earlier storm was piled up along the edges of the sidewalk.”

The commercial property owner argued that the ongoing storm rule should preclude liability because it was a “commensense recognition that compelling landowners to try to prevent the accumulation of snow and ice on commercial sidewalks during the pendency of a winter weather event would be impractical and inefficient.” The New Jersey Defense Association, writing as a friend of the Court, argued that the rule adequately serves tort principles because, “while a storm is ongoing, pedestrians are on notice of dangerous conditions.” The Plaintiff and the New Jersey Association for Justice argued that the landowner has a duty and the ongoing storm rule would “encourage inaction by the landowner even in situations where such action was reasonable and feasible.”

The decision by the majority of the New Jersey Supreme Court (there was a dissent filed by two justices), detailed the history of New Jersey law for commercial owners and responsibility for sidewalks, particularly as to whether the owner was obligated to keep it clear of snow and ice. The Court stated that while cases “discuss the imposition of a duty on commercial landowners to remove snow and ice only after the cessation of the hazardous precipitation; none opine on the imposition of a duty before that point, which is the crux of this appeal.”

The Court held:

Applying our precedent to a situation where a storm is ongoing, we hold that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm. We find instead that the limiting principles established in our precedent warrant the adoption of the ongoing storm rule.

The Court held there was no unusual circumstance that would otherwise create a duty on the defendant landowner in the Pareja case.

According to the Court, given the divergent size, resources and ability of commercial landowners, the Court “decline[d] to impose a duty that cannot be adhered to by all commercial landowners.” The Court stated “absent unusual circumstances, a commercial landowner’s duty to remove snow and ice hazards arises not during the storm, but rather within a reasonable time after the storm.” According to the Court, it is unreasonable to remove an accumulation of snow and ice “while a storm is ongoing.” The Court then set forth the “unusual circumstances” that may give rise to a duty before then:

According to the Court, its decision does not preclude a jury from hearing questions of fact, “such as, but not limited to, when the storm concluded or whether the accumulation of snow or ice was from a previous storm.” The New Jersey Supreme Court stated it joins the list of ten states, and particularly New Jersey neighbors, Connecticut, Delaware, New York and Pennsylvania with similar weather that use the “ongoing storm rule.”

The dissent by Justice Albin and joined by Justice Pierre-Louis states that the majority repudiated the Court’s progressive tort law jurisprudence. The Dissent states “Never before has this Court held that a commercial landowner has no duty to exercise reasonable care to make safe its walkways until a reasonable time after rain, sleet, or snow stops falling.” The Dissent states that “[a]lthough snow removal would be impracticable during an ongoing blizzard, the same could not be said if there were an inch or two of snow and continuing light flurries, and the landowner could render the sidewalk safe with little effort or expense.”

Contact Powell, Kugelman & Postell if you require an attorney.

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Powell, Kugelman & Postell Welcomes Attorney Maureen LePochat

Thu, 11 Mar 2021 15:20:00 GMT

Powell, Kugelman & Postell is pleased to announce that Maureen LePochat has recently joined our team of insurance lawyers. Maureen is returning to New Jersey practice after working 14 years as a senior claims specialist for AIG, Medmarc Insurance and Sedgwick Claims, specializing in the handling of mass torts and other complex product, professional and general liability matters, having reviewed and prepared coverage position documents on a wide variety of policies. As a claims professional, she participated in the development of new insurance products and consulted with underwriters on renewals and potential product issues. She has prepared and presented white papers and in-house training programs for claims and underwriting professionals.

During that time, she has also served as Chair of the Membership Committee and CLE committees of the State Bars Insurance Law Section. She has written and presented on topics such as the role of Defense Counsel in dealing with Primary and Excess policies.

Prior to working directly for carriers, she was in private practice in New Jersey specializing in insurance defense and coverage defense for multiple insurers. In that role, she handled cases from inception through trial and appeal, having tried jury, non-jury, and administrative law matters. She served as a Law Clerk to the Honorable Michael Degnan, J.S.C. for the 1983 judicial year.

She currently holds adjuster licenses in 21 states and has evaluated claims and policies throughout the country over the last 14 years.

We are thrilled to have Maureen on board to handle our most difficult insurance coverage matters and to provide our clients with critical coverage analysis.

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NJ COURT FINDS POLICYHOLDER MUST DISPUTE BOTH ACV AND REPLACEMENT COST VALUATIONS TO RECOVER

Mon, 25 Jan 2021 14:56:00 GMT

Recently, the New Jersey Appellate Division found that an insureds acceptance of an actual cash value payment and subsequent failure to submit proof of repairs up to the replacement cost value of the loss, permitted the insurance carrier to refuse further payment. Plaintiffs presentation of a replacement cost valuation far exceeding the insurers valuation did not provide a basis for seeking further recovery.

In Lanier v. Farmers Mutual Fire Insurance Company , Janette Lanier insured her home with Farmers Mutual Fire Insurance Company, with $305,000 in coverage for building damages. The policy provided for full replacement cost of damages but only after the repairs are completed. The insured alternatively could submit a claim for the actual cash value (replacement cost less depreciation) then seek recovery of the depreciation in a supplemental claim thereafter within 180 days upon the submission of proof of actual repairs made at or above the replacement cost valuation.

In December 2016, Janette Laniers home was damaged when a pipe suddenly burst. She made a claim for her loss that was accepted as covered under her homeowners insurance policy. The parties disputed the extent of damages and the cost of repairs. The insurer provided a replacement cost value of $48,997.31 and made an offer for an actual cash value of $39,163.25. Lanier provided the insurer with an estimate of replacement cost value of $174,635.00. Although disputing the replacement cost valuation, Lanier cashed the actual cash value check, did not complete repairs to her home and sued the insurer for what she contended was the full amount of replacement cost value.

Lanier acknowledged that the insurer provided an estimate of the replacement cost value, but testified that she selected another contractor, with a replacement cost value of over $200,000.00 because she believed that the insurers contractor would do bad, shoddy work. Lanier argued that, in making the claim for the full amount of replacement cost, she should be excused from showing that the repair and replacement were finished because she could not afford to make such repairs without access to the insurance proceeds for the total amount requested.

The court rejected Laniers argument, finding that she did not produce any evidence of actual cash value of building loss and she did not provide any evidence to show that such value established by the insurance company was insufficient. The court emphasized that, although the policy required the insured to front the money and seek reimbursement later, it also allowed the parties to settle for an actual cash value.

In this case, Lanier accepted the insurers proposed amount and did not present any report contravening the actual cash value valuation. The court found that Farmers Mutual Insurance Company accepted the coverage and made an actual cash value offer to Lanier, which Lanier accepted. Further, requiring Lanier to show completion of replacement or repair before making a claim for the full amount was a valid condition because Lanier had access to the actual cash value. The fact that Lanier considered such amount insufficient did not affect the courts reasoning because Lanier cashed the check, did not reject the insurers offer, and did not show that the valuation was inadequate.

Contact Powell, Kugelman & Postell if you require an attorney.

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Partner Jose D. Roman Pursues Career in Public Service and Announcement of Newly Named Firm Powell, Kugelman & Postell

Wed, 16 Dec 2020 16:42:00 GMT

Partner Jose D. Roman, dedicated to providing legal services to low-income and underserved communities, is leaving Powell & Roman to focus those efforts full time at Central Jersey Legal Services, Inc. Jose has inspired our entire firm over his seventeen years at Powell & Roman with his selfless pro bono work, having received a commendation in 2017 from the Supreme Court of New Jersey for those efforts. With Jose as our inspiration, the attorneys at the newly named firm of Powell, Kugelman & Postell, will continue to dedicate time for pro bono work and will continue their efforts in providing quality legal services to all clients. Joseph M. Powell will remain the managing partner of the firm.

We are also excited to announce William R. Kugelman and Aisha Postell as named partners to the firm. Mr. Kugelman will continue to lead the firms commercial transaction and litigation practice, handling a diverse practice that includes transactional law, commercial and construction litigation. Mr. Kugelman is also a seasoned trial attorney who has handled commercial and corporate litigation matters for over thirty years. His vast experience allows him to provide a complete package of legal services to our corporate clients.

We easily identified Aisha Postell as on the partner track from the start of her legal career at the firm in 2014. Ms. Postell is a tenacious litigator whose hard work and tireless preparation enables her to achieve outstanding results for her clients. Ms. Postells two secondments working abroad with Certain Underwriters at Lloyds, London has given her invaluable insight into the practical day to day claims operations of the London market and its interaction with the various participants in United States surplus lines insurance.

Powell, Kugelman & Postell will continue to provide insurance litigation and consulting services in New Jersey and New York for its various domestic and international insurer clients. Our unique understanding of both admitted and surplus lines insurance markets allows us to provide unmatched litigation and consulting services to the various segments of the insurance industry including insurance brokers and agents, underwriters, carriers, third-party administrators and adjusters.

The firm will begin practicing as Powell, Kugelman & Postell, LLC beginning January 1, 2021.

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Powell & Roman, LLC Welcomes Mr. Tanner Kingston as Our New Associate Attorney

Thu, 19 Nov 2020 03:52:00 GMT

Prior to joining Powell & Roman, LLC, Mr. Kingston clerked for the Honorable Janetta D. Marbrey, J.S.C. of the Superior Court of the State of New Jersey, Mercer County, Civil Division handling a busy docket of civil litigation matters. Mr. Kingston attended Syracuse University College of Law, where he received a J.D. along with a Certificate of Advanced Study in National Security and Counterterrorism Law. At Syracuse Law, Mr. Kingston was a member of the Travis H. Lewin Advocacy Honor Society advocating in the trial and appellate divisions. Mr. Kingstons undergraduate degree is from the University of Idaho, where he received a B.S. in Theatre Arts with a Minor in Business. Mr. Kingston also interned for the Walt Disney Company through the Disney College Internship Program. We are excited to see Mr. Kingstons stage presence on display in the courtroom, where he will be defending policyholders in personal injury and property damage matters. Mr. Kingston will also provide legal services for insurers in coverage disputes and insurance fraud matters. Mr. Kingston is admitted to the New Jersey Bar and his New York Bar admission is pending.

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NJ High Court Says Clear Act of Surrender Defeats Police Officer Immunity from Lawsuit

Wed, 05 Aug 2020 13:08:00 GMT

Recently in Baskin v. Martinez the New Jersey Supreme Court ruled that evidence of a clear act of surrender will defeat a police officers qualified immunity defense in a use of deadly force civil lawsuit.

The case involved an armed suspect who was shot by a Camden police officer after putting his hands up to surrender. The incident began when the Camden police pulled over the plaintiff for failing to engage his turn signal. After being boxed in by two police cars, the plaintiff hit one of the police cars while attempting to flee the scene. He then started to run through a residential area. During the chase he was observed with a handgun tucked in his waistband and later running with it in his hand. The chase ended with the plaintiff entering a walled-in residential backyard. He apparently tossed the gun and stopped fleeing. According to the plaintiff and an eyewitness, he placed his empty hands over his head and remained in that position until a detective shot him. According to the detective, after arriving in the backyard, he saw the plaintiff turn around with his right arm extended straight in front of him, pointing a black object. At that point, the detective shot the plaintiff in the abdomen. The police later found the handgun in the backyard along with two cell phones.

The plaintiff sued the detective arguing that the detective used excessive force during his arrest, violating his Fourth Amendment right to be free from unreasonable seizures. The detective argued that he was entitled to qualified immunity because his use of deadly force was objectively reasonable. The lower court agreed with the detective and dismissed the case, reasoning that, notwithstanding the position of the plaintiffs hands, the detective was reasonable in his actions. The New Jersey Supreme Court, however, disagreed finding that the reasonableness in using deadly force was dependent on whose version of events the jury believed. Ultimately it was for the jury to decide whether the detective acted reasonably.

In deciding the issue, the Court noted that even when an officer is initially justified in using deadly force, he cannot use such force when it is evident that the suspect no longer poses a threat. The Court stressed that it is the judicial systems role to decide a suspects guilt, not the police. Courts all over the country agree that shooting a suspect with his hands in the air in an act of surrender is a violation of his constitutional rights, regardless of the suspects? actions before surrendering. In this case, the Court agreed that the detective had a legitimate basis to be concerned for his safety. However, a police officer may not use the qualified immunity defense when the use of deadly force was not justified.

The case is now being sent back to the trial court so a jury can determine which version of events to believe. If the jury finds that the plaintiff was shot with his hands up, then the detective will not be protected by qualified immunity.

In a dissenting opinion, Supreme Court Justice Solomon argued that, based on the totality of circumstances, the detective should still be entitled to qualified immunity, even if a jury found that the plaintiffs hands were in the air. Justice Solomon pointed out that qualified immunity shields reasonable actions made in a split-second, unless those actions are plainly incompetent or knowingly in violation of the law.

Contact Powell & Roman if you require an attorney.

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City of Asbury Park Can’t Recoup Deductible Before its Insurer

Mon, 27 Jul 2020 14:36:00 GMT

New Jersey’s highest court decided in City of Asbury Park v. Star Insurance Company that an insurance company’s subrogation claim takes priority over a municipality’s deductible/self- insured retention (SIR). In this case the City’s SIR totaled $400,000.00.

In January 2011, an Asbury Park Fire Departments employee suffered injuries while fighting a fire and he filed a workers? compensation claim against the City. At that time, the City of Asbury Park’s workers? compensation claims were covered by Star Insurance Company and the policy included a self-insured retention limit of $400,000 per occurrence. In other words, the city was responsible for paying the first $400,000 on every claim, which it did. Any additional losses (in this case $2,607,227.50) were covered by Star Insurance Co. The employee also filed suit against other third parties, reaching a settlement of $2,700,000. From that amount, $935,968.25 was set aside to partially satisfy a workers? compensation lien. Both the City and Star demanded to recover from the $935,968.25, contending that each was entitled to be reimbursed before the other party. The City argued its full reimbursement under the made-whole doctrine, while Star argued that the subrogation provision agreed to by parties gave Star all the insureds right of recovery against third parties.

The question before the court was whether, based on the made-whole doctrine, the city had priority to recover the paid deductible before Star recovered the amount it paid on the claim. In reaching the decision, the Court considered both the subrogation clause, which allows an insurer to step into an insured shoes and seek recovery from third parties at fault, as well as the made-whole doctrine, which gives an insured priority to amounts recovered from third parties to cover its loss. The doctrine typically applies by first covering the insured loss when it needs to pay the loss in excess of the insurers limited coverage policy. The Court noted that although the made-whole doctrines purpose is to protect the insured, a court must still look at the parties? agreement and determine whether they altered its application, which could deny the insured priority.

In reaching a decision, the Court also noted that, in the insurance context, a deductible represents nothing more than the risk that the insured has agreed to assume in exchange for a lower premium cost for the policy. The Court went on and explained that applying the doctrine would only write a better policy for the insured, that is, one without a deductible. The Court decided that the made-whole doctrine does not override the parties? agreement if the contract between them unambiguously provides the insurer with all the insured rights to recovery against third parties.

Although the Court unanimously ruled that the made-whole doctrine does not override an express agreement between parties to prioritize the insured, the decision still leaves enough room for litigants to argue the ambiguity in a policy?s language.

Contact Powell & Roman if you require an attorney.

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Is a NJ Commercial Property Owner Required to Remove Snow and Ice During a Storm?

Tue, 14 Jul 2020 14:54:00 GMT

The debate over the responsibility of commercial property owners during a winter storm continues. Many states have adopted the Ongoing Storm Rule (also known as the Storm in Progress Rule) which shields property owners of responsibility over accidents until an adequate period of time has passed following the end of a storm. It seemed as if New Jersey was moving toward adopting the rule until a recent Appellate Court decision found that it does not apply in New Jersey, and went as far as calling the rule arbitrary and contrary to the main function of injury law.

The case Pareja v. Princeton International Proprieties involved a plaintiff who slipped on black ice on the driveway apron of a commercial building. At the time of the incident it was drizzling sleet. The record showed that the owner employed maintenance people to perform snow and ice removal and there were ongoing storms prior to the incident, along with a prior 28-hour advisory report warning that untreated surfaces could become slippery. The plaintiff?s expert witness also testified that pre-treating the slippery conditions could have reduced the hazard. The court found that, under these circumstances, it was for a jury to decide whether the property owner acted reasonably after receiving notice of a possible hazardous conditions. Although the ongoing storm was an important factor to consider, it was not grounds for automatic dismissal, according to the Appellate Court.. The court emphasized that the automatic application of an ongoing storm rule would take away any incentive to make a known dangerous condition safer, even if it would be reasonable to do so. It also noted that declining to adopt the ongoing storm rule would not require a property owner to immediately clear every inch of the property. Instead, the jury would need to consider whether, in the light of a continuing storm, the commercial owner took any reasonable steps that a prudent person would have taken to make the dangerous condition safer. The court also emphasized that this approach is fair for all the innocent plaintiffs that otherwise would be left without a recourse, especially because the owner is in the best position to remove or reduce any foreseeable snow or ice hazards.

The case is in contrast to the decision last year in Dixon v. HQ Equities Associates , from a different set of New Jersey appellate judges. In that case, the plaintiff slipped and fell on snow, on a sidewalk adjacent to a parking lot, while it was still snowing. The plaintiff brought suit against the parking lot owner, claiming that it failed to maintain the sidewalk in a reasonable safe condition. That court noted that a property owner is only required to make a sidewalk safe within a reasonable time after discovery of an unsafe condition. The court also stressed that principles of fairness could not require a commercial property owner to make a sidewalk safer while snow is still accumulating. The court also rejected plaintiff?s argument that the defendant?s live-in superintendent had notice of the condition and owed her a duty to at least attempt to make the sidewalk safer for everyone that wanted to go onto the parking lot. The court noted that whether someone salted or sanded the sidewalk prior to the plaintiff?s fall was irrelevant because the snow was ongoing when the plaintiff slipped and the owner owed her no duty while the storm was in progress.

These competing decisions leave the final decision on the matter for the New Jersey Supreme Court.

Contact Powell & Roman if you need a lawyer.

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Appeals Court Halts Transgender Bias Training for Jersey City Police

Wed, 03 Jun 2020 13:42:00 GMT

The Jersey City Police Department (JCPD) lost a transgender discrimination lawsuit and as a result, the trial court ordered the JCPD to provide annual transgender awareness training. On May 8, 2020, a state appeals court put the brakes on the annual training ? for now. The case, Holmes v. Jersey City Police Department , involved a transgender individual who was arrested for shoplifting. The individual, Shakeem Malik Holmes, who identifies as a male was born, Malika Holmes, with female anatomy. When he was arrested he gave the police his legal name, as it appeared on his New Jersey state driver?s license, and he was placed in a male holding cell. When his fingerprints came back under the name, Malika Holmes, the officers began accusing him of lying and placed him in a female cell.

At trial, Holmes testified that the officers humiliated him and made profane and degrading remarks about his gender and anatomy. Siding with Holmes, the jury found that the police officers? conduct was discriminatory and in violation of New Jersey Law Against Discrimination. As a remedy for the discrimination, the trial judge required the JCPD to provide annual transgender awareness training and payment of Holmes? attorney fees and costs. The JCPD objected to the training requirement because after Holmes filed the lawsuit, the department adopted new policies and procedures regarding transgender, intersex, and gender non-conforming individuals. The trial court, however, found that they were inadequate and ordered annual training.

The appeals court?s decision seems to give the JCPD only a temporary stay. It found that the trial court does have the power to order a police department to undergo bias training. However, when issuing such an order the trial judge must first provide the department with an opportunity to address the scope and reasonableness of the proposed training. The appeals court stated that courts have wide discretion when fashioning a remedy designed to eradicate unlawful discrimination ? it just must be implemented in a way that satisfies due process by giving all sides a fair hearing.

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Aggressive Defense Attorney Tactics Leads to New Personal Injury Trial

Fri, 15 May 2020 18:00:00 GMT

Although lawyers are required to zealously advocate for their clients, over-zealous advocacy often leads to trouble. A recent New Jersey Supreme Court case, Morales-Hurtado v. Reinoso , illustrates how, in the eyes of the Court, an attorney?s aggressive and inappropriate tactics ended up depriving the opposing party of a fair trial. The case involved an accident in which a bus rear-ended an automobile. The Court found that many statements and questions from the defense attorney in the case were misleading and prejudicial to the allegedly injured plaintiff. For example, during his opening statement, the defense attorney made reference to one?s expectations in our ?litigious society.? Statements like this are a classic example of what the Court deems to be improper and prejudicial during a trial. The Court also highlighted the defense attorney?s questions about the plaintiff?s immigration status, citizenship, and the need for an interpreter at trial. All of which are commonly considered improper at trial because such questions are only designed to appeal to prejudice and inflame and distract the jury. The Court also found that the attorney sought irrelevant information, such as whether the bus driver had been was sued by other passengers in the plaintiff?s vehicle and whether the plaintiff?s airbags deployed. Though the trial judge gave the jury instructions to ignore some of the improper statements, the New Jersey Supreme Court found that this was not enough to effectively avoid the risk of prejudice and ordered a new trial.

The case also involved a separate major issue involving the admissibility of expert testimony. The plaintiff?s attorney hired a ?certified life care planner? to offer testimony regarding his client?s likely future medical expenses over the course of his lifetime. The expert?s opinion was based on notations in medical records as well as answers to questionnaires from the plaintiff?s physicians. The trial court excluded the expert?s testimony, noting that she based her opinion on unreliable sources of information, particularly unsworn answers to the questionnaires. In addition, the expert based her opinion on one physician?s opinion who acknowledged the possibility of additional medical expenses in the future but refused to testify within a reasonable degree of medical probability that the expenses would be incurred.

In guiding the lower court?s analysis of a life care planning expert?s testimony, the New Jersey Supreme Court acknowledged that the expert witness can rely on the opinion of other experts, as long as they are expressed in terms of a reasonable degree of medical probability. It is worth noting that a life care planning expert is not a physician qualified to identify a persons? medication or treatment, but an expert who forms an opinion regarding the probability of future medical care in reliance on facts and other data. Because of this, the expert had to demonstrate that she relied on an opinion that a physician actually held and identified with. While not ruling on the admissibility of the expert witness? opinion, both the Appellate and Supreme Courts agreed that excluding the expert testimony was an error. The Court noted that the possibility that the expert improperly considered some information cannot cause the exclusion of the whole testimony.

Though clients often expect an aggressive TV style lawyer, this case illustrates why its important to zealously advocate within the bounds of the rules of the courtroom. Otherwise, a client could end up having to pay for two trials.

Contact Powell & Roman if you require an attorney.

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New Jersey’s Extended Statute of Limitations for Victims of Child Sexual Abuse

Thu, 07 May 2020 21:11:00 GMT

A recent Me Too movement update to New Jersey’s Child Sexual Abuse Act (CSAA) significantly extends the statute of limitations for sexual abuse claims, granting victims additional time to file lawsuits against their aggressors. First enacted in 1992, the CSAA originally allowed victims of sexual abuse to file lawsuits within two years of their eighteenth birthday, or the date when they reasonably discovered their injury. The updated law now extends this period to age 55 or seven years from the date the victim becomes aware of the abuse. It also grants otherwise ineligible past victims a two-year window to file claims that were previously barred by the statute of limitations.

Another change that benefits victims is the broadening of categories of abuse. The old law was limited to claims against a person acting in place of a parent ?within the household.? The new law removes that provision, and now extends to any educational, religious, or civic organization that cares for children. Thus, victims may now bring claims against entities for negligence resulting in sexual abuse or even negligent hiring and supervision of an employee that led to sexual abuse against a minor.

Although the CSAA is significantly broader, a recent case illustrates how not all past claims will be viable. In A.Z. v. A.R.P. , the plaintiff sued its alleged aggressor maintaining that, in 2001, she was sexually abused and assaulted at the age of sixteen by a seventeen-year-old defendant. She also claimed that the defendant’s father violated the CSAA because he had knowledge of his sons activities. Under the CSAA, a person standing in place of a parent who permits or goes along with the sexual abuse engaged by another person commits an act of abuse. The court rejected plaintiffs CSAA claim because even the new laws definition of ?sexual abuse? does not include sexual contact between minors. Instead, the CSAA?s goal of keeping children safe and identifying their abusers requires the act ?of sexual contact or sexual penetration between a child under the age of 18 years and an adult.? In this case, the court found that the plaintiffs claims referred only to a minor, i.e., the alleged seventeen-year-old aggressor. Because the allegations against the father rested on his sons act of sexual abuse, the court determined that there was no actionable act of sexual abuse under the law.

The update to the law is rooted in the acknowledgment that child sexual abuse perpetrated by a trusted adult creates lasting shame, confusion, and self-doubt. Surviving victims feel self-blame and fear and are not able to confront their aggressors for many years, if at all. Clearly, New Jersey is seeking to establish a public policy that encourages institutions to establish safeguards for minors when they are at their most vulnerable. These institutions now have a strong incentive to conduct background checks, establish and follow child safety protocols, and vigorously investigate any sign of potential danger.

Contact Powell & Roman if you need a lawyer.

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Texting While Driving Results in Vehicular Homicide Conviction in New Jersey

Fri, 01 May 2020 21:59:00 GMT

If you think the penalty for texting while driving is a traffic ticket, think again. You could be charged with murder. Last year, a woman was found guilty of vehicular homicide for texting while driving. She is now facing a sentence of 5 to 10 years in prison. The case involved a 50-year-old womnn who worked for a non-profit foundation. She rear-ended another vehicle that was stopped for a pedestrian in the crosswalk. The stopped vehicle was propelled forward into the pedestrian, who suffered from significant traumatic injuries and ultimately died five days after the accident.

Apparently the driver was in the middle of responding to a text from her sister-in-law when the crash occurred. She denied the claim and at trial testified that she was not texting, but rather looking down to turn on her rear-window defogger. Police found an unsent text message on her phone and she testified that she had no memory typing the incomplete message. She instead claimed that she intended to call her sister-in-law later. The jury deliberated for two and a half days and ultimately found her guilty of vehicular manslaughter. The prosecutor pointed out that texting while driving is even worse than drunk driving because ?there are no reflexes,? the driver just doesn?t see it coming.

Although New Jersey added texting while driving to its vehicular homicide law in 2012, this was the first time first time such a case has gone to trial. The 2012 statute, was named Kulesh, Kubert and Bolis? Law, after other victims that were killed or severely injured by distracted drivers.

Currently, forty-seven states ban texting while driving. In New Jersey, the penalty for ?distracted driving? is between $200 and $400 for the first offense; between $400 and $600 for the second offense, and between $600 and $800 for third and subsequent offenses. The third and subsequent offenses, also results in 3 points on the driver?s license and possible license suspension.

As the recent criminal trial shows, going to prison can be the penalty for even the first distracted driving offense if there is an accident resulting in severe injuries.

Contact Powell & Roman, LLC if you require an attorney.

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NJ Court Finds Named Peril Insurance Policy Did Not Cover Leaking Pipe Water Damage

Sat, 25 Apr 2020 17:57:00 GMT

A recent New Jersey appeals court ruling found that water damage to a vacation home caused by leaking pipes was not covered under a named perils insurance policy. In Cusamano v. New Jersey Underwriting Association , a pair of summer vacation homeowners found their kitchen soaked in water, including the cabinets, floor, and ceiling. They made an insurance claim with their homeowners insurer after discovering that the damage was caused by a rotted connection in a bathtub drain line. The carrier denied the claim stating that ?water is not one of the named perils under this policy. They then challenged the denial of the claim in court.

The trial court found coverage stating that the policy did not have an exclusion for damages caused by water leaking from pipes, but the insurance carrier appealed. The appeals court first noted that any insurance policy must be liberally interpreted to provide coverage to the full extent that any fair interpretation will allow. However, when the policy terms are clear the court may not interpret the policy so as to write a better policy than the one purchased. In this case the homeowners purchased a named perils insurance policy that only provided coverage for the particular risks listed in the policy. The only risk related to water that was covered by the policy was the breakage of water pipes by explosion. Water damage from rotted pipes was not listed as a covered peril, and therefore, not a ?peril insured against under the policy.

The homeowners argued (and the lower court agreed) that there was coverage because a water damage exclusion in the policy did not list water damage from leaking pipes as an excluded cause of loss. The appeals court, however, found that the exclusion did not extend the named perils coverage, but instead restricted it. The only fair interpretation of a policy that limited coverage to named perils, was that the exclusions would only apply to the named perils. Exclusions do not add coverage, but rather limit the coverage provisions of a policy. In this case, the only relevant named peril was breakage of water pipes by explosion. The court found that the exclusions should not even be considered because the policy did not name water damage caused by rotting pipes as a named peril.

Contact Powell & Roman if you need a lawyer.

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NJ Court Upholds Rule Shielding Bank Owned Property from Sidewalk Liability

Tue, 14 Apr 2020 18:01:00 GMT

Recently in Markou v. Caliber Home Loans, Inc. , a New Jersey appellate court upheld the rule that a mortgagee in possession of a vacant property is not liable for sidewalk accidents because a vacant property does not qualify as a commercial property. In the Markou case, a pedestrian slipped and fell on snow-covered ice while walking his dog in front of a vacant single-family home. The owner, Caliber Home Loans, was a mortgagee in possession, i.e. it was deeded the property by way of sheriffs sale. Upon taking ownership of the property Caliber hired a real-estate broker, which listed the property for sale, and a property management company, which performed basic property preservation services.

In upholding the dismissal of Markou’s case, the key determination was the appeals court’s agreement the vacant property was residential. New Jersey only requires commercial property owners to maintain their sidewalks in a reasonably good condition, and this includes the duty to remove snow and ice. This duty, however, does not extend to residential property owners. In other words, before even asking whether a property owner has a duty to maintain the sidewalk, one must ask whether the property in question is commercial or residential.

The court rejected Markou’s argument that the Caliber’s status as a mortgagee in possession automatically changes the status of the property to commercial. Instead, the court looked at the policy behind imposing the liability on commercial owners and found that the capacity to generate income and spread the risk of loss to third parties are the main differences between the commercial and residential liability.

The court found that Caliber’s property was vacant and did not generate any income. Caliber did not conduct any daily business activities and did not benefit from the sidewalk abutting the property. Furthermore, the mere access to the property for selling purposes did not change the property’s status to commercial property because a residential owner who offers the property for sale enjoys the same access. Looking at previous decisions, the court noted that even when vacant properties are zoned as commercial, liability still does not attach because a vacant property has no means of generating income to purchase liability insurance or spread the risk of loss to other parties.

Ultimately this decision also shows the court’s practical understanding that an underperforming property should not be further burdened with the threat of a personal injury lawsuit.

Contact Powell & Roman if you need a lawyer.

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Owners of Docked Boat Bear the Burden to Prove Fortuitous Loss and Rule Out Poor Maintenance

Fri, 10 Apr 2020 18:56:00 GMT

In Chartis Propriety Casualty Company v. Inganamort, the Third Circuit found that, when handling a property damage claim under an all-risk maritime policy, the insured has the burden of proving that the loss was fortuitous, and a mere showing of a loss will not suffice. In September 2011, a New Jersey family who were the owners of a 65-foot fishing vessel docked in Boca Raton, Florida, discovered that their vessel sank and sustained serious damage. They reported the loss to their insurer, Chartis Propriety Casualty Company but the company denied the claim when the insurer determined that the loss was due to poor maintenance.

The owners? fishing vessel, Three Times a Lady , was insured by an all-risk policy, which protects against fortuitous losses including losses that are unexplainable or dependent on chance. In marine insurance contracts, all-risk policies protect owners for any fortuitous event even when the owner does not show the precise cause of loss. During the investigation, Chartis?s claims specialist found that the Three Times a Lady sank due lack of maintenance. Upon denying the claim, Chartis filed a declaratory judgment action to enforce the denial of the claim.

The case ultimately went to the Third Circuit Court of Appeals and the issue on appeal was who bears the burden of proving a fortuitous loss. Looking at other Circuit decisions, the Third Circuit held that although not a heavy burden, the insured must provide some proof that the loss was fortuitous even if it does not point to an exact cause of the loss. In other words in a case such as this, it was the owner?s burden to come forward with proof ruling out poor maintenance.

The court rejected the owners? argument that loss was due to heavy rain, finding that nothing in the record showed an amount of rain sufficient to cause such damage immediately before the loss was reported. The court noted that not even the owners? expert could assert the exact time of a heavy rainfall at the relevant time.

It is important to note that losses due to the negligence of an insured are generally considered fortuitous (for example an at-fault accident or fire) while losses caused by wear and tear are not. With regard to negligent maintenance, the court in a footnote noted that extending the concept of fortuity to negligent maintenance would be will be ill-advised and bad public policy. Such a rule it would create perverse incentives, converting all-risk policies into general maintenance contracts.

The important takeaway is that an all-risk policy does not include every risk and the insured still has the initial burden of proof of presenting a claim that falls within the coverage provisions of the policy. Here, showing that the vessel was seaworthy before it sank in calm waters would have been sufficient to create a presumption of fortuitous loss, resulting in a covered claim.

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Don?t Let Your Buddy Use Your Golf Cart Before Reading This

Mon, 30 Mar 2020 18:31:00 GMT

A New Jersey appeals court recently ruled that a golfer who rents a golf cart has an obligation to refrain from letting an incompetent operator use the cart.

In McKeown v. American Golf Corp. , the plaintiff, McKeown, was severely injured by the defendant?s leased golf cart, driven by his elderly father-in-law, who was alleged be an ?incompetent operator,? largely due to his inexperience with golf carts. The defendant, Capavanni, along with Robinson, the Plaintiff, and another golfer were playing golf at the Beaver Brook Country Club. Capavanni rented a golf cart from American Golf Corporation (AGC) and signed a rental agreement, assuming all the risks associated with the cart?s use and promising not to permit its operation by a person unfamiliar with the cart?s proper use. Later that day, Robinson started driving the cart and ended up injuring the Plaintiff?s leg by pinning the Plaintiff between his cart and Capavanni?s cart. Robinson stated that an unsecured rangefinder that fell under the brake pedal prevented him from stopping the golf cart.

Plaintiff sued Capavanni, Robinson, and AGC. The trial court dismissed the case against AGC and Capavanni. The appeals court found that in dismissing the case against Capavanni (the renter) the trial court incorrectly applied the theory of ?negligent entrustment.? The appellate court explained that, under common law, a person has a duty to use reasonable care when entrusting someone with a device capable of causing injuries (like a vehicle or golf cart), even where no employment relationship exists between the two parties.

Accordingly, the appeals court found that it was for a jury to decide whether it was foreseeable that the placement of the unsecured rangefinder could lead to its falling to the operator?s feet where it could cause issues with the operation of the golf cart?s foot pedals. The appeals court also found that with or without the rental agreement, the renter had a common law obligation to refrain from entrusting the golf cart to an incompetent operator. Thus, the appeals court reinstated the case and sent it back to the trial court for further proceedings.

Contact Powell & Roman, LLC if you need a lawyer.

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Powell & Roman Will Remain Fully Operational Throughout The COVID-19 Crisis

Thu, 19 Mar 2020 19:15:00 GMT

We want to assure all clients, colleagues and friends that there will be no disruption in service while we all deal with the COVID-19 pandemic. Every attorney and employee has secure and direct access to our files, emails and telephones, as well as the ability to work from anywhere in the world. We have tried to stay ahead of the curve, so effective Sunday, March 15, 2020, we implemented a firm-wide social distancing policy. Our offices will remain open with minimal rotating attorneys and staff throughout the crisis. However, everyone will be working on client matters, whether from home or the office. We are also fully equipped to have everyone work remotely should we be required to close our offices and shelter in place. It remains our top priority to deliver quality legal services while protecting the health and safety of our attorneys, staff and anyone visiting our offices. Please contact us at 732-679-3777 if you have any questions or require assistance.

Best regards,

Powell & Roman

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Commercial Landlord Not Liable for Slip and Fall Due to Tenant?s Exclusive Control of Premises

Tue, 25 Feb 2020 14:10:00 GMT

Who is responsible for clearing the ice and snow on a leased commercial property? The answer depends on several factors, including the language of the lease agreement, the location of the fall, and the level of control over the premises retained by the landlord.

This past January, the New Jersey Supreme Court considered whether a commercial property owner owes its tenant?s guests a duty to clear snow and ice from a driveway while the property is in the sole possession and control of the tenant. The Court ruled that when the lease agreement places the responsibility for the removal of snow and ice upon a tenant that retains complete control over the premises, the duty rests solely with the tenant.

The case, Shields v. Ramslee Motors, involved a FedEx driver who slipped and fell on ice and snow in the driveway of a used car dealer who leased the premises. The lease agreement between the tenant, Ramslee Motors, and its landlord stated that the tenant was ?responsible for the maintenance and repair of the land as if it were the de facto owner of the leased premises.? The landlord retained the right to enter the premises to make necessary repairs and to enter at any time in the event of an emergency, but the Court found that these limited rights did not create an obligation on the part of the landlord to inspect for and remedy dangerous conditions such as snow and ice.

After Shields filed a lawsuit against both the landlord and the tenant, he settled with the tenant, Ramslee Motors. The landlord sought to dismiss the case and the trial court granted the application, finding that the lease agreement placed the responsibility for property maintenance on the tenant. An appeals court disagreed with the trial court claiming that the landlord?s responsibility to maintain the driveway clear of snow and ice was an obligation that could not be completely passed on to a tenant (similar to the landlord?s obligation with respect to public sidewalks). The Supreme Court ultimately upheld the trial court?s dismissal of the case.

The Supreme Court noted that there is no ambiguity in the lease agreement because ?maintenance? includes the duty to remove the ice and snow and that landlord?s right to enter the premises to perform repairs did not create an obligation to make such repairs. Next, the Court noted that the landlord?s non-delegable duty to maintain sidewalks in reasonable good condition does not apply to driveways because they are based on different public policies and, in this case, the driveway is clearly separated from the public sidewalk by a gate, giving the tenant exclusive possession.

Addressing the issue of control, the Court found that the tenant had exclusive control over the commercial property based on the relevant provisions in the lease agreement, on the layout of the property, and on tenant?s exercise of control over the property.

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Court Rejects Claim that Marsh Duped Certain Insurers into an Extra $300M in Sandy Flood Coverage

Tue, 19 Nov 2019 21:01:00 GMT

The New Jersey Appellate Division in New Jersey Transit v. Certain Underwriters at Lloyds, et al, A-1026-17T1 (App. Div. Slip Op. November 18, 2019) recently held that storm surge damage caused by Superstorm Sandy was not subject to a $100M flood sublimit, but instead was afforded the full $400M in property coverage under several layered policies issued by eleven participating insurers. The New Jersey Appellate Division relying in significant part on a revised definition of ?Named Windstorm? found that none of the flood sublimits applied because it found that damage was caused by a named windstorm which it deemed a separate peril not subject to the flood sublimit.

The appellants, Certain Underwriters at Lloyds, Maiden Specialty, RSUI Indemnity, Westport Insurance and Torus Specialty contended that the Named Windstorm provision was merely included in the policies to emphasize that all losses arising from a ?named windstorm? are those that occur in a single, seventy-two hour period. (Presumably to avoid stacking of coverage in the event of a prolonged storm causing damage in separate episodes over several days.) The insurers contended that the flood sublimit applied to all losses caused by flood over that 72 hour period, including such flooding caused by storm surge.

The court disagreed, finding that the plain language of the policies indicated that the purpose of the ?named windstorm? definition was to differentiate between the inundation caused by a surge of water, which may have no relationship to a storm, and the inundation resulting from ?storm surge? which the policies defined as wind driven water associated with a named storm.

The Appellate division found that the purpose of named windstorm definition was to expand coverage to include a separate storm surge peril. This finding was made despite proofs presented at the trial level indicating that Marsh, the insurance broker negotiating on behalf of NJ Transit had represented on renegotiation of the policies at renewal that ?the named windstorm definition was required to be included solely for ?concurrency purposes? [i.e. to ensure that the same language was in all policies providing excess coverage].

Torus, who was the sole insurer to take this particular issue up on appeal argued that their policy should be reformed based on equitable fraud committed by Marsh on behalf of its client NJ Transit. Torus contended that Marsh masked its intention of increasing coverage limits by requesting a change in the definition of named storm misleading the insurers into believing this was an innocuous change on renewal merely to conform primary and excess policies. The court?s response? Insurers, you should have read your policies.

Contact Powell & Roman, LLC if you require counsel in New Jersey and New York.

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NJ Supreme Court Shields Landlord from Liability for Child?s Radiator Burn Injury

Tue, 06 Aug 2019 15:19:00 GMT

Can liability be imposed on a landlord based on a theory of regulatory responsibility over an apartment building?s heating system and is there a common law duty to cover an apartment unit?s radiator with insulating material? This is the question the New Jersey Supreme Court considered last month when they took on the case J.H. v. R&M Tagliareni, LLC .

This case is one of unfortunate origins. In 2010, a nine-month old infant was burned by an uncovered, free standing cast iron loop radiator in an apartment owned and managed by Defendants, R&M Tagliareni, LLC and Robert & Maria Tagliareni, II, LLC (jointly referred to as ?Defendant?). Suit was filed against the Defendant claiming its negligence caused the infant?s injuries.

The Defendant testified to a number of determinative facts. First, the Defendant made clear that the tenants had the ability to shut off the radiators via valves at the bottom of the radiator. Next, the Defendant affirmed that this case was unique; that no tenant had ever been burned nor had they ever asked for or complained about a cover for the radiator. Last, the Defendant attested to the fact that the building had been inspected by state agencies and by insurance companies, none of which cited the Defendant for the absence of radiator covers.

The state agency that performs such inspections is the Bureau of Housing Inspection. The inspector that had inspected the Defendant?s apartment building testified that violations are not typically issued for lack of covers on radiators and that there was no requirement for covers under the Hotel and Multiple Dwelling Law.

The trial court agreed with the Defendant?s argument that the defendant did not owe a common law duty of care to provide covers for radiators. The trial court further determined that radiators were not meant to be included in the term ?heating system? based on a plain reading of NJAC 5:10-14.3(d). NJAC 5:10-14.3(d) provides that ?heating systems? shall be covered with an insulating material or guard to protect occupants and others from receiving burns due to chance contact. The Appellate Division disagreed with the trial court?s assessment. The Appellate Division determined that the radiator was part of the apartment?s heating system and thus a duty of care was owed to the Plaintiffs. They further determined that the Plaintiffs could argue that a duty of care was owed and breached based on NJAC 5:10-14.3(d). The Appellate Division?s decision was then appealed.

The Supreme Court of New Jersey found unpersuasive the Appellate Division?s determination that NJAC 5:10-14.3(d) imposes a regulatory duty on landlords to cover radiators with insulating material or a cover. While it was argued that a radiator was a heating system under NJAC 5:10-14.3(d), the Supreme Court found no evidence, express or implied, that the statute intended to encompass radiators. In addition, the Supreme Court refused to impose a newfound common law duty on landlords to cover all in-unit radiators. A determinative factor was the fact that the Plaintiffs maintained control over the heat emanating from the radiator. Thus, the Supreme Court reversed the decision of the Appellate Division that found the existence of a new common law duty to require landlords to cover radiators with insulating material.

Contact Powell & Roman if you need a lawyer.

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Walmart slip and fall

Wed, 13 Mar 2019 19:49:00 GMT

Can you argue ?They?re faking it!? NJ Supreme Court says, ?It depends.? In March, the New Jersey Supreme Court was asked to determine whether a Defendant?s medical expert could use specific terms such as ?symptom magnification? during their trial testimony. The case originated when the Plaintiff, who was shopping at Wal-Mart at the time, was struck by a falling clothing display rack. As a result, the Plaintiff brought forth a negligence suit against Wal-Mart.

In March, the New Jersey Supreme Court was asked to determine whether a Defendant?s medical expert could use specific terms such as ?symptom magnification? during their trial testimony. The case originated when the Plaintiff, who was shopping at Wal-Mart at the time, was struck by a falling clothing display rack. As a result, the Plaintiff brought forth a negligence suit against Wal-Mart.

At the time of the incident, Plaintiff immediately experienced neck and back pain. After going to the hospital and then subsequently being treated by a specialist, Plaintiff was diagnosed with Chronic Regional Pain Syndrome (CPRS). Before the diagnosis, but after the Wal-Mart incident, Plaintiff was also involved in an automobile accident.

At trial, the Defendant?s medical expert used terms like ?somatization? (converting psychological issues to bodily symptoms) and ?symptom magnification? to describe the Plaintiff?s injuries. These terms were used to minimize the injuries sustained by the Plaintiff and ultimately cast doubt as to the extent of the Plaintiff?s actual injuries. The jury unanimously determined that Plaintiff failed to prove that Wal-Mart was negligent.

On appeal, the Appellate Division reversed and remanded the case on the basis that the Defendant?s expert testimony and medical opinion were not allowed under NJRE 403 (which prohibits (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence).

The Supreme Court granted Wal-Mart?s petition for certification on this matter to decide whether or not the Appellate Division erred in disallowing the use of words like ?somatization? or ?symptom magnification.? Upon reasoning that medical expert testimony varies from case to case, consistent with NJRE 403, the Court ultimately found that ?the admissibility of medical expert testimony utilizing terms such as “somatization” and “symptom magnification” must be determined by trial courts on a case-by-case basis.? Accordingly, the Court reinstated the jury?s verdict of no cause of action.

If you are in need of an attorney please contact Powell & Roman by calling 732-679-3777 or by visiting our website here: https://lawppl.com/

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N.J. Supreme Court Rules That Malfunctioning Elevator Doors Bespeaks Negligence

Thu, 09 Aug 2018 18:25:00 GMT

In a 7-0 decision, the Supreme Court of New Jersey decided to extend the principles of the case Jerista v. Murray , to a similar case in which a condominium building?s elevator doors opened and closed on a resident, seriously injuring her as she attempted to exit the elevator. In Jerista , the court held that the doctrine of res ipsa loquitor applied where a supermarket?s automatic door malfunctioned and injured a customer as she entered the store. The doctrine of res ipsa loquitor (which is Latin for ?the thing speaks for itself?) allows a jury to draw an inference of negligence when: (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant’s exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff’s own voluntary act or neglect.

In the subject case, plaintiff Maureen McDaid brought a negligence action against defendants Aztec West Condominium Association (?Association?); Preferred Management, Inc., the Association’s management company; and Bergen Hydraulic Elevator, the elevator-maintenance provider. McDaid alleged serious injuries resulting from an incident in which she exited an elevator and the doors ?unexpectedly? and ?repeatedly? closed on her. After the incident, an official for the City of Hackensack inspected the elevator finding it was in need of repair. After that inspection, another inspection was conducted by Bergen Hydraulic, which found that the elevator?s electric eye?s relay contacts were not functioning properly.

The trial court ruled in favor of the defendants, arguing that an elevator door, specifically the electric eye within the elevator, is the type of instrument that is known to malfunction from time to time. Thus, the trial court, and the Appellate Division agreed, that the malfunctioning of an elevator is not an occurrence that ?ordinarily bespeaks negligence? and thus res ipsa loquitor did not apply.

The New Jersey Supreme Court disagreed with both?the trial court and Appellate Division and found that in a negligent-maintenance action against a premises? owner and others who exercise exclusive control, the res ipsa principles enunciated in Jerista apply as strongly to malfunctioning elevator doors as they do to malfunctioning automatic doors. The New Jersey Supreme Court reasoned that an automatic door probably does not close on an innocent patron causing injury unless the premises’ owner negligently maintained it. The Court noted that it may well be that elevator-door accidents will occur at times without anyone being at fault. However, based on “the balance of probabilities,” an elevator door that closes onto and injures a passenger is an occurrence bespeaking negligence that falls within the common knowledge of judges and jurors. Accordingly, the New Jersey Supreme Court joined those jurisdictions that apply the res ipsa inference to cases involving malfunctioning elevator doors.

Contact Powell and Roman if you need an experienced attorney.

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New Jersey Supreme Court Keeps Its Long Standing Allocation Method Alive

Fri, 29 Jun 2018 22:21:00 GMT

New Jersey made the news this week, sandwiched among immigration issues and the retirement announcement of United States Supreme Court Justice Anthony M. Kennedy, the New Jersey highest court, has decided to keep its long standing allocation method alive.??? In? Continental Insurance Company v. Honeywell Int?l, Inc ., the New Jersey Supreme Court continues the vitality of the? Owens-Illinois ?and? Carter-Wallace ?allocation method. ??While recognizing that at the time of contracting (i.e. procuring of the insurance policies) the parties could not have expected New Jersey law to control, the Court nevertheless applied New Jersey law to the allocation issue.? The choice of law issue was hotly disputed and the Court held that the conflicts analysis should center on ??188 and 6 of the Restatement of Conflicts.

Here, two excess insurers ?disputed the application of the? Owens-Illinois ?allocation method and particularly the application here of the ?unavailability exception?.?? Owens-Illinois , unlike allocation methods in many other jurisdictions, utilized a continuous trigger to spread the costs of indemnification from exposure to manifestation of the disease. ?Allocation was then determined on a pro-rata basis by time on the risk and the amount of risk assumed (policy limits).? The? Owens-Illinois ?Court stated that ?[w]hen periods of no insurance reflect a decision by an actor to assume or retain a risk, as opposed to periods when coverage for a risk is not available, to expect the risk-bearer to share in the allocation is reasonable.?? Hence, if an insured decided to go bare when coverage was available, it would be allocated its share.? If coverage was unavailable, the insured would not be assessed with that time frame.

The underlying claims were for exposure to asbestos.? Honeywell, and its predecessors, had manufactured brake and clutch pads with asbestos from the 1940s until 2001.?? Despite the unavailability of excess insurance coverage for asbestos after April 1987, Honeywell continued to manufacture with asbestos for another 14 years, i.e. until 2001.? The insurers argued that there should be an equitable exception to the ?unavailability exception? because of the choice that Honeywell here made.? ?Specifically, those insurers maintained that where the corporations continue to manufacture products after insurance becomes unavailable for those products, those corporations should not be entitled to the insurance coverage they purchased prior to the unavailability.? The insurers argued that Honeywell?s continued manufacturing created an ?exceptional circumstance? warranting departure from? Owens-Illinois ?allocation. ?Honeywell, on the other hand, argued that it was seeking coverage for claims that involved exposure before ?the unavailability of insurance coverage.? In this lengthy and long awaited decision, the majority of the Court affirmed the appellate court and the decision that the insurers and not Honeywell would have to shoulder payments on the asbestos claims.

According to the majority, application of? Owen-Illinois ??holds insurers responsible for the losses that actually occur on their watch, using a formula that approximates ?a scientific assessment of the amount of injury, ? even if the actual injury manifests later. ?? On these facts, i.e. initial exposure when the corporation had insurance, the Court said this suit did not present facts on which to consider ?abandoning the unavailability exception, let alone whether to create a novel equitable exception to that exception that would retroactively deprive parties of paid-for insurance coverage due to their post-coverage-period conduct.?

A partial dissent by Justice Albin as to the ?unavailability exception? decision? only ?put the ruling in perspective commercially for insurers. ?Justice Albin stated that the majority?s interpretation such that ?a company, such as Bendix, that continues to manufacture an inherently dangerous product for which no insurance carrier will provide liability coverage can avoid full financial accountability and transfer the risk to prior insurers?.runs counter to the principles of fairness and justice enunciated in Owen-Illinois ?and those underlying our tort law.?? Indeed, in dissent Justice Albin suggests that while insurance carriers will adjust to this new methodology wherein they are compelled to provide coverage, whether they wish to or not, ?carriers may decide to offer coverage at much higher premiums—thus rendering insurance available for products that would have been uninsurable.?

Contact Powell and Roman if you need an experienced attorney.

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Powell & Roman Welcomes Joanna L. Crosby, Esq. to the Firm

Wed, 20 Jun 2018 21:10:00 GMT

Joanna L. Crosby, Esq.

Powell & Roman is pleased to announce the addition of Joanna L. Crosby to our firm. Ms. Crosby is licensed in New Jersey and New York and has over 30 years of insurance coverage and defense experience. She has litigated and arbitrated on behalf of insurers in state and federal courts, and at inter-company forums and arbitration panels.? Her vast insurance industry experience includes, general liability, products liability, professional liability, OCIP/wrap up, umbrella and excess forms, and Bermuda form policies.? She has briefed and argued dozens of appeals before the New Jersey Superior Court Appellate Division and The United States Court of Appeals for the Third?Circuit. ?As an active member of the New Jersey State Bar Association, Ms. Crosby stays at the forefront of the industry?s developments and litigation hot topics, and regularly lectures for?clients, industry groups and colleagues. As Programming Chair of the State Bar’s Insurance Law Section this year, she has created programs and brought together panelists for presentations on Agent & Broker Liability (2017), Commercial Insurance Coverage and the Opiod Crisis (2018), Insurance Coverage and The Latest Developments on Allocation (2018). Most recently, she has authored articles in the November 2017 Insurance Law Section newsletter on Broker Liability and the March 2018 issue discussing the Opiod Crisis and Commercial Insurance Coverage. Ms. Crosby is well-respected in the profession and was listed in New Jersey Super Lawyers in 2015, 2016, 2017, and 2018.*

* No aspect of this advertisement has been approved by the Supreme Court of New Jersey

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Court says suing an insurance broker does not always require an Affidavit of Merit

Fri, 08 Jun 2018 15:47:00 GMT

In a recent opinion, Linda Francese and Rocco R. Giordano v. Narragansett Bay Insurance Company et al ., the New Jersey Appellate Division reversed an order dismissing plaintiffs Linda Francese and Rocco R. Giordano?s complaint against?their insurance agency and broker, defendants Conover Beyer Associates, Inc. (CBA) and CBA employee Mary Ann McMahon (McMahon), for failure to file an Affidavit of Merit (AOM) in accordance with the Affidavit of Merit Statute (AMS). Plaintiffs Francese and Giordano are the owners of a home located in Brick, New Jersey, who obtained homeowners insurance and flood insurance from CBA and McMahon in 2010, just prior to Hurricanes Irene and Sandy.

The main contention in this case was a purported representation by McMahon that the ground level of the plaintiffs? home and its contents would be covered under the flood insurance they purchased. In October 2012, Super Storm Sandy damaged the plaintiffs? home and personal property on the ground floor. Subsequently, the plaintiffs contacted McMahon who advised that the plaintiffs had $100,000 in contents coverage. A week later, the plaintiffs spoke with another agent from CBA who advised them that their ground floor was uninsurable and that they did not have contents coverage for their personal property.

In October 2013, plaintiffs filed a complaint against CBA and McMahon, alleging, (among other claims), a claim for breach of contract. Thereafter, on a motion for summary judgment, the lower court had to decide whether the cause of action for breach of contract was based on professional negligence, which would require an AOM or misrepresentation. The court found in favor of CBA and McMahon due to the absence of an AOM. The plaintiffs appealed.

The plaintiffs argued that their claims against the defendants were premised on misrepresentation not professional negligence. On appeal, the appellate court agreed with the plaintiffs and held that a jury is capable of deciding, without an expert, whether or not McMahon did or did not make such representations as to whether they had flood coverage for the contents of the ground floor of their home.

On cross-appeal, CBA and McMahon argued that even if no AOM was required on the misrepresentation claim, the lower court erred in denying their motion for summary judgment on the misrepresentation claim because plaintiffs? reliance on defendants? representations were neither reasonable nor justified. The court found that the defendants failed to cite any case law holding that reliance on the representation of an insurance agent as to coverage available under an insurance policy is in fact unreasonable or unjustified. Finding genuine issues of material fact as to whether or not the insurance broker made representations regarding contents coverage to the plaintiffs, the appellate court affirmed the denial of summary judgment to the defendants on the misrepresentation claim.

Contact Powell and Roman if you need an experienced attorney.

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Superstorm Sandy Litigation: Here We Go Again

Thu, 10 May 2018 21:08:00 GMT

Check out the recent decision, Estate of Doerfler v. Federal Insurance Company, recently decided by the New Jersey appellate court.

In February of 2014, plaintiff Stephanie Doerfler filed a complaint against Chubb Insurance Company of America alleging breach of contract of a homeowner?s insurance policy. Among the defenses raised by Chubb was that Doerfler?s loss was not covered because of the surface water exclusion in the policy. Ultimately the lower court entered a Final Judgment Order ?in favor? of defendants Chubb and Federal and ?against? plaintiffs Doerfler and the Estate ?on all issues and claims relating to the liability of the defendants to the plaintiffs as alleged in Count I and II of plaintiffs Amended Complaints.? The homeowners appealed.

The case originated with plaintiffs’, Stephanie Doerfler and Ronald Doerfler, purchase of Chubb Masterpiece homeowner?s insurance policies for each of their beach homes in Mantoloking, New Jersey. In October 2012, during the Chubb policies, Super-Storm Sandy caused damage. The issue before the court was related to the exclusion provisions of the policies which stated that ?we [Chubb] do not cover any loss caused by: flood, surface water, waves, tidal water, overflow of water from a body of water? or spray from any of these even if driven by wind.? While the trial court ruled in favor of the insurance company, it did not set forth the reasons for its decision.

Here, the Superior Court of New Jersey, Appellate Division, reversed and remanded the matter to the Law Division because the motion judge failed to make any findings of fact or reach any conclusions of law. The appellate court stated that its role is to review the decision of the trial court and not decide the motion from a blank slate.

Now, over five years after the storm, litigation continues. This illustrates that all parties are best served by the courts when the basis of a decision is provided by the court.

Contact Powell and Roman if you need an experienced New Jersey or New York attorney.

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Attorneys Joseph M. Powell and Aisha Farraj Turn $33,000.00 Cargo Claim into a $95,000.00 Recovery

Mon, 05 Mar 2018 21:54:00 GMT

Joseph M. Powell and Aisha Farraj

Attorneys Joseph M. Powell and Aisha Farraj successfully subrogated against a New Jersey towing company that Powell & Roman alleged, inter alia , violated the Consumer Fraud Act. Following four days of trial, the towing company agreed to pay $95,000.00 to settle?the subrogation action brought by Powell & Roman on behalf of the insurer and the Consumer Fraud action brought on behalf of a Chicago based trucking company. Powell & Roman alleged that the towing company took advantage of, and preyed on a family owned trucking company and the trucking company?s insurer, Those Certain Underwriters at Lloyd?s, London. The trucking company, delivering perishable cargo from Chicago to Connecticut, had the misfortune of getting in a motor vehicle accident on Interstate Route 80 in Rockaway Township, New Jersey. The New Jersey towing company, seeking to take advantage of an out of state trucking company and London based insurer, refused to release the cargo or trailer without payment in excess of $30,000.00.? By the end of the ordeal, it took thirty-one days and two court orders before the trucking company, with the assistance of a sheriff?s officer, was able to retrieve the trailer and cargo. In addition, because of the towing company?s actions, frozen cargo valued over $33,000.00 was destroyed, and over the course of the month, the trucking company lost thousands of dollars in trucking delivery sales.? Additionally, as it turns out, when Powell & Roman delved further into the case during the course of discovery, found evidence of billing and business practices that Powell & Roman alleged? were deceptive, untruthful, excessive, and in violation of the Consumer Fraud Act.

If you were involved in an automobile accident and believe that you were charged excessive towing charges, or you are a trucking insurer which deals with unscrupulous towing companies and this story is all too familiar, contact Powell & Roman for a free consultation.

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Partner Jose D. Roman admitted to the United States Court of Appeals for the Third Circuit

Mon, 26 Feb 2018 21:38:00 GMT

?????????????????????????? Jose D. Roman

? In addition to servicing our clients, Powell & Roman has been busy improving our professional skills and striving to be the best firm possible.

? This month, Jose D. Roman, a partner at Powell & Roman, was admitted to the United States Court of Appeals for the Third Circuit. Jos? is an experienced trial attorney who concentrates in the areas of premises, professional, and public entity liability, as well as insurance coverage litigation.

? If you?d like to learn more about how we can be of service to you in any of our practice areas, please contact us for a consultation.

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?Wear and Tear? Exclusion in a Homeowners Policy Applied to Long-term Pool Damage

Mon, 27 Nov 2017 05:35:00 GMT

In a recent, unpublished opinion, the NJ Appellate Division held that the ?wear and tear? exclusion of a homeowners insurance policy applied to damage to a pool that occurred over the course of several years.

Beginning in the winter of 2014, Richard and Vicki Klein noticed that their in-ground pool appeared lower than usual. The Kleins then made a claim under their homeowners insurance policy issued by Franklin Mutual Insurance Company (?Franklin?). Once the snow and ice cover melted off of the pool cover, the Kleins also noticed a tree branch in the pool and tears in both the pool cover and lining, with the pool walls bowing inward. The Kleins claimed that a rotting tree branch fell from a neighbor?s property into the pool, the same of which was not observed by either the Kleins or their neighbor.? The Kleins? public adjuster, Thomas Brett, Jr., opined that wind?caused a tree branch to fall into the pool, in turn puncturing the pool lining and cover,?ultimately creating a ?domino effect? that led to the pool damage. Thus, Mr. Brett argued that the Kleins? claim should be covered.

In turn, Franklin hired an engineer, Craig Moskowitz, MBA, MS, PE, who noticed several bowed walls and corroded metal connection bars in the pool, as well as unleveled pool stairs. Mr. Moskowitz concluded that based on his inspection?the bowing of the walls occurred over a 5-10 year period, and thus Franklin denied the Kleins? claim. Franklin argued that the alleged pool damage fell within the ?wear and tear? exclusion in their homeowners insurance policy. Thereafter, the Kleins filed suit against Franklin, alleging that Franklin improperly denied their insurance claim.

Franklin then filed a motion with the court to exclude Mr. Brett?s expert testimony, arguing it should be considered a ?net opinion.? The trial court agreed. Both parties then moved for summary judgment. The trial judge concluded that ?it was the insurer?s burden to demonstrate that the claim fell within an exclusion in the policy to disclaim coverage,? and that Mr. Moskowitz?s report proved that the Kleins? claims were barred by the ?wear and tear? exclusion in the policy. The trial court also found that the Kleins offered no admissible expert testimony to prove their claims.

The Kleins appealed the trial court?s decision, arguing that ?the trial judge erred in determining that they were required to prove causation for the claimed damages, and in accepting the defense expert?s opinion, as it is the jury?s province alone to assess the credibility of witnesses.? The Appellate Court disagreed, and affirmed the trial court?s opinion, concluding that the trial court judge?s ?factual findings [were] fully supported by the record and, in light of those facts, his legal conclusions [were] unassailable.?

The Appellate Court further noted that insurance policy exclusions are narrowly constructed and that the Kleins offered no expert testimony to rebut the expert opinion of Mr. Moskowitz.

Contact Powell and Roman if you need an experienced attorney.

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Insured v. Insured Exclusion Upheld by NJ Appellate Court

Wed, 27 Sep 2017 22:30:00 GMT

In a recent opinion, Abboud v. Nat?l Union Ins. Co. , the New Jersey Appellate Division held that there does not need to be proof of collusion in order for the ?insured vs. insured? exclusion in a Commercial Insurance Policy to apply.? Michael Abboud, the former CEO of Monarch Medical PET Services LLC (?Monarch?), sued Monarch and four of its member-managers claiming that they attempted to remove him from his positions as CEO and Board Member. Mr. Abboud claimed that the Defendant?s breached their fiduciary duty and the firm?s operating agreement. He sought: (1) reinstatement; (2) salary and other employment benefits; (3) an injunction restraining the defendants from interfering with his access to the premises, its computers, and its employees; and (4) attorney?s fees and costs.

Four of the Defendants, including Monarch, countered by seeking a declaratory judgment against Mr. Abboud on the basis that grounds existed for involuntarily withdrawing his membership interest in the company. They claimed that Mr. Abboud engaged in self-dealing and exploited Monarch?s opportunities for his personal gain and his companies, and breached Monarch?s operating agreement. Furthermore, Monarch individually claimed that Mr. Abboud breached his loyalty and fiduciary duties, and engaged in intentional interference with prospective economic advantage. The Defendants sought and obtained an acknowledgement of partial coverage from its insurance company, National Union, under the Employment Practices Liability section of Monarch?s multi-coverage policy, which further contained a Directors & Officers Liability Section (?D&O Section?). The acknowledgement was sent a month after Mr. Abboud filed his claims against the Defendants and before any counter-claims were filed.

Mr. Abboud also sought coverage under the D&O section of the National Union policy, and filed a ?notice of claims covered? with National Union on November 20, 2013 as per the D&O section of the policy. Mr. Abboud?s attorney claimed the notice was late because both Monarch and National Union delayed responding to requests for information about coverage. National Union failed to respond to the notice, and, in turn, Mr. Abboud filed a declaratory judgment action against National Union, seeking indemnity and defense costs for the counterclaims against him. Mr. Abboud further asserted that National Union?s failure to respond to his requests for information about coverage ?barred National Union from denying coverage based on waiver and estoppel principles.?

National Union denied that its policy provided indemnity or defense costs coverage for the counterclaims against Mr. Abboud, and filed a motion for summary judgment against Mr. Abboud, arguing that the ?insured vs. insured? exclusion within the D&O section of the policy precluded coverage. Mr. Abboud countered, claiming the ?insured vs. insured? exclusion only applied ?if there was collusion, and whether there was such collusion presented a genuine issue of material fact.? Moreover, he contended that enforcement of the exclusion ?would frustrate his reasonable expectations,? because of National Union?s failure to respond to the ?notice of claims covered.?

The trial court granted National Union?s motion for summary judgment, claiming that the ?insured vs. insured? exclusion within the D&O Section of the policy prevented Mr. Abboud?s claims for indemnification and defense coverage, and that estoppel was inapplicable because Mr. Abboud failed to demonstrate any reliance on National Union?s inaction. The trial court further held that Mr. Abboud?s arguments about coercion were premature, because ?he failed to identify the discovery that could create a dispute over material facts.?

Mr. Abboud appealed, and the New Jersey Appellate Division upheld the trial court?s grant of summary judgment in favor of National Union. The Appellate Division concluded that ?[t]here is nothing ambiguous, convoluted, or opaque about this exclusion when interpreted in accord with the definitional provisions. The exclusion disallows coverage when the claim is raised by either an executive of the company (i.e. an ?individual insured? who is not an ?employee?) or the company itself,? and since the claims brought against Mr. Abboud were made by Monarch and executives of the company, the exclusion applied.

The Appellate Division additionally rejected Mr. Abboud?s argument that coverage should be granted based on his expectations of coverage. The Appellate Division reasoned that the record failed to provide any concrete evidence of Mr. Abboud?s expectations and that ?[t]he policy provides commercial insurance to a presumably sophisticated consumer. The public at large has no identified interest in finding coverage. The policy language is straightforward, as discussed above, and is ?not so confusing that the average policyholder cannot make out the boundaries of the coverage.??

Moreover, the Appellate Division disagreed with Mr. Abboud?s claims that proof of collusion is necessary to apply the ?insured vs. insured? exclusion. The court reasoned that the exclusion?s purpose was to ?exclude coverage both of collusive suits ? such as suits in which a corporation sues its officers or directors in an effort to recoup the consequences of their business mistakes, thus turning liability insurance into business-loss insurance ? and of suits arising out of those particularly bitter disputes that erupt when members of a corporate, as of a personal, family have a falling out and fall to quarreling.?

Contact Powell and Roman if you need an experienced New Jersey or New York attorney.

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Transgender Child?s Name Change OK?d by New Jersey Court

Mon, 18 Sep 2017 19:00:00 GMT

In a first of its kind case in New Jersey, a sixteen-year-old transgender child won the right to change his name to reflect his gender identity.

In Sacklow v. Betts , the child?s mother petitioned the court to change the name of her sixteen-year-old transgender child from Veronica to Trevor. The child?s mother certified that the name change was in Trevor?s best interest because the ?child is transgender, identifies as male, and has been undergoing treatment for gender dysphoria.? Trevor?s father initially opposed the proposed name change, arguing that a hearing was necessary to determine whether the name change was in the best interest of the child. After the court heard testimony from Trevor and his father, Trevor?s father indicated his willingness to consent to Trevor?s name change, despite having lingering concerns about whether it was in his best interests.

Trevor?s mother and father were married in 1996 and divorced in 2011; both parents share joint legal custody of Trevor and he primarily lives with his mother. Trevor?s mother certified that at an early age, Trevor ?did not conform to the gender norms of a young girl of that age? and that she ?believed, as did [Trevor?s father] that [the child] was simply a quintessential ?tomboy.?? Once Trevor entered into the sixth grade, Trevor?s parents noticed an overall decline in his mental health and well being, noting that ?Trevor went from being a good student and never getting into trouble to ?getting bad grades, lying, vandalizing school property, and fighting.?? Trevor was then referred to his school district?s Child Study Team and began to receive therapy from a Licensed Clinical Social Worker.

Six months after beginning therapy, Trevor declared to his family that he was transgender and that he identified as male. Both parents asserted they struggled to understand Trevor?s gender identity, and Trevor began seeing a psychologist who would later diagnose him with gender dysphoria. After receiving this diagnosis, Trevor began to make the physical and mental transition from female to male.

During this period, Trevor requested to his family that he be called Trevor, rather than Veronica. Trevor?s family complied with his wishes, with the exception of his father, step-mother, and step-siblings. Moreover, a court previously ruled that Trevor should be permitted to ?be examined by a professional specializing in the diagnosis and care of transgender youth? and as a result of the examination Trevor began to receive hormone treatments.

The court observed the significance of the name change of a child compared to that of an adult, by noting that ?[a]dults can petition the court for a name change or consent to gender reassignment surgery or treatment. However, children are unable to make such decisions on their own unless they have been deemed emancipated.? Furthermore, while ?[m]ost states will require children to defer to their parents? wishes regarding decisions that affect the child?s life and well being ? courts routinely become involved in decisions that affect the child?s life and well-being where there is a dispute between the child?s parents as to the appropriate course of action for the child.?

After giving a brief overview of public policy considerations, the court analyzed seven factors it considered in deciding whether to permit Trevor?s name being changed. The first factor considered was the age of the child, with the court finding great consideration be given to the same as he was a child of sixteen, going on seventeen years of age. The second factor the court examined was the length of time Trevor had been using his chosen name, with the court concluding that the five years was a significant length of time. Third, the court assessed ?any potential anxiety, embarrassment, or discomfort that may result from having a name that the minor child does not feel corresponds with his or her outward appearance and gender identity.? Although Trevor did not testify to any explicit experiences of violence against him based on his gender identity, the court noted that there was a number of studies finding a significant rate of bullying against transgender youth, as well as the fact that gender identity is now included in the federal hate crime statute. Next, the court reviewed the psychological and medical care that Trevor had received relating to his gender identity, finding that the amount of treatment received supported that he was ?fully committed to living his life as a male.? Afterwards, the court considered how Trevor is identified by his family, as well as at school and within the community, determining that Trevor is referred to as Trevor by almost everyone except when he is with his father?s family or by a substitute teacher. Subsequently, the court analyzed the reasons Trevor was seeking the name change, finding it was merely for personal reasons and to match his gender identity, and not to avoid criminal prosecution or to defraud creditors. Finally, the court scrutinized whether both parents consented to the name change, concluding that Trevor?s mother and father both did.

After considering the above seven factors, the court concluded that it was in Trevor?s best interest for Trevor?s legal name to be Trevor rather than Veronica, and thus, the court granted the name change.

Contact Powell & Roman if you need an experienced family law attorney.

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Grand Opening of Powell & Roman’s New Point Pleasant Office

Fri, 15 Sep 2017 17:33:00 GMT

On Thursday, September 14th, Powell & Roman celebrated the grand opening of its new Point Pleasant office. Point Pleasant Mayor Robert A. Sabosik attended the ribbon cutting ceremony. Powell & Roman is excited to work with and serve the residents and businesses of Point Pleasant.

Contact Powell & Roman if you need an experienced New Jersey or New York attorney.

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Pedestrian Injured in Car Accident Denied PIP Benefits

Thu, 06 Jul 2017 15:21:00 GMT

Who pays your medical bills if you?re a pedestrian and suffer personal injuries as a result of being hit by a car? The answer is not always quick and easy and will depend on the interplay between your own health and car insurance, as well as the driver?s car insurance. New Jersey is a ?no-fault? car insurance state. This means that ordinarily your New Jersey automobile insurance policy will provide you with medical coverage, also known as ?Personal Injury Protection? or ?PIP? coverage, if you are injured in an automobile accident or if you?re a pedestrian injured by an automobile.

What happens if you don?t live in New Jersey and are involved in a car accident when you?re passing through or here on a visit? New Jersey has something called the ?Deemer Statute? that requires out-of-state automobile insurance policies to provide an adequate level of PIP coverage while the driver is in New Jersey. A recent case, Legette v. Gov?t Emples. Ins. Co. , illustrates the complexity of New Jersey pedestrian accident law. The case dealt with the issue of whether an insurance policy issued in Virginia would provide no-fault PIP coverage to a Virginia resident who suffered personal injuries as a result of a pedestrian car accident (unlike New Jersey, Virginia is not a ?no-fault? car insurance state).

Kathleen Legette was visiting her daughter at Princeton University. Kathleen parked her automobile in a parking lot on Princeton?s campus and while she was crossing the street to reach her daughter?s residence hall, she was struck by an automobile and suffered serious injuries and approximately $113,825.47 in medical bills. Kathleen?s vehicle was registered in Virginia and insured by GEICO.

While Kathleen?s complaint against the driver that struck her ultimately settled, Kathleen filed suit against GEICO to receive PIP coverage benefits for her medical expenses. Kathleen argued that the ?Deemer Statute? legally required GEICO to provide ?minimum standard automobile policy PIP benefits, covering injuries suffered while her out-of-state-insured vehicle was used in New Jersey.? GEICO argued that the ?Deemer Statute? did not apply, as Kathleen was acting as a pedestrian and ?was not using or operating her vehicle at the time of the accident.? The trial court found in favor of Kathleen, concluding that the ?Deemer Statute? required GEICO to provide PIP coverage for Kathleen although she was a pedestrian at the time of the accident.

The Appellate Division reversed, siding with GEICO. The court focused on the ?Deemer Statute?s? language stating that the act is prompted ?whenever the automobile or motor vehicle insured under the policy is used or operated in this State.? As Kathleen had already exited and locked her vehicle and was crossing the street at the time of the accident, the court reasoned that the nexus between Kathleen and the use of her vehicle had ended and thus, the ?Deemer Statute? was inapplicable. The Appellate Court cited numerous, similar cases to support their holding, where ?Deemer Statute? benefits were rejected because the insured was not actually ?using? their vehicle at the time of the accident. As a result, it appears that New Jersey courts are reluctant to trigger insurance benefits under the ?Deemer Statute? for drivers injured in pedestrian car accidents.

Contact Powell & Roman if you need an experienced New Jersey or New York attorney.

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Policy Cap on Flood Coverage Limits Debris Removal Recovery

Tue, 20 Jun 2017 14:44:00 GMT

Does debris removal coverage apply concurrently?when an insurance policy limits ?flood coverage for all losses ?resulting from Flood to buildings, structures or properties in the open? in the covered flood zone?? In Oxford Realty Group Cedar v. Travelers Excess and Surplus Lines Company the New Jersey Supreme Court held that a policy?s cap on flood damages applies to all damages arising from flood.

Oxford Realty Group Cedar, CLA Management and R.K. Paten LLC (?The Plaintiffs?), own and manage an apartment complex located in a flood zone in Long Branch that was severely damaged by flood during Superstorm Sandy. The Plaintiffs purchased a Commercial Property policy with Travelers Excess and Surplus Lines Company (?Travelers?) to insure the apartment complex, including debris removal coverage capped at $500,000.00. A flood endorsement, limited to $1 million, was added to provide flood coverage in the policy. After Superstorm Sandy, Plaintiffs took steps to repair the damage caused by flooding, including debris removal. The Plaintiffs filed claims for flood damage in excess of $1 million and for $207,961.28 in debris removal costs. Travelers contended that recovery of any damages resulting from flood was limited to $1 million, including for debris removal, and thus, only paid Plaintiffs $1 million on its claim.

Plaintiffs then sued Travelers, wherein the trial court granted summary judgment in favor of Travelers, concluding that the flood and debris removal coverage was unambiguous and that the coverage for flood damage was limited to $1 million. Plaintiffs appealed the decision. While the Appellate Division agreed that the coverage was unambiguous, it reversed the trial court?s decision, reasoning that the $1 million limit only applied to damage to the building itself and that the insurance policy provided additional coverage for the cost of debris removal caused by flood.

The New Jersey Supreme Court, in a 5-2 opinion, reinstated the trial court?s grant of summary judgment in favor of Travelers, concluding that the Flood Endorsement section of the insurance policy explicitly stated that ?the most [Travelers] will pay for the total of all loss or damage caused by Flood ? is the single highest Annual Aggregate Limit of Insurance specified for Flood shown in [Section B.14 of] the Supplemental Coverage Declarations. This limit is part of, and does not increase, the Limits of Insurance that apply under this policy.? Applying Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am. , the Court additionally found that the Appellate Division overlooked the express coverage cap of $1 million for all damage caused by flood by applying the Plaintiffs? alternative reading of the coverage contract, rather than the plain, express language of the contract itself. The Court further noted that the doctrines of contra proferentem [1] and reasonable expectations [2] are less applicable in commercial cases and in particular when dealing with surplus lines policies. When applying this lesser standard, the Court found no ambiguity in the language of the insurance contract.

The Court turned to the United States Court of Appeals for the Eight Circuit for guidance, noting a case, Altru Health System v. American Protection Insurance Co. , concerning a hospital that was temporarily shut down by a civil authority after suffering severe flood damage. The Eighth Circuit considered whether a policy?s limitations for damages caused by civil authority interruption applied concurrently with the policy?s limits for damage caused by flood occurrence. Similarly, the Eighth Circuit found that the cap on damages for flood applied to all damages arising out of the flood, and that the civil authority damage limitation did not apply in addition to the flood damage limitation.

Contact Powell & Roman if you need an experienced New Jersey or New York attorney.

[1] ?The doctrine that, in the interpretation of documents, ambiguities are to be constructed unfavorably to the drafter.? (Black?s Law Dictionary, 10 ^th Ed.).

[2] ?The principle that an ambiguous or inconspicuous term in a contract should be interpreted to favor the weaker party?s objectively reasonable expectations from the contract, even though the explicit language of the terms may not favor those expectations.? (Black?s Law Dictionary, 10 ^th Ed.).

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Insurance Broker?s ?Personal Experience Testimony? Inadmissible in NJ Court

Tue, 13 Jun 2017 18:25:00 GMT

Is an insurance expert?s opinion?based on?industry experience?a ?net opinion? that should be rejected by the court? The New Jersey Appellate Division, in Satec, Inc v. The Hanover Insurance Group, et al , recently concluded that?expert testimony based on objective support is required in order to bring an action against an insurance professional, upholding the trial court?s grant of summary judgment in favor of the insurance underwriter and agency.

In 2003, Satec, a distributor of electricity measurement meters, acquired a warehouse and business offices in Union County. In 2007, Satec was seeking to insure its property and reached out to Centric, an independent insurance agency. Centric later provided Satec with a letter outlining a proposed Business Owners Insurance Policy (BOP), and the letter noted that Satec should review the proposal?s coverage limits and exclusions, outlined in a separate document included with the letter. The coverage limits and exclusions clearly stated that flood insurance was not covered in the proposed BOP. Satec ultimately went on to purchase the proposed BOP from Centric, underwritten by Citizens, a subsidiary of Hanover Insurance Company, which Satec annually renewed through May 2012. A few days after purchasing the BOP, Centric sent another letter to Satec that stated ?[p]lease review the attached Recommendations and Important Information flyer for insurance coverage not included in your present insurance program and other factors affecting your insurance.? The letter further noted that ?[a]lthough your policy is a broad contract, there are limitations, conditions and exclusions that may affect your recovery in the event of a claim. There are other coverage restrictions outlined in your policy as well.? Under the portion of the letter labeled ?list of insurance coverage not included in your present insurance program?, was ?Flood and Earthquake Coverage.?

On August 28, 2011, Satec?s property suffered $2.3 million dollars in property damage because of flooding caused by Hurricane Irene. Thereafter, Satec filed a coverage claim with Hanover, which was denied after Hanover?s investigation concluded the damage was caused by flooding. After Hanover concluded a loss control investigation, Hanover became aware that Satec?s property was located in a flood hazard zone, which Hanover did not communicate to either Satec or Centric.

In February 2012, Satec filed a lawsuit against Centric, Lee Nestel (the President of Centric), Hanover, and Citizens, claiming breach of contract, negligence, and professional malpractice. The trial court granted summary judgment in favor of the defendants, after Satec?s expert testimony was deemed inadmissible. Satec appealed.

Satec raised three issues on appeal.? Plaintiff alleged the trial court committed error because: (1) the expert opinion deemed inadmissible was valid expert testimony; (2); ?[u]nder established New Jersey law, an insurance producer/broker owed a fiduciary duty to advise the insured?; and (3) ?Hanover was vicariously liable for the negligence of its agents, Centric and Nestel.? The Appellate Division found that the expert testimony of Stanley Hladik that Satec sought to admit in support of its malpractice claim was invalid, as expert testimony ?must be informed and given content and context by generally accepted standards, practices, or customs of the insurance industry.? Mr. Hladkik, who had worked in the insurance industry for twenty-five years, relied solely on his own personal experiences to support his expert opinion.? He failed to establish the standard of care through any treatises, documents, established practices, or similar sources of authority in the industry. The Appellate Division, citing Pomerantz Paper Corp. v. New Cmty. Corp. , concluded that ?[i]f an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is personal, it fails because it is a mere net opinion.?

Furthermore, the Appellate Division held that Satec was unable to prove that Centric and Mr. Nestel breached their duty to procure and counsel Satec regarding their need for flood insurance because the required expert testimony was held as inadmissible. Moreover, citing Hubbard v. Reed , the Appellate Division reasoned that expert testimony is not required only when a ?jurors common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant?s negligence without the benefit of specialized knowledge of experts.? In this case, expert testimony was required to help guide the jury on the appropriate standard of care and elements of the fiduciary relationship and duty to procure that Centric and Mr. Nestel were required to meet.

Finally, the Appellate Division found that Hanover should not be found vicariously liable for the Centric?s alleged negligence. Citing Johnson v. MacMillan , the court concluded that in a case of an independent insurance broker, ?imputation will not apply when the broker is evaluating a client?s needs and making recommendations accordingly.? Therefore, the court found that Satec is unable to impute the alleged actions of Centric onto Hanover.

Contact Powell & Roman if you need an experienced New Jersey or New York attorney.

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Partner Jose D. Roman Receives Commendation from the Supreme Court of New Jersey for his Pro Bono Work

Wed, 01 Mar 2017 18:54:00 GMT

Jose D. Roman

In February 2017, Jose D. Roman, Partner at Powell & Roman, received a commendation from the Supreme Court of New Jersey for his tireless pro bono work. The Supreme Court specifically acknowledged Mr. Roman?s efforts in helping those who cannot afford an attorney and making our system of justice available to everyone in need, regardless of their means.

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Powell & Roman Participates in the Annual Polar Bear Plunge in Asbury Park on New Year?s Day!

Tue, 17 Jan 2017 01:03:00 GMT

On New Year?s Day Powell & Roman took the cold plunge into the Atlantic Ocean to help support two local causes: Stephy’s Place which is a Monmouth County support center for grief and loss and Shore House which is an organization based in Long Branch that helps people living with mental illness regain their lives through education, employment and socialization.

This year the Polar Bear Plunge raised over $39,000! The two causes, Stephy?s Place and Shore House, receive 100% of the money raised. The Annual Polar Bear Plunge is hosted by the Sons of Ireland, a non-profit association founded in 2002 with the specific intent of supporting charities and causes in Monmouth County, New Jersey.

Powell & Roman looks forward to taking the plunge again next year!

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Recent New Jersey Case May Have A Major Impact On Grandparent Visitation Rights

Tue, 27 Dec 2016 17:42:00 GMT

Can a parent unilaterally terminate a grandparent?s visitation rights after entering into a mutual agreement allowing for such visitation rights? Not so, according to a recent decision from the Appellate Division of the State of New Jersey.

In Slawinksi v. Nicholas , a custody dispute arose between the mother of a small child and the child?s paternal grandmother. The mother had obtained sole custody of the child after the child?s father had his visitation rights suspended by a court order. Despite having sole custody of the child, the mother entered into an agreement through the court allowing the child?s paternal grandmother to have visitation rights. After several weeks, the mother changed her mind and petitioned the court to have the grandmother?s visitation rights revoked. The mother argued that the grandmother had not properly cared for the child, that the child no longer wished to see the grandmother, and that the grandmother had allowed the child?s father to see her, in spite of the fact that his visitation rights had been revoked by a court order.

The trial court agreed with the mother that a parent?s wishes are entitled to a great deal of deference by a court as against the rights of a non-parent, and allowed the mother to unilaterally terminate the grandmother?s visitation rights, subject only to a showing by the grandmother that harm would result to the child if her visitation rights were discontinued.

The Appellate Division reversed. While it agreed with the trial court that a parent has a ?fundamental right to raise a child as he or she sees fit,? and that such right ?encompasses the authority to determine visitation by third parties, including grandparents,? the court believed that the mother had essentially waived this authority by way of the prior agreement allowing for the grandmother?s visitation rights. The court held that ?nothing about a parent?s right to autonomy warrants allowing a parent to unilaterally modify or terminate a [mutual agreement] on grandparent visitation. The parent effectively waives that autonomy by entering into the [agreement allowing for visitation], just as a parent waives rights when entering into any other [agreement] governing custody or visitation.? The court concluded that any parent requesting a modification of a prior mutual agreement for grandparent visitation rights will be required to show that there have been ?changed circumstances,? and that such changes warrant a revision of the original agreement.

This case places a significant qualification on the autonomy of parents in regard to their children, and is a major victory for family members, such as grandparents, interested in obtaining visitation rights. However, this case will likely only apply where a parent has entered into a mutual agreement regarding visitation with another family member, such as a grandparent.?Parents and grandparents alike would be wise to keep this case in mind before entering into any such agreement.

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William R. Kugelman Named President of A-Team BNI Chapter

Mon, 17 Oct 2016 19:05:00 GMT

William R. Kugelman

We are proud to announce that William R. Kugelman was named President of the A-Team BNI Chapter. BNI is the world?s leading referral organization with over 200,000 members in 64 countries. The A-Team Chapter meets weekly in Hazlet, New Jersey and is enormously successful with over $1.8 Million in referral business over the past 12 months. Mr. Kugelman will serve through the 2016-2017 term.

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Challenge Over Disparaging Trademark To Be Heard By The Supreme Court

Thu, 06 Oct 2016 17:29:00 GMT

In December of 2015 the en banc U.S. Court of Appeals for the Federal Circuit struck down a 70-year-old provision of the Lanham Act that denies registrations for ?disparaging? trademarks. The appeal was filed by Simon Shiao Tam who tried to trademark his Asian-American rock band, the Slants, but the United States Patent and Trademark Office (USPTO) rejected his request on the ground that the band name disparages Asians. The Federal Circuit ruled that the ban on disparaging trademarks violated the First Amendment and constituted viewpoint discrimination.

Last week, the Supreme Court of the United States agreed to hear the dispute over the band?s name. However, the Supreme Court denied to hear a similar case involving the Washington Redskins, at the same time. Last year, the USPTO canceled the Redskins? trademarks, finding that they were disparaging to Native Americans. Both the Slants and the Redskins argue that it is unconstitutional for the government to deny trademark rights for offensive speech.

Even without trademark protection both groups can still use their respective names. However, trademark registration provides multiple legal benefits, including the right to sue in federal court and the entitlement to certain statutory damages in the case of counterfeiting.

The Supreme Court will hear the band?s argument early next year.

Contact Powell & Roman if you need an attorney.

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Jose D. Roman Wins Real Estate Malpractice Appeal

Wed, 28 Sep 2016 15:32:00 GMT

Jose D. Roman

We are pleased to announce that Jose D. Roman successfully defended a real estate broker in a malpractice suit. The case was dismissed on December 17, 2014 and the dismissal was appealed. In an August 19, 2016 decision the Appellate Division upheld the dismissal.

The case Merrigan v. Mac J. Keyport, LLC , involved a 2010 sale of a new home in the Borough of Union Beach. Though the home was newly built on a slab from the ground up, pre-existing concrete footings, gas and water lines were re-used from a prior torn down single-story home. The new two-story home was marketed and sold as ?new construction.? Permits filed with Union Beach showed that the home was considered a ?new dwelling.? The home was subsequently destroyed in 2012 during Superstorm Sandy. The homeowners sued both the homebuilder and the real estate broker involved in the sale of the home, arguing that the home should not have been sold as ?new construction.? They claimed that the home would have withstood Superstorm Sandy if it was actually ?new construction,? rather than a ?new dwelling? built with part of an old foundation. They also claimed that they were owed the full purchase price of the house due to the misrepresentation of the home as ?new? and its total destruction in Superstorm Sandy.

Both the trial and appellate courts found that the case should be dismissed because there was no evidence showing a causal link between the alleged misrepresentations and the destruction of the house due to Superstorm Sandy. In other words, there was no expert to prove that the home would have actually survived Superstorm Sandy if it was actually ?new construction.? In addition, since the plaintiffs chose to and sought to remain in the home, they were not entitled to a refund of the full purchase price of the home. On this point, the court concluded that the plaintiff?s had no proof quantifying any loss in the value of the home that was caused by the alleged misrepresentations.

Contact Powell & Roman if you need an attorney.

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Is Savings a Factor When Calculating Alimony?

Wed, 21 Sep 2016 17:21:00 GMT

Should a married couples? monthly savings be factored into a calculation for alimony payments? A New Jersey appeals court said, yes, a history of savings should be considered. The decision is a departure from the general rule followed by most other states.

In Lombardi v. Lombardi , a former wife appealed a final judgment of divorce, arguing that the trial court had failed to take her and her ex-husband?s monthly savings into account for purposes of calculating alimony. During the course of their marriage, the couple earned a substantial amount of income, but saved most of their money to protect against unforeseen expenses and to allow for future financial security. The trial court estimated that the couple saved approximately $87,000.00 per month, while living a frugal, middle class lifestyle despite their substantial earning capacity.

The trial court did not take these substantial savings into account when calculating the amount of alimony payable by the husband to his former spouse, reasoning that a divorcing couples? savings have traditionally been included as a factor for determining alimony payments only when there is a need to protect against future contingencies.

The Appellate Division reversed the trial court, finding that a divorcing couples? regular savings must be considered in any determination of alimony. The court explained that the purpose of alimony is to ensure that the receiving spouse maintains the same standard of living he or she enjoyed throughout the course of the marriage. The court stated that ?there is no demonstrable difference between one family’s habitual use of its income to fund savings and another family’s use of its income to regularly purchase luxury cars or enjoy extravagant vacations. The use of family income for either purpose over the course of a long-term marriage requires the court to consider how the money is spent in determining the parties? lifestyle, regardless of whether it was saved or spent on expensive purchases.? Essentially, the court believed that any distinction for purposes of calculating alimony between a couple who saves their earnings and a couple who spends their earnings is an unfair elevation of form over substance. And while the court noted that it was departing from the law of other states in making its ruling, it believed that its decision was in line with fundamental notions of fairness and equity. As a result, matrimonial lawyers, as well as any person preparing for a divorce, should expect regular savings to be a factor when calculating alimony.

Contact Powell & Roman if you need a lawyer.

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Small Businesses Enforcing Their Trademark Rights Against Infringers

Tue, 13 Sep 2016 15:14:00 GMT

Rise Basketball Skill Development, LLC, a basketball training school based in California, has filed a complaint in the United States District Court for the Northern District of California against retailer K-Mart Corp. and Risewear LLC, alleging that K-Mart Corp. and Risewear LLC, violated federal trademark law through fraudulent business practices.

In 2015 Rise Basketball Skill Development, LLC registered a trademark with the USPTO that encompassed the word RISE, to be used on its basketball apparel. The company prides itself as being a leader in basketball training and sports performance in Northern California. Rise Basketball Skill Development, LLC alleges that in the Spring of 2016 K-Mart began selling basketball shoes manufactured by Risewear LLC, bearing an infringing mark. Rise Basketball Skill Development, LLC alleges that the infringing mark caused consumer confusion and that the defendants profited off of their fame and reputation. Rise Basketball Skill Development, LLC is requesting a preliminary injunction, accounting of profits, attorneys? fees, and the costs of filing the lawsuit. A preliminary injunction is a temporary order made by the court that prevents the defendants from pursuing a particular course of conduct until the conclusion of the trial on the merits. In trademark infringement cases a preliminary injunction is often requested to limit or stop the use of an allegedly infringing mark prior to a final determination of the merits of the case. The grant of an injunction is an important form of relief and is often the primary remedy sought in a trademark infringement case.

Contact our offices to speak with one of our attorneys if you believe your trademark is being infringed.

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CPCU Seminar Presented by Powell & Roman and Hart Engineering

Wed, 07 Sep 2016 20:17:00 GMT

Construction Defect Litigation & Its Impact on Insurance

The New York Chapter of the CPCU Society and the Excess, Surplus, & Specialty Lines Interest Group Committee are co-sponsoring a seminar presented by Powell & Roman and Hart Engineering entitled: Construction Defect Litigation & Its Impact on Insurance

When: Thursday, September 29, 2016 12:00 PM ?-?5:30 PM Eastern Time

Where: SLC Conference Center 15 W. 39 St. 3rd Floor, New York, New York 10018, USA

Dress Code: Business

Fees Event Registration (including lunch): Non Members?$60.00 New York Chapter Members?$50.00

View Event Summary

View Event Agenda

Registration Deadline

Thursday, September 15, 2016

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NJ Personal Injury Attorneys May Have a Greater Need for Expert Witnesses After Appellate Decision

Wed, 07 Sep 2016 19:39:00 GMT

Does a person who is injured in an overcrowded waiting room need an expert witness to prove fault on the part of the physician?s office? According to a recent decision by a New Jersey appellate court, a person injured in an overcrowded waiting room can hold the physician?s office liable only if the office has breached an applicable municipal safety or fire code, or if the injured patient puts forward an expert witness to testify as to the unsafe conditions caused by the overcrowded waiting room.

In the case of Baum v. Harry John Coniaris, LLC , a woman named Karen Baum was injured in a waiting room when she tripped and fell as she walked past another patient?s wheelchair. Karen Baum and her husband sued the physician?s office, arguing that the office had been negligent by allowing the waiting room to become overcrowded, and that this overcrowding had caused Karen?s injuries.

The suit was dismissed at trial, with the trial judge holding that the case could not go forward because the Baums had produced no evidence to show that the overcrowded waiting room constituted negligence on the part of the physician?s office. In particular, the trial judge noted that the Baums ?did not cite any municipal code or ordinance such as a fire code which states how many people would be a safe number for the size of the waiting room,? nor did they ?cite to any statute or common law for the assertion that an overcrowded waiting room on its face is negligence.? In the absence of such evidence, the trial court required that the Baums produce an expert witness to attest to the unsafe conditions caused by the overcrowded waiting room. The Baums provided no such expert witness or report, and so the case was dismissed.

The Appellate Division affirmed the trial court?s decision on appeal, holding that, ?[g]iven the absence of applicable codes or regulations governing the waiting room?s capacity . . . expert testimony was required.?

This decision may have far-reaching implications for persons who are injured in a medical office or other such location due to what they believe to be a hazardous on-site condition. If the injured person cannot point to any applicable safety code, regulation, statute, or case law, then he or she may have to produce an expert witness?an expensive and time-consuming endeavor?to attest to the offending party?s negligence.

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Child Support News: Court Rules On Modification Of Unallocated Support Payments

Wed, 24 Aug 2016 17:24:00 GMT

There is uncertainty in New Jersey family law as to whether a lump sum child support payment for multiple children can be retroactively modified based upon one of the children?s emancipation. This question may finally have been answered by a New Jersey Family Court in the case of Harrington v. Harrington .

In Harrington , a former husband had been paying unallocated child support of $240.00 per week for his three daughters?the term ?unallocated? meaning that the child support payments were not apportioned between the three children. These payments continued at the same rate, however, even after two of his daughters were legally emancipated. It wasn?t until over a year later that he filed a motion with the court seeking a retroactive modification of child support payments dating back to the emancipation of his two oldest daughters, claiming that his child support should have been reduced to $80.00 per week (1/3 of what he was paying before two of his three children were emancipated).

In deciding whether such a modification was proper, the court had to grapple with New Jersey?s anti-retroactivity law, which prohibits retroactive modification of an existing child support order for any period of time prior to the filing date of a motion for such relief. In this particular instance, the court was concerned that the law would be violated as it related to the spouses? youngest daughter, the only child for whom the former husband continued to make support payments.

In spite of the anti-retroactivity law, the court held that it had the power to retroactively modify child support payments if certain factors were met. These factors relate mostly to notions of fairness, such as how much time has passed between the date of one child?s emancipation and the supporting spouse?s request for modification, the reasons for the supporting spouse?s delay in seeking modification based on the emancipation of one of the former spouses? children, and whether either of the former spouses engaged in fraudulent or dishonest activity. The court was also quick to note that, though it had the power to do so, it was unlikely to grant Mr. Harrington?s request for retroactive modification due to his having no valid reason for delaying more than a year before requesting a modification.

Any person responsible for unallocated child support payments for multiple children is thus encouraged to seek a modification immediately upon the emancipation of any one of the supported children, as courts seem hesitant to grant a retroactive modification of child support, even without the aid of the anti-retroactivity statute.

Contact Powell & Roman if you need a lawyer.

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Insurance And Business Lawyers Should Take Heed Of New Supreme Court Decision

Thu, 18 Aug 2016 04:05:00 GMT

Does unexpected and unintended consequential damage caused by a subcontractor?s faulty workmanship constitute ?property damage? caused by an ?occurrence? under a commercial general liability (?CGL?) insurance policy? ?Is such a claim excluded as ?damage to your work product??? After a long period of uncertainty in the state, the New Jersey Supreme Court has finally ruled that such claims are covered.

In the case of Cypress Point Condo. Ass?n v. Adria Towers, LLC , a dispute arose from the construction of Cypress Point, a luxury condominium complex in Hoboken, resulting in a lawsuit by the condominium association against the project?s collective developers and general contractors: Adria Towers, Metro Homes, and Commerce Construction Management. The condominium association alleged that the work on the complex, all of which had been carried out by subcontractors, had been performed below acceptable standards and had resulted in roof leakage and water infiltration.

The developers had obtained CGL insurance policies during the project, which provided insurance for? “those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ . . . caused by an ‘occurrence’ that takes place in the ‘coverage territory’ . . . [and] . . . occurs during the policy period.” An “occurrence” was defined by the policy as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy defined “property damage” as “[p]hysical injury to tangible property including all resulting loss of use of that property.”

The insurer had attempted to deny coverage for the lawsuit, claiming that consequential damages caused by the faulty workmanship did not constitute ?property damage? caused by an ?occurrence? as per the conditions of the policy. The Supreme Court disagreed, holding that the post construction consequential water damage was in fact ?property damage? as defined by the policy, and that the water flowing in through the faulty roofing was an ?occurrence? under the policy.

In interpreting the term ?occurrence,? the court had to give meaning to the term “accident,” which was not defined in the policy. The Court found that the term “accident” encompasses unintended and unexpected harm caused by negligent conduct. Therefore, because the subcontractors’ faulty workmanship and consequential water damage was an “accident,” it was an “occurrence” under the policy and, as such, is afforded coverage.

After finding that post construction consequential damages constituted an “occurrence” the Supreme Court went on to determine whether nevertheless the insurer had a right to deny coverage based on an exclusion in the policy for damage to “your work”. The seminal New Jersey Supreme Court case previously addressing whether construction defects were covered under a CGL policy was? Weedo v. Stone-E-Brick,Inc. , 81 N.J. 233 (1979) which interpreted a similar “your work” exclusion found in a 1973 ISO standard CGL policy.? Significantly, the “your work” exclusion was amended by ISO in 1986 to include an exception for work done by sub-contractors.? This exception, for the last 30 years has not been interpreted by our courts, provides that the “your work” exclusion “does not apply if the damaged work or the work out of which the damage arises was performed on your behalf by a subcontractor.”

This case now puts to rest the argument that an insurer may deny coverage based on the ?your work? exclusion for construction defect cases when a subcontractor?s faulty work results in consequential damages to a construction project.? The exception applies and coverage is afforded to the general contractor in charge of that project.

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New Jersey Pothole Personal Injury Case Dismissed Against City And Water Company

Fri, 12 Aug 2016 16:10:00 GMT

Pothole fall down cases are difficult to prove because they ordinarily involve a public entity that enjoys some immunity from lawsuits.? The recent case Colon v. City of Hoboken , illustrates the many defenses that can be raised to dismiss a pothole case. The facts are relatively straightforward. A woman was injured when she fell due to stepping in a pothole on Ninth Street in Hoboken. She sued the City of Hoboken and the private utility company, United Water Company. She claimed that the depression was caused after a water line was installed in the road six years prior to the accident.

In order to prove a case against the City, the plaintiff had to prove that it had notice of the pothole and that its failure to act was ?palpably unreasonable.? The court found that there was no basis for liability against the City because it did not create the pothole, it had no actual knowledge of the existence of the pothole, and it was not required to go out and discover potholes on its streets.

The court also dismissed the case against United Water. In attempting to prove her case the plaintiff hired an engineer who claimed that United Water negligently backfilled a trench when it installed the water line six years prior. In particular, the engineer claimed that United Water should have performed soil density testing to establish that the backfill was properly compacted. The court rejected the engineer?s opinions, finding that he had no factual basis to make these conclusions because he had no knowledge concerning the procedures or equipment used by United Water when it performed its work.? In addition, the court noted that the lack of soil density testing does not prove that the soil was improperly compacted. He also was unable to cite any industry standard that requires soil testing.

In our view, the case was properly dismissed by the court. Far too many cases make it to a jury with barely any proof of negligence. This is a good example of the court taking a hard look at the plaintiff?s expert?s opinions and finding them to be baseless.

Contact Powell & Roman if you need an attorney.

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Retirement, Insurance, And Finding A New Partner Have A Dramatic Effect On The Cost Of Divorce

Wed, 03 Aug 2016 09:00:00 GMT

Most people know that divorces are expensive. But what many people may not know is that the cost of a divorce can change over time as a result of a number of different factors. These factors may include retirement, changing insurance costs, and even finding a new partner. ?The impact of these factors on how much a former spouse pays (or receives) can often be dramatic. The best way to protect against such contingencies is to plan for future life changes when negotiating the terms of your divorce. The divorce agreement is typically called a ?Property Settlement Agreement? or PSA.

For example, in Quinn v. Quinn , the New Jersey Supreme Court enforced a PSA agreement between two former spouses stating that the former husband?s alimony payments would permanently terminate upon the former wife?s cohabitation , or living full time with another partner. Typically, alimony is reduced when cohabitation is found, and is only permanently terminated in extreme circumstances. But the Court found it important that private agreements between divorcing spouses be interpreted according to the spouses? intent. Since the agreement was unambiguous on the point of alimony payments being permanently terminated in the event of cohabitation, the court ruled that the agreement would be enforced as written.

Where marital agreements are silent, courts may look to traditional concepts of fairness to determine a particular issue. In the case of Fichter v. Fichter , a New Jersey family court held that a former husband was required to pay for half of the cost of his daughter?s car insurance in addition to his current child support payments. Importantly, the marital PSA did not address the issue of whether the former husband?s current child support payments included the cost of his daughter?s auto insurance coverage. The court, relying on traditional principles of fairness, noted the extreme importance of providing the daughter with auto insurance coverage, and found the former wife?s request to be a ?prudent and logical? way to protect their daughter?s safety and welfare.

Retirement can also have a major impact on spousal support payments. In Mueller v. Mueller , a New Jersey family court noted that a supporting spouse can make an application for modification or termination of alimony payments roughly twelve to eighteen months before retirement. The court will then make a prospective judgment as to whether support payments should be modified or terminated. In Landers v. Landers , the Appellate Division clarified which spouse carries the burden of demonstrating whether support payments should be terminated upon retirement . For couples divorced before 2014, it is the supporting spouse?s obligation to show the court why a termination of alimony is proper. For couples divorced after 2014, the burden falls upon the receiving spouse to demonstrate why alimony should continue past the supporting spouse?s retirement.

These cases demonstrate the importance of a contract such as a PSA in divorce settlements. Rather than constantly applying to the court for a modification, divorcing spouses can remove much of the doubt by setting out the terms ahead of time. Major life events such as finding a new partner, children receiving their driver?s licenses, and retirement usually coincide with changes in support payments. As such, divorcing spouses would do well to take account of these potential events in a marital PSA or other agreement.

Contact Powell & Roman if you need an attorney.

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Sneaker Wars: Trademark Infringement Involving Converse?s Iconic Sneaker

Wed, 27 Jul 2016 09:00:00 GMT

In October 2014, Converse filed a lawsuit against 30 companies, including New Balance, Ralph Lauren Corp., Skechers, Wal-Mart Inc., Tory Burch, Aldo Group, and Kmart Corp., alleging infringement of Converse?s sneaker?s bumper toe, striped midsole and toe cap.

The design accents are found in Converse?s well-known Chuck Taylor All Star sneakers. In addition, Converse requested that the International Trade Commission (ITC) begin an investigation into the allegedly illegal importation or sale of products bearing certain likeness of its trademarks.

The major issue in the case was whether the Chuck Taylor bumper toe, striped midsole and toe cap had acquired ?secondary meaning? within the retail world. In other words, Converse needed to prove that the sneaker accents were so unique and distinct that it would elicit an association in the mind of consumers between the sneaker accents and the source/manufacturer.

In January 2015, New Balance claimed it had a meeting with Converse asking for clarification on the trademark infringement claims advanced against other competitors and proposed a coexistence agreement with Converse. Converse rejected New Balance?s proposal. Interestingly, New Balance had intervened in the trademark infringement case to try to protect its ability to sell its popular sneaker called PF Flyers, which had used toe caps, toe bumpers, and stripes for decades.

The ITC ruled that Converse did not have common law trademark in the midsole, bumper element, nor toe cap. Further, the ITC found that the sneaker design was not distinctive enough to acquire secondary meaning. Now retailers, like New Balance and Wal-Mart, can continue selling their sneakers which use a combination of a toe cap, toe bumper, and midsole stripes.

If you are accused of trademark infringement contact our offices to speak with one of our attorneys.

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Don?t Count Your Chickens: New Jersey Appellate Division Ruling May Come As A Surprise To Insurers And Business Law Attorneys

Thu, 21 Jul 2016 14:01:00 GMT

Does an insurer have an obligation to indemnify its insured for liability related to animal health care products, or do such occurrences not qualify as an ?occurrence? of ?property damage? under the insurance contract? A recent Appellate Division decision, Phibro Animal Health Corp. v. National Union Fire Ins. Co ., held in the affirmative, requiring the insurer to indemnify the product manufacturer unless it could prove on remand that one of the insurance contract?s exclusions applied.

The plaintiff, Phibro, is a manufacturer of animal health care products. One of its products, known as Aviax, had the unintended effect of causing stunted growth in chickens. After several Phibro customers brought suit, Phibro sought defense and indemnification under the Commercial General Liability Insurance policy and an Umbrella Prime Insurance policy it had with National Union. The matter ended up in court, with a trial court finding that National Union was not obligated to provide defense and indemnification because the damage to the chickens could not be considered an ?occurrence? of ?property damage? under the policy.

In reversing the trial court, the Appellate Division noted that coverage provisions are generally given a ?broad reading.? The policy?s language defined an ?occurrence? as ?an accident, including continuous or repeated exposure to substantially the same general harmful conditions.? Noting that ?the accidental nature of an occurrence is determined by analyzing whether the alleged wrongdoer intended or expected to cause an injury,? the court determined that the damage to the chickens could be defined as an occurrence under the policy because ?Phibro [never] expected, foresaw, or anticipated the growth of its customers? chickens would be stunted if they ingested Aviax.?

The court also determined that the chickens? stunted growth could be considered a form of property damage. The policies defined property damage as ?[p]hysical injury to tangible property, including all resulting loss of use of that property? or, alternatively, ?[l]oss of use of tangible property that is not physically injured.? Rejecting National Union?s argument that stunted growth should not be considered a ?physical injury,? the court held that the term ?physical? should be interpreted broadly as ?an alteration in appearance, shape, color or in other material dimension.? The court also made clear that ?it [is] incumbent on the insurer to clearly and specifically rule out coverage in the circumstances where it was not to be provided,? since the term ?physical? can often have an ambiguous meaning.

However, there is still hope for National Union. The Appellate Division remanded the case for a factual determination of whether the contract?s ?impaired property? exclusion serves as a basis to deny coverage. Specifically, the contract?s impaired property clause states that ?if such property can be restored to use by the repair, replacement, adjustment or removal of ?your product? or ?your work? or your fulfilling the terms of the contract or agreement,? then it applies as impaired property and is therefore not covered by the contract. On remand, the trial court will determine whether the chickens reasonably and feasibly could be restored to their normal size and weight within a commercially-viable time frame and at commercially reasonable cost. If so, the exclusion will apply.

This case highlights the importance of contract language, especially when the contracts may involve liability for physical damage to less conventional forms of property, such as livestock.

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Contractors And Construction Law Attorneys Should Take Note Of Recent EIFS Ruling

Wed, 13 Jul 2016 04:05:00 GMT

One of the more contentious trending topics in insurance law concerns how broad of a scope courts will give to insurance contract exclusions for EIFS (Exterior insulation and finish system), a composite material used for exterior cladding, insulation, weatherproofing, and finishing.

In its recent decision, Crum & Forster Insurance Co. v. The Breese Corp. , the Superior Court of New Jersey, Appellate Division, construed broadly both the contract exclusion and the definition of an EIFS in holding that Crum & Forster was not obligated to defend its insured contractor due to an EIFS exclusion in the insurance contract.

The case stemmed from contracting work that The Breese Corporation had performed for the Lakeside at North Haledon Condominium Association. The Breese Corporation was insured by Crum & Forster, but the insurance contract contained a broad exclusion for any property damage relating to the use of EIFS.

During the course of litigation between Lakeside and The Breese Corporation relating to the faulty installation of EIFS, Crum & Forster filed a separate action seeking a declaration that it was not obligated to defend or indemnify its insured in the underlying litigation.

Lakeside attempted to hold Crum & Forster liable as The Breese Corporation?s insurer, claiming that some of the insulation work performed on the premises could be not defined as EIFS because it did not serve the function of an external cladding and was merely ?aesthetic? in nature. Alternatively, Lakeside also argued that the contract terms were ambiguous.

The case ultimately came down to a battle of conflicting expert testimony as to whether the board insulation used on the project served the function of weather proofing and insulation, thus making it an EIFS, or whether it was merely an aesthetic detail. ?This in turn depended on whether the insulation board was fastened to a substrate and whether it had a base coat with reinforcing mesh as a component.

The Appellate Division ultimately sided with the trial court in holding that the term ?substrate? is not limited to one particular, uniform substance, but can include various kinds of material. Furthermore, contrary to Lakeside?s contention that material such as stucco serves as its own exterior cladding and that any additional insulation is merely aesthetic in nature, the court held that stucco was an acceptable substrate for EIFS and that EIFS can function both as an aesthetic trim as well as a protective system.

The court then quickly dispatched with Lakeside?s argument that the exclusion was ambiguous, finding that the contract description matched the American Society for Testing and Materials? (ASTM) definition of an EIFS.

This case is a definite win for insurers, who can feel confident that courts will construe broadly the term ?EIFS? to constitute a wide variety of external insulation so long as the insulation serves some functional role relating to cladding or weatherproofing.

Contractors should have an experienced attorney review proposed construction contracts as well as their insurance policies to determine if the work they will perform is afforded coverage under their insurance policies.

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Recent Court Decision May Have Huge Impact On Retirement And The Divorce Process

Thu, 30 Jun 2016 10:00:00 GMT

Does a court?s determination of whether a person?s alimony obligations should terminate upon retirement depend on when the former spouses were divorced? This appears to be so after a recent New Jersey Appellate Division decision.

In the case of Landers v. Landers , a former husband petitioned the court to terminate his alimony obligations due to his impending retirement. The court, in interpreting a series of amendments made to the state?s alimony laws, determined that it was the former wife?s responsibility to demonstrate to the court why alimony should not be terminated. After finding that the former wife had not done so, the court terminated the former husband?s alimony obligations.

The appellate court disagreed, however, finding that the trial court misinterpreted the law. According to the appellate court, the amendment to the state?s alimony laws on which the trial court relied applies only to people who were divorced after the new laws became effective in 2014. Because the couple had divorced prior to 2014, the statute relied on by the court did not apply. As such, the Appellate Division determined that it was not the former wife?s responsibility to convince the court that alimony should not be terminated. The Appellate Division then sent the case back to the trial court to reconsider the issue under the proper standard.

This decision makes clear that the date of a couples? divorce could have major consequences for determining whether alimony will be terminated upon the supporting spouse?s retirement. For a couple divorced after the statute?s effective date, it will be the receiving spouse?s burden to demonstrate why alimony should continue. On the other hand, for couples divorced before the statute became effective, it will continue to be the supporting spouse?s obligation to show the court why a termination of alimony is proper.

This case only illustrates the difficulty in navigating divorce law and the need for a good matrimonial attorney. Contact Powell & Roman if you need an attorney.

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Paying Alimony And Getting Ready To Retire? You Should Think About Hiring A Lawyer

Thu, 23 Jun 2016 09:00:00 GMT

Under New Jersey?s recently amended alimony law, former spouses who are currently paying alimony may make an application to the court for a modification or termination of alimony payments in preparation for retirement.

The question is how long before actual retirement may a former spouse make such an application. While the statute itself does not answer this question, a recent New Jersey family court decision may finally provide some guidance.

In the case of Mueller v. Mueller , a former husband applied for a court order which would terminate his alimony payments upon his retirement. He was fifty-seven years old at the time, and said he planned to retire at the age of sixty-two.? In denying his application, the court noted that five years? time was simply too long a period for a prospective termination of alimony payments.

While the statute establishes standards for modifying a person?s alimony obligations based upon actual or prospective retirement, the court noted that making such a determination five years in advance of the paying spouse?s retirement would be difficult, if not impossible. This is because a modification of alimony requires a fairly complex analysis of a variety of factors relating to the former spouses? economic status.? The court was not willing to make a prediction as to how these factors would play out in five years.

The court further noted that the former husband was retiring at age sixty-two, rather than at the ?retirement age? specified in the statute as the point at which the paying spouse becomes eligible for federal social security payments. This only added to the complexity of the court?s analysis, as it would necessarily force the court to speculate as to whether the former husband would actually be ready to retire at the age of sixty-two. Rather then engage in the ?significant speculation? required for such a determination, the court chose simply to deny the application.

Even so, not all hope was lost for the former husband. The court said it would be willing to make a prospective determination if an application for alimony modification was made at a closer point in time to the former husband?s retirement.

Specifically, the court believed that the twelve-to-eighteen month period before the prospective retirement would be an appropriate time for a modification application. As such, any person with outstanding alimony obligations who is planning to retire within roughly two years? time should strongly consider applying for a modification, or termination, of alimony.

Contact Powell & Roman if you need a lawyer.

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No Personal Injury Liability For Car Loaned To Drunk Driver In New Jersey

Thu, 16 Jun 2016 04:05:00 GMT

Can loaning your car to a drunk driver result in liability if the driver injures someone in an accident? The answer, surprisingly, is not necessarily, at least according to a recent decision by a New Jersey trial court in the case of Vaidyanathan v. Martinez .

On the night of April 29, 2012, Vanessa Martinez asked Joaquin Martinez to use her car to drive to her father?s house to pick up her daughter and return her home in Newark. Joaquin had already been drinking, though Vanessa stated in court that she was unaware of this. On his way to the father?s house, he bought a bottle of scotch and continued to drink. He was so intoxicated by the time he reached the father?s house that the father refused to allow Vanessa?s daughter to get in the car. On his way back to Newark, Joaquin rear-ended a car belonging to Ranjani Vaidyanathan, who sued both Joaquin and Vanessa for injuries stemming from the accident.

Vanessa, it was argued, should have been liable for the injuries caused by Joaquin because she had given Joaquin permission to act as her agent by loaning her car to him and instructing him to pick up her daughter. Vanessa, on the other hand, argued that she was not liable because she had given him permission only to pick up her daughter, and did not authorize him to purchase liquor on his way to pick up the child.

The court ultimately sided with Vanessa. The judge ruled that there ?was no evidence that Joaquin was authorized to make any other trip,? and that when Joaquin consumed enough scotch to render him legally intoxicated he ?exceeded the scope of his authority and failed to accomplish Vanessa?s errand, thus terminating the agency relationship.? As a result, it appears that liability will not be found where a person loans his or her car to a driver who becomes intoxicated, at least in instances where the person does not know of the intoxication.

Contact Powell & Roman if you require an attorney.

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Auto Insurance Ruling May Drive Up Cost of Divorce

Fri, 10 Jun 2016 13:26:00 GMT

As children of divorced parents grow older, child related cost-sharing issues will often arise. One long standing New Jersey Family Law issue was whether child support payments included the increased cost of auto insurance when a child reaches driving age. In other words, was the future expected increase in auto insurance payments already built into a child support payment, or was?an increased payment was warranted?? The question seems to have been answered in Fichter v. Fichter , in which a New Jersey family court ruled that an ex-husband was required to pay for part of the cost of his daughter?s car insurance in addition to his current child support payments.

Fichter concerned a divorced couple whose daughter had recently obtained her driver?s license. While the husband and wife had agreed to a divorce settlement agreement, the agreement did not contain a provision addressing car insurance costs for their daughter, who was only thirteen at the time the agreement was signed. Once the daughter obtained her driver?s license, the ex-wife requested that her ex-husband pay a portion of their daughter?s car insurance in addition to the child support he was already paying.

The state?s child support guidelines relating to the cost of motor vehicle insurance did not resolve the issue, so the court looked to traditional principles of equity and fairness to decide the case. The court stressed the extreme importance of providing the daughter with car insurance, and noted that the ex-wife?s proposal was not ?unfair or unreasonable.?? Rather it was a ?prudent and logical? request to protect their daughter?s safety and welfare.

The court left open the possibility that it may reconsider the issue when the daughter turns eighteen, at which time she may be required to pay part of the insurance cost. But for the time being, divorced parents should take note that they may be liable for the car insurance payments of their minor children in addition to their current child support payments.

Finally, it should be noted that the dispute could have been avoided with a provision in the divorced couple?s divorce settlement agreement addressing increased costs such as a child’s car insurance.

Contact Powell & Roman if you require an attorney.

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Hiring An Attorney To Deal With An Unruly Neighbor?

Wed, 01 Jun 2016 10:00:00 GMT

Can a homeowner sue a property developer and seller for fraud and misrepresentation due to an unruly neighbor? The case Phoenix v. U.S. Home Corporation dealt with a woman who purchased a home built and developed by Lennar Homes. Apparently while taking a tour of the property with a Lennar sales agent, a resident from across the street approached and told her ?not to let Lennar do to you what they have done to us.?

She asked the sales agent about the comments and the agent informed her that there was ?no problem? as he was simply upset because he was no longer eligible for warranty repair services for his home. The prospective purchaser later learned that the man was no longer receiving services as a result of his ?harassing, hostile and volatile interactions? with Lennar?s staff.

The woman eventually agreed to buy a home, and soon began having problems with the man from across the street. His harassing behavior became so intolerable that the woman filed a complaint against him and was forced to hire a security guard. She also filed suit against Lennar, claiming that Lennar?through its sales agent?had committed fraudulent misrepresentations by not disclosing the man?s previous harassing, hostile, and volatile behavior.

The trial court dismissed the complaint and the dismissal was upheld by the Third Circuit Court of Appeals. The court noted that Phoenix ?did not establish that Lennar?s agent . . . made a statement of fact that is false.?

While the agent?s comment that there was no problem with the man may have left the woman with the impression that she should not be concerned, it was not a factual comment, but rather the agent?s opinion about the degree of risk he posed. Furthermore, Lennar had ?no duty to disclose off-site social conditions, such as the personality traits of a neighbor.? As a result, it seems likely that?home buyers will have no recourse against a seller for unruly neighbors.

Contact Powell & Roman if you need to hire an attorney.

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Aisha Farraj Wins Insurance Coverage Appeal: Appellate Court Finds Policy Unambiguous

Wed, 25 May 2016 17:01:00 GMT

Powell & Roman, LLC associate Aisha Farraj was successful in convincing a New Jersey appellate court that a commercial vehicle policy unambiguously limited damages to the amount stated in a schedule included in the policy.

At issue was the policy?s declaration page which stated that in the event of a loss, the ?Basis of Evaluation? was ?Actual Cash Value.? The case Mark IV Transportation and Logistics, Inc. v. Great Lakes Reinsurance , involved a fleet of vehicles valued at nearly $1.5 million dollars. Mark IV filed a claim after one its vehicles?valued in the schedule at $18,000.00?was damaged in an accident. The applicable policy provision stated:

Pursuant to that policy provision, Mark IV was entitled to the amount stated in the schedule for its vehicle, or the actual cash value of its vehicle at the time of loss, whichever was less. For Mark IV?s claim the scheduled amount was less than the actual cash value of the vehicle at the time of the loss. Accordingly, Great Lakes agreed to assume liability on the scheduled vehicle at the $18,000.00 valuation listed in the schedule, minus the applicable deductible.

Mark IV argued that the actual cash value of the vehicle was $24,000.00, and that the insurance contract contained conflicting language creating an ambiguity as to how the vehicle should be valued for purposes of liability coverage. Specifically, Mark IV claimed that the policy was ambiguous because the declarations page stated, ?Insuring Agreement 2 ? Basis of Valuation: Actual Cash Value.? It claimed that this statement was inconsistent with the above quoted provision that limited coverage to the lessor of the amount ?stated in the Schedule or the actual cash value of the vehicle . . . at the time of loss.?

Both the trial court and the Appellate Division disagreed, finding that the relevant provisions of the policy were clear and unambiguous. The Appellate Division held that the statement in the declarations page ?does not create any ambiguity as to the coverage? outlined in the insuring agreement, but rather ?merely indicated that the valuation of any damaged vehicle would be its cash value, rather than its replacement cost.?

The case is an even bigger win for insurers than it may initially seem. While the case concerned only one of Mark IV?s vehicles, the entire fleet was valued at close to 1.5 million dollars. With such considerable potential liability, insurers should feel better knowing that they will not be liable for amounts greater than those agreed to in a vehicle schedule.

Contact Powell & Roman if you need an attorney.

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Living With A Partner And Its Impact On Alimony And The Divorce Process

Wed, 25 May 2016 04:06:00 GMT

Can living with a new partner result in a permanent end to alimony payments? Yes. According to the New Jersey Supreme Court?s recent ruling in Quinn v. Quinn, the court can enforce a provision in a Property Settlement Agreement that calls for a permanent termination of alimony when the ex-spouse lives with a new partner.

Quinn involved a divorced couple that agreed in their Property Settlement Agreement that the husband?s alimony payments would cease upon the wife?s cohabitation, which was defined as living with another partner on a full time basis. Upon discovering that his ex-wife had been living with another man for over two years, the ex-husband filed an application with the court to terminate his alimony payments.

At some point the ex-wife ceased living with the new partner. The family court agreed that the ex-husband did not have to pay alimony during the course of his ex-wife?s cohabitation, but declined to follow the Property Settlement Agreement?s requirement that alimony be terminated permanently, regardless of whether the cohabitation continued.

Given the severe economic disparity between the husband and wife, as well as the fact that the wife was no longer cohabitating, the trial court ordered the alimony payments to continue.

The case eventually went up to the New Jersey Supreme Court, which ultimately ruled in favor of the ex-husband and ordered that the agreement to terminate alimony permanently be enforced. The Court pointed out that under normal circumstances alimony will only be reduced when cohabitation is found, and that permanent termination is typically only ordered in extreme circumstances.

In this case, however, the Court found it important that private agreements between divorcing spouses be interpreted according to the spouses? intent. Importantly, the former wife had been represented by an attorney when the agreement was made, and admitted that she understood that alimony payments would end permanently in the event of cohabitation.

Furthermore, there was no evidence of fraud, overreaching, coercion, or any other compelling reason to depart from the terms of the parties? agreement. The Court therefore decided to enforce the contract as written.

Divorce attorneys, as well as anyone potentially involved in the divorce process should be aware of this case. Potential recipients of alimony will certainly want to guard against such provisions being placed into a Property Settlement Agreement. Anyone potentially paying alimony would likely be interested in bargaining for such a provision.

Contact Powell & Roman if you need a Divorce/Family Lawyer.

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If A Tree Falls Over In Your Backyard, Do You Hire A Lawyer?

Wed, 18 May 2016 12:13:00 GMT

Are homeowners responsible for damage caused by healthy trees and other natural conditions occurring on their property?

According to current New Jersey law, if you don?t plant the tree and are not aware of any rot or other specific hazard, you are not responsible for the damage to your neighbor. In Scannavino v. Walsh , a landowner sued his neighbors for damage to a retaining wall caused by the roots of a mulberry tree in the neighbors? backyard.

The Appellate Division, which handed down a ruling on the case last month, held that the landowners were not liable because the tree was a ?natural condition of the land,? and not a ?non-natural or artificial condition.? In making this decision, the Court looked to the Second Restatement of Torts, which draws a distinction between nuisances resulting from natural conditions, which are actionable, and those resulting from artificial conditions, which are not.

Despite what appears to be a bright line rule, the court was less clear on where to draw the line between ?natural? and ?artificial? conditions. For instance, a landowner may still be liable for damage caused by a naturally occurring condition where the landowner has taken steps to ?preserve? the naturally occurring condition.

The court made clear that such ?preservation? means affirmative steps taken by the landowner to protect and maintain the condition. While the court did not specifically state what level of ??trimming or pruning? would be sufficient to convert a ?natural? condition into an ?artificial? condition, it noted that the periodic trimming by the landowners was not sufficient enough to rise to the level of ?preservation.?

As a result of this decision, homeowners seem likely to receive the benefit of the doubt on the question of ?preservation? and should take some comfort in knowing that they will not be liable for naturally occurring conditions on their property that are largely beyond their control.

Contact Powell & Roman if you require an attorney.

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Child Custody & Visitation: Can You Move With Your Children Out Of State After A Divorce?

Wed, 11 May 2016 20:30:00 GMT

A common post-divorce issue that comes up is whether a divorced parent may move out of state or is limited to living close to an ex-spouse until the children become adults. The short answer, as with many family law issues – – it depends.

First, you need to look at the Marriage Settlement Agreement (MSA). If the MSA does not provide an answer, or if a change to the agreement is being sought, the court may need to resolve the issue. The issue can become quite complicated and it?s always best to have a lawyer guide you through the process. The following recent case illustrates the complexity of the issue.

The issue arose recently in the case Bisbing v. Bisbing , where an ex-wife was seeking to remarry, move to Utah and take the children with her. The couple married in 2005 and had twin girls in 2006. In 2013 they separated and later signed their MSA in 2014. In the MSA they agreed to joint legal custody, with the ex-wife having primary residential custody on condition that she stay in state. They also agreed to “broad, reasonable and liberal timesharing? of the children. With regard to relocation, they agreed to remain within a 15 minute drive, as well as no more than 20 miles from each other.

Less than nine months after the divorce, the wife called her ex-husband and advised him that she intended to get married and relocate to Utah. He replied by stating, “You can move, just leave the girls with me.” The case is currently still pending in NJ Family Court and the issue will be decided after a hearing.

The court must follow the following legal principles at the hearing.

First, the court determines whether one parent is the ?primary caretaker? and the other parent is the ?secondary caretaker.? If the parents truly share both physical and legal custody, the parent seeking the change in the joint custodial relationship must demonstrate to the court that the best interests of the children would be better served by residential custody being shifted to just one parent.

On the other hand, if one parent already serves as the primary caretaker and seeks to relocate with the children, the court must apply the ?the Baures test.? The Baures test requires proof “that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s interests.”

With regard to the first prong of the Baures test, the court must determine if the ex-wife negotiated the MSA in ?bad faith? because she knew she was going to seek to move to Utah the whole time. If bad faith is proven, the court would use the “best interests of the child” standard to determine whether to grant relocation.

In addition, even if it is proven that the wife negotiated in good faith, without manipulative intent, the court must still consider the impact of the non-relocation provision in the MSA because settlement agreements are subject to the “changed circumstances” doctrine.

Under that legal doctrine, a party seeking modification of custody or visitation must show changed circumstances and that the original MSA is now not in the best interests of a child. The court will look to the parties’ understanding at the time of execution of the MSA, i.e., whether a change in employment or remarriage was anticipated. For example, if remarriage was anticipated at the time the MSA was signed and the parties did not include remarriage as a valid reason to relocate, the MSA would ordinarily be enforced.

Assuming that the wife gets past the first prong of the Baures tests by showing that (a) the MSA was signed in good faith and (b) the new marriage presents changed circumstances, the court would then have to move on to the second prong. The court would have to apply the following 12 factors to determine whether the move will not be inimical to the child’s interests:

(1) the reasons given for the move;

(2) the reasons given for the opposition;

(3) the past history of dealings between move;

(4) whether the child will receive educational, health and leisure opportunities at least equal to what is avoided here;

(5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;

(6) whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;

(7) the likelihood that the custodial parent will continue to foster the child?s relationship with the non-custodial parent if the move is allowed;

(8) the effect of the move on extended family relationships here and in the new location;

(9) if the child is of age, his or her preference;

(10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;

(11) whether the non-custodial parent has the ability to relocate;

(12) any other factor bearing on the child?s interest.

As you can see, the law is complicated and convoluted. It pays to have someone who can guide you through this process on your side.

Contact Powell & Roman if you need an attorney.

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The United States Supreme Court Says Bring It On: Copyright Dispute Over Cheerleader Uniforms

Wed, 04 May 2016 04:06:00 GMT

The U.S. Supreme Court has agreed to decide whether stripes, chevrons, zigzags, color blocks, and other design elements in a cheerleading uniform can be copyrighted.

The Court will hear an appeal from Star Athletica, LLC who is defending a lawsuit brought by Varsity Brands LLC, the world?s largest cheerleading-apparel company. Varsity Brands is alleging that Star Athletica copied five of their proprietary designs.

Varsity Brands has registered copyrights for multiple graphic designs that appear on their cheerleading uniforms and warm-ups they sell. Star Athletica also sells cheerleading gear bearing graphic designs that, according to Varsity Brands, are substantially similar to the designs for which Varsity Brands has valid copyrights.

Star Athletica claims that Varsity Brand?s copyrights are invalid because the designs at issue are unprotectable ?design[s] of?useful article[s].?

Under federal law, a design can be copyrighted if it is separable from a product?s utilitarian or useful aspects. Essentially, the U.S. Supreme Court has to decide where the functional design of a cheerleading uniform ends and the graphic design begins. Star Athletica?s main argument is that the colorful designs of the uniforms are an inseparable part of the uniforms because they identify the wearer as a cheerleader.

The issue to be decided by the Court has come up in various cases around the country, all with different outcomes. Public Knowledge, a non-profit organization that promotes freedom of expression, an open Internet, and access to affordable creative works, said in a brief opposing Varsity Brand, ?that a costume replica may be noninfringing at a San Diego convention but infringing in New York? due to the inconsistencies. The Supreme Court will attempt to come up with a nationwide standard to determine whether clothing designs can be copyrighted.

The Supreme Court will hear arguments in the nine-month term that starts in October.

The post The United States Supreme Court Says Bring It On: Copyright Dispute Over Cheerleader Uniforms appeared first on Powell, Kugelman & Postell, LLC .

Fan Films And The Final Frontier Of Copyright Infringement: Can You Copyright The Klingon Language?

Wed, 27 Apr 2016 04:01:00 GMT

Note : We encourage all Star Trek fans to read the Klingon version of this article below. Please remember, contract contract… ‘Ach neh sabtahbogh verengan contract.

Paramount Pictures Corp. and CBS Studios Inc. have filed a lawsuit against Axanar Productions, Inc. alleging that a crowdfunded Star Trek fan film has violated copyright law, by among other things, using the ?Klingon? language. The fan film, entitled, Prelude to Axanar , was described in Axanar?s Kickstarter campaign as a ?short film that will give viewers a historical look at the events leading up to the Battle of Axanar?Shot like a History Channel special, Prelude to Axanar will be Star Trek like you have never seen it before?? The Axanar Production team raised over $100,000.00 to make the Prelude to Axaner film and subsequently raised over an additional million dollars for the feature length follow-up. Paramount and CBS Studios contend that the filmmakers of Prelude to Axanar infringed on Star Trek ?s copyrights by, among other allegations, replicating the Klingon appearance, the Vulcan appearance, and the Klingon Language.

In their Amended Complaint, Paramount and CBS Studios contend that ?Klingonese or Klingon, the native language of Qo?noS, was first spoken in Star Trek ? The Motion Picture in 1979. It was used in several works moving forward, including Star Trek III – The Search for Spock. ? CBS Studios claims that the Axanar Production team is aiming to be of such a visual quality as to be mistaken for the actual Star Trek product. Now a California Court will have to determine for the first time whether a language can be copyrighted. Alec Peters, the lead producer of the Prelude to Axanar film, claims that he had previously met with CBS Studios and was told that Axanar would be ?fine? as long as the Axanar Production team did not make any money. CBS Studios is seeking up to $150,000.00 for every copyrighted Star Trek element that the Axanar Production team has allegedly infringed. Take a look at some of the alleged infringement ( found in the Amended Complaint ). Are the similarities out of this world?

mIllogh qonwI’ qoSta’ Qav’e’ Copyright Infringement ‘ej fan:? laH tlhIngan Hol Copyright SoH?

lawsuit against axanar Productions, inc. teywI’ paramount mIllogh corp. cbs law’ inc. ‘ej alleging ‘e’ copyright chut wem Hov trek fan mIllogh qonwI’ qoSta’ crowdfunded pong wa’ lo’ “tlhIngan” Hol. Del fan mIllogh qonwI’ qoSta’, vaS’a’ ‘oH bomvetlh pong’e’, Prelude axanar, pa’ axanar kickstarter campaign je “ngaj mIllogh qonwI’ qoSta’ historical legh wanI’ Dev axanar may’ ? nob viewers bach rur qun Channel le’, Prelude axanar ghaH Hov trek rur ‘oH pa’ Dleghbe”a’… ” $ 100,000.00 vay’ Prelude axaner mIllogh qonwI’ qoSta’ pep rIn ‘ej ghIq pep rIn Saturjaj ‘uy’ dollars feature ‘ab follow-up axanar Production team. ‘e’ infringed Prelude axanar filmmakers Hov trek copyrights pong, wa’ latlh allegations replicating tlhIngan Hoch, vulqangan Hoch, tlhIngan Hol je ‘oH ghobvam’e’ paramount cbs law’ je.

qaStaHvIS Amended Complaint, vaj “wa’DIch jatlh klingonese tlhIngan, Sung Hol qo’nos, pagh qaStaHvIS Hov trek ? ghotvetlhDaq mIllogh neH 1979. ‘oH ghobvam’e’ paramount cbs law’ ‘ej ngat qaStaHvIS puS Qap spock nej tlhetlhbe’lu’taHvIS, DaH nobvam Hov trek ‘AY’ WEJ-. ” vaj Qeq axanar Production team ‘e’ HaQchorHey visual laHlIj pe’vIl Heghbogh vajpu”e’ ghaH Qagh actual Hov trek product DoQ cbs law’. DaH qIlmeH pIj vIyajlaw’ jotlhmeH laH copyrighted Hol ghaj california je. ‘e’ previously ghom je cbs law’ ‘ej ‘e’ axanar ghaH “rup” Hoch nI’ law’ ngabchugh Huch wej chenmoH axanar Production team ghaH DoQ SuvwI’ alec peter, Dev producer axanar mIllogh qonwI’ qoSta’, Prelude. Da’elDI’ $ 150,000.00 Hoch copyright Hov trek element allegedly infringed axanar Production team ‘e’ yInej cbs law’. SuD legh ‘op allege infringement ( tu’ qaStaHvIS Amended Complaint ), similarities qo’vam?

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Big Box Retailer on Losing Side of Third in Trilogy of Mode of Operation Cases

Wed, 20 Apr 2016 05:00:00 GMT

We recently discussed two Mode of Operation Rule cases, Troupe v Burlington Coat Factory ? and Prioleau v. Kentucky Fried Chicken . We invite you to review our prior blog posts for a full review of the Mode-of-Operation Rule. Both Troupe and Prioleau were decided in favor of the business owners. The latest case, Walker v. Costco Wholesale Warehouse , is a win for the plaintiff?s side.

The Walker case involved a slip and fall close to a free sample table, at Costco in Ocean Township, where bite sized pieces of cheesecake were being offered in small paper cups. The plaintiff claimed that he was injured when he slipped and fell on what appeared to him to be a yogurt-based product. After falling he noticed that the side of his pants were wet and smeared from the substance, though he was unable to determine exactly what is was.

He was unable to estimate the distance between the location of his fall and the sample table, but did mark the location of his fall on a diagram. The case was tried before a jury and the trial judge refused to advise the jury of the Mode-Of-Operation Rule, finding that the rule did not apply to the case because the plaintiff was unable to specifically match up the yogurt-based product on his pants with the cheesecake from the sample table. The jury found in favor of Costco and the case was dismissed.

The plaintiff then filed an appeal and the Appellate Court disagreed with the trial judge?s refusal to give the jury the Mode-Of-Operation instruction. First, the Appeals Court noted that there is a self-service component to the sample table, which triggers the Rule because customers are free to pick up the sample and then walk around the store at their leisure. This activity made the risk of dropped samples foreseeable, thereby justifying the application of the Rule.

Next, the Appeals Court found the description of a yogurt-based product potentially close enough to cheesecake. The Court noted that the cheesecake ?may well have become softer, creamier, and more ?yogurt-like?? due to being left on display at room temperature. In addition, it considered the location of the fall in the diagram to be a relatively short distance from the sample table.

The Appeals Court thought it best to allow the jury to consider the Mode-Of-Operation Rule in light of these facts, rather than the trial judge making that judgment call. The case will now need to be re-tried before a jury.

In our opinion, the Appeals Court appeared to be speculating that the cheesecake could have become more yogurt-like at room temperature, and that the sample table was close to the location of the fall. The facts don?t appear to support these conclusions and the Court appears to be unnecessarily straining to rule in favor of the plaintiff. The Appeals Court even says in its opinion (contrary to its ultimate decision) that the plaintiff did not provide a ?particularly compelling factual basis to support his mode-of-operation argument.? Why rule in favor of the plaintiff when the trial judge, the jury, and the appellate court all appear to have such a low opinion of the merits of the case?

Contact Powell & Roman if you need an attorney.

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Ten Tips For Starting A Business

Wed, 13 Apr 2016 14:52:00 GMT

Starting a new business, whether you’re a brand new entrepreneur or a seasoned business veteran, is both exciting and challenging. It involves planning, financial decisions and of course legal steps. If a new business is in your future, it’s important to educate yourself about the business process so that you can set yourself up for success. We’ve outlined several of the key steps that new and soon-to-be business owners should take.

Have A Business Plan

Determine guidelines for your business, including financing and flexibility. The business plan is your company?s roadmap and if well thought out, it will provide helpful guidance as your business grows. Make reasonable projections of business growth for years 1, 3 and 5.

Form A Business Entity

Determine the type of entity you want to form. You want to consider whether you will have individual liability for business debts and whether you can obtain favorable tax treatment in order to reduce the taxes you will pay. You should seek the advice of an experienced business attorney when considering the type of entity that you will conduct your business under.? There are four types of business entities:

Sole Proprietorship :? If you decide not to form a business entity you are a sole proprietor. By doing so you are exposing yourself to individual liability. It is therefore not the recommended option.

Partnership: When there are 2 or more individuals seeking to open a business, forming a partnership is an option. Generally speaking, under a partnership the individuals are sharing in the profits and losses of the business. A business attorney should be retained to draft a written agreement specifying the partners? responsibilities and obligations to each other and the business.

Corporation: ?C? Corporation or Subchapter ?S? Corporation: Corporations provide a ?shield? from individual liability and are governed by its By-Laws. Corporations are taxed differently depending on the choices made at the outset.? A Subchapter ?S? Corporation is taxed as a partnership providing for favorable tax treatment.? A ?C? Corporation is taxed at the corporate tax rate with all income or distributions to shareholders also being taxed.

Limited Liability Company (?LLC?): Similar in form to a Subchapter ?S? corporation but with less restrictive ownership criteria, the LLC provides all Members with a shield against individual liability and partnership tax benefits. The Operating Agreement is the document that sets forth the responsibilities and obligations of all Members and should be drafted by an experienced business attorney.

Give Your Business Its Own Identity

Once the legal form of your business has been created, it?s time to obtain a Federal tax ID number, open a business bank account, and obtain the necessary licenses/permits for business operation.

Assess The Business Location

Make sure you assess the geographic location, traffic pattern, and convenience of the business location. Additionally, an attorney should review any lease agreements you plan to enter into, as a lease agreement is a complicated legal document that governs more than just the number of years of the lease and price. Other terms of a lease that should be considered are Common Area Maintenance (?CAM?) charges, CAM definitions, and personal guarantees.

Maintain All Internal Documents

Ensure that you use proper contracts and agreements between members or employees of the business that assist in forming ideas at the start of the business. If an idea of the business becomes hugely successful proper contracts can make a big difference.

Register Your Trademarks And Service Marks

Ensure that any trademark or service mark you develop is properly protected by contacting a trademark attorney who can run a search for availability and then register your proposed marks if cleared.

Recognize That Dates Of Use Are Important

Make sure you keep records of the dates of creation and use for any of your products, taglines/slogans, trademarks, or service marks. This will be important when you are asserting your intellectual property rights and/or defending an infringement accusation.

Know The Source Of The Intellectual Property You Use

When creating promotional materials for your business, including a website, be careful of the works you use that you did not create yourself, including photographs, videos and music. To avoid infringement, make sure you are not using the legally protected work of others.

Protect Your Trade Secrets

Like patents, trade secrets can protect your recipes for success and also your products (think Coca-Cola ?) . To ensure you are properly protected, contact an attorney who can assist you in preparing and negotiating non-disclosure and confidentiality agreements.

Protect Your Copyrights

Make sure you register and protect your materials that are copyrightable, including photographs, songs, and videos. Add the copyright symbol ?, your name and the creation date.

If you’re planning to?start a business or have questions before you do, contact us and let our experienced business attorneys guide you.

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Trademark News: Distributors Of Hit Netflix Show House Of Cards Sued For Trademark Infringement And Unfair Competition

Wed, 06 Apr 2016 14:21:00 GMT

A Massachusetts company, D2 Holdings, is alleging that it owns the trademark rights for ?House of Cards? and is asking a court to order distributors of the show to stop using the phrase. In addition, D2 Holdings is requesting that the court order the distributors to destroy any physical or digital materials that bear the trademark.

The show, House of Cards , stars Kevin Spacey and became a hit political drama on Netflix back in 2013 .? D2 Holdings claims it has owned the ?House of Cards? trademark for entertainment goods and services since 2009 and has only licensed it to one company, Granary Way Media. Granary Way media produces a radio show called ?House of Cards? which discusses the gaming industry. D2 Holdings claims it has not licensed the trademark to MRC II Distribution Company, the distributor of the Netflix series, and is suing for trademark infringement and dilution and unfair competition. However, D2 Holdings did not name Netflix as a defendant in the suit.

In its lawsuit, D2 Holdings alleges that MRC II Distribution Company has applied for a number of ?House of Cards? trademarks, at different points of time, and has been consistently rejected by the U.S. Patent and Trademark Office. More specifically, D2 Holdings alleges through its attorney William C. Saturley, that ?[d]espite MRC?s repeated failure to obtain a trademark registration for the HOUSE OF CARDS mark because of the prior existing registration of the HOUSE OF CARDS Mark, MRC has purportedly licensed the HOUSE OF CARDS mark to other entities, thus infringing upon Plaintiff?s rights in the HOUSE OF CARDS Mark.?

Listed in the lawsuit are a variety of examples of MRC II?s alleged infringement, including distribution of t-shirts and hats bearing the ?House of Cards? trademark. Interestingly, D2 Holdings has also named International Games Technology, the producer of the House of Cards slot machines, as a defendant in the lawsuit. D2 Holdings is suing for actual damages as well as punitive damages of an amount to be determined at trial.

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Retail Business & Injury Law Update: Department Store Found Not Liable For Lack Of Inspection Schedule During Store Hours

Wed, 30 Mar 2016 04:06:00 GMT

Don?t misread the headline.? If you?re a retail business owner, you should clean your store and you need to pick up trash when you see it. Fellow business attorneys, don?t run and tell your clients that it?s better to go without an inspection/cleaning schedule. The issue here is an injured patron seeking to hold a retail business liable for something that was likely spilled or dropped on the floor by another customer before the mess is discovered by an employee.

In a recent post, we highlighted the ?Mode-of-Operation Rule? ?in the context of a slip and fall on grease near the bathroom of a fast-food chain. The issue arose again in Troupe v. Burlington Coat Factory , which involved a woman who slipped and fell on a berry inside the Baby Depot section of a Burlington Coat Factory.

To review, in New Jersey a business can only be held liable for injuries caused by a dangerous condition that it has notice of or creates. In cases involving self-service counters, the Mode-of-Operation Rule may be applied to allow the jury to infer negligence.

In the prior case we reviewed, Prioleau v. Kentucky Fried Chicken , the court found that a slip and fall on grease near a bathroom at a KFC did not trigger the Mode-of-Operation Rule because there was no evidence indicating that the location of the accident had even the slightest relationship to any self-service component of KFC?s business.

In Troupe , the evidence showed that Burlington Coat Factory had the store cleaned nightly but did not have its employees periodically sweep the floors. Instead, its employees were instructed to pick up anything they saw dropped on the floor.? The attorney for the injured woman hired an expert who claimed that Burlington created a substantial risk of injury by not having a periodic inspection/cleaning program while the store was open. The expert claimed that such a program was necessary because Burlington should have foreseen that babies and children would be eating and drinking, resulting in food and liquids dropped on the floor.

The court dismissed Ms. Troupe?s case finding that she failed to prove that Burlington had notice of the berry on the floor prior to the accident. The court also rejected her attempt to apply the Mode-of-Operation Rule. She argued that ?the mode-of-operation that created the hazard was the lack of any periodic inspection of the floors during the business shopping day.? Relying on Prioleau , the appeals court upheld the dismissal explaining that the Mode-of-Operation Rule does not apply to a store?s cleaning schedule.

Similar to Prioleau , the court in Troupe found that the accident did not involve any self-service component of Burlington’s business. The accident occurred in an aisle, not in an area of clothing racks or any aspect of Burlington’s self-service business.? She simply failed to prove that her accident had anything to do with Burlington’s business and, ironically, a berry rotten case was thrown out instead of a piece of fruit.

Contact Powell & Roman if you need an attorney .

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New York Real Estate Purchase Tips

Wed, 23 Mar 2016 10:00:00 GMT

If you?re considering buying property or a home in New York, it can help to arm yourself with information beforehand. Understanding some basic real estate purchasing essentials can smooth the process and improve your experience.

Check Your Credit

Your credit report may have inaccurate information or errors. Check your credit report prior to looking for a house in order to determine if any corrections need to be made. This will enable you to make corrections prior to applying?for your mortgage. You are entitled to and can receive one free credit report every 12 months from each of the nationwide consumer credit reporting companies: Equifax, TransUnion and Experian.

Speak To A Banker

If this is your first home purchase, speak with your banker about getting pre-approved for a mortgage. This will help you better understand your budgetary constraints.

Line Up Your Lawyer

Speak to your real estate attorneys prior to finding your house, so that they will be available to help you every step of the way.

Order A Home Inspection

When you find the house that you’re interested in purchasing, and the seller has accepted your offer, have an engineer come to inspect the house prior to entering into a contract. After you have had the house inspected by the engineer, give the name, address and phone number of your attorneys to the Sellers. The Seller’s attorney will prepare the Contract of Sale and then send it to your attorneys.

Keep Your Lawyer Informed

Make sure to contact your attorneys and let them know what items are included in the sale. For example if the seller is including furniture or lighting fixtures, this is important information to understand. Your attorneys will guide you through the rest of the process.

The attorneys at Powell & Roman, LLC have over 50 years of combined experience in real estate closings. Please call us today or contact us online if you or someone you know is thinking of purchasing a home.

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Divorce Law Tip Sheet: Simplifying The Divorce Process

Wed, 16 Mar 2016 10:00:00 GMT

Divorce is difficult and can take an emotional toll, especially if you?re not sure what to expect during the process. It can help to understand some of the main aspects of divorce law and to prepare as best you can to deal with a challenging situation. The following tips can help you better prepare and approach the divorce process systematically so that you?re more likely to obtain the outcome you deserve.

Consider A?Pre- And Post-Nup

A Pre-Nuptial Agreement is a contract prior to marriage which outlines the rights and
obligations of each spouse in the event of divorce, separation or death.? A Post-Nuptial Agreement is identical to a Pre-Nup, except the contract is entered into after the marriage begins.? Individuals with a business or high net worth should consider a Pre- or Post-Nuptial Agreement in order to eliminate uncertainty during an already difficult time.

Try Speaking To Your Spouse

If after much careful thought and consideration you have reached the conclusion that divorce or separation is inevitable, speak to your spouse to determine if matters can be resolved amicably. ?This will be important to know when you go to consult with an attorney.? When speaking with your spouse discuss the following:

If You Can?t Speak To Your Spouse

If the divorce will be contested be prepared for disagreements before you start the process by doing the following:

Contact A Divorce Lawyer

When you have made your decision to separate or divorce, contact an attorney experienced in matrimonial law. Your attorney will guide you through the rest of the process.

The attorneys at Powell & Roman, LLC have over 30 years of combined experience in matrimonial matters. Please call us today or contact us online if you or someone you know needs assistance with a matrimonial issue or divorce. We will make a difficult situation more bearable and obtain the outcome you deserve.

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New York Real Estate Sale Tips

Wed, 09 Mar 2016 12:00:00 GMT

Whether you’re downsizing an empty nest or you’ve outgrown a starter house, selling your house can be complex. Although the steps involved in selling a home are similar regardless of where you live, New York’s real estate laws and practices are unique in some respects?particularly if you own a co-op or condo. Here are some tips to help get you through the process.

1. Find A Real Estate Broker That Knows Your Market

You need a broker that knows your market to help price your house accurately. Looking at online home sale records does not always give you a complete picture of what is going on in a market.? A knowledgeable broker will have the inside scoop on recent sales. The typical buyer may have changed since you purchased your home, so a good broker will be able to effectively market your house to the type of buyers that are interested in your neighborhood.

2. Find A Lawyer

Speak to your attorneys prior to placing your house up for sale, so that they will be available to help you every step of the way. Getting your attorney involved early can mitigate issues and avoid problems later.

3. Be Aware Of The Disclosure

New York State law requires sellers to provide buyers with a disclosure form, which includes details on the property, including: material defects in the electrical, plumbing, and other house systems; conditions such as rodent damage or asbestos; homeowners? association rules; shared driveways; water source, and other details on the property.

4. Know What You?re Selling

Once you have agreed on a purchase price with the buyer, contact your attorneys and let them know what items are included in the sale. For example,?whether?you will be including furniture or lighting fixtures.

5. Work With Your Lawyer

Be diligent about getting your lawyer all information regarding the sale and any documents he or she might need. Among other tasks, your attorney will review the title report and work to resolve any issues, such as liens on the property; prepare all the closing documents, such as the deed; and calculate how much money is owed to whom at the closing of the deal, and assure that all payments are accurately made.

Your lawyer may also need to draft a lease agreement if you plan to rent the home back for an extended period of time after the closing, or if problems show up on the title report such as a lien on your property.

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NJ Appellate Division Reverses Motion Judge Who Found Insurance Property Claim Was Properly Denied Based On Hidden Construction Defect

Mon, 29 Feb 2016 05:01:00 GMT

On February 19, 2016 a split New Jersey Appellate panel in the case of Bardis v. Stinson & Cumberland Insurance Group, A-3454-12T3, reversed a Superior Court motion Judge finding that a jury should determine whether the basement wall of a home collapsed as a result of “hidden decay.”

Cumberland Insurance Group denied coverage to Alexander and Monica Bardis who submitted a claim following the collapse of their basement wall. The basement had been added to the home approximately 20 years prior to its collapse. A structural engineer for Cumberland determined that when the basement was constructed block walls were used and there were no required underpinnings. Prior to its collapse a significant rain storm and melting snow in the region created hydrostatic pressure on the wall resulting in its demise.

Plaintiff’s expert found that when the basement was constructed the concrete foundational wall was “sistered” within the basement alongside the original shallow bearing wall, and that construction resulted in lateral bending failure due to excessive horizontal loads. The applicable coverage provision in Cumberland’s policy reviewed by the court provides:

Coverage is extended to cover the collapse of a building or any structural part of a building that ensues only as a consequence of the following:

*?????????????????????????????????? *?????????????????????????????????? *

B. Hidden decay, unless such decay is known to an insured prior to the collapse.

*?????????????????????????????????? *?????????????????????????????????? *

F. Use of defective material or methods of construction if the collapse occurs during the construction or repair.

The motion judge found that because the expert evidence established that the wall did not collapse during construction, even though improper construction methods were used years earlier, the loss was excluded from coverage, consequently no genuine issue of material fact existed and a jury determination on the issue was unnecessary.

The NJ Appellate Division disagreed finding that under the ordinary definition of “decay” as found in Merriam-Webster’s Dictionary, that at least one common definition for decay includes a gradual decline in strength. The court went on to find that a jury could have reasonably determined, based on the 20 year delay between the time of construction and the collapse, that the wall underwent such a gradual decline in strength over time, thus meeting the definition of hidden decay.

Thus, even though one cause of this collapse may have been the use of defective material or methods of construction, the Appellate Division found that the plaintiff had the right for a fact finder to determine whether the wall’s gradual decline in strength or “hidden decay” was also a causative factor in its collapse.

Presiding Appellate Judge Sapp-Peterson dissented, finding that the plain meaning of “decay” is not the same as the plain meaning of “defect”, and would have affirmed the motion judge. Based on this split, Cumberland, as of right, may seek review by the New Jersey Supreme Court.

If you would like a copy of this entire opinion you can download it here .

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Commercial Litigation Attorneys Beware: Check If Your Client Has Directors And Officers Liability Coverage Before Defending

Wed, 24 Feb 2016 05:01:00 GMT

The New Jersey Supreme Court has just reiterated the longstanding precedent that an insurer need not suffer prejudice in order to rightfully deny coverage when a policyholder fails to comply with the notice provisions of Directors and Officer’s “Claims Made” Liability policy.

On February 11, 2016 the New Jersey Supreme court in Templo Fuente De Vida Corp et al v. National Union Fire Insurance Company, (A-18-14) (074572) decided that an insurer was within its rights to deny coverage for a claim submitted six months after suit was filed, but before the expiration of the claims made policy, even though the delay did not create an issue with the investigation or handling of the claim. Unlike an “occurrence” based policy, where the insurer is required to show “appreciable prejudice” in order to avoid coverage based on a failure to meet the notice requirements of a policy, there is no such requirement in a “claims made” policy.

The policyholder in Templo Fuente De Vida Corp. purchased a Claims Made policy in force with National Union with effective dates of January 1, 2006 through Jan 1, 2007, and was served with a summons & complaint on February 21, 2006. The insured retained an attorney who filed an Answer on its behalf.

Six months later, while the policy was still in force and discovery was in its infancy, the insured submitted its claim to National Union. National Union denied coverage, asserting among other defenses, that the insured did not report the claim “as soon as practicable.” The trial court found as a matter of law that as a result of the six month delay the policyholder breached this policy condition.

The New Jersey Supreme court affirmed both the trial court and appellate court agreeing that the insured’s delay barred recovery but would not give a bright line time frame to determine a practicable time to provide notice. The court noted, however, that when the policyholder “began defending against the plaintiffs’ claims without first notifying National Union, an action explicitly barred by the terms of the policy, it violated a condition precedent on timely notice to National Union, and thus breached the policy’s express condition of notice of a claim in order for coverage to attach.”

Thus, the insured’s business attorney when presented with a summons & complaint from his client could have avoided this disclaimer of coverage by simply inquiring with his client about Directors and Officers liability coverage and submitting a claim to National Union rather than defending the action.

If you’d like to read the full court opinion you can download the PDF here .

Commercial litigation claims can be complex.? Contact Powell & Roman if you need an experienced attorney.

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