Opinion Summaries

The court clarified when an insurance company may be relieved of providing insurance coverage to an insured who refuses to cooperate in defending a personal injury victim's claim pursuant to the terms of the insurance policy. An insurance company's satisfaction of either of the two variables identified in Hager v. Gonsalves, 398 N.J. Super. 529 (App. Div. 2008), constitutes appreciable prejudice sufficient to forfeit any obligation on the part of an insurance company to provide coverage to an insured.

Under the first variable, a trial court must determine whether an insurer's substantial rights have been irretrievably lost as a result of the insured's breach of the insurance policy. Under the second variable, a trial court must examine an insurer's likelihood of success in defending against an accident victim's claim had the insured not failed to cooperate.

In analyzing the appreciable prejudice variables, the court held the first variable applied to an irretrievable loss of substantial rights related to coverage determinations by an insurer. To conclude otherwise would render the second appreciable prejudice variable redundant. The two variables are intended to address different aspects of appreciable prejudice.

In this appeal, the court addresses the enforceability of an arbitration provision in an agreement signed by a fifteen-year-old minor to gain access to a commercial trampoline park. The court holds that the arbitration provision is not enforceable because the minor had the right to disaffirm the agreement and the limited exceptions to that right did not apply. Accordingly, the court reverses and vacates the order granting defendants' motion to compel arbitration of plaintiff's claims and dismissing his complaint with prejudice. The matter is remanded with instruction that plaintiff's complaint be reinstated so that his claims can be litigated in the Law Division.

The court holds that an adult can waive his or her right to bring claims in a court and can be compelled to arbitrate personal injury claims when the adult had reviewed a clearly worded arbitration provision before entering a commercial recreational park.

The court also remands for entry of a new order because the trial court erred in dismissing the Law Division action. Instead of dismissing the action, the trial court should have stayed the Law Division action, including the claims against defendants who are not parties to the arbitration provision.

Plaintiffs in this case are affiliated companies engaged in selling extended service contracts 31 to motor vehicle owners over the telephone. They claim that defendants hired away key managers and more than forty members of their sales force, siphoned customers, and misappropriated alleged trade secrets.

Relying upon several legal theories, plaintiffs filed suit to recover damages and obtain injunctive relief. In a series of orders, the motion judge granted summary judgment to defendants, dismissing all of plaintiffs' claims now at issue on appeal. In ruling on summary judgment, the motion judge disregarded two certifications submitted by plaintiffs from a codefendant who "switched sides" and became employed by plaintiffs after his deposition.

This court holds that the "sham affidavit" doctrine adopted by the Supreme Court in Shelcusky v. Garjulio, 172 N.J. 185, 199-202 (2002), can extend to a "side switching" situation. In particular, the doctrine can apply where, as here: (1) a codefendant is deposed, (2) that deponent thereafter obtains a job with the plaintiff, (3) the deponent then aids his new employer by signing certifications recanting his deposition testimony, and (4) the plaintiff offers those certifications in opposing summary judgment motions by the other defendants.

Applying the sham affidavit doctrine to this record, the court rules the motion judge appropriately disregarded the side-switching employee's certifications because the employee failed, as Shelcusky requires, to "reasonably explain[]" why he "patently and sharply" contradicted his earlier deposition testimony. Id. at 201.

However, the court rules the judge erred in rejecting as evidence a recorded telephone conversation of a different codefendant who was also rehired by one of plaintiffs' companies after his deposition.

Because the recording should have been considered as evidence weighing against defendants' summary judgment motion, the court remands this matter to allow the Law Division in the first instance to reconsider its dismissal of the lawsuit in its entirety.

Under N.J.S.A. 30:4-123.53 (1979), at the time of Acoli’s parole hearing, he was presumptively entitled to release; to overcome that presumption, the Parole Board had the burden of demonstrating that there was a substantial likelihood that, if released, Acoli would commit another crime. The Parole Board did not meet that burden. The record does not contain substantial credible evidence to support the Parole Board’s decision to deny parole to Acoli. Accordingly, the Court is compelled to overturn the judgment of the Appellate Division and grant Acoli parole, consistent with his established release plan.

In this case of first impression, the court considered whether a victim in a criminal matter has standing to appeal from a trial court order granting defendant's motion for a civil reservation, where the victim neither moved to intervene before the trial court nor this court, and the parties to the underlying action did not appeal. Because the victim was aggrieved by the trial court's order, and the civil reservation was neither raised during plea negotiations nor made a condition of defendant's guilty plea, the court held the victim has standing to appeal.

However, the court's decision was subject to certain caveats. The court held the victim should have moved to intervene for leave to appeal and file a brief before this court. Because the court would have granted the victim's motion and considered her brief on the merits, the court concluded the victim's procedural missteps were not fatal in this case.

As for the merits of the victim's claims, the court concluded the trial court's decision was procedurally and substantively flawed. Because it is unclear from the record evidence whether defendant faces a "precarious financial situation" absent a civil reservation, the court disagreed with the trial court's decision that defendant satisfied the requisite "good cause" standard for entry of the civil reservation order.

Moreover, defendant's admission to the pretrial intervention (PTI)program was conditioned on his guilty plea. Until defendant completes – or is terminated from – the PTI program, his guilty plea is considered "inactive" under the PTI statute and the applicable Attorney General guidelines. Thus, the order under review was premature.

The court therefore vacated the order under review and remanded for further proceedings.

Defendant appealed from the trial court's finding that the parties' written palimony agreement was valid because, among other reasons, the court found both parties were represented by counsel. While this appeal was pending, the Supreme Court decided Moynihan v. Lynch, 250 N.J. 60 (2022) and struck down as unconstitutional a provision of the Statute of Frauds, N.J.S.A. 25:1-5(h), requiring parties to a palimony agreement receive the advice of counsel for such agreements to be valid. The court granted defendant's request for supplemental briefing as to whether Moynihan applied retroactively. The court affirms the trial court's findings upholding the parties' agreement and concludes Moynihan applies retroactively because of the constitutional dimensions of the Supreme Court's holding, which also furthers our State's jurisprudence encouraging the settlement of disputes in family matters.

These three consolidated appeals in personal injury cases pose related but distinct questions involving the application of Rule 4:19. The appeals concern when, if ever, a plaintiff with alleged cognitive limitations, psychological impairments or language barriers can be accompanied by a third party to a defense medical examination ("DME"), or require that the examination be video or audio recorded in order to preserve objective evidence of what occurred during the examination.

With the input of the parties' counsel and amici, the court revisits and updates the opinion from twenty-four years ago in B.D. v. Carley, 307 N.J. Super. 259 (App. Div. 1998) (authorizing the "unobtrusive" audio recording of a neuropsychological DME of a plaintiff who claimed in her civil action that she was suffering emotional distress). The court also considers 2016 Policy Statement of the American Board of Professional Neuropsychology disfavoring the third-party observation and recording of DMEs and urging practitioners to refuse such conditions except where required by law.

In the absence of more specific guidance within the present text of Rule 4:19, the court adopts adopt the following holdings.

First, a disagreement over whether to permit third-party observation or recording of a DME shall be evaluated by trial judges on a case-by-case basis,with no absolute prohibitions or entitlements.

Second, despite contrary language in Carley, it shall be the plaintiff's burden to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.

Third, given advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.

Fourth, to the extent that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged.

Fifth, if the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.

Sixth, if a foreign or sign language interpreter is needed for the exam (as is the case in two of the appeals before us) the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.

The three cases are accordingly remanded to the respective trial courts to reconsider the conditions of each DME, consistent with the guidance expressed in this opinion.

This case involved a high school student injured when struck by another defendant's car while walking home from school. Because the student lived less than two and a half miles from his high school, he was not eligible for mandatory busing under N.J.S.A. 18A:39-1 and, therefore, was required to walk to and from school.

The Board adopted various policies and procedures related to student busing transportation. The Board also adopted procedures for parents seeking to contest the designation of a route as hazardous. The procedure required the parent to contact the Board's transportation supervisor to discuss the route designation and any transportation issues.

Following these policies and applying its adopted criteria, the Board determined the route taken by this student to and from school on the day of the accident was non-hazardous for high school students.

Sometime between 2010 and 2016, the Township assigned a traffic safety officer to work with the Board in evaluating the safety of various student walking routes. Due to cuts to the Board's school budget, the Board asked the Township's traffic safety officer to determine whether busing costs could be reduced. The Township's traffic safety officer determined the route travelled by this student on the day of the accident to be dangerous for students of any age, including high school students, and so advised the Board. The Board denied receiving such a recommendation.

The student and his parents filed suit alleging negligence against the Board, the Township, and the driver. The Board and the Township moved for summary judgment.

The court affirmed the denial of summary judgment to the Board. The court concluded a jury would have to resolve certain factual disputes regarding the Board's duty to plaintiffs, if any, and whether the Board breached such duties. The court identified the following factual issues regarding the Board's conduct: whether the Board breached a duty to plaintiffs by not adhering to its policies and procedures regarding the designation of hazardous routes; whether the Board violated its procedure governing situations where a parent seeks to contest the designation of a hazardous route or other busing issues; and whether the Board should have reevaluated the specific road travelled as a matter of general practice or based on information provided by the Township's traffic safety officer.

Additionally, the court determined a jury must assess whether the Board's failure to undertake these actions constituted a ministerial act, which is not entitled to immunity, or a discretionary act, which is entitled to immunity. The court agreed the motion judge properly denied summary judgment to the Board because there were factual disputes regarding whether the Board's actions or inactions related to the student's transportation were reasonable under the circumstances after considering the Board's obligations under its own transportation policies.

The court reversed the denial of summary judgment to the Township. Under N.J.S.A. 18A:39-1.5(b), the Township had no duty beyond working in conjunction with the Board to determine criteria for the designation of a hazardous route and the Board admitted the Township satisfied its legal duty under the statute. The Board also conceded it made the decisions related to student transportation and designation of hazardous routes without input or participation by the Township.

A.M. suffers from end-stage multiple sclerosis, a progressive condition that renders her physically incapable of conducting any activities of daily life and requires twenty-four-hour daily medical care. After serving eight years of her forty-year sentence for the murder of her husband, she petitioned for release on parole to a medical facility pursuant to the Compassionate Release Act (CRA), N.J.S.A. 30:4-123.51e.

Subsection (f)(1) of the CRA authorizes a court to grant a petition for release on parole where there is clear and convincing evidence the inmate suffers from a "permanent physical incapacity" rendering the inmate "permanently physically incapable of committing a crime if released" and the conditions "under which the inmate would be released would not pose a threat to public safety." N.J.S.A. 30:4-123.51e(f)(1). Here, the motion court conducted hearings, determined A.M. satisfied the permanent physical incapacity and public safety requirements, but denied her petition based on its conclusion N.J.S.A. 30:4-123.51e(f)(1) vested it with discretion to do so.

The court reverses the denial of A.M.'s petition for compassionate release parole, concluding the plain language of the CRA does not vest a court with discretion to deny a petition where it otherwise determines there is clear and convincing evidence satisfying the permanent physical capacity and public safety criteria for release set forth in N.J.S.A. 30:4-123.51e(f)(1).

Because a detective here repeatedly contradicted and minimized the significance of the Miranda warnings -- starting at the outset of the interrogation and continuing throughout -- the State cannot shoulder its heavy burden of proving defendant’s waiver was voluntary. The Appellate Division majority correctly concluded defendant’s statement had to be suppressed.

Tax Court: Giant Realty, LLC v. Lavalette Borough; Docket No. 001063-20142014, opinion by Fiamingo, J.T.C., decided April 28, 2022. For plaintiff – Michael I. Schneck (Schneck Law Group, LLC., attorneys); for defendant - Dominic P. DiYanni (Eric M. Bernstein & Associates, LLC, attorneys).

HELD: Plaintiff moved to apply the provisions of the Freeze Act, N.J.S.A. 54:51A-8, for the judgment entered in tax year 2014 to tax years 2015 and 2016. Defendant opposed arguing that the issuance of a permit to develop the subject property under the Coastal Area Facility Review Act, N.J.S.A. 13:19-1 to -51 ("CAFRA"), constituted a change in value so that the Freeze Act should not apply. The court ruled that the issuance of a CAFRA permit in and of itself was insufficient to establish a prima facie case that an external change in the value of the subject property materialized which "substantially and meaningfully" increased the value of the property. Such change can only be demonstrated by showing the value of the property before and after the change. Having failed to make the required prima facie showing, defendant was not entitled to a plenary hearing on the applicability of the Freeze Act. Plaintiff’s motion to apply the Freeze Act was granted.

Although the court affirmed defendant's aggravated manslaughter conviction and sentence, it reversed defendant's convictions for second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1), and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), based on errors in the judge's final charge.

Despite charging self-defense, because he concluded defendant's return to the scene with a gun was "unreasonable," the judge refused to provide instructions on the unlawful purpose count that explains the use of a firearm for a "protective purpose." However, the model charge clearly explains the difference between self-defense, which requires both an honest and reasonable belief in the need to use force, and the use of a weapon for a protective purpose, which only requires an honest belief, not a reasonable one. See State v. Williams, 168 N.J. 323, 334–35 (2001) (explaining the difference between the two concepts).

Regarding the unlawful possession count, the judge failed to orally provide instructions regarding the permissible inference a jury may draw from the lack of any permit in defendant's name in the State Police database. Although the written instructions the judge provided included that portion of the model charge, the court held State v. Lindsey, 245 N.J. Super. 466, 475 (App. Div. 1991), and the current iteration of Rule 1:8-8(b)(2), do not relieve the judge of the obligation to orally provide instructions and not rely on copies of the written charge given to the jury.

By leave granted, defendant appeals from a trial court order, denying his motion to dismiss an indictment that charges him with two counts of first-degree aggravated sexual assault by penile-vaginal penetration, and two counts of second-degree endangering the welfare of a child. The indictment was returned four months after the East Orange Police Department issued complaint-warrants; seven years after the alleged victim reported the crimes to the police; and fourteen years after the last incident allegedly occurred. The alleged victim, who was five and six years old at the time of the alleged incidents, is defendant's biological daughter.

On appeal, as he did before the motion judge, defendant contends his right to due process was violated in three respects. Initially, defendant maintains the State's delay in presenting the case to the grand jury violated his right to due process under the Fourteenth Amendment and, as such, the motion judge misinterpreted the standard enunciated by the Supreme Court in State v. Townsend, 186 N.J. 473 (2006). Secondly, defendant claims the indictment, and the State's ensuing response to his bill of particulars, failed to provide sufficient notice of the dates and locations of the sexual assaults under the criteria established in State in the Interest of K.A.W., 104 N.J. 112 (1986). Finally, defendant asserts the cumulative effect of the State's delayed prosecution and its vague indictment warrant dismissal under the fundamental fairness doctrine.

Because the court concludes defendant failed to demonstrate "actual prejudice" under the second Townsend prong, the court declines to address defendant's assertion under the first Townsend prong that the judge erred in requiring him to establish the State acted in bad faith. The court concludes defendant's due process rights were not violated by the State's delay in seeking the indictment and affirms the motion judge's decision in that regard. However, the court clarifies the burden of proof required under the first Townsend prong.

Turning to the sufficiency of the indictment under the K.A.W. factors, the court cannot discern from the record on appeal whether the State discharged its obligation to narrow the dates of the alleged incidents. Notably, the record is devoid of any evidence that the State attempted to question the victim about life events occurring around the time of the two alleged incidents. Accordingly, the court remanded the matter for the State to furnish the motion judge with documentary evidence of its efforts, if any, to narrow the time frame alleged in its responses to defendant's bill of particulars.

In view of its remand order, the court declined to address defendant's fundamental fairness argument.

The Court affirms the judgment of the Appellate Division substantially for the reasons expressed in Judge Messano’s published opinion. The Court requires that, going forward, a plaintiff claiming taxpayer standing in an action challenging the process used to award a public contract for goods or services must file a certification with the complaint. As to the merits of this appeal, the Court departs from the Appellate Division’s decision in only one respect: the Court does not rely on the leasing and financing arrangements contemplated by the BCIA and defendant County of Bergen.

The court resolves the jurisdictional question of whether the Commissioner of the Department of Banking and Insurance ("DOBI") may pursue an administrative action against two out-of-state companies and their two licensed New Jersey affiliates for engaging in alleged improper insurancerelated practices in this State—or whether the Commissioner must instead rely on the Attorney General to bring a lawsuit against those companies in the Superior Court.

Specifically, the court interprets N.J.S.A. 17:32-20 ("Section 20"), which the Legislature enacted in 1968 as part of the Non-Admitted Insurers Act, N.J.S.A. 17:32-16 to -22. In pertinent part, Section 20 reads:

Whenever it shall appear to the commissioner that any insurer, or any employee, agent, promotional medium, or other representative thereof, has violated, is violating, or is about to violate the provisions of this act, the Attorney General, upon the request of the commissioner, shall institute a civil action in the Superior Court for injunctive relief and for such other relief as may be appropriate under the circumstances.

[N.J.S.A. 17:32-20 (emphasis added).]

The court holds that Section 20 does not restrict the Commissioner to the path of a Superior Court action in this circumstance. Based on the text, legislative history, and public policies of the statute as a whole, as well as principles of primary jurisdiction, the Commissioner has the authority to choose to pursue an administrative complaint against the companies instead of a lawsuit brought by the Attorney General.

Consequently, the court remands this matter to DOBI and directs that a previously stayed hearing in the Office of Administrative Law be reactivated.

This criminal prosecution arises out of a head-on collision that killed a passenger in defendant’s car. Defendant had driven the car into the lane of oncoming traffic, and an accident reconstruction expert estimated he had been speeding at over 80 mph in a 25 mph zone at the moment of impact. His blood sample was extracted at a hospital later that day, yielding apparent test results from the State Police laboratory of a blood alcohol content (BAC) well over the legal limit.

A grand jury charged defendant with vehicular homicide, drunk driving, and other offenses. After seven witnesses for the State had testified, a testifying nurse revealed that the State had inadvertently misattributed to defendant the blood sample of a deceased hospital patient, which the hospital had mistakenly released, and which the State then failed to authenticate. In addition, it came to light that defendant's own blood sample had been irretrievably lost.

The trial judge declared a mistrial and found the State had acted in bad faith in its misattribution of the blood samples. The judge denied defendant’s motion to dismiss all charges with prejudice, but did dismiss with prejudice the three counts of the indictment that hinged on the BAC level. Defendant appealed; the State did not cross-appeal the judge’s finding of bad faith.

The court holds the proper remedy in this unusual situation is to re-present the matter to a new grand jury, solely based on the reckless driving allegations, without proof or contentions by the State of defendant's intoxication or impairment. The court rejects defendant’s claim of a double jeopardy violation, as the mistrial was justified on the grounds of manifest necessity. The court also rejects defendant’s argument that it is fundamentally unfair to maintain any charges against him.

Defendant appeals from a final restraining order (FRO) entered under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based on a predicate act of assault, N.J.S.A. 2C:12-1. The court agrees with defendant's argument that procedural due process requires trial judges, before trial, inform defendants in domestic violence proceedings, both of the serious consequences resulting from the entry of an FRO and of their right to retain legal counsel. Because the judge in this case did not advise defendant of his legal exposure or of his due process right to counsel, the court vacates the order and remands for a new trial.

Defendant appeals his conviction after a trial de novo in the Law Division of driving while intoxicated (DWI), contrary to N.J.S.A. 39:4-50. He also appeals his sentence, arguing the court erred when it considered his conviction to be a second DWI offense for sentencing purposes.

The court affirms defendant's conviction. However, because the State did not prove beyond a reasonable doubt that his prior DWI conviction was not based on an Alcotest breath sample test result rendered inadmissible by the holding in State v. Cassidy, 235 N.J. 482 (2018), the court vacates his sentence, and remands for resentencing as a first offense.

Cassidy arose from the misconduct of State Trooper Marc Dennis who falsified Alcotest calibration records over a number of years. The Cassidy Court held that breath sample test results obtained on Alcotest instruments calibrated by Dennis are inadmissible, calling into question the validity of tens of thousands of DWI convictions based on such results. The Cassidy Court directed the State to provide notice to all defendants whose prior convictions were subject to challenge because they were based on test results from Alcotest instruments calibrated by Dennis. The State subsequently compiled a list of defendants who received notice as directed by Cassidy.

In the present appeal, defendant was convicted of DWI during the time Dennis was falsely certifying Alcotest calibration records. At sentencin g for the present offense, defendant argued the State was required to produce the calibration records from his prior conviction to prove that Dennis was not involved in his conviction. The trial court agreed with the State's argument that the absence of defendant's name on the list of defendants who were sent a Cassidy notice was sufficient proof that defendant's prior conviction was not tainted by Dennis.

The court held that in the absence of evidence of how the Cassidy list was compiled and that it definitively includes all prior DWI convictions that relied on test results from Alcotest instruments calibrated by Dennis, the absence of a defendant's name on the list was insufficient proof that the defendant's prior conviction was not invalidated by Cassidy. The court made a similar holding with respect to the State's assertion, without supporting evidence, that Dennis was not involved in any DWI convictions that arose out of Camden County. The court noted that the burden of Dennis's malfeasance as a law enforcement officer falls on the State, which cannot escape on the grounds of convenience and expediency its obligation to prove that a prior conviction on which it relies for an enhanced sentence in a subsequent prosecution was not tainted by his misconduct.

Defendant was charged with sexual crimes committed against two child victims, one of whom was his daughter and the other the daughter of defendant's girlfriend. The judge denied defendant's motion for severance, accepting the State's proffer that joinder was permitted under Rule 3:7-6, because evidence regarding both victims would be admissible pursuant to Rule 404(b) if the two sets of crimes were tried separately. See State v. Chenique-Puey, 145 N.J. 334, 341 (1996) ("If the evidence would be admissible at both trials, then the trial court may consolidate the charges because 'a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.'" (quoting State v. Coruzzi, 189 N.J. Super. 273, 299 (App. Div. 1983)). The court reversed, concluding the judge misapplied Rule 404(b) in denying the severance motion.

The court also questioned the continued vitality of the Chenique-Puey analytic paradigm, noting that unlike situations where the State seeks to introduce evidence of uncharged crimes at trial, and must meet Cofield's rigorous four-prong test at a N.J.R.E. 104 hearing, a defendant's severance motion in these circumstances is most often decided solely on the State's proffer. In this case, the State's proffer in opposition to defendant's motion misstated some evidence and included evidence never adduced, or even admissible, at trial.

The court also traced some historical background regarding Rule 3:7-6, proposed revisions to the Rule never adopted by our Supreme Court, and case law interpreting the Rule in the context of severance motions.