Published Appellate Court Opinions

In Mansell v. Mansell, 490 U.S. 581 (1989), the United States Supreme Court held the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, federally preempted state family courts from equitably distributing a disability retirement pension in a divorce. In 2017, the Court in Howell v. Howell, __ U.S. __, 137 S. Ct. 1400 (2017), held family courts are federally preempted from indemnifying a spouse for the inability to distribute disability benefits, but could take such a contingency into consideration by other means, including modifying or awarding alimony.

In this case, the court reverses the trial court's order, which required the spouse receiving disability benefits to indemnify the payee spouse by paying her a hypothetical value of her share of the pension, because indemnification was preempted by Howell. However, the court holds conversion of the pension into a disability benefit was a substantial and permanent change in circumstances, which invalidated the parties' alimony waiver, and accordingly reverses the trial court's order denying alimony for consideration of such an award.

In these back-to-back appeals involving automobile insurance, consolidated for purposes of this opinion, defendants appeal from Law Division orders vacating binding arbitration awards entered in their favor against plaintiff New Jersey Manufacturer's Insurance Company (NJM). In both cases, the Law Division held the PIP fee schedule does not provide for payment to an ambulatory surgical center (ASC) for procedures not listed as reimbursable when performed at an ASC. Defendants argue that N.J.A.C. 11:3-29.4(g) requires insurance companies to reimburse ASCs for any procedures performed under Current Procedural Terminology (CPT) codes subsequently approved by Medicare. Defendant's arguments are rejected and the trial court orders are affirmed.

The court rejects Regina Tasca's appeal of the final agency decision of the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS), denying her twenty-year service (early) retirement pension benefits under N.J.S.A. 43:16A-5(3). Tasca's transfer of six years of service credit that gave her more than the twenty-year service credit threshold needed for early retirement did not qualify her for early retirement pension benefits. The Board properly interpreted N.J.S.A. 43:16A-5(3) in determining that because she was not a PFRS "member" at the critical time of the statute's January 18, 2000 effective date, she was ineligible for early retirement pension benefits. The court also concludes that the doctrine of equitable estoppel does not afford Tasca relief against a governmental body, such as the Board, and there was no misrepresentation by the PFRS staff that she was eligible for early retirement pension benefits under N.J.S.A. 43:16A-5(3). The court further concludes that even though the Law Division action settlement with her former employer include her seeking early retirement pension benefits based on the good faith belief that she was eligible for the benefits, the public policy favoring settlements against parties who have entered into them serves no basis for granting her the benefits in this matter. The Board's decision is affirmed.

Appellants K.G, C.C., J.L., and D.C. are convicted sex offenders who are monitored by respondent New Jersey State Parole Board (the "Board") as offenders who are subject to parole supervision for life ("PSL") under N.J.S.A. 2C:43-6.4. Each appellant challenges certain conditions of PSL, most of which restrict Internet use, that the Board has imposed upon them. The instant appeals follow in the wake of the New Jersey Supreme Court's decision in J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017), which addressed the parameters of the Board's authority to impose conditions restricting Internet access.

We affirm in part, reverse in part, and remand in part. In particular, we reach the following major legal conclusions: (1) the Board's imposition of Internet monitoring conditions upon PSL offenders, including the use of monitoring software, mandatory password disclosure, and unannounced device inspections, does not facially violate the constitutional protections against unreasonable searches or the constitutional rights to privacy; (2) the Board's use of the terms "Internet-capable device," "social networking service," "frequenting establishments whose primary purpose is the sale of alcohol," and "sexually-oriented websites, material, information or data" does not violate due process under the void for vagueness doctrine; (3) all conditions restricting Internet access, including monitoring conditions, should be reasonably tailored to the circumstances of the individual offender, "taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety[,]" J.I., 228 N.J. at 224; and (4) in the administrative appeals process, PSL offenders are not entitled to discovery and are only entitled to a hearing when warranted based on "the timing of and justification for the Internet restriction, the severity and length of the restriction, whether facts are contested or uncontested, and whether credibility determinations must be made." Id. at 233.

The court affirms the trial court's termination of E.M.C.'s parental rights to his child, A.E.C. The child's mother did not appeal the judgment terminating her parental rights. The trial record supported that E.M.C. was given a meaningful opportunity to reunify with his child. The Division of Child Protection and Permanency's (Division's) requirement that E.M.C. attend a psychological and bonding evaluation was not unreasonable nor did it thwart his relationship with the child or reunification efforts. The Division made reasonable efforts to locate E.M.C., especially where, as here, E.M.C. was aware the child was in placement and had a phone number to contact him. The records supported the trial court's finding that E.M.C.'s absence from the child was voluntary. The court distinguishes this case from N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010), where the parent took affirmative steps to satisfy the conditions the Division set for him, which was not the case here for E.M.C.

Judge Guadagno wrote a dissent.

The primary question raised in this appeal is whether an auto insurer may combine uninsured and underinsured motorist coverage in a single section and include exclusions not listed on the policy's declaration page. We also consider if an insurer may exclude underinsured motorist coverage for an accident involving a vehicle owned by the insured but not covered under the subject policy. Because we find the exclusion does not violate public policy or result in ambiguity, we reverse.

Judge Suter wrote a dissent.

In this appeal, the panel extends to a Family Part context the ruling in State v. Doriguzzi, 334 N.J. Super. 530, 536 (App. Div. 2000) holding that a HGN test is not admissible at a trial to show an individual is guilty of driving under the influence. The court now holds that HGN test results cannot be considered in a Title 9 abuse or neglect hearing to establish that defendant was under the influence when supervising his four minor children while the mother was unconscious. However, the panel concludes the order finding abuse or neglect was consistent with the law because it was supported by substantial independent credible evidence that defendant was under the influence and that his conduct created a substantial risk to the children's mental health and physical safety. The panel affirms the order.

Plaintiffs purchased an auto policy from State Farm that provided $15,000 in PIP coverage and designated a private health insurance provider as primary. They filed a verified complaint seeking to reform their auto policy to provide the maximum $250,000 PIP benefits, claiming: (1) the policy was invalid because their adult son was not insured by private health insurance; (2) the State Farm agent required them to sign a blank coverage selection form and thereafter selected the lower PIP coverage option; (3) this act by the agent was willful, wanton, intentional, or grossly negligent. On cross-motions for summary judgment, the trial court found State Farm is entitled to immunity under N.J.S.A. 17:28-1.9.

This court affirms and holds that insureds are under a duty to examine their insurance documents and to notify the insurer if there is a discrepancy between what they initially requested and what the insurer has actually provided. State Farm met all of the requirements for immunity under N.J.S.A. 17:28-1.9.

In 2012, the Legislature amended N.J.S.A. 34:15-15, granting the Division of Workers' Compensation exclusive jurisdiction over claims brought by medical providers for payment of services rendered to injured employees. These appeals questioned whether, through its silence, the Legislature intended – via this 2012 amendment – to apply the two-year statute of limitations, N.J.S.A. 34:15-51, contained in the Workers' Compensation Act, or whether the Legislature intended to leave things as they were and continue to apply the six-year statute of limitations for suits on contracts, N.J.S.A. 2A:14-1, to such claims. The court concluded that subjecting medical-provider claims to the two-year time-bar would be like jamming a square peg into a round hole, and that to reinterpret the two-year time-bar to fit such claims would require the reshaping of the edges of this square peg contrary to principles of judicial restraint. The court reversed the judgments that dismissed these medical-provider claims.

This case exemplifies an inadequate way for an employer to go about extracting its employees' agreement to submit to binding arbitration for future claims and thereby waive their rights to sue the employer and seek a jury trial.

The employer in this case emailed to its workforce what it called a "training module" (or "activity" or "course"). The module described the company's mandatory arbitration policy, as presented in a series of slides on computer screens. One screen provided employees with the opportunity to access a "Resource" link to the full text of the policy. In a separate email, the employer supplied a computer link to Frequently Asked Questions ("FAQs") concerning the policy.

On the third slide of the module presentation, the employees simply were asked to "acknowledge" it with the click of an electronic button. The module declared that if an employee did not click the acknowledgement, but continued to work for the company for sixty or more days, the employee would be "deemed" to be bound by the arbitration policy.

Although the arbitration policy is labeled an "agreement" and that word appears multiple times on the slides and within the linked policy, the module did not request employees to provide signatures conveying their agreement. Nor were the employees asked – within the four corners of the pivotal "click" box at the end of the presentation – to memorialize that they expressly agreed to the policy. They were only asked within the box to "acknowledge" it.

This oblique procedure does not yield the valid personal agreement of an employee to give up his or her statutorily protected rights to litigate claims against an employer in a public forum and seek a trial by jury. The procedure falls short of the requirements of New Jersey contract law, particularly the Supreme Court's longstanding precedent in Leodori v. CIGNA Corp., 175 N.J. 293, 303 (2003) (holding an employee's valid waiver of statutory rights, there in the context of an employer's binding arbitration policy, "results only from an explicit, affirmative agreement that unmistakably reflects the employee's assent") (emphasis added), as well as the Court's more recent opinion in Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 447 (2014) (holding the words of an arbitration agreement "must be clear and unambiguous that a [person] is choosing to arbitrate disputes rather than have them resolved in a court of law") (emphasis added).

The primary question raised in this appeal is whether an appellant, who has served his sentence pursuant to the Sex Offender Act (SOA), N.J.S.A. 2C:47-1 to -10, can be compelled to undergo a psychological evaluation, pursuant to N.J.A.C. 10A:71-3.54(i)(3) and 10A:71-7.19A, for violation of certain conditions of parole supervision for life (PSL), and mandatory parole supervision (MPS), imposed outside the SOA.

The panel reverses the Board's decision in part, holding it cannot compel such an evaluation. Absent further comment by the Legislature, these regulations only apply to individuals who have been released on parole before completing their sentence.

The court reverses defendant's conviction of purposeful murder and related firearms offenses. The court concludes that defendant's trial was tainted by a detective's reference, in violation of a prior court ruling, to defendant's alleged gang membership and the presence of gangs in the area of homicide. The panel concludes that the court's curative instruction was insufficient to alleviate the prejudice caused by the detective's remarks.

Judge Ostrer wrote a separate, unpublished concurrence.

Plaintiff filed a civil action against his employer alleging wrongful termination. The Law Division granted defendant's motion to compel arbitration. Plaintiff filed a motion for reconsideration pursuant to Rule 4:49-2 that was received by defendant and the trial court more than twenty days from the date defendant's served plaintiff with the order compelling arbitration. The trial court nevertheless granted plaintiff's motion and directed the matter to proceed to trial.

Subject matter jurisdiction cannot be waived by the parties' failure to object, nor conferred upon the court by the parties' agreement. Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978). This court holds that judges have an independent, non-delegable duty to raise and determine whether the court has subject matter jurisdiction over the case whenever there is a reasonable basis to do so. Here, the Law Division did not have subject matter jurisdiction at the time it granted plaintiff's untimely motion for reconsideration under Rule 4:49-2.

The panel addresses the evidentiary implications of a key provision within the Local Redevelopment and Housing Law ("LRHL"), N.J.S.A. 40A:12A-1 to -49. The provision in question, N.J.S.A. 40A:12A-8(c), authorizes a municipality or redevelopment agency to acquire by condemnation any lands or buildings which are "necessary for the redevelopment project."

The panel holds that if a landowner within the redevelopment area contests the necessity of a condemnation pursuant to N.J.S.A. 40A:12A-8(c), the statute logically requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. That articulated need must be more specific than the mere "stockpiling" of real estate that might hypothetically be useful for a redevelopment project in the future.

In addition, the condemning authority in such a contested case must present to the court at least some evidence – consisting of facts, expert opinion, or both – that provides reasonable substantiation of the need. To hold otherwise and allow the condemning authority merely to proclaim a need, without having any obligation to substantiate its existence, would improperly read the term "necessary" out of the Legislature's enactment.

Plaintiffs, after prevailing in an action against property owners they alleged were the sole dischargers liable pursuant to the New Jersey Spill Compensation and Control Act, brought suit seeking clean-up contribution under the Spill Act from other owners of the same property.

The court affirmed the trial court's grant of summary judgment, holding the doctrine of judicial estoppel was a defense to Spill Act claims. Although plaintiffs possessed information sufficient to put them on notice of possible Spill Act claims against other property owners, they did not name those owners as defendants in the first action. The court held the application of judicial estoppel to Spill Act claims compels plaintiffs to pursue in a single action all dischargers that are known or knowable. Plaintiffs' subsequent action against the dischargers of which they had notice was precluded.

Because the welfare of children is paramount whether the parents are married, divorced or never-married, the court reverses and remands for a plenary hearing in this non-dissolution, FD, child custody matter. The mother, J.G. (Jane) appeals from a custody and parenting time order entered after the judge denied discovery, denied Jane's lawyer the right to participate in the proceedings, did not afford cross-examination or an opportunity to call witnesses and decided the issues without fact-finding or a consideration of the statutory custody factors, N.J.S.A. 9:2-4(c). The court reviews the appropriate way to handle FD custody matters, pursuant to Administrative Directive #01-02, "Standards for Child Custody and Parenting Time Investigation Reports" (Apr. 2, 2002), the Rules of Court and relevant statutes.

In this action arising out of the aftermath of a Ponzi scheme operated through a hedge fund, a Receiver was appointed on behalf of the fund and authorized to pursue all causes of action belonging to the fund.

The hedge fund operated through the securities trading platform of plaintiffs Interactive Brokers, and its employee, Kevin Michael Fischer. The Receiver instituted suit against plaintiffs, alleging they aided and abetted the breach of fiduciary duty and common law fraud and initiated arbitration proceedings under the Financial Industry Regulatory Authority (FINRA) Code and the Customer Agreement executed between plaintiffs and the hedge fund's founder.

Plaintiffs moved for injunctive relief, arguing the claims asserted by the Receiver were beyond the scope of his authority because they were grounded on the damages suffered by the hedge funds' defrauded investors, rather than the hedge fund itself.

The court concluded the Receiver acted within the statutory authority granted him under N.J.S.A. 49:3-69(c) and (d) and N.J.S.A. 14A:14-1 to -27. The Statement of Claims submitted to FINRA listed the hedge fund as its sole claimant. A receiver's action is not invalidated, even if the return of the assets to the receivership may ultimately benefit its investors.

As the dispute fell within the Agreement, the parties were mandated to arbitrate the dispute in FINRA.

Among other things, the panel holds that trial courts in our State have the discretion, in appropriate circumstances, to grant requests by deliberating jurors to have the closing arguments of all counsel played back or read back to them, in full or in part. In recognizing this discretionary authority, the panel follows other jurisdictions that have acknowledged the discretion of judges to allow such summation playbacks or readbacks. The panel rejects, however, defendant's contention that the denial of the jury's playback request in this case was unduly prejudicial and requires a new trial.

The court addresses and establishes the factors a trial court should consider in determining whether to make an equitable distribution of restricted stock units where the stock vests post-complaint and the employed spouse asserts the vesting is attributable to that spouse's future employment efforts.

The court holds that the party seeking to exclude assets from equitable distribution on such grounds bears the burden to prove the stock award was made for services performed outside of the marriage. That party must adduce objective evidence to prove the employer intended the stock to vest for future services and not as a form of deferred compensation attributable to the award date.

In 2011, the Legislature substantially amended multiple sections of the Construction Lien Law, N.J.S.A. 2A:44A-1 to -38 (the 2011 amended CLL). This appeal requires the court to decide whether N.J.S.A. 2A:44A-6(a)(1) and N.J.S.A. 2A:44A-8 the (signatory-requirement amendments) apply retroactively. This court limited its holding to the retroactive effect of that part of the signatory-requirement amendments that replaced the previous mandate that a "duly authorized officer" sign a corporate construction lien. This court concluded that the signatory-requirement amendments at issue are not "curative" for purposes of retroactivity analysis, and held that they applied prospectively.