blog.cuyler.com

So, you have decided you have better things to do with your money than to pay your lawyer the fees he has incurred in representing you.  The lawyer sues you for his fees.  You make the further decision to file a counterclaim for legal malpractice even though you know there is no basis for the malpractice claim.  Your strategy is that the malpractice claim will induce the lawyer to drop his suit for fees or to settle the claim cheaply.  At the very worse, the countersuit will delay the day you actually have to pay your former lawyer. 

What could go wrong? 

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The New Jersey Appellate Division recently affirmed a grant of summary judgment to High Point Insurance Company in High Point Insurance Company v. J.M., et al., ___ N.J.Super. ___, (App.Div. 2008), Docket No. A-0829-06T50829-06T5 (March 12, 2008) declaring that it was not obligated to defend or indemnify a pair of insureds under a homeowner’s policy in a personal injury lawsuit stemming out of sexual abuse.

As a result of events that occurred between August 1999 and April 2000 involving two minors, Sheryl Van Dyke (“Sheryl”) pled guilty to one count of second degree sexual assault and one count of endangering the welfare of minors. In a subsequent personal injury action brought by guardians of the involved minors, Sheryl faced allegations of sexual molestation and emotional injury. In addition, the complaint alleged that George Van Dyke (“George”), Sheryl’s husband, knew or should have known of Sheryl’s behavior and did nothing to prevent it. The Van Dykes were insured pursuant to a homeowner’s policy issued by High Point. High Point defended George subject to a reservation of rights, but declined to defend Sheryl. The case eventually settled.

Subsequently, a coverage action was commenced to determine whether the settlement was covered. The trial Court found Sheryl’s actions to be intentional based on an objective approach thus precluding coverage pursuant to an expected/intended exclusion within the policy. The trial court also denied coverage to George on public policy grounds, asserting that liability coverage should not be provided to spouses of sexual molesters, especially if he knew or should have know about his wife’s sexual proclivities.

George argued on appeal that the trial court should have applied a subjective test to determine an insured’s intent to injure. He further argued that if such a test was applied, summary judgment would have been denied because High Point could not demonstrate that he had any intent to injure. Quoting the New Jersey Supreme Court in Voorhees v. Preferred Mutual Ins. Co., 128 N.J. 165, 184 (1992), the Court stated “[w]hen the actions are particularly reprehensible, the intent to injure can be presumed from the act without an inquiry into the actor’s subjective intent to injure.” Furthermore, the Court reasserted its public policy stance stated in J.C. v. N.B., 335 N.J.Super. 503, 509-10 (App.Div. 2000) that allowing coverage for a spouse in a sexual molestation case would provide that spouse “with an undue incentive to value the stability and privacy of the marriage over the well-being of the child-victim.” Therefore, the Court found that public policy warranted application of an objective approach and as such George’s behavior cannot be labeled an ‘accident’ consistent with the policy’s definition of ‘occurrence’. The award of summary judgment relative to George was thus affirmed.

Also on appeal, Sheryl argued that High Point had a duty to defend and indemnify her based on her lack of subjective intent to cause any harm. Sheryl cited her assertion of a duress defense as support for her argument. The Court found this reasoning unpersuasive, stating that the elements of the crimes for which Sheryl pled guilty to reflect culpability for injury to the minors involved. As a result, the Court found that it did not matter which test (subjective or objective) the Court used to evaluate coverage and affirmed the award of summary judgment relative to Sheryl.

April 22 is Earth Day. Since 1970, environmental enthusiasts have used Earth Day to bring attention to the condition of our planet. But for some reason this time around, Earth Day seems to have a greater significance.

Perhaps it’s because a gallon of gas costs more than a gallon of milk? This morning one of the T.V. news shows juxtaposed two signs outside a gas station mini-mart: “Milk: $2.99/gal.” and “Unleaded: $3.99/gal.”  Indeed, hitting the $50 or $60 mark for the first time when filling up your tank kind of smarts. Ouch.  
          
The Earth’s natural resources are not unlimited, and people are starting to notice. It would appear that the laws of economics find themselves in the service of environmentalism. For whatever reasons, the general wisdom is acknowledging climate change, and people are taking action.      

For me, “going green” is not a trend or a fad; it’s a lifestyle, just like eating healthy. It’s about making smart choices, and choosing the “green choice” when you can.

This does not mean you have to trade in your SUV for a bicycle and go vegan. Who am I to tell others how to live their lives? I’m not a perfect “tree-hugger” either - I wanted to use low-VOC paint in my home, but the colors I wanted did not come in the eco-paint. So I stuck with the old-fashioned latex.  In the spirit of Earth Day, I will share some easy green choices I’ve made:

      * I try to reduce the need for unnecessary plastic. If I pick up cup of coffee, I pour the milk in the cup first, and then add the coffee. The act of pouring the coffee into the milk mixes the two, and there’s no need to use a little plastic straw for stirring.

      * If I’m picking up a 6-pack at the liquor store or a 12-pack of soda, I skip the plastic bag. They come with handles for carrying.

     * I throw grocery store shopping bags in my trunk after I empty them. Then I toss them in my shopping cart and reuse them on the next shopping trip. Some stores even give you a credit for reusing bags or bringing in cloth ones. (Wow - 2 cents a bag! I’m going to be rich!)

     * I try to use paper wisely by printing double-sided documents. Everyone in our office e-mails and works in digital versions of documents whenever possible. We also encourage other lawyers to provide document productions in electronic format such as a CD, and we offer to provide them documents on CDs as well. The Federal courts use electronic filing. Maybe one day the NJ courts will, too, although that’s a long shot.

    * I use a refillable plastic water bottle and coffee mugs from home instead of the plastic and Styrofoam cups in the kitchen. While it would be great if others followed my lead on this, that’s also a long shot.
 
The above suggestions make “cents” by conserving resources. After all, buying less paper and cups saves money.  Stay tuned for future blogs on how going green can provide both environmental and economic benefits to individuals and to businesses.

Recent local news reports address actions being taken in response to lead contamination associated with artificial turf fields at New Jersey recreational facilities, including school playing fields. News items like these, and similar ones, like the less-recent Kiddie Kollege fiasco, which led to intensive NJDEP action regarding day-care centers, reemphasize the need to think about environmental risk before a problem arises.

The reports in the papers indicate that the measured lead levels may result from lead compounds used to color the nylon utilized in turf products distributed several years ago. At least for now, the turf itself would appear to be a source of the lead contamination, in whole or part. But it also seems reasonable to consider that one or more of these playing surfaces may sit on a field in an urban, highly-industrialized area of our state, essentially a brownfield, where increased lead levels may be historical in the soils and nearby structures. Obviously, step one is to investigate the situation and understand it so that all reasonable and necessary measures are taken.

But regardless of what the science ultimately shows, as in any situation like this, the recent findings will generate heat, and will have financial costs, at a minimum in the form of investigative work, and field surface replacement, since some fields are already being ripped out. At least three hot-button issues are in play here — protection of childrens’ health, environmental risk and urban - center quality of life. Where there are unexpected costs and issues like these, litigation is a distinct probability.

Typically, one of the first places we look when unexpected costs, especially cost associated with possible bodily injury arise, is liability insurance. To be sure, those who find themselves in the path of this issue have been calling their risk managers, brokers and lawyers, and policies are being pulled out and read. What they find there may or may not be reassuring. Today’s standard liability policy forms would contain exclusions, for example, barring coverage costs from damage to one’s own property or product without actual damage or injury to a third party, as well as a broad so-called absolute pollution exclusion barring coverage for liabilities arising from pollution. Of course, standard insurance policies, like any contract, can be negotiated at its inception to attempt to address the risk of the insured, and even if a risk cannot be transferred, the mere exercise of considering what risk is covered, and what is not, earlier rather than later, facilitates planning. There are commercial insurance products on the market for many years that directly underwrite so-called “pollution liability”. If a turf-war does break out, the degree of insurance protection available may depend on whether those with exposure today sought proper advisors, including lawyers and insurance brokerage personnel, to think about potential environmental exposures of their client and tried to identify and manage such risks when the coverage was procured.

The following article appeared in NJ CEO magazine and is reproduced here with permission.

MAKING HISTORY

A legal visionary guides a museum into the future

BY SUSAN BRIERLY

When it comes to her career, Jo Ann Burk is all about championing change.

In 1987, as the legal ranks were filling with female associates, women partners were still scarce. So Burk joined four other attorneys to found Cuyler Burk, P.C., in Parsippany.

“I was particularly proud to manage a highly visible commercial law firm with major corporate clients in the late 1980s - a time when women attorneys just weren’t doing that in New Jersey,” says the Chester resident and Seton Hall law school grad.

When she’s not in her office or a courtroom, you’ll likely find Burk at Macculloch Hall Historical Museum in Morristown, where her mission is preserving the past.

“This wonderful 1810 home was the residence of prominent families for five generations,” she says. “It’s seen its share of politicians, military heroes, business entrepreneurs and artists.” Indeed, past visitors include President Ulysses S. Grant and Commodore Matthew Perry. Burk sits on the board of the nonprofit museum, which boasts one of the state’s finest collections of furniture and art from the 18th and early 19th centuries.

“It’s a real pleasure to help launch events and exhibits, like the museum’s private collection of works by 19th-century political cartoonist Thomas Nast,” she says. This year Burk is taking her efforts to a new level, volunteering to launch a corporate membership program, which invites businesses to sponsor museum events.

Burk has taken on new professional roles too.

In 2007, she became CEO and majority shareholder of Cuyler Burk and was ranked by NJBIZ magazine as one of the state’s top 50 female business owners. Her firm also received its Women’s Business Enterprise National Council certification. It’s a fitting designation for a company that’s always been managed by a woman.

Often times, the issue of whether pre-marital, gifted or inherited assets are separate property will arise in divorce actions. While the spouse claiming that it is separate property will argue that there is no issue since the asset is only in his/her name, the analysis simply does not end there.

The most common example that may arise in a divorce action is where a non-owner spouse argues that the marital home that was either acquired before the marriage or inherited or gifted to the other spouse during the marriage, is now subject to equitable distribution.

Generally, assets which are acquired prior to the marriage, or assets which were gifted to one spouse or inherited by one spouse during the marriage, are considered separate property. However, there are exceptions to this general rule.

Typically, issues arise where the value of the separate asset has increased over time. In order to evaluate whether the asset has maintained its separate character, a determination of whether the asset’s appreciation was “active” or “passive” must be made.

Passive assets are generally those assets whose appreciation is based solely on market conditions. On the other hand, active assets are those which appreciate due to the contributions or efforts of one party.

Passive assets which were acquired prior to the marriage or by gift or inheritance during the marriage are not subject to equitable distribution in a divorce action.

The analysis of pre-marital active assets or active assets that were acquired by gift or inheritance is not that simple. If the asset’s appreciation was brought about solely by the efforts of the owner spouse, it is not subject to distribution. On the other hand, where the asset appreciates, in whole or in part, due to the efforts of the non-owner spouse, the appreciation is subject to distribution. Common examples of the active asset whose appreciation is subject to distribution are where the non-owner spouse pays down the mortgage or the non-owner spouse contributes in some way to renovations to the house which increase its value.

Further, separate property can be “transmuted” into marital property, which will be subject to equitable distribution in the event of a divorce. If the spouse owning the asset represents to the non-owing spouse that the separate asset will be shared or takes some action to share the asset, such as depositing separate funds into a jointly owned account, the separate asset may then become marital property.

Therefore, it is important for parties intending to keep separate property separate, to be aware of the various factors which can affect the asset’s ownership in the event of a divorce.

A few months ago, I took a deposition in Boston of an expert witness in a large insurance coverage case. Although it was winter, a trip to Boston is always enjoyable. The dep was held at a law firm that had a great view of Boston Harbor. We had expected a fairly sizable crowd, but as we waited for people to arrive, plaintiff’s counsel and I realized that nearly everyone else was apparently attending by phone.

As with every other element of modern technology, there are certain rules and courtesies that I propose as we venture in to this practice. Some are just common sense and easily recognizable. Some may not be. And some may just be the rantings of one who has been brought into this marvelous age kicking and screaming by his children and law partners.

So, as I overindulged on the coffee, soda and danish that was piled up on the side board and which obviously was meant to feed 15 and not 4, I began formulating these rules for phone attendees:

1. Get and circulate the call in number yourself. Don’t expect the people who made the effort to get on a plane, hail a cab, wait for an elevator did all that to make your life easier. Those people who plan to attend by phone should be the ones who obtain and circulate the call in number. Don’t expect the people who made the trip to get the phone set up. We are not the ones who need a conference phone in the room either.
2. Arrange to have the phone set up and in working order before 9:00 the day of the dep. Those of us in the room don’t have any need for the conference phone that may or may not be in the room. You do. Besides, chances are that the conference room phone will have a secret 20 or 30 digit number, that no one will know. There is also a good chance that when the dep is about to start, the only person we know at the firm at this point is the nice receptionist at the front door who knows neither the code nor how to use the conference phone. She will have to find an attorney in the office to help us out who will then have to call the IT person to get it working. This takes time and we’re that much closer to missing our plane home.
3. E-Mail the reporter your information. Once we have secured the necessary clearance to call in, the reporter will then request the appearances of those on the phone. In order to save time, it may be preferable to have the reporter give everyone her e-mail address and send her your necessary information. Most times the reporter will insist you give them the info over the phone anyway, along with whether you want a full transcript, mini, or CD of the dep. Keep it simple. We are the ones who have to fly Logan to Newark on a Friday night, while you’re already home.
4. Don’t start calling the firm to see what’s going on in the dep room. We’re going as fast we can getting you your fancy pants phones and whatnot. We’d appreciate a little patience while we do the heavy lifting.
5. Put your phone on mute. We don’t want to hear your keyboard, your Blackberry, your conversations, the NCAA basketball tournament on your computer (which we’d rather be watching, too, but we’re here working) or — for you “telecommuters” — your kids or dog.
6. DO NOT PUT US ON HOLD. It’s bad enough that we have to listen to Michael Bolton, Kenny G, or some other form of Lite FM, but when you don’t come back we can’t start with the music playing. At that point, we have to tell everyone to disconnect and call back in again. When you finally realize you are disconnected and have to call back in, we will hear that beep, ask who joined and then deduce who had the lousy hold music. Those of us in the room will then laugh quietly. Don’t embarrass yourself.
7. Don’t send emails with questions you want us to ask at the dep. If its that important, make the trip or ask the questions yourself.
8. If you do ask questions by phone, see above about catching planes. In all likelihood, the question you asked was already answered while you were out getting coffee in the firm lunch room, watching last night’s episode of “The Office” on your computer, or trying to get your dog back in the house.

One of the final legislative acts of 2006-2007 session was the passage of a Wrongful Death bill (S-176) that expanded the damages recoverable under the Wrongful Death statute from pecuniary losses only to damages arising out of mental anguish, emotional pain and suffering, loss of society and loss of consortium.

Because only pecuniary losses were available, the Wrongful Death statute was criticized for measuring an individual’s worth by his or her financial contributions to a family and, in practice, failing to assign a value to the lives of children, the elderly and those who worked within the home.  On the other hand, the Act eased the financial strain that an unexpected death could cause a family, and judicial interpretations of the statute allowed an estate to recover the monetary value of services provided, for example, by those who worked inside the home (such as accounting expenses if the deceased handled the bills or the prospective cost of maid and landscaping services if the deceased took care of the home) and those who provided valuable counseling services (such as psychiatric expenses if the deceased provided comparable services or expenses for a business advisor if the deceased had previously been relied upon to provide such advice).

Despite passing the Senate and Assembly, Governor Corzine vetoed the bill, expressing concern that unlimited damages based on emotional anguish or pain and suffering could have a significant impact on state and local budgets.  Indeed, it was reported that 544 wrongful death claims were asserted against departments and agencies of the State between 1996 and June 2007.

Governor Corzine further expressed concern that the bill might chill business development in the state, deterring businesses from coming to or staying in New Jersey.  In this regard, many opposed to the bill were especially concerned with the already exorbitant costs of liability insurance for obstetricians, who thus far had been practically insulated from wrongful death liability for deaths arising out of complications during pregnancies or childbirth. The Governor suggested the Legislature continue its efforts to reform the Wrongful Death statute to avoid using a strict monetary valuation of a person’s life while also addressing the adverse effect of allowing unlimited and unpredictable damages.

The Governor suggested the Legislature provide for governmental immunity, more flexibility of the judiciary to reduce excessive non-pecuniary damages award, and defining “non-pecuniary damages” less expansively.

Before the Governor’s veto, the same bill was pre-introduced in the Legislature for the current 2008-2009 legislative session (which introduction would have been moot if the Governor signed the 2007-2008 bill into law).  Therefore, the 2008-2009 bill is currently in the same form as it was during the 2006-2007 session, and largely as it was since it was first introduced in September 27, 2004 by Senator Joseph V. Doria, Jr. of Hudson County.  No action has been taken yet to refine the bill, but such measures may occur from time to time during the upcoming session.

This blog will be updated as new activity on this topic occurs within the Legislature.

“Significant changes are brewing for New Jersey’s environmental site remediation program.“   

That’s the headline in advance of a joint hearing of the Senate Environment Committee and the Assembly Environment and Solid Waste Committee on April 15 to take testimony on proposed changes to NJ’s site remediation program and brownfields regulations.  Topics for discussion include:

• The use of licensed site professionals to review some remediations;
• Remedy selection/encouragement of permanent remedies;
• Engineering and institutional controls;
• Standards for the remediation/replacement of underground tanks;
• Site remediation enforcement issues;
• Issues concerning remediation funding, and,
• Change in use of contaminated sites.

Almost simultaneously, in an Adminstrative Order issued by NJDEP Commissioner Lisa P. Jackson, the DEP Permit Efficiency Review Task Force has been established.  The Task Force is charged with providing recommendations for restructuring and re-engineering NJDEP permitting and other programs.   The Task Force has a number of prominent private and public sector representatives, including its chairperson former NJDEP Commissioner Chris Daggett.  

Here’s a copy of Administrative Order 2008-06, which established the task force.

Does this mean that we will see significant changes in the environmental and brownfields regulatory process?  We shall see.  The mere fact, however, that both legislative committees are meeting together, and that the Commissioner has formed a Task Force consisting including private interest stakeholders, may be an indication that serious changes are in the works.

The meeting will be held at 10 a.m. in Committee Room 4 on the St Floor of the State House Annex.

http://www.njleg.state.nj.us/BillsForAgendaView.asp  

(For those that are interested, that’s the building to the right when you are facing the State House in Trenton.)
 
Stay tuned here for more developments…..

The National Vaccine Injury Compensation Program, or Vaccine Court as it is commonly called, was established as part of the National Childhood Vaccine Injury Act of 1986. The National Childhood Vaccine Injury Act was enacted to provide a prompt, efficient and fair system for compensation of those who suffer vaccine-related injuries and to reduce private tort litigation in state and federal court against vaccine manufacturers.

The Vaccine Court is a Federal “no-fault” system designed to compensate individuals thought to be injured by childhood vaccines.  A claimant must first pursue a claim in the Vaccine Court before suing a vaccine manufacturer for a vaccine-related injury or death.

There are a number of claims pending in the Vaccine Court asserting that one or more vaccinations caused the claimant to develop autism.  In July 2002, when there were over 400 such claims, the Vaccine Court established a procedure to handle the large number of autism claims filed and the large number expected to be filed in the future.

The Vaccine Court adopted a two phase procedure.  First, the Vaccine Court would inquire into the general causation issues involved in all of the autism cases - i.e., whether the vaccinations in question can cause autism and/or similar disorders, and if so, in what circumstances.  Second, the Vaccine Court would then apply the conclusions reached in the general causation phase, referred to as the “Omnibus Autism Proceeding,” to the individual autism cases.  Individual claimants were given the choice to either opt into the Omnibus Autism Proceeding, which would also then stay a case specific finding on their individual claim until after the Vaccine Court decides the general causation issue, or proceed with their individual claim.

The Omnibus Autism Proceeding is still in progress to determine the fate of the now 4,900 autism claims pending before the Vaccine Court and those that continue to be filed.

There are three separate theories being presented in the Omnibus Autism Proceeding:  (1) that the MMR (Measles, Mumps, Rebella) vaccine and vaccines containing an ethyl-mercury containing preservative, thimerosal, can combine to cause autism; (2) that thimerosal-containing vaccines alone can cause autism; and (3) that the MMR Vaccine alone can cause autism.   Three tests cases for each of these three theories have been selected to be tried before the Vaccine Court.

Between June and November 2007, the Vaccine Court heard the three test cases as to the first general causation theory.  The parties have filed post-hearing briefs as to these three test cases analyzing the evidence presented in those cases.  Additional briefing is due to be filed, after which the Vaccine Court is expected to issue written decisions.

Hearings on the three test cases selected for the second general causation theory, that thimerosal-containing vaccines alone can cause autism, are scheduled to be heard by the Vaccine Court in May 2008.