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Marconi v. United Airlines

Client: United Airlines/Sedgwick

Court: Workers’ Comp Court in Newark

Trial Attorney:  Prudence M. Higbee, Esq.

In the reported case of Marconi v. United Airlines, A-0110-18T4 (App. Div. July 22, 2019), the Appellate Division affirmed the dismissal of two claims against United Airlines for lack of jurisdiction. Richard Marconi lived in New Jersey and suffered a work injury to his left hip on January 31, 2015 working for United Airlines in Philadelphia.  United paid full benefits to Marconi under Pennsylvania law, but eventually Mrconi brought two claim petitions in New Jersey seeking permanency benefits that were not available in Pennsylvania.  One claim petition was for the accident in 2015 and the other was an occupational claim alleging work exposures from 1988 to the present.  Mr. Marconi admitted he was not hired in New Jersey and worked most of his career in Philadelphia, with only a brief period of employment at Dulles Airport.

United moved to dismiss both claim petitions for lack of jurisdiction in New Jersey.  Petitioner argued that even if residency alone was insufficient for a finding of jurisdiction, Professor Larson’s fourth factor, namely “place where the industry is localized,” in conjunction with petitioner’s residency in New Jersey is sufficient for a finding of jurisdiction.  However, the Appellate Division disagreed, explaining the concept of localization should be analyzed in terms of advancement of company interests, not its mere presence in the State. In this case, the Court found that, “nothing in the course of Marconi’s two-decade employment with United advanced the company’s localized interests in New Jersey.  In these circumstances, although United maintained a localized business interest in Newark, New Jersey has no substantial interest in exercising its jurisdiction over the petitions.”  As such, the Appellate Division affirmed the dismissals of both claim petitions.

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Boyle v. Giannakis, et al., Docket No. MID-L-6571-18

Client: School Board Member Defendants

Court: Superior Court, Law Division, Civil Part, Middlesex County

Trial Attorney:  Cameron R. Morgan, Esq.

Brief Attorney: Cameron R. Morgan, Esq.

A member of the South Plainfield Board of Education, Deborah Boyle, and her husband, brought suit against four other current school board members, two former board members, and six other citizens of the South Plainfield community, alleging claims of harassment, gender based discrimination under the New Jersey Law Against Discrimination (NJLAD), terroristic threats, conspiracy, and loss of consortium.  Plaintiffs’ claims were based primarily on her allegations that one of the defendant school board members had attended meetings of the local middle school PTO of which Plaintiff was the president, sought to obtain financial records related to the organization, and expressed views which Plaintiff found harassing.  After being denied access to the PTO financial records, several of the defendants later ran for and were elected to the Board of Education, and the Board lawfully enacted a policy prohibiting current Board members from serving in positions of executive leadership in the local PTO, thereby causing Plaintiff to resign her presidency of that organization.  Plaintiff also alleged that several local citizens had made statements or engaged in conduct which she felt diminished her reputation in the local community.

After permitting Plaintiffs several opportunities to amend, on June 26, 2019, the trial court granted Defendants’ Third Motion to Dismiss in Lieu of an Answer, dismissing all six of the seven counts of the complaint applicable to the Board member defendants, in their entirety and with prejudice.  The court held that, even if a cause of action exists in New Jersey for civil harassment, plaintiffs’ claims could not survive a motion to dismiss, as they had failed to plead the necessary elements of a claim for intentional infliction of emotional distress.  The court also dismissed Plaintiffs’ NJLAD claims, finding that Plaintiffs had failed to plead facts sufficient to show an “unlawful employment practice” or “unlawful discrimination,” within the meaning of the NJLAD, N.J.S.A. 10:5-5d, as there was no employer/employee relationship, and the conduct alleged was not within any of the twenty subsections of the NJLAD setting forth the various categories of unlawful discrimination pursuant to N.J.S.A. 10:5-12.  Claims of harassment against one of the citizens of the community were also dismissed with prejudice.

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Patricia Costanzo vs. Meridian Rehab

Client: Meridian Rehab

Court: Freehold Workers’ Compensation Court

Trial Attorney:  Carla P. Aldarelli, Esq.

Brief Attorney:  Maura Burk, Esq. 

Petitioner filed a Motion for Medical and/or Temporary Disability Benefits seeking treatment for her left knee as recommended by her medical expert.

The Motion was fully tried, and testimony was taken from petitioner, petitioner’s medical expert, and from Respondent’s medical expert.

The Judge denied the Motion for Medical and/or Temporary Disability Benefits, finding that Respondent’s medical expert was more credible than petitioner’s medical expert, and found that petitioner failed to establish that any need for treatment to her left knee was work related.

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Mary Grace Lawson v New Jersey Sports and Exposition Authority, DOCKET NO. A-4058-17T1

Client: New Jersey Sports and Exposition Authority

Court:  Appellate Division

Trial Attorney:  Keith E. Nagy, Esq.

Brief Attorney:  Keith E. Nagy, Esq. and John H. Geaney, Esq.

Petitioner appealed the Workers Compensation Court’s finding that she was not entitled to wage reconstruction after a full trial on the issue. After trial, the lower court found that the petitioner did not sustain her burden of proof as she found the petitioner capable of a myriad of strenuous activities and found that the petitioner failed to prove that she lacked the potential for full time employment. Petitioner appealed arguing that she never returned to full-time employment and that she had a significant injury.

The Appellate Division affirmed the Workers’ Compensation Court’s finding that the petitioner did not sustain her burden of proof pursuant to Katsoris v. South Jersey Publishing Co., 131 N.J. 535 (1993). The Appellate Division noted that the applicable standard is that an enhanced award utilizing wage reconstruction is to compensate the injured employee “for his loss of earning capacity, i.e., diminution of future earning power.” Id. at 546 (quoting Torres v. Trenton Times Newspaper, 64 N.J. 458, 460-61 (1974)). That diminution includes the employee’s capacity to work full time either now or in the future. Id. at 548. The Appellate Division found that the record supported the Workers’ Compensation Judge’s findings that the petitioner’s accident did not diminish her capacity to perform full-time work.

To view case, click here.

 

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Alma Camarena v. Sprint PCS, No. A-2205-17T2

Client: Sprint PCS

Court:  Appellate Division

Trial Attorney:  Michelle L. Duffield, Esq.

Petitioner obtained an award of 30% permanent partial disability in 2003 arising from a work-related motor vehicle accident dating back to 1999. The award was for a bulging disc at C6-7 and disc protrusions at L4-5 and L5-S1. Petitioner later reopened the award and sought total and permanent disability benefits with the Second Injury Fund. We successfully argued that petitioner’s subsequent increased disability was not related to the 1999 work accident but to subsequent non-work injuries.

To view case, click here.

 

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Liberty Mutual Insurance o/b/o Sabert Corp. v. Rodriguez, 458 N.J. Super. 515 (App. Div. 2019), certif. denied, __ N.J. __ (July 11, 2019)

Client: Liberty Mutual

Court: Appellate Division

Trial Attorney:  Betsy G. Ramos, Esq.

Arising out of an injury in 2012, Mr. Rodriguez received workers’ compensation benefits, including medical and temporary disability benefits, paid by Liberty Mutual. He then went on to sue the tortfeasor and settled his third party suit for over $1 million. The question now was how to calculate Liberty Mutual’s lien and the attorney’s fees that must be reimbursed to the petitioner’s attorney:  was the lien two thirds based upon the sliding scale contingent fee agreement or higher than that percentage based upon an average of the actual attorneys fees paid?

The trial court ruled in Liberty Mutual’s favor, holding that the reimbursable attorneys fees should be the actual fees paid. In a published decision, the Appellate Division affirmed. While the petitioner tried to appeal further to the Supreme Court, the Court denied the petitioner’s Petition for Certification, making the Appellate Division decision final.

Additional information about the case may be found on our Workers’ Compensation blog by clicking here:  https://njworkerscompblog.com/appellate-division-resolves-long-standing-dispute-on-lien-formula-with-high-third-party-settlements/

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M.S. and N.S. v. Board of Education of the Township of Hainesport, (OAL DKT. NO. EDU 08878-16)

Client: Board of Education of the Township of Hainesport

Court: Commissioner of Education

Brief Attorney:  Sanmathi (Sanu) Dev, Esq.

The parents of a student sought to overturn a determination by the Hainesport Board of Education that their child had engaged in conduct against a fellow student that violated the Anti-Bullying Bill of Rights Act. The Commissioner and ALJ agreed that the Board did not act in an arbitrary, capricious, or unreasonable manner when it determined that the student’s comments about his classmate being weak and bad at sports constituted an act of harassment, intimidation and bullying (HIB).

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Goffe v. Foulke Management Corp, et als.

Client:  Defendants in Consolidated Actions, Foulke Management Corp. and Mall Chevrolet, Inc.

Court: Supreme Court of New Jersey

Brief Attorney:  Laura D. Ruccolo, Esq.

Resolving novel legal issues created by the Appellate Division decision, and relying upon the public policy in favor of arbitration, the Supreme Court of New Jersey re-instated the orders of the Trial Courts enforcing the Arbitration Agreements.

The Plaintiffs had executed documents to purchase motor vehicles from Defendants which contained ”clear and conspicuous” agreements to arbitrate all disputes, including whether a particular dispute is “arbitrable”. In these consolidated cases, Plaintiffs had sought for the Courts (and not the arbitrators) to resolve their challenge to the enforceability of an Arbitration Agreement and the Defendants had urged the Courts to enforce the broad agreements to arbitrate as written.

 

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Coard v. Oaks Integrated Care, Inc.

Client: Oaks Integrated Care, Inc.

Court:  Appellate Division

Brief Attorney:  Joseph F. Betley, Esq. and Sanmathi (Sanu) Dev, Esq.

Plaintiff, who is African-American, alleged that he was improperly terminated from his position at Oaks Integrated Care, Inc. (“Oaks”), because of his race, in violation of the New Jersey Law Against Discrimination (“NJLAD”).  After receiving an anonymous tip alleging plaintiff was smoking marijuana outside the group home, Oaks suspended plaintiff pending an internal investigation.  Oaks found the allegations to be unsubstantiated and contacted plaintiff multiple times to schedule his return to work, but plaintiff did not return the calls.  Plaintiff was subsequently terminated due to his violation of Oaks’ attendance and conflict resolution policy.

Plaintiff brought suit under the NJLAD alleging he was terminated because of his race.  He premised the claim on comments his supervisor allegedly made questioning his ability to afford certain “luxuries,” such as designer jeans, sneakers, rental cars, and vacations.  The motion judge determined that plaintiff’s “subjective feelings of race-based discrimination” failed to demonstrate a prima facie violation of the NJLAD and dismissed the case.  On appeal, the Appellate Division agreed that plaintiff’s termination was not a pretext for discrimination and upheld the dismissal.

 

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Multiple Medical Reimbursement Cases Dismissed for Lack of Jurisdiction

A number of medical providers for New York workers’ compensation claimants had filed medical reimbursement applications in the Division of Workers’ Compensation in New Jersey seeking the higher New Jersey rates.  We filed motions to dismiss for lack of jurisdiction with briefs arguing that there is no New Jersey jurisdiction if the injured worker himself would not have the right to file a New Jersey claim because of lack of employment/ injury connection to New Jersey.

Judge Ferriero in Hackensack agreed with our arguments and has dismissed for lack of jurisdiction , with prejudice a total of 20 claims over the past several months for a number of our clients – Amtrust, Glacier Bay, York Claims Services, First MCO, PMA and Chesterfield. The applicant’s attorney has not elected to appeal these dismissals.  Claire Ringel, Esq. and Caroline Yount, Esq. on the motions and briefs.

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