Notable Wins

Client: PMA and GSMJIF

Court:  Appellate Division

Brief Attorney:  Christopher J. Carlson, Esq.

**Results may vary depending on your particular facts and legal circumstances**

In Marano v. Clifford J. Schob, M.D., A-33915-16T2 (App. Div. June 20, 2018), the Appellate Division held that New Jersey’s lien provision does apply to funds that an injured worker received in a medical malpractice suit pursuant to the terms of a “high/low” agreement. The case affirmed a prior ruling in Pool v. Morristown Memorial Hospital, 400 N.J. Super. 572 (App. Div. 2008) but dealt with a new regulation that was passed after the Pool decision.

The case stemmed from a work-related injury to a police officer employed by the Union Township Police Department. The Township was a member of the Garden State Municipal Joint Insurance Fund (GSMJIF). PMA was the third party insurance administrator for the GSMJIF. Officer Marano injured his back on July 12, 2010 arising from work and received $51,779.81 in workers’ compensation benefits, including $5,403.07 for nurse case management charges.

Marano filed a suit in the law division alleging that Dr. Clifford Schob was negligent in failing to advise him to visit an emergency room and was negligent in not properly diagnosing his condition. The parties to the medical malpractice suit agreed to arbitrate the suit with the agreement that following the arbitrator’s decision, plaintiff would receive at least $250,000 (the “low”) but no greater than $750,000 (the “high”). The arbitrator arbitrated the case over two days and found no cause of action against Dr. Clifford Schob and dismissed the law suit. However, based on the high/low agreement, plaintiff was paid $250,000 even though Dr. Schob was found not to be at fault.

The issue in this published decision arose because plaintiff refused to reimburse PMA Insurance Company and the Garden State Municipal Joint Insurance Fund its statutory two thirds of the $51,779.81 paid to Officer Marano. The GSMJIF refused to compromise the lien, so plaintiff filed an order to show cause and a verified complaint in the Law Division seeking a declaration that the payment in the high/low agreement was not subject to any workers’ compensation lien.

The thrust of the argument made by plaintiff was that this issue was not the same as one previously decided in Pool above. Plaintiff argued that N.J.A.C. 11:1-7.3(a) was passed after Pool was decided. That regulation provides that a medical malpractice insurer must notify the Medical Practitioner Review Panel of any medical malpractice settlement, but not in a high/low agreement where the arbitrator found no liability on the part of the medical practitioner. That language excluding the notification provision for no cause decisions in high/low agreements was added in 2009 after Pool. Plaintiff argued that fewer high/low agreements will be negotiated if Marano is ordered to reimburse the GSMJIF. He said that future plaintiffs will have to demand higher “low” figures to take into account lien obligations.

The Appellate Division affirmed the trial judge stating:  “That concern has no relationship to a compensation carrier’s rights under Section 40 to impose a lien on the recovery.” The Court noted that there is a strong public policy in New Jersey preventing double recovery. It said that “whether an alleged tortfeasor is ultimately held to be liable does not affect the enforceability of a lien.”

As to the nurse case manager fees, the court remanded to the Law Division to decide whether those charges should be considered medical expenses under the New Jersey Workers’ Compensation Act.

Petitioner has filed a petition for certification with the Supreme Court.

Client: County of Monmouth

Brief Attorney:  Jessica M. Anderson, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff suffered a broken collar bone, two fractured vertebrae, and required fifty stitches to his head when he dove into a piling at Whiting Beach.  Plaintiff claimed that the area was marked off by flags indicating that this activity was safe.  Defendant filed a motion in lieu of answer arguing that they did not own, control or maintain the property.  The Court granted Defendant’s motion on October 27, 2017 and declined to consider Plaintiff’s opposition which was filed three days before the motion return date.  Plaintiff subsequently filed a motion for reconsideration arguing that the Monmouth County Health Department’s website stated that they inspected public beaches and therefore Defendant could be responsible for placing the flags.  Defendant opposed the motion arguing that the County of Monmouth was immune for failure to inspect, or negligent inspection of property pursuant to N.J.S.A. 59:2-6.  The Court denied Plaintiff’s motion for reconsideration finding that even if Defendant inspected the property, Defendant would be immune pursuant to N.J.S.A. 59:2-6.

Client: County of Monmouth

Brief Attorney:  Jessica M. Anderson, Esq.

**Results may vary depending on your particular facts and legal circumstances**

Plaintiff suffered an injury to his hand requiring open reduction and internal fixation surgery when he tripped on the lip of a sidewalk which abutted a gravel parking lot.  Plaintiff’s liability expert opined that the one and three-eight inch elevation between the gravel and the curb was a tripping hazard that easily could have been cured by the County re-grading the gravel.  Defendant moved for summary judgment arguing that Plaintiff did not meet the elements of a dangerous condition as required by the Tort Claims Act because the defect was a minor imperfection of public property, the County did not have actual or constructive notice of the defect, and the County’s conduct was not palpably unreasonable.  Plaintiff opposed the motion arguing that through his expert report, he had met the required elements.  The Court disagreed and granted Defendant’s motion for summary judgment finding that Plaintiff’s expert did not take measurements of the defect until six months after the accident and therefore failed to establish the elements of a dangerous condition for the date of the accident.

Client: The Defendant Employer, Mall Chevrolet, Inc.

Trial Attorney:  Laura D. Ruccolo, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The Plaintiff, who was an immigrant from Moldavia, claimed that he was the victim of discrimination based on his national origin.  Plaintiff alleged that he followed his employer’s anti-discrimination policy and that the employer failed to act on his complaints of discrimination and then fired him in retaliation for making the complaints.  The employer defended the case on the basis that there was no discrimination and that the Plaintiff never made any complaint and that Plaintiff  was instead terminated for poor performance.  The jury returned a verdict in favor of our client, the Defendant employer finding, that there was no discrimination and no retaliation.

Client: Employer, McRech Inc.

Trial Attorney:  Laura D. Ruccolo, Esq.

**Results may vary depending on your particular facts and legal circumstances**

The Plaintiff claimed that her co-workers were engaging in inappropriate conversations of a sexual nature and that created a hostile work environment. Plaintiff did not utilize the company’s anti-harassment policy and only made a complaint to her manager, after she resigned.  The jury returned a verdict in favor of our client, the defendant employer finding that the comments did not create a hostile work environment.

**Results may vary depending on your particular facts and legal circumstances**

Attorney Laurel B. Peltzman recently won a case in the New Jersey Court of Appeals (Quamina v. Stella Gardens Apts., 2017 N.J. Super. Unpub. LEXIS 683 (App. Div. Mar. 21, 2017)) after successfully arguing that the lower court’s decision to grant summary judgment in her client’s favor should be upheld.