Failure to monitor drunken patron

A tavern may be liable for negligence if it makes no effort to keep a visibly drunk patron safe, even though his drinking may have been done elsewhere. In a case of first impression, the Appellate Division held in Bauer v. Nesbitt, decided March 20, 2008, that a bar owner can be sued for failing to prevent a patron from getting into a car with another patron who was visibly intoxicated and later caused the passenger’s death. The court held that if the bar’s employees should have recognized that the passenger was drunk, even if he was not served alcohol there (the passenger only drank a Coke at the bar), there was a duty to protect him from foreseeable injury as the result of an automobile accident by insuring he did not drive and that he did not ride as a passenger with a patron who was similarly impaired. This is the first decision holding that if a patron becomes visibly intoxicated and the bar’s employees know or should have known, the patron should not be permitted to leave without trying to find safe transportation.

Workers Comp system subject of investigative reporting

The New Jersey Workers’ Compensation system was the focus of an investigation conducted by the Star-Ledger Newspaper , one of the most widely-read newspapers in New Jersey. The articles (which ran consecutively in April) concluded that “bureaucratic delays, politics and poor state oversight have left thousands of injured workers waiting years for the relief promised by the compensation system.” The three-part article has led to a New Jersey Senate Labor Committee hearings scheduled to begin May 5th in Trenton to examine ways to “reform” the workers’ comp system in New Jersey.

To summarize, the Star-Ledger articles were highly critical of the Department of Labor and the Division of Workers’ Compensation – calling our adversarial benefits-litigation process “slow,” “inefficient,” and “harmful.” The stories in the three-part series focused on claimants who waited long periods of time for benefits (including one claimant who died while awaiting medical treatment). Statistics from the Division of Workers’ Compensation show that the average claim scheduled for a pre-trial conference is adjourned 15 times before final settlement!

The Star-Ledger examined the legal education and professional experience of the current Judges of compensation and noted that very few had actually practiced workers’ compensation law before they became workers’ comp judges. Most had political connections and appointments before they were nominated for the bench; the article called the appointment of comp judges a purely “political” process.

In a related article (“Secretive Board of Insiders Steers Workers’ Comp”, date: May 4, 2008) the Star-Ledger investigated the New Jersey Compensation Rating and Inspection Bureau (NJCRIB), finding that the Board of Directors is dominated by insurance executives and that rate hikes had occurred in the last seven years while the national average premium had actually declined (link).

One possibility that insiders have speculated about has been the creation of a “Workers’ Comp Ombudsman” to assist injured workers as they navigate the system and the institution of an “alternate dispute resolution” process (without attorneys representing the employer or employee). Stay tuned.

Wrongful death expansion: Version 2.0

The sponsor of a measure to expand damages in wrongful death cases, vetoed by Gov. John Corzine because it could fall heavily on public defendants, has reintroduced it and plans to tailor the bill to the Governor’s concerns. The bill would amend the Wrongful Death Act to allow recovery for mental anguish, emotional pain and suffering, loss of society and loss of companionship. Those damages would be available to to those entitled to intestate succession of the decedent’s personal property, namely spouses, children and parents. Presumably, the new bill will give judges authority to strike or reduce “excessive” non-pecuniary damage awards. The newly introduced bill has been assigned to the Senate Judiciary Committee. However, no action is predicted until the fall, after the budget process is completed and the Legislature takes its summer recess.

Biomechanics experts testimony admissible

Following a series of unfavorable rulings in the Appellate Division over the past few years, New Jersey courts were generally of the view that biomechanical experts could not be called upon by defendants to opine that a minor automobile accident could not have possibly caused a serious medical condition. However, on March 6, 2008, the New Jersey Supreme Court announced its decision on Hisenaj v. Kuehner, ___ N.J. ____ (2008), reversing an appellate court that overstepped its bounds in throwing out the report of Harold Alexander, PhD., based upon the conclusion that it was not supported by reliable scientific methodology. Thus, the defendants were left with the prospect of facing exposure for significant medical treatment, including spinal surgery, for a motor vehicle collision occurring at less than ten miles per hour. However, the Supreme Court found that the studies Dr. Alexander relied upon, as opposed to those used for support in prior cases, included similar accidents and similar victims in terms of age, gender and physical composition. Thus, the opinions offered were sufficiently supported by scientific data for admissibility.

This was an important victory for insurance carriers in New Jersey, as juries will no longer be left to determine whether low impact collisions correlate to serious medical conditions, especially in the spine, which often times are pre-existing. However, it remains important for defense counsel to insist that their biomechanical experts rely upon the most recent and up-to-date empirical evidence.

TMWB maintains an extensive automobile liability defense practice, representing insureds on personal auto, as well as commercial policies.

TMWB continues leadership in insurance coverage litigation

In a decision rendered March 5, 2008, the Appellate Division agreed with the Firm that a CGL policy exclusion which seemingly denied coverage for any subcontractor’s employee sustaining injury on a construction site with the insured – whether or not the insured had retained that subcontractor – was invalid. In Pyramid Construction, LLC v. Essex Insurance Company, Docket No.: A-4290-06T3, the court found that the following language was inherently ambiguous and nullified the protections of the policy:

[T]here is no coverage under this policy for ‘bodily injury’ or ‘property damage’ sustained by any contractor, self-employed contractor, and/or subcontractor, or any employee, leased worker, temporary worker or volunteer help of same.

This particular language had never been passed upon by a New Jersey court. The court’s decision was based primarily on the fact that immediately above the quoted language, was a requirement that the insured’s subcontractors meet certain insurance requirements, or coverage would not apply. The obvious question then was why require subcontractors to carry certain insurance, when they were not covered in the first place? Under the facts of the particular case, the insured was itself a subcontractor on a construction site where a worker was killed. The worker was not an employee of any of the insured’s subcontractors, but the carrier denied coverage anyway, exposing the insured to a potential multi-million dollar verdict. With this ruling by the Appellate Division, TMWB, lead by partner Joe Cobuzio, ensured a defense and indemnification for the insured.

TMWB regularly handles declaratory judgment actions on behalf of both insurers and insureds in the State and Federal courts of New Jersey.

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