Bill to cap damages pending

On June 11, 2008, the Assembly Judiciary Committee took up a bill that Deputy Majority Leader Joseph Cryan (D-Union) has been pushing for three legislative sessions to cap punitive damage awards in cases where several defendants are determined to share responsibility for a harm.

In such cases, as soon as one defendant reaches a punitive-damages settlement with the plaintiff, that agreed-upon figure will be used to calculate a ceiling on the punitive damages the other defendants may be assessed. For example, should a defendant judged 20 percent liable for a harm agree to pay the plaintiff $100,000 in punitive damages, then the maximum punitive damages the plaintiff could receive would be $500,000, and no defendant would be liable for more than the share of that $500,000 corresponding to his or her comparative liability.

TMWB is monitoring the progress of this important piece of legislation.

Auto carrier must compensate man who slippe don ice and struck head on jack

In Penn National v. Costa, decided April 29, 2008, the Appellate Division reversed the Law Division’s denial of the motion for summary judgment by the defendant/third-party plaintiff homeowner’s insurer and remanded for the entry of judgment for the homeowner’s insurer and against the plaintiff automobile insurer in a coverage action for injuries sustained by the third-party defendant when he slipped on ice and hit his head on the vertical post of the jack being used to replace a tire on his employer’s pickup truck in the employer’s driveway. Because the injuries arose out of the maintenance of an automobile, which fell under an exclusion in the homeowner’s insurance policy, the court held that the auto carrier was required to defend and indemnify the vehicle owner.
This is a published opinion and will constitute binding precedent going forward. It is noteworthy, insofar as the court uncharacteristically enforced a policy exclusion. However, this was most likely due to the fact that alternate coverage was in place.

Joinder of Broker malpractice in coverage claim

In an important decision for E&O carriers for insurance brokers, the Appellate Division has held that even where an insured knows it has a potential malpractice action against its broker, that claim will not be barred by the Entire Controversy Doctrine if it is not brought in connection with a declaratory judgment action to deny coverage procured by the negligent broker. In Media Sciences International v. Beckerman & Co., the court, in keeping with New Jersey’s continuing line of cases which limit the Entire Controversy Doctrine, held that the broker is required to establish by specific facts that it was “substantially prejudiced” by the failure of the insured to join it in the underlying coverage action. Prejudice, the court noted, is primarily demonstrated by showing lack of access to relevant information. Delay alone is not sufficient, nor are “faded witness memories.” Therefore, E&O carriers should beware that the the resolution of a coverage action does not necessarily indicate preclusion of a suit against a broker for malpractice.

Tompkins McGuire, regularly represents numerous industries as well as their insurers in professional malpractice claims. For more information on this case as well as other developments in this area, please contact us.

'Going-and-Coming' rule examined

The Appellate Court reversed the decision of the workers’ compensation judge, finding the “travel-time” exception to the going-and-coming rule does not apply where a salaried employee is reimbursed for gas, tolls, and wear and tear on his vehicle, but was not paid wages for the time of his commute to and from work.

In Scott v. Foodarama, 398 N.J. Super. 441 (App. Div. 2008), the Appellate Division found that the claimant was merely driving to work when the accident happened, and was barred from receiving compensation for injuries sustained on his commute. In other words, the claimant was engaged in his normal commute. The fact that his commuting expenses were paid by the employer did not make the claim fall “within the course of” his employment.

What makes this case notable is that the claimant was actually reimbursed for his commuting expenses by the employer. (Decided February 27, 2008, link to full decision: http://lawlibrary.rutgers.edu/courts/appellate/a3936-06.opn.html)

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.

Defending Employers