eNotes: Liability – June 2022 – New Jersey

SIGNIFICANT CASE SUMMARIES

NJ CASE SUMMARY

Hoover v. Wetzler
New Jersey Superior Court, Appellate Division
No. A-2688-20

Decided: May 16, 2022

The “like-qualified” standard established by the Affidavit of Merit statute, at N.J.S.A. 2A:53A-41, only applies to physicians. The Court found nothing in the statutory text that indicated nurses were to be encompassed within the definition of physicians.

Background

Plaintiff Hoover treated with a physician for problems in her left knee. When conservative treatment failed, the physician recommended total knee replacement. Defendant Baughman, RNFA, assisted during the Plaintiff’s surgery. Plaintiff alleged that during the surgery, Defendant Baughman and/or the surgeon damaged her popliteal artery and vein, requiring a bypass procedure that resulted in permanent deformity of her leg. After filing the present action, Plaintiff filed and served a single AOM as to all Defendants. The AOM was authored by a board-certified orthopedic surgeon with experience in total knee replacement surgery. Defendant Baughman objected to the AOM as insufficient against a registered nurse, pursuant to the “like-qualified” standard established by the amendment to the AOM statute. N.J.S.A. 2A:53A-41. The Trial Court agreed, and when Plaintiff failed to submit a second AOM, that Court dismissed Defendant Baughman from the action.

Holding

On appeal, the Appellate Division reversed and remanded for further proceedings. The Appellate Division found that Plaintiff’s AOM met the requirement that the author have expertise in the area or specialty involved in the action, which the author of Plaintiff’s AOM, as a board certified orthopedic surgeon, indisputably did.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

KnightBrook Ins. Co. v. Tandazo-Calopina
New Jersey Superior Court, Appellate Division
No. A-1115-20, ___ N.J. Super. ___

Decided: May 16, 2022

The New Jersey Superior Court, Appellate Division, examined an insurer’s denial of coverage for failure to cooperate with the defense being provided, finding that the insured’s refusal to comply with a Court Order mandating her appearance at deposition, and her failure to otherwise participate in her own defense, was insufficient prejudice to her insurer to permit coverage denial.

Background

Plaintiff Knightbrook Insurance had issued a commercial auto policy to Carolina Tandazo-Calopina for her taxi business. Plaintiff’s insurance policy included a duty to cooperate clause, which required Calopina to notify Plaintiff of any accident and cooperate with Plaintiff in any claim or suit. Calopina rear-ended a vehicle driven by Jose Sanchez. At the scene of the accident, to the police, Calopina claimed that the accident was caused by the failure of her brakes. However, Sanchez claimed that after the accident, Calopina had told him that she was distracted by passengers and lacked sufficient time to bring her vehicle to a stop. Sanchez filed a personal injury action against Calopina, who failed to notify Plaintiff about the suit. Plaintiff ultimately obtained a copy of the personal injury Complaint and assigned counsel to represent Calopina. Plaintiff later informed Calopina that it would handle defense of the personal injury action subject to a reservation of rights due to Calopina’s “continued refusal to cooperate with defense counsel.” When Calopina failed to appear for her court-ordered deposition, Plaintiff withdrew its defense of the personal injury action and refused to provide coverage based on her violation of the duty to cooperate clause in her policy.

Sanchez then sought uninsured motorist benefits from Defendant Liberty Insurance, his auto insurer. The Trial Court denied summary judgment, finding a triable issue as to whether Plaintiff validly withdrew Calopina’s coverage. Plaintiff ultimately filed the present declaratory judgment action and successfully moved for summary judgment in that declaratory judgment action. At summary judgment, the Motion Judge held that Plaintiff was entitled to disclaim coverage due to Calopina’s failure to cooperate, as Plaintiff was prejudiced by the loss of her testimony.

Holding

On appeal, the Appellate Division reversed. Upon examination of the record and review of the prejudice evidence for sufficiency, the Appellate Division concluded its decision by agreeing with Defendant Liberty Insurance that Plaintiff failed to demonstrate appreciable prejudice. The Court held that there was already sufficient evidence in the record to permit Plaintiff to defend against Sanchez’s personal injury action.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

Matullo v. Skyzone Trampoline Park
New Jersey Superior Court, Appellate Division
No. A-2813-20, ___ N.J. Super. ___

Decided: May 16, 2022

In this appeal, the New Jersey Superior Court, Appellate Division examined the enforceability of an arbitration provision in an agreement signed by a fifteen-year-old minor to gain access to a commercial trampoline park. The Court held that the arbitration provision was not enforceable because the minor had the right to disaffirm the agreement and the limited exceptions to that right did not apply.

Background

The 15-years-old Plaintiff Jacob Matullo, visited Defendant Sky Zone’s trampoline park, where he was presented with and signed a participant agreement, which included an arbitration provision. The agreement further stated that the party signing it was at least 18 years old. Plaintiff signed the agreement with a birthday of July 4, 1998 and also listed himself as a minor with a birthday of July 4, 2002. Plaintiff was subsequently injured at the trampoline park and filed a negligence suit against Defendants.

Defendants moved to dismiss the action and compel arbitration. The Trial Court granted the Motion, acknowledging that a minor was entitled to avoid a contract, but ruling that Plaintiff had defrauded Defendants by representing himself as an adult when he signed the participation agreement and, therefore, Plaintiff should be bound to the contract after receiving its benefits through fraud.

Holding

Here, the Appellate Division held that although a minor could be estopped from disaffirming a contract if they misrepresented that they were an adult when entering the contract, Defendants could not have reasonably relied on Plaintiff’s representation that he was an adult. The Court noted that any employee of Defendants who reviewed the agreement signed by Plaintiff would have seen that he listed two different birthdates for himself and thus would have been motivated to question the accuracy of Plaintiff’s representation.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

Perez v. Sky Zone, LLC
New Jersey Superior Court, Appellate Division
No. A-1861-20, ___ N.J. Super. ___

Decided: May 16, 2022

In this case, the New Jersey Superior Court, Appellate Division, affirmed the Lower Court Motion Judge’s Order compelling arbitration, but held that the Co-Defendants named in the action could not be compelled into arbitration and that the lawsuit should be stayed pending completion of the arbitration. The Court further held that the validity of the release-of-liability provision and the assumption-of-the-risk provision were for the arbitrator to determine.

Background

Plaintiff Louie Perez visited Defendant Sky Zone’s trampoline park with his seven-year-old son and was presented with a participation agreement that included an arbitration clause. Plaintiff checked the box next to the arbitration provision and signed the agreement. Plaintiff was injured at the trampoline park and filed an action against the Defendants, who moved to dismiss the action in lieu of arbitration. The Trial Court granted the Motion, also compelling arbitration with two other Co-Defendants under “agency principles.” The Trial Court held that it would be inequitable to allow Plaintiff to avoid arbitration simply because he had named parties who were not signatories to the participation agreement.

Holding

The Appellate Division affirmed in part, and reversed and remanded in part. Plaintiff’s argument that the arbitration provision was unenforceable because the named arbitrator was unavailable was rejected, noting that both the Federal Arbitration Act (9 U.S.C. §§ 1-16) and New Jersey Arbitration Act (N.J.S.A. 2A:23B-11) permitted the Court to appoint an arbitrator if the selected arbitrator was unavailable. The Court further found that the enforceability of other potentially unenforceable sections of the agreement was a question for the arbitrator. Furthermore, the Appellate Division reversed the portion of the Trial Court’s Order compelling arbitration against the Co-Defendants and held that Plaintiff’s claims against those parties should be stayed pending arbitration.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.

DiFiore v. Pezic
New Jersey Superior Court, Appellate Division
No. A-19-20, 084381, ___ N.J. ___

Decided: May 3, 2022

The Appellate Division of the Superior Court of New Jersey considered three cases in which Plaintiffs sought to record independent medical examinations or to have a third party present on Plaintiff’s behalf. The Court outlined the review criteria for the trial courts to apply, placing the burden upon the plaintiff to establish the need for such a third party presence or for the video-taping of the examination.

Background

Three cases were consolidated for the purpose of issuing this common opinion. The three different Plaintiffs separately appealed from rulings by three different Law Division Trial Court Judges regarding Plaintiffs’ requests for a third-party presence or audiovisual recording, or both, of an independent medical examination of Plaintiffs, who allegedly had cognitive limitations, psychological impairments, or language barriers. The parties and amici requested the Court revisit and update its ruling in B.D. v. Carley, 307 N.J. Super. 259, which authorized “unobtrusive” audio recording of neuropsychological IMEs.

Plaintiffs argued that having a third-party witness an IME, or allowing audiovisual recording of the IME, is necessary where the examiner may not accurately describe the proceedings of an IME at trial, which would be compounded when a plaintiff’s psychological, cognitive, or language limitations would prevent them from rebutting the examiner’s version of events. Defendants and amicus argued that having a third party or audiovisual recording device in the exam room could distract a plaintiff or otherwise interfere with the results of the IME, citing an American Board of Professional Neuropsychology policy statement that expressed disfavor with third-party observation or recording of IMEs and suggested practitioners refuse such conditions, unless required by law.

Holding

Recognizing a need for guidelines in these situations, the Court established the following six considerations for the Trial Courts:

First, a disagreement over whether to permit third-party observation or recording of a [defense medical exam] DME shall be evaluated by trial judges on a case-by-case basis, with no absolute prohibitions or entitlements.

Second, despite contrary language in Carley, it shall be the plaintiff’s burden henceforth to justify to the court that third-party presence or recording, or both, is appropriate in a particular case.

Third, given advances in technology since 1998, the range of options should include video recording, using a fixed camera that captures the actions and words of both the examiner and the plaintiff.

Fourth, to the extent that examiners hired by the defense are concerned that a third-party observer or a recording might reveal alleged proprietary information about the content and sequence of the exam, the parties shall cooperate to enter into a protective order, so that such information is solely used for the purposes of the case and not otherwise divulged.

Fifth, if the court permits a third party to attend the DME, it shall impose reasonable conditions to prevent the observer from interacting with the plaintiff or otherwise interfering with the exam.

Sixth, if a foreign or sign language interpreter is needed for the exam (as is the case in two of the appeals before us) the examiner shall utilize a neutral interpreter agreed upon by the parties or, if such agreement is not attained, an interpreter selected by the court.

Questions about this case can be directed to Mark Sander at (856) 334-0415 ext. 8915 or msander@tthlaw.com.