Russo and Kieck NJ Law Office

Employment Discrimination: Us Supreme Court Rules First Amendment Bars Discrimination Lawsuit By Religious Ministers

By: Donna Russo The U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission on January 11, 2012. The Court held that the Establishment and Free Exercise Clauses of the First Amendment bar an employment discrimination action when the employer is a religious group and the employee is a group minister. Cheryl Perich was a teacher at Hosanna-Tabor, a Lutheran School. The school had two types of teacher employment: called and lay. A called employee must receive a call from the congregations and satisfy certain academic requirements. The congregation elects the employee as a call teacher; a call can only be rescinded by a super majority vote of the congregation. Lay teachers are contact teachers. They are not required to have religious education and are employed for one year terms without a vote by the congregation. Lay teachers were only hired when called teachers were not available. Cheryl Perich is a called teacher. She had been employed for four years when she became ill with narcolepsy which includes symptoms of sudden and deep sleeps. She took a disability leave but in four months, she notified the school that she would be able to report to work. The congregation felt that she would not be able to return to work and offered her a “peaceful release” from her call wherein the congregation would pay a portion of her health insurance premiums in exchange for her resignation. She refused to resign and produced a letter from her doctor that she would be able to return to work on February 22nd. The school urged her to reconsider. She refused to resign and appeared at work on February 22nd. She was asked to leave and would not do so until she received written confirmation that she had appeared. The school called her and advised that she would be fired and the congregation voted to rescind her call and terminate her. Cheryl Perich sued alleging unlawful termination under both the ADA and state law. The school/church argued that the lawsuit was barred by the “ministerial exception” which is that the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Court held that the “ministerial exception”, which protects a religious group’s right to shape its own faith and mission through its appointments, barred the lawsuit. The Supreme Court limited its holding to an employment discrimination suit brought by a minister challenging its decision to fire her. The Court stated: “We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”  

NJ Insurance Law - The Governor Signs Bill Requiring Parity Of Health Insurance Coverage For Oral Anticancer Medications

By: Donna Russo, Esq. On January 17, 2012, Governor Christie signed into law S1834 which requires that health insurers cover oral anticancer medications on a no less favorable basis than intravenous anticancer medications. This bill was first introduced in March, 2010. S1834 will take effect 180 days after the enactment date and shall apply to all contracts and policies issued on or after the effective date. New Jersey has become one of a small number of states to pass this legislation. Similar bills are pending in various states. S1834 is a very significant law allowing cancer patients to obtain expensive oral cancer drugs under their insurance policies. Previous to this bill, some insurance companies were not providing coverage for oral cancer drugs and would only cover intravenous and injected medications which would require the cancer patients to interrupt their lifestyles and submit themselves to a hospital or clinic to receive intravenous anticancer medication which may not be the suggested first line of treatment. It is common knowledge that new anticancer therapies are being developed in pill form and that not all these new drugs are available intravenously. S1834 is that it applies to almost all policies whether large or small group, state or individual policies. The key aspects of this bill are:     (1) Coverage for expenses for prescribed, orally administered anticancer medications used to kill or slow the growth of cancerous cells shall not be subject to any prior authorization, dollar limit, copayment, deductible or coinsurance provision that does not apply to intravenously administered or injected anticancer medications;     (2) An insurance contract shall not achieve compliance with the provisions of this section by imposing an increase in patient cost sharing, including any copayment, deductible or coinsurance, for anticancer medications, whether intravenously administer or injected or orally administered, that are covered under contract as of the effective date of this act.  

Nursing Home Abuse: Failure To Prevent Falls

By: Donna Russo, Esq. Nursing home falls are the cause of devastating injuries to nursing home residents and are frequently avoidable if the nursing home renders the appropriate care. When a resident is admitted to a nursing home, a fall risk assessment is conducted. The results of the fall risk assessment should alert the nursing home to put in place the appropriate safeguards. These safeguards should be documented on the care plan, carried out by the staff and modified as necessary. An excellent opinion on nursing home falls was rendered by the Administrative Law Judge Keith W. Sickendick of the Department of Health and Human Services, Departmental Appeals Board, Civil Remedies Division in the case of Golden Oaks Medical Care Facility v. Center for Medicaid Services, Docket No. C-10-272, Decision CR2468, December 7, 2011. This Court reviews determinations by Medicare for failure to comply with the federal regulations, OBRA, and the assessment of penalties. In this case, Medicare had imposed penalties on the nursing home for violation of 42 C.F.R. sec. 483.25 (h) which provides: The facility must ensure that -- (1) The resident environment remains as free of accident hazards as is possible; and (2) Each resident receives adequate supervision and assistance devices to prevent accidents. The resident was an 83 year old male who was assessed to be high risk for falls. He was totally dependent on staff for all activities of daily living, including bed mobility (he required one person assist) and transfers (with two person assist). He had dementia, contractures and pain secondary to the contractures. He had several falls out of bed and sustained a laceration requiring multiple stitches. The Court affirmed the penalties assessed by Medicare. The Court acknowledged that the regulation does not impose strict liability for accidents but does require the nursing home to take "...all reasonable steps to ensure that a resident receives supervision and assistance devices that meet his or her assessed needs and mitigates foreseeable risks of harm from accidents." The nursing home has flexibility to choose the methods of supervision but the supervision must be adequate under the circumstances. Adequate is determined by the resident's ability to protect himself or herself from harm. The Court found the following violations: The mattress was not secured tightly to the bed frame in accordance with the manufacturer's instructions; There was not a bed sensor alarm; The care planning team did not assess the effectiveness of interventions in place; The resident was not in a hi-low bed and the bed was not in a low position at the time of the fall; No consideration was given to side rails or bolsters to prevent falls; No assessment was done to determine if his room should be closer to the nursing station; No assessments were made as to the adequacy of the size and position of the floor mats; The Court rejected the facility's argument that side rails and bolsters constitute restraints which are prohibited. The Court found that the facility had not considered whether side rails and bolsters were restraints and simply did not address the issue of there use. The Court further commented that even if the restraint argument had been made by the facility, the use of restraints in this case is permissible under the regulations as ensuring resident safety is an authorized purpose for the use of a restraint.  

Nursing Home Abuse in N.J.

By: Donna Russo, Esq. By the time a nursing home abuse case is referred to my office for litigation, the residency agreement is a foregone conclusion. Elder law attorneys, having one of the closest professional relationships with the elderly and their families, can provide an important service to their clients. First, when preparing powers of attorney, draft the document to contain an explicit limitation on the power to enter into nursing home residency agreements. Second, when counseling families considering nursing home care, alert the families to the potential that the agreement will contain a mandatory arbitration clause and suggest that the agreement be reviewed by an attorney before execution to delete or at minimum, modify any arbitration clauses. Arbitration clauses are prevalent in nursing home agreements throughout the country and New Jersey is joining the crusade to restrict the litigation rights for nursing home abuse. The Federal Arbitration Act, 9U.S.C. 2 provides that “A written provision in any ...contract evidencing a transaction involving commerce to settle by arbitration thereafter arising out of such contract...shall be valid, irrevocable and enforceable...” Therefore, since almost all nursing homes are owned by large corporations and accept Medicare and Medicaid, the residency agreements can contain a mandatory binding arbitration provision since the federal law preempts the Nursing Home Rights Act which had declared such clauses to be unenforceable. Most of these mandatory arbitration clauses restrict discovery, limit compensatory damages and bar punitive damages. Thus far, there is only one NJ reported opinion addressing arbitration clauses in nursing home agreements - The Estate of Anna Ruczala v. Brookdale Living Communities, Inc. et. als., 415 NJ Super 272 (App. Div. 2010). This case points out that these situations are fact sensitive and require fact finding as to whether the person signing the residency agreement had actual or implied authority to execute the residency agreement such as in the situation where the well spouse or children signs the agreement. The Court will rely on common law of contracts to decide whether a valid contract was ever formed. In situations where the signatory has authority to enter into the residency agreement, such as situations with a broad based power of attorney, the Court will analyze the residency agreement under the unconscionability doctrine. The Court will not declare the residency agreement invalid but will excise the unconscionable provisions.  

Long Term Disability Policy: The Self Reported Symptoms Limitation

By: Donna Russo, Esq. Long term disability policies can have limitations on the coverage if certain criteria has not been met. The United States Court of Appeals for the Seventh Circuit addressed the limitation for self reported symptoms in Weitzenkamp v. UNUM Life Insurance Company of America, decided September 20, 2011. Although not controlling in New Jersey (Third Circuit), this opinion can be used to make a persuasive argument that the New Jersey Courts should similarly rule if presented with a like issue. The UNUM policy at issue contained a limitation providing that benefits will cease after twenty four months for those with “[d]isabilities, due to sickness or injury, which are primarily based on self-reported symptoms, and disabilities due to mental illness, alcoholism or drug abuse”. Self reported symptoms are defined as “the manifestations of your condition which you tell your doctor that are not verifiable using tests, procedures or clinical examinations standardly accepted in the practice of medicine.” The plan provides a non-exhaustive list of self reported symptoms: “headaches, pain, fatigue, stiffness, soreness, ringing in ears, dizziness, numbness and loss of energy.” The plaintiff had fibromyalgia. After paying benefits for two years, UNUM invoked the self reported symptoms limitation. Plaintiff’s treating rheumatologist diagnosed that plaintiff was suffering from fibromyalgia based on the presence of multiple tender points and symptoms of chronic pain, non-restorative sleep, muscle weakness, morning stiffness, subjective swelling, frequent, severe headaches, numbness and tingling, chronic fatigue, irritable bowel syndrome, depression, and carpal tunnel syndrome. UNUM’s medical consultant reviewed plaintiff’s records and found that plaintiff “although she had no reliable, sustainable functional capacity, no documented findings of physical condition existed to explain her symptoms.” This medical consultant also found that plaintiff was overstating her symptoms by consistently reporting pain levels of 8 to 10. UNUM had another medical consultant review the records and this medical consultant disagreed with the first medical consultant’s that plaintiff’s condition was not documented; however, he concluded that the pain that she contends prevents her from working is a self-reported symptom of fibromyalgia. Plaintiff appealed an presented a further report from her rheumatologist stating that the diagnosis rested on “a history and physical examination consistent with this condition plus ruling out other conditions that can mimic fibromyalgia syndrome with various laboratory testing that was done.” Plaintiff’s physician found that plaintiff had the typical 11 or more out of 18 tender points. UNUM referred that case to a rheumatologist who found that the plaintiff met the criteria of fibromyalgia but that her condition was based on self reported symptoms and that tender points are based on a patient’s response to the examiner’s palpitation. UNUM continued with its denial of long term disability benefits based on the self reporting limitation. Plaintiff sued and the district court upheld UNUM’s denial. Plaintiff appealed to the Court of Appeals. The Court of Appeals addressed the issue of whether plaintiff’s diagnosis of disabling fibromyalgia was based on self reported symptoms or objective medical evidence. The Court held that the “trigger test” can “more or less objectively” establish the disease where the findings of the test are consistent with fibromyalgia. The Court ruled that since plaintiff’s diagnosis was not based on self reported symptoms bur rather on verifiable evidence and manifestations and the plaintiff is entitled to collect long term disability benefits.

N.J. Nursing Home Abuse: Failure To Update Care Plans

By: Donna Russo, Esq. Care plans are road maps of the care required to be administered to nursing home residents. In Rae-Ann Geneva Nursing Home, Docket No. C-10-75, Decision No. CR2461, November 4, 2011, an Administrative Law Judge upheld Medicare’s findings and penalties in a case involving pressure ulcers and the failure to update care plans. The resident was 81 years old and admitted to the facility with diagnoses including coronary artery disease, a history of cerebrovascular accident, late effects of cerebrovascular disease including seizure activity, chronic obstructive pulmonary disease, seizure disorder, atrial fibrillation, hypertension, aphasia (impairment of the ability to use and understand words), dysphagia (difficulty swallowing), and Alzheimer’s dementia. Upon admission, the resident was assessed at being at mild risk for skin breakdown and bruising, due to his fragile skin, limited mobility, and anticoagulant therapy. The initial care plan addressed the risk for skin breakdown and bruising including the following interventions: reporting bruising, rash, redness, irritation or open areas to the nurse; use of pressure relieving mattress; repositioning every two hours and as necessary; providing good perineal care; use of pressure relieving products as ordered,; monitoring skin condition; and providing a nutritional supplement as ordered. The doctor’s orders on admission included use of a Merry Walker when out bed for independent ambulation. Two months later, the doctor’s progress note stated that the resident was unable to use the Merry Walker due to his risk for falls. The doctor opined that skin breakdown is unavoidable due to expected decline in mental and physical condition. A month later, the resident assessment set forth that the resident was suffering a physical decline over the last couple weeks and that he was unable to ambulate and was having difficulty standing. The resident developed pressure ulcers in the area of his hips and buttocks. The care plan had not been revised since the resident’s admission. No modifications to the care plan were made after the physician’s progress note two months after admission that skin breakdown would be unavoidable and that the resident was unable to use the Merry Walker therefore indicating that the resident would be spending more time in his bed or his wheelchair, also increasing his risk for pressure ulcers. A Braden Scale, a tool to assess pressure ulcers, was not conducted until after the resident developed pressure ulcers. There was no evidence that the resident’s bed or wheelchair was evaluated after the physician’s progress note. The court found that there was a failure by the nursing home to comply with acceptable standards. The nursing home defended its actions arguing that the pressure ulcers were unavoidable. The Federal Regulation on pressure ulcers require (1) a facility must ensure a resident who enters the facility without sores does not develop sores, unless the residents clinical condition demonstrates that pressure sores are unavoidable; and (2) a resident with pressure ulcers must receive necessary treatment and services to promote healing, prevent infection, and prevent new ulcers. A pressure ulcer will not be deemed unavoidable unless the nursing home proves that all the necessary treatment and services were rendered and the pressure ulcer still developed. The court found that the nursing home failed to establish that the resident’s pressure ulcers were unavoidable. Since the ulcers healed after discovery, the healing process itself is inconsistent with the ulcers being unavoidable.  

Nursing Home Abuse: Revocation Of CNA�s License

By: Donna Russo, Esq. On October 25, 2011, the New Jersey Appellate Division upheld the decision by the Department of Health and Senior Services that found that a certified nurse’s aide (CNA) had abused a resident of a long term care facility resulting in revocation of her certification and having an abuse and neglect finding next to her name on the New Jersey Aide Registry. New Jersey Department of Health and Senior Services v. Marie C. Moise, Docket No. A-6248-09T2. A new LPN at the facility was observing patient care as part of her orientation. To this LPN’s credit, she observed abusive behavior and immediately reported it to administration. CNA Moise was caring for a resident who was 85 years old, wheelchair dependent and suffering from dementia and urosepsis. This resident was know to be combative with the staff. While CNA Moise was helping the resident into his wheelchair, he repeatedly stated “easy does it” in a loud voice. CNA Moise, apparently frustrated with the outburst, snapped the footrest of the wheelchair down and grazed the resident’s leg. The resident continued to yell “easy does it” and CNA Moise pushed the resident’s head causing it to move sideways on impact. CNA Moise also told the resident to make his own way into the day room. There were no visible signs of injury on the resident. The long term care facility commenced an investigation which disclosed the CNA Moise had abused and neglected the resident. CNA Moise was terminated. At the hearing, the long term care facility testified that it would never be appropriate for a staff member to strike a resident or to tell a resident to shut up when being loud and abusive. In such a situation, the staff should ensure the resident was safe, walk away and return later. The Appellate Division affirmed the decision and held: “It is the public policy of the State ‘to secure for elderly patients, residents and clients of health care facilities serving their specialized needs and problems, the same civil and human rights guaranteed to all citizens...’ N.J.S.A. 52: 27G-1. Thus, a resident of a long-term care facility ‘has the right to be free from verbal, sexual, physical and mental abuse, corporal punishment, and involuntary seclusion.’ 42 C.F.R. 483.13(b) (1992); see also N.J.A.C. 8:39'4.1(a)(5). Such individuals are entitled ‘[t]o be treated with courtesy, consideration, and respect for the resident’s dignity and individuality. N.J.A.C. 8: 39-4.1(a)(12). To this end, ‘abuse’ is defined as ‘the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish.” 42 C.F.R 483.301 (2003); see also N.J.S.A. 52: 27G-2(a). ‘Neglect” is defined as the ‘failure to provide goods and services necessary to avoid physical harm, mental anguish, or mental illness.” 42 C.F.R. 488.301 (2003). The Court held that CNA Moise’s conduct resulted in his mental anguish and the refusal to transport the resident constituted a denial of care and patient neglect.

Landlord May Be Required to Give Notice to Tenants That Real Property is Located in a Flood Zone or Area.

By: Patricia A. Kieck, Esq. Certain landlords are required by law to notify their tenants when the property they own and lease is or becomes located in a flood zone or area. N.J.S.A. 46:8-50 provides that landlords of commercial property or residential dwelling units, except for owner occupied of not more than three units, premises containing not more than two units, seasonal, hotel or motel, must notify its tenants if the property is in a designated flood zone or area. A landlord that is not in the excluded group, must provide all new tenants prior to occupancy of the property with notice that the property is located in a flood zone or area. The federal government’s office on Federal Emergency Management has on occasion revised or updated the flood maps. It is possible that real property that was not located in a flood zone or area could now be located in such a zone or area. A landlord, as noted above, is required to notify its tenants of the change in designation. Currently, New Jersey law imposes a $100 penalty against a landlord who fails to comply with the notice provisions of the act. A tenant may petition a court of competent jurisdiction in order to terminate the lease when a landlord has include a provision in the lease agreement which violations established legal rights of a tenant or responsibilities of a landlord. N.J.S.A. 46:8-48. A tenant may have other remedies available under the lease agreement for damages sustained as a result of the landlord’s failure to provide notice of the flood zone or area.  

Landlord Liability for Injuries to Tenants of Leased Property

[2011-05-19] By: Donna Russo, Esq. In a new reported decision, the Appellate Division has held that a landlord has a duty to conduct periodic inspections of furnaces in leased property. Theresa Meier, as Administratrix Ad Prosequendum of the Estate of Ralph Ciccone, and Theresa Meier, Individually, v. Pasquale D’Ambose, A-2555-09T1 (decided 4/28/11) In this case, the landlord was the owner of a single family home which he purchased for investment. The landlord leased the single family home under a lease agreement which provided that the tenant take good care of the house and all equipment and fixtures and to keep the furnace clean. The lease required that landlord to make all necessary repairs and replacements to the vital services. The landlord acknowledged that repairs to the furnace were the landlord’s responsibility under the lease. Before the tenant occupied the premises, the landlord had the house inspected and obtained a certificate of occupancy. About two years into the leasehold, the tenant complained about the heating. The landlord had the furnace repaired. Approximately a year later, there was a fire and the tenant died. The cause of the fire was a severely deteriorated flue connector in the furnace. The tenant’s family sued the landlord. The landlord argued that he had no duty to inspect the furnace. The Appellate Division held that the landlord had the duty to “...maintain the furnace so that it was not dangerous to persons or property, and that such duty required periodic inspections to discover dangerous defects.” The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Ridgewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.

NJ Supreme court Rules that Intoxicated Patron can sue bar for injuries sustained as a result of his intoxication

[2011-05-19] By: Donna Russo, Esq. On June 1, 2011, the New Jersey Supreme Court ruled that an intoxicated patron can sue a bar, liquor store or other liquor establishment for injuries that the patron sustained as a result of being served alcoholic beverages causing his intoxication. Voss v. Tranquilino and Tiffany’s Restaurant. An intoxicated patron, driving a motorcycle, collided with a motor vehicle and sustained injuries. The Supreme Court ruled that the DWI statute (barring personal injury claims for automobile accidents by a person who pleaded or was found guilty of drunk driving - NJSA 39: 6A-4.5(b)) does not apply to Dram Shop cases. The dram shop statute ((NJ Licensed Alcoholic Beverage Server Fair Liability Act, NJSA 2A-1 to 7) is to be applied separate and distinct from the DWI statute. The dram shop statute imposes liability for the service of alcohol by a liquor establishment to a visibly intoxicated patron. Therefore, a patron who is served alcoholic beverages while visibly intoxicated can sue a bar or other liquor establishment when he is injured as a result of his intoxication. Let the professional attorneys of Russo & Kieck law firm assist you with your personal injury lawsuit. Located in Hackensack, New Jersey – directly across the street from the Bergen County Courthouse, we represent clients in Teaneck, Paramus, Mahwah, Paterson, Midland Park, Englewood, Glen Ridge, Clifton, Fort Lee, Ramsey, Rutherford and all areas of Bergen, Passaic, Hudson and Essex Counties in northern NJ. Call 201-342-3100 to schedule a consultation.  

Insurance: Governor Christie Signs An Important Insurance Law

[2011-03-22] By: Donna Russo, Esq. On January 28, 2011, Governor Christie signed S-191 which mandates that when an injured party and a PIP carrier seek recovery from a tortfeasor’s policy which is not sufficient to pay both claims, the injured party is to be made whole first. This law reverses a very troubling NJ Supreme Court decision, Fernandez v. Nationwide Mutual Fire Ins. Co., 199 NJ 591 (2009) which gave priority to the insurance company and if there was not enough coverage, leaving the injured party to get less of an insurance recovery and exposing the insured to personal liability if the injured party sought to to be made whole. The Fernandez case presented major problems for insureds who were not aware that their coverage could be diluted by NJSA 39: 6A-9.1, a law which permits an auto carrier to seek reimbursement of PIP benefits paid from any insured tortfeasor that was not required to have PIP coverage. Examples of such tortfeasors could be tavern owners and owners of commercial vehicles. In catastrophic injuries, it is not unusual for PIP benefits of $250,000 to be expended for severe injuries. Prior to S-191, if the tortfeasor had a limited policy, the PIP reimbursement would be paid leaving the injured party with often not enough coverage to make him whole. The tortfeasor was thus exposed to personal liability because his expected insurance coverage for the injury was reduced. Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.

Landlord\'s Liability for Injuries to Third Persons in a Single Family Home Rental

[2011-03-21] By: Donna Russo, Esq. Does the landlord have liability for injuries sustained by a guest of the tenant when the tenant rented a single family home? The answer depends on whether the landlord delegated the responsibility for maintenance to the tenant. It is important that the lease agreement spell out the responsibilities of the tenant. In Hogan v. Woolson v. Williams, A-5436-09T4, the Appellate Division, in an unreported decision, held that when the entire single family dwelling was leased and the lease had a provision that made the tenants responsible for routine maintenance of the property, the landlord was not liable for injuries sustained by a third party as a result of a slip and fall on ice. The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.

Insurance Coverage: Jury Trials For Bad Faith Claims

[2011-6-14] By: Donna Russo, Esq. On June 14, 2011, The NJ Supreme Court ruled in Karen Wood v. New Jersey Manufacturers Insurance Co. (A-44-10) that there can be jury trials for bad faith insurance claims. New Jersey Manufacturers Insurance Company (NJM) refused to settle a case against its insured for the policy limits of $500,000. A postal worker had been attacked by a dog owned by NJM’s insured. The postal worker was severely injured and required at least two spinal surgeries. The case was arbitrated and the postal worker was awarded $600,000. The attorney for the NJM insured recommended that the case be settled for the $500,000 policy limits because he believed the value of the case would exceed the policy limits. NJM’s claim committee disagreed and valued the case at $300,000. The $300,000 offer was rejected but the postal worker made clear that she would accept the policy limits of $500,000. The case was tried and the award against NJM”s insured was $1,408,320.33. NJM paid $500,000 but the postal worker would not release NJM’s insured for the excess verdict. The postal worker took an assignment of NJM”s insured’s claim against NJM for bad faith and commenced suit under the well settled law that an insurance company has a fiduciary duty to attempt in good faith to settle within the policy limits. The only issue before the NJ Supreme Court was the right to a trial by jury. The Court ruled that a trial by jury attaches to a bad faith claim. However, a jury trial is not mandatory and may be waived by the parties. Let the professional attorneys of Russo & Kieck law firm assist you with your insurance disputes. Located in Hackensack, New Jersey – directly across the street from the Bergen County Courthouse, we represent clients in Teaneck, Paramus, Mahwah, Paterson, Midland Park, Englewood, Glen Ridge, Clifton, Fort Lee, Ramsey, Rutherford and all areas of Bergen, Passaic, Hudson and Essex Counties in northern NJ. Call 201-342-3100 to schedule a consultation.  

Insurance Coverage

[2011-03-16] By: Donna Russo The Appellate Division today affirmed a jury award of $1,281,755.50 to a woman who had severely broken her ankle when stepping into a pot hole in a parking lot. (Olsen v. Sandax, Inc., d/b/a Wallington Exchange, Docket A-2553-09-T2, unreported). This case is a perfect example of when an insurance carrier takes an indefensible position. The woman had pulled over into an unfenced parking lot to check her tires. The parking lot belonged to a restaurant that was closed. There was one sign that said “customer parking only”. The insurance company defended the action on the basis that the woman was a trespasser and that there was no duty owed to her to provide for her safety. The Appellate Division affirmed the findings of the trial court that the woman was a licensee/social guest. Under the law, a licensee is owed the duty to provide for safety when there is a known hazard even if the licensee/social guest is on the property without invitation and for her own benefit. The Appellate Division relied on the following facts in finding the woman a licensee/social guest: the parking lot was open to a major thoroughfare with no evidence of the owner closing off the lot to the public and the woman did not intend to park or store her car. Insurance Coverage [2011-3-15] By: Donna Russo, Esq. The Appellate Division today affirmed a jury award of $1,281,755.50 to a woman who had severely broken her ankle when stepping into a pot hole in a parking lot. (Olsen v. Sandax, Inc., d/b/a Wallington Exchange, Docket A-2553-09-T2, unreported). This case is a perfect example of when an insurance carrier takes an indefensible position. The woman had pulled over into an unfenced parking lot to check her tires. The parking lot belonged to a restaurant that was closed. There was one sign that said “customer parking only”. The insurance company defended the action on the basis that the woman was a trespasser and that there was no duty owed to her to provide for her safety. The Appellate Division affirmed the findings of the trial court that the woman was a licensee/social guest. Under the law, a licensee is owed the duty to provide for safety when there is a known hazard even if the licensee/social guest is on the property without invitation and for her own benefit. The Appellate Division relied on the following facts in finding the woman a licensee/social guest: the parking lot was open to a major thoroughfare with no evidence of the owner closing off the lot to the public and the woman did not intend to park or store her car. Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.  

Real Estate sales may be affected by Healthcare Bill

[2010-12-16] By: Patricia A. Kieck, Esq. Real Estate sales may be affected by Healthcare Bill. Effective 2013, sales of real property with purchase prices above the excluded amounts ($250,000 for single and $500,000 for married) will pay a 3.8% Medicare surtax. The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.  

An Attorney�s Duty to Clients in Real Estate Closings

[2010-12-16] By: Patricia A. Kieck, Esq. Real Estate new construction transactions are not exempt from the need to have structural, environmental inspections to protect the home buyer. Failure to provide in the contract and recommend to buyer to do so exposes the attorney and buyer to risks. New construction is not a guarantee that there are no defects. An Attorney’s Duty to Clients in Real Estate Closings with New Home Construction by Walter T. Wolf. New Jersey Law Journal 06.02.2010 The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.  

Tenant eviction

[2010-12-16] By: Patricia A. Kieck, Esq. Tenant’s habitually late payment of rent turns on facts of case for eviction. A case of habitually late payment of rent is fact sensitive. In Matthew G. Carter Apartments v. Kathy Richardson, Dkt. No. A-1992-09T3 the Appellate Division held that under the facts of the case, two months of late payments by the tenant were insufficient to warrant an eviction of the tenant. The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.

Tenant liable for advertising expense

[2010-12-16] By: Patricia A. Kieck, Esq. Tenant was held liable for advertising expense in a damage claim by the Landlord due the tenant’s premature vacation of the premises. In the unpublished opinion of the Appellate Division, Gregory v. Pulasky, Dkt No. A-1347-09T3, the court held that because the landlord and the real estate agent had contracted for the landlord to pay the advertising cost, which were expensive and the commission was very modest it was not unreasonable to assess that expense to the Tenant. The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.

Age Discrimination, Renewable Contracts and Over 70 Exception

[2010-07-22] By: Donna Russo, Esq. The New Jersey Law Against Discrimination, NJLAD, prohibits discrimination in employment because of age. N.J.S.A. 10:5-12 (a). The statute contains an explicit exception for employees over 70 years of age. The statute states: “...provided further that nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age...”. In Nini v. Mercer County Community College et. als., (A-13/14-09) decided June 1, 2010, the New Jersey Supreme Court addressed the issue of whether on expiration of an existing employee’s contract, the employer can refuse to renew the contract based on the age of the employee. The Court held that an employer can refuse to hire an employee if he/she is over 70 years of age but that an employer cannot refuse to renew a contract based on the age of the employee. The Court held that the statutory exception permitting refusal to employ a person over the age of 70 does not apply to a termination of an employee via a non renewal of an employment contract. Ms. Nini had been employed for 26 years through a series of contracts with the College. The College refused to renew her contract on the basis that she was over 70 years of age. The staff of the College had make remarks that she had no right to be working at her age, that people who have been in a job for 25 years lose their effectiveness, that it was time to get rid of old-timers and bring in new blood, and that it was her last chance to get an early retirement and leave with dignity. Ms. Nini wanted to continue to work. She was offered a 6 month extension which she declined. Ms. Nini filed a complaint alleging age discrimination by the College. The issue before the Supreme Court was the status of a contract of nonrenewal i.e., is it a termination or a refusal to accept for employment. The Court commented : “This is not an easy case” and could be viewed one of two ways, a new job applicant or a long term employee. Since the statute does not address this issue on its face, the Court examined the legislative intent. The Court found that the LAD is a remedial statute intended to “eradicate the cancer of discrimination” in our society. The Court ruled that the language “refusing to accept for employment” is limited to initial hires and declined to expand this exception to workers whose contracts have not been renewed. Russo & Kieck has employment law attorneys located in Hackensack, New Jersey representing clients in Paramus, Franklin Lakes, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.

Insurance Policies - The Difference A Word Can Make

[2010-01-27] By: Donna Russo, Esq. On January 27, 2010, the Appellate Division made the distinction between “an” insured and “the” insured in deciding the issue of whether there would be coverage for intentional or criminal acts. The case involved a mother who had no knowledge of the criminal acts of her son. The Court held that when a policy excluded coverage for intentional acts of “an”insured, all insureds are excluded from coverage even if there was no direct wrongdoing by an insured. In this case, the mother was sued on the theories of vicarious liability and negligent hiring and retention. The Court held the result would be different if “the” insured was used in the policy language. The Court found that using “the insured” excluded coverage only to the insured who committed the intentional or criminal act (the son) and that there would be coverage for the mother sued for vicarious liability and negligent hiring and retention. (D.R. v. Allstate Insurance Company, A-0280-08T1) Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.

Employment Law - Discrimination Update

[2010-01-14] By: Donna Russo Employment Law - On January 14, 2010, the N.J. Supreme Court held that under the Law Against Discrimination, N.J.S.A. 10:5-12 (d), a post discharge retaliation claim is independently actionable even if it does not relate to present or future employment. (Roa v. LAFE et. als, A-72-08). Russo & Kiek law firm is located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. We offer legal assistance with civil litigation, personal injury, nursing home abuse, assisted living neglect, employment law, insurance law, real estate and estate planning. Schedule a consultation by contacting us at 201-342-3100.

Insurance Company\'s Bad Faith Refusal To Settle A Claim

[2010-01-05] By: Donna Russo Insurance Company’s Bad Faith Refusal To Settle A Claim - On January 5, 2010, the Appellate Division affirmed the trial court’s ruling that Rutgers Casualty Ins. Co. was guilty of bad faith for its refusal to settle a claim prior to trial and was liable to pay the excess verdict and attorney’s fees.. (Riehs v. Rutgers Casualty Insurance Company, Docket No. A-1171-08T3). The jury verdict was $186,000 and the policy limit was $100,000 . The plaintiff would have settled for $35,000. The insurance company refused to offer more than $30,000. The court found that the insurance company was liable for the excess verdict because it never determined the settlement value of the case, never advised its insured of the possibility of an excess verdict and did not give the insured the opportunity to contribute to the settlement. Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.  

Charitable Immunity Claim

[2009-12-29] By: Donna Russo Charitable Immunity Bars Claim Against College For Student Death From Fall Caused By Alcohol Intoxication - On December 29, 2009, the Appellate Division found that a college is immune from liability for the accidental death of an intoxicated student who fell to his death from his fourth floor dormitory window. The Court held that New Jersey’s Charitable Immunity Act, N.J. S.A. 2A: 53-7 et. seq., grants immunity to a college for students, while living in a dormitory, because the student was receiving the benefits of the schools educational works. (Orzech et. als. v. Fairleigh Dickinson University, Docket No. A-5919-07T1). Let the professional attorneys of Russo & Kieck law firm assist you with your personal injury lawsuit. Located in Hackensack, New Jersey – directly across the street from the Bergen County Courthouse, we represent clients in Teaneck, Paramus, Mahwah, Paterson, Midland Park, Englewood, Glen Ridge, Clifton, Fort Lee, Ramsey, Rutherford and all areas of Bergen, Passaic, Hudson and Essex Counties in northern NJ. Call 201-342-3100 to schedule a consultation.  

Nursing Home Abuse in North Bergen

North Bergen Nursing Home Worker Arrested: MyFoxNY.com   Updated: Friday, 04 Mar 2011, 9:26 PM EST Published : Friday, 04 Mar 2011, 9:26 PM EST MYFOX NEW YORK STAFF REPORT MYFOXNY.COM - Police in North Bergen have arrested a nursing home employee for allegedly assaulting an elderly patient who then died the next day, authorities said. Julia Galvan struck Modesta Alvarado, 87, several times in the head at the Harborage Home in January, police said. The incident was caught on video from a so-called nanny-cam placed there by the family of Alvarado. Police are not directly linking Alvarado's death to the strike, but they are investigating. Trust Russo & Kieck to represent you in your nursing home neglect or assisted living abuse case. Located in Hackensack, New Jersey, we offer attorney services to clients throughout Northern New Jersey in Bergen, Passaic, Hudson and Essex Counties including Midland Park, Rutherford, Englewood, Clifton, Saddle Brook, Park Ridge, Fort Lee, Ramsey and Paterson. Call us to schedule a consultation in our NJ office at 201-342-3100.  

A Primer on Nursing Home and Assisted Living Litigation

By: Donna Russo, Esq. We are an aging population. The need for assisted living and nursing home care is growing rampantly. So, is the decline in quality of care at these facilities. A phrase that is being heard repeatedly is ‘profits before people’ and the attorneys practicing in this field conduct extensive discovery when ‘corporate greed’ is suspected. In October 2010, the American Association for Justice (formerly American Trial Lawyers Association or ATLA) issued the following press release: Standing Up For Seniors: How the Civil Justice System Protects Elderly Americans Nursing homes are now big business. Corporate chains are anticipating a flood of baby boomers moving into their facilities over the next few years. This increased emphasis on profits has led to a distressing rise in neglected and abused seniors. Between 2000 and 2008, instances of “immediate jeopardy”—violations likely to result in serious harm or even death—rose 22 percent. More than 90 percent of all nursing homes were guilty of at least one violation. There are many laws and regulations aimed at protecting seniors. Yet government agencies, non-profit watchdogs and media organizations consistently report that serious problems exist in our nation’s nursing homes. The same is true of insurance companies that mislead and defraud vulnerable seniors. Insurance industry regulators protest that they can do nothing. Even when they do raise their hands, they more often than not strike deals to keep fines to a minimum and settlements secret. With the regulatory and legislative bodies unable to cope with a groundswell of neglect and abuse, the civil justice system has stepped into the breach. Attorneys who represent our nation’s seniors, and their families, play a critical role in uncovering abuse and neglect, and are the most effective force to compel corporate nursing homes to fix their conduct. Nursing Home Cases Are Different Than Medical Malpractice Cases A medical malpractice case centers on a deviation from care by a physician which caused a physical injury. Nursing home cases usually involve the violation of NJ statutes and regulations (federal and state) which result in the loss of dignity and enjoyment of life, pain and suffering and possible wrongful death. The focus in medical malpractice cases is what happened. The focus in assisted living and nursing home cases is why did it happen? Many times, the answer to this question is that the facility, in order to be more profitable, cut corners in providing services. As a result, the resident suffered a loss of dignity, injury, pain, a shortening of life and a loss of enjoyment during whatever time the resident had to live. Usually, the defense counsel in a nursing home case begins by saying that it is not worth significant money because the person is elderly, had multiple co-morbidities and a short period of time to live. This attitude by defense counsel is a medical malpractice thought process which is wrong for nursing home/assisted living cases. In nursing homes and assisted living, the focus is that the facility, which is usually very profitable, cut corners for their own financial gain and as a result, the residents suffered pain and did not have the opportunity to live the last periods of their life in a dignified manner. Although it would be improper (under the “golden rule”) to ask a jury how much they would pay to live their lives without pain and indignity, a properly prepared case would plant this seed in the jury’s minds by introducing evidence of the cost cutting mentality of the facility at the expense of the elderly. Nursing Home Bill of Rights New Jersey has codified the rights of nursing home residents which can be found at N.J.S.A. 30: 13-5. Upon admission, the nursing home administrator is required to give each resident or his/her guardian, a written notice of this bill of rights. The administrator must also post this notice in a conspicuous, public place in the nursing home. N.J.S.A. 30: 13-7. Some of the highlights of this bill of rights are: The right to wear one’s own clothing; The right to retain personal property in one’s own immediate living quarters; The right to receive and send unopened correspondence and unaccompanied access use of a telephone during reasonable hours and the right to have a private telephone at the resident’s expense; The right to retain the services of one’s own personal physician; The right to have visitation with any persons at any reasonable hour; The right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident; The right to confidentiality and privacy concerning ones’s medical condition and treatment; The right to receive, upon request, food that meets the resident’s religious dietary requirements. The New Jersey Bill of Rights provides for a direct cause of action for violations of the resident’s rights. Either the resident or his/her guardian can bring the action. N.J.S.A. 30: 13-8. The statute allows for punitive damages and reasonable attorneys fees and costs. Since the vast majority of nursing homes accept Medicare or Medicaid reimbursement, the Nursing Home Reform Act also known as the Omnibus Reconciliation Act of 1987 (OBRA) 42USCA 1396R is applicable. OBRA sets forth the standard of care in its regulations which are commonly referred to as “F” tags. These regulations address issues such as staffing, nutrition, hydration, pressure ulcer prevention, maintenance, personal hygiene, therapy, improper use of restraints, abuse, dignity, quality of life, activities of daily living, etc.. By way of example, the regulations provide that patients with pressure ulcers (bed sores) must be turned, repositioned, given the appropriate mattress, receive treatments, etc.. Additionally, long term care facilities are governed by the regulations contained in NJAC 8: 39-1 et. seq. A typical nursing home lawsuit will contain multiple causes of action of which the violation of the Nursing Home Bill of Rights is only a small part. There may also be claims against individual nurses, aides, management personnel and physicians for negligence . There may be contractual claims for breach of contract of the resident’s agreement with the facility. Many times, nursing homes are owned and administered by a complex chain of subsidiaries and related companies. A detailed analysis of these entities may show that the nursing home is siphoning money that should be devoted to resident care. For instance, services may be outsourced for unreasonable fees to other companies which have common ownership or each entity expends a large salary to the same group of individuals. A developing theory of liability is corporate negligence. The various entities that siphoned off money that should be used for resident care has caused the negligent care and abuse. This theory is a common law negligence theory. An expert is not needed nor is it necessary to advance the difficult theories of piercing the corporate veil or asserting an alter ego relationship. Arbitration Clauses in Nursing Home Agreements Many nursing home agreements have arbitration clauses which attempt to limit the right to sue and the right to recover when a resident is injured due to negligent abuse and neglect. Clients should be advised to strike out arbitration clauses. In drafting a power of attorney, there should be language limiting the power to agree to such clauses. If an agreement containing an arbitration clause is signed, all is not lost. First, if the nursing home only accepts New Jersey residents and uses New Jersey vendors, New Jersey has a statute, N.J.S.A. 30:13-8.1, which declares such arbitration clauses void as against public policy. Most nursing homes are part of larger conglomerations which operate across state lines and use out of state vendors. Therefore, federal law will apply. In The Estate of Anna Ruszala v. Brookdale Living Communities, Inc., et. al. and Ida Azzaro v. Brookdale Living Communities et. als. (August 10, 2010), the Appellate Division ruled that the Federal Arbitration Act, which favors and allows arbitration, preempts the New Jersey statute. The next question is whether the arbitration clause is enforceable. In The Estate of Anna Ruszala, the Court found certain arbitration provisions to be unenforceable under the doctrine of substantive unconscionability. Also, the clauses can be challenged for procedural unconscionability which the Court found unnecessary to address under the facts of the case. Procedural unconscionability involves a hearing as to whether a valid contract was formed. The Appellate Division made several findings regarding these types of nursing home residency agreements: 1. Residency agreements are contracts of adhesion which is the first step in the analysis of whether a contract, or any specific terms therein, should be deemed unenforceable based on policy considerations; 2. The court looks to four factors: (a) the subject matter of the contract; (b) the parties’ relative bargaining positions; (c) the degree of economic compulsion motivating the ‘adhering party; and (d) the public interests affected by the contract. The Appellate Division found that there are global characteristics that every potential nursing home resident shares: inability to continue to live in their homes due to ill health, advanced age, or both; and that the Legislature, in adopting the Nursing Home Responsibilities and Rights of Residents Act, has identified nursing home residents as a vulnerable group of consumers, entitled to special protection against economic abuse, personal privacy abuse, the deprivation of their right to choose their own health care professionals, and an array of other abuses that speak to the core of human dignity; and the imbalance of resources that create relative inferiority in the bargaining position of nursing home residents. The Appellate Division focused on the public interests affected by the nursing home agreement. The Court concentrated on whether the effect of the arbitration clause provisions that significantly restrict discovery, limit compensatory damages and prohibit punitive damages shield the nursing home from compliance with the laws of the state. The Court found that the restrictions on discovery with limits on compensatory damages and outright prohibition of punitive damages form “an unconscionable wall of protection for nursing home operators seeking to escape the full measure of accountability for tortuous conduct that imperils a discrete group of vulnerable consumers.” The Court held that these provisions in the arbitration clause of a residency agreement are void and unenforceable. The Court severed the offensive provisions from the rest of the agreement but allowed the arbitration to proceed. Therefore, it is very important to do discovery and challenge such agreements on the basis that a valid contract was not formed. Assisted Living Facilities and Residential Care Facilities The Nursing Home Statute does not apply to assisted living and residential care facilities. Therefore, OBRA regulations cannot be used for negligence in abuse cases for residents in these types of facilities. Also, there aren’t any statutes that address these facilities. However, there are regulations, NJAC 8:36-1 et. seq. for assisted living and NJAC 8: 43-1 et. seq. for residential care facilities which can be used to establish the standard of care. With respect to standard of care, these regulations are basically the same. Many cases against these facilities arise because the resident was not appropriate for the more limited care being offered by these facilities and required the attention given in a nursing home. For instance, residents who are fall risks, have dietary risks or Alzheimer’s may not be appropriate for these facilities. However, the facility in pursuing its financial interest, did not follow the regulations in assessing whether the person was appropriate for placement in its facilities. Many elderly people do need assistance with their activities of daily living but do not need nor want nursing home care. For these people, it is important to establish on admission that the person requires specific assistance in a certain area. For instance, a person may by prone to falls and should be evaluated as a fall risk needing assistance walking in common areas. The failure to give assistance when the records and evidence show same is necessary constitutes a breach of care in a negligence suit. Falls are only one area of concern. There are elopement issues when a resident is allowed to leave the facility alone and is struck by a car, left out in the cold, etc. Also, there are those cases where the resident is vulnerable to abuse by other patients. In summary, although more difficult than a nursing home case, these cases are worth pursuing. Whether it is a nursing home, assisted living or residential care facility, it is the life of an individual at the heart of the case. He or she deserves experienced legal representation to fight for the wrongs caused by the facilities entrusted with his or her care. Donna Russo is a Certified Civil Trial Attorney and a partner of Russo & Kieck, 39 Hudson Street, Hackensack, NJ.(201) 342-3100.www.russoandkiecklawoffice.com, and www.njelderabuselaw.com Trust Russo & Kieck to represent you in your nursing home neglect or assisted living abuse case. Located in Hackensack, New Jersey, we offer attorney services to clients throughout Northern New Jersey in Bergen, Passaic, Hudson and Essex Counties including Midland Park, Rutherford, Englewood, Clifton, Saddle Brook, Park Ridge, Fort Lee, Ramsey and Paterson. Call us to schedule a consultation in our NJ office at 201-342-3100.  

Insurance Coverage: Duty To Defend Portee Claims

By: Donna Russo, Esq. A “Portee” claim is a claim for negligent infliction of emotional distress caused by witnessing the death or serious physical injury of another caused by negligence. The claimant must have a marital or intimate, familial relationship with the injured person and the claimant must personally observe the death or injury at the scene of the accident and sustain severe emotional distress. “Portee” claims should be distinguished from the ordinary emotional distress claims. Generally, in order to have a cause of action for ordinary emotional distress there must be substantial bodily injury or sickness. Absent same, the emotional distress claim must be dismissed. A “Portee” claim does not have to be linked to physical harm and serious psychological damage is sufficient. General liability policies provide coverage for “bodily injury” sustained as a result of the insureds negligence. In Abouzaid, et.al. V. Mansard Gardens Associates, LLC, et. al., (A-5-10) decided June 21, 2011, the NJ Supreme Court ruled that an insurance carrier cannot refuse a defense to its insured on a “Portee” claim. In this case, a mother had watched a fire spread through an apartment with flames engulfing her three sons. Greater New York Insurance Company (GNY) had refused to cover its insured on the “Portee” claim, which asserted claims of emotional distress suffered from watching her sons become engulfed by flames. There were no allegations of physical injury nor were there allegations that the emotional distress was accompanied by physical manifestations. GNY took the position that since there was not allegations of physical harm, there was no duty to defend under the bodily injury provisions of the policy. In Abouzaid, the NJ Supreme Court recognized that the severe emotional distress that is the basis of a “Portee” claim will have in most cases a physical component. The Court ruled that even if a physical injury is not plead in the complaint, the insurance company must afford the insured a defense under a “Portee” complaint unless the defense is specifically excluded by other contract language. Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.  

Insurance Coverage: Erisa Plans - Review of Denial of Benefits

By Donna Russo, Esq. On June 10, 2011, the United States Court of Appeals for the Third Circuit (which includes New Jersey) issued a precedential decision, Hetty A. Viera v. Life Insurance Company of North America which addresses whether the standard of review should be “de novo” or “arbitrary and capricious” in situations where the insurance policy requires that the insured must provide: “Written or authorized electronic proof of loss satisfactory to Us....” In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989), the United States Supreme Court ruled that denial of benefits claims under ERISA must be reviewed under the de novo standard unless the policy/plan language grants discretion to the administrator to make eligibility decisions. Under the “de novo” standard, the court determines whether the administrator made the correct decision; under the “abuse of discretion” standard the administrator’s decision can be overturned only if it is “without reason, unsupported by substantial evidence or erroneous as a matter of law.” Miller v. am. Airlines, Inc. 632 F. 3d 837, 845 (3d Cir. 2011); Hoover v. Provident Life & Accident Ins. Co., 290 F. 3d 801 (6th Cir. 2002). In Hetty A. Viera v. Life Insurance Company of North America, the Third Circuit surveyed the law throughout the other circuits and found that there is a split among the circuits. The Second, Seventh, and Ninth Circuits have held that the phrase “satisfactory to us” is not sufficient to confer discretion and the plan administrator’s decisions are to be reviewed “de novo”. The First, Fourth, Sixth, Eighth, Tenth, and Eleventh Circuits have held that the phrase “satisfactory to us” confers discretion to the plan administrator.   The Viera Court agreed with the Second, Seventh and Ninth Circuits. The Viera Court held: “To be insulated from de novo review, a plan must ‘communicate the idea that the administrator notonly has broad-ranging authority to assess compliance with pre-existing criteria, but also has the power to interpret the rules, to implement the rules, and even to change them entirely.’ We agree that ‘[n]o single phrase such as ‘satisfactory to us’ is likely to distinguish between plans that do and plans that do not confer discretion on the administrator.”citing Diaz v. Prudential Insurance Co. of America, 424 F. 3d 635, 639 (7th Cir. 2005). The Viera Court found that the plan administrator has the burden of proof that the plan should be reviewed under the “arbitrary and capricious” standard. Further, although stating that there are no magic words required, the Viera Court suggested the following “safe harbor” language to avoid “de novo” review: “Benefits under this plan will be paid only if the plan administrator decides in [its] discretion that the applicant is entitled to them.” Citing Herzberger v. Standard Insurance Co,, 205 F.3d 327, 331 (7th Cir. 2000). Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.  

Statute of Limitations - the Counting Begins

By: Donna Russo, Esq. Insureds should, but almost never, read their policies. Most insureds know that they should file a claim as soon as possible. However, most insureds don't realize that their policy may contain language which limits the time within which they may file a lawsuit against the insurance company that has declined coverage or tenders coverage in an amount less than the claim submitted by the insured. Some policies have a specific provision which addresses the time period in which suit may be brought against the company. Other policies are silent. The silent policies follow the statute of limitations for contracts, which in New Jersey, is six years. Otherwise, the time period for suit set forth in the policy must be followed or the lawsuit will be barred. In Gahnney v. State Farm Insurance Co. et. al., No. 98-4659, decided 7/27/99, __ F. Supp. __ (D.Ct. N.J., 1999), the Federal District Court revisited the binding effect of a statute of limitations provision contained in an insurance policy. Most policies that contain such a provision follow the standard fire policy language, modeled after the New York policy form and adopted by the majority of states, including New Jersey. The standard policy uses the language "inception of the loss" as the date on which the statute of limitations begins to run. In Gahnney v. State Farm Insurance Co., the plaintiffs had a homeowners policy which provided coverage for water damage to their residence. During the winter of 1995-1996, the heavy weight from ice and snowfall caused damage to plaintiffs' home. In January 1996, the plaintiffs began noticing storm water leaking through certain windows. In May 1996, the plaintiffs realized the full extent of water damage when the snow had completely melted. The plaintiffs contended that they did not realize the full extent of soot damage until July, 1996. In July 16, 1996, the plaintiffs hired their first adjustment company. On October 9, 1996, this adjustment company and the insurer conducted an inspection and an offer of $2,686 was made by the insurer and recommended to the plaintiffs by the adjustment company. On February 10, 1997, the plaintiffs ended their relationship with the first adjustment company on the grounds that this adjustment company had not done an adequate job. On March 11, 1997, plaintiffs submitted an estimate of damages by a second adjustment company in the amount of $23,906.72. On April 1,, 1997, the plaintiffs requested an appraisal. The insurance company first conducted another inspection which confirmed their original offer. On August 5, 1997, the independent appraisers agreed to a damage figure of $3,984.68. On August 27, 1997, the insurance company sent their check for $3, 984.68 to the plaintiffs. The plaintiffs contend that they received this check on September 4, 1997 and did not cash the check because it was significantly less than the second adjustment company's estimate. Plaintiffs did not file suit until August 7, 1998. Their homeowner's policy contained the following statute of limitations provision: "No suit or action on this policy for recovery of any claim shall be sustainable in any court of law or equity unless the requirements of this policy have been complied with, and unless commenced within twelve months next after inception of the loss." The insurance company filed for summary judgment dismissing the lawsuit with prejudice because the plaintiffs failed to file suit within one year as required by the policy. Plaintiffs contend that they filed within the one year because the negotiation period tolled the statute of limitations and that the insurance company was precluded from asserting the defense because it did not provide plaintiffs with notice of the statute of limitations period. The Court granted summary judgment to the insurance company. The Court recognized the well established law, commencing with Peloso v. Hartford Fire Insurance Co., 56 N.J. 514 (1970), which permits the tolling of the statute of limitations during negotiation, the period between the time that the insured notifies the insurance company of the loss and the date that the insurance company makes its determination. The Court found that the plaintiffs miscalculated the statute of limitations because plaintiffs ignored the time period between the "inception of the loss" and the date of notice to the company. Viewing the facts most favorably to the plaintiffs, the Court found that by January 31, 1996, the plaintiffs should have discovered the true extent of their loss. The notice of claim was filed on July 16, 1996. Thus, plaintiffs waited 166 days after the "inception of the loss" to notify the insurance company. In order to satisfy the on year statute, plaintiffs had 199 days left. The Court, applying the tolling rule, found that the period of July 16, 1996 to September 4, 1997 was not to be counted because the parties were negotiating. The statute began to run again on September 4, 1997 which allowed plaintiffs until March 23, 1997. By filing the complaint on August 8, 1998, plaintiffs were 138 days past due. The Court disregarded plaintiffs argument that they were not provided with notice of the statute of limitations. The Court refused to impose such a requirement the insurance company when the policy contained a specific provision addressing the limitation of lawsuits. Comments: The statute of limitations defense is one area where the courts favor the insurance companies over the insureds. Courts will avoid finding that statute of limitations provisions are ambiguous when the courts generally find other provisions such as exclusions to be ambiguous and unenforceable. A word of caution with respect to this opinion. One must be mindful that this case was filed in Federal Court where the judges are more inclined to grant summary judgment. Although a state court would probably make a similar finding on the statute of limitations it is also likely that a state court may stretch to find a later date for inception of the loss or a longer negotiation period so as to allow a finding that the suit was filed within the statute of limitations time period. Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.

The Lead Paint Saga Continues...

By: Donna Russo, Esq. Earlier this year, the N.J. Appellate Division ruled that there is coverage under a CGL policy for bodily injury caused by lead paint poisoning even though the CGL policy had an absolute pollution exclusion endorsement. The Court rationalized that the language of the absolute pollution exclusion is ambiguous absent specific language excluding injury or damage caused by the indoor residential exposure to lead paint. Byrd ex. rel. Byrd v. Blumenreich, 317 N.J. Super. 496 (A.D. 1999). Perhaps to remedy this situation, a specific lead paint exclusion endorsement is now available. The N.J. Dept. of Banking and Insurance has approved for use commencing on January 1, 1999 a policy form which excludes coverage for bodily injury caused in whole or in part, either directly or indirectly, by lead paint or lead contamination, or arising out of or incidental to the inhalation, ingestion, use, handling, or contact with lead paint or lead contamination. This exclusion applies only if the covered premises were constructed prior to 1978. The insured must be allowed to secure liability coverage for lead paint or lead contamination if the premises has been certified as being free of existing lead hazards pursuant to standards to be established by the Department of Community Affairs. On renewals, the insurer must provide the insureds with written notice, at least one year prior, that the coverage is being changed to exclude bodily injury from lead paint. What happens to all the potential claims over the next 20 or so years to be made on behalf of minors for injuries from exposure to lead paint? On June 30, 1999 the N.J. Appellate Division decided the case of Jorge Ruiz, an infant, et al. v. H. Robert Kaprelain et al., A-5703-96T5,___N.J. Super.___(A. D. 1999), which affords some relief to landlords who did not know and should not have known about lead paint peeling, chipping etc. in a tenant's apartment. In Ruiz, the landlord purchased the apartment in 1984. It had passed all city and state inspections. Before the plaintiffs' tenancy, the landlord had repainted the entire apartment with a fresh coat of latex paint even though there was no peeling, chipping or flaking paint at the time. Prior to receiving notice from the Department of Health, the landlord had received no complaints from the plaintiffs about peeling, chipping or flaking paint. Upon notice from the Department of Health, the landlord immediately removed the paint. The plaintiffs admitted that they never complained to the landlord about the presence of peeling, chipping or flaking paint in the apartment. Plaintiffs argued that the landlord should be absolutely liable under two theories - breach of implied warranty of habitability and nuisance. The Appellate Division rejected plaintiffs' arguments and held that the absolute liability standard is not appropriate and that the landlord's conduct should be based on the standard of negligence - did the landlord know or in the exercise of reasonable care, should he have known of the presence of lead paint in the apartment prior to receiving notice of the condition from the Department of Health. The jury had found that the landlord was not negligent, the trial court denied plaintiffs' motion for a new trial and entered a judgment of no cause of action and the Appellate Division affirmed. The concurring opinion suggests the probable future arguments to be made in the arena of lead paint litigation. "... [C]onsidering all we know and all that has been written about the danger of lead paint to small children, it may well be time to move beyond traditional concepts of negligence . . .perhaps we should tell the landlord it is his or her obligation to know. If fulfilling that obligation requires diligent and regular inspections, then that is what the landlord must be prepared to do." The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.

Nursing Homes: The Medicare/Medicaid Watchdog

By Donna Russo, Esq. CMS stands for the Centers for Medicare and Medicaid Services.  Skilled nursing home facilities (SNF) and  nursing facilities (NF)  that accept Medicare and/or  Medicaid must follow CMS rules and regulations or be subject to fines, penalties and loss of eligibility of benefits. The statutory and regulatory requirements for SNF  participation are found at sections 1819 (SNF) and 1919 (NF) of the Act and 42 C.F.R. Part 483.  The Secretary of Health and Human Services is vested with the authority to impose enforcement remedies against SNF’s and NF’s for failure to “substantially” comply with rules and regulations.  “Substantial compliance means a level of compliance with the requirements of participation such that any identified deficiencies pose no greater risk to resident health or safety that the potential for causing minimal harm.”  42 C.F.R. sec. 488.301.  State agencies survey facilities to determine whether there is compliance with federal participation requirements. There are two ranges of penalties which may be imposed.  The most severe penalties are for those violations which place residents in “immediate jeopardy”.  “Immediate jeopardy means a situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.”  The penalties for such a violation range from $3,050 per day to $10,000 per day.  For deficiencies that do not constitute immediate jeopardy but do cause actual harm or have the potential for causing more than minimal harms are $50 per day to $3000 per day.  42 C.F.R. sec. 488.438(a)(1)(ii).  A facility can oppose the imposition of an enforcement provision by appealing to and seeking a hearing before  an Administrative Law Judge..  The hearing before the ALF is denovo  but only to a finding of a violation -  the certificate of noncompliance.  The level of noncompliance and penalties imposed are not appealable unless it is found that CMS’s determination is clearly erroneous. “The Departmental Appeals Board (the Board) has long held that the net effect of the regulations is that a provider has no right to challenge the scope and severity level assigned to a noncompliance finding, except tin the situation where the finding was the basis for immediate jeopardy determination.”  See, e.g., Ridge Terrace, DAB No. 1834 (2002); Koester Pavilion, DAB No. 1750 (2000).  Trust Russo & Kieck to represent you in your nursing home neglect or assisted living abuse case. Located in Hackensack, New Jersey, we offer attorney services to clients throughout Northern New Jersey in Bergen, Passaic, Hudson and Essex Counties including Midland Park, Rutherford, Englewood, Clifton, Saddle Brook, Park Ridge, Fort Lee, Ramsey and Paterson. Call us to schedule a consultation in our NJ office at 201-342-3100.

Implied Permission or Reasonable Belief?

By: Donna Russo, Esq. It is well known that courts stretch to find coverage in very questionable situations by applying the rationale that the innocent insured should not be penalized if there is a chance that the policy language is ambiguous. In an unusual decision, the N.J. Supreme Court reversed an Appellate Court's ruling that found coverage for a death by auto caused by an unlicensed, unauthorized driver. The case is Rutgers Casualty Insurance Company v. Joseph E. Collins,(A-51/52-98, decided 6/18/99)__N.J.__(1999). Joseph Collins, age 29, and his wife, Rhonda, needed transportation to a concert. Joseph's driver's license had been revoked 10 years earlier; Rhonda had a valid driver's license. Since the brakes of their car were malfunctioning, they decided to go to the home of Joseph's mother and step-father (the Spataros) to borrow their car. Joseph and Rhonda knew that the Spataros were out of town. Joseph had a key to the Spataros' home because he had been living there for the past two weeks while trying to deal with his alcoholism. Joseph and Rhonda entered the Spataros' home and found the keys to their vehicle. Rhonda drove the Spataros' vehicle to a cousin's home while Joseph drove their car. They left their car at the cousin's home and Joseph drove the Spataros' vehicle to Rhonda's brother's home. They took other transportation to the concert. After the concert, Joseph drove the Spataros' vehicle because Rhonda was too tired. During the ride home, Joseph had a one car collision and Rhonda, who was asleep in the back seat, was killed. The Spataros' vehicle was insured by Rutgers Casualty Insurance. Rhonda's estate filed suit for compensation. Rutgers and the estate each filed a declaratory judgment action seeking a determination of coverage available under the Rutgers' policy. The liability portion of the policy provided: A .We will pay damages for "bodily injury" or "property damage" for which any "insured" becomes legally responsible because of an auto accident. . . . . B ."Insured" as used in this Part means:      1. You or any "family member" for the ownership, maintenance or use of any auto...      2. Any person using "your covered auto." A provision of the policy, A.8, excludes coverage for any person "[u]sing a vehicle without the reasonable belief that that person is entitled to do so." The omnibus clause of the policy provided that "every owner or registered owner of a motor vehicle registered or principally garaged in the State shall maintain motor vehicle liability insurance coverage...insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle..." The trial court, entered judgment in favor of Rutgers, finding that Joseph had no reasonable belief that he was entitled to use the car either on his own or by giving the car to his wife who later allowed him to drive. A divided panel of the Appellate Division found that the trial court erred when it failed to consider if Rhonda had a reasonable belief that she was entitled to drive the car to the cousin's home. The Appellate Division remanded the case to the trial court for fact finding on this issue. The Appellate Division ruled that if Rhonda had a reasonable belief that she had permission to use the Spataros' vehicle, then Joseph would be covered under the initial permission assuming he was a family member. The court further found that the exclusion in A.8 was ambiguous and did not apply to family members. The Appellate Division rationalized that an insured can have a reasonable expectation that family members will be protected when operating a family vehicle even in the absence of permission because such an expectation will protect a child from beginning his adult life as a judgment debtor and keep the disobedience as a family issue. The Supreme Court, affirmed in part and reversed in part, the decision of the Appellate Division. The Supreme Court, acknowledging that it was employing "somewhat different reasoning", ruled that Rhonda's entitlement to coverage arises from the omnibus clause of the policy and that the issue is whether Rhonda had express or implied permission to use the Spataros' vehicle. The Court defined implied permission as "an inferential permission, in which a presumption is raised from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent." If Rhonda is found to have had permission to drive the Spataros' vehicle then she could give permission to Joseph to drive the Spataros' vehicle and Rutgers must provide coverage. If on the other hand, Rhonda is found not to have permission then the issue becomes was Joseph a family member because he had been living temporarily with the Spataros before the accident and if so, did he have a "reasonable belief" that he had permission to operate the Spataros' vehicle. The Supreme Court held that the exclusion in A.8 applies to family members and ruled that if there is a finding that Rhonda did not have permission to drive the Spataros' vehicle then, no coverage is afforded under the Rutger's policy because the trial court had correctly decided that a person in Joseph's position, given his age and that his license had been suspended for 10 years, could not reasonably believe that the Spataros would have given him permission to drive the vehicle. Comments: On first reading, one may feel that the Court has gone too far in the other direction by ruling that exclusion A.8 applies to family members. The Appellate Division reasoned that exclusion A.8 did not apply to family members because it was ambiguous and could be interpreted as creating two classes of insureds (residents and family members residing in the household and other persons using the car) and that exclusion A.8 applies to the second class 'any persons'. According to the Appellate Division's rationale, a teenage driver who has been prohibited from using his parents' car would be covered if he takes the car for a ride and has an accident because exclusion A.8 should not apply to family members. On first reading, the Supreme Court's ruling seems to bar coverage to this teenage driver. However, coverage is not necessarily barred. The issue would be whether the teenage driver had a reasonable belief that he was entitled to use the car. Reasonable belief is a subjective standard and is much broader than the permissive standard. The teenager could argue that given any number of fact situations, he had a reasonable belief that the parents would have made an exception and allowed him to drive. A credibility issue arises and there could be a finding of coverage depending on the teenager's position as to reasonable belief under the circumstances. Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties.  Schedule a consultation  by contacting us at 201-342-3100.

Nursing Home Abuse: A Case Study In Pressure Sores

By Donna Russo, Esq. For purposes of this case study the significant regulation is found in 42 C.F.R. 483.25 © commonly known as F Tags 314. F Tag 314 provides: “Based on the comprehensive Assessment of a resident, the facility must ensure that- (1) A resident who enters the facility without pressure sores does not develop pressure sores unless the individual’s clinical condition demonstrates that they were unavoidable; and (2) A resident having pressure sores receives necessary treatment and services to promote healing, prevent infection and prevent new sores from developing.” With respect to necessary treatment and services, the facility has the duty to “go beyond merely what seems reasonable to, instead, always furnish what is necessary to prevent new sores, unless clinically unavoidable, and to treat existing ones as needed.” Koester Pavilion, DAB N o. 1750. For a pressure sore to be “unavoidable” the facility must establish that even though the facility has taken all interventions to avoid pressure sores. In this case study, the facility had developed a care plan for skin breakdown with the following interventions: daily skin check; turn and reposition every two hours; provided perineal care with each episode of incontinence; keep skin clean and dry ; the resident should be up in a geriatric chair each day and the resident was to have a pressure relief mattress. The resident was non compliant in that she slid down her bed and refused to be turned. The resident had developed pressure ulcers in the past which healed. This resident now developed a new ulcer on her buttock and a reopening of a coccyx wound. The Administrative Law Judge, in affirming penalties imposed by CMS found: The care planning team did not address issues of position in bed and resident noncompliance prior to the development of a new ulcer.   Since the resident was a known risk for skin breakdown, the facility’s failure to address the resident’s sliding and noncompliance indicated that the facility was not doing all that was necessary.   The care planning team did not assess the effectiveness of interventions or implement new interventions when the new and reopened sores developed.   The fact that the resident had developed sores in the past which healed was evidence that the new sores were avoidable.   The care planning team did not repeat the implementations that were effective previously such as a pressure relief mattress (there was no notations that an ordered pressure relief mattress was being used) and that nutritional supplements and other previous successful implementations were in effect. See Plot Nursing Home, Decision No. CR2326 (Feb. 17, 2011).  

What to Do If You Are Denied Long Term Disability Benefits by Your Employers Insurance Company

By: Donna Russo, Esq. Disability benefits under an employer insurance plan, subject to a few exceptions, are governed by a federal law commonly referred to as ERISA. ERISA claims are different from state law breach of contract claims. An ERISA claim is actually an appeal of the denial of benefits. The state court does have jurisdiction to conduct this review. However, most cases are filed in federal court because most likely the insurance company will insist on a federal venue and will file a motion to remove to federal court. Generally, the issue in these cases is whether the plan administrator breached its fiduciary duty in denying disability benefits. The starting point is to review the policy language to determine whether the administrator was granted discretionary authority to determine eligibility for disability benefits. Depending on the authority given, there are different standards of review under which the denial of benefits will be reviewed. In order to decide if the plan administrator breached its fiduciary duty under the applicable standard, the court’s review will be limited to the “administrative record” which is the insurance company file for your disability claim. A proper record is paramount when litigating the denial of disability. The record starts with your application for benefits and includes every communication, including doctor’s records, letters, telephone calls, e-mails etc.. Many times, the human resources department will assist you with filing the initial application for disability benefits. However, it is important that the application forms be filed out correctly so as not to prejudice your claim. These forms should properly set forth your diagnosis, the reason for your disability etc.. After the initial application, there are forms for your doctor to complete. Your doctor must accurately set forth the nature of your disability. Many times, the disability denial is based on information from your doctor in response to a generic form. The information your doctor provides should be specific as to the duties of your job and why you are unable to perform these job duties because of your disability. Also, the doctor’s notes must be consistent. Sometimes, a report from the doctor addressing the issues raised by the insurance company will be needed. In order to become part of the administrative record for review by the court, any report or other documentation must be submitted before the denial of the final appeal. Most policies set forth that there are one, two and sometimes three levels of appeal. Before a lawsuit can be filed, the mandatory appeals must be filed and denied. There are set time periods, for an insurance company to respond to an appeal. Sometimes, if the insurance company does not respond, its failure to do so will be deemed a denial. However, before taking this position, your file should contain all the information required by the company or needed to clarify your position. Russo & Kieck is a full service law firm located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. We offer legal assistance with civil litigation, personal injury, nursing home abuse, assisted living neglect, insurance law, employment law, real estate and estate planning. Schedule a consultation by contacting us at 201-342-3100.

Nursing Home Abuse and Neglect

By: Donna Russo, Esq. New Jersey has a statute entitled the Nursing Home Bill of Rights which creates a separate cause of action for nursing home violations, some of which involve the improper treatment of nursing home residents. In particular, the Federal Regulations (OBRA), which govern nursing homes, are incorporated into the Nursing Home Bill of Rights. The Federal Regulations set forth the standard of care that is to be followed by the nursing home in administrating care and treatment to its residents. These regulations address such issues as staffing, nutrition, hydration, maintenance, personal hygiene, therapy, improper use of restraints, abuse, dignity, quality of life, activities of daily living etc.. By way of example, the regulations provide that patients with pressure ulcers must be turned, repositioned, given the appropriate mattress, receive treatments etc.. Many times, nursing homes will contend that the pressure sores are unavoidable given the resident’s other medical conditions and declining health. No pressure sores are unavoidable unless and until the nursing home can show that it took every step necessary to prevent the development of the pressure sore or the worsening of an existing pressure sore. A typical nursing home lawsuit will contain multiple causes of action of which the violation of the Nursing Home Bill of Rights is only a small part. There may also be claims to be asserted against individual nurses, aides, management personnel and physicians for medical negligence and abuse. Also, there may be contractual claims for breach of contract of the resident’s agreement with the facility. Every moment of life is precious. Nursing homes must treat their residents with dignity and provide services to ensure that the resident enjoys the highest possible quality of life. Russo & Kieck attorneys are able to represent you in your nursing home neglect or assisted living abuse case. Located in Hackensack, New Jersey, we offer attorney services to clients throughout Northern New Jersey in Bergen, Passaic, Hudson and Essex Counties including Midland Park, Rutherford, Englewood, Clifton, Saddle Brook, Park Ridge, Fort Lee, Ramsey and Paterson. Call us to schedule a consultation in our NJ office at 201-342-3100.

Denial of Disability Benefits-Own Occupation vs. Any Gainful Occupation

By: Donna Russo, Esq. Disability benefits under an employer insurance plan, subject to a few exceptions, are governed by a federal law commonly referred to as ERISA. ERISA claims are different from state law breach of contract claims. An ERISA claim is actually an appeal of the denial of benefits. The state court does have jurisdiction to conduct this review. However, most cases are filed in federal court because most likely the insurance company will insist on a federal venue and will file a motion to remove to federal court. Generally, the issue in these cases is whether the plan administrator breached its fiduciary duty in denying disability benefits. The starting point is to review the policy language to determine whether the administrator was granted discretionary authority to determine eligibility for disability benefits. Depending on the authority given, there are different standards of review under which the denial of benefits will be reviewed. In order to decide if the plan administrator breached its fiduciary duty under the applicable standard, the court’s review will be limited to the “administrative record” which is the insurance company file for your disability claim. A proper record is paramount when litigating the denial of disability. The record starts with your application for benefits and includes every communication, including doctor’s records, letters, telephone calls, e-mails etc.. Many times, the human resources department will assist you with filing the initial application for disability benefits. However, it is important that the application forms be filed out correctly so as not to prejudice your claim. These forms should properly set forth your diagnosis, the reason for your disability etc.. After the initial application, there are forms for your doctor to complete. Your doctor must accurately set forth the nature of your disability. Many times, the disability denial is based on information from your doctor in response to a generic form. The information your doctor provides should be specific as to the duties of your job and why you are unable to perform these job duties because of your disability. Also, the doctor’s notes must be consistent. Sometimes, a report from the doctor addressing the issues raised by the insurance company will be needed. In order to become part of the administrative record for review by the court, any report or other documentation must be submitted before the denial of the final appeal. Most policies set forth that there are one, two and sometimes three levels of appeal. Before a lawsuit can be filed, the mandatory appeals must be filed and denied. There are set time periods, for an insurance company to respond to an appeal. Sometimes, if the insurance company does not respond, its failure to do so will be deemed a denial. However, before taking this position, your file should contain all the information required by the company or needed to clarify your position. Russo & Kieck in Hackensack, New Jersey provides long term disability legal assistance to clients in Teaneck, Paramus, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne, Secaucus, Newark, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties in Northern New Jersey. Contact us to schedule a consultation 201-342-3100.

The Sale of Real Estate and Need for a Certificate of Occupancy

By: Patricia A. Kieck, Esq. The State of New Jersey requires that before a closing on new construction can occur, the builder/seller must obtain a Certificate of Occupancy from the municipality wherein the property is located. N.J.S.A. 52:27D-133 et seq. The situation is different for existing homes that are being resold. The State of New Jersey mandates that the seller of the property obtain a Certificate of Smoke Detector, Carbon Monoxide Detector and Fire Extinguisher. N.J.S.A. 52:27D-192 et seq. However, the State does not mandate that a seller obtain a Certificate of Occupancy or Certificate of Continuing Occupancy. Such a requirement is left to the jurisdiction of the municipality where the property is located. N.J.S.A. 52:27D-198.1 et seq. Not every municipality in New Jersey requires the homeowner/seller to obtain a Certificate of Occupancy or Certificate of Continuing Occupancy, as it is sometimes referred to, on the resale of their property. In those municipalities that do require a Certificate of Occupancy or Certificate of Continuing Occupancy, it is governed by ordinance. The property owner must complete an application for an inspection and issuance of the Certificate. There is a fee for the application. N.J.A.C. 5:23-4.17. The purpose of the Certificate of Occupancy is to insure that the property upon the change of ownership is in compliance with the “laws and regulations relating to safety, healthfulness and upkeep of the premises…” N.J.S.A. 52:27D-198.2. Each municipality’s approach to enforcement varies. If there are violations, the owner is notified and the violations will have to be cured. Whether or not the municipality requires a Certificate of Occupancy or a Certificate of Continuing Occupancy each homeowner must obtain a Certificate of Smoke Detector, Carbon Monoxide Detector and Fire Extinguisher. Failure to obtain the Smoke Detector, Carbon Monoxide Detector, Fire Extinguisher and/or the Certificate of Occupancy or Certificate of Continuing Occupancy will subject the seller to a fine. There have been situations where homeowners fail to obtain permits and approvals for improvements to their home. In most instances where municipalities do require a Certificate of Occupancy or Certificate of Continuing Occupancy on resale, this will be discovered and the homeowner will have to take action to correct this violation. New Jersey law requires construction permits to be obtained to construct, enlarge, renovate, alter, repair, among other things, the home. There are exceptions. N.J.A.C. 5:23-2.14. Even though the municipality you live in does not require a seller to obtain Certificate of Occupancy or Certificate of Continuing Occupancy for a resale, you are still required to obtain permit(s) and approval(s) for work done to their home as may be required by the state building code and/or municipal ordinance. The failure to do so, could adversely affect your sale. The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation.  

Attorney Review Period

By: Patricia A. Kieck, Esq. All residential real estate contracts and leases prepared by real estate brokers are subject to attorney review. This is mandated by caselaw and regulation. Both the Buyer and the Seller have the right to obtain their own counsel to review the Contract prepared by the real estate broker. The attorney can reject the contract, accept the contract or make changes to the contract. Before an attorney rejects or accepts a contract, the client should understand the ramifications of such action. If the attorney rejects the contract and proposes changes to the contract which are not accepted by the Seller or the Buyer you have no deal. If you accept the contract, but the client wasn’t sure or perhaps was waiting for another offer and the other party accepts the contract, you have a deal if the other party has not disapproved the contract. If a party does not retain counsel to review the contract, then the attorney review does not apply to that individual. The attorney review period begins the day after delivery of the fully signed written contract to both the buyer and seller. Each of the parties has the same three-day period to accept, reject or make changes to the contract. Saturdays, Sundays and legal holidays do not count. The receipt of the contract must be to the parties and not their respective brokers. In Gordon Development Group, Inc. the Buyer contended that the Seller and the Buyer were entitled to separate review periods commencing when they each received the signed contract. This is not the case. The review period begins when they both receive the contract. Typically, the seller receives the contract when he/she signs off on the bid made by the Buyer. The Buyer will usually receive a fully signed contract after that and conceivably a day or two later. The attorney review period ends at 5:00 p.m. on the third day if no changes are made by an attorney. The review period does not have to last the three full days if both the Seller and Buyer accept the broker prepared contract or agree to changes. In that case, the attorney review period ends by agreement. If you intend to terminate the contract during the attorney review period, an attorney must send written notice not only to the attorney representing the other party, but also by certified mail, return receipt requested to the other party and the real estate brokers. If this is not done, the termination will be ineffective. This could be costly especially if you have signed another contract. You could be bound to purchase two homes or sell your home to two buyers. The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation. i New Jersey State Bar Ass’n v. New Jersey Ass’n of Realtor Bds., 93 NJ 470 Modified, 94 NJ 449 (1983); NJAC 11:5-6.2(g) 1 and 2. ii Gordon Development Group Inc. v. Peter Bradley, A-2309-01T3 (July 18, 2003) iii Romano v. Chapman, 358 NJS 48 (App. Div. 2003) cert. denied.

Long Term Disability Benefits: New Precedential 3rd Circuit Opinion

By: Donna Russo, Esq.        Since the United States Supreme Court issued its landmark decision, Metropolitan Life Insurance Co.v. Glen, 554 U.S. 105 (2008), federal courts have been reviewing and clarifying the standard of review for denial of long term disability benefits under ERISA plans. Prior to Met Life, the standard of review for plans that granted the administrator discretionary powers was a “sliding scale” arbitrary and capricious standard. As a result of Met Life, the sliding scale is no longer valid and the courts must apply “a deferential abuse of discretion standard of review across the board and consider any conflict of interest as one of several factors in considering whether the administrator or fiduciary abused its discretion.” Estate of Schwinn v. The Lilly Health Plan, 562 F.3d 522, 525 (3d Cir. 2009).        In Robert T. Miller v. American Airlines, Inc. et. als., United States Court of Appeals For The Third Circuit, No. 10-1784, filed January 25, 2011, the Court, in its precedential opinion, further delineated the analysis that must be undertaken of a Plan administrator’s reversal of a previous grant of long term disability benefits.       Mr. Miller was a pilot with American Airlines for 10 years. In 1998, he suffered a psychotic episode while on duty requiring his hospitalization. Miller applied for long term disability under American’s plan. The plan was an “own occupation” plan which entitled the beneficiary to benefits even if he could work in a different capacity.        Mr. Miller began receiving treatment from a psychiatrist, Dr. Gonzalez who diagnosed Mr. Miller as suffering from anxiety disorder and brief reactive psychosis. Dr. Gonzalez reported to American that Mr. Miller’s brief reactive psychosis disorder was caused by physical fatigue, sleep depravation and emotional distress and that his progress was favorable. Mr. Miller received long term disability benefits under the plan. Mr. Miller continued to treat with Dr. Gonzalez. In May 2003, American informed Mr. Miller that it could no longer substantiate his disability and that his benefits were terminated. In response, Dr. Gonzalez submitted documentation reiterating the diagnoses of anxiety and brief reactive psychosis. Dr. Gonzalez advised that Mr. Miller had taken medication until June, 2000 and that he had been “asymptomatic” since the spring of 2001. Dr. Gonzalez also noted that pursuant to FAA regulations, Mr. Miller was unable to work as a pilot. American reversed its denial and continued Mr. Miller’s benefits.        Over the next two years, American requested updates from Dr. Gonzalez. Dr. Gonzalez furnished the same information that he had previously. In October, 2006, American sent a letter to Miller notifying him that his benefits were terminated. American stated: “...we are unable to verify either the existence of continuing medical disability or your continued substantial progress towards attaining your FAA medical certification.” The Court immediately noted that there was nothing in the Plan that made Mr. Miller’s benefits contingent on pursuing a medical certification with the FAA.        As part of the appeal process, Mr. Miller submitted a follow up report from Dr. Gonzalez wherein Dr. Gonzalez found that Mr. Miller continued to suffer from anxiety and psychosis which necessitates continued treatment. Dr. Gonzalez further stated that “More specifically, his diagnosis reveals and refers to latent vulnerability on his mental status so that prevention [sic[medical treatment, when adequate, may be sufficient. However, no medical treatment has the capacity to neither revert, undo, nor cure such a condition.”        American sent Mr. Miller’s records and Dr. Gonzalez’ latest report to an independent medical opinion service, Western Medical Evaluators (WME). Two doctors from WME reviewed Mr. Miller’s records. Neither doctor performed a physical examination. One doctor’s report found that the medical records did not document any psychiatric problems or explain Mr. Miller’s failure to obtain the FAA medical certification. The other doctor found that a pilot must not suffer psychosis but that Mr. Miller was not undergoing psychotherapy nor taking medication and did not attempt to obtain an FAA medical certification. The termination of benefits was upheld by American.        Mr. Miller filed a lawsuit in the Federal District Court. The Federal District Court agreed with American’s decision to terminate benefits. The Third Circuit Court of Appeals, in a lengthy opinion, reversed the District Court and ruled that Mr. Miller should be awarded past due benefits and that his benefits should be reinstated.        The Third Circuit Court of Appeals divided its consideration into two areas: structural conflict of interest and procedural factors. The structural analysis involved whether there was a conflict of interest if the employer makes fixed contributions to a trust to pay employee claims. The Court held that even if contributions are actuarially calculated, any benefit saved reduces the employer’s obligation and therefore, American had some incentive to terminate benefits.        As to the procedural factors, the Court made several significant findings:   A reversal of a decision to award benefits without receiving new medical information to support the change is an irregularity that “...counsels a finding of abuse of discretion”    Although an initial award of benefits does not operate as an estoppel of a future termination, there should be meaningful evidence to support the change of position;   It is arbitrary and capricious to impose requirements extrinsic to the plan (herein, the FAA medical certification);   American did not meet the minimum notice requirements under ERISA to terminate a plan. The regulations require an employer to set forth in a manner calculated to be understood by the employee, the specific reasons for the adverse determination with reference to specific plan provisions and a description of any additional material or information necessary for the employee to perfect the claim and the reason why the information is necessary; (herein, the termination letter was insufficient because it does not set forth the specific reasons for the denial and does not advise of the specific information needed to perfect the claim.)   The administrator must address all relevant diagnoses in terminating the claimant’s benefits. (Herein, the termination letter did not mention either of Mr. Miller’s diagnoses - anxiety disorder and brief reactive psychosis). The administrator must consider the specific job requirements in light of the diagnoses and provide an explanation as to how the claimant could be expected to perform the job functions in light of the diagnoses; (in an “own occupation” plan). (Herein, American did not address the demands which Mr. Miller would face as a pilot). Applying the aforesaid analysis, the Court held that American’s decision to terminate Mr. Miller’s benefits was not the product of reasoned decision making and substantial evidence but rather, was arbitrary and capricious. Russo & Kieck law firm in Hackensack, New Jersey provides long term disability legal assistance to clients in Teaneck, Paramus, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne, Secaucus, Newark, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties in Northern New Jersey. Contact us to schedule a consultation 201-342-3100.  

Selling or Buying a Two-family House or Tenanted Single Family Home Sale

By: Patricia A. Kieck, Esq. Are you selling or purchasing a two family with tenants in occupancy or a single family home with a tenant in occupancy? Whether you are the seller or purchaser, you need to know whether or not the home is a legal two-family. There have been occasions when an individual lists the property as a two family, but the property is not zoned two family or the home was not legally converted In a two-family home, is it owner occupied or not? Is there a written or verbal lease? Is it a month to month term or an annual term. If you are purchasing, do you intend to live there or not. Different rules apply. The Just Cause for Eviction Act applies to non-owner occupied two-family and single family rented premises. It sets forth the requirements needed to permit a seller/owner to have a tenant removed from a non-owner occupied premise so long as the contract is properly drafted. The Seller sends the notice to the tenant. The seller generally does not want to give that notice until he/she is certain that the purchaser has a written mortgage commitment. Determining the closing date should take this factor into consideration. What happens if the tenant does not vacate? The Seller should be responsible for removing the tenant. An eviction action would have to be filed. In most instances the Seller would obtain a judgment for possession and have the tenant removed. However, the Just Cause for Eviction Act provides that a tenant may obtain a hardship stay of the eviction for a maximum of six months. Such an occurrence could be detrimental to the parties. What happens in such an event should be negotiated during the attorney review period. In the circumstance where the premises are owner-occupied, then the owner can evict a tenant for any reason or no reason However, the notice must be in writing. If there is a written lease with an annual term, the tenant could not be ordered to vacate prior to the expiration of the lease term. Sometimes, the purchaser intends on keeping the tenant. In that situation, the purchaser should review the lease agreement to be sure the terms are acceptable to him/her. You want to be sure that the tenant is not in default of their lease or the rent payments. A seller or purchaser should make themselves aware of any municipal requirements such as, registration as rental property, rent control; the Security Deposit Act (N.J.S.A. 46:8-19): the Leasehold Act (N.J.S.A. 46:8-1 et seq. ) and the Just Cause for Eviction Act. N.J.S.A. 2A:18-53 et seq. The attorneys of Russo & Kieck law firm in Hackensack, New Jersey can assist you in your real estate transactions in Bergen, Passaic, Hudson and Essex Counties. If you are renting, buying or selling a home in Paramus, Teaneck, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne or any Northern New Jersey area, call 201-342-3100 to schedule a consultation. This article is for information only and is in no way a substitute for legal advise from an attorney.  

Remedies Under CEPA (Conscientious Employee Protection Act)

By Donna Russo, Esq. A CEPA claim is one brought by an employee against his/her employer for retaliation for whistleblowing: disclosing or threatening to disclose to a supervisor or a public body, an activity, policy or practice of the employer that the employee reasonably believes is in violation of the law or is fraudulent or criminal. Another type of CEPA claim arises when an employee objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of the law or is fraudulent or criminal. N.J.S.A. 34: 19-3. It is very important to note that, unlike many other causes of action, a CEPA claim has a one year statute of limitations which means that a lawsuit may be initiated in Superior Court within one year. There is no necessity to file a complaint with an administrative agency such as the EEOC. A successful CEPA claimant is entitled to an award for emotional distress, pain and suffering. However, in most cases the bigger part of the claim is for economic damages i.e. back pay, front pay, loss of benefits etc... The law holds that absent an actual discharge or constructive discharge, the employee does not have a claim for economic damages. A constructive discharge claim arises when the employee contends that he/she could no longer tolerate the work conditions. However, in order to prove a claim of constructive discharge, an employee must show that the employer’s conduct was so intolerable that a reasonable person would be forced to resign rather than continue to tolerate the conduct. The Appellate Division recently rendered a decision on a case that has facts which, on first glance, appear to set forth intolerable conduct that could amount to a constructive discharge. The employee had made safety complaints and contends that the employer retaliated by imposing restrictions on him that were not imposed on others, concerning use of vacation and sick time; falsely accused him of failing to complete training and attend safety meetings in the summer although he had always been excused from summer meetings in the past; falsely accused him of being lazy and not one of the best performers; required him to notify his supervisor when and where he was going to lunch when other employees did not have this requirement. The employer filed a disciplinary complaint that was false. The employer also forced the employee to undergo mental state examinations (which showed that the employee presented no danger and recommended that the employee return to work). The employee was put on a different shift with a new supervisor where he could not earn the overtime that he was accustomed to. The employee finally opted for a voluntary six month leave of absence and then retired on a plan that paid benefits significantly less than he was earning. The Court held that the employee could not make a claim for economic damages because he was not actually or constructively discharged. The court disallowed all claims for economic losses. Russo & Kieck is a full service law firm located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. We offer legal assistance with civil litigation, personal injury, nursing home abuse, assisted living neglect, insurance law, employment law, real estate and estate planning. Schedule a consultation by contacting us at 201-342-3100.

Insurance Policies - Rules of Construction

By: Donna Russo, Esq. Insurance policies are contracts. Over the years, a body of case law has developed by the New Jersey courts governing the interpretation of insurance policy language. The following is a synopsis of the rules set forth in the various decisions: Overview An insurance policy is a contract that will be enforced as written when its terms are clear in order that the expectations of the parties will be fulfilled. Language in an insurance policy is construed according to its plain and ordinary meaning. If the terms of the policy are not clear, but instead ambiguous, the ambiguous terms are construed against the insurance company and in favor of the insured so as to give effect to the insured’s reasonable expectations. However, the courts cannot write for the insured a better policy than the insured purchased. Exclusions are presumptively valid and are enforced if the exclusion is specific, clear, prominent, and not contrary to public policy. If the words of an exclusionary clause are clear and unambiguous a court should not engage in a strained construction to support the imposition of liability. Exclusions are to be narrowly construed and it is the insurance company’s burden to prove that the exclusion applies. If there is more than one possible interpretation of the language, courts apply the meaning that supports coverage rather than a meaning that limits coverage. If the language of an exclusion requires a causal link, courts must consider its nature and extent of the causal link to determine the meaning and application of the exclusion. If the exclusion’s terms make plain that coverage is unrelated to any causal link, it will be applied as written. The duty to defend and indemnify are not coextensive and must be analyzed separately. Coverage questions are not always clear, and an insurance company can have a duty to defend although after trial, it may not have a duty to indemnify. A duty to defend depends on a comparison between the allegations set forth in the complaint and the language of the insurance policy. In evaluating the complaint, doubts are to be resolved in favor of the insured. Therefore a potentially covered claim obligates the insurer to provide a defense. First Party Coverage - Multiple Events If there is a covered loss and an uncovered loss in the chain of events, the loss is covered if a covered cause starts or ends the sequence of events leading to the loss. If the claimed causes, one covered and one not, combine to produce an indivisible loss, the loss will not be covered unless the insured can prove the allocation between the covered and uncovered cause. Concurrent Causes If the policy is silent on concurrent causation, the insurance company has a duty to defend but not necessarily to indemnify. If the claim could be based on the covered cause which is independent of an excluded cause, the insurance company has a duty to defend. Interpretation of “Arising Out Of” Clauses These types of clauses have been interpreted broadly to define the link between the conduct and the covered activity as “originating from”, “growing out of” or having a “substantial nexus”. The specific language is important. A “substantial nexus” is a broader exclusion and could be interpreted as excluding coverage if the covered and uncovered causes are interrelated or concurrent. Source: Flomerfelt v. Cardiello, N.J. (2010), NJ Supreme Court decided July 7, 2010. Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.  

Nursing Homes: Duty To Prevent Falls

By: Donna Russo, Esq. Nursing homes that accept Medicare must follow the Code of Federal Regulations.  A facility is required to ensure that its residents receive supervision and assistance devices to prevent accidents.42 C.F.R. sec. 483.25 (h)(2). Nursing homes are routinely cited for failure to follow the federal regulations and are subject to monetary penalties.  Initially, the Centers for Medicare and Medicare Services (CMS) makes the decision which can be appealed on two levels to the Department of Health and Human Services and thereafter to federal court. The decisions rendered by the administrative law judges of the Department of Health and Human Services are interesting on the issue of what is considered a violation of a particular regulation.  This is the first of a series of articles which highlight the factual findings by the Department of Health of the conduct that constitutes a violation of a specific federal regulation.  The within article is limited to the duty to prevent falls and other articles on other violations will appear on this website from time to time. In Community Care of Rutherford County, Inc. v. Centers for Medicare and Medicaid Services, Docket No. C-09-595, Decision No. CR2173, Dated: July 6, 2010, the Administrative Law Judge addressed a series of falls by different residents at a Tennessee facility.  The Judge did not find that the facility totally ignored the residents’ needs.  Rather, the Judge found that the facility failed to implement aggressive interventions such as increased supervision and personal assistance that may have protected the patients against falls. One resident had Parkinson’s disease, long-term memory deficits, anxiety, periods of altered perception and restlessness. This resident fell at least 28 times and was injured in at least 9 of these falls. The facility implemented several interventions including a low bed with mats, a body alarm, adjustment of edications, a lap buddy in his wheelchair, providing therapy to assist in sitting in the wheelchair, use of a geri-chair, walking with assistance of a therapist, toileting the resident on regular intervals, and placing the resident near the nurses work station. The Judge found that these interventions were not adequate under the regulation and that the facility should provide continuous supervision when the resident was out of bed.  The Judge found that leaving the resident, unwatched for even a short period of time was an invitation for the resident to fall.  Even if the facility is adequately staffed, the regulations require that the facility adequately utilize its staff resources to protect residents. Another resident was known to disable his chair alarm and 41 falls in a 9 month period.  Again the Judge found that increased and if necessary, continuous supervision was needed during the resident’s waking hours. Other residents had problems with bed alarms - either the resident disabled the alarm or the largeness of the resident would trigger the alarm even when the patient was not trying to exist his bed.  The Judge found violations in these cases because the facility’s reliance of the alarms was not adequate especially since the facility had knowledge of the alarm difficulties with these residents.  The Judge found that these residents needed closer supervision and more bed checks. The Judge enforced the penalties finding that the facility’s noncompliance  “...actually caused residents to sustain serious injuries....Furthermore, the likelihood of serious injury to falls and other accident prone residents was quite high.  A pattern exists in this case of the failure by [the facility] and its staff to seek out and implement all reasonable measures designed to protect residents.  That left the residents vulnerable to injuries or worse.” Learn how Russo & Kieck to represent you in your nursing home neglect or assisted living abuse case. Located in Hackensack, New Jersey, we offer attorney services to clients throughout Northern New Jersey in Bergen, Passaic, Hudson and Essex Counties including Midland Park, Rutherford, Englewood, Clifton, Saddle Brook, Park Ridge, Fort Lee, Ramsey and Paterson. Call us to schedule a consultation in our NJ office at 201-342-3100.  

BULK SALES AS IT APPLIES TO INCOME PRODUCING REAL PROPERTY

By Patricia A. Kieck, Esq. In June 2007, without any fanfare, then Governor Corzine signed into law “NJSA 54:50-38. Notification to director of proposed sale, transfer, assignment of business assets; claim for State taxes” which became effective in August 2007. This required every purchaser of business assets, whether an individual, estate, trust or entity, to send written notification to the Division of Taxation, Bulk Sales Section of the impending sale. Notice must be given at least ten (10) days prior to the closing date. What does “business assets” mean? The New Jersey Division of Taxation in a Technical Bulletin No. TB-60 issued on July 3, 2008 defines it as “Business assets, tangible or intangible, include, but are not limited to, goodwill, materials, supplies, licenses, patents, copyrights, equipment, leases, merchandise or other inventory and realty if the primary use of the realty is to support a business on its premises. [emphasis added] Business was defined as “…any endeavor from which revenue or consideration is realized for the purpose of generating a profit or loss. “ This was interpreted to mean that a two-family home which is rented, or a single family home which is rented, was subject to the Bulk Sales, Transfer Act. Effective immediately as of September 14, 2011 and retroactive to August 1, 2007, the Act no longer applies to a “simple dwelling house” if it is owned by an individual, estate or trust. It still applies to entities, corporations, limited liability companies, partnerships and sole proprietorships. “Simple dwelling house” has been defined as an attached or detached dwelling unit. It cannot be more than a two-family building or structure. It includes a condominium unit or co-operative unit. It includes time share or seasonal rental provided the seller is an individual, estate or trust and the unit is used or rented for a term not exceeding 125 consecutive days where the seller has a permanent residence elsewhere. It does not include a structure(s) containing commercial property. For those sellers, transferors or assignors who are not exempt from the Act, compliance with the Act is required. As indicated above, Notice in the form of C-9600 (this form can be obtained from the Division of Taxation website) and the Asset Declaration Form must be filed with the State of New Jersey, Division of Taxation, Bulk Sales Division. Upon receipt of the Notification form and a copy of the signed Contract of Sale, the State will send notification, in writing, advising the purchaser’s attorney and the seller’s attorney of the amount needed to be held in escrow pending the State’s review of the seller’s records. It is necessary for the seller to complete, sign and deliver at closing, or before, an Asset Declaration Form. The seller’s accountant should prepare the form. The State will complete their review and advise, what, if any, monies are due the State of New Jersey. Once the monies are paid, if any, the State will issue a Tax Clearance Letter. If no monies are due, then the Division will authorize the release of the escrow monies. Unfortunately, the State is rigid in its application of the time periods. If they do not receive the Notification and signed Contract of Sale ten days before the closing date, they will deem it as if a filing was not made and look to the buyer for tax liability of the seller in the event the seller fails or refuses to pay its debt to the state. State debts are defined as “State tax debts” mean deficiencies (i.e. underpayments), delinquencies (i.e. unfilled tax returns), assessments, penalties, interest, fees and costs.” It is important that if the seller is an entity as defined above, that they comply with the Bulk Sales Act.

Is A Click Of A Hyperlink Sufficient To Agree To Binding Arbitration

By: Donna Russo, Esq. In an unreported decision, Forsyth v. First Trenton Indemnity Company et. als. and First Trenton Indemnity Company et. als., A-5080-08T2, the Court ruled that a click on a hyper link on an employer web page addressing employer polices that included an updated arbitration policy was sufficient to constitute a waiver of litigation and consent to binding arbitration. The Appellate Division summarized the law of binding arbitration agreements. It found that such agreements are binding if there is some concrete manifestation of the employee's intent. A valid arbitration agreement is binding if "...there is a signature on the arbitration agreement or by some other explicit, affirmative expression of agreement." On the other hand, if an employee manual contains a binding arbitration clause but the employee does not sign an agreement providing for same nor otherwise give explicit indication of the intent to be bound, the arbitration provision is not enforceable. On this issue, the Appellate Division proffered the suggestion that written acknowledgment of receipt of an employee manual include a reference to the binding arbitration provisions. In the case before the Court, plaintiff was a lawyer who was employed the Defendant for many years. Over the years, she met the company's annual requirement of certifying receipt, review and agreement of the defendant's Code of Conduct which included a specific provision for binding arbitration. Shortly before plaintiff was terminated, the defendant had sent an e-mail captioned "IMPORTANT - Employee Policy Update Reminder". One of the updated policies addressed the arbitration policy to clarify the relief available in arbitration and disputes covered by arbitration. Plaintiff had opened the e-mail and clicked on the hyper link. The Court rejected plaintiff's claims that she did not electronically consent to waive her rights under LAD and that she waived her rights to sue and agreed to binding arbitration. The Court found that an actual handwritten signature was not required and that an employer need not negotiate individual agreements with its workforce to implement a company-wide arbitration policy. The Court further addressed prior decisions that a click of a link on a website had been recognized as an acceptance and that the New Jersey Uniform Electron Transactions Act (UETA), N.J.S.A. 12A: 12-1 et seq. provides that an electronic signature is created by the standard click through a website process. In this case, the Court did not specifically decide that plaintiff's click in and of itself was an electronic signature. Rather the Court looked at the entire record, which included past waiver of rights and binding arbitration provisions, and found that the record as a whole reflected plaintiff's voluntary waiver of litigation rights. Further, the plaintiff was an attorney for the defendant and although plaintiff's status in and of itself alter the finding of the necessity of explicit agreement to binding arbitration, the Court did consider her long time status as the company's attorney as part of "record as a whole". Russo & Kieck is a full service law firm located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. We offer legal assistance with civil litigation, personal injury, nursing home abuse, assisted living neglect, insurance law, real estate and estate planning. Schedule a consultation by contacting us at 201-342-3100.

Errors and Omissions Policies - Claims Made vs. Occurrence

By: Donna Russo, Esq. It is imperative that the insured, under an errors and omissions policy, understand the difference between 'claims made' and 'occurrence' policies. In the '70's and '80's, many policies were 'occurrence' policies. The trend has reversed and now almost all policies are 'claims made' policies. In an 'occurrence' policy, the peril insured is the 'occurrence' itself. Once the 'occurrence' takes place, coverage attached even though the claim may not be made for some time thereafter. In contrast, in the 'claims made' policy, it is the making of the claim which is the event and peril being insured and, subject to policy language, regardless of when the occurrence took place. Therefore, 'claims made' policies are issued on the premise of retroactive coverage to the inception date and no prospective coverage after the expiration date while occurrence policies provide no retroactive coverage and unlimited prospective coverage. Sparks v. St. Paul Insurance Co,, 100 NJ 325 (1985). In 'claims made' policies, the retroactive date is of utmost importance since that date is the first date on which coverage will apply. Further, many policies limit the coverage to 'claims made' during the term of the policy and for a very short period thereafter, unless extended coverage is purchased. Gaps in insurance are fatal when dealing with 'claims made' policies. An insured should consider obtaining the longest retroactive date offered. What happens if the policy does not have any retroactive coverage? In Sparks, the Supreme Court held: "Because in our view the policy sold by respondent is not a true "claims made" policy, we hold that the provisions in the policy that limit coverage to claims asserted only during the policy period are unenforceable. In view of its peculiar, absolute limitations on retroactive coverage, we construe the policy, despite its denomination, as one analogous to an "occurrence" policy. We therefore impute into the policy's provisions a right of prospective notification in order that the policy as construed by us, prove a scope of coverage commensurate with the reasonable expectations of the insured as to "occurrence" policy coverage." The Sparks Court left open the issue of the more sophisticated insured. Specifically, the Court found that there may be circumstances where a 'claims made' policy without retroactive coverage may be appropriate such as where the professional knew that he was offered a reduced rate for accepting a 'claims made' policy or that there was a change from an 'occurrence' to a 'claims made' policy. Located in Hackensack, New Jersey, Russo & Kieck is a full service law firm representing clients throughout Northern New Jersey in Paramus, Mahwah, Paterson, Midland Park, Rutherford, Glen Rock, Englewood, Fort Lee and other areas of Bergen, Passaic, Hudson and Essex counties in NJ as well as New York City. To schedule a consultation at our office located directly across from the Bergen County Courthouse, call 201-342-3100.    

The Standard For An Award of Attorney\'s Fees and Costs in ERISA Disability Cases

By: Donna Russo, Esq. In Hardt v. Reliance Standard Life Insurance Co, decided May 24, 2010, the United States Supreme Court ruled that the standard for awarding attorney's fees and costs in ERISA long term disability cases under Section 1132(1)(g) is "some degree of success on the merits" by either party. The Court found that Congress never used the words "prevailing party" in this statute and that a party does not have to establish that he/she prevailed in the litigation. Rather, the party is to make a finding of "some degree of success on the merits" and that this requirement is not satisfied by a "trivial success on the merits" or a" purely procedural victor[y]." The Supreme Court distinguished "prevailing party" and "success on the merits" by focusing on the factors to prove each. Under the "prevailing party" standard, the Court review five factors: "(1) the degree of the opposing parties' culpability or bad faith; (2) the ability of opposing parties to satisfy an award of attorney's fees; (3) whether an award of attorneys' fees against the opposing parties would deter other persons actions under similar circumstances; (4) whether the parties requesting attorneys' fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a significant legal question regarding ERISA itself; and (5) the relative merits of the parties' positions." In contrast, "some degree of success on the merits" does not require such an analysis. Rather, "some degree of success on the merits" is established whether court can fairly call the outcome of the litigation success on the merits without conducting a lengthy inquiry. The facts of Hardt illustrate this distinction. In Hardt, the insurance company initially denied the claimant's application for short term disability benefits. Claimant filed an administrative appeal and during the appeal process, the insurance company reversed itself and awarded claimant twenty four months of short term disability under the provision totally disabled to perform own occupation. Shortly before the expiration of the twenty four month period, the insurance company notified the claimant that it wanted a vocational therapy assessment to determine if claimant was disabled from working in any occupation. The vocational therapist assessment found that the claimant did not make the proper effort and refused certain tests because of pain. The insurance company then proceeded to have a physician review certain records without an examination. The physician did not review all the records. The physician found that claimant should improve. The insurance company terminated benefits. Claimant filed litigation in the District Court, Fourth Circuit. Both parties filed summary judgment motions. The court found that the insurance company failed to follow ERISA guidelines, the physician did not review all the records and that there was compelling evidence that the claimant was totally disabled due to her neuropathy. Reliance Standard then reversed its decision to terminate benefits and gave claimant the long term disability benefits. Claimant then sought attorney's fees and costs which were awarded by the District Court and reversed by the Fourth Circuit Court of Appeals because the remand order did not require Reliance to award benefits to Hardt and did not constitute an enforceable judgment on the merits and therefore Hardt was not the prevailing party. The U.S. Supreme Court reversed the Fourth Circuit Court of Appeals. The Supreme Court found that Hardt achieved "some success on the merits” and the at District Court properly exercised its discretion to award fees and costs. Russo & Kieck law firm in Hackensack, New Jersey provides long term disability legal assistance to clients in Teaneck, Paramus, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne, Secaucus, Newark, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties in Northern New Jersey. Contact us to schedule a consultation 201-342-3100.

Nursing Home Agreements and Arbitration Clauses

By: Donna Russo, Esq. Many nursing home agreements have clauses which attempt to limit the right to sue and the right to recover when a resident is injured due to negligent abuse and neglect. These clauses are commonly called an "arbitration clauses." Always read the agreements very carefully and do your best to strike out the arbitration clauses. If you are executing the agreement under a durable power of attorney, consult with an elder law practitioner about limiting your powers when signing these types of agreements. However, if you find that such an agreement was signed, not all is lost. First, if the nursing home only accepts New Jersey residents and uses New Jersey vendors, New Jersey has a statute, N.J.S.A. 30:13-8.1, which declares such arbitration void as against public policy. Most nursing homes are part of larger conglomerations which operate across state lines and use out of state vendors. Therefore, federal law will apply. In The Estate of Anna Ruszala v. Brookdale Living Communities, Inc., et. al. and Ida Azzaro v. Brookdale Living Communities et. als. (August 10, 2010), the Appellate Division ruled that the Federal Arbitration Act, which favors and allows arbitration, preempts the New Jersey statute. The next question is whether the arbitration clause is enforceable. In The Estate of Anna Ruszala v. Brookdale Living Communities, Inc., et. al. and Ida Azzaro v. Brookdale Living Communities et. als. (August 10, 2010), the Court found certain arbitration provisions to be unenforceable under the doctrine of substantive unconscionability. In this case, the resident suffered significant injuries at the facility and later died as a result. A lawsuit was filed alleging negligence and wrongful death against the nursing home. The Appellate Division made several findings regarding these types of nursing home residency agreements: Residency agreements are contracts of adhesion which is the first step in the analysis of whether a contract, or any specific terms therein, should be deemed unenforceable based on policy considerations;   The court looks to four factors: (a) the subject matter of the contract; (b) the parties’ relative bargaining positions; c) the degree of economic compulsion motivating the ‘adhering party; and (d) the public interests affected by the contract. The Appellate Division found that there are global characteristics that every potential nursing home resident shares: inability to continue to live in their homes due to ill health, advanced age, or both; and that the Legislature, in adopting the Nursing Home Responsibilities and Rights of Residents Act has identified nursing home residents as a vulnerable group of consumers, entitled to special protection against economic abuse, personal privacy abuse, the deprivation of their right to choose their own health care professionals, and an array of other abuses that speak to the core of human dignity; and the imbalance of resources that create relative inferiority in the bargaining position of nursing home residents. The Appellate Division focused on the public interests affected by the nursing home agreement. The Court concentrated on whether the effect of the arbitration clause provisions that significantly restrict discovery, limit compensatory damages and prohibit punitive damages shield the nursing home from compliance with the laws of the state. The Court found that the restrictions on discovery with limits on compensatory damages and outright prohibition of punitive damages form "an unconscionable wall of protection for nursing home operators seeking to escape the full measure of accountability for tortuous conduct that imperils a discrete group of vulnerable consumers." The Court held that these provisions in the arbitration clause of a residency agreement are void and unenforceable. The Court severed the offensive provisions from the rest of the agreement. The Court held that if the agreement was validly signed under a durable power of attorney that the case would not have a jury trial but must proceed by arbitration. However, if there is a question as to whether a valid contract was formed, the case would proceed to a trial for a resolution of this issue. If the trier of fact finds that a valid agreement was not formed then the case would proceed by a jury trial. Trust Russo & Kieck to represent you in your nursing home neglect or assisted living abuse case. Located in Hackensack, New Jersey, we offer attorney services to clients throughout Northern New Jersey in Bergen, Passaic, Hudson and Essex Counties including Midland Park, Rutherford, Englewood, Clifton, Saddle Brook, Park Ridge, Fort Lee, Ramsey and Paterson. Call us to schedule a consultation in our NJ office at 201-342-3100. 

Nursing Home Abuse: Profits Over People

By: Donna Russo, Esq. Why is there rampant abuse and neglect of residents in nursing homes? Basically, the residents can’t fend for themselves and many times, the facilities primary concern is profits and not resident care. In August 2011, the U.S. Government Accountability Office issued its report “Private Investment Homes Sometimes Differed from Others in Deficiencies, Staffing, and Financial Performance” (GAO-11-571).. This study was conducted because of the concern that the private investment firms acquisition of several large chains adversely affected that quality of care. Here are some of the report’s highlights: 1. Nursing Home Staffing - The report acknowledged that there are no federal minimum standards linking the number of nurses to the number of residents. Nursing homes that accept Medicare and Medicaid require sufficient staffing so as to allow the resident to maintain the highest practicable physical, mental, and psycho social well-being. Every nursing home must have 24 hour coverage of licensed nursing care (LPN or RN) including one RN on duty for at least 8 consecutive hours a day, 7 days per week. The study concluded that there is a trend in the last few years to increase the total nurse and licensed nurse staffing. For profit nursing homes generally have lower nurse staffing and RN ratios than nonprofit nursing homes. As to private investment homes, RN staffing declined and CNA staffing increased. 2. Deficiencies - Private investment homes had more total deficiencies than non profit homes but the deficiencies were more likely to have occurred prior the acquisition. During the same time period, private investment homes did not differ significantly from other for profit homes which have more deficiencies that nonprofit homes. 3. Costs of Care and Profitability - Medicare residents are more costly than medicaid residents because the care needs of medicaid residents are generally not as heavily dependent on the care of licensed nurses. Salaries and labor related costs for nursing and staffing are more than fifty percent of the total nursing home’s operating costs. Nursing homes that accept medicaid have the incentive to provide less costly care when a state’s medicaid payments are set at a fixed per diem amount. Medicare patients are more profitable and nursing homes may renovate or staff the facility to attract these patients. On average, for profit homes have a greater profit on their Medicare business than nonprofit homes. Facility costs (the costs associated with maintaining and operating a nursing home, such as staff salaries, administrative costs and capital related costs) increased for private investment homes. Facility margins (the amount of total facility revenues exceeding total facility costs, divided by total facility revenues) were higher for private investment homes than other for-profit and nonprofit homes. In the same time period, facility margins for nonprofit homes decreased. 4. Real Estate Ownership - Some private investment firms acquire both the operations and the real estate. If only the real estate is acquired, the private investment firms usually do not sit on the board of directors and do not take a role in providing the strategic direction of the nursing homes. The study found that real estate ownership did not affect the statistics on deficiencies. Facility costs per resident and capital-relate costs were lower when the private investment firm also owned the real estate. Real estate ownership did not affect the facility margins. Donna Russo is a Certified Civil Trial Attorney and partner of Russo & Kieck, 30 Hudson Street, Hackensack, NJ (201) 342-3100. She litigates nursing home/assisted living abuse and neglect cases for plaintiffs. Trust Russo & Kieck to represent you in your nursing home neglect or assisted living abuse case. Located in Hackensack, New Jersey, we offer attorney services to clients throughout Northern New Jersey in Bergen, Passaic, Hudson and Essex Counties including Midland Park, Rutherford, Englewood, Clifton, Saddle Brook, Park Ridge, Fort Lee, Ramsey and Paterson. Call us to schedule a consultation in our NJ office at 201-342-3100.  

Sidewalk Law

By: Donna Russo, Esq. Over the last 30 years, New Jersey courts have developed a body of caselaw which defines when a personal injury lawsuit can be pursued for a sidewalk injury. Basically, it is the use of the property abutting the sidewalk that defines whether a lawsuit for personal injuries can be filed when an accident occurs because of a defect in the sidewalk, an uneven sidewalk, ice and snow. In Richard Luchejko v. City of Hoboken, decided July 27, 2011, the New Jersey Supreme Court summarized sidewalk liability law and decided the new issue of whether a condominium association can be sued for personal injuries caused by a defect in an abutting sidewalk. The New Jersey Supreme Court ruled that there is not a cause of action for personal injuries sustained on a sidewalk abutting a condominium association because a condominium association is deemed to be residential and no liability can be imposed for negligence in failing to maintain residential sidewalks. The caselaw on sidewalks begins with Stewart v. 104 Wallace Street, Inc., 87 NJ 146 (1981) In Stewart, an injury was sustained by a pedestrian on a sidewalk abutting commercial property. The Court held that “...it would be fair for commercial landowners to be held responsible for maintaining abutting public sidewalks and be required to recompense innocent pedestrians injured as a result of negligent failure to do so. In Dupree v. City of Clifton, 175 NJ 449 (2003), the Supreme Court ruled that sidewalk liability does not extend to residential properties. Liability can be imposed on residential landowners only if through the owner’s negligence a new element of danger or hazard, other than one caused by natural forces, was added. Therefore, if a residential homeowner clears the snow from his sidewalk and a layer of ice subsequently develops, the residential landowner would not have liability because the ice was caused by natural forces. However, if a commercial sidewalk has a layer of ice, the commercial landowner would have liability because the law requires that there is duty to remove ice and snow from sidewalks abutting commercial properties. Mirza v. Filmore Corp., 92 NJ 390 (1983). Residential apartment buildings are commercial properties imposing on the landowner the duty to maintain the sidewalks. A nonprofit, private religious school is not residential property as no one resides in the school. In Brown v. Saint Venantius School., 111 NJ 325 (1988), the Supreme Court held that it is the use of the land abutting the sidewalk and not the nature of the organization that controls the imposition of liability. Suppose a residential sidewalk becomes deteriorated because the homeowner traverses the sidewalk with his motor vehicle when backing out of his driveway? The Appellate Division has ruled that the act of driving a sidewalk abutting a driveway is not a “direct use” and the homeowner does not have liability. Nash v. Lerner, 311 NJ Super 183 (App. Div. 1998). In explaining the rationale behind these decisions, the Luchejko Court explained: “Residential homeowners can safely rely on the fact that they will not be liable unless they create or exacerbate a dangerous sidewalk condition; commercial owners, defined in reference to their use of the property and its capacity to generate income, know that clearing their abutting sidewalks is a cost of doing business and the failure to do so can lead to liability.”   Let the professional attorneys of Russo & Kieck law firm assist you with your personal injury lawsuit. Located in Hackensack, New Jersey – directly across the street from the Bergen County Courthouse, we represent clients in Teaneck, Paramus, Mahwah, Paterson, Midland Park, Englewood, Glen Ridge, Clifton, Fort Lee, Ramsey, Rutherford and all areas of Bergen, Passaic, Hudson and Essex Counties in northern NJ. Call 201-342-3100 to schedule a consultation.

Long Term Disability Insurance - New 3rd Circuit Opinion

By: Donna Russo, Esq.       On August 4, 2011, the Third Circuit Court of Appeals reversed the opinion of the New Jersey United States District Court granting long term disability benefits and remanding the case for further review. Robert Funk v. Cigna Group Insurance, etc. (D.C. No. 2-08-cv-05208. The Policy       The policy provided that in order to be entitled to long term disability benefits in excess of one year, the claimant must be: incapable of performing the requirements of any job for any employer which the individual is qualified or may reasonably become qualified by training, education or experience, other than a job that pays less than 60 percent of the Eligible Employee’s Eligible Pay that would have been in effect on the day preceding the day that the Eligible Employee’s Short Term Disability Benefits ceased. Facts       Plaintiff’s work involved testing computer software and hardware. Plaintiff took a leave of absence due to depression and related disorders and received short term disability benefits for 26 weeks. Plaintiff submitted the treatment records from his psychiatrist and psychotherapist. Cigna awarded the plaintiff a one year period of long term disability benefits. After the year, the insurance company advised the plaintiff that it was reviewing the case to see if his benefits would continue and requested that plaintiff complete a disability questionnaire to provide current treatment information.      Plaintiff submitted the questionnaire listing complaints of bad tremors, lack of concentration, tiredness, short-term memory loss, aggression, depression, and paranoia as the reasons why he could not work. His therapist and psychiatrist opined that plaintiff was unable to return to work. Plaintiff also argued that the insurance company did not do a vocational assessment and did not consider the 60% income requirement.      This information was sent by the insurance company to a psychiatrist for review. The psychiatrist also spoke with plaintiff’s psychiatrist who suggested that plaintiff might be able to work in a menial job such as mopping floors or working in a post office at night. Also, records from a neuropsychologist who tested plaintiff were provided. These records indicated that plaintiff employed average to high function is most cognitive areas. The insurance company sent these records to a psychiatrist for an independent review. The psychiatrist found that plaintiff suffered from psychiatric symptoms but those symptoms were not severe nor did plaintiff show severe functional limitations in psychosocial domains. The insurance company denied the appeal. The District Court       Plaintiff filed suit in the United States District Court of New Jersey. The District Court held that the insurance company had acted arbitrarily and capriciously because its decision did not explicitly address salary or provide examples of suitable alternative 60% jobs and that the insurance company did not determine whether plaintiff was incapable of performing the requirements of any job for which he is qualified or may be reasonably become qualified other than a job that pays less than 60% of his former pay. The Court also found that the insurance company had a financial conflict of interest in administering the plan. The 3rd Circuit Appeal       The insurance company appealed to the 3rd Circuit Court of Appeals arguing that it had the authority to reasonably interpret the plan and it was reasonable to interpret the plan as not requiring an analysis of alternative 60% jobs when it had determined that plaintiff could return to his former job. The Third Circuit court held that the insurance company complied with the plan’s requirement when it determined that plaintiff could, without restrictions, perform his former job. However, the Court remanded the case to the District Court for a determination of whether there was a financial conflict of interest. The Counterclaim       The insurance company had also filed a counterclaim for reimbursement of the credit it was entitled to because of the social security disability benefits award which amounted to $6,000. Plaintiff argued that he should not be required to repay this amount because he no longer had the money. The Court of Appeals disagreed and entered an order for reimbursement.   Russo & Kieck has insurance law attorneys located in Hackensack, New Jersey representing clients in Paramus, Saddle River, Fort Lee, Paterson, Clifton, Rutherford, Glen Rock, Englewood, Mahwah, Midland Park, Rutherford, Wyckoff, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties. Schedule a consultation by contacting us at 201-342-3100.

Uninsured Motorist/Estate Cannot Sue For Injuries

New Jersey has the following statute: Any person who, at the time of an automobile accident resulting in injuries to that person, is required but fails to maintain medical expense benefits coverage mandated by N..J.S.A. 39: 6A-4 shall have no cause of action for recovery of economic or noneconomic loss sustained as a result of an accident while operating an uninsured automobile. N.J.S.A. 39: 6A-4.5 (a).       Therefore, an uninsured motorist may not pursue a lawsuit for personal injuries even if the automobile accident was not his fault. Caviglia v. Royal Tours of Am., 178 NJ 460 (2004).      On August 29, 2011, the New Jersey Supreme Court issued its opinion in Sheila Aronberg v. Tolbert, et. als, (A-0-10) (066414). In this case, Sheila Aronberg was the administratrix of her son’s estate. Her son had been killed as a result of the alleged negligence of another driver. A tractor trailer had careened into the rear of her son’s car. Ms. Aronberg wanted to bring suit under New Jersey’s Survivors Act, N..J.S.A. 2A: 15-3 and the Wrongful Death Act, N.J.S.A. 2A: 31-1 et. als.. The Survivor’s Act permits the estate to pursue a cause of action for injuries if the deceased would have had a cause of action had he lived. The Wrongful Death Statute permits the estate to sue for the economic losses resulting from a wrongful death.       Ms. Aronberg’s son was uninsured. Three weeks ago, his carrier cancelled his policy for failing to keep current on his premium payments. Ms. Aronberg filed a lawsuit alleging wrongful death and seeking survivor’s benefits. The trial court dismissed the survival claim but not the wrongful death claim. The trial court relied on Miller v. Estate of Sperling, 266 NJ 370 (2001) for the finding that the wrongful death claim belongs to the decedent’s beneficiaries. The Appellate Division in a split decision affirmed the trial court.       The NJ Supreme Court agreed that there could be no survival action. The Supreme Court reversed the Appellate Division ruling on the wrongful death action. The Supreme Court focused on the statutory language providing for an action for death of a person by a wrongful act “if death had not ensued” contained in the Wrongful Death Act. The Supreme Court held that since Mr. Aronberg’s son had survived, he would not be entitled to sue because he was uninsured, and the estate cannot file a wrongful death action. “The plain language of N.J.S.A. 39: 6A-4.5 (a) and N.J.S.A. 2A: 31-1, when read together and in harmony with each other, lead to the ineluctable result that Aronberg’s mother cannot proceed with an action based on wrongful death of her son because her son, based on his uninsured status, could not have maintained an action against the alleged tortfeasor.”   Let the professional attorneys of Russo & Kieck law firm assist you with your personal injury lawsuit. Located in Hackensack, New Jersey – directly across the street from the Bergen County Courthouse, we represent clients in Teaneck, Paramus, Mahwah, Paterson, Midland Park, Englewood, Glen Ridge, Clifton, Fort Lee, Ramsey, Rutherford and all areas of Bergen, Passaic, Hudson and Essex Counties in northern NJ. Call 201-342-3100 to schedule a consultation.

Employment Law: Cepa Claims Without Constructive Discharge

[2011-07-05] By: Donna Russo, Esq. On June 9, 2011, the NJ Supreme Court issued its opinion in Joseph A. Donelson v. DuPont Chambers Works (A-112-09). The issue decided by the Court was whether there is a requirement to plead and prove wrongful discharge in order to be entitled to recover economic losses associated. with back and front pay under the Conscientious Employee Protection Act, N.J.S.A. 34: 19-1 to 8. The Court ruled that an employee can pursue economic damages even though he was not constructively discharged. This lawsuit was contentious. Plaintiff contended that after he filed complaints with DuPont’s management about unsafe conditions, he was subjected to ongoing harassment. He was falsely accused of forging his time cards and falsely accused of taking improper readings and making fictitious entries. He received a negative performance review and was subject to constant verbal abuse. He was also accused of threatening other employees. DuPont’s employee-assistance counselor recommended that Plaintiff be placed on short-term disability with pay which resulted in considerable loss of overtime earnings. As a condition of reinstatement, Plaintiff was required to undergo examinations with three mental health professionals and undergo a fit-for-duty evaluation. Plaintiff was determined to be fit to return to work. The suspension lasted 53 days and left Plaintiff feeling worthless and beaten. Plaintiff was subject to continued harassment, false accusations and threats. Plaintiff was placed in a 12 hour isolated shift. Plaintiff suffered anxiety attacks and consulted a therapist. He took a 6 month leave of absence and then took a disability pension and did not return to work. Plaintiff filed a CEPA lawsuit against DuPont. DuPont argued that Plaintiff cannot seek damages for front and back pay because he had not pled constructive discharge and he was not terminated. The trial court disagreed with DuPont. The jury awarded the Plaintiff $724,000 for economic losses and $500,000 in punitive damages. DuPont appealed. The Appellate Division reversed and entered judgment in favor of DuPont ruling that Plaintiff could not prevail on a lost wage claim because he had not proven actual or constructive discharge. Since punitive damages could only be awarded if compensatory damages existed, the Appellate Division reversed the punitive damage award. Therefore, according to the Appellate Division, Plaintiff was not entitled to any recovery. The Supreme Court granted certiorari. The Court ruled that “... the possible retaliatory actions under CEPA is greater than discharge, suspension and demotion; it includes “other adverse employment action taken against an employee in the terms and conditions of employment...Cast in that light, an ‘adverse employment action’ is taken against an employee engaged in protected activity when an employer targets him for reprisals–making false accusations of misconduct, giving negative performance reviews, issuing an unwarranted suspension, and requiring pretextual mental-health evaluations–causing the employee to suffer a mental breakdown and rendering him unfit for continued employment.” The Supreme Court reinstated the jury award. Russo & Kieck law firm in Hackensack, New Jersey provides employment law assistance to clients in Teaneck, Paramus, Midland Park, Englewood, Fort Lee, Rutherford, Paterson, Clifton, Wayne, Secaucus, Newark, New York City and all areas of Bergen, Passaic, Hudson and Essex Counties in Northern New Jersey. Contact us to schedule a consultation 201-342-3100.  