The Fall/Winter 2016 NPD Newsletter is Here!

Attorney Paul Jenkins Joins Nehmad Perillo & Davis, PC

Paul Jenkins recently joined Nehmad Perillo & Davis as of counsel.  Paul has practiced commercial litigation for over 20 years, successfully trying cases to verdict as both first and second chair in state and federal courts.  He represents clients in a variety of complex matters ranging from trade secret litigation, real estate and construction disputes, products liability, catastrophic injury cases, and close corporation shareholder disputes.  Before joining the firm, Paul was a partner with a large multi-disciplinary law firm in South Jersey, where he practiced for 10 years.  

 

Appellate Division Clarifies “Time of Application” Rule

In a published opinion from the Appellate Division released on July 27, 2016, NPD partner Steve Nehmad obtained a victory for Wawa that set a new, binding precedent in the land use law field.

In JAI SAI RAM, LLC v. Planning/Zoning Board of the Borough of South Toms River and Wawa, Inc., the Appellate Division held in a published opinion that if an applicant before a land use board obtains a  use variance, an objector files suit challenging the grant of the variance, and the local governing body thereafter amends the zoning ordinance to eliminate the need for the use variance, then the "time of application" rule set forth at N.J.S.A. 40:55D-10.5 of the Municipal Land Use Law does not apply.  The "time of application" rule states that the land use ordinances in effect at the time an applicant files an application before a land use board govern the application.  However, this case holds that if an ordinance is after an application has been filed and after an objector files suit challenging the grant of the variance, then the applicant can reap the benefit of the ordinance amendment to eliminate the need for a use variance.  The applicant does not need to file a new application after the amendment of the ordinance in order to reap its benefit.

This case has major implications for many contested land use cases in New Jersey where a competitor/objector files an appeal of a land use board's decision granting a variance and the local governing body thereafter amends its ordinance to eliminate the need for the variance. 

For more information, contact Michael R. Peacock, Esquire at (609) 927-1177.

 

Supreme Court Favors Coverage in “Business Risk” Exclusion Dispute

In Cypress Point Condominium Ass'n, Inc. v. Adria Towers, L.L.C., 118 A.3d 1080, 2016 WL 4131662  (August 4, 2016),  the New Jersey Supreme Court, for the first time, addressed questions of insurance coverage for consequential damages caused by faulty workmanship under the modern standard form comprehensive general liability (CGL) policies.  Residents of a new condominium complex experienced significant water intrusion issues.  The condominium association brought an action against the developer on the project as well as the subcontractor whose work allegedly caused the water intrusion issues.  The developer’s CGL carrier disclaimed liability coverage under the business risk exclusion, arguing that: (1) damage to any portion of the completed project is the normal, predictable risk of doing business; and (2) such damage resulted from a foreseeable breach of contract, as opposed to a covered “occurrence” under the policy.  In rejecting the carrier’s arguments, the Court held that consequential water damage to the completed and non-defective portions of the condominium complex constituted an “accident” and thus an “occurrence” under the policy.  The Court also held that the business risk exclusion did not apply because the cause of the damage was the faulty workmanship of a subcontractor, as opposed to faulty workmanship of the named insured developer.  The Court’s ruling was substantially based on 1986 modifications to ISO standard form CGL policies, whereas the insurance carrier relied on case law interpreting older ISO standard form policies.  

For questions on this or any other insurance related matters, please contact attorney Paul F. Jenkins at (609) 927-1177.

 

Estate Disputes – One Pitfall to Avoid

As the average age of death continues to rise, there are increasing numbers of individuals who have reached their advanced years with medical issues and then engage in either making or changing Wills for the first time. These situations can lead to disputes and litigation, which can be avoided by some common sense approaches.  The dispute will generally arise when a change is made in a Will by an elderly or infirm individual that does not treat the children equally, or perhaps disinherits a child. During the litigation process it is then revealed that the Will appointment was made by one of the children, who then accompanied the testator to the lawyer’s office, without the other child or children knowing. The perception of undue influence by that child upon the testator is thus created. In these types of situations, it is prudent, and the testator should not resist, that the lawyer make an independent inquiry of the testator’s physician for an opinion concerning the testator’s mental competency. This can be accomplished simply by the lawyer preparing a written statement for the physician’s review and signature.  It is also prudent for the lawyer to insist meeting with the testator alone so that the lawyer is satisfied that the testator’s actions are not subject to any duress or undue influence. Although no one can guarantee that a disgruntled family member will not challenge a Will, these two actions can significantly decrease the chances of a prolonged contest over the testator’s Will.

Contact Anthony M. Bongiovanni at (609) 927-1177 for all of your estate planning questions and needs.

 

Your “Private” Social Medial Accounts Will Likely Follow You Into the Courthouse

Whether you are a litigant, a witness or a potential juror, your social media accounts are subject to scrutiny on many levels.  Even if your settings on sites like Facebook are “private”, courts are allowing disclosure of posts, photos and other information from your so-called “private” accounts.  As one court recently noted, “Because information that an individual shares through social networking websites like Facebook may be copied and disseminated by another, the expectation that such information is private, in the traditional sense of the word, is not a reasonable one.”  Nucci v. Target Corp., Case No. 4D14-138 (4th Dist. Ct. App. Fla).   In addition, the American Bar Association’s Formal Opinion 466 provides that “a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial . . .” Federal courts have also addressed the admissibility of social media posts and chats, holding the content may be admissible so long as the posts can be authenticated.  United States v. Browne, Case No. 3-13-cr-00037-001 (Aug. 25, 2016).  So be aware that if people are looking at your social media accounts on Facebook, Twitter and Instagram it may become public in a future court proceeding.

For more information, contact attorney Raymond J. Went at (609) 927-1177.