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Smith Stratton Attorneys at Law

Smith Stratton News


December, 2013

Bill McGrath was admitted to the New York bar in December. He is also admitted in New Jersey and the District of Columbia. Smith Stratton maintains an active litigation practice in New Jersey, New York and Pennsylvania, and more than half of the partners are admitted to practice in both New Jersey and New York. For more information, click here


November, 2013

We are pleased to announce that Gerry Wixted has been admitted to the New York bar. Gerry is also admitted in New Jersey and Pennsylvania. For more information, click here.


October, 2013

CLAIM OF PARENT AGAINST CHARITABLE INSTITUTION BARRED BY NEW JERSEY CHARITABLE IMMUNITY ACT WHERE PARENT OBTAINS A DERIVATIVE, PERSONAL BENEFIT FROM BENEFICIARY STATUS OF CHILD.

In its unreported opinion in Neumann v. Brick Township Soccer Association, decided October 7, 2013, the Appellate Division held that a claim of a parent/coach against a non-profit soccer association who was injured while practicing with her child's team was barred by the New Jersey Charitable Immunity Act because plaintiff was a "beneficiary to whatever degree" of the association. The court's holding proceeded in part from the direct personal benefit that the plaintiff/coach derived from her position with the soccer association. The court also ruled that plaintiff received a derivative personal benefit through her child's involvement, utilizing broad language which on its face extends beneficiary status to any parent whose child receives a benefit from a charitable institution.

In Neumann, plaintiff was an assistant coach on her daughter's youth soccer team who was injured while practicing with the team on a poorly lit, uneven field. The team was part of a local non-profit youth soccer association of which both plaintiff and her daughter were active members. Plaintiff acknowledged that she benefitted from her position by guaranteeing her daughter playing time as well as from the recreational exercise she received while practicing with the team.

While plaintiff benefitted from her own involvement, the court was careful to state that she also benefitted indirectly (but personally) through her daughter's participation on the team. As the court explained, "parents are obligated to maintain a basic level of moral care and education for their child." As the participation of her daughter on the soccer association's team furthered the discharge of these parental obligations, plaintiff benefitted from her daughter's involvement.

Neumann constitutes support for the sweeping proposition that a parent is a beneficiary within the meaning of N.J.S.A. 2A:53A-7 whenever a parent's child benefits from an organization's charitable works. As such, the Appellate Division's opinion is consistent with the Act's stated purpose of being "liberally construed so as to afford immunity" to New Jersey's charitable institutions.

For more information on Neumann and New Jersey's charitable immunity, contact Peter Freed.


April, 2013

Smith Stratton partners collaborate on Resource Guide

Smith Stratton partners Christine Nici and Bill McGrath recently collaborated with Munich Reinsurance America, Inc. on the Third Edition of the Construction Defect Resource Guide, a 50 state survey of case law and statutes that impact claims and insurance coverage for construction defect claims. For more information on the survey or Smith Stratton's practice in construction defect claims, contact Christine Nici or Bill McGrath.

Download a PDF of the Construction Defect Resource Guide


March, 2013

Smith Stratton lawyers recognized in the 2013 New Jersey Super Lawyers Magazine

Smith Stratton announces that Bill McGrath and Bill Quackenboss have been recognized in the 2013 edition of New Jersey Super Lawyers Magazine. Bill McGrath was selected for an eighth consecutive year as a New Jersey Super Lawyer for 2013 for his practice in insurance coverage law. Bill Quackenboss was named to the 2013 Rising Stars list in the field of insurance coverage law.

New Jersey Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement, published in New Jersey Monthly and in New Jersey Super Lawyers Magazine. New Jersey Super Lawyers are selected based on a peer-review survey mailed to more than 32,000 attorneys throughout the state, a blue-ribbon panel review process, and independent research on each candidate. The Rising Stars list recognizes up and coming legal talent. Polling, research and selection are performed by Law & Politics, a publication of Key Professional Media, Inc.

For more information contact Bill McGrath or Bill Quackenboss


Client Alert
February, 2013

Appellate Division Rules That Discredited Testimony Of A Party Is Not Sufficient To Defeat Motion For Summary Judgment

The ramifications of the reformulation of New Jersey's standard governing motions for summary judgment continue to emerge. In a reported opinion released on February 14, 2013, Alfano v. Schaud, ____ N.J. Super. ___ (App. Div. 2013), the Appellate Division confronted the issue of whether testimony by a party that is blatantly contradicted by the record is nevertheless sufficient to create a genuine issue of material fact so as to defeat a motion for summary judgment under the 1984 reformulated standard.

Plaintiff's claim in Alfano concerned alleged violations of the New Jersey Civil Rights Act. Plaintiff Frank Alfano was a county employee who became involved in an encounter with Patrolman Pierce Schaud, a local police officer, after Schaud responded to a report of a parked vehicle that was creating a hazard to other motorists. Plaintiff had illegally parked the county-owned vehicle while making a delivery to the local municipal building. Alfano alleged that the encounter lasted about 40 minutes during which Schaud made political threats, while defendant recalled that the duration of the encounter was 10 to 15 minutes and did not include any improper exchanges. Significantly, an authenticated, real-time audio recording and a transcript of police dispatch marked the duration of the encounter at 9 minutes and otherwise corroborated Schaud's testimony and completely refuted the testimony of plaintiff.

In affirming the trial court's order entering summary judgment in favor of defendant, the Appellate Division held that plaintiff's testimony was so thoroughly contradicted by the audio recording and transcript that no reasonable jury could believe it. As such, the discredited testimony did not create a genuine issue of material fact sufficient to defeat defendant's motion for summary judgment.

The Appellate Division's opinion in Alfano v. Schaud encourages parties to consider moving for summary judgment in any scenario where one party's testimony may be so discredited by objective evidence as to be unworthy of consideration.

For more information on the court's opinion in Alfano v. Schaud, contact Peter Freed.


Smith Stratton retained for NFL Coverage Concussion Litigation

Smith Stratton has been retained to represent an excess insurer in coverage litigation involving the National Football League's claims for insurance coverage for concussion lawsuits filed by more than 3,000 former NFL players. The claims are pending in two related cases in the Supreme Court of New York (Manhattan), as well as in a third suit in California.

For more information on this or other insurance coverage claims, contact Bill McGrath.


Appellate Division Reaffirms Requirement That Expert Witness Must Have Sufficient Expertise In All Areas Of Intended Testimony

September, 2012

The New Jersey Appellate Division's recent reported opinion in State v. Locascio, 425 N.J. Super. 474 (App. Div. 2012) serves as a case study for attorneys and their clients who are tempted to utilize a single expert witness to offer opinion testimony on multiple issues that cross several fields of expertise. In such situations, the expert must demonstrate sufficient expertise in each area of intended testimony and testimony will not be permitted in any area where such expertise is absent.

Locascio involved the trial of a one car vehicular homicide charge. The occupants of the car - defendant and her boyfriend - were both thrown from the car when it struck a tree. Defendant denied that she had been the driver of the car and instead testified that she had been the front seat passenger. The State's primary expert witness at trial was the County Medical Examiner, who was permitted by the trial court to offer his opinion on both 1) the physical forces that caused the death of decedent, and 2) the movements of the occupants of the vehicle on impact and the identity of the driver. On defendant's appeal following her conviction, the Appellate Division reversed and ordered a new trial, holding that the medical examiner did not hold sufficient expertise in the areas of accident reconstruction or biomechanics to offer opinion testimony on the related issues of the movement of the occupants of the vehicle and the identity of its driver.

State v. Locascio reaffirms the principle that the testimony of any expert in any matter is strictly limited to the scope of the expert's qualifications. For more information on this subject, contact Peter Freed.


New Jersey Charitable Institutions Do Not Owe Non-Delegable Duty To Protect Beneficiaries From Harm Caused By Intentional Acts Of Employees

March, 2012

In an important ruling for New Jersey private educational institutions, the New Jersey Supreme Court determined in an opinion released on February 29, 2012 in the matter of Davis v. Devereux Foundation, 209 N.J. 269 (2012) that a non-profit charitable institution with in loco parentis responsibilities to its beneficiaries does not owe a non-delegable duty to protect these individuals from harm caused by the intentional acts of its employees. The existence of such a non-delegable duty would have rendered an institution vicariously liable for such harm. Instead, the Court ruled that subject to the limitations on liability otherwise afforded by the New Jersey Charitable Immunity Act, a charitable institution may only be liable for harm caused by the intentional acts of its employees upon a finding of a breach of its own duty of due care.

For more information on Davis v. Devereux Foundation, contact Peter Freed.


In New York, Insurers With Any Basis to Disclaim Must Do So Promptly

January, 2012

In a dramatic shift, the First Department has ruled that a liability insurer which delayed issuing a disclaimer for some four months while investigating other coverage issues, had waived its right to do so.  The January 17, 2012 ruling in George Campbell Painting v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, expressly overruled a 2004 First Department case that approved a delay in disclaiming in order for the insurer to conduct “a prompt, reasonable investigation into other possible grounds for disclaimer.”  DiGuglielmo v. Travelers Prop. Cas. The First Department’s ruling adopts the reasoning of a 2001 Second Department decision and also conforms to § 3420(d) of the New York Insurance Law.

The insurer in Campbell Painting was aware of facts that supported a late notice defense at least as early as January of 2006, but waited until May to notify its insured of the disclaimer. The insurer claimed its delay was reasonable since it was conducting an investigation into other coverage issues. The court, however, focused on the requirement of the N.Y. Insurance Law which requires an insurer to disclaim “as soon as reasonably possible.” This language clearly requires an insurer with any basis to disclaim to do so as soon as possible or risk waiving its coverage defenses.

For more information on George Campbell Painting v. National Union, contact Bill McGrath.

Bill Quackenboss Selected As Member Of North Hanover Township Committee

January, 2012

William E. Quackenboss, Jr. was selected to fill a vacant seat on the North Hanover Township Committee  during the Committee’s meeting on January 19, 2012.

The Township Committee is the governing body of North Hanover Township, and consists of five members.  North Hanover Township was incorporated in 1905 and is located in Burlington County, New Jersey.

Mr. Quackenboss is of counsel to Smith Stratton Wise Heher & Brennan.

 

 

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