I. Employment Law Issues.

CEPA Does Not Impose Personal Liability on a Co-Employee or Supervisor Who Engages in Retaliatory Conduct.

In an unpublished opinion, the New Jersey Superior Court, in Ecker v. Dana Transport Systems, Inc., 2006 WL 740468 (N.J. Super.L, 02-03-06), held that the Conscientious Employee Protection Act (CEPA) does not impose personal liability on a co-employee or supervisor who engages in retaliatory conduct. In reaching its decision, the court followed the reasoning of the New Jersey Supreme Court’s decision in Higgins v. Pascack Valley Hospital, 158 N.J. 404 (N.J. 1999).

In Ecker, Dana Transport Systems, Inc. was a transporter of petroleum fuels. In August 1997, plaintiff was hired as an operations manager by the defendant to assist the general manager, defendant, Michael E. Torrissi. Sometime in the Spring, 2001, Mr. Ecker phoned the DEP Hotline to report Dana Systems’ delivery of transmix, a gasoline-diesel fuel mix, rather than kerosene to Conectiv. Dana Systems and Mr. Torrissi were later indicted.

Up until December 2001, Mr. Ecker’s job performance was satisfactory. In February 2002, Mr. Ecker left on medical leave for surgery on a pre-existent shoulder injury. When he was ready to return he was told by Mr. Ronald Dana, the CEO of Dana Systems, that his position was eliminated.

Mr. Torrissi told Mr. Dana that “he was handling the business, and everybody shared the responsibilities and, therefore, Mr. Ecker’s job could be eliminated”. Prior to his firing, and following the plaintiff’s testimony to the grand jury, the plaintiff was referred by his co-employees as the “company rat”, was shunned, and Mr. Torrissi called the plaintiff “big ears” and “mouse ears”. Mr. Torrissi also instructed the plaintiff to stay in his office and have no contact with co-employees, and to fax nothing without his approval.

Based on the above facts, the court determined that there was no cause of action under CEPA against Mr. Torrissi. The CEPA claim was dismissed against the Mr. Torrissi, since CEPA does not impose “aiding and abetting” or personal liability on a co-employee or supervisor who engages in retaliatory conduct. The court further dismissed the wrongful-discharge claim against the supervisor, since once a CEPA claim is instituted, any rights or claims for retaliatory discharge based on contract, collective-bargaining agreement, or other State or common law are waived. Accordingly, in filing the CEPA claim, the court ruled that the wrongful claim was waived.

The court further dismissed the plaintiff’s defamation claim against the supervisor, because the essence of the claim was a hostile work environment claim, and not a defamation claim.

II.Insurance Coverage Issues

Homeowners Insurance Does Not Cover Intentional Occurrences.

In an unpublished decision, Catenacci v. Gonzalez, 2006 WL 709808 (App. Div. 03-10-06), the New Jersey Appellate Court held that actions which are clearly intentional are not covered by homeowners insurance. This case involved a plaintiff who was at a party at the home of third party defendants, the Anderoccis, who were in Florida at the time and knew nothing about the party. Plaintiff alleged that he attempted to come to the aid of the Anderoccis’ daughter when defendant, Gonzalez, assaulted her, and then punched the plaintiff in the face, causing a broken nose and chipped teeth. The court granted the Motion for Summary Judgment filed by the third party defendant, Allstate, concluding they owed no coverage to plaintiff, nor defendant, Gonzalez, under the homeowners policy issued to Gonzalez’ parents, as Gonzalez’ actions were clearly intentional and not an accidental occurrence, or in self defense. The court also granted summary judgment to the Anderoccis, concluding that they, as the owners of the home where the party took place, owed absolutely no duty to indemnify defendant Gonzalez, as they did not know him; did not know he was coming to their home; did not know about the party; and provided no alcohol.

III.General Liability Issues

In the State of New Jersey, more and more automobile cases continue to be reversed on appeal, once they were dismissed on a Motion for Summary Judgment, in matters involving verbal threshold cases. For example, in Lee v. Laffey, 2006 WL 770613 (N.J. Super. A.D. 03-28-06), the Appellate Division reversed the granting of a Motion for Summary Judgment in favor of defendants at the Law Division level (Trial level), which dismissed the plaintiff’s complaint for failure to meet the permanent injury verbal threshold requirement contained in N.J.S.A. 39:6A-8(a).

In the above case, the matter involved a motor vehicle accident which occurred on March 18, 2002. The plaintiff was initially seen as an outpatient, and then treated by two chiropractors. An MRI of the plaintiff’s neck disclosed disk herniations and disk bulges. He was later diagnosed with chronic left-sided C6-C7 radiculopathy. His physician’s opinion was that his injuries were permanent to nature.

The defendants moved for a Motion for Summary Judgment and the Motion for Summary Judgment was granted for the defendants, with the lower court ruling that a finding had to be made that the injuries sustained was not only permanent but serious, and the court found that, “by no means can it be said here that this plaintiff has sustained the type of serious injury contemplated by the Legislature so as to carry him across the verbal threshold”.

The Appellate Division reversed, stating, “In light of the Supreme Court decisions in DiProspero v. Penn, 183 N.J. 477 (2005), Serrano v. Serrano, 183 N.J. 508 (2005), and particularity Juarez v. J.A. Salerno, 185 N.J. 332 (2005), where the Court specifically disapproved of the “serious injury” standard, we reverse the grant of summary judgment”. Accordingly, the court ordered that the matter proceed to trial on the issue of whether or not the plaintiff sustained permanent injuries in the automobile accident, and met the verbal threshold standard in the State of New Jersey.