I. Firm News.Tom Paschos will be a presenter in two upcoming continuing legal education seminars, sponsored by the National Business Institute. These seminars are as follows:
II.Condominum/Insurance Law Issues
Unit Owner’s' Deck that had a Support Structure that Benefited More than One Unit Owner, is a Common Element.
In Alexander v. National Fire Ins. of Hartford, 2006 WL 1914320 (3d. Cir. Pa. July 13, 2006), condominium unit owners filed a complaint seeking declaration that insurer's policy issued to the Condominium Association covered claims incurred when a second-story exterior wooden deck attached to one of the Association's units collapsed and caused injuries to a number of people who were on the deck. The United States District Court for the Eastern District of Pennsylvania granted summary judgments based on determinations that the owners' liability was covered by the policy and that condominium unit, and homeowners and umbrella insurance policies were excess, and Condominium Association’s insurer appealed.
The Third Circuit Court of Appeals, held that while surface of condominium unit owners' deck was a limited common element reserved for the owners' exclusive use, the entire deck support structure benefited more than one unit owner and was, therefore, a common element under the New Jersey law, and consequently was subject to the liability coverage provided to the unit owners as additional insureds under the Condominium Association's policy, which insured a unit owner with respect to liability arising out of the ownership, maintenance or repair of that portion of the premises not reserved for that unit owner's exclusive use or occupancy. The Court considered the master deed as a whole, noting there was no indication that unit owners' easement extended beyond the use of the surface of the deck and there was a history in the Condominium Association of regarding the support structure as a common element, the maintenance of which was a common expense. The Court of Appeals further held that the Association’s insurer was the sole primary insurer of the incident, and that the unit owners' policies were excess.
III.Employment Law Issues
Shareholder-Director of Corporation Not an Employee Under the Conscientious Employee Protection Act (CEPA).
In Feldman v. Hunterdon Radiological Assoc., 2006 WL 1851111 (N.J. July 5, 2006), plaintiff, Dr. Feldman, who was a shareholder and Director of Physician’s Association at Hunterdon Radiological Associates (HRA) brought suit against the association alleging violations of the Conscientious Employee Protection Act (CEPA). Plaintiff contended that HRA constructively discharged her as a result of her attempt to remedy what she viewed as incompetence of a fellow shareholder radiologist in reading patient’s x-rays. HRA moved for summary judgment on the ground that Feldman was not an “employee” entitled to the protections of CEPA.
The New Jersey Supreme Court stated, that “for CEPA purposes, it is not a shareholder-director’s title or ownership interest that determines employee status. Rather, the inquiry is fact-intensive, focusing on the professional association’s direction and control over the shareholder-director and the true power and vulnerability of the shareholder-director within the association.” In this case, Feldman possessed an equal vote and voice in all matters, and her inability to persuade her fellow director-shareholders did not somehow transform her relationship to the group to one employee/employer. The Court held that “…[c]onsidering the power and influence exerted by plaintiff, no reasonable fact-finder could conclude that plaintiff was an ‘employee’ or a member of the vulnerable of persons the CEPA statute was designed to protect.”
Employer Not Liable for Employees Alleged Harassment and Discrimination Against Another Employee Where Employer Maintained Effective Anti-Harassment Policies and Was Not Negligent in Conducting Immediate and Effective Investigation.
In an unpublished opinion, Steen v. Monzo, 2006 WL 1932928 (N.J. Super. July 14, 2006), plaintiff, Sondra Steen, filed suit against defendants, her employer, Resorts International Hotel & Casino, Inc., (Resorts) and her immediate supervisor, David Monzo, alleging violations of the New Jersey Law Against Discrimination (LAD), based on a hostile work environment arising from gender-based sexual harassment and sexual discrimination by Monzo towards her.
The appellate court affirmed the dismissal of plaintiff's complaint against both defendants. The court held that because Resorts proved it was entitled to "safe harbor" from liability as a result of having maintained effective anti-harassment policies and complaint procedures it was not liable. Further, the court held that Resorts was not vicariously liable for Monzo's actions toward plaintiff pursuant to an agency theory of liability because it was not negligent, in that before plaintiff's complaint was filed it had the appropriate policies and training in place and after plaintiff’s complaint was filed it conducted an immediate and effective investigation.Finally, the court held that summary judgment was correctly granted in favor of Monzo, because (1) he was not an "employer" as defined by the LAD, and (2) no claim of aiding and abetting liability had been asserted in the pleadings.
Copies of the full text of any of the cases discussed in this Newsletter may be
obtained by calling our office. The articles contained in this Newsletter