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Facebook postings result in dismissal of FMLA claim.

SteveK — Tue, 09 Apr 2013 17:06:25 +0000

In Lineberry v. Richards, a recent decision of a federal court in Michigan, an employee suffered the consequences of today’s world in which posting pictures of oneself on Facebook is done in an instant, and therefore, can be posted without much thought. By way of background, plaintiff was a Registered Nurse employed by Detroit Medical Center (“DMC”). In February 2011, DMC granted Plaintiff’s request for leave from work for three months pursuant to the Family and Medical Leave Act (“FMLA”) after plaintiff experienced pain in her lower back and leg from performing her work duties. While on FMLA leave, plaintiff went on a pre-planned vacation to Mexico approved by her doctor who found that the trip was not as demanding as her job and that it would not hinder her recovery. While on vacation, plaintiff posted various pictures on Facebook showing herself riding in a motorboat, lying on her side while holding up two bottles of beer in one hand, holding her grandchildren while standing, making trips to Home Depot, etc. Plaintiff’s coworkers saw these pictures on Facebook as they had access to plaintiff’s Facebook page, and thereafter, complained to upper management believing this was a misuse of plaintiff’s FMLA leave. Through email, plaintiff’s supervisor then questioned plaintiff about her vacation to which plaintiff responded that she had to use a wheelchair in the airports because she could only stand for a short period of time. After being cleared to return to work, DMC brought plaintiff in for an investigative meeting in accordance with company policy when an employee could face termination because they perceived plaintiff to have misused her FMLA leave. At this meeting, plaintiff admitted she lied and that she had never used a wheelchair on vacation. Shortly thereafter, plaintiff was terminated for violating the company’s dishonesty policy. Subsequently, plaintiff sued DMC and certain management representatives, claiming interference with her FMLA rights and retaliation for taking FMLA leave. Unfortunately for plaintiff, the court disagreed and dismissed her complaint with prejudice upon granting defendants’ motion for summary judgment. The Court found that plaintiff’s termination was not based on her FMLA leave, but rather was based on plaintiff’s lying to her employer in violation of their policy against dishonesty. FMLA requires an employer to restore an employee to their position upon return from leave; however, if an employer can show a lawful reason, i.e., a reason unrelated to an employee’s exercise of FMLA rights, for not restoring an employee to their position upon return from leave, the employer’s actions will not be in violation of the FMLA. That is exactly what occurred here. The Court explained that the FMLA does not afford an employee greater rights than he/she would have if not on FMLA leave, and therefore, because DMC could terminate any employee for dishonesty whether or not on FMLA leave, plaintiff’s termination was not in violation of the FMLA. Alternatively, the Court held that DMC also prevailed under the “honest belief” doctrine, which applies where an employer honestly believes, based on particularized facts, that an employee lied and misused FMLA leave and disciplines/terminates such employee based on such belief. Here, the Court found that DMC honestly believed, based on plaintiff’s Facebook pictures along with her admission to lying about needing a wheelchair as it related to her FMLA restrictions, that plaintiff lied and misused her FMLA leave, and therefore, there was reasonable basis for DMC to terminate her employment. Let Ms. Lineberry’s termination serve as a warning to other Facebook users: be careful what you post.
DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

The information contained in this blog is intended solely for informational purposes; it is a advertising publication of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum P.C.This publication is intended to alert recipients of developments in the law and is not intended to provide legal counsel, advice or opinion on any specific facts or circumstances. The contents are intended as general information only. You are urged to consult a member of this firm or your own attorney concerning your particular situation and any specific legal questions you might have.

NJ App. Div. Upholds NJDEP Power to Waive Applicability of Rules

SteveK — Fri, 05 Apr 2013 14:53:38 +0000

The Appellate Division recently handed down its decision in In re N.J.A.C. 7:1B-1.1, et seq., a case upholding the validity of certain rules promulgated by NJDEP which permit it under limited circumstances to waive the applicability of its own rules as to particular scenarios. Further, the court invalidated certain forms and FAQs on the NJDEP website which purported to “fill in the gaps” in the aforementioned regulations on the basis that they constituted “de-facto rulemaking” in violation of the Administrative Procedures Act.

In response to Executive Order No. 2 (“EO2”), which mandated that State agencies adopt waiver rules “to ensure that regulations shall be efficient, consistent . . . , accessible and transparent to all interested parties,” the DEP adopted regulations entitled “Waiver of Department Rules,” designated at N.J.A.C. 7:1B-1.1 to -2.4. Thereafter, a group of environmental and labor organizations filed suit challenging this promulgation, arguing that the rules exceed DEP’s legislated authority and in any event are facially invalid due to the lack of adequate standards to guide the agency’s discretion and implementation. They further challenged DEP’s guidance documents and other postings on its website created exclusively for the waiver rules after their adoption on the basis that they constituted de facto rulemaking in violation of the APA.

The challenged rules purported to “set forth the limited circumstances in which the [DEP] may, in its discretion, waive the strict compliance with any of its rules
in a manner consistent with the core missions of the Department . . . .” N.J.A.C. 7:1B-1.1. To be successful in its application, it must comply with one of four threshold requirements: (1) “[c]onflicting rules”; (2) “strict compliance with the rule would be unduly burdensome”; (3) “net environmental benefit”; or (4) “public emergency,” as these terms are defined in N.J.A.C. 7:1B-1.2.

Next, the applicant must demonstrate that its waiver request does not fall within certain prohibitions expressed within the rules, largely pertaining to federal and state preemption, and various high-priority regulatory issues. Further, no waiver may be granted that would conflict with any of DEP’s “core missions . . . to maintain, protect, and enhance New Jersey’s natural resources and to protect the public health, safety, and welfare, and the environment.”

Third, the application must satisfy various specific evaluation criteria, which will be considered with respect to any prospective waiver. These criteria include (1) sufficient notice to the public; (2) sufficient information having been provided to DEP to support the waiver; (3) circumstances support the need for a waiver; (4) whether the applicant caused or contributed to the circumstances that resulted in the rule being unduly burdensome; (5) net environmental benefit; (6) consistency with core missions of the DEP; and (7) the existence of a public emergency. N.J.A.C. 7:1B-2.2.

After these rules were adopted, the DEP posted a waiver rule “homepage” on its
website which included links to subpages providing additional and specific
information concerning waiver rule prohibitions, waiver rule guidance, public
notice requirements, FAQs and DEP contact information. These pages also linked to information in a July 2012 “Guidance Document For Requests Pursuant to N.J.A.C. 7:1B” that provided specific instructions to waiver applicants, including what they should “consider,” and what statements, reports, demonstrations, or other evidence they needed to submit prior to DEP’s review and evaluation.

The appellants contended that these waiver rules are ultra vires because, although the Legislature has expressly authorized specific statutory exemptions in limited, “program specific” instances, there is no comprehensive legislative
scheme allowing for a broad, single-set relaxation rule of universal application. DEP countered that such authority is implied in various enabling laws the agency has been mandated to execute and is incidental to the extensive regulatory powers vested in the agency by those laws. Further, it was the DEP’s position that “[w]here the Department has the authority to promulgate rules, it also has the authority to modify or waive those rules, provided that the modification or waiver does not violate a statutory requirement or purpose.”

The court ultimately held that:

although specific enabling statutes direct DEP to promulgate rules for the regulatory program created therein, there can be no question, given the overall legislative scheme, that DEP is empowered to adopt regulations more ‘universal’ in nature and of more general applicability to deal comprehensively, in a single set of rules, with the sheer scope of overlapping statutory programs the agency must administer as well as with the volume of interconnected activities the Commissioner must coordinate amongst the agency’s various divisions.

Notably, however, the court was clear that

[t]he power to waive administrative rules may be used solely to deal with the unusual circumstances of an individual regulated party. It may not be invoked to implement wholesale changes in administrative rules, as applied to a large segment of regulated parties, which circumvent the rule-making requirements of the APA.

Accordingly, it is clear that “the power to promulgate a regulation implies the incidental authority to suspend or waive its application in certain limited, well-defined circumstances provided such exemption does not circumvent any legislative enactment or purpose, or federal law, is inconsistent with the agency’s statutory core mission and objectives, is accomplished through a properly adopted regulation pursuant to the APA, and establishes appropriate and clear standards for the exercise of agency discretion.”

With respect to the contents of the DEP’s waiver rule “homepage” on its website, however, the court held that this constituted an improper de facto rulemaking in violation of the APA. These postings were described as “collectively detail[ing] DEP’s plans to develop internal processes and procedures to ensure consistency in its waiver decision-making, to create a priority system for its consideration of waiver requests, to expand transparency in noticing the receipt of applications for waivers, and to develop standardized submission forms.” According to the court, these postings “go beyond merely facilitating administrative implementation of the rules,” and in fact to a certain extent “announce new substantive requirements.” These postings did more than implement the waiver rules – they actually “establish[ed] the rules of the game.” Because they were “integral, substantive components of the waiver
rules,” they were subject to the procedures required under the APA.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in environmental and defense of toxic exposure matters. For additional information about the matters in this bulletin or in the firm’s environmental practice, please contactSteven A. Kunzman, Esq. who heads our Environmental and Latent Injury Litigation Department.

USEPA issues New Boiler MACT Regulations

SteveK — Fri, 05 Apr 2013 14:39:51 +0000

On December 21, 2012, the EPA issued a final set of rules under its Boiler Maximum Achievable Control Technology program (referred to as “Boiler MACT”). These rules set emissions standards and impose maintenance and reporting requirements on the operators of an estimated 200,000 boilers and process heaters nationwide.
While the EPA states that its final rule “dramatically cuts the cost of
implementation” compared to earlier proposed versions of the rule while
affecting a minimal number of boilers and process heaters,
critics complain that the costs of compliance

Though the new rules set forth a variety of standards for boilers and process heaters, the most significant impact will be on those units fueled by biomass, coal or oil. Rigorous emissions standards for suspended metals, carbon monoxide and hydrogen chloride have been put into place for these units, as well as requirements for regular tune-ups, depending on the total output of the unit. Some facilities will further require a one-time energy assessment in order to identify cost-effective efficiency improvements. Under this regulatory regime, boilers constructed after June 4, 2010 must be in immediate compliance while older boilers will be given a three-year grace period to conform to the new standards.

The affected boilers and process heaters are separated into two categories. Under the Clean Air Act (“CAA”), a “source” is another name for a stack, vent or opening that releases a pollutant – in this case, each boiler is considered a “source.” Pursuant to the Boiler MACT regulations, a “major source” is defined as a source which puts out ten tons per year of any one hazardous pollutant, or 25 tons per year of all hazardous air pollutants combined, whereas “area source” refers to all units that emit less than this amount.
The regulations identify 19 subcategories of boilers and heaters based
on unit design and fuel type, with each subcategory being subjected to a
different set of emissions standards.

For all major source units regardless of fuel type, as well as larger area source
units (10,000,000+ btu per hour) which are fueled by coal, oil or biomass, a
one-time energy assessment is required. This assessment is to include a visual inspection of the structural elements of the unit and the facility in which it is installed, a review of facility and unit operation and maintenance procedures, review of fuel usage, an inventory of major energy consuming systems and energy management practices. Based on this assessment, recommendations for improvements in energy conservation and efficiency will be issued, including the cost of necessary improvements.

Tune-ups are required for most major source units, as well as those at area sources burning coal, oil or biomass. The frequency of the required maintenance depends on the specific fuel type and unit design. These tune-ups require inspection of the burner and flame pattern, calibrating the systems controlling air/fuel ratio, and optimization of carbon monoxide emissions.

To learn more, visit www.epa.gov/airtoxics/boiler/boilerpg.html.

NJ App. Div. addresses exemption under the Highlands Act for grandfathered approvals.

SteveK — Tue, 12 Mar 2013 17:55:20 +0000

In a recent decision, Intellect Real Estate Development v. NJDEP, the Appellate Division addressed a provision of the Highlands Water Protection and Planning Act which provides an exemption for permits gaining certain approvals before a specified date.
Intellect Real Estate Development (“Intellect”) is the purchaser and prospective developer of a plot of land in Bloomingdale, New Jersey. The nature of the intended development required Intellect to submit applications to both DEP and the Bloomingdale Board of Adjustment. After some disputes between the Board and the municipal council, the proposed development was reduced from an eight-lot subdivision to only five lots, which was approved, but the approval was “expressly subject to and conditioned upon approval . . . by the Highlands Council.”
Simultaneously, Intellect sought DEP approval for its proposed development project. After several submissions which DEP denied, new stormwater management regulations were enacted resulting in Intellect’s water quality calculations no longer being in conformance. After Intellect submitted revisions, DEP stated that these new submissions “[met] storm water rules” and were ready for approval, pending certain other formal requirements being met. At this point, Intellect went ahead with some site preparation on the property, drilling a well and constructing an access road.
On August 10, 2004, the Highlands Water Protection and Planning Act (the “Act”) went into effect. Shortly thereafter, DEP sent Intellect a letter explaining that, based upon its preliminary review, the new law would affect the pending application. Intellect was given two options: either resubmit the application “in accordance with the environmental standards contained in the new law,” or submit written documentation that “the proposed activity is exempt under the new law.” Intellect notified DEP that it would not withdraw its application, and DEP later informed Intellect that its application was cancelled.
The matter was brought before an ALJ, who determined that “the Legislature intended that to be exempt from the [Act], major Highlands developments . . . must have received certain municipal approvals prior to March 29, 2004, regardless of what DEP approvals were applicable to the development,” and so “[Intellect’s] development is not exempt from the regulations imposed by” the Act. The Commissioner of the DEP adopted the ALJ’s decision, and this appeal followed.
On appeal, Intellect argued for a construction of the Act by which Intellect would be eligible for an exemption on account of its timely-filed FWP application, which “should have been approved” before March 29, 2004, the date used in the Act to accord “grandfathered” status. DEP, on the other hand, argued that such an exemption was not appropriate because Intellect failed to obtain municipal approvals by the relevant date, and accordingly it was irrelevant whether the FWP application was properly cancelled.
The court first noted that the stated purpose of the Act was to set forth “a comprehensive approach to the protection of the water and other natural resources of the New Jersey Highlands” through adoption of “stringent water and natural resource protection standards, policies, planning and regulation,” as well as “stringent standards governing major development” in the preservation area. Toward that end, the Act “established a state agency, called the Highlands Protection and Planning Council . . . , which was delegated responsibility for land use planning in the Highlands Region” in various counties in the State.
N.J.S.A. 13:20-28a provides exemptions “from the provisions of th[e] act,” including subsection (3), which “grandfathered” certain developments by way of an exemption with various requirements. Intellect argued that it was exempt from the Act if its application for a FWP was approved prior to March 29, 2004, regardless of whether it received municipal approvals before that date. However, it being undisputed that municipal approvals were not received by that date, the court agreed with the DEP.
In reaching that conclusion, the court cited to two prior Appellate Division decisions for the proposition that “in order to qualify for a ‘grandfathered’ exemption, a development must have received a municipal approval under N.J.S.A. 13:20-28a(3)(a) and a DEP approval under either N.J.S.A. 13:20-28a(3)(b) or (c) if applicable, prior to March 29, 2004.” In Lakeside Manor v. State, Dept. of Envtl. Prot., 421 N.J. Super. 362, 364 (App. Div. 2011), the court noted that the Act “contains a number of exemptions from its regulatory provisions, including one for any major Highlands development project that received one of a specified list of municipal land use approvals under the Municipal Land Use Law . . . and at least one of a specified list of permits issued by the [DEP] before March 29, 2004.” In OFP, LLC v. State, 395 N.J. Super. 571, 590-91 (App. Div. 2007), the court explained that “N.J.S.A. 13:20-28(a)(3) provides an exemption from the . . . Act for any major development project that received the land use and environmental permits specified therein on or before March 29, 2004.”
N.J.S.A. 13:20-28a(3)(b) requires that the applicant secure DEP permits in the stated categories, if applicable, and, if those permits were not required, then, under subsection (c), the applicant must secure one of those two listed permits, but only if they are applicable. Thus, if none of the listed DEP permits applied, the applicant would be eligible for an exemption only if the municipal approvals had been secured prior to March 29, 2004. The court made note that a developer who secures municipal approval of its project is inured with “important vested rights” under the Municipal Land Use Law, and the above-cited statutory provisions reflect recognition of this fact. Accordingly, the Legislature intended only projects that received municipal approvals before March 29, 2004 to be eligible for “grandfathering” under the Act.

NJ Appeals Court addresses permits for combined sewer overflows.

SteveK — Tue, 12 Mar 2013 17:49:30 +0000

The Appellate Division recently handed down an opinion in In re Petition to Revoke Statewide General CSO Permit. In that case, a group of private environmental watchdog groups brought suit to force the NJDEP to cancel certain Combined Sewer Overflow (CSO) general permits issued to municipalities with combined sewer systems.
In 1994, the USEPA issued a national control policy for CSOs, which created a framework for controlling CSO discharges through the use of permits. This policy provided what are known as the “Nine Minimum Controls” aimed at reducing the prevalence and impacts of CSOs without necessitating major construction or significant engineering studies.
In 2004, NJDEP issued a General CSO Permit to affected municipalities in accordance with these Nine Minimum Controls, which would allow those municipalities to operate their sewer systems and to discharge CSOs when necessary. The General Permit went into effect on August 1, 2004, and was set to lapse on July 31, 2009. However, prior to the expiration date, the affected municipalities requested an administrative extension, which, under N.J.A.C. 7:14-2.8(a), triggers a continuation of that permit’s effect until such a time as the extension is either granted or denied. Accordingly, the 2004 permit remains in effect. On April 15, 2011, the plaintiff environmental groups filed a written request that the NJDEP revoke and replace the General Permit with individualized permits involving tighter controls.
On September 15, 2011, NJDEP issued its final decision denying appellants’ request that the General Permit be revoked and reissued with conditions, stating that it did “not agree that this existing General Permit is inconsistent with State or federal law.” Further, revocation was not necessary because NJDEP “intend[ed] to reissue the existing general permit with revised conditions to reflect the current status of the compliance with the nine minimum controls and Long Term Control Plan requirements.” This appeal followed.
After the notice of appeal was filed, NJDEP advised that its plans had changed with regard to the General Permit. Specifically, rather than reissuing a new General Permit, it would replace it with individual permits issued to each CSO owner, and to modify or renew existing individual permits to sewerage treatment plants that receive sewer flows.
The parties agreed that CSOs are a problem and that changes need to be made to the way the municipalities and sewer treatment plants which discharge them should be regulated, but they differed as to how that should occur. The environmental group plaintiffs argued that the General Permit must be immediately revoked and simultaneously reissued, or replaced with individual permits, with a variety of new conditions to address their concerns. NJDEP, on the other hand, argued that it would be a waste of time and resources to prosecute a revocation action against each of the affected municipalities when it was already in the process of issuing new individual permits to replace the disputed General Permit.
The court noted that N.J.A.C. 7:14A-16.6(a), which sets forth the valid “causes for revocation,” specifically states that the conditions therein are “causes for suspending or revoking a permit during its term.” On the other hand, the General Permit at issue had expired and was on administrative extension, under which circumstances N.J.A.C. 7:14A-2.8 applies. That provision gives NJDEP a variety of options, including revocation or replacement of the extended permit. Accordingly, NJDEP’s action under these circumstances was fully supported by these regulatory provisions.
Further, the court agreed that “it makes little practical sense to initiate a costly and time-consuming revocation process against twenty-one municipalities when the General permit has expired and is on an administrative extension.” Instead, “[b]y focusing on reissuing new individual permits, with more stringent conditions, DEP will make better use of its scarce resources and reach the same end result now sought by appellants.” Ultimately, “there is simply no need for DEP to first revoke the General Permit in order to issue the new individual permits[;] [i]t may simply propose and issue the new permits.”
Finally, because the affected municipalities were not parties to the present appeal, and it did not even appear that they were notified of the request to revoke the General Permit, the court would be unable to grant the requested relief in the first instance. “No permit can be revoked unless each permittee is given the opportunity to request a contested case hearing concerning the proposed revocation.”

Court rules against defense on motion to protect from ESI disclosure and costs.

SteveK — Thu, 28 Feb 2013 21:12:20 +0000

In Juster Acquisition Co., LLC. v. North Hudson Sewerage Authority, a recent Federal Court opinion, the Plaintiff scored a victory with respect to the scope of electronic discovery requests as well as which side is responsible to pay for such requests. In this case, Plaintiff sought electronic discovery from Defendant which included, in part, 67 search terms for Defendant to utilize when reviewing their electronic data for information relevant to the cause of action. While Plaintiff wanted the search limited to a one year period, many of the search terms were broad and vague. For example, some of the search terms were: fee, tax, finance – words that could easily produce thousands of documents from a single search. Upon receipt of these search terms, Defendant made a motion to the Court for a protective order. Pursuant to F.R.C.P. 26(c)(1), any party from whom discovery is sought may move for a protective order to protect the party for annoyance, embarrassment, oppression or undue burden or expense. Defendant believed that Plaintiff’s search terms were too broad and vague. Defendant further requested that if the protective order was denied, Plaintiff be required to pay for the cost of conducting the searches for the 67 search terms. The Court denied both of Defendant’s requests for relief. In order to grant a protective order, the moving party must show that the requested discovery is unreasonable, cumulative or duplicative. In this matter, Defendant did not provide any factual basis or legal background to support its request for the protective order. Defendant also failed to comply with the specific provisions of F.R.C.P. 26 and did not provide a certification attesting that the parties tried, in good faith, to first resolve this dispute outside of Court. In the absence of the certification and showing of unreasonableness of the discovery request, the Court could not grant Defendant’s motion. (Note to all: read the rules)With respect to the cost, “there is a general presumption that the responding party must bear the expenses of complying with discovery requests.” See Zubulake v UBS Warburg LLC, 216 F.R.D. 280, 283 9S.D.N.Y. 2003. Shifting costs of discovery to the party propounding the discovery is typically only appropriate in a case where the data sought inaccessible and poses an undue burden on the responding party. Courts have found accessible data to be active, online data, near-line data, and offline storage archives while finding backup tapes and erased fragmented or damaged data to typically be deemed inaccessible data. Although the specifics of electronic discovery can be complex, the Court helped simplify the determination as to which party is responsible to pay by looking to a 7 factor test established in Zubulake to determine whether discovery costs should be shifted. The factors in the fee shifting test include:1. The extent to which the request is specifically tailored to discover relevant information2. The availability of such information from other sources3. The total cost of production compared to the amount in controversy4. The total cost of production5. The relative ability of each party to control costs and its incentive to do so6. The importance of the issue at stake in the litigation and7. The relative benefits to the parties of obtaining the informationAfter going through an analysis of the 7 factors, the Court determined that the Defendant did not meet its burden of showing why cost shifting would be appropriate. Defendant failed to make any showing that the data sought was inaccessible or unduly burdensome. Defendant had the financial means to pay for the costs of the search. Plaintiff’s damages were around $41 million while the cost of the discovery was in the range of $6,000 – $16,000. The Court further found that the 67 search terms were sufficiently tailored to discover relevant information and not broad, vague or unreasonable. This case can be used as a helpful guide for future litigants seeking protective orders and fee shifting with respect to discovery matters. It can also be used as a guide in determining if search terms provided in discovery are too broad in time and content.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services.

ARE YOU AWARE OF NEW JERSEY’S “MOVE OVER“ LAW?

SteveK — Thu, 28 Feb 2013 20:40:35 +0000

By: Jeffrey W. Pompeo, Esq.
In 2009 New Jersey enacted a law aimed at reducing death or injuries to roadside emergency workers such as police officers, ambulance drivers and tow truck operators. Upon seeing an emergency vehicle on the side of the road, what are your responsibilities as the operator of a motor vehicle?
DRIVER RESPONSIBILITIES The law requires a driver approaching a stationary emergency vehicle with flashing, blinking or alternating red or blue lights to do so cautiously and, if possible based on the existing safety and traffic conditions, “make a lane change into a lane not adjacent to the . . . emergency vehicle.”
If a lane change is impossible, prohibited by law or unsafe, drivers are required to reduce their speed below the posted speed limit and be prepared to stop.
The law covers an “authorized emergency vehicle“ which is any vehicle operated by the fire department, police department and ambulance services responding to an emergency call.
TOW TRUCKS New Jersey is one of thirty states that requires drivers to also change lanes or reduce speed for parked tow trucks with flashing amber lights and highway maintenance or emergency service vehicles with flashing yellow, amber or red lights. A tow truck is any vehicle equipped with a sling or tilted bed designed to tow or recover vehicles.
VIOLATIONS OF THE LAW A driver found guilty of violating New Jersey’s “Move Over“ law faces a punishment of $100 to $500.
SUMMARY If you are driving in the slow lane of a three lane highway, for example, and are approaching a police or fire department vehicle, ambulance, tow truck, highway maintenance or emergency service vehicle parked on the right shoulder with flashing, blinking or alternating lights, you are required by New Jersey law to move into the middle lane and, if it is impossible or unsafe to do so, to reduce your speed and be prepared to stop. The same is true if you are driving in the fast lane of a three lane highway and are approaching such vehicles parked on the left shoulder.
Like many motor vehicle laws, New Jersey’s Move Over law is designed to save lives and prevent injuries. The life you save or injury you prevent might be your own.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services.

Appellate Division affirms dismissal of claim under NJ Law Against Discrimination where plaintiff that ignores legal process and discovery requirements.

SteveK — Mon, 18 Feb 2013 22:09:41 +0000

In Ewa Fik-Rymarkiewicz vs. University of Medicine and Dentistry of New Jersey, et al., a recent unpublished decision of the Appellate Division, the court affirmed the dismissal of plaintiff’s complaint with prejudice due to plaintiff’s continuous failure to supply information in discovery and repeated noncompliance with related court orders. By way of background, plaintiff was a post-doctoral fellow employed by University of Medicine and Dentistry of New Jersey (UMDNJ). Plaintiff alleged that in January 2006 she filed an internal complaint with the company after experiencing harassment and discrimination based on her pregnancy, and then in September 2006, her employment was terminated. Subsequently, in October 2006, plaintiff filed a complaint against UMDNJ as well as her supervisors alleging, among other things, employment discrimination, hostile work environment and retaliation in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49. The merits of plaintiff’s complaint, however, were never addressed because of plaintiff’s incessant failure to cooperate with the New Jersey Rules of Court related to discovery, which resulted in the dismissal of her complaint. This included plaintiff’s refusal to produce certain documentation requested by defendant’s counsel even after multiple court orders, plaintiff’s refusal to answer specific questions during her deposition, plaintiff’s cancellation of her court ordered deposition and plaintiff’s unilateral redaction of information on requested documentation that was deemed relevant by the court. This case demonstrates the importance of a client’s cooperation with their counsel and, further of the severe consequences to a lawsuit when an attorney fails to take control of their client throughout the litigation process. It is important for the client to rely upon the experience and knowledge of their attorney with regard to the process and procedures for litigation.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum PC (http://www.dbnjlawblog.com) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of parties in employment matters. For additional information about the matters in this bulletin or in the firm’s Employment Practice, please contact Richard P. Flaum, Esq.

NJ App. Court Confirms Trigger in Construction Claim

SteveK — Wed, 13 Feb 2013 17:57:51 +0000

This declaratory judgment action was brought against Travelers Property and Casualty Company of America (“Travelers”) seeking a declaration that Travelers provided coverage to a subcontractor that allegedly performed negligent work as part of an extensive home improvement project involving construction of an addition, including the excavation of a full basement, construction of footings, foundation, framing, exterior finish, roofing, windows, plumbing and electrical work. When the contractor sued the homeowners for failure to make payment, the homeowners counter-sued, claiming that they had suffered damages due to defective workmanship. The contractor in turn sued several of its subcontractors, including Builders of America, Inc. (“BOA”), seeking indemnification and contribution.
Travelers issued a commercial general liability insurance policy to BOA which covered the period during which the construction took place, but which was cancelled effective April 1, 2002, for non-payment. In response to Travelers’ motion for summary judgment, the plaintiff homeowner submitted a certification in which he stated that, “after the house was completed[,] severe cracking, shifting, and other major deficiencies began to develop.” The trial judge concluded that there was no evidence the alleged property damage occurred during the Travelers policy period and, therefore, that the policy did not provide coverage to BOA for plaintiffs’ claims.
On appeal, the court noted that there was no question that the policy at issue was an “occurrence” policy, providing coverage for “property damage” claims the insured becomes legally obligated to pay if the damage “is caused by an ‘occurrence’ that takes place . . . during the policy period.” Citing to clear authority that “[w]hen parties dispute the identity of the operative ‘occurrence’ for purposes of coverage, the actual damage to the party asserting the claim, not the wrongful act that precipitated that damage, triggers the ‘occurrence.’”
Accordingly, the court concluded that “the actual, cognizable damage to plaintiffs’ property occurred after the renovations were completed and the ‘severe cracking, shifting and other major deficiencies began to develop,” which was well after the coverage at issue was cancelled, there was no covered property loss during the policy period and summary judgment was appropriate.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis, Lehrer & Flaum, PC (www.dbnjlaw.com ) is a full service law firm in New Jersey which provides a broad range of legal services, including the representation of clients in insurance coverage matters. For additional information about the matters in this bulletin or in the firm’s insurance practice, please contactSteven A. Kunzman, Esq. who heads our Insurance Coverage Group.

Courts Define Limits of EPA’s Control of Storm Water under Clean Water Act

SteveK — Wed, 13 Feb 2013 17:45:38 +0000

Recent decisions U.S. District Court in the Eastern District of Virginia and the U.S. Supreme Court define the limits of the extent to which authorities can control discharges of storm water under the Clean Water Act (CWA). On January 3, 2013, in Virginia Dept. of Transp. V. U.S. E.P.A., the Eastern District of Virginia held that the EPA is authorized to set Total Maximum Daily Loads (TMDL) of pollutants permitted to be discharged into bodies of water under the CWA; however, TMDLs do not apply to storm water carrying sediment, because storm water runoff is not a pollutant under the CWA. As a result of prior unrelated litigation, the EPA was required to set TMDL limits for discharges into the Accotink Creek, a tributary of the Potomac River in Fairfax County, Va. , because the creek was determined to have “ ‘benthic impairments,’ which is to say the community of organisms that live on the bottom of the creek were not as numerous or healthy as they should be.” The EPA placed a limit on the flow of storm water into the creek due, in part, to a determination that the storm water contained sediment which is considered a pollutant. The Court analyzed the language of the CWA and concluded that although it authorizes the establishment of TMDLs for pollutants, and sediment is a pollutant, it could not place limits on storm water containing sediment because storm water is not a pollutant under the act. The Court concluded that Congress had been very specific in providing “precise standards and definite guidelines on how the environment should be protected” and does not extend the authority to the EPA to establish TMDLs for non-pollutants as surrogates for pollutants. Accordingly, the limits placed on the storm water flow rate into the creek were voided.Five days later, on January 8, 2013, the Supreme Court issued a decision in Los Angeles County Flood Control District v. NRDC 568 U.S. ___(2013) which held that a “discharge of pollutants” does not occur when polluted water flows from one portion of a navigable water body through “concrete channel or other engineered improvement” into another section of the water body. In the case, the Flood Control District operates a “municipal separate storm sewer system” that collects and discharges storm water. The Court concluded that it does not qualify as a discharge of pollutants under the CWA, quoting from the Second Circuit decision, Catskill Mountains Chapter of Trout Unlimited, Inc. v. New. York, 273 F. 3d. 481, 492 (CA2 2001) “…[i]f one takes a ladle of soup from a pot, lifts above the pot, and pours it back into the pot, one has not added soup or anything else to the pot.”These two decisions demonstrate an intention to strictly construe the CWA, and provide a practical, if not holistic, view of the hydrogeological systems. Although not specifically stated in Virginia DOT, storm water may be seen as a natural source of water that drains into navigable waters, and therefore, is not subject to discharge limits that would apply to industrial discharges into the same water body. This is supported by the Los Angeles Flood Control decision, which concludes that the collection and discharge of storm water does not constitute the discharge of a pollutant. Arguably, this concept should be able to be applied to sewage systems which have been authorized and controlled by governmental bodies, as they also are a part of the system of water collection naturally flowing into the regional water “drainage” into navigable waters.