June 2006, No. 5

June 2006, Vol. IV, No. 5

Is an Illegal Alien Entitled to Benefits from the Unsatisfied Claim and Judgment Fund? For those of you who think this is an easy one, think again because the answer is yes. See Caballero v. Martinez, N.J. (2006). In Caballero, the Supreme Court stated that to receive benefits a claimant must be a qualified person under N.J.S.A. 39:6-61, which includes resident of the State. The Supremes explained that a claimant can satisfy the "residency" requirement by having an intent to stay, i.e., live, in New Jersey for a sufficient period of time. In Caballero, the plaintiff, who did not have car insurance, was badly injured when he was a passenger in an uninsured car - hence, the application to the Unsatisfied Claim and Judgment Fund (UCJF). The Supremes correctly answered the question of what "residency" means by employing a flexible definition that includes a person's intent. This decision also provides appropriate coverage for illegal aliens who are injured in this state. Notably, this decision also applies to resident, illegal aliens who apply for PIP benefits because the standard is the same.

Is a Decision in an Unemployment Proceeding Collateral Estoppel in a Law Division Case? No. In Olivieri v. Y.M.F. Carpet, Inc., N.J. (2006), the Supremes found that a determination that an employee was fired in an unemployment hearing is not preclusive in a subsequent CEPA case because the underlying hearing does not possess the requisite procedural safeguards to warrant issue preclusion. This decision makes eminent sense as a proceeding for unemployment benefits is fast, does not provide cross-examination, and often does not include attorneys.

How do you account for medicaid liens in personal injury cases? If you said that a medicaid is entitled to a lien equal to the amount of money it paid for a plaintiff's medical bills, you would be wrong. In a major decision, the United States Supreme Court held that medicaid liens do not apply to lost wages and pain and suffering. Arkansas Dep't of Health and Human Servs. v. Ahlborn (2006). The impact of this decision means that lawyers must allocate settlements among the different classes of damages: lost wages, pain and suffering, and medical costs.

Is Pre-Judgment Interest Permitted in LAD Cases Against Public Entities? For those of you think that this question is straightforward, you would be correct. In Potente v. County of Hundson, N.J. ( ), the Supremes stated that the LAD was amended in 1990 to include "all remedies available in common-law tort actions," which included pre-judgment interest. The Supreme Court then stated that the Third Circuit's opinions to the contrary were "simply wrong" because R. 4:42-11 permits pre-judgment interest in any case unless prohibited by a statute. The LAD does not prohibit the award of pre-judgment interest so successful plaintiffs are entitled to said interest. This opinion seems rather basic, and we applaud the Supreme Court for clarifying the law and correcting the Third Circuit.

Can a Plaintiff Recover Emotional Damages Because a Defendant Breached a Contract? For those of you who said no, wrong. The answer is it depends on the breach and whether it was foreseeable that said breach would cause emotional damages. See Menorah Chapels v. Needle, N.J. Super. (App. Div.). In Menorah Chapels, the plaintiff, an Orthodox Jew, contracted with Menorah Chapels, a funeral parlor, to perform certain religious tasks for his deceased father-in-law, but Menorah Chapels failed to perform the tasks, which led to emotional distress for the family. The Appellate Division found that emotional damages caused by the breach were compensable.

Contributions. If you have an interesting case, rule interpretation, ethics issue, or civil-related story, please contact me at 201-918-3560, (f) (201) 845-5973, or e-mail mjepstein@epsteinbeirne.com.

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