March 2007, No.2

March 2007, Vol. V, No. 2

Can a School District Be Held Liable Under the LAD When Students Harass Another Student Because of His Sexual Orientation? Short answer, yes. See L.W. v. Toms River Regional Schools Bd. of Educ., 189 N.J. 381 (2007). In L.W., students harassed the plaintiff from the fourth grade until the ninth grade, and said abuse included physical attacks, verbal taunts, and bullying. The school district adopted a policy of progressive discipline, i.e., increasing penalties for violators. The Supremes first held that the LAD does include claims against a school district when students harass another student because of his sexual orientation if the district's failure to reasonably address the harassment leads to the student's denial of the school's accommodations. The Supremes added that for a district to be liable, a plaintiff must prove that the district knew or should have known about the harassment. We applaud this decision because it promotes the goals of the LAD, protects innocent students, and holds school districts accountable for failing to eliminate bias-based harassment. Schools are public accommodations under the LAD, and students should be able to attend school without the interference of discrimination. Three cheers.

Are a Plaintiff's Portee Claims Subject to the Requirements of the Verbal Threshold? For those of you who said no, you are wrong. In Jablonowska v. Suther, 390 N.J. Super. 395 (App. Div. 2007), our own Judge Yannotti, writing for the Appellate Division, said that a claim for emotional damages arising out of a motor vehicle accident must meet the permanency requirement of the verbal threshold. See N.J.S.A. 39:6A-8a. In Jablonowska, the plaintiff was driving her mother at the time of the accident, and claimed that she suffered emotional injuries from watching her mother die from the accident. The plaintiff never produced any evidence that her post-traumatic stress disorder was a "permanent injury to a body part or organ." She also failed to show that her injury was based on objective evidence. Judge Yannotti reasoned that the plaintiff's injuries arose out of a car accident, and thus, the verbal threshold applies. We believe that.

Judge Yannotti's decision is correct because of the statutory scheme that the Legislature has created. However, what happens if a mother and father watch a child suffer injuries in a car accident while they are standing on a sidewalk and later suffer emotional damages from their observations. In that instance, they are not in the car, and we do not think that the verbal threshold should apply. Such a result would create an inconsistency for family members suffering emotional injuries. The Legislature may need to address this inconsistency.

Can a Plaintiff Obtain Treble Damages for Consumer Fraud in Binding Arbitration? For those of you who think this is simple, think again because the answer is yes and no. The answer is yes if and only if the claimant/plaintiff provides notice to the other parties and arbitrator that he is seeking treble damages and fees. See Block v. Plosia, N.J. Super. 2007 N.J. Super. LEXIS 52 (App. Div. 2007). In other words, the demand for arbitration must state that the claim under the Consumer Fraud Act seeks treble damages and fees. If a claimant fails to seek such damages in his claim for relief, he is precluded from seeking them from the arbitrator. The Appellate Division found that a respondent is entitled to reasonable notice of the claims against her.

Legal Malpractice Update. If you are filling out an application for legal malpractice insurance, you must advise the carrier of a potential claim or you risk having no coverage for that claim. See Liberty Surplus Insur. Corp. Inc., v. Nowell Amoroso, P.A., 2007 N.J. LEXIS 190 (2007). In Liberty, the law firm failed to advise the carrier of the potential for a claim against it where it filed an action after the statute of limitations had expired, and as a result, the underlying case was dismissed. As a result, the law firm had no coverage for the subsequent malpractice suit.

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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