November 2003, No.6

November 2003, Vol. I, No. 6

How Do Social Security Disability Benefits Affect a Personal Injury Verdict? According to Judge Pressler's recent, groundbreaking decision in Woodger v. Christ Hospital, A-578-02T5 (App. Div. November 10, 2003), the answer has two parts. The first part of the answer confirms that the collateral source rule, N.J.S.A. 2A:15-97, mandates that the social security disability benefits paid to a plaintiff must be deducted from the award. The second and critical part of the ruling provides that plaintiffs must be given a credit for their contributions to Social Security. Prior to this ruling, courts gave a credit only for contributions (premiums) for insurance because the statute specifically states "insurer." Judge Pressler concluded that contributions for Social Security had the same effect as insurance, and that the Legislature's failure to include Social Security disability contributions in the collateral source rule was insignificant because the rule was designed to combat skyrocketing automobile costs (boy, that worked). Finally, Judge Pressler found that because of the difficulty in determining the portion of the contribution for disability benefits, the plaintiff was entitled to the maximum employee contribution. Woodger is a logical and practical interpretation of the collateral source rule, and Judge Pressler and the Appellate Division should be applauded for rendering the first decision in the country on the interplay of the collateral source rule and a plaintiff's contributions for social security disability benefits.

What Restrictions Can a Law Firm Place on a Departing Partner? We are going to find out when the Supreme Court decides Borteck v. Riker, Danzig, Scherer, Hyland & Perretti, which is now on the Supreme Court's docket. The issue involves whether a departing partner is entitled to early retirement benefits when he leaves to join another law firm. In this case, the law firm's agreement provided that such a departure was not retirement and therefore the departing partner was not entitled to such benefits. The Appellate Division ruled that the agreement at issue violated RPC 5.6 because the agreement placed a financial disincentive for a partner to join another firm. RPC 5.6, Restrictions on Right to Practice, provides that attorneys and law firms are prohibited from entering into agreements that restrict an attorney's right to practice after termination of the relationship, except an agreement concerning benefits upon retirement. RPC 5.6 distinguishes law firms from other professional partnerships, but the fundamental premise for all partnership agreements is the same – preventing a departing partner from being paid to leave and compete. This decision is inequitable to the firm because the departing partner knows the benefits and negatives of leaving the firm. Here, the departing partner left despite knowing that he might not receive retirement benefits. The law firm that he left should not be forced to subsidize its competition.

What Is an Employee's Burden in a Mixed Motive Case? According to the Supreme Court of the United States, circumstantial evidence of discrimination is sufficient, and thus, direct evidence is not required. See Desert Palace, Inc. v. Costa 123 S. Ct. 2148 (2003). As a civil rights attorney stated, this case is significant for employees who bring cases under the Civil Rights Act because if discrimination is found to be one of the reasons for an adverse employment action, the employee is entitled to attorney fees. Thus, defendant-employers will face more risk, and will be more inclined to settle. This case is also significant because in recent years, the nation's highest court has not issued many favorable rulings for plaintiffs in employment cases.

Is the Smell of Boiled Urine Considered Destruction to Property in a Landlord Tenant Dispute? No. See Ivy Hill Park, Sec. III v. Smirnova, 362 N.J. Super. 421 (Law Div. 2003). Put this case in the truth is stranger than fiction column. In this case, the defendant decided to try an alternative medical treatment for his back – paper towels soaked in urine. WHAT? While boiling the urine (I hope that he did not use the pot for cooking), he fell asleep and the pot's handle melted. An odor emanated to his upstairs neighbor (shockingly), who complained. N.J.S.A. 2A:18-61.1c provides that a landlord may evict a residential tenant if "the person has willfully or by reason of gross negligence caused or allowed destruction, damage or injury to the premises." The court first ruled that defendant's actions were grossly negligent, but then concluded that an adverse effect to the human senses is not destruction, damage or injury to the premises. Thus, a summary eviction was improper, and the landlord had to seek eviction for a lease violation or disturbing the peace and quiet of the other tenants. No word on whether the treatment helped the boiler's back.

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 [email protected].

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