June, 2011, No. 5

Can An Employer Refuse To Renew An Employee's Contract Because The Employee Is Over 70 Years Old? Seems straightforward, but it is not. For those of you who said yes because the LAD explicitly states that an employer may refuse to hire a person over 70, you would be wrong. In Nini v. Mercer County Community College, 2010 N.J. LEXIS 501 (2010), the Supremes ruled that the LAD's age-based exception is limited to new hires, and that refusing to renew a current employee's contract based on age violates the spirit and purpose of the LAD, which is to prohibit discrimination. Despite its ruling, the Supremes acknowledged that the LAD did not address renewals or rehires. In fact, the Supremes stated that the defendants' argument that once the contract lapsed, the plaintiff was a new applicant had merit and fairly described the situation. However, the Supremes ultimately found that the plaintiff's argument was stronger because the LAD is interpreted broadly and because a ruling for the defendant would create situations where older employees would be forced to accept contracts rather than be at will, i.e., older employees without contracts would be better situated than those with contracts. The Supremes should be commended for this ruling because they correctly interpreted the LAD - if the Legislature wanted another exception, then it would have placed it in the statute. In the event the Legislature disagrees with the strict construction of this statute, it can pass legislation. I don't see that happening.

Can An Attorney Be Liable For Legal Malpractice When The Client Settles The Underlying Case? Well, the Supremes have ended the debate caused by Puder v. Buechel, 183 N.J. 428 (2005), and answered YES. In Guido v. Duane Morris, 2010 N.J. LEXIS 503 (2010), the plaintiff claimed that he settled his case with the defendants in the underlying case based on the negligent advice of the defendant lawyers. The Supremes first noted that Ziegelheim v. Apollo, 128 N.J. 250 (1992), sets forth the standard for when a client may sue a lawyer who provided legal advice regarding a settlement. In fact, the Supremes explained that Ziegelheim provides that the mere fact that a client obtained a fair and equitable settlement does not mean that the attorney was competent or that the client would not have received a better settlement but for the incompetent advice. Thus, the Supremes concluded that Puder is an equitable exception to Ziegelheim's general rule, i.e., the malpractice plaintiff must be equitably stopped from filing the malpractice claim because of a representation to the court that he is satisfied with the settlement or that the settlement is fair and adequate, neither of which occurred here. Finally, the Supremes found that the trial court's reliance on the fact that the plaintiff did not move to vacate the settlement was not dispositive or required. This decision is correctly and properly considers the prior cases. More importantly, Guido ends the needless debate caused by Puder. Practice Tip: In the event you are concerned that a client may later object to a settlement or file a malpractice claim, then follow Puder by (1) placing the settlement on the record and (2) having your client verify on the record that he is satisfied with the settlement and that it is fair, reasonable, and adequate.

Can The Estate Of An Uninsured Driver Sue For Wrongful Death? For those of you who said no because of N.J.S.A. 39:6A-4.5(a), you are wrong! N.J.S.A. 39:6A-4.5(a) prohibits a person from suing for personal injuries when she is uninsured. Thus, in Aronberg v. Tolbert, 2010 N.J. LEXIS 98 (App. Div. 2010) , the Appellate Division held that the statute prohibits a survival action for the decedent because such a claim seeks the conscious pain and suffering of the decedent before his death, but does not apply to wrongful death claims. The panel explained that the Wrongful Death Act serves to compensate the survivors of the decedent for their losses as a result of tortious conduct causing death, and any monies from such a claim do not accrue to the decedent or the estate as a matter of law. When the panel examined the statutes, it found that the uninsured statute is explicitly limited to an uninsured driver who is driving at the time of the accident, which does not apply to the survivors of the decedent. There is a dissent in this case so the Supremes will have the final say. I think the majority is correct because the Wrongful Death Act is remedial in nature, and the decedent's survivors should not be affected by the decedent's lack of insurance when the defendants' tortious conduct caused death.

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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