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Arbitration agreements in New Jersey
On May 16, 2022, the Appellate Division decided two cases which involved arbitration agreements. On both cases, Judge Gilson, J.A.D. was the opinion’s author. In the first, the panel held the arbitration agreement was enforceable. However, in the second, which involved a minor plaintiff, the appellate panel held that the minor plaintiff had the right to disaffirm the arbitration agreement. The following is an analysis of both cases, which when viewed together, serve a refresher of the nuances of arbitration agreements in New Jersey.
Castano v. Augustine: Strict construction of the law at odds with New Jersey public policy?
Over time, New Jersey’s No Fault Act has evolved to incorporate additional restrictions on an injured party’s right to sue for injuries resulting from an auto accident. These restrictions, viewed as a trade-off for the Act’s promise of prompt payment of medical expenses regardless of fault, serve to impose the “draconian consequence” of completely foreclosing a prospective plaintiff’s cause of action should they run awry of requirements of the Act.
Defending VPPA claims: A different perspective
The Video Privacy Protection Act (VPPA) was enacted in 1988, and provides that a video tape service provider who knowingly discloses the personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person. The law was put in place to “preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials.” S. REP. 599, 1988 U.S.C.C.A.N. Over the past decade, there has been a trickle of class action lawsuits filed under the VPPA, although in recent times, technological growth has allowed lawsuits to proliferate at a more rapid pace.
Navigating the differences in determining Jones Act and Longshore status for defending claims in maritime litigation
At first glance, the waters can be murky when wading through a determination of a maritime employee’s status as a Jones Act seaman or a longshoreman. The determination of whether an individual is a Jones Act seaman or a longshoreman, which determination is based on the individual's job duties, the nature of their work, and the specific circumstances under which the individual is employed, is critically important. The Jones Act, 46 U.S.C. § 688, and the Longshore and Harbor Workers' Compensation Act (“LHWCA”), 33 U.S.C. § 901 et seq., each provide different legal protections and remedies for workers who are injured on the job.
Best practices for mitigating risk under New York’s Adult Survivors Act claims
The Adult Survivors Act (“ASA”), a law recently signed by New York Governor Kathy Hochul, will go into effect on November 24, 2022 and provide a one-year window for individuals who were 18 or older at the time of the offense to file suit for previously time-barred sexual offense claims, regardless of when the alleged act occurred. The ASA will impact any entity that regularly interacts with adults in any capacity; thus, a significant influx of claims and lawsuits is anticipated.
Mirror-image counterclaims in declaratory judgment actions
Is a declaratory judgment counterclaim a mirror-image of the plaintiff’s complaint for declaratory judgment or redundant of defendants’ answer and affirmative defenses to the plaintiff’s complaint? Insurers should consider this question when either asserting a counterclaim in a declaratory judgment action or moving to dismiss a counterclaim raised by a policyholder in a declaratory judgment action.
Second Circuit Ruling: The Bellefonte Rule “No Longer Good Law”
The United States Court of Appeals for the Second Circuit rejected the Bellefonte Rule, which reinsurers relied upon to cap liability under certificates of facultative reinsurance for indemnity and expense.
Overserved: Practical considerations surrounding motions for substituted service on insurers
It is a frequent situation. A contractor obtains a liability policy from an insurer. Down the road, a construction defect claim is asserted, and suit is brought against the contractor. By this point the contractor is no longer in business, with no known valid address, and all reasonable efforts at service of process on the contractor fail. The claimant then moves for substituted service on the contractor’s insurer. Even if the insurer files an objection to the motion for substituted service, the court may focus only on the diligence of the claimant’s efforts to serve the contractor and grant the motion. The insurer is now in the lawsuit.
The Illinois Prejudgment Interest Statute is called into question
In 2021, Governor Pritzker signed into law SB 0072, which represented an amendment to the Illinois Prejudgment Interest Statute, 735 ILCS 5/2-1303. The relevant part of the Amendment provides, “In all actions brought to recover damages for personal injury or wrongful death resulting from or occasioned by the conduct of any other person or entity, the plaintiff shall recover prejudgment interest on all damages, except punitive damages, sanctions, statutory attorney’s fees and statutory costs.”
New trends in fragment billing: Non-facility companies billing for facility-bundled services
When one receives surgery, it is common to receive a separate invoice from the physician and the facility. The physician bills for performing the surgery, and the facility bills for providing the products and services necessary for the surgery to be performed. The latter is known as a “facility fee,” which often includes the operating room, drugs, diagnostic tests, scalpels, electrodes, etc.