ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In New Jersey, an insurance company’s duty to defend is broader than its duty to indemnify.  See Polarome Int’l v. Greenwich Ins. Co., 404 N.J. Super. 241, 272-73 (App. Div. 2008).  The duty to defend applies whether or not the third-party claim has merit, even if the cause of action against the insured is groundless, false, or fraudulent.  Unlike the indemnification clause, the duty-to-defend clause does not require the existence of an occurrence.  See Voorhees v. Preferred Mut. Ins. Co., 128 N.J. at 173-74, 180.  Quoting Voorhees at 173-74 (emphasis added):  “[T]he duty to defend comes into being when the complaint states a claim constituting a risk insured against. ”  Danek v. Hommer, 28 N.J. Super. 68, 77, 100 A.2d 198 (App. Div. 1953), aff’d o.b., 15 N.J. 573, 105 A.2d 677 (1954).  Whether an insurer has a duty to defend is determined by comparing the allegations in the complaint with the language of the policy.  When the two correspond, the duty to defend arises, irrespective of the claim’s actual merit.  Id. 28 N.J. Super. at 76-77, 100 A.2d 198.  If the complaint is ambiguous, doubts should be resolved in favor of the insured and thus in favor of coverage.  *Central Nat'l Ins. Co. v. Utica Nat'l Ins. Group*, 232 N.J. Super. 467, 470, 557 A.2d 693 (App. Div. 1989).  When multiple alternative causes of action are stated, the duty to defend will continue until every covered claim is eliminated.  *Mt. Hope Inn v. Travelers Indemn. Co.*, 157 N.J. Super. 431, 440-41, 384 A.2d 1159 (Law Div. 1978).  As one court has stated:  To hold otherwise would be to place upon the insured the burden of demonstrating in advance of the underlying litigation which of the competing theories of recovery against it was applicable for the purposes of insurance, thereby frustrating one of the basic purposes of such a clause in the insurance contract — protection of the insured from the expense of litigation.  *Solo Cup Co. v. Federal Ins. Co.*, 619 F.2d 1178, 1185 (7th Cir. 1980).  That the claims are poorly developed and almost sure to fail is irrelevant to the insurance company's initial duty to defend.  The duty to defend is not abrogated by the fact that the cause of action stated cannot be maintained against the insured either in law or in fact — in other words, because the cause is groundless, false or fraudulent.
[brief] In [...]’s Reply Brief, he responds to Defendants’ opposition.  In response to Defendants’ argument that Defendants did not sign any rescission of the notice of termination, [...] points out that the Statute of Frauds does not apply, and if it did, the conduct of the parties subsequent to the notice of termination demonstrates it was rescinded.  In particular, the May 5, 2016 meeting between [...] and [...], the May 6, 2016 letter confirming the agreement to rescind in exchange for rental concessions, the subsequent rental concessions given by [...] and accepted by [...], while [...], [...] and [...] were all members in May, June, July, August, and September of 2016, the continuous occupation of the premises from May 2016 to April of 2020 by [...], the continued rental payments under the Lease from 2016 to 2020, the acknowledgment of the Lease in the April 2019 Consent Order between [...] and [...], and the acknowledgment of the existing Lease in the termination notice in 2020.  In response to Defendants’ argument that the Court did not rely on the Statute of Frauds, but rather relied on the fact that there was no evidence that Defendants agreed to reinstate any personal obligations, [...] points out that there was no termination of the Lease or guarantees for all of the reasons set forth above, and the guarantees contained no provision which allowed them to be unilaterally terminated nor was there any evidence that Defendants sought to terminate the guarantees.  In response to Defendants’ argument that the recission of the Lease termination notice would materially enlarge the obligations of the guarantors, the opposite is true; the recission of the notice of lease termination reduced the obligations of the tenant and the guarantors by $15,000.00 over 5 months.  In response to Defendants’ argument that “practical construction” only applies to a signed contract, [...] replies that the Lease was signed and the modification was placed in writing and confirmed and ratified by the parties’ conduct.  In response to Defendants’ argument that actions did not amount to a waiver of Paragraph 17 of the Lease, [...] replies that acceptance of the terms of the modification by their actions constituted a waiver of Paragraph 17 of the Lease.  As to the Cross-Appeal, the Court correctly found that the guarantees were clear and unequivocal and found Defendants, [...], [...], and [...] liable.
[brief] Throughout the proceeding, [...]’s hate motive toward Asians was not hidden, because he wanted to make the Asian Defendants to pay for the loss of his fellow soldiers killed by soldiers of Asian descent in Vietnam, regardless that Defendants had nothing to do with the killings.  [...] could not forget the events that took place in 1968, which was 50 years ago.  [...] attacked [...] because he is of Asian descent.  [...]’s discriminatory and inexcusable conduct during the trial violated Cannon Rules of Judicial Conduct. \(^{45}\)
[brief] THE TRIAL COURT ERRERED AS A MATTER OF LAW AND ABUSED ITS DISCRETION IN AWARDING PLAINTIFFS COUNSEL FEES AND COSTS (36T26-10 to 32-10, 50-10 to 52-6; 37T88-13 to 92-18)  In connection with the Plaintiffs’ post-trial motion for final judgment, the trial court awarded Plaintiffs $1,181,874.51 in attorneys’ fees and litigation costs.  However, there was no statute, court rule or contract that entitled Plaintiffs to such an award against Defendant.  Accordingly, the court erred as a matter of law by granting Plaintiffs’ fees and costs.  “In the field of civil litigation, New Jersey courts historically follow the ‘American Rule,’ which provides that litigants must bear the cost of their own attorneys' fees. ”  Innes v. Marzano-Lesnevich, 224 N.J. 584, 592 (2016).  “However, ‘a prevailing party can recover those fees if they are expressly provided for by statute, court rule, or contract. ’”  Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385 (2009) (quoting Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001)).  “[A] reviewing court will disturb a trial court's award of counsel fees ‘only on the rarest of occasions, and then only because of a clear abuse of discretion. ’”  Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 386 (2009) (quoting Packard Bamberger & Co., supra, 167 N.J. at 444).  Without belaboring the point, the only contracts that the Court found Defendant breached were the [...] and the [...], which do not contain fee shifting provisions.  36T50-10 to 52-6; Da02701, Da02712.  Notwithstanding the foregoing, the trial court incorrectly accepted Plaintiffs’ argument that they were entitled to recover fees and costs under the 2014 and 2017 [...] and the 2014 [...], despite never finding that Defendant breached these agreements in its June 30, 2022 decision.  36T26-10 to 32-10, 50-10 to 52-6; 37T88-13 to 92-18; Da02740, Da02816 – Da02836.  Moreover, the court’s puzzling conclusion that the [...], 2014 [...], 2007 [...] and [...] “all play off of each other” is not a legal basis to award counsel fees.  37T88-1 to 89-20.  Therefore, as a matter of law, Defendant was not required to indemnify Plaintiffs for damages under agreements she did not breach and which the court did not find she breached.  Based on the foregoing, the trial court’s award of counsel fees and costs to Plaintiffs constituted a clear abuse of discretion and error of law.  Therefore, this Court should reverse the award of fees and costs against Defendant under the Judgment.
[brief] "A board acts arbitrarily, capriciously, or unreasonably if its findings of fact in support of a grant or denial of a variance are not supported by the record, or if it usurps power reserved to the municipal governing body or another duly authorized municipal official."  Ten Stary, supra, 216 N.J. at 33.  "Even when doubt is entertained as to the wisdom of the [board's] action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of . ."  Kramer v. Board of Adjust., Sea Girt, 45 N.J. 268, 296-97 (1965).  Moreover, it has long been recognized that a land use board, such as a planning board, in granting a land use application, certainly one that involves a variance, may impose conditions to safeguard the public interest, so long as the conditions are reasonable and advance the purposes of zoning.
[brief] As noted by [...]’s expert, however, many of Plaintiff’s experts’ opinions were not supported by applicable regulations, industry standards, or scientific evidence.  Pa360a-67a.  First, Plaintiffs’ experts’ reliance on an OSHA standard concerning “hazard assessment” is misplaced, as it pertains only to making a hazard assessment relative to the wearing of personal protective equipment, and there is indisputable evidence that [...] was wearing PPE on the night of the accident.  Pa364a.  Additionally, the record contains no evidence that [...] received any OSHA citations prior to the accident.  After the accident, [...] received only one citation for a “serious,” but not “willful,” violation of exposing employees to the hazard of being struck by construction vehicles within a highway construction zone.
[brief] '....The use and authority of unpublished opinions is governed by Rule 1:36—3.  That rule provides:  No unpublished opinion shall constitute precedent or be binding upon any court.  'Except for appellate opinions not approved for publication that have been reported in an authorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court.  No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel....'  [R. 1:36-3.]  This rule has been affirmed time and again by this Court.
[brief] The conditional plea rule states that “[w]ith the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion.  If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea. ”  R. 3:9-3.  Additionally, R. 3:5-7(d) expressly permits “a defendant to challenge on appeal an unlawful search and seizure of evidence after entering a guilty plea. ”  State v. Davila, 443 N.J. Super. 577, 586, (App. Div. 2016).  There is no law, nor case law, that allows the conditional plea rule to apply to a defendant’s multiple unrelated indictments and pleas.  This is a matter of common sense and logic.  Rather, our courts have already determined that the conditional plea rule does not apply to multiple unrelated indictments, unless there was explicit intention from both the State and defendant at the time of the pleas.
[brief] Pacifico v. Pacifico, 190 N.J. 258, 266 (2007).  [...] had taken our late mother’s vehicle, but then refused to pay us the amount of money that it had previously agreed to (i.e. for it keeping that vehicle to sell as parts).  Further, [...] knew the status of the title (i.e. that the title was still in my mom’s name), and with full knowledge of that fact, had nonetheless agreed to pay me $400 to keep our mom’s vehicle (i.e. to then sell $2,000-$3,000 worth of parts from), with the title “as-is”.  Moreover, as I had argued to the trial court in my motion for reconsideration, even assuming arguendo if we were technically required to have the documentation of the Surrogate’s Office, there is ample precedent holding that technical defects (e.g. such as a lack of documentation), would not cause a contract to become unenforceable, unless doing so would be violative of public policy.  For example, I pointed out an authority pertaining to an employment contract made with an illegal (i.e. undocumented) alien, *Montoya v. Gateway Insurance Company*, 168 N.J. Super. 100 (App.Div. 1979), where this Court enforced the contract and held that it would be wrong to allow the employer to reap an unfair benefit of free labor, simply because the worker did not have the proper documentation when he entered into the employment contract.  This concept was reaffirmed several more times (see e.g. *Fernandez-Lopez v. Jose Cervino, Inc.*, 288 NJ Super. 14 (App.Div. 1996); *Serrano v. Underground Utils. Corp.*, 407 NJ Super. 253 (App.Div. 2009)).  As another example, I also pointed to an authority from the neighboring state of New York, *Matter of Sakow*, 219 A.D.2d 479, 631 N.Y.S.2d 637, 640 (N.Y. App.Div. 1995), which held that a person (i.e. an heir whom selfishly and improperly took estate property for his own benefit) was properly recognized as a “de facto executor” of his father’s estate, even though he had no official paperwork to designate him as such.  (Pa146, ¶22).  Thus I had direct standing with that contract.
[brief] Honorable Judges, Appellate Division  Superior Court of New Jersey  Hughes Justice Complex 25 West Market Street Trenton, New Jersey 08625-0006  RE: [...], a/k/a [...] v. [...]  Appellate  Docket No. Docket No. [...]  Reply Letter Brief on Behalf of Plaintiff/Appellant  [...] a/k/a [...]  TO THE HONORABLE JUDGES OF THE APPELLATE COURT:
[brief] [...] concluded that this will not be a detriment to the surrounding properties.  He noted that the existing lot is directly across the street from the Boardwalk which is elevated 5 feet above the subject property.  He further noted the buildings on the Boardwalk are built at Boardwalk level and the proposed Application for Development will integrate with that condition.  Thus he opined the design of the buildings are unique in that the top floor is smaller than the rest of the building which will soften the overall appearance.  Further, he concluded the height of the buildings will also maximize water views.  (1T 41:19-42:8).  [...] continued as to the proposed (d)(6) height variance:
[brief] Regarding the Miller factors, defendant claims that factor one should have been given “heavy weight” because defendant is “no different than other teenagers…” (Db27).  But no case requires that this factor be found in every case.  It was correct, and not an abuse of her discretion, for [...] to find that the expert’s testimony on this factor was too generalized.  [...]’s testimony may support why there is Miller factor one in the first place, but it doesn’t support defendant’s claim that it should have been found and given “heavy weight. ”  The factor required the judge to consider defendant’s “immaturity, impetuosity, and failure to appreciate risks and consequences[,]” and the judge found that the expert’s testimony was of no assistance in this regard, making finding it here inappropriate.  Defendant also claims that [...] should have found Miller factor 3 applies because his “participation” in the incident and his conduct were the result of peer pressure.  (Db28).  While it is true [...] testified about things such as defendant’s desire to assimilate, his desire for peer acceptance, and that the presence of peers made him, in his words, “more likely to act impulsively[,]” (Db28), the judge was permitted to weigh this testimony.  --- 8  Defendant does not argue the judge abused her discretion when she found Miller factor 2 did not apply. against other evidence in the case such as defendant’s leading role in the murder and that if anyone was exerting peer pressure, it was him on the younger co-defendant; as the judge concluded, “it was not until the statement, order or command was given that the youngest defendant arguably succumbed to the pressure exerted by this defendant to stop the fleeing victim that shots were fired and [...] was killed.
[brief] The Litigation and Trial Court’s Summary Judgment Order  [...] filed a Complaint in Lieu of Prerogative Writ on April 8, 2022, seeking declaratory and injunctive relief enjoining and restraining the enforcement of the Ordinance as to [...].  The trial court ultimately granted [...]’s motion for summary judgment on June 15, 2023, holding:  The Court finds that [...]’s motion for summary judgement must be granted as a matter of law.  New Jersey law requires that a public utility furnish safe, adequate and proper service.  N.J.S.A. 48:2-23.  Here, [...] seeks to install high capacity 69kV power lines to upgrade electric transmission and distribution lines throughout New Jersey to meet increasing electric demand and ensure a reliable energy infrastructure.  Further, the need for taller poles for the power lines is mandated pursuant to the National Safety Code which was adopted by the [...] through N.J.A.C. 14:5-2.1.  Therefore, the Project is crucial for [...] to fulfill their statutory obligation to furnish safe and adequate utility services throughout New Jersey.  The Project is also necessary, and [...] properly routed the Project through [...].  The Project is also necessary as it was approved by [...] under the delegated authority of [...].  Further, the selection of the route for the Project follows [...]'s existing power lines (existing right-of-way and land rights) in accordance with the [...] regulations.  See N.J.A.C. 14:5-7.1 (a public utility is required to select a route for its transmission facility that “[m]ake[s] use of available ... rights of way whenever practicable, feasible and with safety”); See also N.J.A.C. 14:3-8.5(d) (requiring a regulated entity “to facilitate construction of an extension at the lowest reasonable cost consistent with system reliability and safety”).  Therefore, alternative routing around [...] is not feasible under the administrative code and [...] is obligated to route the Project through [...] as it poses the lowest reasonable cost.
[brief] 9 U.S.C. §§1 – 16 14, 17 N.J.S.A. 2A:23B-1 to 36 14, 18 N.J.S.A. 2A:23B-7 21 N.J.S.A. 56:12-1 to 12-13  12 N.J.S.A. 56:12-2 15 N.J.S.A. 56:12-10(b)(3)  15 N.J.S.A. 56:8-1 TO 8-227  14  NEW JERSEY COURT RULES R.1:6-2(d)  20 R.1:6-2(f)  21  ADDITIONAL AUTHORITY
[brief] [...]’s jury instructions, when viewed, as they must be, in their entirety, did not contain error or confuse the jury.  The judge first instructed the jury on the elements of aggravated manslaughter and reckless manslaughter and gave the standard language from the model jury charge on convicting if the jury found the State had sustained its burden.  (6T124-13 to 6T128-25).  The court likewise instructed the jury that if the jury was not convinced that the State had sustained its burden of proving the elements of the offense, defendant was entitled to an acquittal.  (6T126-24 to 6T127-6; 6T128-17 to 21).  The language used by the trial court is from the model jury charges.
[brief] These rulings are the result of the Trial Court’s consideration of the parties arguments, are well-reasoned, and should be affirmed.  [...] nonetheless filed this appeal, seeking to re-argue, once again, that: (1)  The Trial Court erred by confirming the Arbitration Award and entering judgment because the Arbitrator’s extra-contractual findings clearly and irrationally exceed the powers granted to him under the parties’ contract; (2) The Trial Court erred by denying Appellant’s motion to modify the Arbitration Award because the Arbitration Award contains many errors in the calculation of interest and description of the projects at issue; and (3)  The Trial Court erred in denying Appellant’s request to assert a counterclaim for setoff because equity mandates the amount of the Arbitration Award be reduced to reflect Respondent’s offsetting obligation to Appellant.  [Da581-82.]  These are the same exact clear-cut legal issues already presented in the Trial Court.  Further, on July 19, 2024, and in the face of [...]’s opposition thereto, the Trial Court stayed its Order Confirming Arbitration and Entering Judgment pending [...]’s current appeal based on a payment bond obtained by [...] pursuant to the PTA’s requirements.  App. Br. at 9; Da517.  [...] thereafter filed a motion for summary disposition, a motion to expedite this appeal, and a motion to vacate the stay, which were all denied in full by the Appellate Division’s September 6, 2024 Order.  Da527.  Despite a full trial on these contractual issues, [...] hopes the Appellate Division—without the benefit of the entire arbitral evidentiary record, nor the advantage of hearing and weighing witness testimony and credibility—will review the PTA and Arbitration record \textit{de novo} and come to a different and more favorable conclusion to [...].  Again, however, that is not the way arbitration works.  The issue before the Court now is simple, and that is merely to affirm the Trial Court’s confirmation of an arbitration award that was not the product of fraud, corruption, or any wrongdoing.
[brief] 12 CFR Section 1026.6(b)(2)(i) requires that the APR be disclosed in 16-point type.  A visual inspection by the lower Court of Defendant’s Exhibits D (Da55), E (Da57), F (Da59), G (Da61), H (Da63), I (Da65), and J (Da67) would have revealed the incontrovertible fact that the APR is not disclosed in 16-point type.
[brief] There were two reasons for that conclusion.  First, when [...] got into his car “in the critical moments before [...]’s injury,” there was nothing to suggest that he had acted in a jealous rage or heat of passion.  *Ibid.*  Rather, the court found that defendant’s claim that he acted out of “panic,” not “fury,” and that he characterized the killing as a “tragic accident” meant that the extreme, control-eliminating passions needed for passion/provocation did not exist.  Second:  [A]lthough defendant and [...] exchanged blows before defendant returned to his car, the victim in this case did not die in a physical altercation “waged on equal terms. ”  ….  After defendant was struck by [...], he retreated to the safety of a locked car that he owned and controlled.  Minutes later, at the moment of [...]’s fatal injury, defendant exercised that control to drive in a manner that precipitated [...]’s death.  Neither of the two “objective elements” of passion/provocation—reasonable and adequate provocation and an absence of adequate cooling-off time—is evidenced by the facts presented.  Ibid. (citing Crisantos, 102 N.J. at 274).  Such is the case here.  Defendant, at all points, claimed he acted out of sheer panic, that he did not mean to kill [...] and consciously tried to “aim low,” and that the second shot was an accident.  (21T:131-16 to 140-4).  This is not the furious, wild, uncontrolled passion needed for this charge.  Moreover, as defendant had a concealed weapon on him, any scuffle the two men got into prior to the shooting was not entered into on equal terms.  Thus, defendant was not entitled to a charge on passion/provocation, as the trial court aptly found, and no reversal is warranted.