ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Respectfully submitted, [...]  Attorneys for Amici Curiae ([...] and the [...])  By: s/ [...]  [...]  [...]  Dated: August 6, 2024  REPLY BRIEF AND APPENDIX FOR DEFENDANTS-APPELLANTS  [...], [...], [...], [...]  AND [...]  [...] (Pro Hac Vice)  [...] (Pro Hac Vice)  Of Counsel [...]  [...] [...]  [...]  [...]  [...]  Attorney ID# 008431991  Of Counsel  [...]  Attorney ID# 165172015  On the Brief  STRADLEY  RONON STEVENS & YOUNG, LLP 457 Haddonfield Road, Suite 100  Cherry Hill, New Jersey  08002 [...]  [...]  [...]  Attorneys for Defendants-Appellants  UnitedHealth Group, Inc., UnitedHealthcare Insurance Company, Oxford Health Plans (NJ), Inc. and UMR, Inc.  (For Continuation of Appearances  See Inside Cover)  Date Submitted: August 6, 2024  [...], MIDDLESEX  EMERGENCY PHYSICIANS, PA and PLAINFIELD  EMERGENCY PHYSICIANS, PA, Plaintiffs-Respondent, vs. [...], [...], [...], [...], and [...], Defendants-Appellants.
[brief] Pa154; Pa401 at ¶20.  Q.  Do you think it is appropriate for drivers to have the ability to turn off LDW?  A.  Yeah, I think there could be some circumstance where somebody may want it off.  But I don’t think it is proper that it would be turned off, LDW, LKAS, any of these systems, that they would always be off every time you start the vehicle. ”  A plaintiff is not required to demonstrate to an absolute certainty what would have happened in the circumstances that the wrongdoer does not allow to come to pass.  See, e.g., Hake v.  Manchester Twp., 98 N.J. 302, 306 (1985) (where Court held that a plaintiff may establish causation by showing that the defendants’ negligence negated a substantial possibility of avoiding harm, thereby constituting a substantial factor in causing death).  The concepts of causation for failure to act are generally expressed in terms of whether the conduct may be viewed as a “substantial factor contributing to the loss. ”  Hake, supra, 98 N.J. at 311; Francis v. United Jersey Bank, 87 N.J. 15, 44 (1981); see Soler, supra, 98 N.J. at 152 (whether original design defect constituted either the sole, independent cause of the accident or a concurrent or contributing proximate cause is a question for the jury).
[directive] An early warning system should be designed to identify any pattern or practice by any member of the agency that warrants intervention or remediation before it develops into a more serious problem.  INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022 12  3.4.4  Any mechanism or procedure a law enforcement agency establishes to monitor and track the behavior and performance of individual police officers must have as two of its linchpins quality supervision and an objective and impartial internal affairs process.
[brief] The Supreme Court held that the requirement of such “‘explicit language’” is a “‘bright line rule. ’”  Ibid.  Accordingly, where a contract includes more than one indemnity clause, and the clauses contain conflicting obligations regarding indemnity for the indemnitee’s own negligence, the contract is not Azurak compliant.  Mantilla, 167 N.J. at 266-68, 269-70; Englert, 389 N.J. Super. at 56-58; Meder v. Resorts Int’l Hotel, Inc., 240 N.J. Super. 470, 480 (App. Div. 1989).  Of the four published cases adjudicating indemnity disputes involving contracts that contain more than one indemnity clause, three held that the inclusion of multiple indemnity clauses that contained different indemnity obligations rendered the contract unenforceable with regard to indemnity for a tortfeasor’s own negligence.  Mantilla, 167 N.J. at 269-73; Englert, 389 N.J. Super. at 57-58; Meder, 240 N.J. Super. 470.
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[directive] 9.9.1  The internal affairs function should prepare periodic reports for the law enforcement executive that summarize the nature and disposition of all misconduct complaints the agency received.  This report should be prepared at least quarterly, but may be prepared more often as directed by the executive.  The report should include the principal officer; the allegation; the complainant; the age, sex, race and other complainant characteristics that might signal systematic misconduct by any member of the agency; and the investigation’s status.  61  INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020  9.9.2  Concluded complaints should be recorded and the reasons for termination explained.  9.9.3  This report shall be considered a confidential, internal work product.  Dissemination of the report should be limited to command personnel, the County Prosecutor, the appropriate authority, or a civilian review board that meets the minimum requirements for access to internal affairs information, if mandated by the governing body.  9.10
[brief] ”  Perhaps the court’s view was colored by [...]’s avoidance of the terms “liquidated damages” or “stipulated damages” when drafting lease rider.  If so, this sort of formalism has been rejected by New Jersey courts.  For the past eighty years, New Jersey courts have relied on the “circumstances of the case and not on the words used by the parties” in determining the enforceability of stipulated damages clauses.  *Gibbs v. Cooper*, 86 N.J.L. 226, 227–28, (E. & A.1914); see also Farnsworth, [*Contracts*], § 12.18 at 939 (“the parties' own characterization of the sum as ‘liquidated damages' or as a ‘penalty’ is not controlling”); *Wasserman’s Inc.*, 137 N.J. at 251.  Although Plaintiff stresses the fact that the term “liquidated damages” is not used in the paragraph, New Jersey caselaw counsels against reliance upon strict adherence to formalistic requirements in examining such clauses.  Cf. Wasserman's Inc. v. Township of Middletown, 137 N.J. 238, 645 A.2d 100, 107 (1994)(explaining that New Jersey courts assessing the enforceability of stipulated damages clauses have “relied on the ‘circumstances of the case and not on the words used by the parties' ”)(quoting Gibbs v. Cooper, 86 N.J.L. 226, 90 A. 1115, 1116 (1914)); Spialter v. Testa, 162 N.J.Super. 421, 392 A.2d 1265, 1268 (D. Ct.1978)(reasoning that although the “clause at issue does not specifically use the term liquidated damages[, t]hat alone is not determinative, for the court must look to substance as well as form”).
[brief] The FFD evaluation was understood to relate to [...]’s stress as a result of the TL incident.  (T4 198:21-200:13).  The TL incident, however, was barely addressed.  [...]’s questions focused on the IA investigation into [...] and potential misconduct.  (T4 198:21-200:13; T5 16:17-18:19; Pa193).  [...] received instruction on how to conduct the evaluation from [...], who was assigned to the Human Resources Department (“HR”) at the time.  (T2 8:25-9:1, 40:15-22, 42:21-25).  The Department had, in fact, given [...] a draft IA report, despite the fact that the investigation had not been completed and the IA investigation was not the reason that [...] was sent for an FFD.
[brief] ”  *Id.* at 506 (emphasis in original).  That loss need not be proved; it is “assumed. ”  *Id.*  This is because the defendants use and presumptive earning of interest on the subject funds creates the loss, while “the plaintiff was deprived of such enjoyment. ”  *Id.; Lautek*, 276 N.J. Super. at 551 (“The interest awarded does nothing more than cover the value of the sum awarded for the prejudgment period during which the defendant had the benefit of the monies to which the plaintiff is found to have been earlier entitled. ”).  The reasoning in *Rova Farms* almost perfectly describes the trial court’s error here.
[brief] IV.  The N.J.S.A. 48:12-152 immunity statute was intended to protect railroads from lawsuits filed by trespassers, not from lawsuits filed by people legally within crossings established by railroads.  Pa4.  The Motion Judge ignored the plain language of N.J.S.A. 48:12-152 which led to an overly broad application of this immunity statue which has resulted in an outcome that the legislature never anticipated or intended.  N.J.S.A. 48:12-152a reads as follows:  a.  No person other than those connected with or employed upon the railroad who are acting within the scope of their employment shall enter upon the **right of way** of any railroad or come into contact with any equipment, machinery, wires or rolling stock of any railroad.  **This section shall not prohibit** a passenger for hire from utilizing those parts of a railroad particularly intended for passenger use **nor shall it prohibit a person from using a crossing established by the railroad. **  (emphasis added)  A plain language reading of wording of this immunity statute cannot lead a reader to any conclusion other than that this statute was not intended to grant tort liability immunity to a railroad involved in a crash with a person who while on a railroad right of way, is “using a crossing established by the railroad.
[brief] ”  Id. at 228.  [...] relied in part upon the United States Supreme Court’s decision enforcing a contract where “[t]he plaintiff’s cause of action is in no legal sense dependent upon, or affected by the alleged illegality...because the illegality, if any, is entirely collateral to the transaction in question, and the court is not called upon in this action to enforce any contract tainted with illegality, or contrary to public policy. ”  Connolly v. Union Sewer Pipe Co., 184 U.S. 540, 547 (1902).  The New Jersey Supreme Court has also addressed the doctrine of collateral contracts in *Manning Eng’g, Inc. v. Hudson Cnty. Park Comm’n*, 74 N.J. 113 (1977):
[brief] The court was required to address two issues: 1) the timeliness of the State’s submission of the report (it was provided to the defense on April 25, 2022, one day before jury selection began); and 2) the forensic reliability of the report and proffered testimony.  [...]’s report replaced an earlier report prepared by the New Jersey State Police which set forth a geo-time analysis.  T1, 150:11-12.  According to [...], the previously submitted report contained information about longitude and latitude which [...] said had the potential to be misleading.  T1, 153:11-19.  [...] testified that he was a special agent with the FBI and had been so employed for 18 years.
[brief] In rendering its decision, the trial court relied explicitly on the unpublished decision in Allison-Williams Co. v. Viasource Funding Grp., LLC, NO. A-1720-08T1, 2010 N.J. Super. Unpub. Lexis 1260 (App. Div. June 9, 2010), (see 5T8:24-10:7), which is distinguishable from this case in several ways.  First, Allison-Williams applied New York law – not New Jersey law.  Unlike New Jersey law, in New York a “promise to pay another's fees in [an] indemnification agreement "must be exclusively or unequivocally referable to claims between parties on the contract rather than claims of third parties. ”  *Id.* at *29* (citing *JMD Holding Corp. v. Congress Fin. Corp.*, 828 N.E.2d 604, 613 (N.Y. 2005).  As noted above, however, this is not the law in New Jersey.  *Second*, *Allison-Williams* held that the contractual indemnity provision at issue there did not allow the plaintiff to recover the fees that the *plaintiff* incurred in bringing a breach of contract action against another party to its contract.  *Id.* at 29-30 (the contract did not give Plaintiff the “right to claim fees from defendant for litigation that they have initiated against defendant on the contract itself”).  *Allison-Williams* did not deal with a first party claim for contractual indemnification by a defendant for the fees incurred as the result of another party to the contract asserting claims against the defendant.
[brief] TABLE OF AUTHORITIES ........................................................................................................ ii  PRELIMINARY STATEMENT .................................................................................................1  PROCEDURAL HISTORY AND FACTUAL BACKGROUND ...........................................3  LEGAL ARGUMENT ..................................................................................................................4  POINT I: SUBSECTION (b)(5) IS CONCERNED WITH AFFIRMATIVE MISUSE OF TANGIBLE RAILROAD PROPERTY .................................................................4  POINT II: CONTRIBUTORY  NEGLIGENCE HAS NEVER BEEN A BAR WHERE IT IS CREDIBLY ALLEGED THE RAILROAD OPERATOR COULD HAVE AVOIDED THE COLLISION  .................................................................8  POINT III: THE LEGISLATURE DID NOT INTEND FOR THE 1998 AMENDMENTS TO EXPAND THE ACT’S IMMUNITY FOR CROSSING FATALITIES  .........................................................................................................................10  CONCLUSION ............................................................................................................................13  TABLE OF AUTHORITIES  Cases  Egan v. Erie R.R. Co., 29 N.J. 243 (1959) .................................................................  7 Funes v. Norfolk Southern Corp., A-5348-10 (App. Div. Sept. 18, 2012) ...........................................  10, 11 Hendrickson v. West Jersey and Seashore Railroad Co., 102 N.J.L. 310 (1926) ...............................................................  9  Jasiczek v. Pennsylvania Railroad, 90 N.J. Super. 380 (App. Div. 1967) .............................................  11  Jelinek v. Sotak, 9 N.J. 19 (1952) ........................................................................  8  Johnson & Johnson v. Director, Division of Taxation, 244 N.J. 413 (2020) ..................................................................  7  Renz v. Penn Central Corp., 87 N.J. 437 (1981) ....................................................................  5  Webb v. West Jersey and Seashore Railroad Co., 100 N.J.L. 204 (1924)  ...............................................................  8, 9 Statutes N.J.S.A. 48:12-152 ................................................................ passim  PRELIMINARY STATEMENT
[directive] To the extent the trial court’s attributable to the second November 2021 order incorrectly extended the two-year date in that manner, any error was cured by the prosecutor’s statement of readiness.  29  Defendant here correctly argued that a superseding indictment does not 180-day clock.  The CJRA provides that “[t]he return automatically reset the of a superseding indictment against the eligible defendant shall extend the time for the trial to commence.
[brief] Until *Carteret* and the Third Circuit’s decision in *Gov’t Employees Ins. Co. v. Mount Prospect Chiropractic Ctr, P.A.*, 98 F.4th 463 (3d Cir. Apr. 26, 2024), both of which are patently flawed, there was not one decision that held PIP arbitration is the appropriate forum for IFPA claims.  It is the clear dictate of the State Courts that IFPA claims are to be adjudicated in the Superior Court and not in the inadequate arbitration forum.  In disregarding the established law concerning IFPA jurisdiction, the Law Division erred.  POINT V
[brief] Likewise, Respondents’ prior argument that registration is “directly tied to the payment of prevailing wages” is undermined by the stated purpose of the statute (e.g., monitor and enforce payroll taxes) and, again, contrary to DOL’s published guidance.  Indeed, on its website, the DOL advises that the PWCRA registration requirement is not limited to only employing a prevailing wage craft:  What is the list of prevailing wage crafts?  Select all prevailing wage crafts employed by the contractor directly upon any work for which the payment of prevailing wage is required.  Below is a list of crafts.  If a craft is not listed, please add it under “Other” and provide a description of craft.  If the contractor does not employ any prevailing wage crafts, please select "Other" and provide a brief explanation.  Note: craft means the work classification, taken from the NJDOL wage determination, that a company would list on a certified payroll.  If you are unsure of your company or individual employee work classification, please contact the Division at [...].  1579a.
[brief] Pursuant to the order granting partial summary judgment, common knowledge negligence and trespass claims survived.  (Pa000084.)  The Court only held that “professional” negligence claims could not be pursued.  The trial court also reserved the issue regarding whether or not an expert was needed on duty of care until a later period in time.  (1T Hearing, page 23, line 14 to line 23.)  The trial court only rendered a ruling in this regard when it ruled on [...]’s second motion for summary judgment.
[brief] The raw data also do not indicate whether Defendants considered prevailing market conditions in resetting rates.  Nor do they reveal whether Defendants exercised professional judgment in resetting rates or whether they engaged in efforts to determine what the lowest rate was, crucial components of the fraud.  See Ja9, 27, 29, 40 (¶¶ 2, 63, 70, 116-17).  That independent knowledge was ferreted out by Relator and its doing so was unprompted by any public disclosure or third party.  Kennard, 363 F.3d at 1046; United States ex rel. Reagan v. E. Texas Med. Ctr. Reg’l H’care Sys., 384 F.3d 168, 179 (5th Cir. 2004) (original source revealed “new and undisclosed relationship between disclosed facts”); United States ex rel. Hagerty v. Cyberonics, Inc., 95 F. Supp. 3d 240, 260 (D. Mass. 2015), aff’d, 844 F.3d 26 (1st Cir. 2016).
[brief] (2T6-24 to 7-6; Da119, 121)  The Court went off the record so the exemplars could be taken; when the Court resumed proceedings on the record, the prosecutor stated that [...] from the [...]'s Criminal CSI team attempted to take a buccal swab and major case prints from Defendant but Defendant “refused repeatedly to provide either of those two samples. ”  (2T15-13 to 18)  Defendant’s counsel said that Defendant was continuing to raise his objection based on the fact that a buccal swab was previously taken from him at the jail.  (2T15-20 to 24)  The Court then entered an order reflecting Defendant’s refusal and directing the State to “apply to the court for any appropriate relief to compel the defendant to cooperate. ”  (Da120)
[brief] In *State v. [...]*, 102 N.J. 133, 144-45 (1986), the trial court instructed the jury on passion/provocation manslaughter and the jury convicted the defendant of aggravated manslaughter, however, the Supreme Court reversed defendant’s conviction because the trial court’s jury instructions on passion/provocation manslaughter were impermissibly burden shifting.  The Supreme Court acknowledged that its remand for a new trial would present “practical problems” because [...] could not be retried for purposeful or knowing murder.  *Id.* at 149.  Nonetheless, the Supreme Court ruled that if the evidence on the retrial warranted it, the trial court could submit passion/provocation manslaughter as an available verdict if the jury found from the evidence that the State had proven the elements of the offense beyond a reasonable doubt.
[brief] [...], [...], [...], [...], [...], [...], [...], [...], AND [...], Complainants-Appellants, v. [...], [...], OCEAN COUNTY, Respondent-Respondent.  SUPERIOR COURT OF NEW JERSEY – APPELLATE DIVISION  DOCKET NO. [...]  CIVIL ACTION ON APPEAL FROM THE FINAL DECISION OF THE SCHOOL ETHICS COMMISSION AGENCY DKT. NO. [...] FILED APRIL 16, 2024  COMPLAINANTS-APPELLANTS’ BRIEF IN SUPPORT OF THEIR APPEAL FROM DECISIONS OF THE SCHOOL ETHICS COMMISSION
[brief] See P.L. 1846, p. 195 (permitting voters to list whatever qualified elector they wanted on the ballot regardless of political party).  In 1860, [...] received four electoral votes from New Jersey for this reason, while [...] received three.  See Election of 1860, N.J. DEP’T OF STATE, https://www.nj.gov/state/archives/lincoln.html. ballots, so there was no way to see whether someone had voted twice for a candidate, once by regular vote and once by irregular vote.  However, that concern is no longer relevant with the widespread and mandatory adoption of optical scan voting machines, as they generate individual printouts of each ballot cast on the machine, including a breakdown of all votes cast.
[brief] Exhibit 24, Partial Report of [...], January 4, 2018, filed April 26, 2018 (omitted here – see 688a) Exhibit 25, Report of [...], P.E., dated March 8, 2018, filed April 26, 2018  Exhibit 26, Accident Report, dated October 6, 2003, filed April 26, 2018  Exhibit 26, Memorandum of OSHA Intervention/Closing Conference, dated April 26, 2005, filed April 26, 2018  Exhibit 26, Accident Investigation Report, dated October 13, 2003, filed April 26, 2018  Exhibit 26, N.J. State Police Investigation Report, dated October 26, 2004, filed April 26, 2018  Exhibit 26, N.J. State Police Supplemental Investigation Report, dated February 1, 2005, filed April 26, 2018 (Volume 3 of 15 – Pa380 to Pa569)  Exhibit 26, Memorandum of OSHA Investigation Opening Conference, dated October 26, 2004, filed April 26, 2018  Exhibit 26, Accident Report, dated October 27, 2008, filed April 26, 2018  Exhibit 26, Incident Investigation Report, dated August 19, 2010, filed April 26, 2018  Exhibit 26, N.J. State Police Investigation Report, dated November 3, 2010, filed April 26, 2018  Exhibit 27, Printouts from [...], webpage, dated April 26, 2018, filed April 26, 2018  Exhibit 28, Dadura v. Yum! Brands, Inc., 2008 WL 926634 (App. Div. Apr. 8, 2008) (unpublished), filed April 26, 2018
[brief] THE TRIAL COURT ERRED BY DENYING MY REQUEST TO GRANT ME PAIN AND SUFFERING DAMAGES AND PUNITIVE DAMAGES FOR COMMITTING FRAUD UPON THE COURT BY [...]  Raised Below: paragraph 39 (029) and [...] reports at (222a).  In 1T page 8 lines 2-6.  Bayview did not oppose and did not deny my claims and arguments.  The denial order is at (221a).  During the last seven years, when the second foreclosure complaint was filed by Bayview on 5/12/16, my family and I have been going through extreme emotional stress.  In my Verified Complaint I explained to the trial court I the hardship that my family and I have been going through; paragraphs 1-5 (024a).  [...] from [...] has been my therapist for the past few years.  [...] reports on 5/7/22 and 3/26/23 at (222a).  Bayview did not oppose my requests and did not deny my requests.  [...] denied my requests without statement of reason.
[brief] “Disparate treatment [under the LAD] is demonstrated when a member of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under the anti-discrimination laws. ”  *Mandel v. UBS/PaineWebber, Inc.*, 373 N.J. Super. 55, 74 (App. Div. 2004).  Plaintiffs must demonstrate that the Board was “motivated by discriminatory intent. ”  *Mandel*, 373 N.J. Super. at 76.  “Proof of discriminatory motive is critical” for a disparate treatment claims.  *Gerety v. Atl. City Hilton Casino Resort*, 184 N.J. 391, 398 (2005); *Peper v. Princeton Univ. Bd. of Trustees*, 77 N.J. 55, 81 (1978) (same).  *See also Jason v. Showboat Hotel & Casino*, 329 N.J. Super. 295, 304 (App. Div. 2000) (claim of disparate treatment requires plaintiff to prove a discriminatory motive); *Maietta v. United Parcel Service, Inc.*, 749 F. Supp. 1344, 1370 (D.N.J. 1990) (plaintiff bears the ultimate burden of persuasion in a disparate treatment case to show treatment was caused by purposeful or intentional discrimination).