E294 February 4, 2009

NJ Laws Email Newsletter E295 February 11, 2009 Kenneth Vercammen, Attorney at Law Herniated disc not always permanent injury Ames v. Gopal 12-09-08 A-2522-07T1 The Applellate Division held Plaintiff was not entitled at trial to an instruction that a herniated disc constitutes a permanent injury, entitling him to non-economic damages. The The Applellate Division reduced Pardo v. Dominguez 382 N.J. Super. 489 (App. Div. 2006).

1. Recent cases STATE PAYS $2 MILLION TO SETTLE TROOPER FATAL CRASH SUIT 2. No civil immunity for father in death of 4 year old who was left strapped in smoke filled car 3. Supreme Court orders new trial against city in negligence lawsuit and requires proof of Palpably unreasonable actions by city employee 4. Executor should not be removed without proof of fraud, gross carelessness, or indifference to duty 5. 2009 Estate Tax amounts increased 6. New Video & Legal podcast added YouTube this week.

1. Recent cases STATE PAYS $2 MILLION TO SETTLE TROOPER FATAL CRASH SUIT The state has paid $2 million to settle a Cape May County suit on behalf of two sisters killed in a crash with a police cruiser on Sept. 27, 2006. Christina Becker, 19, and Jacqueline Beker, 17, were returning to their grandmother's home after a trip to a convenience store for milk when their minivan was broadsided by Robert Higbee's car as it ran a stop sign at the intersection of Stagecoach and Old Tuckahoe roads. Witnesses and other evidence showed Higbee was going 66 mph in a 35 mph zone in pursuit of another car but without siren or flashing lights. Settlement of the wrongful death suit by the girls' mother, Maria Caiafa, was reached last May but not made public until this week. Higbee faces trial in April on two counts of vehicular manslaughter. Source: NJLJ Daily Briefing ­ 01/29/2009 njsba­njldailybriefing.com 2. No civil immunity for father in death of 4 year old who was left strapped in smoke filled car Thorpe v. Wiggan A­1995­07T2 1­29­09

A father who left his four­year­old child in a smoke­filled car strapped in a car seat, with no means of escape, is not entitled to parental immunity for the child's death. The

father's actions do not implicate customary child­care issues or a legitimate exercise of parental authority or supervision.

Full opinion at http://njlawspersonalinjury.blogspot.com/ SUNDAY, FEBRUARY 1, 2009

3. Supreme Court orders new trial against city in negligence lawsuit and requires proof of Palpably unreasonable actions by city employee Ogborne v. Mercer Cemetery Corporation (A­66/67­07) 1­29­09

The “Palpably unreasonable” standard of N.J.S.A. 59:4­2 applies to this cause of action because it concerns the physical condition of public property. In addition, the issues of proximate cause and comparative negligence must be retried because issues concerning the dangerous condition of the property and whether the City acted in a palpably unreasonable manner are intertwined with the issues of causation and foreseeability. Full Opinion at http://njlawspersonalinjury.blogspot.com/ SUNDAY, FEBRUARY 1, 2009 4. Executor should not be removed without proof of fraud, gross carelessness, or indifference to duty I/M/O Estate of Hnat , App. Div. 38­2­2604 The trial court’s removal of appellant as executrix of the decedent’s estate is reversed since the judge removed her based on assumed friction between her and the other beneficiaries without any showing that the relationship will or is likely to interfere materially with the administration of the estate or proof that the friction arose out of the trustee’s behavior. Unpublished source: J NJLJ Daily Briefing January 30, 2009 2 full opinion at http://njwills.blogspot.com SUNDAY, FEBRUARY 1, 2009 5. 2009 Estate Tax amounts increased When the calendar turned from 2008 to 2009, a change in the federal estate tax laws went into effect that is worth hundreds of thousands of dollars for some affluent families. The federal estate tax exemption — the amount of money you can leave to heirs other than a surviving spouse without its being subject to estate tax — rose from $2 million in 2008 to $3.5 million in 2009.

Estate assets above that limit are taxed at 45 percent, so this change offers considerable savings. If someone with a $3 million taxable estate died in December 2008, the estate would usually owe $450,000 in taxes — 45 percent of the $1 million above the exemption amount. If that same person died after New Year’s, the estate would owe no federal estate tax (though it might owe state estate tax). In New Jersey, the Estate Tax starts at $675,000.

Current federal law calls for the estate tax to be repealed in 2010 and then restored with a $1 million exemption. Most tax attorneys doubt that it will be repealed.

The potential revenue loss from one year without estate taxes could be tremendous,” he says.

President­elect Barack Obama’s campaign tax plan called for freezing the estate tax and exemption amount at 2009 levels.

Using exemptions to avoid tax If you expect to leave assets worth less than $3.5 million, you probably won’t have to worry about federal estate tax. If your estate is larger, it would be a good idea to meet with an estate­planning attorney. This is especially so for married couples with children.

They can use the unlimited marital exemption to leave any amount to the surviving spouse without incurring estate taxes and establish trusts to minimize the tax impact on their kids.

Consider a married couple, each spouse with $2 million in assets. If their estate plans call for the surviving spouse to inherit everything, he or she would have $4 million.

When the survivor dies, the children would inherit a $4 million estate, which is $500,000 over the limit (in 2009) and might incur $225,000 in estate tax.

Instead, the plan might be for each spouse to make bequests to the children. That would save $225,000 under current law, because no federal estate tax would be paid on each $2 million inheritance. However, the surviving spouse wouldn’t have access to half of the marital assets.

Source: http://wealthlincnews.com/c.do?cid=1039601&oid=606800 http://saulsimon.com/cgi­bin/WebObjects/View 6. New Video & Legal podcast added YouTube this week. The Kenneth Vercammen channel We have added a weekly online podcast with a video/audio description of recent cases by the NJ Supreme Court and NJ Appellate Division. The Kenneth Vercammen channel on Youtube.com is: http://www.youtube.com/user/kvercammen

Probate of a Will

http://www.youtube.com/watch?v=Kgb25k_LQEY&feature=channel_page Changes to Estate Administration Law http://www.youtube.com/watch?v=PQqI8aEa088&feature=channel_page Duty of Executor of Will http://www.youtube.com/watch?v=SJgLT­EYifA&feature=channel_page