Appellate Division Rules in Favor of M&W Clients, Sets New Protocols for Protection of Student Recordsmore
On October 16, 2017 the Appellate Division published its long-awaited decision addressing the statewide practice of “Innisfree Foundation” and other OPRA requestors demanding copies of special education settlement agreements, correspondence relating to special education, HIB reports and other student records.more
Over the past several years, member school districts have responded differently to such OPRA requests due to a lack of controlling law, concerns over student confidentiality and the anticipated cost and expense of OPRA litigation, in which prevailing requestors are entitled to an award of attorney fees.
L.R. and J.R. v. Camden City Public School District
involved four consolidated “test” cases in which trial judges issued conflicting rulings on the accessibility of student records through OPRA. The Appellate Division, while not rejecting out of hand all OPRA requests for student records, agreed with the appealing school districts that student records may not be redacted into “OPRA-ability” as public records to circumvent the privacy protections of the Family Educational Records Privacy Act or the New Jersey Pupil Records Act.
The Court conducted a scholarly review of the history of pupil record access laws, reviewed areas of conflict between OPRA, FERPA and the PRA and attempted to harmonize the statutes, remanding all four “test cases” to Camden County Superior Court for further proceedings.
In two of those four cases such proceedings will include a determination of whether the “Innisfree Foundation,” the creation and client of the attorney who represents it, constitutes a “bona fide researcher” who is entitled to student records for legitimate research purposes. The articulated definition of a bona fide researcher is rather vague and its application by the trial court in Camden County, to which the cases have been remanded for further proceedings, could very well culminate in a determination which the Appellate Division would be called upon to review on appeal.
As to OPRA requestors for student records other than “bona fide researchers,” such requestors henceforth will be entitled to obtain records only if they obtain a court order based on a finding that their “wholesome public interest” or “a legitimate private interest” outweighs the District’s legitimate interest in maintaining confidentiality.
Any records that are released, the Court held, should be redacted to the extent necessary to render the students unidentifiable. Further, parents of all students whose records fall within the scope of the request are entitled to three days written notice and an opportunity to object. Presumably any objections will inform the trial court’s decision whether or not to order their release.
This decision was issued on October 16, 2017 and has been stayed for a period of 30 days, to be extended if any party petitions the Supreme Court for leave to file an appeal. However, unless and until it is overturned, its directive to school districts is clear:
1. Should you receive an OPRA request for student records as that term is broadly defined by the PRA and/or FERPA, you should not release such records without either a court order or a demonstration that the requestor is a “bona fide researcher” – which you should explore with your Board solicitor should the requestor claim to enjoy this status.
1. You should send written notice to the parents of any students (or the students themselves if over 18 years of age) whose records fall within the scope of the request that such records may be released and that the students may voice any objection or concern in writing to you, which your attorney should review and address as s/he sees fit.
1. Any records ultimately released, whether by court order or on account of the requestor’s status as a bona fide researcher, should be heavily redacted to remove personal identifiers. Should there be any dispute over the extent of redaction, your Board solicitor should seek a judicial ruling, following an “in camera” review by a trial judge.
Should you have any questions regarding this important decision feel free to contact Eric Harrison
at Methfessel & Werbel, whose direct line is (732) 650-6511.
For Fourth Straight Year, M&W Named Insurance Law Litigation Department of the Yearmore
Edison, N.J. – August 29th, 2017 – The New Jersey Law Journal has named Methfessel & Werbel New Jersey’s top insurance law firm of the year, making the firm a four time winner.more
Recipients of this prestigious award are recognized for their excellence and impact in the fields of first party, third party and subrogation work. Methfessel & Werbel is the first four-time winner.
Edison, N.J. – August 29th, 2017 –
The New Jersey Law Journal has named Methfessel & Werbel New Jersey’s top insurance law firm of the year, making the firm a four time winner.
“To be recognized a fourth time as the winner of this award is an incredible feat for our firm,” stated Joel Werbel
, co-founder of the firm. “45 years ago we founded Methfessel & Werbel with the idea that we would build relationships with our clients in the insurance and risk industry that would serve their needs over the long term. One of the things that makes me the most proud is that we have a number of clients who have been with us for that entire period – a fact that has confirmed our approach.”
Methfessel & Werbel is one the longest standing firms and the preeminent insurance law firm in New Jersey. The firm serves clients ranging in size from mono-line program carriers and MGAs to Fortune 500 multi-line carriers and self-insureds. M&W has never strayed from its core mission to serve the needs of the insurance and managed risk industry since its founding in 1972. They have continued to grow to their present size of 46 attorneys, and were most recently recognized by N.J. Biz Magazine as the 39th largest firm in New Jersey.
No firm over the past 45 years has had a greater impact on the development of law affecting insurance carriers in New Jersey. Hundreds of cases litigated by Methfessel & Werbel have culminated in written opinions at all levels, including trial and appellate courts and the New Jersey Supreme Court. The firm has participated in cases culminating in over 150 published appellate decisions in state and federal courts, as well as several hundred cases culminating in unpublished decisions. In 2015, M&W represented parties in 10 Appellate Division decisions and two Third Circuit decisions; the firm handled over 30 appeals that year alone. In 2016 the firm represented parties in eight Appellate Division decisions, one Third Circuit decision, and a New Jersey Supreme Court decision directly involving the insurance industry.
M&W attorneys have argued many insurance coverage cases before the Supreme Court of New Jersey, including the landmark New Jersey Supreme Court case of Brill v. Guardian Life Insurance Company
, which established the standards for the granting of summary judgment. Legal standards affecting the insurance industry, which the firm helped establish, are still relied upon today. For example, 23 years ago, the New Jersey Supreme Court decided Pickett v. Lloyd’s of London
. The Supreme Court accepted the argument advanced by the firm that extra-contractual damages should not be available in a dispute over first-party coverage when the insurer’s decision is “fairly debatable.” In February of 2015, the New Jersey Supreme Court reiterated the continued validity of Pickett in Badiali v. New Jersey Manufacturers’ Insurance
Methfessel & Werbel’s most recent New Jersey Supreme Court decision involved an insurance coverage case, Bardis v. Stinson
. In April of 2016 the Supreme Court agreed with the firm that the supplemental collapse coverage provision contained in a dwelling policy was unambiguous and did not afford coverage for collapses caused by “hidden” construction defects.
About Methfessel & Werbel
Methfessel & Werbel was established in 1972 to serve the needs of the Insurance and Managed Risk Industry. Our team of 46 attorneys and approximately 50 support staff pursues excellence with integrity in its mission to serve our clients every day. To learn more, visit the company’s website at http://njinslaw.com
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Methfessel & Werbel Announces Promotions, Staffing Changesmore
As M&W celebrates its 45th Anniversary, Stanziale, Sternback, and Johnstone become Partners of the Firm; Thornton moves to “Of Counsel.” Methfessel & Werbel is proud to announce the promotion of a number of attorneys, as well as staffing and managerial changes, to take effect immediately. These promotions coincide with the firm’s 45th Anniversary serving the needs of the Insurance and Claims Industry.
As part of those promotions, Gina Stanziale
, Lori Brown Sternback
, and I. Blakeley Johnstone
have all been named Partners of the Firm. Amanda Sawyer
and Leslie Koch
have been named Counsel to the Firm, and Paul Endler
has been named an Attorney Manager.
The firm also announces that Edward L. Thornton
will become Of Counsel to the firm as of July 1, 2017.
“We are thrilled to announce these promotions, recognizing the deep contributions and significant impact to our clients and the firm of these professionals,” said Matthew Werbel, co-Managing Partner. “They have all been with the firm for substantial periods of time, and are recognized by bench and bar alike for their expertise and professionalism in their specific fields of practice, all of which relate of course to the Insurance and Claims Industry. We applaud and congratulate all of them.”
Ms. Stanziale is co-Attorney Manager of the Property Team at M&W, and practices in the areas of Property Claims, Coverage, and First Party claims. Ms. Sternback is a liability defense trial attorney handling complex claims and high-value injury cases. She has tried well over 50 cases to verdict. Mr. Johnstone is the attorney Manager of the Subrogation Team at M&W, and specializes in the prosecution of high value subrogation claims. Ms. Sternback and Mr. Johnstone are both certified by the New Jersey Supreme Court as Civil Trial Attorneys.
Ms. Koch has specialized in the defense of employment claims and third party claims under the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act and other civil rights statutes, since joining the firm in 2006. Ms. Sawyer began her career at M&W in 2009 and handles complex liability defense cases of all types.
The firm also recognizes the untold noteworthy contributions of Ed Thornton. “Ed is universally recognized as one of the top civil trial attorneys in the State of New Jersey,” said co-Managing Partner John Methfessel Jr. “He has been with the firm for almost 40 years, and while he will reduce his role somewhat, we and our clients are still extremely fortunate that he will be with us and available to us in an ‘Of Counsel’ role. We wish Ed well in this new chapter of his professional life, comforted by the fact that he will still be part of our team.”
About Methfessel & Werbel
Methfessel & Werbel was established in 1972 to serve the needs of the Insurance and Managed Risk Industry. Our team of 58 attorneys and approximately 50 support staff pursues excellence with integrity in its mission to serve our clients every day. To learn more, visit the company’s website at http://njinslaw.com
New Jersey Supreme Court Alters Continuous Trigger Doctrine in Environmental Claimsmore
In Farmers Mutual v. N.J. Property-Liability Guarantee Association, handled by Ric Gallin of our office, the New Jersey Supreme Court has increased the exposure of property/casualty carriers in instances where there is an insolvent carrier sharing the risk with other carriers or the insured in long tail claims such as environmental and toxic tort exposures.more
It has long been the law in New Jersey, pursuant to the Owens-Illinois/Carter Wallace doctrine, that there is a continuous trigger in New Jersey for long tail claims such as toxic tort and environmental claims. Every carrier on the risk from first exposure until manifestation is triggered. The Courts have also consistently stated, on more than one occasion, that the insured bears the risk of periods of self insurance and carrier insolvency. The Supreme Court has changed this doctrine.
Our firm handled this case from the outset. It was always understood that this was going to be a test case and numerous other carriers allowed us to carry the ball on behalf of the homeowners carriers who were similarly situated. It was our contention that PLIGA was the entity responsible in the event of insurer insolvency. We were successful at the trial court level and entered into consent judgments against PLIGA. At the Appellate Division level the Court effectively undercut the multiple pronouncements by the Supreme Court over the years that the insured would be responsible in the event of insolvency and ruled that a solvent carrier is responsible for protecting an insured against an insurer insolvency in the event there is more than one insurer applicable to the loss. Case Alert: September 2013