Tort and Insurance Law Update -- 2004

David W. White
Breakstone, White & Gluck, PC
Two Center Plaza , Suite 530
Boston , MA 02108
 

What follows is a summary of the significant cases from 2004 in the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court. The cases summarized include medical malpractice, car accidents, insurance, consumer protection, attorney malpractice, lead paint poisoning, premises liability, and other personal injury cases. The cases are in chronological order.

 Lane v. Plymouth Restaurant Group,
440 Mass. 469 (2003)

Third-Party Settlements, Workers’ Compensation

[G.L. c. 152, § 15, requires court to conduct evidentiary hearing on fairness of allocation of third-party settlement when the fairness is questioned by the insurance carrier which is entitled to reimbursement.]

Plaintiff’s wife was killed by a drunk driver, and plaintiff received workers’ compensation benefits as a result. Plaintiff brought suit against the restaurant which he alleged over-served alcohol to the driver.  On the eve of trial, plaintiff amended the complaint, adding to it claims on behalf of the four sons. The claims included their claims under the wrongful death statute as well as claims on behalf of all parties for negligent infliction of emotional distress.  Over $80,000 in benefits had been paid to the plaintiff, and he continued to receive weekly benefits as of the date of trial, when a settlement of $237,500 was offered. Plaintiff proposed to accept the settlement and to allocate the funds equally among the five claimants and the various claims, leaving only a small fraction of the funds to reimburse the workers’ compensation carrier. At the settlement hearing in Superior Court the plaintiff testified that he believed the allocation was fair and appropriate. Cross examination by the workers’ compensation carrier was not permitted, nor was additional extrinsic evidence, and the settlement was approved.  The matter was appealed, and the Supreme Judicial Court took the case directly on its own motion.

The Supreme Judicial Court reversed.  The plain language of G.L. c. 152, § 15, specifically provides that the insurer shall have an opportunity to be heard on the merits of the settlement, on the allocation, and on the proposed reimbursement to the insurer. G.L. c. 152, § 15, is designed to reimburse the insurer and prevent double recovery to the plaintiff. The insurer may not be deprived of its lien. The language of the statute means once the insurer puts forth a credible argument challenging the settlement allocation, the judge must take evidence on that issue, permit cross-examination by the insurer, and must permit the insurer to present its own evidence. The court must then make findings.  The matter was remanded for further proceedings. 

Gath v. M/A-Com, Inc.
440 Mass. 482 (2003)

Spoliation, Argument by Counsel

[Court fashioned appropriate remedy for spoliation of evidence; no G.L. c. 93A claim for spoliation exists in Massachusetts.]

Plaintiff was injured when a large gate swung open into the roadway where he was riding his bicycle. The accident caused a severe traumatic brain injury resulting in paralysis and permanent cognitive impairment. Discovery revealed that the gate had the capacity to swing open into the street, and that it had been unsecured and free to blow back and forth in the wind on the morning of the accident. There was evidence of the knowledge by the landowner that the gate was open and able to move in the manner described on the date of the accident. Within two weeks of the accident, the gate was adjusted to tip the gate towards the property. Approximately one month after suit was filed, on the same day as a meeting with trial counsel, the company hired a contractor to remove the gate. The gate, its hinges, and related materials were scrapped. There was no notice to plaintiff that the material would be removed and destroyed. Plaintiff’s investigator had photographed the gate, but had been unable to test it. After hearing, the trial judge determined that the removal and destruction of the gate were at a minimum negligent spoliation of the evidence, and that the spoliation had prejudiced the plaintiff’s case. As a sanction, the judge precluded the defendant from arguing or offering evidence that the gate had been secured on the date of the accident, and from arguing that the gate had not been blowing into the street. Plaintiff’s counsel was also permitted to introduce and argue evidence regarding the removal and destruction of the gate. In his closing arguments, plaintiff’s counsel made reference to airline crashes and baseball players’ salaries. The judge immediately gave strong curative instructions, and later denied the defendant’s motion for a new trial based in part on counsel’s behavior. The defendant appealed from the large verdict in favor of the plaintiff.

The Supreme Judicial Court took the matter on direct appellate review and affirmed. The trial judge fairly considered the prejudice to plaintiff resulting from the spoliation of evidence. Trial judges have wide discretion in fashioning appropriate relief for spoliation of evidence, and there was no abuse of that discretion. The frequent reference to the spoliation by counsel during the trail and in argument was permissible; merely because evidence may be inflammatory does not mean that it must be excluded. The evidence was relevant because it assisted the jury in deciding whether to draw a negative inference against the spoliator. Counsel’s argument which made reference to baseball players’ salaries was improper, and the court admonished counsel for again crossing the line in this respect. However, the court felt that the curative instructions were adequate, and deferred to the trial judge in his assessment that the remarks made no difference in the verdict. The court also rejected plaintiff’s cross appeal that there should be G.L. c. 93A damages for spoliation of evidence. Since the court has already determined that there is no independent action for spoliation, Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544 (2002), there should not be an independent grounds for relief for spoliation under G.L. c. 93A.

Lord v. Commercial Union Insurance Company
60 Mass. App. Ct. 309 (2004)

Contract, Motor Vehicle, Insurance

[Chapter 93A plaintiff must show actual injury caused by unfair or deceptive act before any recovery or attorneys’ fees are appropriate.]

 Plaintiff sued defendant insurance company, alleging that its failure to send a notice of termination of coverage violated G.L. c. 93A.  In a separate action, plaintiff sought declaratory and injunctive relief as well as damages on behalf of a class. Both cases were consolidated for trial. The judge denied plaintiff’smotion for class certification, but allowed the matter to proceed as a “test case.” The judge found a violation of 93A but that this violation was not the cause of plaintiff’s loss. The judge awarded $25 plus $9,000 in attorneys’ fees and $2,170 in costs.  The Appeals Court affirmed in part and reversed in part, holding that plaintiff could not recover because the defendant’s practice of not sending notices of termination was not the cause of plaintiff’s loss and that plaintiff was not entitled to attorney’s fees.

Plaintiff obtained from Commercial Union Insurance Company insurance coverage with respect to a 1986 Nissan. He failed to pay a premium that was due November 5, 1991. Pursuant to defendant’s policy, plaintiff’s property damage policy was placed in suspension. Plaintiff then transferred the policy to another vehicle. Plaintiff was required by statute to have the vehicle inspected by a representative of the insurer within seven days after the effective date of the coverage or the policy would be terminated. Plaintiff never had this inspection. Defendant then sent plaintiff a letter stating that coverage would be terminated for non-payment of the premium. Because the plaintiff’s policy was in suspension due to non-payment of the premium, the defendant, pursuant to its policy, never notified plaintiff that his policy would be terminated for failure to have the inspection. 211 Code Mass. Regs. § 94.09 required insurance companies to notify insureds of the termination of their policy for failure to have this type of inspection.

Plaintiff paid the overdue premium, and defendant sent him a notice of termination of coverage for failure to pay the premium and a notice of reinstatement of coverage. Plaintiff then sustained property damage to the vehicle in the amount of $3,000. The Court held that the defendant’s policy of not sending notices regarding the inspection requirement when a policy was in “suspension” violated Chapter 93A. The Court held that the judge erred in awarding $25 in damages. The Court noted the controversy surrounding the language in c. 93A, § 9(3), that “if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater.” The court considered whether this meant that the plaintiff is entitled to recover $25 (plus attorneys’ fees) whenever a violation of c. 93A has been shown irrespective of causation being shown, or if the $25 comes into play when damages are shown but they amount to less than $25. The Court noted that although the matter is not “free from doubt,” c. 93A plaintiffs are not allowed to recover anything unless they can show actual injury caused by the unfair or deceptive practice. Because plaintiff was entitled to no damages, the award of attorneys’ fees was also inappropriate.

The Appeals Court held that the judge did not abuse his discretion in denying the motion for class certification. Parties’ stipulation to treat this as a test case could be enforced. The defendants’ practice of not sending required notices to policyholders whose coverage was “in suspension” was found to be a violation of c. 93A, and other policy holders could avail themselves of this finding. The Appeals Court held that the judge properly denied plaintiff’s request for injunctive relief. The plaintiff had sought an order that the defendant make use of a computer program that would result in the mailing of notices of suspension of physical damage coverage immediately after the twenty-first day after the effective date of coverage. This injunction would directly conflict with the provision of 211 Code Mass. Regs. § 94.09(2), which permits the insurer to mail notices at any time between the twenty-first and thirtieth day after the effective date of the coverage, and so the judge was correct in declining to grant it. 

Remy v. MacDonald,
440 Mass. 675 (2004)

Parent and Child, Duty to Prevent Harm

[A child born alive may not recover against her mother for injuries caused by the mother’s negligence while she was pregnant with the child.]

Plaintiff child, through her father and next friend, sued her mother for negligence, alleging the mother was responsible for injuries caused by her negligent operation of a motor vehicle while she was pregnant with the child. The Superior Court allowed the mother’s motion for summary judgment, concluding that, as a matter of law, the mother did not owe a legal duty to plaintiff. The Supreme Judicial Court transferred the case on its own motion and affirmed the judgment.

Christine MacDonald, when she was thirty-two weeks pregnant with the plaintiff, was operating a motor vehicle and was struck by another car. The plaintiff was born by emergency caesarian section four days later. Plaintiff experienced multiple breathing difficulties associated with her premature birth, and in the first few years of her life she has had, and continues to have, respiratory distress and asthma. The Court accepted, for purposes of its decision, that plaintiff’s illness was caused by her mother’s negligent driving.

The Court held that the mother did not owe plaintiff a legal duty. The Court recognized that a pregnant woman has a right to do any number of things that may affect her unborn fetus, and that recognizing her legal duty of care in negligence to her unborn child would “present an almost unlimited number of circumstances that would likely give rise to litigation.”

 The Court cited the unique relationship between a mother and her fetus as the basis for its holding. It cited two appellate court cases from other jurisdictions that have declined to recognize a mother’s duty of care toward her unborn child for the proposition that, despite the modern trend of recognizing the rights of child to assert claims against a third person for injuries incurred when the child was a fetus, “it would be a legal fiction to treat the fetus as a separate legal person with rights hostile to and assertable against its mother.” Stallman v. Youngquist, 125 Ill.2d 267, 278 (1988). The Court rejected the reasoning of three appellate cases in other jurisdictions holding to the contrary. The Court held that these cases undertook no analysis of the unique relationship between mother and fetus. The Court concluded that “there are inherent and important differences between a fetus, in utero, and a child already born, that permits a bright line to be drawn around the zone of potential tort liability of one who is still biologically joined to an injured plaintiff.”
 

Picard v. Thomas,
60 Mass. App. Ct. 362 (2004)

 Negligence, Motor Vehicle, Gross negligence, Wrongful Death

[Speed and common destination, along with other evidence, may be sufficient to prove an unlawful speed contest between vehicles. To be found negligent, the owner of a car must have either been in control of the car at the time of the accident or have given express or implied consent to the operator’s use of the car.]

Plaintiff parents sued Thomas, a teenage driver, the owner of the car, and his daughter for negligence and loss of consortium, alleging that defendants were responsible for the car accident that resulted in the deaths of their teenage children. The defendant’s insurance company, Commerce, filed a declaratory judgment action seeking a ruling that it had no duty to defend or indemnify the defendants. The Superior Court judge allowed the summary judgment motions of defendants, and of Commerce in its declaratory judgment action. The cases were consolidated in the Superior Court. The Appeals Court affirmed in part and reversed in part.

 Two cars, a Toyota Avalon and a Toyota Corolla, were carrying teenage friends to a common destination. Defendant Thomas was driving the Avalon and carrying one female passenger, Samantha Pearlman. Thomas possessed only a learner’s permit; he did not have a drivers’ license. The Avalon was leased by Samantha’s father, David Pearlman, for Samantha’s use and was insured by Commerce Insurance Company. The Toyota Corolla, while attempting to pass the Avalon, spun out of control, traveled off the road, and struck two trees before coming to a stop. Two of the passengers in the Corolla were killed, and the other was seriously injured.

The Appeals Court held that where there was evidence that: (1) Thomas waited for Smith to follow despite Thomas’ awareness that Smith knew the way to their destination; (2) both vehicles were traveling at an excessive speed and in very close proximity to one another; (3) Thomas failed to slow down when Smith attempted to pass; and (4) after the accident Thomas attempted to cover up the true identity of the Avalon’s operator, “a reasonable inference could be drawn that Thomas was racing with the Smith car or that Smith was responding to a challenge posed by Thomas.”  

 The Court held that the motion judge erred in allowing summary judgment on the negligence claim against the Pearlmans where there were issues of material fact whether Samantha knowingly permitted Thomas to operate her car in violation of a provision of G.L. c. 90 and whether that violation was causally related to the accident.

 The Court held that the motion judge correctly ruled that where there was no evidence that Thomas was incompetent or unfit to drive a car or that Samantha knew him to be unfit or incompetent, Samantha was entitled to summary judgment with respect to the negligent entrustment claim. The motion judge correctly ruled that, where there was no evidence that David Pearlman was in control of the vehicle at the time of the accident or that he gave his consent to Thomas’ operation of the vehicle, he was entitled to summary judgment with respect to the negligence claim against him.

The Court held that the motion judge properly ruled that Commerce had no duty to defend or indemnify Thomas. The insurance policy stated that damages would be paid to people injured by the vehicle if the policyholder or someone operating the vehicle with the policyholder’s consent was legally responsible for their injuries. Samantha Pearlman was listed as an operator of the vehicle, but she did not have permission to allow anyone else to drive the car except in an emergency. Thus, Thomas was not driving the car with the express or implied consent of David Pearlman as required by the policy.

Metropolitan Property and Casualty Ins. Co. v. Morel,
60 Mass. App. Ct. 379 (2004)

Motor vehicle insurance; Words “Insured,” “Household member”

[An adult dependent child living in a household from which his parent has moved but with which the parent still maintains connections is a “household member” for purposes of the parent’s excess insurance policy.] 

Plaintiff insurance company sought a declaratory judgment that a personal excess liability policy did not cover the injuries sustained by the defendants in an auto accident where their adult son was the driver. The term “insured” in the policy was defined as “you, or a relative residing in your household.” The issue was whether the son was a member of the father’s household, where the father lived apart from the house that was occupied by his wife and sons.

 Beginning in 1992, Michael Morel purchased and renewed both primary and excess insurance policies from Metropolitan covering his home at 72 Cottage Street and various family automobiles. Later, in 1996, Morel and his wife separated, and Morel moved out, but he maintained a close connection with the Cottage Street house. He never divorced his wife, and he retained joint ownership of the property with her. He filed joint tax returns with his wife using the 72 Cottage Street address on the filings. Morel kept his own key to the house, and he visited the house several times per week. He received mail at the residence (including mail from Metropolitan). He also took the family trash to the dump each week, kept a workbench and tools in the basement, and did maintenance and remodeling on the house. Morel intended during the entire time of separation to maintain the excess policy to protect the Cottage Street house and all family members residing there.

Morel’s son never lived with his father at his new residence. Since he was in high school, he lived at various places but by 1999 he had moved back into the Cottage Street house with his mother. He did not pay rent or contribute to household expenses, and he had to borrow a car from his father in order to commute to work when his own car was repossessed.

The motion judge found that on these facts, Morel’s son was a “household member” and was thus covered by the policy. The Appeals Court affirmed.  The Court first found that the Cottage Street house constituted the “household” of Morel. The Court stated that “determining whether someone is a member of a ‘household’ must proceed on a case-by-case basis with an evaluation and balancing of all relevant factors” and that “it is possible to have more than one residence at the same time.” The Court also rejected Metropolitan’s contention that Morel’s son should not be considered a resident of the Cottage Street house because he was an emancipated adult. The Court noted that the policy contained no age or dependency restriction, and that even if dependency were relevant, the uncontested evidence was that Morel’s son was not financially autonomous. Morel’s son was an “insured” under the excess policy, and his estate was entitled to its protection.

In the Matter of the Liquidation of American Mutual Liability Ins. Co.,
440 Mass. 796 (2004) 

Insurance, Notice, Construction of Words “Policyholders” and “Creditors” 

[The owner of an “occurrence” policy, whose policy is no longer in force at the time of a receiver’s appointment, is not considered a “policyholder” under the Insurance Liquidation Act.]

Liggett Group, Inc., a manufacturer of tobacco products, purchased liability insurance policies, “occurrence” policies, from American Mutual Liability Insurance Company (AMLICO) from 1911 through 1979 but not thereafter.  In the 1980’s, AMLICO incurred substantial financial losses, ultimately resulting in the appointment of the Commissioner as temporary receiver on January 17, 1989.  Following a petition by the temporary receiver to liquidate AMLICO on the grounds of insolvency, the court issued an order of notice.  Although notice was mailed to all known creditors, in-force policyholders, and published in newspapers across the country, Liggett was never notified of the liquidation.  On January 21, 2000, Liggett submitted a claim for alleged losses, which the receiver determined was untimely.  Liggett contended that it was a “policyholder” and/or “known creditor” and should have received notice of the liquidation.  In addition, it argued that its claim was timely when considering the lack of notice.

The Supreme Judicial Court ruled, under the Insurance Liquidation Act, G.L. c. 175, §§ 180A-180L, that the term “policyholders” is limited to parties with in-force policies at the time of the appointment of the receiver.  Therefore, former purchasers are not, at the time of the commencement of a receivership proceeding, covered for future occurrences.  The court also found that the extension of the claim filing deadline would only be an appropriate remedy where the specific failure bears directly on the fairness of the liquidation or the claim filing process.  A violation of the § 180D notice requirement does not rise to that level.  Finally, the court held that a policyholder does not become a “creditor” for the purpose of § 180C notice until that policyholder files a claim with the insurer.  The case was remanded to the single justice for further proceedings consistent with the opinion.

Sampson v. MacDougall,
60 Mass.App.Ct. 394 (2004)

 Negligence, Standard of Care, Duty to Prevent Harm, Alcoholic Liquors 

[A social host is not liable when an underage intoxicated guest injures himself after leaving the party at which he had several drinks.] 

Plaintiff parents sued social hosts and social companions for negligence, alleging they were responsible for injuries sustained by plaintiffs’ son Robert when, after drinking at defendant’s home, he jumped from a fence and was rendered a quadriplegic. Plaintiffs also alleged negligent misrepresentation based on: (1) defendant’s discouraging plaintiff from going down to the basement where her son was drinking by commenting that it was hot and smoky, and (2) defendant’s failure to tell plaintiff that there was a keg in the basement from which her son could drink beer

The MacDougall’s hosted a high school graduation party for their daughter at their home. Their son Adam and some friends purchased a half-keg of beer for the party, which they set up in Adam’s bedroom. Adam’s bedroom was in the basement of the house. Adam purchased the keg with money contributed by friends Adam and Steven. Adam was twenty-two years old. Robert, plaintiff’s son, during the course of the party, drank approximately seven 12-ounce beers from the keg. Robert was 18 years old. After Robert returned home from the party, he walked over to his friend Brian’s house. On the way, he saw the police, became frightened, and ran. While he was running, he jumped over a six-foot fence, fell, and was rendered a quadriplegic.

The Superior Court allowed defendants’ motion for summary judgment concluding that they owed no duty of care to Robert, an intoxicated party guest who injured himself, and that a claim for negligent misrepresentation is one that arises only in a business context, not a social setting.

The Appeals Court affirmed.  The Court held that the MacDougalls, as social hosts, had no duty to Robert or to plaintiffs. The Court distinguished cases where an innocent third party was injured by the negligent actions of an intoxicated guest who had been served alcohol by a social host who knew, or should have known, that the guest was drunk. The Court held that because Robert voluntarily consumed alcohol, he was in a better position than the MacDougalls to prevent harm to himself. The Court held that the MacDougall’s owed no duty to Robert, even if their conduct had been wanton and reckless, although there was no evidence that their conduct did rise to this level.

The Court rejected Plaintiff’s claim for negligent misrepresentation. The Court held that even if Hugh MacDougall’s statements could be considered a representation, since it was not made in a business context, it was not actionable. The Court held that the fact that Hugh MacDougall failed to specifically inform her that there was a keg in the basement did not make her claim actionable, given that he had no duty to tell her about the keg.

Hartford v. Hartford,
60 Mass. App. Ct. 446 (2004) 

Libel and Slander. Collateral Estoppel, Divorce, Privileged Communication

 [Where parties stipulated to an irretrievable breakdown in a divorce proceeding, factual issues were not actually litigated for issue preclusion purposes in subsequent action. Statements made to another person’s parole officer regarding the conduct of the parolee were subject to absolute privilege.]

Plaintiff ex-husband sued ex-wife for defamation, alleging she made false statements to his parole officer, and the wife counterclaimed for abuse of process and sought attorney’s fees. The Superior Court gave preclusive effect to findings of the probate court that credited husband’s version of events (and thus found that the wife’s statements were false), but nonetheless allowed the wife’s motion for summary judgment, holding that her statements to the parole officer were subject to absolute privilege. The Superior Court dismissed the wife’s counterclaim and denied her motion for attorney’s fees. The Appeals Court affirmed the judgments, holding that issue preclusion did not apply but that the statements were subject to absolute privilege, and that the bringing of the lawsuit did not amount to an abuse of process.

The parties married in 1987, while Charles was on parole after serving 17 years in prison for murder in the first degree. In 1996, Nancy told Charles’ parole officer, Dana White, that Charles was following her to work and accusing her of being unfaithful. The next day, on June 14, 1996, White informed Charles of Nancy’s statements, and Charles left work to confront Nancy about her statements. The nature of what took place was the subject of testimony in an action in which Nancy sought and obtained an abuse prevention order against Charles under G.L. c. 209A, and in the parties’ cross claims for divorce. Nancy said that Charles arrived home angry, verbally abused her, and prevented her from leaving the room by blocking the door and forcing her onto the bed. Charles disputed Nancy’s version of events and denied holding her captive or verbally abusing her. In the divorce action, the probate court credited Charles’ version of events. However, at a revocation of parole hearing, the parole board determined that Charles had violated the conditions of his parole based at least in part on Nancy’s version of the June 14 events, and Charles was recommitted to serve the remainder of his life sentence.

On the strength of the probate court findings, Charles sued Nancy for defamation, alleging that Nancy’s statements regarding the June 14 incident, to his parole officer, the Millville police department, and the Uxbridge District Court were false and malicious. The Court rejected Charles’ claim that the Probate Court’s findings had preclusive effect. Because the parties had stipulated that the marriage had suffered an irretrievable breakdown, the issue of what had occurred on June 14 was not “actually litigated,” and so issue preclusion could not apply. The Court also found that Nancy’s statements to the parole officer were absolutely privileged, so that they could not be the subject of a defamation suit.

The Court rejected Nancy’s abuse of process claim. The Court held that there was nothing in the record indicating that Charles’ claim was meant to exact revenge. Also, since the issue of the privileged nature of communications to a parole officer had not been previously decided, Nancy was not entitled to attorney’s fees under G.L. c. 231, § 6F.

 
Butner v. Department of State Police,
60 Mass. App. Ct. 461 (2004) 

Anti-Discrimination Law, Conspiracy, Emotional Distress

 [Employees cannot maintain action for discrimination or intentional or reckless infliction of emotional distress against a medical agency with whom their employer contracted where, even though the agency decreased their levels of permissible duty for no other reason than that they were pregnant, there is no evidence the agency did anything more than carry out the discriminatory wishes of the employer.]

Plaintiff female State Troopers sued their employer, the Department of State Police, and the department of Health Resources (HR) and its employee, Dr. Thomas Winters, alleging that the department had discriminated against them in violation of G.L. c.151B, that the medical defendants had conspired with the department in violation of 42 U.S.C. §1985(3), and the Massachusetts Civil Rights Act, G.L. c. 12, 11H, 11I, and that Winters’ actions constituted intentional or reckless infliction of emotional distress. The Superior Court allowed the summary judgment motion of the medical defendants, and plaintiffs appealed. The Appeals Court affirmed.

Each of the plaintiffs was pregnant during some part of 1997. The Department contracted with HR to provide medical examinations to troopers, including reenlistment examinations and determinations of ability to work. In 1997 the Department adopted a policy of sending all pregnant troopers to HR for a determination of their ability to work. The facts showed that the Department wanted to put all pregnant troopers on “temporary modified duty” (TMD), regardless of their individual situations, and regardless of what their personal obstetricians recommended with regard to their ability to work. TMD knew that this was the Department’s desire. On TMD status, troopers lost use of their cruisers, were not allowed to wear uniforms or have contact with prisoners or with the public in an enforcement capacity except in an emergency, and were not permitted any overtime pay. The Department sent HR a document entitled “Essential Function Task List,” which contained a list of necessary duties the doctors were supposed to use in evaluating troopers’ ability to work. The task list had not been used prior to the time the Department began to use it to evaluate pregnant troopers, and only a small percentage of the tasks had any relationship to the job the plaintiffs were doing. By March 1997, placement on TMD was virtually automatic for pregnant troopers.

The Appeals Court affirmed the dismissal of all the claims against the medical defendants. The Court held that because the plaintiffs failed to name the medical defendants in their initial complaint to the MCAD, their claim under the Massachusetts Civil Rights Act was barred. The Court noted that the facts would also give rise to a claim under G.L. c. 151B, which established an exclusive administrative procedure for such claims, and that “[c]omplaints constituting Chapter 151B claims cannot be refashioned into MCRA claims to avoid the exclusivity provision.”

The Court affirmed the dismissal of the federal civil conspiracy claim. The Court held that even if we assume the Department was motivated by discriminatory animus, the plaintiffs did not set forth facts to support a finding that the medical defendants shared a purpose to further a discriminatory policy. The Court held that there was no evidence that HR was motivated by anything more than a desire to keep the contract with the department. The Court also “reluctantly affirmed” the dismissal of the emotional distress claims, holding that, while HR and Winters were involved in an “unprofessional charade,” their conduct did not rise to the level of “extreme and outrageous” necessary to support a finding of either intentional or reckless infliction of emotional distress.

 
Harris-Lewis v. Mudge,
60 Mass. App. Ct. 480 (2004)

Medical Malpractice, Prejudicial Evidence, Jury Instructions.

[Judge did not commit reversible error in the de bene admission of certain cocaine evidence and his jury instructions were adequate to cure potential prejudice.]

In this medical malpractice suit, the plaintiff alleged that her husband’s eventually fatal condition was misdiagnosed by his treating physician.  Plaintiff sought to have evidence of her husband’s alleged admission of cocaine use excluded from the trial as irrelevant and unfairly prejudicial.  In addition, the plaintiff wanted evidence of a life insurance policy excluded as irrelevant and unfairly prejudicial because the jury might view an award as a double recovery.  The defendant doctor claimed that the decedent had denied using cocaine throughout his treatment until 10 days before his death.  The defendant claimed that the decedent’s failure to disclose his drug use was relevant to the patient’s diagnosis and treatment.  The defendant doctor also claimed that the decedent’s life insurance policy was relevant to prove that the decedent lied and had a motive to lie about his cocaine use.  The Superior Court admitted the evidence de bene, subsequently decided to strike it from the record, and then instructed the jury to disregard it.

The Appeals Court affirmed.  The Superior Court judge did not abuse his discretion in the de bene admission of the evidence.  The evidentiary rulings as to relevance can only be based upon the trial judge’s understanding at that time of what the evidence is expected to show, and here the judge made a proper ruling.  The Appeals Court also found that the lower court judge’s curative instructions to the jury, after striking the evidence, was sufficiently “rigorous and emphatic” to remedy any potential prejudice.

The Shantigar Foundation v. Bear Mountain Builders,
441 Mass 131 (2004)

Comparative Negligence Statute

 [Massachusetts comparative negligence statute, G.L. c. 231, § 85, requires apportionment of damages only between parties actually at trial.]

The Shantigar Foundation was rehabilitating an ancient barn for use as a spiritual learning center. The wooden barn was “dried out” and a “tinder box,” and the head of the foundation, Mr. van Itallie, was aware that the barn posed a significant fire hazard. Codes required the installation of smoke and heat detectors, but not sprinklers. Van Itallie demurred when offered the choice of installing the sprinklers; their appearance did not suit the premises. Seeking to use the most natural products for the reconstruction, van Itallie chose to have the wood refinished with linseed oil, a product widely known for its role in spontaneous combustion. After part of the work with the linseed oil was done, workers noticed smoke from some rags just hours after they had stopped using them. Additional portions of the premises were oiled and buffed, and rags left to dry at the end of the day. That very same evening, the barn, which had enjoyed almost $1 million in renovations, burned. Spontaneous combustion was ruled the cause of the fire.

Shantigar sued two contractors which had participated in the reconstruction. Five months before trial, Shantigar settled with one, and the case was tried against the remaining defendant. In its defense, the contractor claimed that the foundation itself was negligent. Before submitting the matter to the jury, the trial justice considered whether to charge the jury that the comparative negligence of the plaintiff should be compared to all potentially negligent parties, or just the party at trial; he opted for the latter.  The jury found the foundation 60% at fault and the builder 40% at fault. The plaintiff appealed.

The judgment was affirmed by the Supreme Judicial Court. The primary issue on appeal was the construction of the comparative negligence statute. The court held that only the negligence of the parties at trial should be compared under G.L. c. 231, § 85. The plain language of the statute, including the phrases “against whom recovery is sought” and “negligence of the defendants” compelled the decision. Nothing in the purpose of the law mandated a different construction of the statute. Although some jurisdictions have adopted a system where a plaintiff is free to compare its negligence to the negligence of all other persons, including those not at trial, those jurisdictions often also require the responsible parties to pay in proportion to their negligence, as opposed to the Massachusetts joint and several liability scheme. The court also rejected plaintiff’s contention that the evidence on its decision to not install fire alarms should have been excluded. Where the plaintiff had knowledge of the particular danger of fire, its decision to not install fire protection was relevant.

Ali v. City of Boston,
441 Mass. 233 (2004)

Recreational Use Statute

[Recreational use statute, G.L. c. 21, § 17C, barred claim of injured bicyclist who collided with unmarked gate while traveling through Franklin Park.]

Plaintiff was riding his bike home after conducting an errand at a local store. He chose a route which would avoid some of the urban traffic. His route was along Playstead Road, which the court characterized as a “paved bicycle path.” At one end of the path, just two months earlier the City had erected a heavy metal gate which was intended to discourage motor vehicle traffic on the bike path. Unaware of the gate, and unable to see it, plaintiff collided with it and was seriously injured.  The Superior Court judge granted summary judgment to the city under the recreational use statute, G.L. c. 21, § 17C, which precludes liability for injury during recreational use of land where no fee is charged, absent willful, wanton or  reckless conduct by the owner. The Appeals Court had reversed, citing a question of fact: Was the use recreational or for transportation purposes. The Supreme Judicial Court granted further appellate review, and affirmed the Superior Court judgment.

The court considered the riding of a bicycle in the park to be an objectively recreational activity, and therefore the statute applied. Considering the plaintiff’s intent at the time he was in the park was not relevant, and, indeed, would invite “only mischief and deceit.” Id. at 238. The placement of a gate, commonly used to control traffic flow, could not be considered reckless. It did not involve intentional or unreasonable disregard of a risk that presented a high probability of substantial harm to another. Accordingly, plaintiff’s recovery was barred.

 Lavecchia v. Mass. Bay Transp. Authy.,
441 Mass. 240 (2004)

 Statute of Limitations, MBTA

[Two-year limitations period of G.L. c. 161A, § 38, governs all personal injury claims against the MBTA, including those involving a defect in a public way.]

Plaintiff was injured while walking on a sidewalk that was maintained and controlled by the MBTA as a public way.  Shortly thereafter, she notified the MBTA of her claim.  Plaintiff did not file suit against the MBTA until nearly three years later.  After a series of lower court decisions resulted in conflicting conclusions, the Appeals Court vacated a Superior Court judgment allowing the defendant’s motion for summary judgment, concluding that the plaintiff was entitled to the benefit of the three-year limitation period of G.L. c. 84, § 15.  The MBTA appealed.

The only issue on appeal was whether the plaintiff’s claims were governed by the two-year statute of limitations on personal injury claims against the MBTA, G.L. c. 161A, § 38, or by the three-year statute of limitations on personal injuries arising from a defect in a public way, G.L. c. 84, §§ 15, 18.  The Supreme Judicial Court reviewed the legislative history of each statute and concluded that the two-year statute of limitations period of G.L. c. 161A, § 38, governs all personal injury claims against the MBTA, including those involving a defect in a public way.  As such, the Supreme Judicial Court affirmed the judgment of the Superior Court dismissing the action as time-barred.

Brunelle v. W.E. Aubuchon Co., Inc.
60 Mass. App. Ct. 626 (2004)

Causation, G.L. c. 93A

[Allowance of directed verdict on defendant’s affirmative defense of comparative negligence did not equate to finding defendant negligent; no G.L. c. 93A violation found for shelving defect at hardware store.]

Plaintiff was shopping in the defendant’s hardware store. As she passed down the aisle she was injured by protruding metal from the edge of a lower shelf, which caused her to fall and break her hip. She sought damages for her injuries based upon a theory of negligence as well as a violation of the State Building Code, 780 Code Mass. Regs. § 1011.1.1 (1997), which require minimum aisle widths in stores. The violation of the Building Code, she asserted, was also a violation of G.L. c. 93A.  At trial the judge entered a directed verdict on the defendant’s claim of comparative negligence, but denied the plaintiff’s motion for a directed verdict on her claim of the defendant’s negligence. The G.L. c. 93A claim was reserved by the judge, and on the question of negligence submitted to the jury, the verdict was for the defendant. Thereafter the judge dismissed the G.L. c. 93A claim; though he found that there was a violation of the State Building Code resulting from the protruding shelf edging, he found there was no evidence of an unfair and deceptive act, which he considered essential for a finding under G.L. c. 93A. The motion for a new trial based upon the weight of the evidence was denied. Plaintiff appealed.

The Appeals Court affirmed. As to the G.L. c. 93A claim, the court found that there was actually no violation of the State Building Code, since the aisles were sufficiently wide. The Appeals Court appeared to hint that it remained skeptical as to whether an unintentional and incidental violation of the State Building Code (or other similar regulation) would constitute, without more, a violation of G.L. c. 93A. As to the plaintiff’s claim that she was entitled to a directed verdict on negligence, the court held that the directed verdict on the comparative negligence claim still did not relieve the plaintiff of her burden of proof, and that the jury was still free to find that the defendant was not negligent. The denial of the motion for a new trial was within the judge’s discretion, and there was no abuse of discretion.

Clarendon Natl. Ins. Co. v. Amica Mut. Ins. Co.,
441 Mass. 248 (2004)

Illegality of Motor Vehicle Insurance Policy

[Illegal insurance policies, issued without the approval of the Commissioner of Insurance, are valid and binding only between the insurer and the insured and only to the extent necessary to protect the insured from an interruption in coverage.]

Plaintiff insurer issued business motor vehicle insurance policies to multiple rental car companies.  The defendants were multiple insurance companies whose insureds were involved in accidents while driving cars rented from those rental car companies.  Two endorsements to the policies issued by the plaintiff were designed to require each rental customer to exhaust his coverage under his own individual motor vehicle insurance policy before plaintiff would be obligated to pay under the policy issued to the rental company.  However, those two endorsements were never filed with, or approved by, the Commissioner of Insurance, as required by G.L. c. 175, §§ 22A, 113A, and 192, raising questions about the validity of the endorsements.  When the plaintiff sought a declaration regarding its obligations, the Superior Court allowed the defendants' motion for summary judgment, concluding that the endorsements were void and that the policy must be construed as if the endorsements did not exist.  Without the endorsements, the policies issued by plaintiff would afford primary coverage to the rental customers.  Plaintiff appealed and the Supreme Judicial Court transferred the case on its own motion.

The Supreme Judicial Court affirmed the judgment of the Superior Court allowing the defendants' motion for summary judgment, but disagreed with the Superior Court's conclusion that the policy be construed as if the endorsements did not exist. G.L. c. 175, § 193, did give the illegally issued endorsements limited validity to protect the insureds against an interruption in coverage.  As such, the endorsements did exist, but were binding only on the plaintiff as between it and its insureds.  Despite the existence of the endorsements, they remained effectively void for the purposes of this litigation. The endorsements were not binding on the defendant insurers because the illegally issued endorsements could have no effect on policies that were approved by the Commissioner and issued legally by the defendant insurers to their insureds.

Post v. Belmont Country Club,
60 Mass. App. Ct. 645 (2004)

Summary Judgment, Release, Indemnity, Statute of Limitations

[The rules and regulations that appear in a club handbook have the effect of a binding contract upon the club members, regardless of the individual member’s actual knowledge of the rules. An indemnity agreement survives a decedent’s death and becomes an obligation of his estate.]

The estate of John Post sued defendant country club for wrongful death and conscious pain and suffering, alleging that the negligence of the club caused Post’s death. The club counterclaimed, alleging that under an indemnity clause in the club’s handbook, the estate was responsible for all costs to the club arising out of Post’s use of the cart, including those costs resulting from the present wrongful death action. After some discovery, the club agreed to settle the estate’s claims for $4,500,000. The club’s counterclaim was specifically reserved, with the parties agreeing to limit recovery to the amount of John Post’s homeowner’s policy. A first motion for summary judgment, and later an amended motion for summary judgment, resulted in rulings in favor of the club on its counterclaim. The Appeals Court affirmed.

John Post, a member of the Belmont Country Club, while driving his cart along a temporary cart path, drove into a rope, and an iron pin that had been holding the rope struck him in the head. Post was seriously injured and eventually died. Unlike other ropes on the course, the rope in question was not clearly marked. A clause in the club’s handbook stated that each member driving a cart was responsible for any personal injury to him or herself and that each member would indemnify the club against all loss, claims or expenses resulting from the use of the cart.

The Court held that the indemnity clause was effective against the estate and applied to its wrongful death claim. The Court held that the handbook was effectively a contract between post and the club, regardless of whether Post had actual knowledge of its contents. The Court rejected the estate’s claim that should Post be bound by the provisions in the handbook the agreement should be strictly construed against the club. The Court noted that the contract was not only entered into with the club but also with Post’s fellow members, and that Post, as a member, had the ability work for and vote for a change in the rules therein.

The Court held that the case was governed by the case of Shea v. Bay State Gas Co., 383 Mass. 218, 222 (1981), which held that “[c]ontracts of indemnity are to be fairly and reasonably construed in order to ascertain the intention of the parties and to effectuate the purpose sought to be accomplished.” The Court held that the first motion judge correctly construed the contract with respect to what the parties intended to accomplish. The Court held further that the contract was not ambiguous such that it should be construed against the club as drafter.

The Court did not reach the estate’s claim that Post could not have provided a release to the club on any wrongful death claim because a wrongful death claim is brought by a decedent’s heirs and is not within the competence of a living person to release. The Court held that since the parties agreed that recovery on the counterclaim would be limited to the amount of Post’s homeowner’s policy, the effect was that the wrongful death claim was not released.

The Court held that the indemnity agreement survived Post’s death and became an obligation of the estate, and that, to the extent the settlement agreement was limited to proceeds from Post’s homeowner’s insurance, the indemnity agreement required payment to the club. The Court rejected the estate’s claim that because the club did not file its counterclaim until more than a year after Post’s death, it was barred by G.L. c. 197, § 9. The Court held that this was a statute of limitation, not of repose, and so the counterclaim related back to the date the original wrongful death complaint was filed.

Goldberg v. Northeastern Univ.,
60 Mass. App. Ct. 707 (2004)

Medical Malpractice, College, Expert Opinion, Health Care Facility, Damages

[To prove that an institution was negligent as the result of its operation of a medical facility, a plaintiff must present expert testimony. A certificate of incorporation and articles of organization of a corporation may be sufficient to show that the corporation is entitled to the statutory cap on damages for charitable institutions.] 

Plaintiff parents sued Northeastern, two physicians, and two nurses, alleging that negligent medical treatment at Northeastern’s health care facility, the Lane Health Center, led to the death of their daughter. On February 13, 1993, Michel Goldberg, a freshman at Northeastern, visited the Lane Health Center complaining of flu-like symptoms. Because February 13, 1993, was a Saturday, the Lane Health Center, in accordance with its standard protocol, was staffed only by a registered nurse. Without consulting a physician, the registered nurse diagnosed Michel with influenza. The nurse released Michel to her dormitory. Michel then traveled to her parents’ home in New Jersey. On February 28, 1993, she was brought to Englewood Hospital in New Jersey, where she died of acute anemia triggered by acute myelogenous leukemia.

By agreement, the claims against the nurses were dismissed, and the case proceeded to trial against Northeastern and the physicians. The jury concluded that the physicians had not been negligent, but found that Northeastern was negligent by virtue of the way in which it set up and operated the Lane Health Center, and that this negligence was a substantial factor in causing the daughter’s death. The jury awarded $2 million in damages to each plaintiff. The judge found that Northeastern was a charitable organization within the meaning of G.L. c. 231, § 85K, which caps damages against such entities, and limited damages to $20,000. Plaintiffs filed a motion for reconsideration of the application of the statutory cap, and Northeastern filed a motion for judgment notwithstanding the verdict or new trial, both of which the judge denied. Both parties appealed.

The Appeals Court reversed. The Court held that the plaintiff had not presented sufficient evidence of negligence against Northeastern University. The Court held that expert testimony was required on this subject because the issue of whether an institution was negligent in the operations of a health center involves “quintessentially medical judgments that are not matters with which a lay jury is likely to be acquainted.” The plaintiffs offered no expert testimony on this subject. Instead, the only testimony on the subject came from a doctor who stated that the setup of the Lane Health Center was consistent with the procedures ordinarily employed in university health systems at that time.

The Court also held that the plaintiffs’ recovery, even if sustained, would be limited to $20,000 by virtue of the application of the statutory cap on damage awards arising out of charitable activities under G.L. c. 231, § 85K. The trial judge explicitly bifurcated this issue from the rest of the case, indicating that, after the case went to the jury as a straight negligence case she would decide Northeastern’s charitable status separately. Northeastern offered its certificate of incorporation and articles of organization, which were marked for identification. Northeastern’s charter showed that it was originally incorporated as “Northeastern College of the Boston Young Men’s Christian Association,” and that its name was later changed to Northeastern University. The plaintiffs offered no evidence on the subject. The Court held the evidence was sufficient to support a determination that Northeastern was entitled to the statutory cap on damages.

Conley v. Romeri,
60 Mass. App. Ct. 799 (2004)

Negligent Infliction of Emotional Distress, Fraud, Battery

[Claims arising from the termination of an intimate relationship between the parties were not legally cognizable.]

Plaintiff and defendant were both divorced and in their 40s when they began dating.  Defendant had children from his previous marriage; plaintiff had none.  Early in the relationship, plaintiff informed defendant of her desire to have children.  Although defendant never expressly told plaintiff that he was capable of fathering children, several conversations between the couple led plaintiff to believe that he was so capable.  Eight months after they had begun dating, and five months after they first became sexually intimate, defendant revealed to the plaintiff that he had had a vasectomy four years earlier, and was surprised by her angry response.  The couple continued to date and be sexually intimate for two more months, until defendant informed plaintiff that he had met another woman, and plaintiff broke off the relationship.  Plaintiff then brought claims against defendant for negligent and intentional infliction of emotional distress, fraud, and battery.  Plaintiff claimed that defendant’s disclosure caused her to be emotionally devastated and to suffer a major depressive disorder.  The Superior Court allowed defendant’s motion to dismiss on the claims of negligent infliction of emotional distress and fraud, and later allowed defendant’s motion for summary judgment on the claims of intentional infliction of emotional distress and battery.  Plaintiff appealed.

The Appeals Court affirmed.  Plaintiff failed to state a claim for negligent infliction of emotional distress; she did not identify any legally cognizable duty between parties in a dating relationship, such a duty being an essential element for a claim of negligence.  Plaintiff also failed to state a claim for fraud; there is no recognized standard of conduct by which a court can assess the materiality of an alleged misrepresentation made in the context of an intimate relationship; it is not for the court to “‘supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct.’”  Id. at 802-3, quoting Stephen K. v. Roni L., 105 Cal. App. 3d 640, 644-5 (1980).  Defendant demonstrated that plaintiff could not prove the requisite level of extreme and outrageous conduct required for a claim of intentional infliction of emotional distress; although plaintiff may have been justified in concluding that she and defendant had the same goals of having a family, nothing in the facts indicated that defendant’s conduct was extreme and outrageous.  Furthermore, the fact that plaintiff continued the relationship until defendant informed her that he had met another woman indicates a feeling of betrayal, and while causing distress or heartache to another human may be blameworthy, such conduct is not necessarily compensable.  Finally, plaintiff’s claim for battery was properly dismissed; plaintiff could not demonstrate that the alleged misrepresentations actually induced her to have sexual relations with defendant where the parties never discussed having children together and plaintiff continued to have sexual relations with defendant after she learned of his vasectomy.

 Morrison v. Toys “R” Us, Inc.,
441 Mass. 451 (2004)

Consumer Protection Act, Self-Insured Entity

[A self-insured entity that adjusts its own claims is not subject to liability based on G.L. c. 93A or G.L. c. 176D for failure to make a reasonable offer of settlement when liability is reasonably clear.]

Plaintiff alleged that defendant violated G.L. c. 93A and G.L. c. 176D by failing to make her a reasonable offer of settlement after she was injured while shopping in defendant’s store. The Superior Court allowed the summary judgment motion of Toys, concluding that since Toys was self-insured, it could not be subject to the provisions of c. 176D, which regulates entities in the business of insurance. The Appeals Court reversed, concluding that although Toys plainly is not an insurer within the meaning of c. 176D, it can still be liable in an independent cause of action for unfair claim settlement activities under c. 93A, and that the principles in c. 176D should apply. The Supreme Judicial Court disagreed and affirmed the judgment of the Superior Court.

On May 30, 1996, while shopping at Toys “R” Us, plaintiff was injured when she was struck in the head and face by a falling sign. Plaintiff’s initial demand was for $250,000 and was countered by an offer of $15,000, which plaintiff rejected. Toys made two subsequent offers of $30,000 and $45,000, both of which plaintiff rejected. At trial, a jury awarded plaintiff $1.2 million. Plaintiff accepted an offer of remittitur, and a judgment was entered in the amount of $250,000. Plaintiff then initiated a c. 93A claim against Toys, seeking punitive damages, interest, costs, and attorney’s fees.

The Supreme Judicial Court rejected the reasoning of the Appeals Court that the claims settlement practices of Toys, as a self insurer, fell within the domain of the consumer protections of c. 93A and the principles of c. 176D. The Supreme Judicial Court held that since Toys was not in the business of insurance, it could not be held to the principles of c. 93A and c. 176D in its claim settlement practices. The Court distinguished the case of Miller v. Risk Management, 36 Mass. App. Ct. 411 (1994), where the claims handling practices of a defendant charitable organization that worked with an insurance company as a “facilitator” in handling claims was subject to the provisions of c. 93A and c. 176D.  Miller’s significance was that an insurance company cannot avoid its statutory duty under c. 176D by delegating its work. The Court held that “[t]he Miller decision simply cannot be read to impose an affirmative claim settlement duty on the risk management department of Toys, when none could be imposed on Toys itself.”

The Court rejected the plaintiff’s claim that the Court’s decision allows a self-insuring corporate entity to “opt out” of the applications c. 93A. The Court held that Toys is certainly subject to the provisions of c. 93A, but that this statute applies only to actions taken in the course of commerce, which Toys’ claims handling, in this instance, was not. The Court stated that the purpose of c. 93A would not be served by exposing ordinary defendants to the risk of liability for multiple damages and attorney’s fees for choosing to go to court rather than settling a dispute. In a footnote, the Court remarked that any “bad faith,” such as that alleged by the plaintiff, can be adequately dealt with by Mass.R.Civ.P. 37, and G.,L. c. 231, § 6F.

Herbert v. Enos,
60 Mass. App. Ct. 817 (2004)

Negligence, Foreseeability of Harm

[Defendant’s faulty repair to a toilet in his home, which resulted in flooding that reacted with the home’s electrical system and caused plaintiff to receive a severe electric shock when he touched an outside faucet, was the but for cause of the plaintiff’s injuries; however, the harm to the plaintiff was not a reasonably foreseeable consequence of the defendant’s conduct.]

Plaintiff brought an action to recover for personal injuries he suffered as a result of receiving a severe electric shock when he attempted to water his neighbor’s flowers while the defendant neighbor was on vacation. The defendant had undertaken a plumbing repair in his house, which had failed, resulting in a leak which shorted out the electrical system in the home. The Superior Court allowed the defendant’s motion for summary judgment on the ground that the injury sustained by the plaintiff was not a reasonably foreseeable consequence of the defendant’s alleged negligence, thus precluding a finding that the alleged negligence caused the injury.  Plaintiff appealed.

The Appeals Court affirmed.  Viewing the facts in the light most favorable to the plaintiff, the Appeals Court concluded that the plaintiff had shown sufficient evidence to establish that the defendant made faulty repairs to the toilet, which repairs resulted in flooding, which flooding created an electrical current in the plumbing and resulted in the plaintiff sustaining a severe electric shock when he touched the outside faucet.  Although the plaintiff had established that the defendant’s conduct was the but for cause of the plaintiff’s injuries, he had not established that those injuries were foreseeable. The plaintiff’s injuries were a “‘highly extraordinary’ consequence of a defective second-floor toilet.”  Id. at 822. 

Mass. Property Ins. Underwriting Assoc. v. Wynn,
60 Mass. App. Ct. 824 (2004)

Homeowner’s Insurance, All-terrain Vehicle, Adjacent Premises

[Where accident between two all-terrain vehicles occurred at a beach near the home of the driver and owner of one of the vehicles, homeowner’s policy did not afford defense or indemnity coverage for any liability of the driver/owner in connection with the accident.]

Defendant Wynn brought an action against defendant Spina for personal injuries he sustained when the all-terrain vehicle Wynn was operating collided with the all-terrain vehicle operated by Spina, allegedly as the result of Spina’s negligence.  The accident occurred on a beach near the premises on which Spina resided.  The premises was covered by a homeowner’s insurance policy issued by the plaintiff insurer.  The coverage provided by the policy excluded accidents arising out of the use of motorized land conveyances, with an exception for, among other things, motorized land conveyances that are “designed for recreational use off public roads, not subject to motor vehicle registration and … owned by an ‘insured’ and on an ‘insured location.’”  Plaintiff insurer sought a declaration that the policy did not obligate it to defend or indemnify Spina in the action brought by Wynn.  The Superior Court allowed plaintiff insurer’s motion for summary judgment, declaring that the policy did not afford Spina coverage in this case.  Wynn appealed.

The Appeals Court affirmed.  The only disputed issue on summary judgment was whether the policy language “on an ‘insured location’” extended coverage to this accident because either (1) Spina’s all-terrain vehicle was garaged at the “insured location,” regardless of where the accident occurred, or (2) the definition of “insured location” extended to the beach where the accident occurred, as a premises used in connection with the insured premises.  The Appeals Court disagreed with both interpretations of the policy.  The exception to the exclusion would apply in this case only if the accident occurred on an insured location, regardless of the location where the vehicle was garaged.  The term “insured location,” as defined in the policy, was not meant to encompass “adjacent, non-owned land on which an ATM might be used,” such as the beach.  Id. at 829.

 
Opara v. Mass. Mut. Life Ins. Co.,
441 Mass. 539 (2004)

Life Insurance, Reinstatement, Misrepresentation

[Insurer properly denied coverage where insured deceased misrepresented his medical status in an application for reinstatement of his life insurance policy that had previously lapsed for nonpayment of the premium.]

Defendant insurer issued a whole life insurance policy to insured, but insured only paid the premiums on the policy for the first three months after the policy was issued and the policy lapsed without value.  Several months after the policy lapsed, insured began experiencing intestinal discomfort and saw his doctor about the symptoms in March 1996.  The symptoms persisted, and on October 10, 1996, insured was diagnosed with terminal cancer.  Sometime between March 1996 and October 17, 1996, insured sought to have the policy reinstated and converted to a term life policy.  On his undated application for reinstatement, insured indicated that he had seen his doctor in March 1996 for a routine physical, denied that he had ever experienced intestinal discomfort, and denied that he was being treated for any medical disorder.  The application was approved in late November 1996.  After the death of insured, defendant insurer denied coverage on the basis of the decedent’s misrepresentations in his application for reinstatement, and the beneficiaries filed a complaint in the Superior Court seeking the proceeds.  The Superior Court allowed defendant’s motion for summary judgment.  The beneficiaries appealed, and the Supreme Judicial Court transferred the case on its own motion.

The Supreme Judicial Court affirmed.  It is an established principle of law that the requirements of G.L. c. 175, §§ 131 and 132(3), which prevent insurers from denying coverage based on alleged misrepresentations in an application for life insurance when the application is not attached to the policy when issued, do not apply to applications for reinstatement of a lapsed life insurance policy.  Holden v. Metropolitan Life Ins. Co., 188 Mass. 212 (1905).  Regardless of the exact date on which the deceased signed the application for reinstatement, and despite the fact that after reinstatement the policy was converted from whole life to term life, the insured nonetheless made false representations in his application for reinstatement and, pursuant to the terms of reinstatement, those false representations rendered the policy ineffective.

Coastal Orthopaedic Institute, P.C. v. Bongiorno,
61 Mass. App. Ct. 55 (2004)

Attorney Malpractice, Expert Opinion

[Legal malpractice claim failed where lawyers gave competent opinion on defensibility of underlying claims, and where plaintiff failed to demonstrate loss caused by attorney’s malpractice.]

Plaintiff was the defendant in the underlying suit brought by a former employee. The employee had claimed age discrimination, breach of contract, and breach of the implied covenant of good faith and fair dealing. After arbitration, the employee prevailed only on the age discrimination claim, and was awarded $446,491.11. Plaintiff brought suit against its attorney for legal malpractice on the theories that he had negligently advised that the claims were defensible and that he had failed to convey an offer in a timely manner which might have resulted in a settlement and avoided legal costs and expenses. Summary judgment was granted in favor of the defendant, and the plaintiff appealed.

The Appeals Court affirmed. The attorney had offered legal advice which, according to his expert, was within the standard of care. No attorney is the guarantor of the outcome of a case, particularly where, as here, the outcome turned on the credibility of a witness (this witness was a principal of the plaintiff company). Further, the attorney’s advice had been correct on two of the three counts, which buttressed his contention that his advice had been reasonable and proper. The plaintiff had failed to counter the defendant’s experts with expert opinions on its own behalf, and expert testimony is usually required to demonstrate that an attorney failed to meet the standard of care. With regard to the contention that the defendant had failed to timely convey the offer of settlement conveyed during the arbitration, the court found that the plaintiff had failed to demonstrate any damages as a result thereof, since the offer was larger than the ultimate award made by the arbitrator, and since the offer was made near the conclusion of the arbitration proceedings.

 
Savers Property & Casualty Ins. Co. v. Admiral Ins. Agency, Inc.,
61 Mass. App. Ct. 158 (2004)

Negligence, Agency, Damages, Misrepresentation

[Sub-agent of insurance company not liable for damages arising from coverage it allegedly improperly bound on theories of negligence, misrepresentation, or common law indemnity.]

Plaintiff insurer wrote specialty risk coverage, including excess snow accumulation policies. In 1995, Massport bought such coverage through an agent, the defendant Admiral Insurance Agency, Inc., which was a sub-agent to the plaintiff through an intermediary insurance agency. The intermediary’s authority was in many respects limited, but that was not know to the defendant. When the Massport coverage was bound, it did not comply with many of the restrictions placed by the plaintiff on the intermediary agent. However, plaintiff never disclaimed the coverage, and never obtained, even though it had a clear chance to do so, re-insurance. After a blizzard in January 1996, Massport sought, and obtained, the insurance from plaintiff. Plaintiff then arbitrated its claims against the intermediary agent (in a separate action, in which it partially prevailed), and against the defendant, Admiral Insurance Agency. After trial, and in relevant pre- and post-trial rulings, judgment entered for the defendant on all counts. Plaintiff appealed.

The Appeals Court affirmed on all counts. The defendant, Admiral, as a sub-agent, owed only a duty of care to the intermediary agent. Plaintiff was not entitled to common-law tort-based indemnity, which is limited to exceptional circumstances where the plaintiff is entirely free from fault; since the plaintiff was found comparatively negligent, this remedy was unavailable. The instructions given relating to the failure to procure reinsurance were not impermissible collateral source instructions. It was proper to allow the jury to make the final damages assessment with particularity, and the trial judge did not improperly refuse to add damages to the judgment. The plaintiff failed to mitigate damages. The negligence of the intermediary agent could be imputed to the plaintiff, and the evidence of the intermediary’s negligence supported the finding that the plaintiff was more than fifty percent at fault, thus barring recovery.

Nierman v. Hyatt Corp.,
441 Mass. 693 (2004)
 

Negligence; Statute of Limitations; Conflict of Laws
 

[Conflicts of law analysis favored use of Texas statute of limitations over Massachusetts.]

A Massachusetts resident filed a negligence action for personal injuries sustained at a Hyatt Regency Hotel in Texas while climbing aboard a transport cart.  Plaintiffs filed an action in Massachusetts, asserting claims for negligence, loss of companionship, society, and support.  The trial court granted summary judgment in favor of the defendant on the grounds that the action was barred by Texas’ two-year statute of limitations.  The Appeals Court reversed and the Supreme Judicial Court granted further appellate review. The Supreme Judicial Court affirmed the summary judgment in favor of the defendant.

The parties agreed that the substantive negligence law of Texas should apply to the action and the sole issue before the court was whether the Massachusetts or the Texas statute of limitations controls the claims.  The Supreme Judicial Court analyzed the matter in light of the Restatement (Second) of Conflict of Laws, § 142, and its holding in New England Tel & Tel Co. v. Goudreau Constr. Co., 419 Mass. 658 (1995). The court concluded that the two-year Texas statue of limitations should apply to this action for two reasons.  First, Texas has a more significant relationship to the parties and to the lawsuit because the incident took place in Texas.  Second, although Massachusetts has a general interest in ensuring its residents are compensated for personal injuries, Massachusetts does not have a substantial interest in the timeliness of such action.  Thus, the Texas two-year statute of limitation applied.

 
Beals v. Commercial Union Ins. Co.,
61 Mass. App. Ct. 189 (2004)

Consumer Protection, Res Judicata, Underinsured Motorist Claims

[Arbitration of underinsured claim did not preclude subsequent claims against insurer arising from G.L. c. 93A and G.L. c. 176D claims.]

The case arose from an automobile accident which resulted in injuries to the plaintiff. The underlying case was settled with the permission of the defendant insurance company, and plaintiff sought additional damages under her policy for underinsured motorist coverage. Plaintiff was dissatisfied with the offers of settlement, and pursued arbitration through a suit for arbitration pursuant to G.L. c. 175, § 111D. The arbitration award was in excess of her insurance coverage, and the insurer tendered the limits after the arbitration decision was rendered. Plaintiff brought a separate claim against Commercial Union for its failure to promptly settle the underinsured claim, pursuant to G.L. c. 93A and G.L. c. 176D. Defendant moved for summary judgment, claiming the G.L. c. 93A claim should have been raised in the complaint for arbitration, and claiming that the subsequent case was barred by res judicata. The Superior Court justice agreed, finding that the plaintiff knew of the claims for bad faith while the arbitration matter was pending and that the plaintiff should have amended the complaint.  Summary judgment entered for the defendant and the plaintiff appealed.

The Appeals Court reversed. In order to prevail on the theory of true res judicata, or claim preclusion, the defendant was required to demonstrate (1) that there was an identity of parties; (2) that there was an identity of the cause of action; and (3) that there was a final judgment on the merits of the claim. The statute governing underinsured motorist claims, G.L. c. 175, § 111D, required the plaintiff to seek arbitration, but the statute did not require her to join claims for violations of G.L. c. 93A or G.L. c. 176D. A person is not required to arbitrate a G.L. c. 93A claim, or to join that claim in a pending action, although one may do so if the parties agree. Since the plaintiff did not intend to join her G.L. c. 93A claims in the arbitration action, she was not precluded from pursuing them separately.
 

Metropolitan Property & Casualty Ins. Co. v. Westberg,
61 Mass. App. Ct. 247 (2004)

Underinsured Motor Vehicle Benefits

[Passengers injured in a motor vehicle accident were not entitled to underinsurance benefits under the terms of the policy issued by plaintiff insurer.]

Defendant passengers were injured in a motor vehicle accident in Rhode Island.  All occupants of the vehicle were Massachusetts residents, plaintiff insurer did business in Massachusetts, and the vehicle was insured under a standard Massachusetts liability policy issued by plaintiff.  The bodily injury limits of the policy were insufficient to compensate fully for the defendants’ injuries, and the underinsurance coverage was for an equal amount.  Plaintiff insurer sought a declaration whether it owed underinsurance benefits to the defendants.  The Superior Court held that the plaintiff did not owe any such benefits.  The defendants appealed.

The Appeals Court affirmed.  Because the accident occurred in Rhode Island, a portion of the policy was implicated that addressed out-of-state injuries in states not requiring insurance as a prerequisite to registration.  Even if that portion of the policy entitled the defendants to underinsurance coverage for this accident, which the Court found unlikely, the limits of the underinsurance benefits were equal to the bodily injury limits and Massachusetts law would not permit recovery above that limit.  Despite some Rhode Island law indicating that recovery of underinsurance benefits could be stacked onto the recovery of bodily injury benefits, it was unlikely that Rhode Island law would apply to a Massachusetts liability insurance policy.

Sonin v. Mass. Turnpike Auth.,
61 Mass. App. Ct. 287 (2004)

Negligence, Public Agency, Statute of Repose

[An action against a public agency for negligent design of improvements to a roadway must be brought within six years following the completion of the improvements, and those improvements must amount to more than routine maintenance.]

Plaintiff was driving on the Massachusetts Turnpike at night in foggy conditions.  He struck a disabled vehicle in the right travel lane.  There was no breakdown lane in that part of the Turnpike.  Plaintiff did not see the disabled vehicle until he was too close to avoid it.  Plaintiff sustained severe injuries in the accident.  He brought suit against the Massachusetts Turnpike Authority, owner of the Turnpike, for negligent design of the roadway and negligent failure to warn of the absence of a breakdown lane.  At the close of evidence, on the Turnpike Authority’s motion for directed verdict, the Superior Court found that plaintiff’s claim for negligent design was time-barred by G.L. c. 260, § 2B.  Although improvements had been made to the Turnpike within the last six years, those improvements ended approximately two miles from the location of the accident.  Also, although some work had been done at the location of the accident within the last six years, that work amounted to no more than routine maintenance.  The Superior Court allowed the Turnpike Authority’s motion for a directed verdict on the claim for negligent design and allowed the claim for negligent failure to warn to go to the jury.  The jury found in favor of the defendant on the latter claim.  Plaintiff appealed only the dismissal of the claim for negligent design.

The Appeals Court affirmed.  G.L. c. 260, § 2B, bars a claim for negligent design of improvements to real property brought against any public agency more than six years after the completion of those improvements.  The plaintiff argued that the Turnpike Authority was not afforded the protection of the six-year statute of limitation in this case because it was merely an owner of the property, and not an architect, engineer, or contractor directly involved in the making of the improvements.  The plaintiff reasoned that the language of § 2B extended protection only to a class of protected actors, including those directly involved in the design and planning of the improvements to real property and excluding owners and tenants not so involved.  The Appeals Court disagreed, finding that § 2B, by its clear and express terms, bars a claim for negligent design of improvements to real property brought against any public agency more than six years after the completion of improvements, regardless of the agency’s degree or form of involvement in the making of improvements.  Regardless, the mere fact that a claim can be brought against the public agency for negligent design demonstrates that the public agency is sufficiently involved to be afforded the protection of the statute of limitations in § 2B.

Costa v. The Boston Red Sox Baseball Club,
61 Mass. App. Ct. 299 (2004)

Duty to Warn, Open and Obvious Danger

[The danger of a foul ball causing injury is open and obvious, and does not require further warning by owner of a baseball stadium.]

The plaintiff was attending her first baseball game. She was hardly a fan, and professed little knowledge of the sport, having watched only what she happened to see from time to time as she changed TV channels. She claimed, among other things, that she was unaware that a foul ball might be driven into the stands. Within ten minutes of having taken her seat behind the Red Sox dugout, she was struck in the head by foul ball and suffered serious injuries. She claimed, in her suit, that the defendant had failed to warn her of the dangers of being struck by a foul ball, and that if properly warned, she would have chosen to avoid the risk associated with the seat she had been in. The defendant moved for summary judgment, claiming it had no such duty. The motion was allowed by the Superior Court justice and the plaintiff appealed.

The Appeals Court affirmed. The court noted that injuries from foul balls are frequent (occurring between thirty-six and fifty-three times per year, as revealed by several years of data), and that the danger itself should be obvious to a person of ordinary intelligence. Following the majority of jurisdictions, the court held that there was no additional duty on the defendant to warn of the danger. The court noted that the majority of the risk was eliminated by screening in the area behind home plate. Clearly not pleased with the unfortunate result of an innocent fan being required to bear the entire costs of the injures “even though they played no role in causing them except by choosing to attend the game,” Justice Cohen suggested that major league baseball elect to internalize the costs of unavoidable injuries to the fans.

Heinricher v. Volvo Car Corp.,
61 Mass. App. Ct. 313 (2004)

Motor Vehicle, Negligence, Federal Preemption

[State common-law negligence claim against car manufacturer preempted by Federal law setting forth car safety standards.] 

Plaintiff in this case was injured in a motor vehicle accident while riding in the back seat of a 1990 Volvo sedan.  She was wearing the two-point lap seatbelt in the rear center seat of the vehicle at the time of the accident.  All of the other seats were equipped with three-point lap-shoulder harnesses.  Plaintiff brought a claim against Volvo Car Corporation sounding in negligence and breach of warranty, asserting that the Volvo was defective because it lacked three-point lap-shoulder harness in the rear center seat.  A Superior Court judge granted the defendants’ motion for summary judgment ruling that plaintiff’s claims were preempted by Federal statute and safety regulations promulgated thereunder.

The Appeals Court upheld the lower court judgment in favor of the defendants.  The National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1381-1431 (1988), and Federal Motor Vehicle Safety Standard 208, 49 C.F.R. § 571.208 (1990), impliedly preempt State common-law claims for damages sustained as a result of an alleged automotive defect.  At the time the Volvo was manufactured, Standard 208 permitted manufacturers to install either a two-point lap belt or a three-point lap-shoulder harness in the rear center seat.  Although the Federal motor vehicle safety standard “does not exempt any person from liability under common law,” Federal law preempts State law when a conflict exists.  Here, the Appeals Court found that the Federal safety standards are a comprehensive safety scheme providing manufacturers with an option for installing seatbelts.  As a result, the court reasoned that any finding of liability against Volvo would conflict with and stand as an obstacle to the implementation of the comprehensive safety scheme promulgated in Standard 208.  Therefore, the State common-law claims were preempted as a matter of law.

White v. Blue Cross and Blue Shield of Mass., Inc.,
442 Mass. 64 (2004)

Libel, Slander

[Court refused to recognize the doctrine of compelled self-publication defamation and, therefore, plaintiff’s case was dismissed.]

Plaintiff, a former employee of the defendant, Blue Cross and Blue Shield of Massachusetts, sought to hold his employer responsible for allegedly defamatory statements made to him while he was employed and which he subsequently communicated to prospective employers.  Plaintiff claimed that he was fired for divulging confidential information of which he did not even have knowledge.  In addition, plaintiff alleged that he was discharged without any investigation by the defendant.  Plaintiff applied for numerous jobs following his discharge and he stated that he “refused to lie” and was “compelled” to disclose to the prospective employers his reason for leaving Blue Cross.  The Superior Court judge granted defendant’s motion to dismiss because it did not communicate the defamatory statements to any third party.

The Supreme Judicial Court transferred the case from the Appeals Court on its own initiative and then affirmed the lower court judgment.  First, the Court found that the defendant’s actions did not meet the standard of defamation because it did not communicate the defamatory statement to a third party.  Secondly, although some courts have recognized compelled self-publication as an exception, the Supreme Judicial Court refused to adopt the doctrine.  The Court cited the doctrine’s unpredictable effect on at-will employment, an employer’s privilege to disclose defamatory information concerning an employee when reasonably necessary, and statute of limitations concerns as reasons for rejecting the exception.

Darvaris v. Petros,
442 Mass. 274 (2004)

Medical Malpractice; G.L. c. 93A; Statute of Limitations

[A Consumer Protection Act claim does not lie against a physician for acts of medical negligence, but may be brought for unfair and deceptive acts for claims arising from the business context of the doctor-physician relationship; alleged violation of informed consent did not provide basis for G.L. c. 93A claim.] 

Plaintiff sought medical care for rectal bleeding problems. She wished to undergo a fissurectomy, but instead received a hemorrhoidectomy at surgery. The consent form contemplated procedures other than fissurectomy, which plaintiff claimed was never explained to her. Further, though plaintiff was conscious during her procedure, she was not informed of the change of plans. The operation was followed by complications, and plaintiff brought a medical malpractice claim against the surgeon, alleging violations of the Patient’s Bill of Rights, G.L. c. 111, § 70E, battery, negligence, failure of informed consent, and violation of G.L. c. 93A.  The defendant moved for summary judgment, claiming the conduct, as alleged, did not violate G.L. c. 93A, and that the underlying tort claims were barred by the statute of limitations. The motion was allowed, and the Appeals Court affirmed. Darviris v. Petros, 59 Mass. App. Ct. 323 (2003). Upon further appellate review, the Supreme Judicial Court affirmed.

Mere acts of medical negligence, without more, will not constitute unfair or deceptive acts prohibited by c. 93A. The purpose of the act is to improve the commercial relationship between a consumer and a business person. The fact that there is a business aspect involved in the delivery of health care, by itself, is insufficient to engage the machinery of c. 93A. However, the consumer protection statute may be applied to the entrepreneurial and business aspects of medical care. The court pointed to billing and advertising as examples where such violation may occur, and cited with approval foreign cases indicating that failing to obtain informed consent may also be a violation. The court also rejected plaintiff’s argument that the Attorney General’s regulations provided a basis for the c. 93A claim. The mere negligent violation of the informed consent provisions in c. 111, § 70E, and 940 Code Mass. Regs § 3.16(3) was an inadequate basis for the c. 93A claim because the legislature has “covered the field” of medical negligence in the negligence statutes, G.L. c. 231, §§ 60B-60E.

Note: A matter of frequent interest in medical malpractice cases is the alteration of records by health care professionals, as well as the loss of critical records (Compare Keene v. Brigham and Women’s Hospital, Inc., 439 Mass. 223 (2003)). The court did not address record alteration or destruction. The creation and preservation of accurate records is governed by statute and by regulation, and is a matter which relates primarily to the business aspect of medicine. It would follow that the alteration and destruction of records would support a finding of intentional misconduct in violation of c. 93A.

 
Aspinall v. Philip Morris Companies,
442 Mass. 381 (2004)

 Consumer Protection Act, Class Action

[Trial judge properly certified as a class, pursuant to G.L. c. 93A, a group of smokers who had purchased Marlboro Lights where the facts to be presented at trial were common to all class members, and where no individual matters of damages would be considered in the case.]

An action was filed on behalf of smokers of Marlboro Lights, and class certification was sought. The matter sought damages pursuant to G.L. c. 93A for alleged misconduct of the cigarette manufacturer, which had advertised its brand as low in tar and nicotine. Testing revealed that the cigarettes had design features which actually made them higher in tar and nicotine. The manufacturer had allegedly subverted government testing, and was able to boost actual nicotine content through modification of the filter, use of reconstituted tobacco sheets, increase of the smoke pH level, and other techniques. The superior court judge determined that a class was appropriate under G.L. c. 93A, § 9(2), which allows for class actions for similar injuries to numerous persons similarly situated, and under Mass. R. Civ. P. 23. On application to the single justice, the order certifying the class was vacated. The Supreme Judicial Court granted direct appellate review and restored the certification.

The court reviewed the facts regarding the alleged misconduct in fine detail. The court was satisfied that, since no individual claims for damages would be considered, certification was appropriate. The court also determined that “benefit of the bargain” damages would be the appropriate measure of damages. If the class could not demonstrate that it had suffered measurable damages (and the manufacturer pointed out that Marlboros and Marlboro Lights were always the same price), then statutory damages of $25 would be appropriate. This case was distinguished from Lord v. Commercial Union Ins. Co., 60 Mass. App. Ct. 309 (2004), in which case the plaintiff failed to demonstrate the requisite element of causation. Justice Cordy dissented, and was joined by Justices Ireland and Cowin.

 O’Leary v. The Education Resources Institute, Inc.
61 Mass. App. Ct. 653 (2004)

Frivolous Action, G.L. c. 231, § 6F

[Attorney who represented himself was “represented by counsel” for the purposes of the award of attorney’s fees and costs pursuant to G.L. c. 231, § 6F.]

O’Leary, an attorney, had been a defendant in a district court action for defaulting on his student loans, which the defendant in the instant case had gua