Tort and Insurance Law Update -- 2005

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

What follows is a summary of the significant cases from 2005 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.

Campbell v. Boston Housing Authority
443 Mass. 574 (2005)

Lead Poisoning; Mass. Tort Claims Act

[BHA statements that do not specifically mention lead paint or exact measures that will be taken to eliminate lead paint are general representations for the purposes of G.L. c. 258, § 10(j)(1) and cannot give rise to liability for negligence.]

Plaintiff was a former tenant in two federally subsidized residential assistance programs. Plaintiff sued the Boston Housing Authority (BHA), seeking damages for injuries caused by lead paint. Plaintiff argued that BHA breached its duty to inspect for lead paint and enforce elimination of lead paint hazards. In order to receive funds for the housing assistance programs, BHA entered into Annual Contributions Contracts with U.S. Department of Housing and Urban Development, and Housing Assistance Payments contracts with the owners of the subject housing units. The housing assistance programs imposed contractual and regulatory obligations on the BHA to inspect the leased premises for lead-based paint hazards. Plaintiff's mother had several communications with BHA inspectors, who made statements such as “[plaintiff was] entitled to safe, affordable, and decent housing, and the apartment would be inspected...” and “it would be taken care of.” The inspectors never told plaintiff's mother what exactly they were going to do in response to her complaints about lead paint in the apartment. Plaintiff sued BHA and the owners of the two residential units, including claims for negligence and breach of contract. BHA moved for summary judgment, arguing the exemptions set forth in G.L. c. 258, §10(f) & (j), which were enacted in 1994, protected it from plaintiff's claims. The Superior Court judge allowed BHA's motion for summary judgment.

The SJC rejected plaintiff's contention that a genuine issue of material fact exists concerning whether the BHA's various verbal assurances to her mother about the condition of the leased premises were the kind of “explicit and specific assurances of safety or assistance” contemplated under G.L. c. 258, § 10(j)(1). Statements such as “[plaintiff is] entitled to safe, affordable, and decent housing, and the apartment would be inspected...” and “it would be taken care of” did not constitute “explicit and specific assurances” that the “premises [were] free of lead paint hazards.” The responses given to plaintiff's mother by the BHA had no definitiveness, were not fixed, and did not state what BHA was going to do about the lead paint, and do not specifically mention lead paint; therefore, the statements are only “general representations” under § 10(j)(1) and cannot give rise to liability for negligence. Thus, summary judgment in favor of BHA on plaintiff's negligence claims was affirmed.
 

Otis v. Arbella Mutual Ins. Co.
443 Mass. 634 (2005)

Insurance; Legal Malpractice; Consumer Protection Act

[Judicial estoppel precludes a party from taking a position in a legal proceeding that is contrary to the position he/she took in a previous proceeding, even when the party is asserting another's claims that were assigned to him/her.]

Otis and O'Malley, pedestrians, were seriously injured when Cusick's motor vehicle struck them. Cusick plead guilty to drunk driving and leaving the scene of an accident. Otis filed a claim against Cusick, the case was tried, and the jury returned a verdict in favor of Otis for $4 million. At the trial, the evidence showed that, although plaintiff was not in a crosswalk when he was struck by Cusick's vehicle, plaintiff had yielded the right of way Cusick's automobile by stopping in the opposite lane of traffic to allow Cusick to proceed. After the verdict, Cusick's attorney filed a motion for a new trial on grounds that he trial court erred in allowing evidence that Cusick ran over O'Malley's head because such evidence was irrelevant to Otis's claim and was too prejudicial. Otis opposed the motion for a new trial, which was denied. No appeal was taken and execution issued in the amount of $6,585,195.30. Cusick's motor vehicle insurance policy limit was $50,000. When Otis realized that Cusick had insufficient funds to satisfy the judgment, Otis released Cusick from liability in exchange for an assignment of Cusick's legal malpractice and 93A claims against his lawyer and insurer in defense of Cusick in the underlying action. Otis contended that defendants were negligent in not introducing evidence at trial of Otis' comparative negligence and that the attorney failed to file a meritorious appeal. Otis claimed that the judge erred in admitting evidence that Cusick ran over O'Malley's head. Otis alleged that these failures caused a judgment to enter against Cusick and that the judgment was obtained as a result of the defendant lawyer's negligence. The defendants both moved for summary judgment on the grounds that Otis' position in this case was opposite of his position in the underlying case and the doctrine of judicial estoppel barred his negligence and 93A claims.

The SJC affirmed. “Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding.” The application of judicial estoppel is to be decided on a case by case basis. The SJC found that Otis' present case is barred by judicial estoppel because the claims are diametrically contrary to the position he took in his original suit against Cusick. In the underlying case, Otis took the position that he was not comparatively negligent and he as a pedestrian yielded the right of way to Cusick. In the present case, Otis argues that he was comparatively negligent and had not yielded the right of way to Cusick. Also, in the underlying case, Otis successfully opposed Cusick's motion for a new trail based on wrongful admission of evidence that Cusick ran over O'Malley's head. In the present action, Otis argues that it was error for such evidence to be admitted and that it was a reversible error. This case does not involve any factors, such as inadvertent mistake or newly discovered evidence, that might, on equitable grounds, relieve Otis from the application of judicial estoppel. Accordingly, the SJC held that the trial judge did not abuse his discretion in applying judicial estoppel. Additionally, the SJC rejected Otis' arguments that judicial estoppel should not be applied because: (1) Otis is bringing the present suit as an assignee of Cusick and is therefore presenting Cusick's claims, not his own; (2) Otis himself did not make inconsistent statement under oath concerning his comparative negligence; and (3) the SJC previously rejected use of judicial estoppel in cases of assignment of legal malpractice claims.

Rodriguez v. Cambridge Housing Authority
443 Mass. 697 (2005)

Negligence; Emotional Distress; Damages

[Post-traumatic stress disorder, nightmares, depression, and hospitalization constituted sufficient objective evidence of emotional distress after home invasions.]

Carmen leased an apartment from Cambridge Housing Authority (CHA) for her family in 1985. On May 12, 1994, Carmen was attacked in her home by an intruder. The police investigation revealed no forced entry. On May 18, 1994, Carmen was attacked in her bedroom by an intruder. During the second attack, Carmen was bound, gagged, and slashed all over her body. Carmen's son, Samuel, heard her moaning and made his way to Carmen's bedroom. When the intruder heard Samuel, he fled. Samuel was unable to untie Carmen and had to wait for police to come. Both Carmen and her son were admitted to Cambridge Hospital for 17 days as a result of the attack. Doctors diagnosed Carmen with post-traumatic stress disorder and major depression. Doctors diagnosed Samuel with post-traumatic stress disorder, nightmares, and suicidal thoughts. On June 4, 1994, plaintiff returned to their apartment and heard breaking glass and a slamming of the back door. Carmen fled to a neighbor's home. Carmen's older son, Carlos, confronted Joaquin Luciano, who was in the vicinity of the building and who Carmen had a protective order against. Luciano pulled a knife on Carlos and severely injured his hand. The jury found that CHA had been comparatively negligent regarding the maintenance of the premises by failing to change the door locks, and that such negligence proximately caused two of the three home invasions. The trial judge allowed CHA's motion for JNOV and entered a final judgment dismissing the plaintiff's complaint.

The SJC reversed. The SJC found there was sufficient objective evidence of Samuel's emotional distress to satisfy the temporal, spatial, and relational requirements of negligent infliction of emotional distress as a result of the May 18 attack. Samuel discovered his mother in their apartment, bound, gagged, slashed, and suffocating. Samuel could not untie her had had to watch her struggle to breath until police could arrive. This trauma caused him to be hospitalized for 17 days and he has suffered from post-traumatic stress disorder, nightmares, depression and suicidal thoughts. Accordingly, Samuel was entitled to recover damages for negligent infliction of emotional distress. The SJC also found Carmen presented sufficient objective evidence of emotional distress to recover for the June 4, 1994 incident even though she did not witness Luciano's attack on Carlos. After the June 4 incident, plaintiff's physician noted she was having increased post-traumatic stress disorder, nightmares, insomnia, and dissociative episodes. There was sufficient evidence for a jury to infer that a reasonable person would have experienced emotional distressed as a result of the June 4 incident.

Reardon v. Parisi
63 Mass. App. Ct. 39 (2005)

Snow and Ice

[Summary judgment cannot be granted on a tort claim involving a slip and fall where the construction of the parking lot is at issue because it becomes a question of fact]

Plaintiff alleged that the defendants' negligence caused an unnatural accumulation of snow and ice to form on a private parking lot, resulting in her injuries when she slipped on the ice and fell on her way to work. Concluding that, under the common law, a natural accumulation of ice on property is not an actionable defect, the judge determined that "there is no evidence that grading of the parking lot caused the runoff to be collected in an artificial channel. The existence of a slope leading to a drain is not a defect. . . . As a matter of law, the evidence in the record is insufficient to create a question of material fact as to negligence on the part of any defendant." Defendant's summary judgment motion was allowed.

The Appeals Court reversed. The court concluded that the issue of whether the icy surface that formed on the parking lot as a result of runoff from snow that was plowed was a condition that was created or heightened by the way the parking lot was constructed was a question of fact. The court was persuaded by plaintiff's expert who opined that the slope of the parking lot required constant vigilance by the defendant to maintain a safe site through regular application of salt and sand to melt the ice which was sure to accumulate, given the conditions. The court noted that if the trier of fact believed the plaintiff's expert, the evidence would be sufficient to support a finding that some act or failure to act has changed the condition of naturally accumulated snow and ice. The matter was remanded for trial.

Delaney v. Reynolds
63 Mass. App. Ct. 239 (2005)

Negligence; Causation; Forseeability

[Whether plaintiff intended to kill or injure herself, whether defendant was negligent in leaving a loaded gun accessible to plaintiff, and whether suicide is foreseeable are questions of fact.]

Delaney shot and injured herself with Reynolds' gun. Delaney brought this action against Reynolds, alleging that Reynolds knew of her serious emotional and mental problems, including her thoughts of suicide, and that he was negligent in storing his loaded gun in a place where Delaney could access it. The judge granted Reynolds' motion for summary judgment on the grounds that Delaney's act of shooting herself was a superseding cause of injury, relieving Reynolds of liability for negligence.

The question before the court is whether suicide, as a matter of law, is such an extraordinary event that it is not reasonably foreseeable and breaks the causal chain between Reynolds' negligence and Delaney's injury. The historical view is that a purposeful act of suicide or self-inflicted injury will be deemed the proximate cause of death or injury unless the defendant's negligence rendered the decedent unable to appreciate the self-destructive nature of his/her act. A review of Massachusetts cases revealed that Massachusetts does not have a bright line rule regarding suicide or intentionally self-inflicted injury constituting an intervening and superseding act. Plaintiff argued that she believed the gun was not loaded and that her state of mind was a question of fact. Based on the summary judgment record, the Appeals Court found that whether Delaney intended to injure or kill herself was a question of fact and whether Reynolds was negligent in leaving a loaded gun accessible to Delaney was also a question of fact.

Twomey v. Commonwealth
444 Mass. 58 (2005)

Negligence; Governmental Immunity

[There is no governmental immunity for negligent maintenance of a stop sign erected pursuant to G.L. c. 85, § 2.]

The plaintiffs' son was killed after a driver of a vehicle in which he was a passenger failed to stop at a stop sign that was obscured by trees and brush. The question was whether the Commonwealth had a duty to maintain a stop sign erected pursuant to G.L. c. 85, § 2 that included the duty to ensure that the sign was visible and unobstructed, and whether provisions of G.L. c. 258, §10 (f) provide governmental immunity for negligent performance of that duty. G.L. c. 258, §10(j)(3) provides that the Commonwealth has no immunity from “any claim based on negligent maintenance of public property.” The SJC found that the stop sign was designed, installed, and maintained by the Commonwealth, and even though it was on town land, the Commonwealth was liable for damage cause by the failure to maintain it in a safe condition. Accordingly, the Commonwealth is not shielded from liability for negligent maintenance of the stop sign.

Miller v. Volk
63 Mass. App. Ct. 303 (2005)

Professional Negligence; Damages

[Plaintiff failed to demonstrate accountant negligence or damages.]

Miller hired defendant Volk to prepare his 1995 individual and 1996 personal service corporation (PSC) taxes. The PSC tax year ended on July 31, 1006 and taxes were due on October 31, 1996. In 1999, the IRS audited the PSC 1996 return and assessed a deficiency of $23,335 plus $7,606 in interest. The Superior Court entered a judgment in those amounts against the defendant for negligent tax preparation and against Millier for his claims of breach of warranty and unfair and deceptive acts under G.L. c. 93A, and the defendant appealed.

The Appeals Court reversed. The case involved the complicated provisions of § 280H of the Tax Code, and their application to the plaintiff's business, and the timing of certain payroll expenses. First, the court found, there was no evidence to determine whether Miller was required to apply the § 280H calculation. Furthermore, the plaintiff could not sustain his burden on the question of damages; he had the use of the funds for a period of time, and there was no evidence that the interest charged by the IRS was not a fair charge for the use of the money. Finally, the plaintiff failed to demonstrate that the defendant in any way participated in his payroll decisions or timing.

Dilbert v. Hanover Ins. Co.
63 Mass. App. Ct. 327 (2005)

Insurance; Trespass

[Insurer had duty to defend insured in claim for wrongful entry.]

Dilbert and Kilgore purchased a condominium unit from Remsen. Two years later there was a dispute over the ownership of the parking space that accompanied the condominium unit. Remsen filed an action against the plaintiffs alleging that plaintiffs were using the parking space in derogation of her rights and to her exclusion and that she retained “equitable title” to the space. The plaintiffs demanded that their homeowner's insurance carrier, Hanover Insurance Company, defend them in Remsen's action. Hanover refused. Plaintiffs settled the dispute with Remsen without the assistance of Hanover and then filed the present action against Hanover seeking damages for breach of contract and declaratory judgment under the policy. Plaintiffs' policy provided coverage for claims against the insured for bodily injury, which was defined to include personal injury arising out of invasion of privacy, wrongful eviction, or wrongful entry. Hanover never made any inquiry of either plaintiff concerning the Ramsen allegations.

The Appeals Court determined that wrongful entry equates to trespass, and rejected Hanover 's argument that wrongful entry is a tort recognized only in landlord-tenant situations. The allegations in Remsen's complaint met the elements of trespass under common law, as Remsen alleged that she was in possession of the parking space at the time plaintiffs entered, that they occupied the space, and that they failed to vacate the space when asked to do so. The court rejected Hanover 's argument that there was no trespass found that Hanover had a duty to defend its insured. The judgment of the lower court was reversed.

Doe v. Harbor Schools, Inc.
63 Mass. App. Ct. 337 (2005)

Statute of Limitations

[There were genuine issues of material fact as to whether plaintiff had a fiduciary relationship with defendant and at what date plaintiff became aware that such relationship had been breached; therefore, Superior Court grant of summary judgment in favor of the defendants was reversed.]

In 1992, plaintiff was 17 ½ years old and living in a transitional home for troubled teens. Freeman was plaintiff's counselor at the transitional home. Plaintiff alleged that the counselor-counselee relationship eventually progressed into an inappropriate relationship, including encounters of a sexual nature which caused her emotional and psychological harm. Plaintiff acknowledged that the encounters were consensual, but maintained that she participated because she wanted to please Freeman.

The important dates are as follows: In the spring of 1993, Freeman kissed plaintiff for the first time and shortly thereafter, plaintiff twice engaged in oral sex with Freeman. In approximately June 1993, a different Harbor Schools employee informed plaintiff that Freeman had been told to end his relationship with her but he had elected to continue it; receipt of this information lead plaintiff to attempt suicide. In July 1993 plaintiff viewed her relationship with Freeman as negative. In September 1994, plaintiff began seeing a psychotherapist for treatment of depression, panic disorder, and post-traumatic stress disorder.

Plaintiff filed her complaint on January 23, 1997, with claims for assault and battery, negligence, intentional infliction of emotional distress, negligent supervision, and negligent breach of fiduciary duty. Both Freeman and the Harbor Schools filed motions for summary judgment, arguing that the three year statute of limitations on all claims had expired, as the claims accrued in the spring or summer of 1993 or at the latest in November 1993. Plaintiff argued that the claim did not accrue until after January 23, 2004, when she first discovered the nexus between her relationship with Freeman and her emotional difficulties.

There is a three year statute of limitations for tort actions. Under the "discovery rule," the limitations period will not start to run until the connection between the cause of the harm and the injuries suffered is known or becomes knowable. The court held that the statutes of limitations had expired and barred all claims except plaintiff's claim for negligent beach of fiduciary duty. The court found sufficient facts that plaintiff knew or should have know that the relationship with Freeman was causing her emotional harm by November 1993.

Regarding the claim for negligent breach if fiduciary duty, the court stated that the limitations period begins to run when the beneficiary actually knows that the fiduciary breached the trust. In this case, whether a fiduciary relationship existed is a question of fact. The court found the record here created a genuine issue of material fact as to whether a fiduciary relationship existed and when plaintiff actually knew the fiduciary duty had been breached. Thus, regarding the claim for negligent breach of fiduciary duty, the Superior Court grant of summary judgment in favor of defendants was reversed.

Roukounakis v. Messer
63 Mass. App. Ct. 482 (2005)

Negligence; Doctor; Duty to Disclose Risk

[Held plaintiff cannot assert claims for both negligence and lack of informed consent based upon the same facts.]

Plaintiff had a routine mammogram in February 1993 and was informed that it was normal. In February 1994, plaintiff was diagnosed with cancer in her left breast and underwent a mastectomy. During her cancer treatment, plaintiff obtained the 1993 mammogram report, which noted a "questionable nodular area" in her left breast. Plaintiff filed medical malpractice action against the radiologist who read the 1993 film for failing to diagnose cancer and for failing to obtain her informed consent by not disclosing to her all significant medical information material for her to make an intelligent decision, including failing to inform her there was a "questionable nodular area." The case was tried and the jury returned a defense verdict. The plaintiff appealed based on the trial judge's refusal to charge the jury on informed consent.

The Appeals Court affirmed. Courts in other jurisdictions have precluded claims for informed consent based on the same facts as the negligence claims for failure to diagnose. The Appeals Court noted plaintiff's claims for negligence and for informed consent were based on the same facts, and held there cannot be a second cause of action of informed consent based upon the same facts as negligence for failure to diagnose and treat.
 

John Doe v. Mary Moe
63 Mass. App. Ct. 516 (2005) – May 16

Negligence; Duty to Prevent Harm; Wanton or Reckless Conduct

[Summary judgment in favor of defendant affirmed after court found defendant's behavior during consensual sexual relations was not wanton or reckless.]

Plaintiff, John Doe, suffered serious physical injury during consensual sexual intercourse with the defendant, Mary Moe. While the couple was engaged in intercourse, the plaintiff changed her position, landed awkwardly on the defendant, and caused him to sustain a penile fracture. The complaint, initially filed in Superior Court, was remanded to the District Court. The District Court judge dismissed the case, and the case was retransferred to the Superior Court, which granted the defendant's motion for summary judgment.

Whether persons engaged in consensual sexual intercourse own one another a legal duty of care was the threshold issue. The Appeals Court held that the reasonable care standard was not an appropriate standard for consensual sexual relations because there are no commonly accepted customs or values that determine reasonable behavior during private, consensual sexual relations. Thus, there is no legal duty to use reasonable care during consensual sexual conduct. The Appeals Court did find, however, that there is a legal duty not to engage in wanton or reckless conduct during consensual sexual relations. The Appeals Court held the facts in this case do not amount to wanton or reckless conduct and affirmed summary judgment in favor of defendant.

Fistel v. Favaloro
63 Mass. App. Ct. 651 (2005)

Legal Malpractice; Duty to Non-client

[Lawyer does not owe a duty to someone who is not his/her client.]

Plaintiff buyer signed agreement to purchase a building together with six deeded parking spaces at the rear of the lot. Despite having been informed by her lending bank that she should obtain her own counsel, she did not do so. At the closing, buyer questioned seller's broker as to whether the parking spaces were included in the sale and the broker assured her that they were; the lender's attorney, defendant Favaloro, was present and said nothing. The deed did not in fact convey the parking spaces. Buyer then sued attorney Favaloro, claimed he is liable to her as a non-client given the congruity of the bank's and buyer's interests with respect to the parking spaces. The court held that there was no basis for the buyer to rely on Favaloro, as there was no attorney-client relationship; Favaloro did not owe buyer a duty because she was not his client.

 

Vining v. Commonwealth
63 Mass. App. Ct. 690 (2005)

Mass. Tort Claims Act

[G.L. c. 258, § 10(d) is a broad grant of immunity; as such, the Commonwealth is immune from liability where the negligence of a court officer causes another's property to be lost.]

Plaintiff was arrested and taken into custody by an officer of the Somerville police department and his personal property, which included two rings and a watch, were inventoried and removed from him. After his trial, acquittal, and release from custody, the plaintiff sought return of his property; the rings and the watch, however, were never located. Plaintiff filed a complaint against the officer, the City of Somerville, and the Commonwealth; the Superior Court dismissed the complaint on the ground that the Commonwealth had not waived its sovereign immunity under the “detention of goods” exception G.L. c. 258, § 10(d).

The Appeals Court affirmed. The question was whether the loss by court officers of property seized from a person in their custody gives rise to a cause of action under the Massachusetts Tort Claims Act. G.L. c. 258, § 10(d) bars “any claim arising in respect of the assessment or collection of any tax, or the lawful detention of any goods or merchandise by any law enforcement officer.” The court held that § 10(d) was not to be read narrowly so as to include only law enforcement officers engaged in tax or customs duties or authorized to take property or restrain transfer of funds in civil actions. Rather, the Appeals Court held that § 10(d) is a broad grant of immunity. Where property is lost as a result of negligence of court officers, the Commonwealth is immune from liability.
 

Greenwood v. Town of Easton
444 Mass. 467 (2005)


Mass. Tort Claims Act; Negligence; Governmental Immunity

[Decision to use telephone poles as parking barrier fell under the discretionary function exception of the Massachusetts Tort Claims Act; however, manner in which poles were installed in parking lot was not a discretionary function.]

Plaintiff was seriously injured in a high school parking lot, owned by the town of Easton , when a vehicle struck a horizontal telephone pole that was being used as a parking barrier, causing the pole to roll forward, knocking plaintiff to the ground, and rolling over her. The telephone poles had been placed on, but not secured into, the ground to separate the parking lot from the surrounding property. Plaintiff filed a negligence action against the town (and the driver) alleging, inter alia, it was negligent in placing barriers on the ground and failing to secure them. The town moved for summary judgment, arguing that it was entitled to immunity under the discretionary function exception of the Massachusetts Tort Claims Act because the decision to use telephone poles as parking barriers involved policy making and planning. The trial court denied the motion and the Appeals Court reversed.

The SJC reversed, and reinstated the order denying summary judgment. The SJC noted that the discretionary function exception is narrow and only provides immunity for discretionary conduct involving policy making or planning. However, if negligent conduct arises from the implementation of policies or plans, governmental immunity does not apply. Here, the SJC found that the decision to use telephone poles as parking barriers was part of planning and policy making. However, the manner in which telephone poles were installed did not fall under the discretionary conduct exception, as the town did not demonstrate that "social, political, or economic policy considerations" were involved in the installation of telephone poles or any decision not to secure the telephone poles to prevent movement. Stated simply, execution of an established policy is not discretionary conduct that is immune from liability. Town also contended it was immune from liability under G. L. c. 258, § 10(j) because no act or omission by a town employee was the original cause of plaintiff's injuries and the town did not commit an "affirmative act." The SJC rejected this argument because §10(j)(3) specifically states that §10(j) shall not apply to "any claim based on a negligent maintenance of public property."

 

Audette v. Commonwealth
63 Mass. App. Ct. 727 (2005)

Mass. Tort Claims Act; Governmental Immunity; Strict Liability; Dog; Forseeability; Negligence

[Where state trooper took affirmative action of allowing police dog to be off leash, there is no immunity from suit; actions for personal injury caused by police dog will be analyzed under the dog bite common law, whether the owner of the dog knew or should have known of the dog's vicious propensities, as the Massachusetts Tort Claims Act does not permit actions under strict liability.]

Plaintiff, a Randolph police officer, was bitten by State Trooper Tasker's police dog, while on the scene of a motor vehicle search. During the search, the trooper allowed the dog to be off leash. The Commonwealth moved for summary judgment, arguing that it was immune from liability under G. L. c. 258, § 10(b) & (j), and the Superior Court granted summary judgment in favor of the Commonwealth on those grounds.

The Appeals Court held that the Commonwealth was immune from liability for any claim based on the Trooper's failure to train or supervise the dog, pursuant to the "discretionary function" exclusion found in G. L. c. 258, § 10(b). However, the court also found that there was no immunity for a claim based on the Trooper's affirmative act of allowing the dog to be off leash during the search; thus, plaintiff's claim is not barred by G. L. c. 258, §10(j). The Appeals Court then stated that the Massachusetts Tort Claims Act does not permit actions under strict liability; therefore, plaintiff could not make a claim under the dog bite statute, G.L. c. 140, § 155. Therefore, the court looked to dog bite common law. Under common law, the owner or keeper of dog is liable for injuries caused by the dog if the owner or keeper knew or should have known of the dog's vicious propensities. Here, plaintiff provided no evidence of prior dog bite or vicious behavior, and the mere fact that dog was a police dog does not establish the owner's knowledge of the dog's vicious propensities. Therefore, the grant of summary judgment was affirmed, but on the grounds that there was no evidence to support a common law claim for injuries caused by a dog.
 

Atlas Metals Products Co., Inc. v. Lumbermans Mutual Casualty Co.
63 Mass. App. Ct. 738 (2005)

Insurance

[Employee Dishonesty Protection policy did not extend to thefts from the independent business entity.]

Atlas employee misappropriated funds from Atlas and from R&R Realty Trust (R&R) (Atlas has access to R&R checks pursuant to arrangement between Atlas and R&R) through a check cashing scheme. Lumbermans denied the claim for the misappropriation R&R funds, but paid the claim for the misappropriation of Atlas funds. The question before the court was whether employee dishonesty protection policy (EDP) issued to Atlas, as the named insured, by Lumbermans ,covers thefts by an Atlas employee in a fraudulent scheme involving the cashing of checks from a separate business entity. EDP policy provisions germane to this case were the following: (1) policy covered direct losses of property to named insured, Atlas; (2) policy excluded from coverage any indirect loss; and (3) covered property must be (a) held or owned by the insured, or (b) be property for which insured was legally liable and payments under this provision are only to return a direct benefit to the insured, not to a third party.

The Appeals Court held that coverage under the EDP policy did not include thefts from the independent business entity. Where an employee dishonesty policy has provisions which limit coverage to direct property losses and exclude both indirect losses and the payment of damages to third parties, the policy cannot be deemed to cover general legal liability for damages due to independent third-party entities. The R&R checking account from which the checks were drawn was not property of Atlas. Additionally, the "legally liable" provision does not trigger coverage because any payment made under that provision would not provide a direct benefit to the named insured, Atlas, but rather would be the payment of damages to a third party. The term "legally liable" was not ambiguous, and therefore would not be construed in favor of Atlas. Finally, although the EDP covers "dishonest acts committed by an employee,… acting with manifest intent to: (1) cause you to sustain loss…", the dishonest employee in this case knew she was stealing funds from R&R and that R&R was separate from Atlas. Thus, it could not be said that employee had the "manifest intent" to cause Atlas (rather than R&R) to sustain a loss.

 

Valley Forge Ins. Co. v. Katz
63 Mass. App. Ct. 759 (2005)

Motor Vehicle Insurance; Underinsured Motorist

[A minor passenger injured in automobile accident could not recover under the transportation company's underinsurance policy because she was not a named insured and could not be considered one based on a special relationship between the transportation company and the passenger; the fact that defendant was covered under her mother's underinsurance policy precluded recovery under plaintiff's underinsurance policy; the statutory scheme in G.L. c. 175, §113L(5) will prevail even in the face of equitable considerations.]

An automobile driven by Richard Spicer struck a van driven by Maria Bililies, in which the defendant, Katz, a minor, was a passenger. The van was owned by Alternative Leisure Co., Inc. Spicer was insured under a standard Massachusetts liability policy issued with policy limits of $100,000. Katz' mother had a car insurance policy which provided underinsurance coverage for Katz as a relative living in the household; Katz, however, could not recover any money from her mother's policy because its underinsured motorist coverage limit, $100,000, did not exceed the bodily injury limit in Spicer's policy. Katz brought a negligence action against Spicer, Alternative, and the driver of the van. Katz settled the claim against Spicer for $70,000; a jury returned a verdict of no negligence against Alternative and the driver of the van. Katz then made a demand upon Valley Forge , Alternative's Insurer, for underinsured motorist benefits in excess of $100,000. Valley Forge denied the demand because the injuries did not exceed the $100,000 available under Spicer's policy. Valley Forge brought a declaratory judgment action seeking a declaration that Katz was not a named insured under Alternative's policy, could not be a "household member" of Alternative, and was not entitled to underinsured motorist coverage because she had underinsurance coverage under her mother's policy as a household member. Superior Court ruled in favor of Valley Forge . Katz appealed.

Katz not covered under the Valley Forge policy because she is not a named insured, she is not a household member, and she is covered as a household member on her mother's policy, which provides underinsurance coverage. Katz asserted a novel set of arguments for how and why she should be covered by the Valley Forge policy. First, she argued that because the insured, Alternative, was in a special relationship to its passengers, who included children and adults with disabilities, and had essentially merged identities with its passengers, the courts should treat passengers as "named insured." The court found that Katz had not merged her identity with Alternative and was not a named insured on Alternative's policy. Second, Katz asserted that she should be entitled to make a claim under Alternative's underinsurance policy as a passenger not "covered" by a household member's policy because she did not actually receive any benefits under her mother's policy because its limits did not exceed those of the tortfeasor's. The court the court stated that coverage was a statutory issue, that Katz was covered by her mother's policy, and that Katz was precluded from collecting under Alternative's policy. Third, Katz asserted a public policy argument that coverage should be extended to her, given Alternative's high duty of care in transporting young children, and that it was inequitable to afford her fewer benefits than passengers whose parents failed to purchase insurance coverage. The court held that, at the appellate court level, the statutory scheme will prevail, even in the face of equitable considerations. The court also rejected the argument that Alternative had a higher duty of care because such a finding would, in effect, hold Alternative strictly liable for anything that happens to its passengers and to impose a requirement that all professional transportation companies provide underinsurance to all passengers


 

The Home Ins. Co. v. Liberty Mutual Fire Ins. Co.
444 Mass. 599 (2005)

Insurance; Workers' Compensation; 93A

[Employee leasing company's workers' compensation carrier had no duty to defend the lessee company against claims brought by injured employee, because lessee company was not a named insured on the leasing company's workers' compensation policy.]

Able Leasing Company, Inc. leased employee Carmelo Mercado to Pure Tech SPP, Inc. Mercado sustained injuries related to his employment while leased to Pure Tech. Mercado filed a workers' compensation claim against Able and received compensation for his injuries through Able's workers' compensation insurer, Liberty Mutual. Mercado also filed a third-party action against Pure Tech, alleging negligence caused him to be injured by machinery at Pure Tech. Pure Tech's comprehensive general liability insurer, Home Insurance, defended that action. Pure Tech settled the matter with Mercado for $850,000; some of the settlement recovery was used to satisfy Liberty 's lien for reimbursement of the workers' compensation benefits. Prior to the settlement, Home demanded Liberty assume full responsibility for the defense and indemnification of Pure Tech in the Mercado matter. Liberty never responded to the letter, an action for declaratory judgment was later filed, and both parties moved for summary judgment. The motion judge granted summary judgment in favor of Liberty .

The Liberty workers' compensation master policy named Able as the sole insured. The policy provided two kinds of coverage: Part One provided standard workers' compensation insurance; Part Two, under which Home asserted its claims, provided employers liability coverage. In compliance with 211 Code Mass. Regs. §111.04, for each of Able's Massachusetts clients, Liberty issued a separate policy to Able, where the named insured was "Able Leasing Company, Inc. [Leasing Company For] Pure Tech of Massachusetts."

The SJC affirmed on different grounds the Superior Court granting of summary judgment to Liberty . The question before the SJC was whether Pure Tech was insured against Mercado's independent tort claim under any Liberty policy, because, as Pure Tech argued, it was a "special employer" or "dual employer" of Mercado. The SJC held that Pure Tech was not covered by any Liberty policy because it was not a named insured and that the Liberty policy specifically excluded liability assumed under contract. Thus, Liberty had no liability to defend Pure Tech nor to indemnify Home for the expenses it incurred in settling the Mercado tort litigation; and Home was liable, as Pure Tech's comprehensive general liability carrier, for claims brought by a leased employee. Because Pure Tech was not entitled to defense or indemnification from Liberty; Home's assertion of 93A claim against Liberty failed.

 

Eck v. Godbout
444 Mass. 724 (2005)

Legal Malpractice; Release

[Where a general broadly worded release provision is followed by a narrow release provision specific to a certain transaction, and the two provisions are connected wit the term “and”, the second narrow provision does not limit the scope of the broad provision and the release applies to all future claims, including those not contemplated at the time the release was executed.]

Attorney Kellem represented Eck in two real estate transactions. The first transaction was in Norwood , where Eck requested the purchase and sale agreement include language protecting Eck from any claims brought against him by the purchaser as a result of hazardous waste on the property. Kellem assured Eck the purchase and sale agreement would protect him from any such claims. The second transaction was in Hull . Two years after the Hull transaction, Eck brought a legal malpractice action against Kellem in connection with the Hull transaction; Eck was represented by Attorney Godbout in that suit. While the legal malpractice action was pending, the Norwood purchaser sued Eck over the environmental hazards on the Norwood property. The legal malpractice action was settled, and a release with two operative provisions was executed. The first provision released Kellem from "all debts, demands, and liabilities whatsoever of every name and nature... which against [Kellem] I now have or ever had... " The second provision released Kellem from claims specific to the Hull transaction. Some time after the release was executed, the trial regarding the Norwood property took place and Eck was found liable. Thereafter, Eck filed a second malpractice action against Kellem in connection with his failure to draft the purchase and sale agreement in a manner that would provide protection against environmental claims. In the same suit, Eck asserted claims against Godbout for legal malpractice. Kellem moved for summary judgment, arguing that the release executed by Eck was a general release that operated to release all claims, including claims in connection with the Norwood transaction. The trial court granted summary judgment in favor of Kellem. The Appeals Court reversed, finding that release was limited to Hull transaction.

The issue before the SJC was whether the language in the release specifically referencing the Hull transaction and Hull malpractice suite operated to limit the scope of the broadly worded release that preceeded it. A release may be prompted by settlement of a specific dispute, but broad wording in the release operates to settle all other, unrelated matters, even if they were not specifically in the parties' minds at the time the release was executed. The court noted that the present release contained the broad release language, followed by the conjunctive "and", and then followed by release language specific to the Hull transaction. The SJC held that the present release was a general release that released all claims against Kellem, including but not limited to the specific claim identified. The fact that a release as worded extends to matters that the parties did not specifically have in mind at the time of execution does not operate to exclude those matters from the scope of the release, and does not render the release a "mistake" in terms of contract enforcement. Eck's claim against Kellem was barred by terms of release and summary judgment was granted in favor of Kellem.

 

In the Matter of Grabowski
444 Mass. 715 (2005)

Statute of Limitations; Lead Poisoning; Negligence

[Justice and equity required that plaintiff be allowed to bring claim against estate after one year statute of limitations expired, under G.L. c. 197, § 10; the SJC found no culpable neglect in plaintiff's failure to file the claim within one year.]

Minor Rochette lived in an apartment leased by his mother from Grabowski, where he suffered lead poisoning. The premises was inspected and determined to contain lead paint hazards in violation of State law and the premises were ordered to be de-leaded by December 1998. The premises was not de-leaded until October 1999. Grabowski died on June 30, 2002. Plaintiff's attorney sent a demand letter to decedent's attorney on December 19, 2002. Decedent's attorney responded with a letter on February 18, 2003 stating that she would be the estate's administratrix and that once this appointment was made, she would negotiate with plaintiffs to settle the claim. There was no further communication between the attorneys until September 2003. No complaint was filed before the June 30, 2003 statute of limitations period ended. Plaintiff's attorney sent letters to administratrix in July and September 2003. Notably, the insurance policy for the premises contained a lead paint exclusion, thus precluding a remedy under G.L. c. 197, § 9A. Rochette filed a claim against the Estate of Grabowski on November 21, 2003, after the one-year statute of limitations expired under G.L. c. 197, § 9, arguing that pursuant to G.L. c. 197, § 13, because he was a minor, the statute of limitations was tolled. The probate court judge granted the administratrix's motion to dismiss.

The SJC reversed. G.L. c. 197, § 10 is a remedy that allows one to bring a claim against an estate after the one year statute of limitations passed if justice and equity require it and if the failure to bring the claim was not based on carelessness or lack of diligence. The SJC determined that this was a meritorious claim that justice and equity required it to recognize because: (1) the premises was in violation of State law; (2) the plaintiff's attorney made a demand and the defendant's attorney promised she would negotiate to settle the claim; (3) the administratrix did not file her petition for administration until April 2003; and (4) there is no insurance to cover the plaintiff's injuries. The SJC also concluded that there was no culpable neglect on the part of the plaintiff because: (1) plaintiff is a minor who suffered lead poisoning, a condition covered by a statute with strict liability; (2) he is dependent on his mother to take appropriate action; (3) there is no insurance available for his injuries; (4) there is no evidence the mother did not act in good faith; (5) the estate was on notice that of plaintiff's claim; and (6) administratrix promised she would negotiate to settle the claim. It was understandable for the attorney to assume that G.L. c. 260, § 7 tolled the statute of limitations, thereby allowing the claim under G.L. c. 197, § 13. Under these circumstances, it would be unjust to charge the plaintiff with culpable neglect.
 

Bailey v. Cataldo Ambulance Service, Inc.,
64 Mass. App. Ct. 228 (2005)

Expert Opinion; Certified Medical Records (G.L. c. 233, § 79G)

[Properly certified medical records were sufficient to establish medical causation, even in the absence of live medical testimony, in this auto accident case.]

Plaintiffs were injured in a rear-end collision caused by the negligence of an ambulance driver. In fact, the negligence was stipulated. The plaintiffs, who were the occupants of the car which was struck, both suffered soft tissue cervical spine injuries (“whiplash”) which resulted in prolonged medical treatment and persistent symptoms. At trial, plaintiff offered medical records, properly certified pursuant to G.L. c. 233, § 79G, as to the extent of the injuries as well as their causation. To varying degrees, the treating physicians related the injuries to the auto accident, though none of them used the “magic words” of “to a reasonable degree of medical certainty.” The defendants vigorously objected to the lack of live medical witnesses at trial, but their objections were overruled, and the matter was submitted to the jury, who ruled in plaintiffs' favor. Defendants appealed on the single issue of the sufficiency of the medical evidence.

The Appeals Court affirmed the verdict. Citing the plain language of the statute, the court ruled that it was proper for the judge to submit the question of causation to the jury based upon the certified medical reports. The court was not troubled by the lack of “magic words” (their quotes), citing several cases in which an explicit statement of causation using the phrase “to a reasonable degree of medical certainty” was not required. The court also noted that the chain of causation in this case was a rather simple one, comparing it to cases where medical experts might not be required. Note that the court did leave the door open a crack with regard to objections in more complex cases of causation. But such cases (the example was an automobile products defects case) would likely have testifying experts in any case. The case reaffirms the intent and mechanics of G.L. c. 233, § 79G and nicely summarizes the related case law.

Dragonas v. School Committee of Melrose ,
64 Mass. App. Ct. 429 (2005)

Defamation; Conditional Privilege

[Summary judgment was not appropriate in case where facts were in dispute on defamatory remarks, and where facts were in dispute as to whether conditional privilege had been lost.]

Plaintiff was a foreign language teacher long employed by the town of Melrose . She held administrative titles, and she had been the founder of a foreign student exchange program which she supervised and which she chaperoned each year. Questions were raised by school principal about her management of the exchange program and her behavior while abroad. During the time in question, the principal held a meeting with parents of students who expected to take the spring trip to Germany , at which meeting he reportedly made disparaging remarks about the teacher. In addition, her position as department head was not renewed. She was urged to take a retirement offer by the school superintendent. She was seventy years old. After her post as department head was given to another applicant, one much younger, the teacher sued. In addition to her discrimination claim, she brought claims for defamation. Summary judgment was granted in favor of the defendants and the teacher appealed.

The Appeals Court reversed. The court found that the question of whether the remarks made to the parents were defamatory was a question of fact, but viewed in the light most favorable to the plaintiff, the remarks could be considered defamatory. Similarly, a question of fact remained on the abuse of the principal's conditional privilege. Although the principal had a conditional privilege to share potentially defamatory information about the teacher, the condition could be lost if the information were false; if he had no reason to believe the information was true; or if the information was published unnecessarily, unreasonably or excessively. The court also reversed the summary judgment on the discrimination claims. The matter was remanded for trial.

 

Ortiz v. North Amherst Auto Rental, Inc.
64 Mass. App. Ct. 499 (2005)

Negligent Entrustment of Automobile

[Car rental agency could not be liable for negligent entrustment where it had checked foreign driver ID card but was without knowledge of actual status of foreign driver's license.]

Plaintiff was injured in an automobile accident. The case was settled with the negligent driver who was driving a rented vehicle. The plaintiff pursued the car rental agency, which had rented the car to the foreign student after checking his Zimbabwe international driving permit (IDP) but not his actual driver's license. The verdict was for the plaintiff on the negligent entrustment counts, and the agency appealed.

The Appeals Court reversed. Under international conventions, the IDP is evidence that the holder has a valid driver's license in his or her country. Despite statutory language in G.L. c 90, § 32C requiring a lessor of motor vehicles to confirm that the operator is duly licensed, the IDP was sufficient proof even without the showing of the actual license. Since the rental agency had no other knowledge that the driver was incompetent, there was no liability.
 

Siegel v. Berkshire Life Insurance Company
64 Mass. App. Ct. 68 (2005)

93A; Attorney's Fees

[If a c. 93A violation forces person to incur legal fees and expenses to vindicate her rights, then those costs can form the basis for multiple damages; the proper method for calculating fees is the lodestar method.]

The case arose from the misconduct of the insurance company, which had issued life insurance policies to the plaintiff's husband. The company attempted to rescind the policies. Creditors had brought suit seeking an assignment of the plaintiff's policy. The insurance company also failed to send her premium notices and encouraged the creditors' lawsuit through certain misrepresentations. The plaintiff was forced to intervene in the creditors' suit to protect her rights in the policy and incurred legal expenses and costs as a result. She prevailed in the underlying case protecting her rights in the policy, and in the c. 93A case, she prevailed in her claims that the insurer had committed unfair and deceptive acts. The only award to her was the attorney's fee pursuant to G.L. c. 93A, § 9. Both parties appealed.

The Appeals Court affirmed in part. The court affirmed that the plaintiff, as an intervenor in the underlying suit, was not required to send a demand letter before making claims under c. 93A because her claims were cross claims, which are exempted from the demand letter requirements. The fact that she was required to intervene to protect her rights was sufficient “injury” to her for the act to allow damages. The attorney's fees and costs she incurred defending in the underlying suit could serve as the basis for her multiple damages in the subsequent c. 93A case. The proper method of fee calculation is the lodestar method, which involves multiplying the number of hours reasonably spent times a reasonable hourly rate. The matter was remanded for further findings on the questions of damages and attorney's fees.

 

Pritzky v. Safety Insurance Company
64 Mass. App. Ct. 751 (2005)

Underinsured Motorist Coverage

[Claimants injured in automobile accident were entitled to arbitration of underinsured motorist claim even when settlement of underlying claim did not exhaust the tortfeasor's insurance coverage.]

Three claimants were injured in an automobile accident. As passengers, they were entitled to make underinsured motorist claims against the vehicle they were riding in. The claimants settled with the tortfeasor, whose policy was $20,000/$40,000. The claimants accepted a total of $38,000. Their case seeking an order for arbitration was dismissed after the trial court judge ruled that the claimants had failed to exhaust the underlying policy, and therefore had forfeited their underinsured motorist claim. The claimants appealed.

The Appeals Court reversed. At most, the defendant insurer was entitled to a credit of the $2,000 which the claimants failed to collect from the tortfeasor's carrier. The claimants were, however, clearly entitled to the arbitration of the underinsured motorist claims.
 

Quinton v. Gavin
64 Mass. App. Ct. 792 (2005)

G.L. c. 93A, Professional Trustee

[Accountant who worked as trustee was liable under G.L. c. 93A for his unfair and deceptive acts.]

The defendant account had established approximately fifty individual trusts, which he then used largely for his own personal gain, loaning himself, his sons, and his associates money from the trusts at below market rates. He depleted trust assets, kept shoddy books, and otherwise engaged in an extensive scheme of deceit and plunder. At trial, the judge found in favor of all the plaintiffs, and awarded multiple damages against the trustee. He also awarded restitution damages to the trust based upon commercial loan rates of twelve per cent. The defendant appealed.

The Appeals Court affirmed, emphatically. The court rejected the defendant's contention that as a trustee, he should be exempt from c. 93A claims. The court easily distinguished two trustee cases which involved business partners, and pointed out that the defendant here was certainly engaged in trade or commerce, and like other professionals such as physicians, lawyers, and stock brokers, he should be within reach of the protection afforded by c. 93A. (In fact, the court found he was rather a textbook example of who the act was intended to protect consumers from.) The damages calculations of the trial judge were affirmed as well, since the findings were supported by the evidence, since the judge was entitled to find the credibility of the defendant lacking, and since the findings were not clearly erroneous.
 

Choquette v. Isacoff
65 Mass. App. Ct. 1 (2005)

Legal Malpractice; In Pari Delicto

[Doctrine of in pari delicto barred claims against attorney for legal malpractice.]

Plaintiff was seeking to avoid judicial sale of his property to satisfy judgments when he went to the defendant for legal advice. A bankruptcy case was filed, which stayed pending legal actions. In the bankruptcy proceeding, the plaintiff failed to list all of his assets and his income. After pointing out the mistakes in the filings, which were signed under the pains and penalties of perjury, his attorney, the defendant, urged that no corrections were necessary. Later, while testifying under oath in the bankruptcy proceedings, the plaintiff lied about his assets and income. His lies were later uncovered, and penalties ensued, including the non-dischargability of the debts. Plaintiff sued his attorney for malpractice. In his defense, the attorney claimed that the plaintiff was in pari delicto, as he had committed perjury in the bankruptcy case. On the defendant's motion for summary judgment, the case dismissed. The plaintiff appealed.

The Appeals Court affirmed. The court enforced the well established rule that relief will not be afforded to those who are in pari delicto. The doctrine had never been applied to a legal malpractice case before in Massachusetts , but courts in other jurisdictions had followed the rule. There was no reason to apply any exception to the rule. If the defendant was to face sanctions for his conduct, it would be through disciplinary action.


 

Safety Insurance Company v. Day
65 Mass. App. Ct. 15 (2005)

Regular Use Exclusion; Declaratory Judgment; Attorney's Fees

[Regular use exclusion applied where use was consistent and with some frequency, but insurer was estopped from raising this defense due to delay. Insured was entitled to award of attorney's fees in the defense of the declaratory judgment action.]

The defendant was the operator of a roommate's car when it was involved in a serious accident. The injured person brought claims against the operator. The owner's insurer initially assumed the defense of the action, but paid its policy limits and then tendered the defense to Safety. The case involved clear liability and serious damages, which was reported to the carrier by its counsel. Over two years after the accident, Safety raised the regular use exclusion, and brought a declaratory judgment seeking to avoid coverage. The trial judge found that the use was not regular, ruling in favor of the defendant. A second judge awarded attorney's fees to the defendant for her costs in defending the declaratory judgment. The insurer appealed.

The Appeals Court affirmed, but on different grounds. The court reviewed the regular use exclusion, and found that in the present case the defendant's use of her roommate's car was consistent and regular. Furthermore, the car was readily available. She used the car not just as an operator, but also as a passenger. The court therefore found that the trial judge had erred in ruling that the regular use exclusion did not apply. However, the court then considered whether Safety should be estopped from denying coverage, since it had delayed so long. Not only had the insurer defended without reservation, it had failed to keep the defendant informed of major developments in the case, and did not seek her input or participation. Because of its delay, an opportunity to settle the case for its policy limits was lost, exposing the excess carrier to a significant indemnity expense. The court ruled that Safety was estopped from asserting the defense. Finally, the court affirmed the award of attorney's fees which the defendant incurred defending the declaratory judgment action under the principles set out in Hanover Ins. Co. v. Golden , 51 Mass. App. Ct. 465, 468 (2001). The fee award of just over $100,000 was found to be reasonable.

 

Monticello Insurance Company v. Dion
65 Mass. App. Ct. 46 (2005)

Insurance Coverage; “Arising Out Of”

[Commercial general liability policy did not afford coverage to individual working on same job even if she was an independent contractor or a temporary employee.]

The plaintiff insured a tree service. While the owner of the service, the defendant Dion, was cutting a tree, it fell the wrong way, striking and killing the operator of the nearby tree chipper. The decedent's administratrix had brought a claim for her wrongful death, which the insurer disclaimed. The disclaimer led to this declaratory judgment action. The insurer claimed that the policy language plainly excluded the claim whether the decedent was an employee or an independent contractor. The trial judge granted the insurer's summary judgment motion and the plaintiff's decedent appealed.

The Appeals Court affirmed. The court agreed with the trial judge that the policy excluded claims “arising out of the operations performed for the named insured by independent contractors.” Thus, the court reasoned, if the decedent were an independent contractor, doing work for the insured, the claim would not be covered. The court noted that the terms “arising out of” must be “read expansively.” The decedent could not recover as a temporary employee under the terms of the policy. Commentary: It seems that the decision is an incorrect one, and that the policy would have been intended to deny coverage to third persons injured by independent contractors who were working for or on behalf of the insured, but not to deny coverage for the negligent acts of the insured, even if an independent contractor of the insured was the one who was injured.

 

Hennessey v. The Stop & Shop Supermarket Company
65 Mass. App. Ct. 88 (2005)

Service of Process; Misnomer; Slip and Fall; Bananas

[Dismissal for failure to effect service of process not proper after complaint was amended to correct misnomer and proper defendant had actual notice; summary judgment not appropriate in slip and fall on the record in this case.]

The plaintiff was shopping at the defendant's supermarket when she slipped on a banana peel and fell. After litigation was commenced, the plaintiff was informed that the defendant had been misnamed. A motion to amend the complaint was allowed, and the amended complaint was docketed as part of the motion. The complaint was not re-served. After some time the defendant moved for summary judgment on the plaintiff's failure to effect service in accordance with Mass. R. Civ. P. 4(j). The defendant also moved for summary judgment claiming that the plaintiff could not establish that the defendant knew or should have known of the banana on the floor. The motion was allowed on both grounds and the plaintiff appealed.

The Appeals Court reversed. If the correct defendant is properly served, as here, and merely misnamed, and the misnomer is later corrected, it is not necessary for the plaintiff to re-serve the complaint. There was no prejudice to the actual defendant, which had been served at its usual place of business, and which had participated in the suit from its commencement. The court also found that although plaintiff could not show how long the banana had been on the floor (and it was only mildly decayed and mutilated), discovery was incomplete, and the plaintiff should be afforded the opportunity to discover whether employees of the defendant were in close proximity to the banana peel, and thus had the opportunity to remove the offending substance immediately.

 

Garcia s. Essex County Sheriff's Department
65 Mass. App. Ct. 104 (2005)

Massachusetts Tort Claims Act; Presentment

[Correspondence from public employer on official letterhead containing the executive officer's name is not evidence the executive officer had actual notice of a claim under the Massachusetts Tort Claims Act; presentment will also be insufficient if it does not allege a legal theory of liability.]

Plaintiff was injured in a motor vehicle accident while in the custody of the Essex County Sheriff 's Department. Plaintiff's counsel sent three letters to the ECSD, which stated that plaintiff suffered injuries, enclosed medical records, and made a demand for settlement. An ECSD attorney responded to plaintiff's counsel and indicated that ECSD would be willing to pay plaintiff's medical bills in exchange for a release. There were no further settlement negotiations and plaintiff filed suit. In its answer and motion to dismiss, ESCD argued that plaintiff failed to make adequate presentment in accordance with G.L. c. 258, § 4 because plaintiff did not disclose facts of the incident, did not allege any theory of liability or make known his intention to bring claim under Massachusetts Tort Claims Act, and plaintiff did not make presentment of claim directly to the Essex County Sheriff, Frank Cousins. Summary judgment was entered for ECSD.

On appeal, the first issue was whether presentment to the chief fiscal officer was sufficient under the Act. The Act requires that presentment of the claim must be made directly to the executive officer of the public employer. The exception to this rule is when the executive officer has actual notice of the claim. Plaintiff argued that Sheriff had actual notice of the claim because the ECSD attorney responded to plaintiff's letters and the sheriff's name was on the ECSD letterhead. The court held that the use of official letterhead with the sheriff's name was not sufficient to indicate that the sheriff had actual notice of the claim and the record contains no evidence that the sheriff had direct notice of this claim. The second issue was whether the content of the notice was sufficient. The court found the only allegation made in the presentment letters was that an accident occurred; the letters failed to give notice of the legal basis for liability and do not assert that injuries were caused by negligence or wrongdoing. Therefore, plaintiff's counsel's letters to ECSD failed to meet the statutory requirement of identifying legal basis for claim. Third, the Appeals Court held that plaintiff was not “lulled” into believing that presentment was sufficient because the defendant never affirmatively indicated that the presentment requirement had been satisfied or waived.
 

Joslyn v. Chang
445 Mass. 344 (2005)

Wrongful Death; Medical Malpractice; Statute of Repose

[Medical malpractice statute of repose is not subject to either equitable estoppel or tolling pursuant to G.L. c. 260, § 12 for fraudulent concealment of the cause of action.]

Plaintiffs' infant suffered from a rare metabolic disorder and in October 1992 underwent a surgical procedure in which the heart was unexpectedly punctured by defendants. The infant died. Surgeons told plaintiffs that the infant's heart was too weak to withstand the procedure and the death certificate indicated the cause of death was “natural.” The plaintiffs were never told about the intraoperative complications and did not receive a copy of the autopsy report. Nine years later, the pediatrician who was caring for plaintiffs' other daughter suggested plaintiffs obtain the medical records of the deceased child. Plaintiffs did so, learning for the first time of the intraoperative complications. In February 2002, plaintiffs filed this malpractice action and the Superior Court Judge granted summary judgment in favor of the defendants because the statute of repose had expired.

Pursuant to G.L. c. 260, § 4, the medical malpractice statute of repose is seven years after the date on which the injury occurred. Plaintiffs argued that defendants should be equitably estopped from asserting the statue of repose defense because they fraudulently concealed plaintiffs' cause of action. Plaintiffs also argued that the statute of repose should be tolled under G.L. c. 260, § 12, which provides that fraudulent concealment tolls “the time limited for commencement of the action.” The SJC held that, in light of the clear legislative intent behind the statute, the statute of repose is not subject to equitable tolling or tolling pursuant to G.L. c. 260, § 12, even where plaintiffs allege fraudulent concealment.
 

Saggese v. Kelley
445 Mass. 434 (2005)

Attorney Fee Sharing

This case is included not for the tort or insurance principles involved, but rather for the important ethical requirement announced by the court. The case involved an oral agreement to share a contingent fee. The Supreme Judicial Court upheld the trial court's findings that the agreement should be enforceable, rejecting arguments that the Statute of Frauds applied; that the agreement was against public policy; that there was no consideration; that the referring attorney failed to get the client's consent; and that there were unclean hands.

The SJC enunciated a new policy, going forward, as follows: “[T]he referring lawyer, who usually is in the best position to secure compliance with [Mass. R. Prof. C.] 1.5 (e), is required to disclose the fee-sharing agreement to the client before the referral is made and secures the client's consent in writing. The rule will be construed to require this in fee-sharing agreements that are formed after the issuance of the rescript in this decision. Although the primary responsibility for compliance will fall on referring lawyers, lawyers to whom referrals are made are not absolved of all responsibility, and should confirm, before undertaking such representations, that there has been compliance with rule 1.5 (e). We emphasize that although failure to comply with the rule may not necessarily render a contract unenforceable between lawyers, it may subject both lawyers to disciplinary action upon division of a fee.”

Fee agreements and client acknowledgements should be updated accordingly!

 

Rudenauer v. Zafiropoulos
445 Mass. 353 (2005)

Statute of Repose; Wrongful Death; Medical Malpractice; Loss of Consortium

[The medical malpractice statute of repose cannot be tolled during “continuous treatment” with defendant physician.]

Plaintiff's husband received care from defendant in 1991 related to his kidney. Several tests were done on his kidney, the last of which occurred on November 8, 1991 and “revealed a very nodular left kidney with no definite mass seen.” Thereafter, plaintiff's husband did not visit defendant for the next 39 months. On February 21, 1995, plaintiff's husband had pain in his kidney area. After ten moths of tests, defendant diagnosed plaintiff's husband with kidney cancer and he died from metastatic disease on October 8, 2000. Plaintiff filed a wrongful death action on August 30, 2001. Defendant moved for summary judgment on the grounds that the action was barred by the seven-year statute of repose. Defendant's motion for summary judgment was denied.

The SJC transferred the case from the Appeals Court on its own initiative and reversed. The SJC rejected plaintiff's arguments that G.L. c. 260, § 4 should be read to include an exception for “continuous treatment”, which would toll the start of the repose period until the treatment with the physician terminates. The SJC held that the Massachusetts statute of repose is not subject to any tolling under any circumstances. In this case, while some negligence may have occurred after August 30, 1994, there is no evidence that such negligence caused any harm.
 

The Stop & Shop Supermarket Co. v. Loomer
65 Mass. App. Ct. 169 (2005)

Consumer Protection Act

[Cashing checks on insufficient funds at Stop & Shop to meet an individual's general contracting company's payroll does not constitute engaging in trade or commerce for the purposes of G.L. c. 93A, § 11 because it is not a business to business transaction.]

Karen Loomer was a cash office clerk at Stop & Shop. Karen cashed checks for her husband Richard, drawn on their joint personal checking account, when both knew there were insufficient funds. The cash was intended to be used for Richard's general contracting company's payroll. The couple hoped that by the time personal checks cashed at Stop & Shop were presented for collection, there would be sufficient funds in their checking account. In October 1995, Stop & Shop filed suit in Superior Court against Karen and Richard. The case was transferred to the District Court, where, after trial, the judge found for Stop & Shop on counts alleging conversion and deceit, but found for the Loomers on counts against them under G.L. c. 93A, § 11. The Loomers requested the case be transferred to the Superior Court. In Superior Court, Stop & Shop moved for summary judgment; the Loomers did not oppose this motion, relying on the prima facie effect of the District Court judgment on the c. 93A claims. The Superior Court judge granted summary judgment in favor of Stop & Shop on the grounds that the Loomers “admittedly engaged in illicit activity to convert funds of Stop & Shop for use in their business,” which as a matter of law was unfair and deceptive and proscribed by G.L. c. 93A, § 11. The Loomers moved for reconsideration and relief from judgment; both motions were denied. The Loomers appealed form the orders denying reconsideration and relief from judgment only as to the c. 93A, §11 claims.

The Appeals Court first found that the District Court judgment constituted prime facie evidence sufficient to warrant a finding in favor of the Loomers on Stop & Shop's motion for summary judgment on the c. 93A claims. The Appeals Court then went on to address the merits of the case, ultimately finding that as a matter of law, the Loomers' conduct did not amount to a violation of c. 93A, § 11. In order for there to be a violation of G.L. c. 93A, § 11, there must be a commercial transaction between two persons engaged in trade or commerce. After it is established that there is a “commercial transaction,” the next step is to determine whether the individuals were acting in a “business context.” Here, the court assumed that check cashing constituted a “commercial transaction” for the purpose of c. 93A. However, the court found that the two parties were not “engaged in trade or commerce” and therefore failed the “business context” prong of the c. 93A, § 11 test. The court stated that “the conduct complained of must occur in a context in which the parties to the transaction are persons engaged in “trade or commerce” with each other and therefore “acting in a business context.” The court found that the Loomers' activities do not constitute engaging in “trade or commerce” with Stop & Shop for the purposes of § 11 because the check cashing was not a business-to-business transaction and there were no business-to business communications about the transaction.

 

Vinci v. Byers
35 Mass. App. Ct. 135 (2005)

Legal Malpractice; Statute of Limitations

[The continuing representation doctrine, which tolls the statute of limitations for legal malpractice, does not apply where the client has actual knowledge of attorney's malpractice while he/she is still represented by that attorney.]

Vinci retained Attorney Byers on November 10, 1996 to represent him in a divorce proceeding. Vinci was suspicious of the legal advice he received from Byers and stated in his deposition that he no longer trusted Byers as of June 30, 1998, yet he continued to have Byers represent him. After the divorce proceeding concluded, on May 3, 2002, Vinci filed a legal malpractice claim against Byers. The Superior Court granted summary judgment in favor of the defendant, holding that the action was barred by the three-year statute of limitations. Vinci argued that his claim did not accrue until the divorce proceeding concluded and the continuing representation doctrine should be expanded and applied to this case.

The statute of limitations for legal malpractice is three years from the date the client knew or should have known he was injured by the attorney's conduct. Under the continuing representation doctrine, the limitations period can be tolled where the client continues to be represented by the attorney. However, if the client has actual knowledge of the attorney's harm, there is no “innocent reliance which the continued representation doctrine seeks to protect.” The Appeals Court held that Vinci had actual knowledge of his claim against Byers because he stated in his deposition that he no longer trusted Byers as of June 30, 1998. At that point, the limitations period began to run. Appeals Court affirmed the grant of summary judgment in favor of the defendant because the statute of limitations had expired and the continuing representation doctrine did not apply.

 

Roberts v. Legendary Marine Sales
65 Mass. App. Ct. 198 (2005)

Misrepresentation; Long-Arm Statute

[Personal jurisdiction exists, pursuant to G.L. c. 223A, § 3(c), where defendant in Florida made misrepresentations of material facts to plaintiff in Massachusetts , thereby causing plaintiff to purchase a defective boat.]

Plaintiff in Massachusetts purchased a boat from defendant in Florida . Defendant made certain representations to plaintiff about the condition of the boat. The boat was delivered to Massachusetts and plaintiff discovered numerous defects in the boat. Plaintiff sent defendant a c. 93A demand letter and subsequently filed a complaint alleging breach of contract, breach of express and implied warranties, and intentional and negligent misrepresentation. The defendant filed a motion to dismiss for lack of personal jurisdiction, which the judge allowed.

The Appeals Court reversed. Plaintiffs argued that under G.L. c. 223A, § 3(c) causing tortious injury by an act or omission in the Commonwealth is a basis for jurisdiction. Two counts in the complaint allege intentional and negligent misrepresentation of material facts that caused plaintiffs to purchase the defective boat. G.L. c. 223A, § 3(c) requires two elements: (1) a tortious injury by the act or omission of the defendant; and (2) that the tortious act or omission occurred in the Commonwealth. The Appeals Court found that defendant's misrepresentations of material fact to a purchaser in Massachusetts met the statutory requirements and constitutional due process requirements for personal jurisdiction.

 

Spellman v. Shamut Woodworking & Supply, Inc.
445 Mass. 675 (2006)

Assignment

[Assignment of general contractor's right to indemnification from the subcontractor for the cost of defending negligence claims asserted by injured subcontractor's employee to the injured employee was valid.]

Spellman, an employee of East Coast Fireproofing, Inc., was injured while working at a construction site. He received workers' compensation benefits from his employer's workers' compensation insurance carrier and he and his wife and sons filed a complaint against the general contractor, Shawmut Woodworking & Supply, Inc., for negligence resulting in injuries. Prior to the incident giving rise to this litigation, East Coast and Shawmut entered into a subcontract which provided that East Coast will defend, indemnify and hold harmless Shawmut from any and all claims caused in whole or in part by negligent acts or omissions of East Coast or its employees. Shawmut answered plaintiffs' complaint and notified East Coast of its request for defense and indemnification. Shawmut also filed a third party complaint against East Coast asserting breach of contract for East Coast's failure to name Shawmut as an additional insured. A few weeks before trial, Shawmut and Spellman entered an agreement for judgment for $300,000 that contained a waiver of all rights of appeal. East Coast unsuccessfully opposed the agreement for judgment. Additionally, Shawmut and plaintiffs disclosed that Shawmut assigned to plaintiffs any and all rights and claims it may have against East Coast arising out of plaintiff's incident. In exchange, plaintiffs agreed to only seek to recover the $300,000 from East Coast.

Plaintiffs' moved to amend their complaint to add East Coast as the primary defendant so as to “pursue the contractual indemnification [and breach of contract] claims that Shawmut had against East Coast.” East Coast opposed the amendment and filed a motion to dismiss Shawmut's third party complaint.

The Appeals Court held this was a valid assignment. Through the assignment, plaintiffs step into Shawmut's shoes and can only assert those claims that Shawmut had against East Coast for contractual indemnification and breach of contract. There is nothing that prohibits a party from contractually assuming greater liability than it would have otherwise had. The assignment is enforceable and is not limited to the amount specified in the agreement for judgment, which is not enforceable against East Coast. In order to collect under the indemnification policy, plaintiffs must prove that Shawmut was negligent in causing injuries and that, under the contractual indemnification agreement, East Coast had a duty to indemnify and defend Shawmut.

 

Covell v. Olsen
65 Mass. App. Ct. 359 (2006) – Jan. 11

Wrongful Death; Negligence; Motor Vehicle

[G.L. c. 231, § 85A shifts the burden to the defendant to prove the absence of control over the vehicle in a negligent entrustment claim.]

Plaintiff's decedent died after his motorcycle was struck by an automobile owned and registered to defendant Olsen, which was operated by Olsen's 18 year old son, Erik Olsen. Plaintiff filed suit for wrongful death and conscious pain and suffering, basing claims on the following three theories of liability: Erik was his mother's agent; negligent supervision of a minor child; and negligent entrustment. The Superior Court allowed defendant's motion for summary judgment.

The Appeals Court affirmed in part and reversed in part. First, the Appeals Court held that the claim for negligent supervision of a minor child must fail because Erik was not a minor; plaintiff's argument that the court should look to the common law definition of majority of 21 years was rejected. Second, under G.L. C. 231, § 85A, which provides that proof that defendant is registered owner of vehicle is evidence of defendant's responsibility for the actions of the driver, the court held that § 85A shifts the burden to the defendant to prove the absence of control over the vehicle. Thus, the question was whether the defendant had the authority and means to control Erik's use of the car at the time the accident occurred. That burden was not satisfied by defendant's argument that the record contains no evidence of her control over the vehicle. The facts that defendant paid the car's insurance and paid Erik's living expenses and the absence of evidence that she took steps to ensure safe operation of the car, created triable issues of fact.


These case summaries were compiled with the assistance of MBA intern Shannon Ryman, whose help is gratefully acknowledged.