Tort and Insurance Law Update – 2004 – Part Four

Tort and Insurance Law Update – 2004 – Part Four

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 guaranteed. A default judgment entered against O’Leary. Over two years later, when supplementary process proceedings were pending, O’Leary attempted to resurrect the case on the merits. His various motions were denied, with the judge noting that the motions were without merit and were “perilously close to being frivolous, especially considering [O’Leary] is an attorney.” O’Leary commenced a second action (the one under consideration) alleging fraud and negligent conduct. The matter was dismissed, and the Superior Court judge found that the action was wholly insubstantial, frivolous, and not advanced in good faith. An award of attorney’s fees and costs pursuant to G.L. c. 231, § 6F, was made, in the amount of $12,754.44. A single justice affirmed the award, and the appeal followed. The award was affirmed. An attorney representing himself is “represented by counsel” for the purposes of the statute.

Frullo v. Landenberger
61 Mass. App. Ct. 814 (2004)

Legal Malpractice, G.L. c. 93A

[Expert evidence was required on causation in a legal malpractice case at summary judgment proceeding.]

Telstar Communications hired the defendant, Landenberger, to pursue breach of contract and G.L. c. 93A claims against Steele Hill Development, Inc. after Telstar was dissatisfied with the outcome of a business deal with Steele Hill. Telstar’s claims against Steele Hill were subsequently sold by the bankruptcy trustee to the plaintiff, Favier, who in turn sold an interest to plaintiff Frullo.  The plaintiffs retained the defendant attorney, and instructed him to conduct certain discovery and to plead a c. 93A claim; the defendant failed to do these things and plaintiffs lost their jury trial on the breach of contract claim. Plaintiffs filed suit against attorney Landenberger for legal malpractice, alleging breach of contract, negligence, and a G.L. c. 93A, § 11, violation for failure to conduct discovery and failure to plead the necessary c. 93A claim in the underlying action. The defendant’s motion for summary judgment on all counts was allowed. Plaintiffs appealed. The Appeals Court affirmed the judgment.

The question here is whether the client would have prevailed on the underlying action, but for the attorney’s negligence.  The court determined that expert testimony was necessary to show that the defendant attorney was negligent and that plaintiff would have otherwise prevailed, but for the negligence.  Although the evidence presented in connection with the summary judgment motions sufficiently established the negligence of the defendant, it failed to establish that the negligence caused the plaintiffs injury. As here, expert evidence on causation may be required where causation would be beyond the usual experience of the jury.  The court also determined that whether a person is acting in a business or personal context with an attorney for the purposes of G.L. c. 93A, § 9 or § 11, would usually be a question of fact. The court held that the plaintiff’s c. 93A, § 11, claim may have been appropriate because the underlying action against Steele Hill was the result of a business venture; in addition, there was clear evidence of unfair and deceptive acts.  Nonetheless, plaintiffs failed to establish a “causal nexus” between the defendant’s omissions and plaintiff’s damages. Without the evidence of causation on the underlying claim, the plaintiffs could not demonstrate a loss of money or property, so summary judgment on the G.L. c. 93A, § 11, claim was appropriate.

Pembroke Country Club, Inc. v. Regency Savings Bank, F.S.B.,
62 Mass. App. Ct. 34 (2004)

Tortious Interference with an Advantageous Business Relationship

[Defendant bank did not commit tortuous interference when it exercised its rights under a consortium agreement in order to persuade other consortium members to withdraw their approval of an agreement to reduce the plaintiff’s obligation under a loan.]

Plaintiff borrowed a large sum of money from a consortium of lenders.  Defendant bank was a member of the consortium and, as the lender of the largest portion of the loan, was designated the primary lender with which the plaintiff was to deal with respect to the loan.  Later, when the plaintiff obtained more favorable financing from another lender, plaintiff sought to negotiate with defendant for a discounted payoff of the loan.  When defendant was temporarily unable to negotiate with plaintiff, plaintiff instead approached the other members of the consortium and secured their approval for a discounted payoff.  When defendant learned of the approval, it issued a cease and desist letter to those members and then succeeded in persuading some of the members to withdraw their approval by explaining its objection to the discounted payoff and offering to purchase from the other members their individual interests in the loan.  Eventually defendant owned eighty percent of the loan and required plaintiff to pay it off in full.  Plaintiff brought suit for, among other things, tortuous interference with an advantageous business relationship.  After a trial in the Superior Court, a jury returned a verdict in favor of the plaintiff on the tortuous interference claim and the judge denied the defendant’s motion for judgment notwithstanding the verdict on that claim.  The defendant appealed.

The Appeals Court reversed with respect to the tortuous interference claim, holding that there was no evidence of an improper purpose nor the employment of an improper means on the part of defendant.  Defendant’s purpose was the legitimate advancement of its own economic interest, which is a by-product of a competitive marketplace and not an improper motive.  Furthermore, regardless of whether a breach of contract by itself would be sufficient to constitute an improper means, there was no breach of contract in this case.  Nothing in the consortium agreement precluded defendant from attempting to persuade other members of the consortium to abandon a proposed agreement.  In addition, the issuance of the cease and desist letter did not constitute tortuous interference because the terms of the agreement entitled defendant to be the only consortium member to negotiate with plaintiff.

Mari v. Delong,
62 Mass. App. Ct. 87 (2004)

Right of Way at Intersection, Jury Instructions

[Appeals Court clarified application of various statutes concerning the right of way.]

Plaintiff was injured in an automobile accident that occurred at an intersection. His vehicle struck a left turning vehicle, both of which had been traveling in opposite directions and had stopped at a traffic light just before the accident. The verdict was for the defendant, and the plaintiff’s post-trial motions were unavailing. Plaintiff appealed, contending that the judge’s instructions on the right of way at an intersection were improper and constituted reversible error.

The Appeals Court vacated the judgment and ordered a new trial. G.L. c. 89, § 8, and G.L. c. 90, § 14, govern the right of way at an intersection. A left-turning driver must yield the right of way until such time as the turn may be made safely, and must yield the right of way to any vehicle in the intersection or so close thereto as to constitute an immediate hazard. The right of way does not relieve a driver going straight through an intersection of his duty of reasonable care, but it is clear that merely by entering an intersection first, the left-turning driver does not acquire the right of way.

Psy-Ed Corp. v. Klein,
62 Mass. App. Ct. 110 (2004)


[Plaintiffs’ counsel was properly sanctioned under Mass. R. Civ. P. 11(a) for filing a frivolous motion to sanction defendants’ counsel.]

Plaintiffs’ counsel in an ongoing suit in Superior Court brought a motion for sanctions against defendants shortly before plaintiffs’ discovery responses were due.  Plaintiffs’ counsel alleged egregious instances of destruction of evidence, deception, and fraud by the defendants and their counsel.  Defendants’ counsel responded with his own motion for sanctions under Mass. R. Civ. P. 11(a).  The judge, who was familiar with the case, held a hearing on plaintiffs’ motion for sanctions.  She denied the motion from the bench and informed the parties that she would entertain defendants’ motion for sanctions.  In his defense, plaintiffs’ counsel filed a short affidavit supporting his earlier accusations, which consisted largely of wholly conclusory statements of his good faith belief that the accusations were not false.  The Superior Court judge reviewed plaintiffs’ counsel’s affidavit, as well as affidavits submitted by the defendants, and ordered that plaintiffs’ counsel pay as a sanction certain attorney’s fees and expenses incurred by the defendant and his counsel.  Plaintiffs appealed.

The Appeals Court affirmed.  Mass. R. Civ. P. 11(a) requires a finding that an attorney engaged in a “willful violation” before sanctions may be imposed.  This requirement is not necessarily defeated simply by the accused attorney’s submitting an affidavit claiming good faith belief in the positions previously asserted.  The credibility of such an affidavit is to be determined by the judge, and the judge in this case was warranted in finding that the affidavit submitted by plaintiffs’ counsel lacked credibility, particularly given the timing of the accusations brought by the plaintiffs, the severity of those accusations, and the brief and conclusory nature of the affidavit plaintiffs’ counsel submitted in support of his actions.  The judge acted within her discretion in sanctioning plaintiffs’ counsel.

Malonis v. Harrington,
442 Mass. 692 (2004)

 Attorney’s Lien, Quantum Meruit, Contingent Fee Agreements

[Discharged attorney who documented time spent and expenses incurred was entitled to reimbursement from settlement in quantum meruit; fee appropriately split with subsequent attorney.]

Plaintiff was counsel to the plaintiff in the underlying case, and performed substantial work to investigate and prepare case most of the way through suit. Plaintiff was discharged, and the defendant was retained to continue the suit. Plaintiff asserted a lien pursuant to G.L. c. 221, § 50. The defendant concluded the matter not long after he was retained. The amount of the settlement was the value of the case determined by the self-insured tortfeasor before the plaintiff was discharged. Little work was required of the defendant to bring the matter to conclusion. Although he had been repeatedly asked to furnish an accounting of his time and expenses prior to the settlement, plaintiff did not do so until the matter was settled. The defendant considered the accounting to be preposterous, and said he would not tender “one red cent.” Plaintiff brought suit against the subsequent attorney. After trial in the District Court , the judgment was in favor of the defendant, and the Appellate Division affirmed. The matter was submitted to a Superior Court judge as a “case stated,” primarily on the District Court record. Judgment was entered in favor of the plaintiff, and the defendant appealed.

The Supreme Judicial Court took the case on its own initiative and affirmed. While the plaintiff in the underlying case had every right to discharge his attorney and obtain a new one, his counsel was entitled to payment for his legal services. Once the attorney was discharged, his right to payment was no longer in the contingent fee agreement, but instead was a matter of quantum meruit.  The client and the tortfeasor both expected, reasonably the Court thought, that the defendant attorney would satisfy the plaintiff’s legal bill Furthermore, the defendant attorney, through several letters and verbal communications, had expressed an intention to pay the legal bill, as well as an understanding that he was obligated to do so.  The Supreme Judicial Court found that, on the facts of this case, the defendant attorney was obligated to satisfy the client’s entire legal bill; to not do so would result in the defendant attorney being unjustly enriched.

The Supreme Judicial Court clarified the broader issue, raised by this case, of what to do when a client discharges an attorney, subsequently retains another attorney, and previous counsel had been retained on a contingent fee basis.  The Court restated the general rule in Massachusetts that, on discharge, an attorney has no right to recover under a contingent fee agreement, but may recover the reasonable value of his services on a theory of quantum meruit.  Clients may not always fully appreciate the fact that the retention of successor counsel may result in a larger total legal bill, and an ethical lawyer should inform his client of the potential obligations to prior counsel.  If successor counsel is retained, the Court strongly advised that, to avoid future disputes, successor counsel should confer with the client on the issue of payment for services rendered by previous counsel and execute a written agreement identifying the party responsible for such payment.

Mercadante v. Worcester Ins. Co.,
62 Mass. App. Ct. 293 (2004)

Underinsured Motor Vehicle Benefits

[When an occupant of a motor vehicle is injured in an accident, the injured occupant is covered by the underinsured motorist benefits of the vehicle in which she was an occupant only if she is not covered by the underinsured motorist benefits of her own insurance policy or that of a resident relative, regardless of whether she is entitled to benefits under either policy.]

The plaintiff sustained injuries in a motor vehicle accident caused by a third party.  The third party was underinsured, and the plaintiff accepted the limit on the third party’s policy.  The plaintiff then filed a claim with the insurer of the vehicle in which she was an occupant at the time of the accident, but her claim was denied because she was a covered household member under her husband’s automobile insurance policy, which included underinsured motorist coverage in the minimum statutory amount.  The plaintiff then filed a claim with her husband’s insurer, only to be denied because she had already recovered from the third-party an amount equal to the limit of her husband’s underinsured motorist benefits.  The plaintiff brought an action against the insurer of the vehicle in which she was an occupant, seeking to recover under the underinsured motorist coverage provided by that policy, which far exceeded that provided by her husband’s policy.  The Superior Court allowed the defendant insurer’s motion for summary judgment on the ground that plaintiff was covered only by her husband’s policy in this case.  The plaintiff appealed.

The Appeals Court affirmed.  Under G.L. c. 175, § 113L, an insured driver who is not a named insured on a policy providing uninsured motorist coverage may recover under that policy only if she is not a named insured on another policy and she is not insured on a resident relative’s policy.  The language of the policy provided by the defendant was consistent with the statute.  Notwithstanding the fact that benefits were not available to the plaintiff under her husband’s policy because the limits of such coverage did not exceed the bodily injury liability limits of the third party’s policy, the plaintiff was nonetheless “covered” as a household member under that policy, and thus not entitled to the benefits provided by the defendant insurer.

Norfolk & Dedham Mut. Fire Ins. Co. v. Quane,
442 Mass. 704 (2004)

Insolvent Insurer, Uninsured Motor Vehicle Benefits

[Where insured driver is injured in a multiple-vehicle accident and one of the other drivers is insured by an insolvent insurer, compensation from the Massachusetts Insurers Insolvency Fund is available to the injured driver only after he has fully exhausted his right to benefits both under the insurance policy of each tortfeasor and under his own uninsured motor vehicle benefits.]

Plaintiff was injured in a three-car accident.  Plaintiff was a covered individual under a standard Massachusetts automobile liability insurance policy issued to his wife by Norfolk & Dedham, which included uninsured motor vehicle benefits.  Plaintiff received a settlement from one tortfeasor’s insurer, but that settlement did not fully compensate him for his injuries.  The second tortfeasor’s insurer had been deemed insolvent, causing the plaintiff to seek compensation under the portion of his policy that provided uninsured motor vehicle benefits.  Norfolk & Dedham filed an action for declaratory relief in the Superior Court requesting a judgment that uninsured motor vehicle benefits were not available to the plaintiff because he had already received benefits from one tortfeasor’s insurer.  The Massachusetts Insurers Insolvency Fund (the Fund) intervened in the action, seeking declarations regarding its own responsibilities to compensate the plaintiff in this case.  The Superior Court judge concluded that (1) Norfolk & Dedham had an obligation to provide uninsured motor vehicle benefits to the plaintiff under the terms of its policy where the insurer of a responsible party had been deemed insolvent, (2) the Fund had no obligation to the plaintiff until he had exhausted his rights to his uninsured motor vehicle benefits, and (3) the Fund was entitled to reduce any amount paid to the plaintiff by the uninsured motor vehicle limit of the Norfolk & Dedham policy.  Norfolk & Dedham appealed directly to the Supreme Judicial Court.

The Supreme Judicial Court affirmed.  Looking both to the language of the Norfolk & Dedham policy, which was a standard Massachusetts automobile liability insurance policy, and to the language of G.L. c. 175, § 113L, the statute relevant to uninsured motor vehicle coverage, the Court found that the Norfolk & Dedham policy did not condition recovery of uninsured motor vehicle benefits on the absence of any source of compensation in the circumstances of this case.  The Court distinguished this case from those cases involving underinsured, rather than uninsured, motor vehicle coverage; the second tortfeasor in this case was, in fact, uninsured, because his insurer had been deemed insolvent.

Scott v. Commerce Ins. Co.,
62 Mass. App. Ct. 416 (2004)

Confirmation of Arbitration Award, Motor Vehicle Insurance

[Arbitration award determining that unidentified driver was liable to injured party in an amount greater than the limits of the injured party’s insurance policy did not require the insurer to compensate the injured party for any amount over the limits of that policy.]

Plaintiff insured was seriously injured when he was struck by an unidentified motor vehicle while jogging.  Plaintiff made a claim under his automobile insurance policy issued by defendant.  Defendant found his claims not credible, believing instead that plaintiff had been severely beaten, which would not be within the coverage of the policy.  The parties agreed to arbitrate the issue of liability, and the arbitrator found plaintiff’s story credible.  The arbitrator determined that plaintiff was entitled to recover from the unidentified driver damages in the amount of $112,600.  Defendant insurer subsequently paid plaintiff insurance benefits amounting to $38,000, the total of its liability under the policy.  Plaintiff demanded payment of the entire arbitration award, and later commenced an action in the Superior Court to confirm the award. The Superior Court denied defendant’s motion to modify the arbitration award to clarify the obligations of the parties, and confirmed the award as written.  Defendant appealed.

The Appeals Court reversed on the ground that the action to confirm the award was moot.  The parties did not agree to have the arbitrator take up the issue of coverage under the policy, but only the issue of liability.  Therefore, the arbitrator did not have the authority to order Commerce to pay any award itself, and properly did not do so.  The arbitration award merely established that defendant was obligated to provide insurance benefits to plaintiff, and once defendant did so within the policy limits, confirmation of the arbitration award became moot.

Masters v. Khuri
62 Mass. App. Ct. 467 (2004

Medical Malpractice; Expert Opinion; Impeachment

[Trial judge acted within her discretion when she barred plaintiff from cross-examining defense expert on bias and when she admitted expert opinions on emergency room treatment.]

This medical malpractice case arose from the treatment the plaintiff received in an emergency room.  He was promptly intubated for his severe asthma, and immediately went into respiratory arrest and electromechanical dissociation. He survived, but with horrible brain damage.  At trial plaintiff’s counsel attempted to impeach a defense expert with his history of payment from a medical malpractice insurer, by whom he had been paid on several occasions for testimony or opinions. The information about insurance came out at trial, at which point the trial judge called an immediate recess to consider the evidence of insurance which had just entered the case. Further inquiry about this potential bias was not allowed as to the expert on the stand, or as to one who followed. In addition, the defense experts were permitted to give their opinions on the actual time that certain blood tests were performed and the results received, even though they were not expert on the procedures at the hospital, and even though the factual evidence on those points was in dispute. The verdict was for the defendant and the plaintiff appealed on these two points of law.

The judgment was affirmed by the Appeals Court. The judge had the discretion to determine what impeaching evidence was permitted. Although the usual practice is to prevent any evidence of insurance, due to the court’s perception that it might lead to inappropriately large verdicts, evidence relating to insurance may be admissible when it relates to a witness’s bias. In this case the evidence was not strong—the insurance company business was only a small portion of the experts’ respective incomes—and it was permissible for the judge to exercise her discretion to prevent the evidence from being admitted at trial. With regard to the expert opinions on the timing of the blood tests, it was again within the judge’s discretion to admit that opinion evidence on the factual record before the court.

Heng Or v. Edwards,
62 Mass. App. Ct. 475 (2004)

Negligent Entrustment, Proximate Cause, Conscious Pain and Suffering

[Defendant negligently entrusted pass key to employee with an extremely disreputable background; the rape and murder of a tenant as a result was foreseeable; there was no evidence of conscious pain and suffering.]

The wrongful death claims were against the owners of an apartment house in a depressed neighborhood. The facts are extremely distressing. The owners had hired Vao Sok as a handyman and had entrusted him with a pass key for the building. Vao Sok had a history of arrest, including arrest for rape of a child, of which he was acquitted. He had problems with drugs and alcohol. He had a psychiatric disorder. There were many other questions relating to his character raised in the opinion. The defendants had not sought any background information on Vao Sok before giving him the key. On May 15, 1992, the five-year-old daughter of the plaintiff was missing. A search lasted until the next day, when she was found still alive in a vacant apartment. She died two days later from serious injuries that had been inflicted on her. Suspicion turned to Vao Sok, who confessed to beating her on that day, at a time when he had consumed large amounts of alcohol, cocaine, and marijuana. He could not recall whether he had also raped her (he had). After a trial against the defendants for their negligent hiring of Vao Sok and the negligent entrustment of the pass key to him, a large verdict was rendered in favor of the plaintiff. On the defendants’ motion for judgment notwithstanding the verdict, the portion of the judgment for conscious pain and suffering was vacated. The defendant appealed.

The Appeals Court affirmed. The case contains a thorough analysis of the facts, of the case law concerning negligent entrustment, proximate cause, foreseeability, and of the role of the jury in determining the factual questions underlying these legal principles. Given the depressed nature of the neighborhood, the defendants were under a heightened duty to protect their tenants for reasonably foreseeable risks of harm, including foreseeable criminal acts. This duty clearly included not entrusting a pass key to an unfit person. Reasonable inquiry would likely have revealed the extent of Vao Sok’s unfitness for his job. The risk of harm such as befell the plaintiff’s decedent was certainly foreseeable. All of the questions regarding the defendants’ negligence and causation were properly before the jury. With regard to the alleged conscious pain and suffering, the evidence supported only a finding of spasmodic moaning and crying. There was no expert testimony to support the plaintiff’s contention that the girl had suffered consciously. There was no evidence that she had suffered consciously at the time of the assault; that could only have been a matter of conjecture or surmise.

Skowronski v. Sachs,
62 Mass. App. Ct. 630 (2004)

Liability of Agent

[Defendant who makes a negligent or fraudulent misrepresentation is not insulated from liability simply because he made the misrepresentation while acting as an agent for his employer.]

Plaintiff went to a jewelry store seeking to trade her diamond ring toward a better diamond.  She spoke with defendant, an employee of the store.  Defendant showed her a larger diamond and appraised it as having a certain grade, but he failed to inform her that he was not qualified to certify the grade of a diamond.  Nearly ten years after plaintiff traded her diamond plus cash for the diamond defendant had appraised, plaintiff learned that defendant’s representations regarding the grade of the diamond were false and that the value of the diamond was much less.  Plaintiff brought a claim for misrepresentation and violation of G.L. c. 93A in the District Court.  After a bench trial, judgment entered in favor of the plaintiff.  Defendant appealed to the Appellate Division of the District Court, which dismissed his appeal on procedural grounds.  Defendant appealed.

The Appeals Court affirmed the judgment of the District Court, rejecting the defendant’s argument that, as an agent for his employer, he was not personally liable for the misrepresentations.  An employee who makes a negligent or fraudulent misrepresentation is not insulated from liability simply because he made the misrepresentation while acting as an agent for his employer.

Phelan v. May Dept. Stores Co.,
442 Mass. 52 (2004)

Defamation by Conduct

[Where plaintiff alleged that the conduct of another party was defamatory, and that conduct did not convey a clear and unambiguous false statement about plaintiff, he was required to present evidence that a third person who observed the alleged defamatory conduct interpreted that conduct as defamatory.]

Plaintiff was employed as the assistant director of accounts payable at defendant department store.  During an investigation and audit of plaintiff’s department, defendant’s controller instructed a department store security officer to guard plaintiff during the course of the investigation, purportedly to prevent plaintiff from influencing or intimidating his subordinates.  For one day, the officer escorted the plaintiff at all times.  Plaintiff brought a claim against defendant for, among other things, defamation by conduct.  During the trial in the Superior Court, plaintiff testified that he felt embarrassed and humiliated by the security escort and that he believed others viewed him in a defamatory light as a result.  However, he did not present any testimony of a third party who observed the officer’s conduct and viewed it as defamatory.  Nevertheless, the jury found in favor of plaintiff and awarded him damages.  The Superior Court allowed the defendant’s motion for judgment notwithstanding the verdict on two grounds, one being that plaintiff had produced insufficient evidence on which a jury reasonably could have found that the conduct alleged had defamatory significance to those witnessing it.  Plaintiff appealed, and the Appeals Court reversed the Superior Court order.  The Supreme Judicial Court granted further appellate review.

The Supreme Judicial Court affirmed the order of the Superior Court allowing the defendant’s motion for judgment notwithstanding the verdict.  The alleged defamatory conduct did not convey a clear and unambiguous false statement about the plaintiff.  The conduct of the security guard could be perceived in a variety of ways by a third party; there was no evidence that the guard had restrained the plaintiff or treated him in any way that would clearly convey that the plaintiff had engaged in criminal wrongdoing.  In the absence of a clear and unambiguous false statement, the plaintiff had the burden of proving that a reasonable third person observing the officer’s conduct would have understood it to be defamatory, and he could do so only by presenting the testimony of at least one coworker who observed the officer’s actions and interpreted them as defamatory.  He presented no such evidence, and therefore failed to establish an essential element of a claim for defamation.

KACT, Inc. v. Rubin,
62 Mass. App. Ct. 689 (2004)

Tortious Interference with Contractual Relations

[Trustees’ efforts to prevent sale of condominiums did not amount to tortious interference with contractual relations where there was no improper motive or means.]

Plaintiffs were the owners of commercial condominiums and a restaurant business who had entered into contracts for the sale of the premises and the business. The prospective purchaser wished to operate a business similar to his line of Irish pubs. The trustees of the condominiums, concerned that the purchaser’s establishment would not conform to their desire for a “fine dining” establishment, amended the condominium bylaws. The purchaser demurred, and a subsequent purchaser bought the property for substantially less. The difference in purchase price, plus additional damages for fees, taxes and operating costs, were sought as damages in the claims against the defendant trustees. The matter was tried, jury waived, on counts for breach of the condominium trust instrument and for tortious interference with a contract. The finding was in favor of the defendants, and plaintiff appealed.

The Appeals Court affirmed. As to the tortious interference claim, the Appeals Court delineated the plaintiffs’ burden of proof, which included “(1) the existence of a contract with a third party that contemplated economic benefit; (2) that the trustees knowingly induced the third party to break the contract; (3) that the trustees’ conduct, in addition to being intentional, was wrongful or improper in motive or means; and (4) that the plaintiffs sustained damages as a result of the trustees’ conduct.” Id. at 697. The discussion focused only on the third element. The defendants’ purpose in amending the trust instrument was to protect the ownership interests of the other unit owners. Even though the conduct did not conform with the governing statutes, the court was permitted to look at the totality of the circumstances to determine if the motive or means were appropriate. The court relied upon the several factors set forth in § 767 of the Restatement (Second) of Torts to determine that there was no improper means or motive. The case is a useful summary of the law on the matter of tortious interference with contractual relations.

Sarkisian v. Benjamin,
62 Mass. App. Ct. 741 (2005) 

Legal Malpractice, Judicial Immunity, Guardian Ad Litem

 [Court-appointed attorney was entitled to absolute immunity from a legal malpractice claim arising from duties that she performed in a quasi-judicial capacity at the request of the court.]

Plaintiff was the minor child of the parties to two actions in the Probate and Family Court.  The Probate and Family Court judge appointed defendant attorney to represent plaintiff in those proceedings, but also asked defendant to perform duties akin to those performed by a guardian ad litem, including the making of reports and recommendations to the Probate and Family Court judge regarding the best interests of the plaintiff child.  Plaintiff later filed a claim for legal malpractice against defendant, alleging that defendant’s reports and recommendations were negligently prepared and made.  The Superior Court allowed defendant’s motion for summary judgment, dismissing the action on two grounds, one being that defendant had acted in a quasi-judicial capacity as a guardian ad litem and was thus entitled to absolute immunity from suit.  The plaintiff appealed.

The Appeals Court affirmed.  A guardian ad litem, in reporting and making recommendations to the court on issues pertaining to the child, acts as an arm of the court and is entitled to absolute immunity.  While it is true that the order of the court appointed defendant as an attorney for plaintiff, not a guardian ad litem, the Appeals Court looked beyond the order to the duties that defendant was asked to perform and which gave rise to the malpractice claim, namely the reports and recommendations that defendant made to the Probate and Family Court.  Because plaintiff’s claims arose out of duties performed by defendant as a guardian ad litem, defendant was entitled to absolute immunity from plaintiff’s claim.

This summary was prepared with the able assistance of Tristan Peters, Northeastern University School of Law, Zachary Berk, Northeastern University School of Law, Heather Engman, Northeastern University School of Law and Jennifer Turco, Northeastern University School of Law. Their contributions to this summary are gratefully acknowledged.

The summary was originally published by the Massachusetts Bar Association and Massachusetts Continuing Legal Education in 2005.

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