Tort and Insurance Law Update – 2004 – Part Two

Tort and Insurance Law Update – 2004 – Part Two

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

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

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

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

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

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

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

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

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

Libel and Slander. Collateral Estoppel, Divorce, Privileged Communication

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

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

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

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

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

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

Anti-Discrimination Law, Conspiracy, Emotional Distress

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

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

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

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

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

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

Medical Malpractice, Prejudicial Evidence, Jury Instructions.

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

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

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

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

Comparative Negligence Statute

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

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

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

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

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

Recreational Use Statute

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

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

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

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

 Statute of Limitations, MBTA

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

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

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

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

Causation, G.L. c. 93A

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

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

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

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

Illegality of Motor Vehicle Insurance Policy

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

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

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

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

Summary Judgment, Release, Indemnity, Statute of Limitations

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Negligent Infliction of Emotional Distress, Fraud, Battery

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

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

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

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

Consumer Protection Act, Self-Insured Entity

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

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

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

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

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

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