Articles Posted in Car Accidents

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In a Massachusetts personal injury case, the injured party must meet his or her burden of proof in order to successfully obtain damages from the at-fault party or parties. Different court proceedings require different levels of proof. Criminal cases place a high burden on prosecutors to show the defendant is guilty “beyond a reasonable doubt.” In civil suits, the burden of proof is often met by a “preponderance of the evidence” or a “more likely than not” standard. Depending on the case, presumptions created by statute may also exist, which increase the burden on a party to rebut a specific assumption within the suit.

The Massachusetts Appeals Court case of Markuns vs. Commerce Ins. Co. (15-P-335) demonstrates what must be done when facing a presumption created by a statute or regulation of the Commonwealth. This appeal, while rooted in a rear-end collision accident, did not stem from a personal injury action. Massachusetts allows insurance companies to add a surcharge following an accident, which can be appealed to the Board of Appeal on Motor Vehicle Liability Policies and Bonds (Board) and the civil appellate system. If a driver is on the Safe Driver Insurance Plan, certain accidents are presumed to be the driver’s fault unless the driver presents enough evidence to overcome it. In Markuns, the driver of the colliding car appealed the presumption that he was at fault because he struck the car in front of him.

The driver centered his argument on his testimony during the hearing in front of the Board. The driver felt that his testimony was not rebutted by the insurance company and was left uncredited by the Board and the Superior Court. The Appeals Court disagreed, pointing out that the record shows the driver’s testimony was considered by the Board, and it was ultimately within their discretion to apply or not apply the presumption to the facts before them, based on the totality of the circumstances. The Appeals Court also disagreed with the driver’s assertion that the prior ruling entities failed to apply a presumption to the other driver within 211 CMR 74.00, which assumes fault if you fail to signal at a turn. Again, the court felt the lower judicial bodies were within their discretion to credit or discredit the evidence before them. The lower court allowed the ruling against the driver to stand.
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Defense tactics in personal injury litigation in Massachusetts can get aggressive. In a recently issued Massachusetts Appeals Court opinion, Anderson v. Nat’l Union Fire Ins. Co. (14-P-1554), a severely injured man waited 10 years for an award of over $3 million. Even after this delay and the subsequent payment, the defendants filed another appeal of the original jury verdict award and the additional interest granted by the judge after the first unsuccessful appeal. The injured man and has family also appealed, arguing the defendants failed to provide a prompt, fair, and equitable settlement from the 1998 accident.

The man was catastrophically injured while walking across an intersection when he was struck by a hospital shuttle bus owned and staffed by the hospital. Even after receiving immediate care from doctors riding the bus as passengers, the injured man endured several months of hospitalization and care for his numerous head injuries. Following the accident, an investigation took place at the behest of the automobile insurer used by the hospital shuttle bus. The investigation concluded that the accident happened due to the driver’s inattention, and the liability and exposure was clear and exceeded the policy’s limits. The investigator recommended negotiating an out-of-court settlement, but negotiations never took place.

Instead, the insurers took another path by using what the trial judge called “irresponsible and overly-aggressive defense work on the part of the [insurer].” Some of the insurance company’s actions included suppressing crucial evidence that went against their theory that the injured man ran in and out of traffic between parked cars and darted in front of the bus. The injured man and his family pursued evidence of the initial investigation throughout the trial, but they were repeatedly told that the investigation reports, witness interviews, and transcripts didn’t exist. It took an offhand comment from a reconstruction expert five years after the accident to reveal that there was additional material available.
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After a car accident happens, you want the at-fault party to be held responsible. During the civil litigation process, evidence of the at-fault party’s behavior and actions immediately preceding the accident are taken into consideration. Texting while driving, distracted driving, or careless behavior can help a jury or fact-finder conclude whether or not the defendant was responsible for the injuries you suffered. Occasionally, your actions may also be assessed if there is the possibility that your actions contributed to the accident. Under Massachusetts law, recovery is still available to you if your fault is assessed at less than 51 percent, but the award will be reduced by the percentage of fault determined by the fact-finders.

The Commonwealth of Massachusetts also has a process for determining fault when assessing an “At Fault Accident Surcharge.” This is issued to drivers who have been in an accident for which their insurance company has determined they are more than 50% at fault. If the person assessed the surcharge does not agree with this determination, they are able to appeal through Massachusetts’ Board of Appeals. Further appellate process is available if the driver assessed the surcharge loses their initial claim with the Board. A case like this was recently reviewed by the Commonwealth Appeals Court in Wheeland vs. Commerce Insurance Co. (14-P-1733).

In this case, the driver given the surcharge was in an accident with another parked vehicle after she was blinded by solar glare. The driver testified that she was blinded by the low, still rising sun that was right in her eyes as she approached the other vehicle. The driver felt the judge improperly upheld the Board of Appeals determination that she partially contributed to the accident by not taking any measures to compensate like wearing sunglasses or using the car’s solar visor. The Court of Appeals stated that while the judge provided additional, superfluous suggestions, the ultimate conclusion reached by the judge was supported by the facts in evidence.
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In personal injury cases, the focus is typically on the accident itself and its effects on the injured person. The actions of the person at fault, or defendant, are discussed, beginning with the question of whether he or she owed a duty to the injured party. The next question is whether the at-fault party’s actions led to the accident that caused the injuries sustained. The injured person investigates the at-fault party’s behavior, looking at his or her actions immediately preceding the accident. This investigation could extend to prior behavior like DUIs or negligent care of property to reveal a pattern of negligence. Sometimes, though, the at-fault party and his or her counsel will look at the medical history of the injured person to argue that the injuries alleged were not ones that stemmed from the accident.

In a recent unpublished Massachusetts appeals court case, Hannon vs. Calleva (14-P-1061), the at-fault party argued that the injuries claimed in that case were the result of the injured person’s decades of work as a telephone installation repair man. During the accident, the injured man was driving a large commercial van and was stopped at a red light. The at-fault driver pulled up behind him and and heard a beeping sound. When she turned around to look for the source of the sound, her car came into contact with the rear bumper of the van in front of her. The injured driver sought medical attention a few days after the accident, complaining of neck pain. Eventually, the neck pain became chronic for the injured driver. At trial, the driver discussed prior medical conditions that could have contributed to the pain, including treatment for a shoulder injury incurred at work. He also discussed his struggle to return to work and the inability to perform his duties when he was there, despite the physical therapy and trigger point injections.
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When you or your family member is in a Massachusetts car accident, the primary focus is and should be on emotional and physical recovery. Soon afterward, the concern over expenses and the ability to pay them moves into view. Even when insurance policies are in place and cover expenses, policy limits can fall short of covering the total cost of medical care and lost wages. Alternate routes to make up the difference must then be considered, especially when standard options like underinsured or uninsured coverage options are unavailable or also fail to cover all the expenses.

In a recent Appeals Court case, Borden v. Progressive Direct Ins. Co. (14-P-449), an injured woman had to look to the personal policy of the driver after he hit her car in a work truck. In any car accident case, the injured person first looks to see if the at-fault driver has an insurance policy that will provide funds toward the expenses. In Borden, the woman was hit by a tow truck used to transport automobiles to and from dealer lots and sales auctions. The accident-causing driver was hired to assist with work as needed by the owner of the truck, and he had used his own vehicle to arrive at the owner’s garage on the day of the accident. The at-fault driver was on his way in the company truck to pick up a car for delivery when he hit a car, injuring the passenger in the car.
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In Massachusetts, claims for personal injury must be filed within the timeline set out by the Massachusetts General Laws. Medical malpractice, personal injury, product liability, and wrongful death actions must be filed within three years of the accident or the date the injury was discovered. If claims aren’t filed within the statutory timeline, the injured person generally loses the ability to sue for damages. Other timelines guide actions that must occur within certain types of civil suits, including the requirement found in Massachusetts G.L. Ch. 93A, which directs the plaintiff to send a demand letter 30 days before filing an action for an unfair and deceptive practice.

In auto accident cases, courts, insurers, and the injured parties all must look to an insurance contract to see or determine whether or not the policy provides monetary relief for the injured person. If the insurance company determines that the injured person was not covered under the policy in question, the injured person may then choose to file a separate, related suit against the insurance company for failing to provide coverage as contracted.

In a 2008 decision, Kanamaru v. Holyoke Mut. Ins. Co. (72 Mass.App.Ct. 396), an injured bicyclist sought benefits under his roommate’s policy after he was hit by an uninsured vehicle on the road. The roommate had previously insured him under his auto policy, since he intended to share the vehicle with the injured man. After the suit was filed, the insurance company declined to cover the roommate’s injuries, arguing that the policy did not extend to the roommate for UM (uninsured motorist) coverage. In addition to his arguments that he was covered by the policy, the injured man filed suit against the insurance company for unfair and deceptive trade practices. The appellate court in that case ruled that the trial judge correctly entered a summary judgment in favor of the insurer defendant for failing to send a demand letter 30 days prior to filing suit.
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Massachusetts General Law, Section 34M provides personal injury protection to those injured in a car accident, regardless of fault. The law was designed to provide monies up to $8,000 for reasonable expenses within two years of the accident, including necessary medical, surgical, x-ray, and dental services. The law was created to ensure prompt payment of an injured person’s medical and out-of-pocket expenses, as well as reduce the amount of auto accident litigation and costs for the insurance companies. The coverage extends not only to the named insured, but to the injured passengers as well.

Part of the statutory requirements to receive benefits include a physical examination. Section 34 requires the injured party to submit to a physical examination by someone selected by the insurer so the insurance company can better calculate and provide amounts due. These are known as Independent Medical Exams, or IMEs. The wording of the statute reads that the person to conduct the exam is to be a physician selected by the insurer. Once the insurer receives the report with proof of the amount of expenses and loss incurred, they must issue payment within 30 days.

In the Massachusetts Supreme Judicial Court case of Ortiz vs. Examworks, Inc., the court reviewed whether or not a licensed physical therapist used by the insurance company to conduct the IME was a “physician” under the statute. A man injured in a car accident sought PIP benefits to pay for his medical expenses. The insurance company engaged a medical company to conduct the independent medical examination. The injured driver, who suffered neck and back injuries, received a letter from the company providing notice that the exam was scheduled. A second letter revealed that it was to be done by the physical therapist. The injured’s attorney sent a letter to the medical company alleging several violations of the law through its deception. The matter eventually led to this appeal.
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Accidents can be complicated events, with multiple parties involved and contributing to the cause of the accident. For example, two drivers at an intersection may both act recklessly while driving across. One may be texting while driving, and the other may be speeding to “beat” a yellow light about to turn red. If the texting driver suffers injuries, he or she may pursue civil action against the other driver, but questions will quickly arise as to fault and compensation. The texting driver may wonder whether or not he or she can recover anything from the other driver.

Massachusetts follows the doctrine of comparative negligence. In the scenario described above, if the speeding driver is found to be more than 50% at fault, the texting driver can recover damages from the speeding driver. The texting driver, however, can have his or her award reduced by the amount of fault assigned by a judge or jury. If the texting driver seeks $50,000 worth of damages from the speeding driver, but is found to be 40% at fault, the texting driver would only be able to recover $30,000 under Massachusetts law.

An example of a comparative negligence can be found in the case of Baudanza v. Comcast. In this car accident case, a service truck struck the driver’s side of an automobile while driving through an intersection. The injured driver filed suit against the truck driver and his employer. The defendant company argued that the injured driver was also negligent and attempted to bring in an expert witness to extrapolate the injured driver’s blood alcohol concentration at the time of the accident. However, the judge found it to be too speculative and excluded the defense expert’s testimony from the jury trial.
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With the holiday season upon workers and residents of Massachusetts, it is important to remember to stay safe when traveling to and from festivities during the holidays. Several establishments and events serve alcohol, and other drivers may become reckless by driving while intoxicated or become distracted by texting others, which are both prohibited under Massachusetts law. While it may be easy to determine that the driver of the other car should be held accountable for your injuries, it may become apparent and necessary that other people or entities should be held responsible as well.

In a civil action, the injured person, or plaintiff, must show the defendant, or the party alleged to have caused the injury, had a duty toward him or her. If a person violates this duty, and this causes an injury, he or she is responsible for damages under Massachusetts civil law. If there is no duty or link between the accident and the injury, liability does not exist. Examples of duties toward others can be found in Massachusetts statutory law. A driver has a duty to others on the roads or sidewalks to operate his or her vehicle safely. Businesses that sell or serve alcoholic beverages have a duty, known as Dram Shop Liability (Massachusetts General Laws Ch. 138, Sec. 69), to stop or abstain from serving alcohol to an intoxicated person. Likewise, a host is responsible under Social Host Liability laws (Massachusetts General Laws Ch. 138, Sec. 34) to refrain from providing an underage or intoxicated person with alcohol. Both commercial establishments and private hosts must remain vigilant about how much alcohol is being served and to whom it is served.
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In Massachusetts, Personal Injury Protection (PIP) benefits are often found in drivers’ car insurance policies. While this type of coverage is not required by law and can be waived, it is frequently purchased by Massachusetts drivers. These are often described as “no-fault” benefits and are available to the driver or a passenger of the insured vehicle. They are also available to injured pedestrians from the policy of the vehicle that hit them. PIP benefits were designed to cover reasonable and necessary medical expenses, funeral expenses, loss of wages, and ordinary and necessary household services that you can no longer provide for yourself as a result of the injury. However, the amount of PIP available to an injured party may vary, depending on several factors.

Someone injured in an auto accident while working cannot access PIP benefits, since he or she would be able to use workers’ compensation benefits, which also cover medical expenses, funeral expenses, and lost wages. They are also unavailable to those who are injured while committing a felony or driving while under the influence. The maximum amount of PIP benefits is $8,000.00, but only $2,000.00 of those benefits are assuredly available to the injured. If the claimant does not have health insurance or MedPay, he or she is covered up to $8,000.00. If the policy holder has a separate health insurance policy, any amount over $2,000.00 must be submitted to the health insurer for a determination of whether or not the claim is covered. The claim cannot be denied based solely upon the existence of PIP, but if the claim is not covered under the health insurance policy, it can be denied by the health insurer for reasons outlined in the policy. The claim may be re-submitted to the motor vehicle insurer for consideration. While an auto insurance carrier can deny claims using the same reasons as the medical insurer, such as the injured person going to an out-of-network provider, it must pay for items that may not be included in the health insurance plan, like chiropractor and dentist visits.
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