Articles Posted in Legal Strategies

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skydivingPeople are often asked to sign waivers before engaging in activities that may be perceived as dangerous. Under Massachusetts personal injury law, signing such a waiver generally precludes the person who signed the waiver from pursuing a negligence claim against the released party. In Cahalane v. Skydive Cape Cod, however, the Appeals Court of the Commonwealth of Massachusetts held that it would not prevent the injured party from recovering for any gross negligence in contravention of the terms of the agreement.

In Cahalane, Plaintiff engaged Defendant’s services to go on a tandem skydive jump. Prior to embarking on her jump, Plaintiff signed a waiver in which she released any claims against Defendant for negligence or gross negligence. Plaintiff was permitted to purchase a release from the waiver, but chose not to do so. During the jump, Plaintiff was attached to an instructor. As they approached the ground the instructor performed a hook turn. Hook turns are disapproved of in skydiving safety bulletins, as they are a leading cause of death and injury in skydiving. Due to the manner in which the pair landed, both of Plaintiff’s femurs were fractured on impact. Plaintiff sued Defendant, alleging negligence and gross negligence. Defendant filed a Motion for Summary Judgment, arguing that the waiver barred Plaintiff’s claims. The trial court granted Defendant’s Motion and Plaintiff appealed, arguing the waiver was induced by fraud and was unenforceable. On appeal, the court held that the waiver was enforceable and precluded Plaintiff’s negligence claim but ruled that it did not bar Plaintiff’s gross negligence claim.

The court noted that Plaintiff was given ample opportunity to review the waiver and did not produce evidence that anyone made any false representations to her regarding the waiver. As such, the court held it was enforceable. The court noted, however, that while Massachusetts law favors the enforcement of releases for liability for negligent acts, a party cannot immunize itself from liability for grossly negligent or reckless acts. The court explained that gross negligence is more than a failure to exercise ordinary care and was better explained as great negligence, or conduct without any diligence or care. The court noted each case must be analyzed on its facts to determine if the defendant’s actions were grossly negligent, but additionally noted that a moment of inattentiveness in a dangerous situation could constitute gross negligence. As such, the court held that the question of whether Defendant was grossly negligent and therefore liable to Plaintiff could not be decided via summary judgment but must be submitted to a jury.

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workers compCollateral estoppel is a long-standing rule of law that people can only get “one bite of the apple.” In other words, people are not entitled to re-litigate the same facts or claims until they reach a verdict of their liking. There are certain requirements that must be met to preclude litigation due to collateral estoppel, however, and simply because facts were previously decided in another forum does not automatically prevent a court from allowing the same facts to be litigated. In workers’ compensation cases it is important to know whether you or your employer’s insurer are held to facts determined in a prior proceeding. In Yahoub’s case, the Appeals Court of the Commonwealth of Massachusetts held that an employer was not barred from litigating facts in a Massachusetts workers’ compensation claim that were previously found by the Department of Industrial Accidents.

In Yahoub, claimant was working as a custodian for the town of Milton when he sustained injuries in an altercation with his supervisor. After an investigation, claimant was determined to be the aggressor of the incident and was terminated. He then filed a claim for unemployment benefits with the Division of Unemployment Assistance who awarded him benefits after finding the town had not proven claimant engaged in deliberate misconduct that constituted a willful disregard of the town’s interest. The town appealed to the District Court, but the District Court affirmed the decision of the Division of Unemployment Assistance.

Claimant then filed a claim with the Department of Industrial Accidents seeking workers’ compensation benefits for severe emotional distress, which he alleged was caused by the altercation. A hearing was conducted in which testimony was presented from claimant, his supervisor, and a witness. During the hearing, the town’s workers’ compensation insurer argued claimant was not entitled to recover benefits due to the fact that his actions amounted to willful and serious misconduct and his termination was a bona fide personnel action.  Following the first day of the hearing, claimant moved to prohibit the insurer from re-litigating the facts found by the Division of Unemployment Assistance, under a theory of collateral estoppel. The administrative judge denied claimant’s motion due to lack of privity between the parties in each proceeding. At the conclusion of the hearing, the administrative judge agreed with the insurer and found claimant had initiated the altercation, and denied claimant’s claim. Claimant subsequently appealed to the reviewing board. The reviewing board affirmed the administrative judge’s ruling. Claimant subsequently filed an appeal with the Appeals Court of the Commonwealth of Massachusetts.

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If you are injured while performing the duties of your job, you are most likely entitled to workers’ compensation benefits. Under Massachusetts workers’ compensation law, you are only entitled to benefits that are reasonable and related to your injury. There are guidelines set forth as to what treatment is considered reasonable, and any deviation from the guidelines is presumed to be both unreasonable and inappropriate. In Thibeault’s Case, however, the Court of Appeals of Massachusetts held the presumption of unreasonableness can be overcome if the facts of the case indicate other treatment is acceptable.Legal News Gavel

In Thibeault, the employee was a heavy equipment operator, who injured his lower back moving a steel plate while working for his employer. He was diagnosed with discogenic back pain and a tear and disc bulge in the lumbar region. The employee underwent treatment for his back injury but declined to undergo surgery. He filed a workers’ compensation claim and received a lump sum settlement. The employee continued to get treatment from his primary care physician for his back injuries after he received the settlement. Part of the employee’s treatment included prescriptions for narcotic pain medication.

Subsequently, eight years after the employee received his lump sum settlement, he filed a post lump sum claim for medical benefits, which was denied. He then underwent an independent medical examination, after which the examining doctor issued a report and was deposed. The doctor stated, in part, that the employee suffered from chronic low back pain, which the employee was treating with medication. The doctor further stated that, although there did not seem to be any steps taken to reduce the dosage or wean the employee off the medication, continuing to treat with medication was reasonable, and the treatment was causally related to the employee’s workplace injury.

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Many people avoid thinking about what will happen to their property and assets after their death, and ultimately die without a will to determine how their estate will be disbursed. Family members of an individual who dies intestate may not see the necessity in determining how the estate should be divided and may delay in taking any action to raise an estate and appoint a personal representative. The failure to take prompt action when a person passes away can have a damaging effect on your ability to control the estate’s assets, however. A recent Massachusetts estate planning decision held that you waive certain rights if you do not act in a timely manner.

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In Bennett v. R.J. Reynolds Tobacco Company, the Superior Court of Massachusetts defined what rights a limited personal representative has with regards to a decedent’s estate.  Specifically, the court addressed whether a personal representative who is granted limited authority under the Uniform Probate Code (UPC) has standing to pursue tort actions that are an asset of the decedent’s estate. In Bennet, the Plaintiff’s father died on March 7, 2014. Section 3-108 of the UPC provides that no testacy or appointment proceeding may take place more than three years after a decedent’s death. If no personal representative has been appointed within three years of a decedent’s death, section 3-108(4) of the UPC allows for a personal representative to be named, but only for the limited purpose of determining successors to the estate. Section 3-108(4) specifically states, however, the representative does not have the right to possess any estate assets. Plaintiff was appointed the limited representative of the estate, pursuant to section 3-108(4), on July 26, 2017.

Plaintiff subsequently brought claims of wrongful death and civil conspiracy against the Defendant, as the limited personal representative of the estate of her deceased father.  The Defendant filed a motion to dismiss the Complaint, arguing the Plaintiff’s appointment as a personal representative of the estate under section 3-108(4) of the UPC did not grant her the authority to pursue a wrongful death claim or any tort claim that belonged to the decedent and became a part of the decedent’s estate upon his death.

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The Workers’ Compensation Act has a provision that states that any employee who files a claim or accepts payment for a personal injury that occurs in the workplace releases their employer from any and all related claims. The Massachusetts appellate court recently issued a decision examining whether or not this provision barred a negligence lawsuit filed by an injured employee. The employee claimed he was hired as an independent contractor to work as a chef, which entitled him to pursue a tort remedy in civil court. The injured man’s case claimed he slipped and fell Legal News Gavelon ice while working, which caused him to suffer a broken right ankle. The chef asserted his damages included more than $28,000 in medical bills, lost wages, permanent impairment, and physical and emotional anguish.

The chef initially filed a Massachusetts workers’ compensation claim, which was denied by the employer. The employer justified the refusal of benefits by arguing that they were not liable and that he was an independent contractor. The case was settled by a lump-sum payment and allowed for payment of medical expenses incurred up to the date of the approval of the settlement. The settlement excluded payment for future medical treatment of the injury. After the settlement, the injured person filed a negligence lawsuit against his employer. The employer moved to dismiss the action, arguing the action was barred by the settlement agreement.

The injured worker countered the claim was not barred because the Department of Industrial Accidents (DIA) never resolved whether or not he was an independent contractor or employee. The appellate court determined Section 23 of the Act barred his claim, regardless of whether a distinction was made regarding the type of employment. The employee entered into a settlement agreement option allowed by the Workers’ Compensation Act, which resolves a matter without acknowledging fault. The court compared it to a prior Massachusetts case, Kniskern v. Melkonian, 68 Mass. App. Ct. 461, 465-466 (2007), with an injured worker who claimed he was an independent contractor. In that case, the court pointed out a lump-sum settlement under the Act would not have been possible if the injured person were an independent contractor instead of an employee. Anything received under the Act can only be provided to employees, so the injured person’s ability to settle the claim results in an indirect determination he was an employee.

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If an accident occurs, both parties will likely look to insurance policies for coverage of a claim. The at-fault party, in particular, expects his or her insurance company to step in and defend the claim for them, shielding them from full personal liability. This is known as indemnification. The Appeals Court of Massachusetts recently looked at whether or not an insurance company providing a homeowner’s policy was obliged to defend or indemnify the policyholder’s son in a Massachusetts personal injury lawsuit filed by someone who was punched in the face by the son while in the homeowner’s home. The injured person filed suit against the son, alleging the insured’s son struck his face, causing Legal News Gavelserious and permanent injuries.

The father was insured under a personal umbrella liability policy in addition to his homeowner’s policy. The insurance company, after notice of the incident and lawsuit, moved for a declaratory judgment by the trial court to establish it had no duty to defend or indemnify the son. The trial court granted the motion, and the homeowner appealed. The appellate court reviewed the findings for clear error and for a ruling on the questions of law.

The Appeals Court first assessed the testimony of three witnesses who were present during the altercation. Their testimony resulted in finding the son hit the personal injury plaintiff three times in the face with a closed fist. This knocked him unconscious and led to further injuries after he hit his head on the pavement as he fell. The plaintiff sustained fractures in his face, jaw, and skull, developing a seizure disorder. In its assessment of whether or not this type of incident was something covered under the homeowner’s policy, the trial court determined the incident was not an act of self-defense nor an accident. The court found the son acted intentionally with the purpose of causing the other man injury.

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In all civil lawsuits, parties are obligated to follow the deadlines set by the court. Missing a deadline can have serious consequences, resulting in either the dismissal of your case if you’re the plaintiff or a judgment entered in favor of the plaintiff if you’re the defendant. A recent Massachusetts personal injury action is an example of the consequences injured parties face.

In this case, the injured parties filed suit against a “big box” store’s pharmacy, alleging it had filled a prescription with a dosage 10 times higher than prescribed. Legal News GavelThe patient alleged that when he took these pills over a four-day period in 2009, he suffered renal failure and other physical issues. The injured patient sought damages for his hospital and medical expenses, lost wages, and pain and suffering. His wife also filed suit for loss of consortium and lost wages.

As the proceedings moved forward, the district court set a deadline of July 1, 2015 for the plaintiffs’ expert witness disclosures, or the list of people they intended to call to testify as experts in the relevant field. The injured person missed this deadline, and the defendant pharmacy moved to prevent the plaintiffs from offering any expert testimony. The court provided the couple with an extension, moving the deadline to December 21, 2015. With the extension, the injured parties provided the name of one doctor as a prospective witness but failed to include a report by the doctor to the defendant, as required by the pretrial order. No other prospective experts were named.

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In Massachusetts, even if you successfully settle or litigate a negligence action and are awarded damages, receiving the payment of damages can become challenging. This is demonstrated in a recent Massachusetts car accident decision (16-P-1623) that upheld a settlement agreement made between the owners of a farm, the driver of a car, and her husband. The driver was seriously injured after her vehicle collided with two cows from the defendants’ farm that had wandered into the road. The injured woman and her husband filed suit against the owners, which eventually led to mediation. A settlement agreement was reached between the injured couple and the defendant husband. The defendant wife was not present and did not sign the agreement afterward.

A settlement agreement is a contract between two or more parties to settle the pending litigation and release the defendant from future claims. A court ordering the enforcement of an agreement must be confident the parties actually came to an agreement over the essential terms of the settlement. Issues over minor, collateral matters are not detrimental to enforcement.  Legal News GavelFor example, even if there is no deadline specified for when the obligation is to begin, the agreement will remain intact, and a “reasonable” date can be used if it does not change the essence of the contract. Once a settlement agreement is reached, the agreement is reported to the court, which will then decide whether to enter an order to formalize the agreement. Once this occurs, unless there is a determination that the agreement was either unenforceable or materially breached, the parties must follow the terms within the document or face civil penalties for failing to uphold their obligation.

In this lawsuit, the defendants failed to perform their obligations under the agreement. The injured woman and her husband filed a motion requesting the trial court to enforce the agreement. The defendants were given proper notice but failed to attend the hearing to answer or contest the agreement. The judge signed an order formally adopting the agreement, entering a judgment against both defendants for $40,000 to the plaintiffs and $4,364.28 for attorney’s costs and fees, to be paid according to a payment schedule. The agreement also allowed the defendants to finalize a judgment against an unrelated party and for the plaintiffs to pursue the $40,000 from the same unrelated party.

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In Massachusetts personal injury cases, seeking damages for lost wages is often necessary to make an injured party whole. Much time is often needed to recover from a serious injury, and an injured person may not have access to funds during this period. Workers’ compensation provides money to cover lost wages during the recovery period, but disputes can still occur over the appropriate amount to be paid. Having experienced counsel at your side, whether it is a workers’ compensation claim or personal injury litigation, can help maximize the lost wage damages you deserve.

The Appeals Court recently assessed an award of lost wages in a Massachusetts labor action before the Employment Relations Board. The plaintiff had been laid off by a local highway department. The plaintiff sought assistance from his union with the lay off, but they failed to file a grievance for him. A hearing was held with the Dept. of Labor Relations over this failure, and the hearing officer found the union to have violated G. L. c. 150E, § 10(b)(1). This was affirmed by the board, which then ordered the union to pay for the loss of compensation he suffered as a result of its failure to process his grievance about the timing of his layoff.Legal News Gavel The Board specifically directed the union to pay him 34 days’ worth of lost wages plus interest, as specified in G. L. c. 231, § 6I. The board did not agree with the plaintiff’s request for reinstatement and full back pay, since no one would have known the outcome of the hearing had the union assisted in avoiding the lay off. This was particularly true because the town had voted to reduce the highway department’s budget.

Massachusetts G. L. c. 30A, § 14(7) directs the Appeals Court to be very deferential to the decision of the administrative agency, giving weight to the experience, competence, and technical and specialized knowledge of the agency. The appellate court must affirm the decision unless there was a violation of a constitutional provision, an excess of statutory authority or jurisdiction, an error of law, an unlawful procedure, a finding unsupported by substantial evidence, unwarranted findings of fact, or an abuse of discretion. With this level of deference, it is difficult for the appealing party to show the interpretation and application of the law was not rational.

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In a recent Massachusetts workers’ compensation case, the Reviewing Board analyzed an appeal by an insurer dissatisfied with a hearing decision. The insurer alleged the judge incorrectly used the wage amount of $1,726.37 to calculate the weekly wage paid to the injured carpenter. The insurer argued the employee was not entitled to the award, since there was no appeal of the conference order.  Legal News GavelThe insurer felt the employee could only use the maximum amount of $1,490.33 to calculate his entitled average weekly wage.

The injured carpenter was hurt in an industrial accident while moving a piece of machinery. The machinery began to tip, he grabbed it, and he caught his ring on the machine. The employer didn’t dispute liability and agreed to initially pay an average weekly wage of $800 a week. The injured employee eventually sought an adjustment, which was at the center of this action. The carpenter initially asked for an average wage of $1,505.09 a week, and he submitted an IRS Form 1099 for checks from his employer, payable to him for 35 out of 52 weeks prior to the injury, as proof. The claim was then withdrawn in October 2012.

In November 2012, the injured man refiled a claim for an adjustment, this time requesting an average weekly wage of $1,490.22 per week. As proof, the employee submitted the same 35 weeks’ worth of checks. This claim was also withdrawn, but he eventually refiled a year later. This third attempt at a readjustment claim was for the same amount, and this was accompanied by medical reports and a 2011 tax return. This amount was sent to a conference. After the conference, the administrative judge ordered $1,490.33 to be used as the weekly wage amount. The insurer appealed, but the employee did not.