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If you are injured while at a construction site, the remedies and damages available to you may be multiple and varied. You may be able to receive workers’ compensation from your employer if you worked on site, as well as pursue damages from any independent contractor if multiple parties were responsible for the conditions that led to the injury. Many companies provide the monetary damages to the injured person by tapping their insurance benefits obtained for this exact scenario. Companies also look to the insurer to indemnify them, or step into their shoes for the purpose of defending litigation. If an insurer refuses to provide funds, the injured person must hope the company has assets, or the ability to obtain them, to satisfy any judgment in her or his favor.

The Commonwealth’s Appeals Court recently affirmed a summary judgment granted to a corporate insurer who refused to indemnify its insured for a personal injury verdict against the company and its independent contractor in a Massachusetts construction accident case. The independent contractor appealed, arguing the insurer failed to preserve the right to exclude independent contractors during the original tort action and cannot raise it now. The contractor also argued the exclusion within the policy is ambiguous and must be construed against the insurance company. It also alleged the exclusion did not apply in this circumstance because the accident was actually caused by the policyholder.

A woman injured herself at a construction site while walking on a sidewalk, tripping and falling on a cold joint built by the independent contractor. The contractor was hired to construct the sidewalk in a residential housing project. The contractor ceased paving just short of a driveway and built a “cold joint,” or space between two batches of concrete set at different times. The injured woman sued both the independent and general contractors of the project for the negligent construction of the cold joint and failure to warn of the defect. At trial, the jury found for the injured woman, finding the independent contractor to be 55% at fault and the general contractor to be 30% at fault. Since the insurer refused to indemnify the general contractor for the judgment, the independent contractor (using its insurance policy) satisfied the full amount.

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Reverse mortgages are becoming a popular source of income for aging Massachusetts residents who have accrued equity in their home. These homeowners borrow against their home equity in exchange for liquid assets to help pay for daily living expenses. A home equity conversion mortgage is one of these loans available to homeowners over the age of 61 under which payments are made to the owner as a line of credit. These are either provided in a lump sum or in monthly payouts. The loan does not become due until the borrower dies or no longer lives in the home, with interest and fees typically paid by the sale of the home. With a reverse mortgage, the borrower is usually not personally liable for the repayment of the debt.  The lender looks solely at the mortgaged property for repayment. This means upon the owner’s death or choice to live elsewhere, the entire loan and fees come due, and it is up to the heirs to repay the loan by selling the home. Failing to do so may mean the lender can foreclose on the mortgage and sell the home.

The Massachusetts Supreme Court recently issued an opinion (SJC-12325) dealing with three Massachusetts foreclosure actions initiated by a lender, which chose to pursue actions in Land Court against each borrower or the executors of their estate, seeking a declaratory judgment to foreclose on the respective homes through the statutory power of sale. The language of the reverse mortgage in this case stated the lender may invoke the power of sale and other remedies allowed by applicable law in the event of a default. The court felt the central question was whether or not Massachusetts G. L.c. 183, § 21 allowed the lender to foreclose in such a manner.

The reverse mortgage form in this lawsuit gave the lender the power to require immediate payment in full if the borrower dies or the property is no longer the borrower’s principal residence. Under this agreement, the borrower held no personal liability for repayment of the debt, and the lender could not pursue a deficiency judgment against them in the event of a foreclosure. The only means of enforcement was through the sale of the property.

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You do not often see a criminal case intersecting with a Massachusetts personal injury action, but a recent medical malpractice decision issued by the Appeals Court shows how the former affects the latter. The original action was filed by the husband of the decedent, claiming the treating physicians and health care facility caused the death of his wife through their negligent care of her during her knee replacement surgery. Early on, the estate took the deposition of one of the anesthesiologists involved in the injured wife’s care. Soon afterward, this physician had his medical licenses revoked and was indicted for Medicare fraud. He then filed to bifurcate the civil trial and invoked his Fifth Amendment privilege against self-incrimination.

The other defendant anesthesiologist filed a notice of his intention to use parts of the other doctor’s deposition, since he would be unavailable. The anesthesiologist invoking his Constitutional privilege and the health care provider both settled with the estate, leaving the remaining anesthesiologist as the lone defendant. The judge denied the defendant doctor’s motion to use the deposition. At trial, the doctor invoking the privilege did not appear, and the judge allowed parts of the deposed testimony to be read during trial. The court allowed the defendant to read the part of the deposition in which the other doctor admitted his medical license was suspended in three states. The jury returned a verdict in favor of the remaining defendant anesthesiologist.

The Appeals Court noted the trial court relied on the exception to the evidentiary rule that allows hearsay evidence through prior recorded testimony when the witness is unavailable. To determine whether this exception can be applied, the court must determine the declarant is unavailable and evaluate whether the prior recorded statement was given in a proceeding that substantially addressed the same issues in the present proceeding, with similar opportunities for cross-examination. The appellate court agreed with the trial court’s assessment that the other anesthesiologist was unavailable. The Appeals Court determined the doctor unequivocally indicated his intent to assert his constitutional privilege against self-incrimination.

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Massachusetts workers’ compensation requires insurers to pay for appropriate and necessary treatment under §§ 13 and 30 of the Workers’ Compensation Act for employees who suffer a workplace injury. Since an employee’s medical history can affect whether or not money is paid for a disability, multiple injuries and health conditions can limit or prevent payments for reasonable and necessary treatment. In one of the last Reviewing Board decisions of 2017, the Board assessed whether or not an administrative judge’s order for the insurer to pay expenses under §§ 13 and 30 of the workers’ compensation act was made in error after he refused to allow additional medical evidence during the proceeding.

The employee suffered a repetitive motion workplace injury to her left elbow in 1997. The woman underwent two unsuccessful operations in 1997 and 1998, which caused nerve damage and enduring pain in her left arm. In 1999, she received a lump sum for the injury, entering into an agreement with the insurer, which agreed to pay for reasonable, necessary related medical expenses. A year after this agreement, she began taking Fentanyl and Vicodin to help manage pain.

Between the agreement and the proceeding, the injured employee earned an advance degree and returned to work for a different employer. In 2009, she broke two toes and sprained her ankle in an accident unrelated to work, developing Reflex Sympathy Dystrophy (RSD) in her right leg. For this, she was prescribed Fentanyl, Vicodin, and Lyrica for pain. Between 2010 and 2015, her health insurer paid for these medications.

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If an employee seeks benefits for a work-related injury but has previously suffered medical ailments outside work, an insurer will likely point to the pre-existing condition to show the permanent condition was not caused by the Massachusetts workplace injury. A Massachusetts Reviewing Board decision (Bd. No. 019236-10) analyzed this scenario recently. The employee was severely injured after an attack by a patient. The worker was punched in the head, knocked down, and repeatedly kicked in his abdomen and chest until he passed out. He received medical treatment following the accident, but he still requires care for a fractured right lower leg, deep vein thrombosis (DVT) in his right leg, chronic lower leg pain and instability, and chronic lumbosacral pain.  The employee has not been able to return to work since his injury.

At the first hearing, the worker was awarded permanent and total incapacity benefits (§ 34) from the date of the injury onward. The administrative judge found the injured employee’s neck pain, right knee injury, fractured fibula, DVT, and ankle pain were all caused by the workplace incident. The judge specifically found the employee’s long-term, pre-existing seizure and degenerative arthritis disorders did not worsen because of the injury and did not cause or add to any of the incapacity.

The employee’s injuries were so aggravated by the time of the second hearing that he could only stand for five to 10 minutes at a time, sit for 10 to 15 minutes at a time, and walk for 10 to 15 minutes at a time. Despite the use of a cane, his knee and leg would give out, causing him to frequently fall. The intensity of the pain also meant he suffered from interrupted sleep. In his findings on the second hearing, the judge relied upon the opinion provided by the impartial medical examiner (IME), reiterating his findings from the first hearing. The insurer appealed, raising three issues. It felt the judge improperly relied upon the IME’s opinion to find a permanent and total disability because the IME referred to the employee’s back and seizure conditions in reaching his opinion. Since the judge specifically found the § 34 benefits were NOT related to the industrial accident, the insurer argued this was inconsistent and should be thrown out.

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The doctrine of spoliation is a legal concept developed through case law that allows trial court judges to sanction a litigant who intentionally or negligently loses or destroys evidence that they knew or should have reasonably known may be relevant to a possible Massachusetts personal injury case. This doctrine may be applied even when the spoliation occurs prior to the filing of a civil action. An appellate court in Massachusetts looked at spoliation in a negligence action stemming from a choking incident at a public school.

The case was filed after a young school child choked on meatballs served at the cafeteria in a public school.  He began choking at the end of his lunch period, and several attempts using the Heimlich maneuver and back blows proved to be unsuccessful. The food was eventually dislodged by professional emergency staff, but the child had been without oxygen for too long and sustained catastrophic brain injuries. The parents filed suit against the school and the company that manufactured the meatball.

The company that made and sold meatballs to the public school system utilized a protein solution to meet the required level of protein. The injured child’s parents asserted the use of this solution caused the meatball to have an unreasonably dangerous texture, creating a choking hazard. An expert hired by the plaintiffs recreated the meatball using the formula provided by the defendant company through interrogatory answers. At trial, the expert opined the meatball was harder to break apart and chew than others without this protein solution. The plaintiffs’ expert stated the size and texture of this meatball presented a choking risk to children.

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It is vital to have aggressive, knowledgable Massachusetts personal injury counsel at your side after an accident. To obtain the damages you deserve, an attorney has to remain vigilant from the beginning of the lawsuit, throughout the discovery process, during trial, and even after a successful verdict. A recent medical malpractice case from the Commonwealth’s Appeals Court illustrates the need for assertive attorneys at your side for every part of the litigation process.

The injured patient in this lawsuit won a multi-million dollar verdict in a medical malpractice case against her physician, who failed to timely diagnose her stroke. The jury awarded $5 million, which was reduced to $4.05 million, since a co-defendant had previously provided a $950,000 settlement payment. Following the trial, the physician’s malpractice insurer chose to forgo post-trial motions and an appeal, settling the case for $3.75 million.

This amount was under the $4 million coverage limit of the policy, thus releasing the doctor from personal liability. However, the doctor was unsatisfied. The doctor claimed the insurer acted in bad faith when it settled without her permission. If the insurer had appealed the verdict, the injured person might not have been paid.

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The injured party in this case was driving down the Massachusetts Turnpike in 2011 when a “classic car” transported on a flatbed trailer slid off and hit the plaintiff’s car. The injured man filed suit against the owner of the vintage car and three other men accompanying him in the transport of the car. The case against one of the defendants went to trial, where the jury returned a verdict for the defendant. The injured man appealed, arguing a mistrial should have been granted based on the defendant’s opening statement made by his attorney, a res ipsa loquitur jury instruction should have been given, and a new trial should have been awarded.

These types of appellate requests are typical, whether it is a slip-and-fall case or an auto accident case like this one. The civil court system acknowledges that mistakes can be made at the trial court level. A dissatisfied party can point to errors made by the trial court judge or jury in its ruling, finding, or award. A frustrated party can ask for the appellate court to alter the problematic ruling or award, or they can ask for an entirely new trial. The plaintiff-appellant in this case asked for the latter, arguing the errors made were so egregious the only solution was a new trial.

In its review, the appellate court first addressed the injured man’s argument that the defense counsel’s opening statement was incurably prejudicial. The defendant told the jury the injured man waited 19 months to file suit and did not readily produce his medical records. The Appeals Court determined the trial court did not abuse its discretion by refusing to declare a mistrial based on the defendant’s opening statements. The trial judge made spontaneous comments after comments made by counsel and did not officially provide a ruling on an objection. The plaintiff did not preserve the record for appeal through an objection. The trial judge did instruct the jury that opening statements are not evidence, and the discovery process was not essential for the jury’s consideration.

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Many products consumed by Massachusetts residents can be dangerous as well as useful. If a product contains inherent risks, manufacturers may be obligated to warn the consumer of these hazards. Manufacturers are liable for injuries caused by a failure to warn. This duty was discussed in a Massachusetts product liability decision. An executrix filed a wrongful death lawsuit after the decedent was found underneath a truck on his farm. His clothing was caught in a spinning U-joint that was a part of the truck, causing him to die by accidental asphyxiation. His widow filed suit against the manufacturer that produced the original core of the truck and the company that manufactured the equipment used to lift the dump body of the truck.

The deceased had originally bought the truck from an independent dealer as an “incomplete vehicle” in which there was a chassis, engine, and cab. It did not have the necessary components needed to perform the intended functions of a dump truck. The decedent transformed it into a functioning dump truck by installing the body and the mechanical system for tilting it. This was all completed decades before the accident, and no record was kept of who provided the work. The power take off (PTO) made by the second defendant connected to the transmission so that it could help power various kinds of equipment. This was achieved by the PTO spinning a post when it was engaged, which then powered the part attached to it.

The dump truck had several exposed parts like the auxiliary drive shaft and U-joint, which presented several dangers to anyone working below the truck when the PTO was running. Each respective manufacturer provided a warning of the risks that would be present in the future with a completed vehicle. The manufacturer of the truck provided a specific warning about the uses of PTOs and any related equipment. The relevant section of the manual contained a separate box marked “warning” with several exclamation points. General warnings were provided by the maker of the PTO, which advised avoiding going underneath the vehicle while the engine was running. It also admonished against working near the rotating drive shaft, due to the possibility of getting entangled.

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If you’ve been injured in the workplace, you are obligated to provide notice of the injury and notice of a claim within the statutory time limits. Massachusetts General Laws, c. 152, § 41 requires notice of an injury to the insurer or insured as soon as practicable within four years of the date the injured worker is able to connect the cause of her disability to her employment. While an injured person must provide notice, the insurer must also act if it perceives timing to be a problem.  A recent decision asserts it is the insurer’s responsibility to properly raise this affirmative defense of improper notice at the time of the hearing, rather than on appeal.

This decision originates from ongoing injuries suffered by a registered nurse. The nurse injured her neck at work in January 2007 and sought treatment at the time of the injury. She kept working but suffered increasing pain until a surgery two months later on her C5-C6 vertebrae.

Two years after this procedure, the nurse began experiencing and treating neck pain again, but she remained on the job for another three years. She eventually sought physical therapy and received corticosteroid injections. The nurse managed to return to full-duty work but left in April 2014, due to exacerbated neck pain. This resulted in another surgery on her spine the following year. She has not returned to work since the operation in July 2015.

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