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When an at-fault party is faced with a lawsuit, they will raise any and all legal defenses available to avoid liability. In all litigation, courts attempt to avoid duplicative processes to provide efficient and effective justice. The legal doctrines of res judicata and collateral estoppel bar re-litigating claims or issues that have been previously decided on the merits in a prior adjudication in a final judgment. In complicated personal injury and wrongful death lawsuits with multiple parties, doctrines like res judicata and collateral estoppel are often utilized to bar or limit claims an injured party, estate, or family member may have.

In Resto vs. City of Lawrence (14-P-1711), an 11-year-old boy was hit by a car crossing a street undergoing a lot of construction. A motorist driving his car at a high rate of speed hit the child, who died as a result of his injuries. The administratrix of the estate filed suit against the driver of the car as well as companies that were hired by the city to perform construction work at the high school. The estate alleged in an amended complaint that the construction companies did not take proper steps to mitigate the intersection’s pedestrian safety issues. A year after the original complaint was filed, the estate filed to amend a second time and added the Massachusetts city as a defendant. The estate alleged the city failed to maintain signage about the increased pedestrian and vehicular traffic.

The trial court judge denied the amendment, determining that the city did not owe a duty to the deceased boy and that its negligence was not the proximate cause of the accident. The companies hired by the city later filed motions for summary judgment, arguing that the court’s reasoning in its prior refusal to allow the addition of the city applied to them. The companies felt this logic should extend to them – that no duty of care was owed to the child who died, and that their negligence was not the proximate cause of the child’s injuries. The judge agreed, and the claims against the companies were dismissed through the court’s entry of summary judgments.
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Recently, the Supreme Judicial Court weighed whether or not an affidavit submitted by an administrator of an estate had to be based on personal knowledge. In Bayless vs. T.T.S. Trio Corp., (474 Mass. 215), the estate filed suit for a man who died after a solo car accident, which occurred after he left a restaurant bar he often frequented. The estate sought to hold the restaurant liable under the Commonwealth’s Dram Shop Act, G. L. c. 231, § 60J, which holds establishments responsible if they continue to serve alcohol to patrons when they knew or should have known the patron was intoxicated. As part of any civil action, the Act requires an affidavit to be filed within 90 days of filing the complaint. The defendant restaurant appealed the decision of the trial court, which allowed an affidavit submitted by the administrator as part of the initial pleadings. The Massachusetts Supreme Judicial Court decided to hear the case under an interlocutory petition for relief.

The affidavit described the deceased’s behavior throughout his patronage of the restaurant and the evening he died. The statement was made based on information gathered from several witnesses who had witnessed his excessive drinking, which often caused him to have impaired movement and speech. Witnesses also described conversations between the deceased person and an unnamed female bartender, who would continue to serve the decedent alcoholic drinks after he was clearly intoxicated.

On the evening of his death, the decedent was witnessed drinking at 4 P.M., when he proceeded to become drunk once again. He spoke to his daughter several times, who asked him to come home to a family barbecue. The daughter also spoke to the bartender mentioned above, who tried to assure her he was fine. This same bartender later told a different patron that she was concerned about the decedent because he hadn’t eaten anything. The bartender, as was her custom, continued to serve him alcohol, and he bought and drank 12 drinks while he was at the restaurant. The daughter, during her last call to him at 9 P.M., noticed his speech was slurred. Soon afterward, he died in a vehicle crash from multiple traumatic wounds.
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In Robert Amaral’s Case (15-P-860), the Appeals Court of Massachusetts reviewed whether or not it was appropriate for an administrative hearing judge to terminate a worker’s total weekly incapacity benefits. The worker injured his shoulder and lower back while helping restrain two juveniles at the Department of Youth Services. He originally received both total and partial incapacity benefits, but his employer, a self-insurer, filed to discontinue the total incapacity benefits.

The employer argued that the injured worker was no longer entitled to weekly benefits because the injury sustained at work was not a major cause of his continued disability. The administrative judge relied upon the employer’s medical expert witness, who opined that his disability mostly stemmed from his pre-existing spinal degeneration and obesity.

In all workers’ compensation cases, the judge is allowed to weigh the medical evidence presented in order to determine whether the injuries sustained by the worker were actually from the workplace and not aggravated by conditions preceding the accident or aggravated by circumstances outside of and unrelated to work. In this case, the injured worker appealed the judge’s ruling and the affirmation of the Reviewing Board, arguing that the judge had abused her discretion by adopting the medical opinion of the employer’s expert.
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There are many documents you can and should use for your Massachusetts estate plan. Medical care considerations can become especially complicated as you weigh the resources available to help cover the cost. The recent Massachusetts Appeals Court case of Heyn vs. Dir. of the Ofc. of Medicaid (15-P-166) reinforces a grantor’s ability to create an irrevocable trust, which could then make him or her eligible for Medicaid benefits.

In this case, the grantor, now deceased, created a self-settled irrevocable inter vivos trust, transferring the title to her home to the trust, while retaining a life estate interest that would not make her ineligible for Medicaid benefits. The grantor moved into a skilled nursing facility and applied for Masshealth benefits to pay for the cost of her care, which were originally approved. After a little over a year at the nursing facility, she was notified that her benefits were terminated based on the agency’s determination that the home held by the trust should be considered a countable asset, rendering her ineligible for benefits.

The grantor of the estate appealed, but she died before a decision was issued upholding the termination of benefits. The hearing officer determined that the trust allowed the trustee to sell the assets and invest the proceeds of the sale in other forms of investments, like an annuity. The officer reasoned that annuity payments can create income for the grantor, which should be considered a “countable asset” for determining Medicaid/Masshealth benefits eligibility. The Superior Court upheld the hearing officer’s ruling, and the case went on to the Appeals Court of Massachusetts.
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When an accident occurs in Massachusetts, it is not always immediately clear who should be held accountable for the injuries. Sometimes multiple parties are jointly liable, and other times one party may initially appear liable before being absolved through the litigation process or trial verdict. For example, if someone is injured by tripping on an object in a shopping mall, there may be liability due to the negligence of an employee of one particular store. This may be shared by the owner of the entire premises because a separate maintenance employee failed to clear the obstruction. Juries often divide liability, as well as the percentage of damages paid to the injured party, so it is important to file suit against all possible responsible entities.

In any situation, there may be additional relevant statutes that limit the amount of time an injured person has to provide notice of her or his intent to sue. The Appeals Court of Massachusetts recently issued an opinion, Landry vs. Mass. Port Auth. (15-P-253), which reviewed a delivery man’s action against two municipal entities for injuries he sustained at the regional airport. In this suit, the defendants jointly filed for dismissal, pointing to G. L. c. 84, § 18, which requires notice to file suit against a municipal entity within 30 days, if the injury happened in a right of way.

The deliveryman had been making deliveries of cleaned uniforms to the airport for several years, often with airport employees escorting him through the gates to his drop-off point. In the year before the accident, this procedure changed, and he was directed to park his truck in a certain location and walk through a remote-controlled gate to his drop-off point. On the date of his injury, the gate was partially opened but abruptly stopped after opening 3-4 feet. After waiting for some time, without further instructions from someone controlling the remote, he proceeded through the opening with the uniforms over his shoulder. He did not have much clearance to make it through, since a steel bar that was part of the gate was also in the way. The gate began to close while he was walking, causing him to suffer a fractured sternum. The man could not work for two months. The delivery man later learned from airport employees that this mechanized gate had been malfunctioning for a while.
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A named executor of a will holds a lot of power and responsibility over a Massachusetts estate. An executor’s tasks can go beyond distributing the testator’s assets. He or she can also manage trust funds or file and defend lawsuits on behalf of the estate. A recent appellate court case, In The Matter of the Estate of Elizabeth Lawry (15-P-374), looks at the obligations an executor has to the estate and its heirs. The executor appealed a ruling made at trial, in which the court ordered the executor to return $20,000 of his $30,000 fee to the estate, as well as pay $7,500 in attorneys’ fees.

Under a Massachusetts law, G.L. C. 190b, § 3-720, a personal representative of an estate who defends or prosecutes a proceeding in good faith is entitled to receive the necessary expenses and disbursements from the estate, including reasonable attorneys’ fees, regardless of whether or not the action is successful. However, a personal representative is also expected to act in good faith. Without this, the entitlement to attorneys’ fees becomes void. At trial, the judge looked at the overall picture of the executor’s performance of his duties. The judge ultimately did not feel that the executor acted in good faith because he did not record the time he spent settling the estate consistently with due diligence, charged a higher fee because the beneficiaries did not get along, made several mistakes while handling the estate, and caused unnecessary delays with the distribution of the assets.

One of the duties mentioned by the trial court in its order awarding the heirs attorneys’ fees was the duty to settle the estate expeditiously and efficiently. The court also looked at the excessive fee the executor paid himself. While an executor is entitled to attorneys’ fees for litigation, the court pointed out it was the executor’s own conduct that led to the litigation, so it was only fair that he pay the expenses of the litigation rather than the estate. The Court of Appeals agreed with this analysis and did not find any abuse of discretion on behalf of the trial court judge. The reduction of the executor’s fees and the award of the heirs’ attorneys’ fees was upheld.
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When a worker is injured, it is not always clear whether his or her current medical conditions and injuries happened because of the workplace or from life outside the workplace. To determine whether or not certain benefits should apply, administrative judges consider medical evidence and expert testimony from treating and reviewing physicians. In Bennett vs. Northeastern University (Board No. 038550-08), a self-insurer/employer appealed a decision in favor of an HVAC technician who was awarded temporary total incapacity benefits, followed by permanent and total incapacity benefits.

The injured employee worked as an HVAC foreman and later as an HVAC technician at a university. The employee originally claimed he suffered from a pulmonary injury arising out of his job, due to exposure to chemicals used by other workers stripping the floors in a locker room, as well as exposure to chemicals, solvents, dust, and fumes he was naturally exposed to in his own work as an HVAC technician. The judge at the original hearing heard from the injured employee’s primary care physician and treating pulmonologists. The judge also heard from the independent medical examiner used in accordance with these proceedings.

After hearing the testimony and reviewing the evidence, the judge found that the employee required medical treatment for breathing issues as a result of his exposure to the stripping materials. The judge noted that these substances aggravated a pre-existing breathing condition and that he will likely be unable to perform any HVAC work again in the future. Since the employer did not raise any issues with causality, the judge relied on the employee’s witnesses, since he only needed to prove “as is” causation. The employer objected to this assessment, arguing that the employee did not prove the employer’s liability for a work-related injury, that the condition was caused by the workplace, nor that he was truly disabled and incapacitated. The employer pointed to the failure of the judge to resolve factual conflicts in the testimony related to the employee’s proximity to the location where the floor stripping was performed, the day the employee fell ill, and the day the employee left work.
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Injured construction workers likely know they are entitled to workers’ compensation benefits from their immediate employer. What they may not realize is the possibility to receive damages from a general contractor through a negligence suit. As discussed previously on this blog, workers’ compensation, created through statute, is available for employees to quickly receive needed funds for care and lost wages, and for employers to avoid the cost of suit and lost time.

Construction and renovation projects, however, often involve several different parties on site. One of those parties can cause an injury. Unlike workers’ compensation, which does not require negligence to be shown, a general contractor’s failed duty to the injured worker must be shown. Massachusetts case law has established that a general contractor can assume a duty of care for a sub-contractor’s safety if they retain control of her or his work. This must go further than the general right to inspect, make recommendations, or set schedules. Control, in this situation, must be the right to control the methods by which the work is performed.

In Yepes vs. C.H. Newton Builders, Inc. (15-P-375), the injured worker appealed a summary judgment entered in favor of the general contractor, where the judge discounted two affidavits submitted by co-workers, relaying the role of the general contractor on the job site. The injured worker was part of the subcontractor’s team who was helping to strip and refinish the wood work in a home. The worker fell off scaffolding and fractured his ankle. He filed suit against the contractor, claiming that the general contractor failed to keep the premises safe. As part of his suit, the injured worker included two affidavits submitted by coworkers, which relayed that the general contractor was in charge of the worksite and all the trades, giving instructions as to how the work should be performed.
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In a recent decision, Insurance Company of the State of Pennsylvania vs. Great Northern Ins. Co. (SJC-11897), the Massachusetts Supreme Judicial Court clarified what happens if there is more than one workers’ compensation insurance policy that covers a workplace injury. In this case, a Massachusetts employee was catastrophically injured in an automobile accident while working abroad on a business trip. The employer had purchased different workers’ compensation insurance plans from two different insurers. However, the employer chose to give notice of the accident to only one of the insurers, and it initially told the other insurer nothing of the accident. The first insurer eventually learned that there was a second insurer and sent a letter to the second insurer, giving notice about the claim and requesting contribution. The second insurer declined, pointing to the employer that advised them that only the first insurer was going to be used.

This case went through the federal court system for a time, which ultimately sent the question to the commonwealth’s appellate system, asking whether or not the employer can choose the insurer it wishes to use. The Supreme Judicial Court answered “no,” stating that the insurer paying for the loss has a right to equitable contribution from the co-insurer to make sure that they cover their share of the loss. The court felt that the employer cannot prevent the insurer covering the costs from seeking equitable contribution.

In its analysis, the court looked at case law that shapes the doctrine of equitable contribution. Over time, courts have determined that when multiple insurers provide coverage for the loss of an insured, any insurer that pays more than its fair share of the costs of the defense and indemnity can seek a proportionate contribution from the other co-insurers. This doctrine applies to insurers that share the same type of obligations on the same risk. Case law also states that the insurance companies do not have to have agreements with each other for this obligation to exist. The right to equitable contribution exists solely with the insurer, and it does not rely upon the insured.
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After a family member dies, the settlement of the estate often accompanies the natural process of grieving. It can be difficult to accept the choices the testator made during her or his lifetime and how those choices echo in their last will and testament. Sometimes, questions are raised as to whether or not those choices were actually made by the testator, and heirs may question the will in probate court. The law, however, created a high bar for those who choose to object. Massachusetts law states that a person is capable of creating a will if he or she is free from delusion, understands the purpose of the will, and understands the nature of his or her property.

In a Massachusetts appeals court case, In The Matter Of The Estate Of William E. Weaver (15-P-714), the appellate court declined to uphold the objections of the children to the will of their father. The plaintiffs protesting the testator’s will were children of his first marriage, and they alleged that his second wife and her daughter exerted an undue influence over their father’s will. In the affidavit submitted, the second wife was portrayed as an enabler of their father’s drug abuse and alcoholism. The second wife actually predeceased their father after they created reciprocal wills that left their estates to each other.

The father had a good relationship with the children of his first marriage, but he had difficulties with the daughter of the second wife. His relationship with the step-daughter deteriorated after her mother’s death, especially after he learned she had stolen money from him. The children alleged that their father told them he was aware of the contents of his will, but that his second wife and her daughter pressured him into leaving his estate to her daughter if she died before her. The children claimed the father expressed his desire to leave his estate to his children.
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