Published on: |

In urban environments, many modes of transportation are used to get from one place to another. Roadways are often shared by pedestrians, different sizes of vehicles, and bicycles. However, pedestrians and cyclists are the ones who have the greatest risk of a catastrophic injury if they are struck by a distracted or generally careless driver. In the event of such an accident, it is important to have experienced counsel at your side so that all options of financial and legal relief are available to you.

In Basiony v. City of Boston (15-P-98), the Appeals Court of Massachusetts reviewed a jury verdict awarding damages to a bicyclist struck by a police officer going the wrong way down a one-way street. The collision caused a physical injury to the man and property damage to the bike. The city appealed the trial court’s refusal to grant a new trial, arguing that the judge should have granted its requests for evidentiary rulings made throughout the trial.

The city objected during trial to the testimony of the patrol supervisor who was working during the officer’s shift. The supervisor conducted an investigation of the accident and wrote a report of his findings. The judge did not allow the introduction of the report itself but allowed the supervisor to provide testimony, overruling the objections of the city. The city felt this was improper, but the trial court and the Appeals Court disagreed. The court did not find any error regarding the testimony and pointed to the long history of broad discretion granted to trial judges. The court felt the supervisor was an appropriate witness to the accident, since he arrived on the scene soon after it occurred. The court also felt it was reasonable for him to testify about police department rules that dictate when police cruisers are allowed to disregard traffic signs and signals in an emergency.
Continue reading →

Published on: |

The Massachusetts Appeals Court reviewed an appeal by an ex-husband to quiet title on a mortgage taken out by his ex-wife in 2002 for property that they co-owned. In Poulos vs. Financial Freedom (14-P-1287), the husband appealed, seeking to reverse a summary judgment issued in favor of the lending institution and the family trust created by his deceased ex-wife. The husband wanted the mortgage granted to the lending institution to be declared void because he felt that it encumbered his share of the property rather than just the 50% of the property originally held by the wife as part of their 1987 settlement agreement, now owned as part of a trust she established prior to her death.

The court affirmed the summary judgment and discussed the effects of the settlement agreement, or the lack thereof, on their respective interests in the property after the escrow period in their separation agreement. While there was language in the property settlement agreement that the parties were not to encumber the property with a mortgage during the escrow period, nothing in the agreement prevented the parties from seeking mortgages or other potential encumbrances after this period ended.

The court did agree that the ex-husband initially had standing to pursue this course of action with the lending institution’s original position that the mortgage encumbered all of the property, rather than just the decedent’s and trust’s interest in it. The reverse mortgage documents clearly indicated that the institution believed that the mortgage the ex-wife granted covered 100% of the property. The ex-wife represented in the paperwork that she owned the entirety of the property and all the rights to mortgage, grant, and convey it, failing to mention her ex-husband’s interest. However, during the course of litigation, the lending institution eventually conceded that the mortgage could only cover the wife’s half of the property.
Continue reading →

Published on: |

In two recently released companion cases, DiCarlo v. Suffolk Construction (SJC-11854) and Martin v. Angelini Plastering, Inc. (SJC-11853), the Supreme Judicial Court reviewed whether or not liens could be placed on the recovery the injured worker receives that was paid to him or her in employee benefits. As discussed previously, the statute providing workers’ compensation benefits to injured employees exists so that the worker receives quicker payments for medical care and lost wages. Employers, by providing insurance under the law, are generally immune from suit so that the business’ time and resources are not spent defending personal injury actions. Injured workers, however, are allowed to sue at-fault third parties to recover damages incurred.

In these cases, two workers were injured during the course of their respective employments. Both men reached settlement agreements with third parties for damages, including pain and suffering, which were paid after they received workers’ compensation benefits provided by their employers’ insurer. Both cases involve the same insurer. One employee was an electrician who experienced ongoing physical and emotional suffering from a back injury. The other employee was also an electrician who suffered ongoing pain and mental anguish. Both filed suit against the construction site at which they worked, as well as contractors and subcontractors.

The insurer sought reimbursement under Massachusetts G. L. c. 152, § 15, which allows an employer to seek reimbursement if they covered costs for the employee even though another party was responsible for the employee’s injuries. In one case, the Superior Court Judge rejected a settlement offer that excluded the attachment of a lien to the pain and suffering damages, which made up 35% of the settlement. The judge in that case felt the lien attached to the whole recovery. In the other case, the opposite was true, and the judge allowed the settlement to go through, excluding any attachment to awards like pain and suffering, which was 30% of the settlement award. In this case, the insurer appealed. In the prior case, the injured employee appealed.
Continue reading →

Published on: |

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.
Continue reading →

Published on: |

During the course of your career, you are likely to have several different jobs under different employers. Injuries can occur at any of these positions, particularly ones that may exacerbate older injuries sustained during previous employment. Workers’ compensation insurance companies have often disagreed on who is responsible for paying benefits, especially permanent benefits. To assist with this scenario, the commonwealth’s workers’ compensation case law created the “successive insurer rule,” which requires the insurer at the time of the most recent injury that bore a causal relation to the incapacity to compensate the worker for her or his injuries.

The Massachusetts Reviewing Board recently issued a decision in Griffin vs. Travelers Painting Co. (BD Nos. 037293-11 and 034762-13) that reviewed who was ultimately responsible for the temporary total incapacity benefits and permanent partial incapacity benefits paid to a painter who suffered serious knee injuries over the course of his work life. The painter first suffered injuries to both his knees when he fell out of a truck, and he re-injured his knee 11 days later. The employer’s insurer paid him temporary total incapacity benefits for about five months. The painter then worked for another residential painting company that had a different workers’ compensation insurer. The painter was able to work with some pain in each knee, having “good and bad days.” While working for the second employer, the knee pain increased due to the climbing and kneeling associated with the job.

After the painter was laid off, he underwent a second knee surgery that successfully reduced his knee pain in great measure. He filed for benefits from the first employer’s insurer, which then sought to add the second insurer. The first insurer felt the worsening injuries were related to work the painter performed at his second job. Much medical evidence was reviewed by the Administrative Judge at the hearing, who adopted the testimony of the treating surgeon that the knee injuries were caused by the original accident at his first job. The first insurer appealed, and the Reviewing Board took up the appeal to consider whether or not the successive insurer rule was violated.
Continue reading →

Published on: |

In a recent Reviewing Board Decision, Harris vs. Plymouth County (BD. NO. 005307-06), the Reviewing Board looked at whether death benefits under Massachusetts workers’ compensation laws should have been awarded to the spouse of the deceased employee. The employee worked for a self-insured employer as a case-worker when he suffered work-related neck and back injuries. The injuries were sustained in the spring of 2006, and he died from acetylsalicylic acid toxicity caused by excessive aspirin ingestion four years later.

His wife sought dependency and burial benefits following his death, which were denied by the employer. The judge ordered the burial and funeral expenses to be paid but denied the death benefits. At the conference following the wife’s appeal, the wife argued that the employer’s failure to appeal the death benefits, which can only be awarded if the death is work-related, established the causal relationship for other benefits. The judge at this hearing agreed with the wife but looked more closely at whether she qualified as the employee’s dependent in whole or in part, and what amount of benefits was due.

The wife had been living separately at the time of the employee’s death, but they had only separated the month prior. The judge felt, based on the evidence, that the wife had been living apart for a justifiable cause and awarded her death benefits of $723.54 a week from the date of his death and continuing. The employer appealed the decision, but they focused on the judge’s refusal to allow them to litigate the question of whether or not the death was caused by the work-related injury. The employer’s appeal did not challenge whether the wife was a dependent at the time of the employee’s death.
Continue reading →

Published on: |

In a recent decision, Amaral vs. Seekonk Grand Prix Corp. (13-P-1848), the Commonwealth’s Appeals Court reviewed whether or not General Law, Ch. 21, Section 17C(a) barred a claim of negligence by a mother who was injured by a runaway go-cart while watching her sons. This law is known as the “public use statute,” which states that those who make land available to the public for recreational purposes without charging a fee shall not be liable for personal injuries sustained by members of the public, unless there is willful, wanton, or reckless conduct by the landowner.

Under general premises liability law, a shop or other place of business is expected to keep their premises reasonably safe for patrons. If a hazardous condition exists that the owner or manager knew or should have known about, the business may be held liable for injuries sustained by a patron. The Massachusetts public use statute limits the owner’s duty to members of the public, and it increases the burden of proof that must be shown by the injured person to recover damages.

The corporation that operated the recreational facility did not charge admission to the grounds, but it did sell tickets to rides on the property. The injured woman had purchased tickets for her sons to ride go-carts, and she was watching them drive the go-carts on the other side of a chain link fence. A go-cart driven by a little girl went through the fence at the end of a run and struck the woman, which resulted in several injuries, including a pulmonary embolism from a blood clot in her left leg.
Continue reading →

Published on: |

In Massachusetts, a testator can include an “in terrorem” clause that creates a large disincentive for any beneficiary to challenge the validity of the will. In this clause, the testator declares that anyone who contests the will as a whole, or a provision of the will, forfeits his or her share, and the remainder is re-distributed to the other beneficiaries as if they had pre-deceased the testator and had no heirs of their own. An in terrorem clause may be invalidated along with the rest of the will if the testator was subject to undue influence or incompetent, but this is a difficult endeavor for the contester with potentially a lot at stake to lose.

In all contract matters, judges strive to strictly construe the terms of the document as written. This is seen in a recent Appeals Court decision, Sinnott vs. Sinnott (14-P-1653). In this case, one of two brothers disputed the assets of his mother’s estate, which included an in terrorem clause. He did not object to the probate of the will but later chose to file an equity action more than two years later, claiming other beneficiaries fraudulently or improperly caused the mother to divert assets to them during her lifetime. The judge presiding over the case agreed with the contesting brother that he had standing under estate law to pursue the claim as a residuary legatee, but the claim, even in equity, enacted the in terrorem clause and blocked any recovery.

The plaintiff disagreed with the judge’s ruling, arguing that the contest was not to the will as a beneficiary, but as a residuary legatee. The Appeals Court agreed with the judge’s determination that the suit was an attack on the will’s provisions, thereby enacting the in terrorem clause. The contesting son, at one point of the litigation, even agreed to that description of the suit. The Appeals Court felt the language of the will was very clear on when an in terrorem clause would take effect, and it affirmed the summary judgment in favor of the defendants.
Continue reading →

Published on: |

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.
Continue reading →

Published on: |

Whenever you visit businesses in Massachusetts, the owners and managers of the property are expected to keep the premises reasonably safe for customers and members of the public. If a business fails to do so, they could be held liable for damages suffered by anyone injured. The injured party must show that there was an unreasonable danger that the owner knew or should have known existed. This can be proven by the injured party showing that the business or its employees created the dangerous condition, were made aware of the condition, or should have seen the dangerous condition.

For example, a person injured in a grocery store may be able to rely on a witness who either saw or created a spill in the store and then made the management aware of the spill. If the spill was not cleaned up in a timely manner, and it caused the injured party to fall, the witness testimony could be used by the injured person as proof of negligence. Another example of proof in a premises liability case would be records kept by the store of checks performed by maintenance staff throughout the day. If a spill or foreign substance was left for hours in an area checked at regular intervals, and during this time a maintenance worker should have seen it, the business may then be held liable for the spill because even though it was not “known” like the first example, the business should have discovered the spill during one of the routine maintenance checks.

In Stewart vs. Five Bridge Inn, LLC (14-P-1878), the Appeals Court of Massachusetts reviewed whether or not there was enough proof of negligence to hold a hotel liable for a woman’s injuries. The woman was a guest at a wedding and was walking toward the venue when she fell, fracturing two main bones in her leg. The woman alleged in her suit that her fall was caused by an irregularly sized rock embedded in the gravel parking lot. However, the woman also stated that she didn’t know why she fell and whether the rock played any role in her fall. The Superior Court determined that the woman did not connect her injury in the fall to any negligence by the hotel, and it entered a summary judgment in favor of the hotel. The Court of Appeals agreed and affirmed the lower court’s decision.
Continue reading →