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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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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.
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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.
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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.
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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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