Published on: |

Bingham v. Supervalu, Inc. (No. 15-1437) is a federal appellate case that originated from the District of Massachusetts. In this case, an elderly woman was shopping at a grocery store in Boston when she was struck by a motorized cart, suffering a laceration to her right heel around her Achilles tendon. Soon afterward, her health declined, and she died within a year of the accident. Prior to her passing, she filed a negligence action in state court, which was taken over by her nephew, the executor of the Estate. The question that eventually gave rise to this appeal was whether or not the corporate entity that owned the grocery store was an insurer and subject to the legal obligation to negotiate a settlement as guided by Ch. 176D.

The original negligence suit was filed soon after the grocery store was purchased by a different parent company that had several subsidiaries. As part of its structure, the parent company had a centralized risk management system that oversaw the the claims made against all of its subsidiaries that were not covered by insurance. The grocery store had an insurance plan that transferred to the new parent owner, but only for amounts over two million dollars. The parent company was therefore responsible for all claims less than two million dollars. As a cost-saving measure, the company actually employed its own claims adjustors to perform the administrative functions for these sorts of claims, and it had a central account for payments made on claims. However, the parent company did not issue its own insurance policies to the subsidiaries.

The negligence suit moved forward, and two judgments were entered against the grocery store. First, there was a judgment for failing to timely respond to interrogatories, and second, $300,000 in damages were awarded to the Estate, plus post-judgment interest. The parent company declined to pay and instead chose to file an appeal to the Commonwealth Appeals Court. The decision was affirmed, but an appeal to the Supreme Court was threatened by the corporation. The Estate took a $475,000 settlement offer that was a little below the total awarded and the interest that would have been accrued to that date.
Continue reading →

Published on: |

After a car accident happens, you want the at-fault party to be held responsible. During the civil litigation process, evidence of the at-fault party’s behavior and actions immediately preceding the accident are taken into consideration. Texting while driving, distracted driving, or careless behavior can help a jury or fact-finder conclude whether or not the defendant was responsible for the injuries you suffered. Occasionally, your actions may also be assessed if there is the possibility that your actions contributed to the accident. Under Massachusetts law, recovery is still available to you if your fault is assessed at less than 51 percent, but the award will be reduced by the percentage of fault determined by the fact-finders.

The Commonwealth of Massachusetts also has a process for determining fault when assessing an “At Fault Accident Surcharge.” This is issued to drivers who have been in an accident for which their insurance company has determined they are more than 50% at fault. If the person assessed the surcharge does not agree with this determination, they are able to appeal through Massachusetts’ Board of Appeals. Further appellate process is available if the driver assessed the surcharge loses their initial claim with the Board. A case like this was recently reviewed by the Commonwealth Appeals Court in Wheeland vs. Commerce Insurance Co. (14-P-1733).

In this case, the driver given the surcharge was in an accident with another parked vehicle after she was blinded by solar glare. The driver testified that she was blinded by the low, still rising sun that was right in her eyes as she approached the other vehicle. The driver felt the judge improperly upheld the Board of Appeals determination that she partially contributed to the accident by not taking any measures to compensate like wearing sunglasses or using the car’s solar visor. The Court of Appeals stated that while the judge provided additional, superfluous suggestions, the ultimate conclusion reached by the judge was supported by the facts in evidence.
Continue reading →

Published on: |

When a workplace accident completely removes your ability to work, you may qualify for permanent and total incapacity benefits through workers’ compensation. These are also known as § 34A benefits. In Downing vs. Davenport Realty Trust (Bd. No. 026102-11), the board reviewed a decision awarding an employee §§ 13, 30, 34, and 34A benefits. In this case, the insurer objected to the finding of the administrative judge, who relied upon the testimony of the injured employee and the testimony of a doctor who examined him.

The employee sustained a work-related L4-5 disc herniation. He was 63 years old at the time of the hearing, and he had spent most of his work life at unskilled to semi-skilled employment in physically demanding occupations. During the administrative hearing, the injured worker testified that he had previously been able to do heavy work, including lifting up to 200 pounds, but now he had trouble lifting as much as 10 pounds. The judge made a formal finding that the employee’s pain disturbed his sleep and that his herniated discs were related to an injury sustained at work.

The judge did stop short of adopting the examining doctor’s opinion on the extent of the injured worker’s disability. Instead, she relied upon a separate testifying doctor’s opinion, which concluded that he was totally disabled from work. The last thing considered was the testimony of a vocational rehabilitation expert, who opined that the injured employee could not earn wages due to his work-related injury. Lost wages were awarded for a year, and § 34A benefits were awarded following that period.
Continue reading →

Published on: |

After a workplace accident, an injured worker can file a claim for lost wages in addition to payments for medical expenses. The Commonwealth’s statute provides a formula for calculating the wages, which incorporates the “average weekly wage” (AWW). These are known as § 34 benefits. In a recent board decision, Harris v. Mass. Gen. Hosp. (Bd. NO. 033040-11), an injured nurse sought to increase her § 34 benefits when she sustained a fractured kneecap after slipping on some wet flooring. She had been promoted and was scheduled to begin her new position around the new year, which included increased wages. Her injury occurred right before she was scheduled to begin her new position.

Immediately following the accident, the nurse sought lost wage benefits. She was granted them, based on the wage she was making prior to the fall. The injured nurse then filed a claim six months after the accident to obtain a retroactive readjustment and reinstatement of her § 34 benefits, using the new salary that would have begun two weeks after the accident. The judge awarded her the higher amount, concluding that the law provided him the flexibility to calculate the AWW using a wage that would have been earned during the time following the accident. The hospital, who was self-insured, appealed the decision.

The reviewing board agreed with the hospital’s argument that the AWW is not calculated based on future wages, even if they are “certain” in this case because the injured nurse was already promoted to a position with a known wage. The reviewing board analyzed the history of prior cases and decisions, which have used a number of ways to calculate future wages, but only wages made before the accident. Examples included using four weeks of past wages, using two weeks of past full-time wages, and even using just one day of full-time wages when an employee changed from part-time to permanent full-time on the day of the accident. The board concluded that Massachusetts law allows for all types of full-time wages to be considered, but only if they had been earned prior to or at the time of the accident. The board felt that the definition of the AWW could not be stretched to include wages that have not yet been earned.
Continue reading →

Published on: |

When a trust is established, the grantor intends to convey a benefit to a designated person or persons. As a trust is written, it is important to have experienced attorneys to help draft the trust in a way that best considers state law and the needs of the beneficiary. It can continue to be a balancing act after a trust is administered, and reforms may need to be considered.

In the Massachusetts Appeals Court case of Needham vs. Dir. of the Ofc. of Medicaid (14-P-182), the Appeals Court reviewed whether or not it was appropriate for the Superior Court to go against the agency’s denial of long-term care benefits under the Commonwealth’s Medicaid program. The Superior Court judge had previously concluded that the reformed trust must be considered during the assessment of eligibility for long-term care benefits. The Appeals Court differed, reversing the lower court’s ruling and determining that the state agency, Masshealth, is bound by federal law that prohibits the recognition of the reformation of the trust within the statutory look-back period.

The beneficiary of the trust applied for MassHealth long-term care benefits when he was 64, disclosing two trusts on his application. One trust only held the family home, which was valued at over $400,000. The reviewing agency included this trust in its accounting for eligibility, due to the terms in the trust that directed the trustee to accumulate principal and use it for the benefit of the man. The state agency concluded that the man applying for benefits was ineligible because he had monthly assets in excess of the $2,000.00 limit. The beneficiary then went to probate court to remove the provision from the trust that prevented him from obtaining benefits. The change to the trust was approved by the probate court, but the hearing officer determined that the transfer of assets during the look-back period (after the beneficiary was in a nursing facility) caused the man to remain ineligible for benefits. The Superior Court reversed the hearing officer’s determination, focusing on the reformed trust.
Continue reading →

Published on: |

Under Massachusetts law, business owners owe a duty to the patrons frequenting their stores to keep their premises reasonably safe. If a condition is present that caused a customer or guest to trip or slip and fall, the owner may be responsible for the related expenses incurred as a result of the condition. Liability exists when the owner knew or should have known about the accident-causing condition. In all personal injury actions, the victim must show that a duty existed between the at-fault party and the victim, that the at-fault party failed to keep that duty, that the breach resulted in an accident, and that damages arose.

In Finnegan vs. Kingpin Entertainment, Inc. (14-P-1293), a bowler and his wife filed suit, claiming that the bowling alley failed to uphold their duty to keep the premises safe for their guests. Specifically, the bowler and his wife alleged that the bowling alley used too much oil on the surface of the bowing lane, and this excess oil caused him to fall on the slippery surface. The bowler ruptured his hamstring, and the wife claimed she suffered a loss of consortium as a result of her husband’s injury. The trial court judge granted the defendant bowling alley’s motion for summary judgment, which argued that the couple did not have enough evidence to show that the bowling alley failed in its duty to keep the premises safe for its patrons.

In personal injury litigation, after a case is filed, information is exchanged and formal allegations may be made that claim or deny that there is enough evidence to present to a jury, or fact-finder, on the question of whether or not the defendant was negligent. In Finnegan, the evidence differed between each side on whether or not the bowling alley used excessive oil to keep the floors conditioned. The bowling alley claimed that they followed the appropriate procedure for oiling the lanes, leaving an eight-inch “buffer zone” between the foul line and the application of oil in the lanes. The plaintiffs presented evidence that included an inspection of the lanes after the accident in which “fluid drops” were observed in the “buffer zone” area.
Continue reading →

Published on: |

It can be difficult to get the money you deserve after suffering an injury from an accident. Drivers sometimes do not carry the statutorily required insurance or the insurance policy limits may not be enough coverage to cover all the medical expenses. A recent case, Boyle vs. Zurich American Ins. Co. (SJC-11791), illustrates how the pursuit of damages can become a complicated journey.

In Boyle, a man was injured in an automobile shop. One of the owners revved the engine of a truck and a tire exploded, severely lacerating and fracturing the man’s left forearm and hand. He had to undergo several surgeries, suffering from permanent scarring and partial loss of function in his left arm and hand. The injured man incurred over $100,000 in medical expenses and was unable to work for a year. Even after he went back to work, he could only work at jobs that paid less and required less skill due to his injuries. The man and his wife filed suit for the bodily injury and loss of consortium.

Following the accident, the owner of the auto shop contacted his insurance agent. The agent provided written notice to the auto shop’s insurance company, which opened a claim file and began an investigation. Three months after the accident, the injured man and his wife hired an attorney who notified the owner of the automobile that they intended to assert a claim for bodily injury. This was given to the agent and then the insurance company. Seven months later, their attorney also notified the insurance company directly of the suit, following up with a “2nd Request” notice and letter at the end of the year. A year after this, the insurance company determined the auto shop was liable, and that the injuries were covered under the policy held by the auto shop. Soon after, even though the company did not estimate the liability the auto shop might face, it closed the case.
Continue reading →

Published on: |

The Massachusetts Workers’ Compensation Act was designed to provide prompt financial relief to an injured worker or deceased worker’s family if a work-related accident occurs. Workers’ compensation claims and appeals are handled through a separate system and do not go through any of the standard civil court processes until all the administrative portions are concluded. Recently, the Appeals Court in Merchants Insurance Group vs. Spicer (14-P-798) ruled in favor of the injured worker after an insurance company attempted to stop benefits through an action in Superior Court.

The worker was seriously injured while working as a landscaper and sought workers’ compensation. His hand was dismembered by a log splitting machine. His medical bills were over $700,000, and his treatment was ongoing. The insurer for the employer providing the benefits contested the claim, but the administrative judge for the Department of Industrial Accidents (DIA) granted the injured landscaper temporary total incapacity and medical benefits, pending a formal hearing and ruling. The insurer, following an appeal of that order, also sought to have the policies rescinded in Superior Court, claiming the injured worker’s employer materially misrepresented the information provided on the applications for policies. The insurer claimed it had no duty to indemnify the employer and sought damages of the amounts already paid to the injured worker.

The injured worker and the employer did not formally object to the proceedings in Superior Court, and the judge entered a summary judgment in favor of the insurer. As part of the order, the judge ruled that the insurer did not have to pay any of the sums on the claims arising out of the injured worker’s claims. The insurer took the judgment to the DIA, which denied the insurer’s motion to dismiss the suit. As its reasoning, the administrative judge ruled that the Superior Court did not have jurisdiction, that the employee was not a party to the initial application (and alleged misrepresentation) with the insurer, that the insurer did not terminate the policy according to statute, and that as a matter of public policy the judge did not want to encourage insurers circumventing the administrative process by going to the Superior Court.
Continue reading →

Published on: |

When medical malpractice lawsuits go to trial, both sides will likely use expert witnesses to aid in the presentation of their case. In order to recover damages in any medical malpractice case, the injured party or family of the deceased person must show that the injury was the result of the doctor, hospital, or medical staff failing to uphold their duty to follow the set standards in the industry in order to provide competent medical care. Since many injured patients were already sick when they sought treatment, it becomes necessary during trial to show the fact-finder, or jury, what ‘went wrong’ beyond the original illness of the patient. This requires specialized testimony from expert witnesses.

In Kace vs. Gants (SJC-11827), the Supreme Judicial Court reviewed whether the plaintiff’s expert witness testimony was properly disclosed under the Commonwealth’s statutes. In this case, the administratrix of a deceased patient’s estate brought suit against the Emergency Room physician who treated the patient for several symptoms that included coughing, fever, malaise, and pleuritic chest pains. The defendant doctor ordered chest x-rays, which showed no abnormalities, but didn’t order an electrocardiogram or any blood tests. The patient was diagnosed with bronchitis and given an antibiotic and pain reliever, but the doctor did not consider myocarditis, a condition that begins with respiratory issues and spreads to the heart. Records reveal that the patient was likely only examined for five minutes. The patient was found dead the following morning, and the autopsy revealed that he perished from bronchitis and myocarditis.
Continue reading →

Published on: |

The Massachusetts Appeals Court recently found for an injured woman and her husband after she was sexually violated by an interpreter employed by a hospital. In Doe vs. Boston Medical Center Corp. (13-P-1998), a woman appealed the summary judgment issued by the trial court in favor of the hospital. The trial court granted the judgment, reasoning that the harm was not foreseeable and therefore the hospital carried no duty or liability to the injured woman and her affected family.

In all negligence actions, certain elements must be met in order for a suit to proceed. The at-fault party must owe a duty to the injured person, or a responsibility to behave or maintain themselves or their premises according to established standards. If the at-fault party, or defendant, fails to do so, and an injury results, they are liable for the damages associated with that injury. In considering whether a duty is owed, certain harms must be considered “foreseeable.” For example, if a hole forms in front of an entranceway from construction or weather in front of a storefront, it is foreseeable that someone entering the store could fall into the hole and harm themselves. It is therefore the store owner’s or manager’s responsibility to keep the premises safe and fill the hole.

In Doe, the hospital had performed a background check on the interpreter, which came back with no prior criminal history. This fact weighed heavily in the trial judge’s conclusion that the interpreter’s assault was not foreseeable, and the hospital could not be held liable for his actions. The woman was inappropriately touched by the interpreter after she was checked by several doctors and staff who exited the room, leaving her alone in the hospital bed attached to medical equipment. The interpreter also left the room with the staff but stayed behind outside her door. Since the door was unlocked, the interpreter came back into the room and claimed he needed to perform a physical exam, touching her abdomen and vagina. He left but stayed outside the room again until a nurse found him and made him leave. Soon after he left, another sexual assault was reported by a different patient in a different area of the hospital, indicating that the same interpreter was involved.
Continue reading →

Contact Information
128 Dean St
Taunton, MA 02780
Phone: 508-822-6600Fax: 508-822-8006

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2026, Law Office of James K. Meehan
JUSTIA Law Firm Blog Design