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Sarvis v. Boston Safe Deposit and Trust Company, 47 Mass. App. Ct. 86. This was an action brought pursuant to the Massachusetts Civil Rights Act for alleged violations of the plaintiff's right to be free of threats, intimidation or coercion. The plaintiffs were the children of the owner of a home on Nantucket. The defendant/mortgagee foreclosed on the property for non-payment. The mortgagor and his children continued to occupy the property. The defendant placed the property on the market and received, very quickly, advantageous offers wherein the defendant would secure a profit from the sale. The defendant directly, and/or through intermediaries, advised the police on Nantucket that the plaintiff's children were trespassers on the property and that they should be arrested. The plaintiffs contend that their civil rights claim is based upon their right not to be evicted from residential premises except by summary process. A jury awarded each of the plaintiffs $45,000. They concluded that the defendant bank had sought to circumvent the summary process procedure to afford a quick sale of the property and a significant profit. The Court found that a civil rights violation could be imposed against a private employer based on the theory of respondeat superior. In order to fix such liability, the plaintiff must show that the employee was acting in accordance with the employer's policy or custom. The Appeals Court found that a corporation, like a person, could violate the civil rights statute. Also affirmed was recovery on the basis of a false imprisonment claim inasmuch as the plaintiffs had been arrested by the police. The Court said that the provision of false information to law enforcement officials resulting in the arrest of the plaintiff constituted false imprisonment. The defendants argued that the plaintiffs' claims were barred by operation of res judicata. The plaintiffs' father had litigated the foreclosure with the bank and had lost. The bank claimed that the plaintiffs' claims of civil rights violations were precluded by virtue of the previous litigation. The Court found no such preclusion inasmuch as the plaintiffs' claims differed from those of their father and that they had attained majority. There was not sufficient legal identity between the claims of their father and the plaintiffs'. Finally, with respect to the plaintiff's motion for a remittitur, the decision of the trial judge to let the verdict stand was found to be within the judge's sound discretion. New Hampshire Insurance Company, Inc. v. McCann, 429 Mass. 202. This was a legal malpractice action brought on behalf of a lead poisoned child against former insurance defense counsel for the residential landlord. The lead poisoning claim was originally brought by the child's father as next friend, and was settled for $3,000. Counsel for the insured landlord accepted a release of the landlord as a trustee of a realty trust. A stipulation of dismissal was filed. Years later, the child's mother brought a second action against the landlord individually arguing that the release did not encompass individual liability. The landlord's insurer settled the second action for $220,000 and assigned its claim against former defense counsel for malpractice to the minor plaintiff. The SJC decided that legal malpractice actions were assignable and brushed aside concerns about public policy, attorney-client confidentiality and the like. It pointed out that this was not an instance where a claim was being traded on the open market, but there was some pre-existing relationship, albeit adversarial, between the assignee and the defendant attorney. The SJC did not decide the issue as to whether or not the release of the defendant/landlord in his capacity as a trustee encompassed a release of him in his capacity as an individual. The plaintiff had argued that the release of the landlord as a trustee absolved him of liability in his role as an owner but did not absolve him of liability in his role as a manager, as the latter was an individual capacity and was not expunged by the release. Swasey v. Barron, 46 Mass. App. Ct. 127 This was an action for professional negligence brought by the plaintiff against her former attorney, sixteen years after his representation of the plaintiff had ceased. The applicable statue of limitations G.L.c. 260 § 4 may be tolled when the harm is unknown or undetectable. However, a claimant need not know the exact extent and nature of the harm before the statute of limitations begins to run. Here, there were plenty of indications at the time of the alleged professional negligence to put the plaintiff on notice of the existence of a potential claim. Therefore, the "discovery rule" was inapplicable on the facts of this case. Meyer v. Wagner, 429 Mass. 410. The plaintiff appealed from the striking of her negligence claim against her former counsel in a divorce action. The plaintiff contended that her lawyer had failed to use reasonable skill and care in representing her in a divorce action. More specifically, she complained that he had not been aggressive enough in investigating her husband's financial assets, and had failed to perfect a settlement agreement through the execution and filing of mortgages. The defendant replied that the Probate Court had approved the settlement and, thus, as a matter of law, he could not be found to have been negligent in his representation of the plaintiff. The SJC found that the trial court had incorrectly stricken the negligence claim. Mere approval of a divorce settlement by a judge does not bar a claim for negligent representation against an attorney. There was no error, however, in the trial court's decision that there was no basis for a finding of a violation of G.L.c. 93A against the defendant attorney. Labovitz v. Feinberg, 47 Mass. App. Ct. 306. The plaintiff, an attorney, while represented by the defendant, plead guilty to a number of indictments charging him with bankruptcy fraud in the federal court. Subsequent motions to withdraw the guilty pleas were denied. During the course of those pleas, the plaintiff indicated, in response to questions from the judge, that he was pleading knowingly and voluntarily. The dismissal of the instant malpractice claim was affirmed. It was noted that the orchestration of a legal malpractice claim generally requires expert testimony that the defendant attorney failed to meet the standard of care. In order for a plaintiff to sue a former attorney for malpractice after reversal of a conviction in the underlying criminal case, the plaintiff must prove that he was innocent of the crime charged. A person who is guilty should not be compensated for the results of his former attorney's negligence. Absent unusual circumstances, a malpractice plaintiff should be barred from proclaiming his innocence and his former attorney's negligence unless he succeeds in withdrawing or vacating his guilty plea. If the guilty plea is vacated, then a legal malpractice plaintiff should be permitted to sue his former attorney subject to the requirement that he prove his innocence. Atlas Tack Corporation v. Donabed, 47 Mass. App. Ct. 221. The plaintiff, faced with environmental problems at its plant engaged an environmental engineering firm to supervise remediation. A dispute over payment occurred and the plaintiff engaged the defendant attorney in the present case to countersue for negligence. A settlement was negotiated. The instant action was a legal malpractice suit against former counsel on the theory that he had exceeded his authority by settling all the environmental claims when in fact that authority extended only to the interior environmental claims. Present counsel for the plaintiff gave inadequate answers to the defendant's interrogatories with respect to expert witnesses. The defendant's motion to strike the expert witness testimony was allowed as to expert engineers and denied as to expert attorneys. The plaintiff made no further attempt to augment the interrogatory responses with respect to the anticipated testimony of engineering experts. In bringing an action for legal malpractice, the plaintiff must show that the defendant attorney failed to use reasonable care, that the plaintiff suffered an actual loss, and said loss was attributable to the attorney's negligence. In some circumstances, expert testimony is necessary to prove causation. Here, without expert engineering testimony, the plaintiff could not demonstrate that it had additional claims against the environmental engineering concern. Thus, the allowance of summary judgment was affirmed. Pierce v. The Christmas Tree Shops, Inc., 429 Mass. 91. This case involved a lien by a health maintenance organization on a claim by one of its subscribers against a third party for bodily injuries. The HMO had paid approximately $10,000 in medical expense benefits on behalf of the subscriber and sought recovery of that entire amount from the proceeds of the settlement against the tortfeasor. The lien statute, G.L.c. 111 §§ 70A-70D provided for recoupment of the entire amount recovered in any settlement by the subscriber against a third party with no provision for a sharing of the attorney's fees and costs. The SJC reversed a decision by a superior court judge requiring the HMO to pay its proportionate share of attorney's fees and costs. The SJC indicated that while this result appeared inequitable, it was not empowered to rewrite legislation which made no provision for payment by the lienholder of costs and fees associated with the recovery. Zeroulias v. Hamilton American Legion Associates, Inc., 46 Mass. App. Ct. 912. The Appeals Court reluctantly answered questions reported by a trial judge as to the applicability of G.L.c. 231 § 85T to cases involving claims of wrongful death. G.L.c. 231 § 85T says in essence that a plaintiff seeking recovery for injuries sustained as a result of the voluntary consumption of excessive amounts of alcoholic beverages must show that the provider of those beverages acted not merely negligently, but in a willful, wanton and reckless manner. Here, the action was brought by the administratrix of the decedent's estate. The Court said that the legislature, in enacting statutes, frequently distinguishes between claims for personal injuries and those for death. It reasoned that G.L.c. 231 § 85T is written as applicable to personal injuries and is therefore, by inference, inapplicable to wrongful death actions. Thus, the plaintiff in this case need only prove that the provider of alcoholic beverages acted in a negligent fashion as opposed to a willful, wanton or reckless fashion. Also of interest are the remarks that the comparative negligence statute would not apply to a claim grounded upon an allegation of intentional or willful, wanton and reckless conduct. The Court reasoned that negligent conduct cannot also be intentional, willful, wanton or reckless. Thus, if there is a finding of intentional, willful, wanton or reckless conduct, the comparative negligence of the plaintiff, or plaintiff's decedent, has no effect. Santos v. Kim, 429 Mass.130 At issue was whether the physician who served as director of a medical laboratory had a relationship with the plaintiff sufficient to apply the medical malpractice statute G.L. c. 231 § 60B. The court said that the applicability of the statute, and potential liability was not dependent on the existence of a physician-patient relationship, but whether the defendant had been a provider of health care. The SJC found that the liability of a senior employee in an institutional environment for an error by an unidentifiable underling, or third party, is a question of fact often dependant on the extent of that employee's involvement in policy creation and protocols. There can be institutional liability without identification of the negligent agent, and in the absence of fault of supervisors. Shine v. Vega, 429 Mass. 456. In this action for medical malpractice, the estate of the deceased who expired some two years after the procedure at issue sought recovery after against an emergency room doctor for intubating the decedent against her will. The plaintiff decedent was a severe asthmatic and the daughter of a physician. The plaintiff was quite knowledgeable concerning her condition. With her sister, she had sought treatment in the emergency room and the situation became somewhat argumentative. Her physician father, then in England, was consulted by telephone by the defendant physician. The decedent was running from the emergency room when the defendant physician ordered that she be restrained and separated from her sister. She was intubated, made a recovery and released the following day. The plaintiffs contend that the experience was so emotionally traumatic that it resulted in her death two years later as a consequence of an asthmatic attack. The decision was reversed on the basis of the judge's charge to the jury which in essence told them that there was no legal requirement for obtaining the consent of a person for medical treatment in a life threatening emergency. The Court said that the jury should have been told to weigh the extent to which the doctor had sought the decedent's consent for the procedure. The burden of establishing a privilege resided with the defendant. At retrial, the extent to which the notes composed by the decedent following the subject incident, and prior to her death, would be admissible under the declarations of deceased's persons exception to the hearsay rule was addressed. The defendant wanted to exclude them on the basis that they were prepared in anticipation of litigation and therefore not in good faith. The SJC brushed aside the trial judge's concern that the notes were not specifically dated, and said that notes composed in anticipation of a meeting with counsel did not inherently render them to have been composed in bad faith. The notes would be admissible on retrial. Lumbermens Mutual Casualty Company v. Y.C.N. Transportation Company, 46 Mass. App. Ct. 209 This was a declaratory judgment action initiated by an insurer which in turn resulted in a counterclaim for costs of defense and alleged bad faith. The defendant insured was the operator of a bus company and one of its employees allegedly committed a sexual assault and molestation of a child passenger. The filing of the action predated the decision of Roe v. Lawn, 418 Mass. 66 (1994). The issue is whether Lumbermens as the insurer of the transportation company was obligated to defend and indemnify the transportation company with respect to an underlying claim of sexual assault by an employee. Specifically, the issue was whether the cause of action arose out of the "ownership maintenance, or use of the motor vehicle." The Roe decision interpreting a similar policy reached the conclusion that there was coverage. However, the incident giving rise to the underlying dispute and Lumbermens decision not to afford coverage and defense predated the Roe decision. The court decided that the precedent established in Roe should be applied retroactively. Lumbermens contended that it should not be responsible for the payment for the cost of defense which predated the decision in Roe. It had voluntarily made payment of the cost of the defense after the Roe decision. The Appeals Court concluded that the partial payment constituted a waiver of the statute of limitations defense. Finally, the Court said that there was no basis for a finding of bad faith on the part of Lumbermens as its decision to deny coverage was based on a "plausible, reasoned legal position." | |
