This was an action brought by Hanover against several defendants, at least one of whom had been an executive with the plaintiff. Essentially the plaintiff claimed that the defendants had diverted a corporate opportunity by establishing a competing business using secret information of the plaintiff, and in breach of fiduciary duty as executives of the plaintiff. The plaintiff complained about an accelerated trial date and a limitation on discovery. These are matters within the sound discretion of the trial judge and will not be disturbed absent abuse. With respect to the jury instructions, the Appeals Court said that the trial judge is not required to include every correct statement of law in the jury instructions. Instructions pass muster if they are correct and touch upon the fundamental elements of a claim. The standard for a motion for judgment NOV is the same as that for a directed verdict. Rarely can it be ruled as a matter of law that the party with the burden of proof is entitled to a directed verdict. An executive with a corporation has a fiduciary duty to put the interests of the corporation with respect to business opportunities ahead of his or her own interests. The jury found the former employee had not diverted a corporate opportunity. However, the Appeals Court sustained the allowance of the motion for judgment NOV by the employer on the basis that there was sufficient evidence that the employee was aware of the opportunity and failed to disclose it to his principal, rather diverting it to his own benefit. The measure of damages for such an infraction is the profit which the employee who diverted the corporate opportunity obtained as a consequence of his misfeasance.

The trial court's finding of a violation of G.L.c. 93A, although nominal, supported the award of attorney's fees. Merely because an employer is precluded from suing its employee pursuant to that statute, the employer is not barred from recovery pursuant to G.L.c. 93A against the entity for whom the employee had diverted the corporate opportunity. With respect to the award of attorney's fees, the Appeals Court indicated that the trial judge is in the best position to evaluate the work of the attorneys. However, the depth of the effort and expense must bear a reasonable relationship to what is at stake.

Sonesta International Hotels Corporation v. Central Florida Investments, Inc., 47 Mass. App. Ct. 154.

The plaintiff, a Massachusetts-based hospitality corporation was operating a hotel in Florida for a concern which experienced financial troubles and became bankrupt. The defendant took over the owner's position and contracted with Sonesta to use certain of its services such as reservations, purchasing as well as its trade logo. However, the defendant neglected to pay Sonesta for these items pursuant to their agreement. The action was commenced in the courts of Massachusetts pursuant to G.L.c. 93 § 11 (the business to business consumer protection section) and for breach of contract. The Court determined that while the defendant had breached the contract and in doing so violated the criteria for an award under c. 93A, that the activity of the defendant, that is the underlying transactions, had not occurred primarily and substantially in Massachusetts. The Appeals Court agreed with the trial court in finding that there could be no recovery pursuant to c. 93A for that reason.

However, satisfaction of the long arm personal jurisdiction statute was not so demanding. There were a number of contacts initiated by the defendant to the plaintiff's place of business in Massachusetts which were sufficient for a finding that the defendant had transacted business in Massachusetts and therefore was amenable to personal jurisdiction and the trial court's finding of breach of contract.

Hicks v. Brox Industries, Inc., 47 Mass. App. Ct. 103.

The case involved a catastrophic injury suffered by a motorist on Route 495 when a trailer detached from a neighboring vehicle and struck her automobile. The defendant Brox had contracted with the Commonwealth of Massachusetts to repave a portion of Route 495. The plaintiffs offered an expert who contended that a discrepancy in the height of the pavement during the repaving process had compromised the hitch to the trailer with the resulting accident. However, the expert's testimony as between affidavits and a deposition was inconsistent. The Appeals Court found that the trial judge had correctly allowed the motion of the paving company for summary judgment even after accepting yet another affidavit from the plaintiff's expert which was consistent with his prior pronouncements regarding the location of the alleged defect and the resultant accident. The plaintiff did not demonstrate a reasonable expectation of being able to establish that it was more likely than not that the defendant's actions had caused the accident.

Kahn v. Royal Insurance Company, 429 Mass. 572.

This was a claim for underinsurance motorist benefits as a consequence of a Massachusetts motor vehicle accident. At issue was whether the statute of limitations on such actions, namely that applying to a contract of the State of Florida or that of the Commonwealth of Massachusetts should be applied. If the Florida statute was applied, that is five years, the claim would be barred. Thus, the matter involved a conflict of laws. Traditionally, Massachusetts deemed the statute of limitations to be procedural in nature and would apply the law of the forum. More recently, it had turned to a balancing of interests test to determine which state law was applicable to the situation. Here, the motor vehicle was registered in Florida, the claimant was the vice president of a company based in Florida, the insurance was procured and issued in Florida and the premiums were paid in Florida. The Court felt that the law of Florida, specifically the statute of limitations, should be applied because the most significant contacts between the dispute existed with Florida as opposed to Massachusetts and events transpiring therein. Therefore, the accident was barred by the Florida statute of limitations.

Zhang v. Massachusetts Institute of Technology, 46 Mass. App. Ct. 597.

This was an action brought by a woman who accepted a position in research at MIT as well as a consortium claim brought by her husband. The discrimination alleged was that of race and handicap. There was also a count for misrepresentation. The evidence was equivocal with respect to whether the position was temporary or permanent. The termination of her employment, allegedly attributable to a lack of grant funds, occurred during her pregnancy. Her replacement, also a female, was brought in under one title but eventually was placed in the plaintiff's position.

The Appeals Court found that the trial court had erred in granting summary judgment to the defendant as to the sexual discrimination claim. It found that summary judgment was properly granted with regard to the racial discrimination count on the basis that one isolated, or ambiguous remark, would not support a finding of discriminatory intent. It found that the plaintiff's evidence established a prima facie case of discrimination on account of her pregnancy and presented questions of fact as to whether her alleged poor work performance and dwindling funding were in fact pretexts for her termination. It remarked that summary judgment is disfavored in disputes involving an individual's state of mind, motive or intent.

With respect to the misrepresentation, it is the law that statements of present intention as to future conduct may be the basis for an action in fraud if the statements misrepresent the actual intention of the speaker, and were relied upon by the recipient to his or her detriment. Here, the Court found that the individual who interviewed and offered the plaintiff a position, at that point in time did not intend to deceive her. Absent some evidence from which a reasonable inference of an intent to deceive at the pertinent time, summary judgment was appropriate. Finally, with respect to the ancillary claim for lost consortium, the Court left undecided the issue of whether a consortium claim can be brought in conjunction with a statutory claim for discrimination. Here, it was neither alleged nor any evidence offered for the proposition that the primary plaintiff suffered bodily injury which was a condition precedent to recovery for loss of consortium.

Patsos v. First Albany Corporation, 48 Mass. App. Ct. 266.

The plaintiff, having little knowledge of securities transactions, entrusted a large sum to his broker. He disclosed his lack of sophistication to the broker and requested that the latter take charge of his investments. The broker embezzled funds. The employer of the renegade broker denied the theft and set up the statute of limitations as a defense. The court found that the relationship between the customer and the broker was a fiduciary relationship. An agent who commits fraud in the scope of his employment binds his employer as well. Whether the running of the statute of limitations should tolled because of a lack of knowledge on the part of the plaintiff with respect to the loss is a factual issue which must be determined by a jury.

Santos v. Chrysler Corporation, 430 Mass. 198.

This is an appeal from a substantial award against a motor vehicle manufacturer as a consequence of the deaths of the family of the operator of the subject vehicle. The SJC found that the trial court's inclusion of the testimony of six other owners of the subject minivan to show substantially similar incidents for the purpose of proving the defendant was on notice of a defect and to corroborate the existence of the alleged defect was permissible. The Court did not err in excluding an expert offered by the defendant who planned to draw conclusions from statistical evidence which the Court deemed to be speculative. It's decision to admit evidence of recalls of the products by the defendant manufacturer for the purpose of showing that the manufacturer was on notice of the defect was affirmed. The decision of the trial court to permit the plaintiff's expert's opinions regarding defects in brake design which caused the premature rear wheel lock-up was relevant on the issue of whether the product was unreasonably dangerous. The trial court's decision to permit the testimony of a former employee of the defendant manufacturer regarding his knowledge of the potential dangers posed in the design of a brake system was properly admitted, even though this individual had left the employ of the defendant prior to the development of the subject vehicle.

While plaintiff counsel's closing argument for the most part was supported by the evidence, and the fair inferences drawn from the same, his reference to personal life experiences and observations as to the truthfulness of certain witnesses' testimony was improper, but was cured by the judge's instructions.

In an action by the sole beneficiary of the estates of decedents for breach of warranty of merchantability and wrongful death, any comparative negligence on the part of the beneficiary was not relevant to the breach of warranty claim. As to the negligence portion of the claim, the comparative negligence of a sole beneficiary would diminish, but not bar recovery. It was the intent of the legislature in enacting the wrongful death statute that it would apply to the negligence of the decedents as well as negligent beneficiaries.

Finally, with regard to the crossclaim between the motor vehicle distributor and Chrysler, a finding by the trial judge that the distributor was entitled to common law indemnification resulted in the recovery by the distributor of attorney's fees, costs for trial and for an appeal. Common law indemnity allows someone who, without fault, is compelled to defend himself against the wrongful act of another and to recover from the wrongdoer the entire amount of his loss, including attorney's fees.

Proctor v. North Shore Community Arts Foundation, 47 Mass. App. Ct. 372.

The plaintiff, a concert patron, was struck and injured by a flying umbrella in the picnic area during a sudden squall. An action was brought against a charitable corporation which operated the theatre and the alleged manufacturer and distributor of the umbrella. On the eve of trial, the plaintiff moved to add additional defendants, the purveyors of food and beverage, one of which was a wholly-owned subsidiary of the charitable organization. The subsidiary, however, was a for-profit concern. The jury returned a sizeable verdict, but in answering special verdict questions responded negatively to that pertaining to proximate cause. The trial judge, recognizing the inconsistency of the verdict, instructed the jury that they should re-deliberate and either award no damages or make a finding of proximate cause. The jury returned, answering the proximate cause question in the affirmative. They also found the plaintiff 50 percent at fault. The recovery was further reduced pursuant to the charitable immunity cap, G.L.c. 231 § 85K. The decision of the trial court to deny the motions for a new trial against the alleged manufacturer and distributor of the umbrella was reversed. The Appeals Court found merit in the plaintiff's argument that the defendant's abuse of the discovery process had hindered the presentation of the plaintiff's case. It found that the trial judge's denial of the motion for an additur was proper. It also found that the trial court's allowance of the charitable corporation's motion for summary judgment was proper inasmuch as the maintenance of the picnic area at no additional cost to the patrons for the sale of refreshments by a third party was incidental to that defendant's primary, charitable activities. The denial of the charitable corporation's motion for judgment NOV based upon the inconsistent responses to the special verdict questions was proper given the judge's reinstruction to the jury and further deliberations resulting in a consistent verdict. The trial court's denial of the plaintiff's motion to add the for-profit concession concern as a new defendant on the eve of trial was erroneous. Massachusetts has a long-established policy of liberal allowance of amendments to add or substitute parties after the statute of limitations has expired. Only when the amendment seeks to add a new defendant on a new theory of liability should such a motion be denied. Here, because of the allegations of impropriety during the discovery process, the trial court erred in failing to permit the plaintiffs to add the additional defendant prior to trial. Finally, the plaintiff's motion for judgment NOV was properly denied on the issue of comparative negligence inasmuch as she was in as good a position to appreciate the oncoming squall and to seek cover.

Tarpey v. Crescent Ridge Dairy, Inc., 47 Mass. App. Ct. 380.

Essentially, this was a product liability action against the producer of dairy products, specifically milk which contained excessive amounts of Vitamin D. The plaintiff's decedent purportedly suffered from elevated levels of Vitamin D in her bloodstream which required medication which in turn allegedly compromised her immune system, leading to her death. The plaintiff's appealed with respect to the admission of testimony by the defendant's medical/scientific expert. The expert had relied upon scientific findings performed in a California laboratory. Neither the principal nor any of the employee's of the lab testified as to their findings. There was also an issue as to whether their methodology was accepted by a substantial portion of the scientific community. The admission of the defendant's expert's testimony was affirmed without the admission of the tests upon which his opinion rested. The Appeals Court remarked that even if the testing methodology had not been accepted by a significant portion of the scientific community, it could be so logically reliable that its general acceptance may be unnecessary. The Appeals Court also pushed aside the plaintiff's contention that there were inconsistent answers in response to the special verdict questions. It pointed out that the plaintiff's had failed to raise the issue in a timely fashion before the jury was dismissed. Moreover, it found that the trial judge's instruction meshed with the verdict slip so that there was no inconsistency. It also reaffirmed the proposition that if there are inconsistent responses to special verdict questions, the dispositive answer is controlling.

With regard to the 93A claims, the Court indicated that the demand letter in a consumer claim need not be sent prior to litigation but instead could be sent during litigation, and become effective upon the allowance of a motion to permit the plaintiff to amend the complaint to include a 93A count. Here, the trial court on the 93A count award specifically denominated compensatory damages which were greater than those awarded by the jury. This is permissible. However, the award of attorney's fees in conjunction with the 93A claim was reversed as no recovery for attorney's fees could be had prior to the amendment of the complaint to include the 93A count, and inasmuch as there was a sizeable and reasonable offer made, no attorney's fees could be recovered after receipt of the same. The defendants, by motion pursuant to Rule 67, sought to deposit $200,000 with the Court to avoid the accrual of statutory interest. The motion was properly denied according to the Appeals Court because the defendants continued to contest liability.

Hanson v. Venditelli, 47 Mass. App. Ct. 413.

This decision arose out of a motor vehicle claim against two Rhode Island residents, the owner and operator of one of the two vehicles involved in the accident. The plaintiff brought suit and sought to make service of process pursuant to G.L.c. 90 § 3C. This statute provides alternative methods for obtaining service on a foreign resident in a motor vehicle case. In both methods, service is made upon the Registrar of Motor Vehicles in Massachusetts. The plaintiff then has the option of making service by registered mail or retaining a qualified process server to make service in the foreign jurisdiction. If registered mail is used, there must be an affidavit filed with the defendant's return receipt or other actual proof of notice. If a sheriff is used, then the officer's return must be filed with the curt. Here, the plaintiff's attorney served process on the Registrar of Motor Vehicles in Massachusetts but neglected to mail a copy of the notice to the defendants by registered mail or to retain a process server in Rhode Island to effect service.

The Appeals Court found non-compliance with the statute, and that the defendants motion to dismiss for failure to make proper service should have been allowed in the trial court. The fact that plaintiff's counsel sent two communications to the defendant's insurance company did not constitute proper notice to the defendant. The trial court had no discretion to expand the time to make proper service and the case was dismissed.

TLT Construction Corp. v. A. Anthony Tappe and Associates, Inc., 48 Mass. App. Ct. 1.

This suit arose from claims by a contractor against a municipality and the project architect with respect to the construction of a public library. The project was plagued by delays allegedly attributable to changes in the architectural plans, and for an overblown punch list requiring an expenditure for administrative costs. Pursuant to its contract with a municipality, the contractor arbitrated its claims and recovered approximately half of the alleged damages. Thereafter, in the instant action, the contractor sued the architect for delays attributable to its conduct, and for an unfavorable post-construction evaluation submitted to the Massachusetts Division of Capital Planning and Operations per the public bidding statute. After an extensive discussion of the elements of issue and claim preclusion, the Appeals Court found that portion of the lawsuit against the architect for delay damages and administrative costs was barred by the doctrine of issue preclusion. It specifically found that the architect and the municipality were, if not identical, at least in privy with each other; that the causes of action were essentially identical; and that there had been a final judgment rendered in the context of the arbitration award which would bar subsequent proceedings, including the claim against the architect.

With respect to the post-construction evaluation claim against the architect, its attorney had submitted as part of his motion for summary judgment his own affidavit. This document contained inadmissible hearsay. The contractor filed a motion to strike the affidavit which the Appeals Court concluded was improperly denied. The thrust of the motion for summary judgment with respect to the evaluation claim was that the contractor did not have a reasonable expectation of an ability to prove damages. Summary judgment had been improperly allowed. With regard to the 93A claims against the architect, the Appeals Court decided that its rulings with respect to the delay damage claim and to the evaluation document claim would apply to the 93A claims, one being subject to summary judgment and the other requiring further proceedings.

Bresnahan v. McAuliffe, 47 Mass. App. Ct. 278.

The plaintiffs, parents of a stillborn child, brought an action against the defendant funeral parlor for both negligent and reckless infliction of emotional distress. The plaintiffs alleged that because of the manner in which the funeral parlor handled their child's body, certain religious and personal rites which they had planned were precluded. Initially, they resisted discovery of psychotherapy records and gave an incorrect address for the repository of the same. The trial court, in response to a motion by the defendant, precluded the defendants from offering any evidence of psychological treatment as a consequence of their resistance to the discovery. The Appeals Court said the order was incorrect as there is a difference between opposing discovery, and refusing a court order to provide discovery responses. The plaintiffs had not failed to comply with a discovery order. Summary judgment had been entered in favor of the defendants because the plaintiffs had no reasonable expectation of being able to prove either physical or emotional harm.

The abandonment of the requirement of physical harm for recovery of negligently inflicted emotional distress was discussed. While the requirement of physical harm no longer exists, there must be objective corroboration of the emotional distress. Here, the psychotherapist who treated the plaintiffs attested to manifestations of both physical and emotional symptoms supportive of the emotional distress claim. The matter was remanded to the superior court for further proceedings.

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.

Columbia Chiropractic Group, Inc. v. Trust Insurance Company, 430 Mass. 60.

This action was brought by a chiropractic group pursuant to G.L.c. 93A against Trust for its refusal to pay medical expenses incurred in the treatment of insureds following motor vehicle accidents. Trust counterclaimed, also under 93A, alleging that the medical expenses were neither reasonable nor necessary, and were incurred solely for the purpose of surmounting the tort threshold created by G.L.c. 231 § 6D. The jury rendered an advisory verdict with respect to the 93A claims, finding that the bills were neither reasonable nor necessary, and that Trust should not have to honor the same. Based upon that, the Court reached a similar conclusion and awarded double costs and fees against the chiropractic group. On appeal, the chiropractic group asserted that the matter should not have been adjudicated in the superior court, but rather by the doctrine of primary jurisdiction, it was regulatory in nature and should have been resolved before the Board of Registration of Chiropractors. The SJC dismissed this argument inasmuch as said agency had no authority to adjudicate 93A litigation and that the reasonableness and necessity of medical bills was appropriately decided by a judge or jury. The advisory jury found that Trust had incurred no damages but the judge was free to ignore that conclusion and to award Trust its litigation expenses. The incurrence of attorneys fees' and litigation costs constitute a loss of money or property and are recoverable as 93A damages. With respect to the chiropractic group's assertion that Trust should only recover fees and costs incurred in the prosecution of the 93A claim, and not fees and costs incurred in the defense of the chiropractic group's claim, the SJC found that the disputes involved the same facts and there was no need to apportion counsel fees.