- Litigation
- Surety-Fidelity/Security Bond
- Environmental
- Corporate
- Municipal
- Intellectual Property
- Trusts & Estates
- Real Estate
- Education Law
- Environmental
- Employment
- Internet Law
- Appellate Tax Report
- Litigation Newsletter
- Firm News and Information
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. 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." 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. 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 plaintiff 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. DeLuca v. Cleary, 47 Mass. App. Ct. 50. This was a claim brought on behalf of a minor plaintiff for injuries sustained in a motor vehicle accident. The operator of the vehicle, a 16-year-old with a learner's permit, had been left alone at her home for a couple of days while her parents were on a vacation. Without express or implied authority, she took her mother's car and became involved in the accident resulting in the injuries to the plaintiff. Suit was brought on theories of negligent supervision, negligent entrustment and vicarious liability. However, there was no evidence of any prior propensity of the child to drive the automobile without permission or to act irresponsibly with respect to its use. The Court discussed the scope of any liability on the part of a motor vehicle owner for failing to secure the same with resultant injuries to a third party. Here, the child was obviously not acting as the agent of the parent at the time of the negligent operation so that liability could not be properly imposed pursuant to G.L.c. 231 § 85A. The Appeals Court refused to impose liability on the part of the parents for failing to secure the car keys in a more vigilant fashion. It said to do otherwise would be to hold the parents liable for the torts of their children by virtue of their parenthood. 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. Medeiros v. Middlesex Insurance Company, 48 Mass. App. Ct. 51. The plaintiff resided with her boyfriend. In addition to her own motor vehicle policy, she was named as an additional insured on her boyfriend's policy issued by the defendant. An insurance agent, representing the defendant, told the plaintiff that in order to be properly insured while frequently driving her boyfriend's automobile, she should be named as an additional operator. In 1987, she was involved in a motor vehicle accident and sustained serious injuries. She obtained $25,000 from the tortfeasor's insurer and an additional $10,000 pursuant to her own motor vehicle underinsurance coverage. Thereafter, she sought additional underinsurance coverage with regard to her boyfriend's policy issued by the defendant. Coverage was denied on the basis that she was not a "household member," not being "related by blood or marriage" to the policyholder. Suit was brought against the agent and the insurance company. As to the insurance company, recovery was sought for declaratory judgment, vicarious liability for negligent misrepresentation and breach of a contract to insure. Prior to the trial of the case, the plaintiff moved, with the assent of the defendant agent, to the dismissal of all claims against the agent. The insurer did not participate, either in favor or against the motion. Following trial, a jury returned a verdict in favor of the plaintiff, both on the theory of vicarious liability and tort for the negligent misrepresentation of the agent and also for breach of contract. The defendant insurer sought judgment NOV on the basis that the dismissal of the claim against the agent with prejudice absolved the principal, that is the insurance company, of vicarious liability, both in tort and in contract. The Appeals Court found that the defendant's argument had merit with regard to the tort claim as the dismissal of a suit against the agent also, by operation of law, dismisses the action against the principal where liability is entirely vicarious. However, with regard to the contract claim, the result was different. In contract, liability is effectively consentual and the principal is the obligor to the undertaking. Thus, the contractual claim against the insurer was upheld notwithstanding the dismissal of the action as to the agent. Green's Case, 46 Mass. App. Ct. 910. The injured worker recovered a substantial sum as a consequence of a site accident by an action against third party contractor and subcontractor. The new employee had also filed a claim for worker's compensation benefits and received the same. More than four years after the accident, the worker brought a claim against the employer pursuant to G.L.c. 152 § 28 for double compensation. The employer and its insurer argued that the four-year statute of limitations in § 41 barred recovery. However, the Court pointed to § 41 and specifically to the language that says that any payment of benefits pursuant to the Worker's Compensation Act tolls the statute of limitations with respect to other claims. Sylva's Case, 46 Mass. App. Ct. 679. The finding of an administrative law judge, in part based on the report of an impartial examining physician, warranted the finding that the plaintiff was only partially disabled and capable of some work, although not in the same position. The fact that the employee was "on call" as a union welder, although not actively working, supported the conclusion that he had concurrent employment and should receive worker's compensation based on the average weekly wages from both positions. Bradley's Case, 46 Mass. App. Ct. 651. The vacation pay of an employee who is receiving partial incapacity benefits is to be treated as wages and not a "fringe benefit" for purposes of calculation of the amount of compensation benefits due the claimant. Letteney's (dependent's) Case, 429 Mass. 280 The deceased employee was exposed to asbestos during the 1950's. He worked for other employers and became self-employed in Florida prior to his death in 1992. The Court ruled that, for purposes of attempting to establish average weekly wages, compensation as a consequence of being self-employed or earning compensation out of state, with some statutory exceptions, would not be used for such calculation. Instead, his compensation was to be measured by the average weekly wage which he last earned while employed in Massachusetts. Lorden's Case, 48 Mass. App. Ct. 274. Here, the administrative law judge rejected a report from an impartial medical examiner and refused to allow either party to submit additional medical evidence. The Appeals Court reemphasized that medical evidence is desirable and germane to a worker's compensation claim. Without medical expertise, the findings and rulings of the administrative law judge were not properly made. The matter was reversed and remanded. Canavan's Case, 48 Mass. App. Ct. 297. The plaintiff employee worked as a registered nurse at a self-insured hospital. She alleged that as a consequence of her work in the surgical area, she was exposed to a variety of chemicals which caused her to suffer from a condition entitled "multiple chemical sensitivity" and disabled her from work. The defendant declined to credit the plaintiff's alleged medical condition and refused to pay the expenses associated with the treatment of the same. The admissibility of the testimony and written reports of the plaintiff's medical expert was the focus of the case. In addition to being a pediatrician, the plaintiff's physician was certified in environmental medicine by the American Board of Environmental Physicians, an entity not recognized by the American Board of Medical Specialties. The Court analyzed the admissibility of the testimony of the plaintiff's expert in the context of the criteria set forth in Commonwealth v. Lanigan, 419 Mass. 15 (1994). It found that the criteria for the admissibility of expert testimony, namely that a foundation must be established by showing the underlying scientific theory is generally accepted within the relevant scientific community or showing that the theory is reliable or valid by other means, is not the exclusive criteria for the admission of expert testimony in Massachusetts. It has long been the law that a treating physician may testify as to a patient's bodily condition and ailments as well as the extent to which those ailments affect a patient. The weight to be given to such expert testimony is a matter for the finder of fact. Here, while some of the credentials and conclusions of the claimant's physician were not embraced by the traditional medical community, that did not render them inadmissible. Niles-Robinson v. Brigham and Women's Hospital, Inc., 47 Mass. App. Ct. 203. The plaintiff was an employee of the defendant hospital. The claim was for mental and physical injuries primarily due to multiple chemical sensitivity as a consequence of faulty ventilation at the hospital. She was also a recipient of worker's compensation benefits. Thereafter, she brought a tort claim against the hospital on the basis that her condition, multiple chemical sensitivity, was not a "personal injury" and therefore it stood outside the scope of the worker's compensation claim. The Court said that she could not have it both ways. She was foreclosed from bringing a liability suit by operation of G.L.c. 152 § 23. The plaintiff was bound by the doctrine of judicial estoppel where a party, having made a judicial declaration, may not in a subsequent proceeding contradict that assertion. Armstrong's Case, 47 Mass. App. Ct. 693. The Appeals Court affirmed a finding by the reviewing board of the D.I.A. to the effect that the insurer, Aetna, had not complied with the notice requirements of G.L.c. 152 § 65B to cancel a worker's compensation insurance policy and that Aetna, rather than the Worker's Compensation Trust Fund, should be responsible for compensating an injured employee. Here, there was a mix-up as to the address of the policyholder as well as a failure to make timely payment of the premium. Having sent the notice of cancellation to the incorrect address and receiving the notice back undelivered, Aetna did not make another attempt to effect cancellation even after it was in receipt of a proper address. | |
