THIS MONTH'S UPDATES:
I. SUMMARY JUDGMENT AWARDED BASED ON CHOICE-OF-LAW ARGUMENT ON STATUTE OF LIMITATIONS
II. DEFENSE VERDICT AWARDED IN CATASTROPHIC BUS ACCIDENT CASE
V. LANDOWNER LIABILITY: NO RIGHT TO CAUSE OF ACTION AGAINST DECEASED LANDOWNER
VII. NO AMBIGUITY IN INSURED LOCATION ON FIRE INSURANCE POLICY
VIII. WORKERS’ COMPENSATION: HOMEOWNER’S INSURER NOT LIABLE FOR BENEFITS TO INJURED ROOFER
X. MEDICAL MALPRACTICE: PHYSICIAN NOT LIABLE FOR FAILING TO PREVENT PATIENT’S SUICIDE
XI. NEGLIGENCE: INJURY BY VOLUNTEER FIREFIGHTER NOT PRECLUDED BY INJURED-ON-DUTY STATUTE
JANUARY 2008
RECENT LEGAL DEVELOPMENTS IN
MASSACHUSETTS, NEW HAMPSHIRE AND RHODE ISLAND
I. SUMMARY JUDGMENT AWARDED BASED ON CHOICE-OF-LAW ARGUMENT ON STATUTE OF LIMITATIONS
Tony Campo and Nick Kosiavelon of Boyle, Morrissey & Campo, P.C. (BMC) recently prevailed on a summary judgment motion in a case alleging a serious scaffolding accident using a legal argument not previously addressed by Massachusetts courts.
The plaintiff in Gonzalez v. DEC-TAM, et al, C.A. No. 06-02871, alleged that he fell from staging at an asbestos abatement project in Connecticut and seriously injured his back and neck. The plaintiff, a Massachusetts resident, filed suit alleging negligence in Massachusetts within the Connecticut two-year statute of limitations, but did not actually serve the defendants until after the two-year deadline.
While filing before the deadline is sufficient under the Massachusetts statute of limitations to preserve a claim, Connecticut requires actual service of a complaint on a defendant within two years. BMC argued that simply filing the complaint in Massachusetts within the Connecticut statute was insufficient to preserve the plaintiff’s claim. BMC applied several choice-of-law cases to argue that Connecticut had the greatest interest in applying its law in the case and that the Connecticut service requirement was an important part of Connecticut law. This argument had not been used previously in any reported case in Massachusetts. The Court agreed with BMC’s argument and dismissed the plaintiff’s claim for failure to comply with the Connecticut statute of limitations.
II. DEFENSE VERDICT AWARDED IN CATASTROPHIC BUS ACCIDENT CASE
BMC shareholders Tony Campo and Scott Carroll obtained a defense verdict in the recently publicized bus crash at Gillette Stadium. The trial, including jury deliberations, lasted approximately three weeks. The defendants, operator Rebecca Valentin, represented by Carroll, and Arrow Lines Bus, represented by Campo, were able to successfully rebut the plaintiff’s criticisms regarding the bus operation and alleged negligence.
The case arose from an August 29, 2003 accident in the Gillette Stadium parking lot, when a shuttle bus owned and operated by the defendants struck a security gate that had been left unsecured. The gate penetrated into the third row of passengers and caused numerous serious injuries. At trial the jury considered the case advanced by the Estate of Thomas Kelly, who underwent four surgeries in eight days and who ultimately passed away 25 days after the incident, while still hospitalized.
The jury heard testimony from approximately twenty percipient witnesses and heard competing expert testimony from the state police’s accident reconstructionist and the plaintiff’s paid consultant regarding the speed of the bus. The reliability of the opinion of the plaintiff’s expert was undermined on BMC’s cross-examination by the revelation that he changed his opinion regarding the speed of the bus 3½ years after the accident. There was extensive testimony from representatives of co-defendants Foxboro Realty Associates, Standard Parking, and Apollo Security with regard to the operation of the facility, the gate-opening protocol, gate design and the responsibility of the various entities with respect to securing the gate in an open position.
Plaintiff’s counsel made a demand of $10 million which he maintained throughout the course of the trial. At the conclusion of the case, the jury rendered a verdict of approximately $6.1 million with interest to Kelly’s widow and two sons. The jury found three of the five defendants negligent but returned a verdict in favor of Rebecca Valentin and Arrow Lines Bus.
MASSACHUSETTS
III. AUTO INSURANCE: INSURERS INSTRUCTED TO PROVIDE WRITTEN NOTICE OF THIRD-PARTY SETTLEMENTS TO CLAIMANTS
The Commissioner of Insurance has issued Bulletin 2007-15, calling on auto insurance companies to send written notification to claimants when a settlement payment of $5,000 or greater in any third-party liability claim is made to the claimants’ attorneys or representatives.
Pursuant to the Bulletin, insurers are obligated to send written notice where: (1) the claimant is a natural person; and (2) payment is delivered to the claimant’s attorney or representative. The notice must be sent at the time payment is made to the claimant’s last known address, and it must contain the following information:
- the amount of the check and the party to whom it was mailed;
- the address of the party to whom the check was mailed;
- if the payment was by draft or check, a copy of the draft or check;
- if the payment was by electronic transfer, the amount, date, and party to whom the transfer was made; and
- the statement, “If you have any questions about this notice, please contact your attorney.”
The Bulletin states that the requirements do not create any cause of action against an insurer for failure to provide notice. It is not clear from the Bulletin what penalty, if any, will be imposed on an insurer who fails to comply with the guidelines. According to the Commissioner, the new guidelines will help ensure that claimants receive their full settlements and will not be defrauded by their attorneys.
IV. RULES OF CIVIL PROCEDURE: SUPREME JUDICIAL COURT ANNOUNCES AMENDMENT TO R. 12 REGARDING AMOUNT OF DAMAGES
The Supreme Judicial Court has amended Mass. R. Civ. P. 12(b) with the addition of a new affirmative defense. Mass. R. Civ. P. 12(b)(10) states that a party may raise as a defense “improper amount of damages in Superior Court as set forth in G.L. c. 212, § 3, or in the District Court as set forth in G.L. c. 218, § 19.” The new rule will go into effect on March 1, 2008.
The rule change clarified a recent decision by the SJC in Sperounes v. Farese, 449 Mass. 800 (2007), where the court held that a district court may not refuse to dismiss an action where a party makes a timely objection and where there is no reasonable likelihood that the plaintiff’s recovery will not exceed $25,000. Under the new rule, a superior court is similarly empowered to dismiss an action when a party timely asserts the defense. Like the other defenses enumerated in Rule 12(b), a party must either affirmatively plead the defense or raise it in a motion, or else the defense is deemed waived.
V. LANDOWNER LIABILITY: NO RIGHT TO CAUSE OF ACTION AGAINST DECEASED LANDOWNER
In Sullivan v. Rich, 71 Mass. App. Ct. 16 (2007), the Appeals Court held that the estate of a deceased landowner may not be held liable for negligence for a dangerous condition on the decedent’s property, even though the condition had been known to the decedent, when the plaintiff’s accident did not occur until after the decedent’s death.
In 2000, Walter Rich purchased property in Attleboro, where he lived with his family. Near the garage of the property was a hole in the ground containing a buried 55-gallon drum. It was undisputed that Walter was aware of the hole and indeed had covered it with a piece of wood rather than fill it in. Walter died unexpectedly in February 2003, and his wife Kimberly was appointed administratrix of his estate. In July 2003, the plaintiff Brian Sullivan, who was a guest of Kimberly’s at a barbeque at the property, was injured when he fell into the hole. Sullivan conceded that Kimberly had no knowledge of the hole but contended that Walter’s estate was solely liable because Walter was negligent prior to his death in failing to repair the hole or warn visitors of the condition.
The Appeals Court concluded that Walter’s estate could not be liable, because Sullivan’s cause of action did not accrue until the time of his injury, four months after Walter’s death. Massachusetts common law provides that the death of a tortfeasor eliminates all causes of action against him. This rule is modified by statutory exceptions for actions pending at the time of death (G.L. c. 228, § 1) or actions which could have been brought prior to the death (G.L. c. 230, § 1). The court held that neither of these exceptions applied in this case.
VI. LANDOWNER LIABILITY: OWNER OF PICK-YOUR-OWN TREE FARM MUST POST WARNING TO RECEIVE STATUTORY PROTECTION
In MacFadyen v. Maki, 70 Mass. App. Ct. 618 (2007), the Appeals Court held that the owner of a pick-your-own Christmas tree farm was not entitled to protection under G.L. c. 128, § 2E, because the statute contained a mandatory requirement of posting notice with which the owner did not comply.
The plaintiff, Ellen MacFadyen, was injured when she tripped over a snow-covered tree stump while selecting a Christmas tree at the Star of the East Christmas Tree Farm, owned by the defendant. The defendant pleaded as an affirmative defense G.L. c. 128, § 2E, which provides that owners of “pick-your-own” farms, including Christmas tree-cutting farms, are not liable for injuries in the absence of willful, wanton or reckless conduct. Though the statute provided that the owner “of said farm shall post and maintain signs” which contain a specific warning notice, it was undisputed that the defendant had not posted such signs.
The Appeals Court concluded that the statutory sign-posting requirement was mandatory, based on the legislature’s use of the term “shall.” Accordingly, where the defendant had failed to comply with the statutory requirement, he was not entitled to the protections afforded by the statute as an affirmative defense.
VII. WORKERS’ COMPENSATION: DATE OF INJURY FOR PURPOSES OF COST OF LIVING ALLOWANCE
In John M. Camara’s Case, 71 Mass. App. Ct. 8 (2007), the Appeals Court held that, where an employee is receiving workers’ compensation benefits for the recurrence of an injury after returning to work, the “date of injury” for purposes of calculating the cost of living adjustment is the date of the subsequent injury.
John M. Camara was employed as a Mass Highway worker when he injured his lower back in October 1987. He was paid temporary and total incapacity benefits of $258 per week, based on an average weekly wage of approximately $400 per week until January 1992, when he returned to work. Camara worked for four months at an average weekly wage of $500 per week, then missed work from May 1992 to November 1992 for lower back pain, during which time he received total incapacity benefits of $325 per week based on the higher weekly wage. Camara returned to work, but in February 1994 he stopped work because his back pain was too great, receiving partial incapacity benefits of $239 per week based on the higher weekly wage. In 1999, Camara filed a claim for permanent and total incapacity benefits of $325 per week.
Pursuant to G.L. c. 152, § 34B, Camara was entitled to, and received, an annual adjustment of his benefits to reflect increases in the cost of living. The DIA based these increases on a starting point of February 1994, the date of the subsequent injury, rather than October 1987, the initial date of injury. The Appeals Court agreed that the date of the subsequent injury was the proper date to use, concluding that the legislative purpose was to “preserve, rather than augment, the purchasing power of the benefits initially established.
NEW HAMPSHIRE
VIII. WORKERS’ COMPENSATION: HOMEOWNER’S INSURER NOT LIABLE FOR BENEFITS TO INJURED ROOFER
In Appeal of Harleysville Ins. Co. (New Hampshire Compensation Appeals Board), 2007 WL 4291969 (N.H.), the New Hampshire Supreme Court held that a homeowners’ insurer was not liable for workers’ compensation benefits owed to a roofer who was injured while working for a subcontractor hired by the homeowner, because the homeowner was not a “contractor.”
In 2004, Jane Kelly purchased a home which she intended to renovate for use as her primary residence. In 2005, she hired a painting subcontractor, Al Case of Al’s Painting, to paint new windows she had purchased. She asked Case to recommend someone to replace her roof, and Case referred her to a roofing subcontractor who failed to complete the job. On Case’s recommendation, Kelly contacted a second roofer, Tom Beesley, who agreed to complete the job. While working on the roof, Beesley’s assistant, Harry Durgin, fell and was seriously injured. Beesley did not have workers’ compensation coverage.
After Durgin filed a notice of accident injury naming Beesley as his employer, a Department of Labor hearing officer found that Al’s Painting was acting as the “contractor” at Kelly’s home and was responsible for paying workers’ compensation benefits. At a de novo hearing, the Compensation Appeals Board disagreed, ruling that Kelly, not Al’s Painting, was acting as the “contractor” and that Kelly’s homeowners’ insurer was responsible for paying workers’ compensation benefits to Durgin.
On appeal, the New Hampshire Supreme Court interpreted the legislative intent of RSA 281-A:18, which imposes liability for workers’ compensation on a “contractor who subcontracts all or any part of a contract.” The court concluded that, under this statute, there must be at least two contracts: an initial contract between the homeowner and the contractor, and a second contract by which the contractor subcontracts some or all of the work. In this case, however, there was only one contract, between Kelly and Beesley. Accordingly, Kelly was not a “contractor” pursuant to the statute, and her homeowners’ insurer was not liable for workers’ compensation benefits to Durgin.
IX. AUTO INSURANCE: UIM INSURER ENTITLED TO SET-OFF IN THE AMOUNT OF LIABILITY SETTLEMENT OBTAINED FROM TORTFEASOR’S INSURER
In Barbuto v. Peerless Ins. Co., 2007 WL 4404174 (N.H.), the New Hampshire Supreme Court held that an auto insurer was entitled to reduce the underinsured motorist benefits payable to its insured by the amount the insured had already recovered from the tortfeasor’s liability insurer.
The plaintiff, Leah Barbuto, was driving an auto insured by Peerless with $100,000 liability and UIM limits when she was involved in an accident. The tortfeasor’s insurance policy had $50,000 liability limits, and Barbuto settled for those limits with Peerless’ consent. Barbuto then sought to recover from Peerless the full $100,000 of her underinsured motorist coverage. Peerless, however, claimed that it was entitled to a $50,000 set-off.
In the ensuing declaratory judgment action, the New Hampshire Supreme Court concluded that the uninsured motorists coverage provision of Barbuto’s policy was unambiguous, providing that “[t]he limit of liability shall be reduced by all sums paid because of ‘bodily injury’ by or on behalf of persons or organizations who may be legally liable.” The court concluded that this provision was consistent with the policy’s “Trust Agreement” provision, which states, “[w]hen we pay for a loss under this policy, we are entitled to the amount we paid from the proceeds of any settlement or judgment you recover from the responsible party.” The provision was also consistent with the “Payments Reduced” provision, which states, “[p]ayments will be reduced by any amount...so that the total amount due does not exceed the amount of damage.” In the absence of a conflict in the policy terms, Peerless was entitled to a set-off in the amount of the $50,000 which Barbuto received from the tortfeasor’s insurer.
X. MEDICAL MALPRACTICE: PHYSICIAN NOT LIABLE FOR FAILING TO PREVENT PATIENT’S SUICIDE
In Maloney v. Badman, 2007 WL 4440314 (N.H.), the New Hampshire Supreme Court held that a physician was entitled to summary judgment in a wrongful death claim by the estate of a patient who committed suicide, alleging that he negligently failed to prevent her death.
The defendant, Dr. Dennis Badman, treated the decedent, Helene Maloney, on an outpatient basis for Crohn’s disease during 1999 and 2001. Badman was aware that Maloney had treated with a psychiatrist for depression, but she never expressed any suicidal intentions to him. Badman issued prescriptions to Maloney for Valium, a drug which can worsen depression, as well as Percocet. In July 2001, two months after she last saw Badman, Maloney checked into a motel using an alias and intentionally overdosed on Percocet.
The trial court awarded summary judgment in favor of Badman against the plaintiff’s negligence claims on the grounds that he owed no duty to prevent her suicide. The plaintiff argued that Badman’s conduct fit within two exceptions to the general rule in New Hampshire that damages are not recoverable in negligence for the act of suicide, which is considered a “deliberate, intentional and intervening act.” The first exception applies in cases where a tortious act causes a mental condition which results in an uncontrollable impulse to commit suicide. The second exception applies in cases where a special relationship imposes a specific duty of care to prevent suicide, such as in institutions having actual physical custody and control of the decedent or persons specially trained to detect the potential for suicide and having sufficient control to prevent suicide. The court found, viewing the evidence in a light most favorable to the plaintiff, that neither of these exceptions applied, and that summary judgment was properly awarded.
RHODE ISLAND
XI. NEGLIGENCE: INJURY BY VOLUNTEER FIREFIGHTER NOT PRECLUDED BY INJURED-ON-DUTY STATUTE
In Angell v. Union Fire District of South Kingstown, 935 A.2d 943 (R.I., 2007), the Rhode Island Supreme Court held that a volunteer firefighter was not statutorily precluded from asserting a negligence action against the Fire District and his supervisor for injuries sustained in a training exercise, because he was not an “employee.”
In 2001, Dennis Angell was a volunteer member of the South Kingstown Fire District. During a training exercise, Angell was burned when he complied with his supervisor’s instruction to dump gasoline from a foam cup near a fire. Angell brought a negligence action against the Fire District and his supervisor. The defendants argued that Angell’s exclusive remedy was the “injured on duty statute,” G.L. 1956 § 45-19-1, and the trial court awarded summary judgment in favor of the defendants on this basis.
The Rhode Island Supreme Court held that summary judgment was improperly granted. The court interpreted the statutory language and ruled that it applies to a fire district “by which the...fire fighter...is employed.” The court considered the legislative intent and meaning behind the term “employed” and concluded that it did not pertain to volunteer firefighters, such as Angell.
EMPLOYMENT LAW UPDATE
XII. MASSACHUSETTS EMPLOYMENT LAW: NO REASONABLE ACCOMMODATION MADE FOR SEVENTH-DAY ADVENTIST’S REFUSAL TO WORK ON SABBATH
In Massachusetts Bay Transportation Authority v. Massachusetts Commission Against Discrimination, 450 Mass. 327 (2008), the Supreme Judicial Court held that the Massachusetts Bay Transportation Authority (MBTA) discriminated against a prospective employee when it failed to accommodate the prospective employee’s need to observe Sabbath from sundown on Fridays to sundown on Saturdays.
David Marquez was a practicing Seventh-Day Adventist who applied for a position as a bus driver with the MBTA. During the application process, he consistently represented that he would not be able to work on the Sabbath. Despite the fact that Marquez was fully qualified for the position, the MBTA did not offer Marquez a job due to his inabilities to work the important Friday-evening shift. Marquez responded by filing a complaint with the Massachusetts Commission Against Discrimination (MCAD), pursuant to G.L. c. 151B, § 4 (1A), arguing that the MBTA discriminated against him on the basis of his religion. The commissioner found that the MBTA did discriminate against Marquez by failing to make any effort to accommodate him and awarded Marquez $50,000 for his emotional distress and a position with the MBTA, if he wanted it. The decision was upheld by the full commission and later by the Superior Court.
The Supreme Judicial Court upheld the decision, in part, by finding that the MBTA failed to prove that any accommodations would result in an “undue hardship.” The MBTA argued that it could not accommodate Marquez due to a policy against shift-swapping between workers. This policy, however, was not official, and was loosely enforced. Furthermore, the court found that the MBTA failed to sufficiently investigate whether shift-swapping would be a feasible accommodation. Accordingly, the Supreme Judicial Court affirmed the judgment of the Superior Court. It should be noted that the Supreme Judicial Court suggested that it might be adopting the federal “de minimis” standard for proving undue hardship, which requires that the accommodation impose more than a “de minimis” burden on the employer to justify the employer’s decision.