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Injured construction workers likely know they are entitled to workers’ compensation benefits from their immediate employer. What they may not realize is the possibility to receive damages from a general contractor through a negligence suit. As discussed previously on this blog, workers’ compensation, created through statute, is available for employees to quickly receive needed funds for care and lost wages, and for employers to avoid the cost of suit and lost time.

Construction and renovation projects, however, often involve several different parties on site. One of those parties can cause an injury. Unlike workers’ compensation, which does not require negligence to be shown, a general contractor’s failed duty to the injured worker must be shown. Massachusetts case law has established that a general contractor can assume a duty of care for a sub-contractor’s safety if they retain control of her or his work. This must go further than the general right to inspect, make recommendations, or set schedules. Control, in this situation, must be the right to control the methods by which the work is performed.

In Yepes vs. C.H. Newton Builders, Inc. (15-P-375), the injured worker appealed a summary judgment entered in favor of the general contractor, where the judge discounted two affidavits submitted by co-workers, relaying the role of the general contractor on the job site. The injured worker was part of the subcontractor’s team who was helping to strip and refinish the wood work in a home. The worker fell off scaffolding and fractured his ankle. He filed suit against the contractor, claiming that the general contractor failed to keep the premises safe. As part of his suit, the injured worker included two affidavits submitted by coworkers, which relayed that the general contractor was in charge of the worksite and all the trades, giving instructions as to how the work should be performed.
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In a recent decision, Insurance Company of the State of Pennsylvania vs. Great Northern Ins. Co. (SJC-11897), the Massachusetts Supreme Judicial Court clarified what happens if there is more than one workers’ compensation insurance policy that covers a workplace injury. In this case, a Massachusetts employee was catastrophically injured in an automobile accident while working abroad on a business trip. The employer had purchased different workers’ compensation insurance plans from two different insurers. However, the employer chose to give notice of the accident to only one of the insurers, and it initially told the other insurer nothing of the accident. The first insurer eventually learned that there was a second insurer and sent a letter to the second insurer, giving notice about the claim and requesting contribution. The second insurer declined, pointing to the employer that advised them that only the first insurer was going to be used.

This case went through the federal court system for a time, which ultimately sent the question to the commonwealth’s appellate system, asking whether or not the employer can choose the insurer it wishes to use. The Supreme Judicial Court answered “no,” stating that the insurer paying for the loss has a right to equitable contribution from the co-insurer to make sure that they cover their share of the loss. The court felt that the employer cannot prevent the insurer covering the costs from seeking equitable contribution.

In its analysis, the court looked at case law that shapes the doctrine of equitable contribution. Over time, courts have determined that when multiple insurers provide coverage for the loss of an insured, any insurer that pays more than its fair share of the costs of the defense and indemnity can seek a proportionate contribution from the other co-insurers. This doctrine applies to insurers that share the same type of obligations on the same risk. Case law also states that the insurance companies do not have to have agreements with each other for this obligation to exist. The right to equitable contribution exists solely with the insurer, and it does not rely upon the insured.
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After a family member dies, the settlement of the estate often accompanies the natural process of grieving. It can be difficult to accept the choices the testator made during her or his lifetime and how those choices echo in their last will and testament. Sometimes, questions are raised as to whether or not those choices were actually made by the testator, and heirs may question the will in probate court. The law, however, created a high bar for those who choose to object. Massachusetts law states that a person is capable of creating a will if he or she is free from delusion, understands the purpose of the will, and understands the nature of his or her property.

In a Massachusetts appeals court case, In The Matter Of The Estate Of William E. Weaver (15-P-714), the appellate court declined to uphold the objections of the children to the will of their father. The plaintiffs protesting the testator’s will were children of his first marriage, and they alleged that his second wife and her daughter exerted an undue influence over their father’s will. In the affidavit submitted, the second wife was portrayed as an enabler of their father’s drug abuse and alcoholism. The second wife actually predeceased their father after they created reciprocal wills that left their estates to each other.

The father had a good relationship with the children of his first marriage, but he had difficulties with the daughter of the second wife. His relationship with the step-daughter deteriorated after her mother’s death, especially after he learned she had stolen money from him. The children alleged that their father told them he was aware of the contents of his will, but that his second wife and her daughter pressured him into leaving his estate to her daughter if she died before her. The children claimed the father expressed his desire to leave his estate to his children.
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In urban environments, many modes of transportation are used to get from one place to another. Roadways are often shared by pedestrians, different sizes of vehicles, and bicycles. However, pedestrians and cyclists are the ones who have the greatest risk of a catastrophic injury if they are struck by a distracted or generally careless driver. In the event of such an accident, it is important to have experienced counsel at your side so that all options of financial and legal relief are available to you.

In Basiony v. City of Boston (15-P-98), the Appeals Court of Massachusetts reviewed a jury verdict awarding damages to a bicyclist struck by a police officer going the wrong way down a one-way street. The collision caused a physical injury to the man and property damage to the bike. The city appealed the trial court’s refusal to grant a new trial, arguing that the judge should have granted its requests for evidentiary rulings made throughout the trial.

The city objected during trial to the testimony of the patrol supervisor who was working during the officer’s shift. The supervisor conducted an investigation of the accident and wrote a report of his findings. The judge did not allow the introduction of the report itself but allowed the supervisor to provide testimony, overruling the objections of the city. The city felt this was improper, but the trial court and the Appeals Court disagreed. The court did not find any error regarding the testimony and pointed to the long history of broad discretion granted to trial judges. The court felt the supervisor was an appropriate witness to the accident, since he arrived on the scene soon after it occurred. The court also felt it was reasonable for him to testify about police department rules that dictate when police cruisers are allowed to disregard traffic signs and signals in an emergency.
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The Massachusetts Appeals Court reviewed an appeal by an ex-husband to quiet title on a mortgage taken out by his ex-wife in 2002 for property that they co-owned. In Poulos vs. Financial Freedom (14-P-1287), the husband appealed, seeking to reverse a summary judgment issued in favor of the lending institution and the family trust created by his deceased ex-wife. The husband wanted the mortgage granted to the lending institution to be declared void because he felt that it encumbered his share of the property rather than just the 50% of the property originally held by the wife as part of their 1987 settlement agreement, now owned as part of a trust she established prior to her death.

The court affirmed the summary judgment and discussed the effects of the settlement agreement, or the lack thereof, on their respective interests in the property after the escrow period in their separation agreement. While there was language in the property settlement agreement that the parties were not to encumber the property with a mortgage during the escrow period, nothing in the agreement prevented the parties from seeking mortgages or other potential encumbrances after this period ended.

The court did agree that the ex-husband initially had standing to pursue this course of action with the lending institution’s original position that the mortgage encumbered all of the property, rather than just the decedent’s and trust’s interest in it. The reverse mortgage documents clearly indicated that the institution believed that the mortgage the ex-wife granted covered 100% of the property. The ex-wife represented in the paperwork that she owned the entirety of the property and all the rights to mortgage, grant, and convey it, failing to mention her ex-husband’s interest. However, during the course of litigation, the lending institution eventually conceded that the mortgage could only cover the wife’s half of the property.
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In two recently released companion cases, DiCarlo v. Suffolk Construction (SJC-11854) and Martin v. Angelini Plastering, Inc. (SJC-11853), the Supreme Judicial Court reviewed whether or not liens could be placed on the recovery the injured worker receives that was paid to him or her in employee benefits. As discussed previously, the statute providing workers’ compensation benefits to injured employees exists so that the worker receives quicker payments for medical care and lost wages. Employers, by providing insurance under the law, are generally immune from suit so that the business’ time and resources are not spent defending personal injury actions. Injured workers, however, are allowed to sue at-fault third parties to recover damages incurred.

In these cases, two workers were injured during the course of their respective employments. Both men reached settlement agreements with third parties for damages, including pain and suffering, which were paid after they received workers’ compensation benefits provided by their employers’ insurer. Both cases involve the same insurer. One employee was an electrician who experienced ongoing physical and emotional suffering from a back injury. The other employee was also an electrician who suffered ongoing pain and mental anguish. Both filed suit against the construction site at which they worked, as well as contractors and subcontractors.

The insurer sought reimbursement under Massachusetts G. L. c. 152, § 15, which allows an employer to seek reimbursement if they covered costs for the employee even though another party was responsible for the employee’s injuries. In one case, the Superior Court Judge rejected a settlement offer that excluded the attachment of a lien to the pain and suffering damages, which made up 35% of the settlement. The judge in that case felt the lien attached to the whole recovery. In the other case, the opposite was true, and the judge allowed the settlement to go through, excluding any attachment to awards like pain and suffering, which was 30% of the settlement award. In this case, the insurer appealed. In the prior case, the injured employee appealed.
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In a Massachusetts personal injury case, the injured party must meet his or her burden of proof in order to successfully obtain damages from the at-fault party or parties. Different court proceedings require different levels of proof. Criminal cases place a high burden on prosecutors to show the defendant is guilty “beyond a reasonable doubt.” In civil suits, the burden of proof is often met by a “preponderance of the evidence” or a “more likely than not” standard. Depending on the case, presumptions created by statute may also exist, which increase the burden on a party to rebut a specific assumption within the suit.

The Massachusetts Appeals Court case of Markuns vs. Commerce Ins. Co. (15-P-335) demonstrates what must be done when facing a presumption created by a statute or regulation of the Commonwealth. This appeal, while rooted in a rear-end collision accident, did not stem from a personal injury action. Massachusetts allows insurance companies to add a surcharge following an accident, which can be appealed to the Board of Appeal on Motor Vehicle Liability Policies and Bonds (Board) and the civil appellate system. If a driver is on the Safe Driver Insurance Plan, certain accidents are presumed to be the driver’s fault unless the driver presents enough evidence to overcome it. In Markuns, the driver of the colliding car appealed the presumption that he was at fault because he struck the car in front of him.

The driver centered his argument on his testimony during the hearing in front of the Board. The driver felt that his testimony was not rebutted by the insurance company and was left uncredited by the Board and the Superior Court. The Appeals Court disagreed, pointing out that the record shows the driver’s testimony was considered by the Board, and it was ultimately within their discretion to apply or not apply the presumption to the facts before them, based on the totality of the circumstances. The Appeals Court also disagreed with the driver’s assertion that the prior ruling entities failed to apply a presumption to the other driver within 211 CMR 74.00, which assumes fault if you fail to signal at a turn. Again, the court felt the lower judicial bodies were within their discretion to credit or discredit the evidence before them. The lower court allowed the ruling against the driver to stand.
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During the course of your career, you are likely to have several different jobs under different employers. Injuries can occur at any of these positions, particularly ones that may exacerbate older injuries sustained during previous employment. Workers’ compensation insurance companies have often disagreed on who is responsible for paying benefits, especially permanent benefits. To assist with this scenario, the commonwealth’s workers’ compensation case law created the “successive insurer rule,” which requires the insurer at the time of the most recent injury that bore a causal relation to the incapacity to compensate the worker for her or his injuries.

The Massachusetts Reviewing Board recently issued a decision in Griffin vs. Travelers Painting Co. (BD Nos. 037293-11 and 034762-13) that reviewed who was ultimately responsible for the temporary total incapacity benefits and permanent partial incapacity benefits paid to a painter who suffered serious knee injuries over the course of his work life. The painter first suffered injuries to both his knees when he fell out of a truck, and he re-injured his knee 11 days later. The employer’s insurer paid him temporary total incapacity benefits for about five months. The painter then worked for another residential painting company that had a different workers’ compensation insurer. The painter was able to work with some pain in each knee, having “good and bad days.” While working for the second employer, the knee pain increased due to the climbing and kneeling associated with the job.

After the painter was laid off, he underwent a second knee surgery that successfully reduced his knee pain in great measure. He filed for benefits from the first employer’s insurer, which then sought to add the second insurer. The first insurer felt the worsening injuries were related to work the painter performed at his second job. Much medical evidence was reviewed by the Administrative Judge at the hearing, who adopted the testimony of the treating surgeon that the knee injuries were caused by the original accident at his first job. The first insurer appealed, and the Reviewing Board took up the appeal to consider whether or not the successive insurer rule was violated.
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In a recent Reviewing Board Decision, Harris vs. Plymouth County (BD. NO. 005307-06), the Reviewing Board looked at whether death benefits under Massachusetts workers’ compensation laws should have been awarded to the spouse of the deceased employee. The employee worked for a self-insured employer as a case-worker when he suffered work-related neck and back injuries. The injuries were sustained in the spring of 2006, and he died from acetylsalicylic acid toxicity caused by excessive aspirin ingestion four years later.

His wife sought dependency and burial benefits following his death, which were denied by the employer. The judge ordered the burial and funeral expenses to be paid but denied the death benefits. At the conference following the wife’s appeal, the wife argued that the employer’s failure to appeal the death benefits, which can only be awarded if the death is work-related, established the causal relationship for other benefits. The judge at this hearing agreed with the wife but looked more closely at whether she qualified as the employee’s dependent in whole or in part, and what amount of benefits was due.

The wife had been living separately at the time of the employee’s death, but they had only separated the month prior. The judge felt, based on the evidence, that the wife had been living apart for a justifiable cause and awarded her death benefits of $723.54 a week from the date of his death and continuing. The employer appealed the decision, but they focused on the judge’s refusal to allow them to litigate the question of whether or not the death was caused by the work-related injury. The employer’s appeal did not challenge whether the wife was a dependent at the time of the employee’s death.
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In a recent decision, Amaral vs. Seekonk Grand Prix Corp. (13-P-1848), the Commonwealth’s Appeals Court reviewed whether or not General Law, Ch. 21, Section 17C(a) barred a claim of negligence by a mother who was injured by a runaway go-cart while watching her sons. This law is known as the “public use statute,” which states that those who make land available to the public for recreational purposes without charging a fee shall not be liable for personal injuries sustained by members of the public, unless there is willful, wanton, or reckless conduct by the landowner.

Under general premises liability law, a shop or other place of business is expected to keep their premises reasonably safe for patrons. If a hazardous condition exists that the owner or manager knew or should have known about, the business may be held liable for injuries sustained by a patron. The Massachusetts public use statute limits the owner’s duty to members of the public, and it increases the burden of proof that must be shown by the injured person to recover damages.

The corporation that operated the recreational facility did not charge admission to the grounds, but it did sell tickets to rides on the property. The injured woman had purchased tickets for her sons to ride go-carts, and she was watching them drive the go-carts on the other side of a chain link fence. A go-cart driven by a little girl went through the fence at the end of a run and struck the woman, which resulted in several injuries, including a pulmonary embolism from a blood clot in her left leg.
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