Published on: |

Defense tactics in personal injury litigation in Massachusetts can get aggressive. In a recently issued Massachusetts Appeals Court opinion, Anderson v. Nat’l Union Fire Ins. Co. (14-P-1554), a severely injured man waited 10 years for an award of over $3 million. Even after this delay and the subsequent payment, the defendants filed another appeal of the original jury verdict award and the additional interest granted by the judge after the first unsuccessful appeal. The injured man and has family also appealed, arguing the defendants failed to provide a prompt, fair, and equitable settlement from the 1998 accident.

The man was catastrophically injured while walking across an intersection when he was struck by a hospital shuttle bus owned and staffed by the hospital. Even after receiving immediate care from doctors riding the bus as passengers, the injured man endured several months of hospitalization and care for his numerous head injuries. Following the accident, an investigation took place at the behest of the automobile insurer used by the hospital shuttle bus. The investigation concluded that the accident happened due to the driver’s inattention, and the liability and exposure was clear and exceeded the policy’s limits. The investigator recommended negotiating an out-of-court settlement, but negotiations never took place.

Instead, the insurers took another path by using what the trial judge called “irresponsible and overly-aggressive defense work on the part of the [insurer].” Some of the insurance company’s actions included suppressing crucial evidence that went against their theory that the injured man ran in and out of traffic between parked cars and darted in front of the bus. The injured man and his family pursued evidence of the initial investigation throughout the trial, but they were repeatedly told that the investigation reports, witness interviews, and transcripts didn’t exist. It took an offhand comment from a reconstruction expert five years after the accident to reveal that there was additional material available.
Continue reading →

Published on: |

Whenever you visit businesses in Massachusetts, the owners and managers of the property are expected to keep the premises reasonably safe for customers and members of the public. If a business fails to do so, they could be held liable for damages suffered by anyone injured. The injured party must show that there was an unreasonable danger that the owner knew or should have known existed. This can be proven by the injured party showing that the business or its employees created the dangerous condition, were made aware of the condition, or should have seen the dangerous condition.

For example, a person injured in a grocery store may be able to rely on a witness who either saw or created a spill in the store and then made the management aware of the spill. If the spill was not cleaned up in a timely manner, and it caused the injured party to fall, the witness testimony could be used by the injured person as proof of negligence. Another example of proof in a premises liability case would be records kept by the store of checks performed by maintenance staff throughout the day. If a spill or foreign substance was left for hours in an area checked at regular intervals, and during this time a maintenance worker should have seen it, the business may then be held liable for the spill because even though it was not “known” like the first example, the business should have discovered the spill during one of the routine maintenance checks.

In Stewart vs. Five Bridge Inn, LLC (14-P-1878), the Appeals Court of Massachusetts reviewed whether or not there was enough proof of negligence to hold a hotel liable for a woman’s injuries. The woman was a guest at a wedding and was walking toward the venue when she fell, fracturing two main bones in her leg. The woman alleged in her suit that her fall was caused by an irregularly sized rock embedded in the gravel parking lot. However, the woman also stated that she didn’t know why she fell and whether the rock played any role in her fall. The Superior Court determined that the woman did not connect her injury in the fall to any negligence by the hotel, and it entered a summary judgment in favor of the hotel. The Court of Appeals agreed and affirmed the lower court’s decision.
Continue reading →

Published on: |

In Massachusetts, when you plan for your future, you may consider purchasing special insurance policies to cover unforeseen events. Insurance policies are complex legal documents with specific language that should be carefully read by its holder. When you create an estate plan, it is advisable to have experienced Massachusetts wills and estates attorneys at your side to assist with the creation and understanding of legal documents like a disability income policy.

The Commonwealth’s Appeals Court recently rendered a decision in Yunes vs. Unum Group (14-P-1871) regarding a disability income policy. The insurance company issued a disability policy to the holder that provided a benefit in the event that the holder became disabled at 64 but before the age of 65. If this event occurred, he was to receive $10,000 a month (including a cost of living adjustment) for 30 months. This was considered to be a “Total Disability Benefit.” Also included in the policy was a “Lifetime Total Disability Benefit Rider,” which was designed to provide additional benefits after the 30 month period of the Total Disability Benefit. However, this benefit distinguished between a disability by reason of injury and one by reason of sickness. The amount for an injury benefit included a cost of living adjustment in addition to the amount featured on the policy schedule. For sickness, the cost of living adjustment was also included, but the scheduled amount must be multiplied by a factor.

The policy holder submitted a claim under the policy and was approved for total disability benefits due to sickness when he turned 64. He received payments of $12,500 a month for his Total Disability Benefit, which eventually rose to $13,500 a month until its expiration. Upon its end, the calculation for the monthly Lifetime Disability payment was set at $1,350. The holder filed suit, alleging breach of contract, and sought a declaratory judgment, arguing that he was entitled to $12,500 a month for the remainder of his disabled life. As part of his justification, the holder pointed to a letter sent by the insurance company 10 years before the benefit was issued, which stated that the current benefit was for $12,500 after a 90-day waiting period for Total Disability, followed by $12,500 for his lifetime for accident or sickness. The letter also noted that the quoted benefit did not replace the actual contract issued by the insurance company.
Continue reading →

Published on: |

Workers’ compensation benefits include permanent and total incapacity benefits (Ch. 152, Sec. 34A of the Massachusetts General Laws), which are awarded to those who have sustained injuries so severe they prevent an employee from ever working in the same capacity and line of work. These benefits can be issued after one accident, but they can also be given after a series of workplace accidents over the course of an employee’s career. As discussed in previous posts, employers and insurance providers may contest whether or not an employee qualifies for the benefits claimed. However, if any bona fide benefits are claimed and are not paid, the injured employee may be entitled to Sec. 50 benefits under the workers’ compensation statutes. This can be seen in the recent Board Decision of Comeau v. Enterprise Electronics.

Over 20 years ago, a worker sustained a herniated lumbar disc at the L3-4 level while on the job. He was given temporary total incapacity benefits until he returned to work, and then partial incapacity benefits when he did return to work for several more months. The injured worker continued to work with back pain until nearly two years after the first accident, when he slipped and fell after climbing onto the wet running board of a truck. He then suffered another herniated lumbar disc at the L4-5 level and was taken out of work for the ongoing back pain. The injured employee has not been able to return to work since then.

After the second accident, several motions were brought by both the injured employee and the insurance company, with several hearings scheduled and rescheduled. Seventeen years after the accident, the employee filed for benefits against both insurers that provided coverage to his employer over the course of that time. One insurer denied disability and argued that the other should be responsible for benefits from a date after the second accident as the successive insurer. The judge rendered a decision that ordered the second insurer to pay the Sec. 34A benefits and the medical treatment from the second accident. The first insurer was required to pay for the medical treatment related to the first accident and for penalties due to the late and nonexistent payments for other benefits.
Continue reading →

Published on: |

To recover damages after a Massachusetts accident happens at work or in a public place, four things must be shown: duty, a breach of that duty, causation connecting the breach to the injuries, and the cost of those injuries. The first element of a personal injury case, duty, exists if the alleged at-fault party owed a duty under the law to the person who was injured. If the at-fault party fails to uphold their duty, like a reckless driver or a grocery store that left a spill on the floor, the party could be liable to anyone who suffers an injury that resulted from the breach. Once the injury is connected to the failure to uphold the duty by law, the costs associated with the injury must be shown to recover damages.

In Stefflin vs. Pinncon, LLC (14-P-1114), an injured construction worker pursued damages against the general contractor and first-tier subcontractor. The worker alleged that the contractor and subcontractor failed to provide a safe work environment. The injured worker was a drywall finisher and taper, but the other parties required him to use a scissor lift instead of a knuckle boom lift to access certain parts of the ceiling. The worker said he injured himself while using the scissor lift when he reached over the railing with the sander and heard a “pop,” suffering abdominal pain. He later underwent surgery for a large ventral hernia and suffered complications from that and additional surgeries. The worker could not return to work and claimed permanent disability.

At trial, the judge excluded results from an Independent Medical Examination (IME) from the evidence of the injuries the worker suffered. The judge ruled that they were merely cumulative of the expert and medical evidence. When the case went to the jury, the jury determined that the general contractor and subcontractor did not fail to provide a safe work environment and therefore were not negligent. Because of this finding, the jury found for the defendants, and the injured worker did not recover damages from the general contractor and subcontractor.
Continue reading →

Published on: |

A carefully written will is often the hallmark of thorough estate planning. Hiring experienced wills and estates counsel can help avoid a distribution that strays from the original intent of the grantor. Massachusetts laws, federal tax obligations, and grammar are all items that must be considered when drafting any estate-related document. However, even in the presence of a clearly written document, courts may look to the behavior and actions of the grantor prior to her or his death to determine whether or not someone was entitled to a portion of the estate.

This can be seen in a recent Massachusetts Appeals Court decision that allowed a former employee, previously promised life insurance benefits, to recover the amount from the estate of her boss, who changed the beneficiary to his wife. In Shuttle v. Ligor (14-P-1670), the employee filed suit against the wife and the executor of the estate to obtain the proceeds of a life insurance policy after the benefits were distributed to the wife. The employee was previously the designated beneficiary of the policy after several years of working for the employer. Her boss advised her that she would be the beneficiary under a life insurance policy because he intended it to be a part of her “retirement plan as compensation for her working for less money than her performance merited.”

After he made this promise, his company began to struggle and was forced to lay off several employees and cut back salaries. The employee continued to work, even without a traditional salary, due to the promise of being designated the beneficiary of the policy. After the boss suffered a stroke, the employee asked whether or not he wished to change the beneficiary on his insurance policy, and he clearly expressed to her that he didn’t. The employee then used her own funds to pay some of the premiums of the life insurance policy and continued to perform work for the company. However, in the year following the stroke, the boss changed the beneficiary to his wife and did not inform the employee.
Continue reading →

Published on: |

Bingham v. Supervalu, Inc. (No. 15-1437) is a federal appellate case that originated from the District of Massachusetts. In this case, an elderly woman was shopping at a grocery store in Boston when she was struck by a motorized cart, suffering a laceration to her right heel around her Achilles tendon. Soon afterward, her health declined, and she died within a year of the accident. Prior to her passing, she filed a negligence action in state court, which was taken over by her nephew, the executor of the Estate. The question that eventually gave rise to this appeal was whether or not the corporate entity that owned the grocery store was an insurer and subject to the legal obligation to negotiate a settlement as guided by Ch. 176D.

The original negligence suit was filed soon after the grocery store was purchased by a different parent company that had several subsidiaries. As part of its structure, the parent company had a centralized risk management system that oversaw the the claims made against all of its subsidiaries that were not covered by insurance. The grocery store had an insurance plan that transferred to the new parent owner, but only for amounts over two million dollars. The parent company was therefore responsible for all claims less than two million dollars. As a cost-saving measure, the company actually employed its own claims adjustors to perform the administrative functions for these sorts of claims, and it had a central account for payments made on claims. However, the parent company did not issue its own insurance policies to the subsidiaries.

The negligence suit moved forward, and two judgments were entered against the grocery store. First, there was a judgment for failing to timely respond to interrogatories, and second, $300,000 in damages were awarded to the Estate, plus post-judgment interest. The parent company declined to pay and instead chose to file an appeal to the Commonwealth Appeals Court. The decision was affirmed, but an appeal to the Supreme Court was threatened by the corporation. The Estate took a $475,000 settlement offer that was a little below the total awarded and the interest that would have been accrued to that date.
Continue reading →

Published on: |

After a car accident happens, you want the at-fault party to be held responsible. During the civil litigation process, evidence of the at-fault party’s behavior and actions immediately preceding the accident are taken into consideration. Texting while driving, distracted driving, or careless behavior can help a jury or fact-finder conclude whether or not the defendant was responsible for the injuries you suffered. Occasionally, your actions may also be assessed if there is the possibility that your actions contributed to the accident. Under Massachusetts law, recovery is still available to you if your fault is assessed at less than 51 percent, but the award will be reduced by the percentage of fault determined by the fact-finders.

The Commonwealth of Massachusetts also has a process for determining fault when assessing an “At Fault Accident Surcharge.” This is issued to drivers who have been in an accident for which their insurance company has determined they are more than 50% at fault. If the person assessed the surcharge does not agree with this determination, they are able to appeal through Massachusetts’ Board of Appeals. Further appellate process is available if the driver assessed the surcharge loses their initial claim with the Board. A case like this was recently reviewed by the Commonwealth Appeals Court in Wheeland vs. Commerce Insurance Co. (14-P-1733).

In this case, the driver given the surcharge was in an accident with another parked vehicle after she was blinded by solar glare. The driver testified that she was blinded by the low, still rising sun that was right in her eyes as she approached the other vehicle. The driver felt the judge improperly upheld the Board of Appeals determination that she partially contributed to the accident by not taking any measures to compensate like wearing sunglasses or using the car’s solar visor. The Court of Appeals stated that while the judge provided additional, superfluous suggestions, the ultimate conclusion reached by the judge was supported by the facts in evidence.
Continue reading →

Published on: |

When a workplace accident completely removes your ability to work, you may qualify for permanent and total incapacity benefits through workers’ compensation. These are also known as § 34A benefits. In Downing vs. Davenport Realty Trust (Bd. No. 026102-11), the board reviewed a decision awarding an employee §§ 13, 30, 34, and 34A benefits. In this case, the insurer objected to the finding of the administrative judge, who relied upon the testimony of the injured employee and the testimony of a doctor who examined him.

The employee sustained a work-related L4-5 disc herniation. He was 63 years old at the time of the hearing, and he had spent most of his work life at unskilled to semi-skilled employment in physically demanding occupations. During the administrative hearing, the injured worker testified that he had previously been able to do heavy work, including lifting up to 200 pounds, but now he had trouble lifting as much as 10 pounds. The judge made a formal finding that the employee’s pain disturbed his sleep and that his herniated discs were related to an injury sustained at work.

The judge did stop short of adopting the examining doctor’s opinion on the extent of the injured worker’s disability. Instead, she relied upon a separate testifying doctor’s opinion, which concluded that he was totally disabled from work. The last thing considered was the testimony of a vocational rehabilitation expert, who opined that the injured employee could not earn wages due to his work-related injury. Lost wages were awarded for a year, and § 34A benefits were awarded following that period.
Continue reading →

Published on: |

After a workplace accident, an injured worker can file a claim for lost wages in addition to payments for medical expenses. The Commonwealth’s statute provides a formula for calculating the wages, which incorporates the “average weekly wage” (AWW). These are known as § 34 benefits. In a recent board decision, Harris v. Mass. Gen. Hosp. (Bd. NO. 033040-11), an injured nurse sought to increase her § 34 benefits when she sustained a fractured kneecap after slipping on some wet flooring. She had been promoted and was scheduled to begin her new position around the new year, which included increased wages. Her injury occurred right before she was scheduled to begin her new position.

Immediately following the accident, the nurse sought lost wage benefits. She was granted them, based on the wage she was making prior to the fall. The injured nurse then filed a claim six months after the accident to obtain a retroactive readjustment and reinstatement of her § 34 benefits, using the new salary that would have begun two weeks after the accident. The judge awarded her the higher amount, concluding that the law provided him the flexibility to calculate the AWW using a wage that would have been earned during the time following the accident. The hospital, who was self-insured, appealed the decision.

The reviewing board agreed with the hospital’s argument that the AWW is not calculated based on future wages, even if they are “certain” in this case because the injured nurse was already promoted to a position with a known wage. The reviewing board analyzed the history of prior cases and decisions, which have used a number of ways to calculate future wages, but only wages made before the accident. Examples included using four weeks of past wages, using two weeks of past full-time wages, and even using just one day of full-time wages when an employee changed from part-time to permanent full-time on the day of the accident. The board concluded that Massachusetts law allows for all types of full-time wages to be considered, but only if they had been earned prior to or at the time of the accident. The board felt that the definition of the AWW could not be stretched to include wages that have not yet been earned.
Continue reading →