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Summer months are often the time when home repairs are done. Home owners hire general contractors for a project, and those contractors may hire subcontractors to do specific parts of the project. If one of the workers gets hurt, questions of liability instantly arise. If the worker is an employee of the subcontractor or general contractor, he or she may qualify for workers’ compensation benefits through his or her employer. The injured worker may also choose to hold the home owner or other parties involved in the work liable through a personal injury suit. Litigation and payment of costs are often taken up by the insurance companies involved, and they may dispute amongst themselves the additional issues beyond the facts surrounding the injury.

Preferred Mut. Ins. Co. v. Vermont Mut. Ins. Co. (No. 13-P-1890) discusses whether or not the insurance company that provided a homeowners’ insurance policy for the family, including the son, could withdraw from their responsibility to provide coverage in the presence of another insurance policy covering the son’s business. The discussion began after the family began to to renovate their second floor bathroom and hired a business to work on the plumbing. An employee of the plumbing contractor injured himself after he fell from the second floor, due to an unsecured railing that was unfastened by the son when he was moving a cast iron bathtub. The employee and his wife sued to hold the parents and the son personally liable for the accident and for the wife’s loss of consortium.

The company issuing the home owner policy refused to defend the son. The son’s policy issued in connection with his business as a self-employed electrician agreed to defend the son in the suit but reserved the right to withdraw, depending on whether or not his role in the renovation project was personal or professional. The injured plumber and his wife were ultimately successful at the jury trial, winning an award of over $225,000.00 for the plumber and more than $12,000.00 for the wife. The son’s business insurance company had previously filed another action naming the home owner insurance company, the son, and the parents as defendants, declaring that if their policy limits were exceeded, the other insurance company was obligated to defend and indemnify the son.
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If a Massachusetts worker is injured or falls ill while conducting a work-related activity, he or she may be able to pursue a variety of benefits, including workers’ compensation, to help pay for daily expenses and medical bills. This system, under the Commonwealth’s workers’ compensation laws, is designed to make the process easier for all parties. The employer does not have to worry about extensive personal injury suits, and the injured worker does not have to prove fault and wait a long time for payment of benefits. Other structured benefits, like unemployment benefits, may also be available to help pay for the expenses.

The main difference between workers’ compensation and unemployment assistance through the Massachusetts Department of Unemployment Assistance (DUA) is that the DUA provides benefits to workers who are not working through no fault of their own, but are able to work. Workers’ compensation is designed to provide benefits to injured workers who are unable to work, both temporarily and permanently. The difference between what types of benefits are available can hinge on a very slight variation of fact or circumstance of when the illness or injury occurred, and what action was taken to address the injury or illness.

A recent Appeals Court case, Ferreira v. Dept. of Unemployment Assistance (14-P-423), reviews a situation where an employee sought benefits under the DUA after he left the employment of a motorcycle dealership as a result of a health condition that he felt compelled the resignation. Massachusetts case law has established that “an employee who leaves work due to a reasonable belief that his work environment was causing a health problem is not disqualified from benefits.” (See, e.g., Carney Hosp. v. Director of the Div. of Employment Security, 382 Mass. 691 (1981). The set of facts in Ferreira primarily looks at the medical proof offered to determine whether or not the injured person was entitled to unemployment benefit payments.
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When organizing your Massachusetts will and estate, you may wonder about the extent of the powers and responsibilities given to those with titles like attorney-in-fact, health care proxy, trustee, guardian, or conservator. Estate planning includes assigning responsibility to someone in the course of your lifetime in the event you are unable to handle your own affairs. One of the documents you may use is a Power of Attorney. The Commonwealth Appeals Court recently issued a decision in Petriello v. Indresano (14-P-135) that reviewed whether or not the woman who acted as a health care proxy agent, and eventual designated agent with power of attorney, had the right to apply for harassment prevention orders against the children of her deceased domestic partner of 45 years. The Appeals Court ruled that a Power of Attorney can apply for the orders on the person’s behalf but ultimately decided to remand the case on another issue.

In Petriello, the court discussed the effect of a written power of attorney, which they considered to be a legal issue and not one for the jury to determine. Case law established that the court, when evaluating a power of attorney document, must put themselves in the place of the parties and give the words in the instrument their plain and ordinary meaning. A power of attorney is read like any other contract and is interpreted as a whole with effect given to all the provisions to enact its overall purpose. As the court reviewed the power of attorney instrument in Petriello, they felt the document gave explicit authority to the agent to “exercise or perform any act, power, duty, right or obligation” that the woman had, as if she was personally present. The power of attorney document granted the agent full authority and was executed soon after she designated her as her health care agent and in the midst of the conflict with her deceased domestic partner’s family.
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Shop owners and other businesses owe a duty to their customers to keep the store safe from dangers. If they do not maintain the premises as required by statute and case law, they can be held liable for the injuries suffered as a result of their failure. In Bowers v. Wile’s, Inc. (14-P-313), the Appeals Court of Massachusetts reviewed a lower court’s decision based on its interpretation of the “mode of operation” approach in premises liability cases. This approach was developed in a Supreme Judicial Court decision in Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780, 788 (2007). In this case, the court eased the burden placed on the injured person to show that the owner had actual or constructive notice of the unsafe condition on the premises. For example, if a glass jar containing liquid spilled in a grocery store, the injured party who slipped and fell on the item would have to show the grocery store managers were aware, or should have been aware, of the mess.

After Sheehan, an injured party only needs to show that the dangerous condition was “related to the owner’s self-service mode of operation.” The trial court granted the defendant store’s motion for summary judgment based on the view that the “mode of operation” approach only applies when the dangerous condition results from the breakage or spillage of items offered for sale. In this case, the injured woman was walking to a store on a clear day with no rain or snow and fell over a “river stone” that had been moved from the gravel area maintained by the store to the sidewalk. The injured woman had not seen or noticed any stones prior to her fall, and she suffered a displaced fracture on her hip that required two surgeries to repair.
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When you or your family member is in a Massachusetts car accident, the primary focus is and should be on emotional and physical recovery. Soon afterward, the concern over expenses and the ability to pay them moves into view. Even when insurance policies are in place and cover expenses, policy limits can fall short of covering the total cost of medical care and lost wages. Alternate routes to make up the difference must then be considered, especially when standard options like underinsured or uninsured coverage options are unavailable or also fail to cover all the expenses.

In a recent Appeals Court case, Borden v. Progressive Direct Ins. Co. (14-P-449), an injured woman had to look to the personal policy of the driver after he hit her car in a work truck. In any car accident case, the injured person first looks to see if the at-fault driver has an insurance policy that will provide funds toward the expenses. In Borden, the woman was hit by a tow truck used to transport automobiles to and from dealer lots and sales auctions. The accident-causing driver was hired to assist with work as needed by the owner of the truck, and he had used his own vehicle to arrive at the owner’s garage on the day of the accident. The at-fault driver was on his way in the company truck to pick up a car for delivery when he hit a car, injuring the passenger in the car.
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In Massachusetts, claims for personal injury must be filed within the timeline set out by the Massachusetts General Laws. Medical malpractice, personal injury, product liability, and wrongful death actions must be filed within three years of the accident or the date the injury was discovered. If claims aren’t filed within the statutory timeline, the injured person generally loses the ability to sue for damages. Other timelines guide actions that must occur within certain types of civil suits, including the requirement found in Massachusetts G.L. Ch. 93A, which directs the plaintiff to send a demand letter 30 days before filing an action for an unfair and deceptive practice.

In auto accident cases, courts, insurers, and the injured parties all must look to an insurance contract to see or determine whether or not the policy provides monetary relief for the injured person. If the insurance company determines that the injured person was not covered under the policy in question, the injured person may then choose to file a separate, related suit against the insurance company for failing to provide coverage as contracted.

In a 2008 decision, Kanamaru v. Holyoke Mut. Ins. Co. (72 Mass.App.Ct. 396), an injured bicyclist sought benefits under his roommate’s policy after he was hit by an uninsured vehicle on the road. The roommate had previously insured him under his auto policy, since he intended to share the vehicle with the injured man. After the suit was filed, the insurance company declined to cover the roommate’s injuries, arguing that the policy did not extend to the roommate for UM (uninsured motorist) coverage. In addition to his arguments that he was covered by the policy, the injured man filed suit against the insurance company for unfair and deceptive trade practices. The appellate court in that case ruled that the trial judge correctly entered a summary judgment in favor of the insurer defendant for failing to send a demand letter 30 days prior to filing suit.
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In a recent decision, Boudreault v. Nine (14-P-359), a medical malpractice decision in favor of a radiologist was overturned by the Superior Court of Massachusetts. In this case, it was alleged that the doctor failed to properly interpret the patient’s mammogram results and recommend the necessary treatments. The injured woman was seen for her annual mammogram and had abnormal results. There was a a well-defined nodule in one of her breasts, and the treating physician at the time recommended an ultrasound, spot compression mammograms of both breasts, and magnification mammograms of the affected breast. The patient followed up with the recommendation and returned for a diagnostic mammogram ultrasound. In that appointment, new micro calcifications were found that were noted but determined not to be worrisome.

At that time, no additional recommendations were made other than to return in six months. The injured woman complied, but she saw a different radiologist during this report. This doctor, the defendant in this appeal, reported that there wasn’t any evidence of a dominant mass, and that the calcifications noted before had not significantly changed and were “likely benign.” The doctor did not recommend any further biopsies or MRIs. He did recommend continued surveillance and another follow-up in six months to assure “interval stability.” The doctor felt that the woman remained in category 3. The injured woman missed her appointment, even though staff tried to reach her and remind her of the appointment. One year after her third visit with the defendant doctor, the injured woman returned for her follow-up mammogram. At this appointment, the doctor found that her breasts were highly suspicious for malignancy. She underwent other tests, and a biopsy revealed she had invasive ductal carcinoma. The injured woman had to undergo a radical mastectomy and chemotherapy soon after the diagnosis.
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Businesses are expected to keep their premises safe for patrons. This duty under Massachusetts law requires owners and managers of property to address known harms in frequently traversed spaces like stairwells and sidewalks. Hospitals are frequently featured in personal injury discussions, either as the ultimate destination to treat injuries caused by negligence, or the site of medical malpractice. In a Massachusetts appellate case, Connaghan v. Northeast Hosp. Corp. (13-P-1419), a hospital is the location where a litigated slip and fall occurred.

The slip and fall occurred in December on a stairwell and walkway of a hospital. The injured party had walked through the walkway and later testified it was clear. He was taking his child to a pediatrician appointment and was unable to hold the lone rail on the side as he was holding his daughter with both hands. Testimony at trial showed he was not looking down or around at the ground as he stepped off the stairs. The injured man said that the walkway wasn’t clear when he came out from an appointment 30 minutes later. The injured party filed suit and took the matter to trial, but the jury found for the defendants because there was no evidence that a hospital employee or landscape worker found and reported ice prior to the injured man’s fall.
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In Massachusetts, the manufacturer of a product can be held strictly liable if the product was dangerous or defective enough to cause personal injury or death. With most personal injury cases, the injured party must show they were hurt by the negligent acts of another party. In strict liability cases, no fault or tortious intent needs to be shown. Strict liability exists if the product design was defective, the manufacturing process was defective, or the product had inadequate warnings or instructions advising of its correct use.

The Massachusetts Supreme Judicial Court recently dealt with inadequate warnings on a Children’s Motrin bottle in Reckis v. Johnson & Johnson (SJC-11677). In this case, a seven-year-old girl developed a life-threatening skin disorder, toxic epidermal necrolysis (TEN), after she consumed several doses of Children’s Motrin, an over-the-counter medication with the main ingredient of ibuprofen. The parents of the child filed a claim and won at the jury trial, where they were awarded general damages over $50 million to the child and loss of consortium damages of $6.5 million for each parent. The parent company and manufacturers that produce Children’s Motrin immediately filed an appeal, alleging they should have received a judgment as a matter of law due to pre-emption by the federal Food and Drug Administration (FDA) laws, an unqualified expert witness for the injured child, and grossly excessive awards that were unsupported by the record. After hearing all arguments, the Supreme Judicial Court affirmed the lower appellate and trial court jury award to the injured child and her parents.
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Massachusetts General Laws G.L. C. 176D and G.L. C. 93A are designed to help protect the citizens of the Commonwealth from unfair methods of competition and unfair or deceptive acts or practices in the business of insurance. An injured party has a right to file a claim against the insurer of the at-fault party if they “fail to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” The Court of Appeals recently allowed a group of injured plaintiffs in a medical malpractice suit (Conry vs. Reilly, 14-P-506) to add claims against the insurer of one of the defendant doctors. They alleged that the insurer failed to make the reasonable settlement offer after liability had become reasonably clear during the course of litigation.

The insurer moved to dismiss, but the trial judge allowed the plaintiffs’ motion to proceed. The insurer appealed, but the Court of Appeals upheld the lower court’s decision to allow the injured parties’ motion to add the insurer The Court of Appeals looked to Chiulli v. Liberty Mut. Ins., Inc., 87 Mass. App. Ct. 229, 232 (2015). In this case, a man was severely injured in a fight outside of a restaurant, suffering a skull fracture and remaining in a coma for almost three months. The staff testified that they sensed a fight would happen between two groups at the bar, but they had not been trained on safety rules and did nothing to prevent the fight from happening.

Prior to the suit, the injured man sent a demand letter to the insurer of the restaurant with a copy of the receipts for medical expenses. The injured person argued that at least the medical expenses were provable through the receipts, but the amount of earning capacity was disputed, within estimates ranging from $413,532 to $1,589,949. That meant there was an undisputed amount of damages in the amount of $1,075,460. However, the insurer only offered to settle for $150,000. The injured person won a jury award of nearly $4.5 million dollars against the restaurant, and the case settled amongst post-trial motions.
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