COVID-19 Update: Click Here

Articles Posted in New Legal Developments

Massachusetts business owners and sole proprietors: know your rights under your commercial insurance policies! The Coronavirus (“COVID-19”) promises widespread business interruption across a huge variety of sectors, from restaurants and bars to manufacturing and contracting, and everything in between. In Massachusetts in particular, Governor Baker has just announced a statewide ban on gatherings of 25 people or more and ordered than restaurants cease serving food and drinks on site. Even more restrictive measures may follow. You may be wondering what, if any, coverage you might claim for business losses or interruptions under your commercial insurance policy. Or you may have already received a notice from your insurance company claiming they owe no coverage at all. Now is the time to carefully review the wording of your policy, bearing a few things in mind.

First and foremost, your insurance company is not at liberty to retroactively and unilaterally restrict or limit coverage under your policy. Insurance contracts are contracts like any other – a bargained-for exchange between two parties formed the moment they are executed. One party to that contract cannot change its terms without the consent of the other. To the extent your insurance company may claim it owes no coverage under a specific “exclusion,” the burden will be on your insurance company to prove that the exclusion applies, and “exclusions” are construed strictly in favor of coverage. To the extent there is any ambiguity in your insurance policy about whether coverage exists for an event like COVID-19, it is a well-recognized rule that any ambiguity will be construed against your insurance company and that you, the insured, will be entitled to the more favorable interpretation. This rule of interpretation applies with particular force to exclusionary provisions. “If the meaning of the contract language is unclear, we ‘consider what an objectively reasonable insured, reading the relevant policy language, would expect to be covered.’”  Metropolitan Life Ins. Co. v. Cotter, 464 Mass. 623, 635 (2013), citations omitted.

You may also be in a position where based on representations made to you by your insurance company, you were under the impression there would be coverage for this type of loss, only to find out now your insurance company is refusing to cooperate. You may still be able to obtain coverage under a legal doctrine known as estoppel. Even more generally, in Massachusetts your insurance company has a statutory duty to act in good faith towards you, its insured. Two statutes in particular require insurance companies to act in good faith. G.L. c. 176D catalogues fourteen separate unfair claim settlement practices. And G.L. c. 93A prohibits “unfair or deceptive acts or practices in the conduct of any trade or commerce,” including insurance. Under these statutes, should your insurance company force you to litigate a question of coverage where you are ultimately successful in court, you may stand to gain double or triple damages, plus attorneys’ fees, interest, and costs.

In what is being heralded as a landmark case, an 18-year-old Haverhill man was recently ordered to serve a one-year sentence in the Essex County House of Corrections after a jury convicted him of causing a deadly crash while driving and texting behind the wheel of a car.

In February 2011, Aaron Deveau was driving when his car allegedly crossed the center line of a roadway and struck a vehicle headed in the opposite direction head-on. 55-year-old Daniel Bowley reportedly suffered extensive injuries in the crash and died in a Boston hospital 18 days later. Bowley’s girlfriend, Luz Roman, was also injured in the crash.

In 2010, Massachusetts passed legislation making it a crime to harm someone in an automobile accident while texting behind the wheel. In addition to charging Deveau with motor vehicle homicide, prosecutors also charged him with violating the recently enacted law. In a bench trial, Deveau testified he was not texting and driving at the time of the collision, and that he did not remember doing so at all that day. According to prosecutors, evidence that Deveau was in fact texting two minutes before the crash proved his negligence.

District Court Judge Stephen Abany reportedly imposed the maximum sentence on Deveau in an effort to deter other would-be texting while driving offenders. A portion of Deveau’s 2-year and 2 ½-year concurrent sentences were suspended, however, because he was only 17 at the time of the accident and had no prior criminal history. Deveau’s driver’s license was also suspended for 15 years.

A spokesman for the Massachusetts State Police, David Procopio, said that the criminal case was important and the maximum sentence sought by prosecutors was appropriate. He also said it was vital for drivers to remember that distracted driving is both dangerous and deadly. According to Judge Abany, although a criminal sentence normally takes into account punishment, rehabilitation, public safety, and deterrence, his primary concern when he handed down Deveau’s sentence was deterrence. Judge Abany said that his goal was to send a message that all drivers need to “keep their eyes on the road.”

Automobile accidents are one of the leading causes of personal injury and wrongful death in the Commonwealth of Massachusetts. Crashes are frequently caused by distracted, careless, inattentive, or impaired drivers. Unfortunately, car accident victims often suffer devastating and costly injuries. If you were hurt or a family member was killed in a motor vehicle collision, you may be eligible to receive compensation for your medical expenses, pain, suffering, disability, lost wages, and funeral expenses. A qualified Massachusetts auto and motorcycle accident attorney can help.
Continue reading ›

On September 30, 2010, the new, highly publicised Massachusetts law banning texting while driving takes effect. The same law bans any cell phone use while driving for those under 18 except for certain emergency calls, generally 9-1-1 calls for police or medical assistance.

Everyone agrees that texting while driving is dangerous. If you look at your phone for three seconds to read or compose a text message while you are driving on the highway at 65 mph, you travel the length of a football field without looking at the road. Of course the same is true for checking out who is calling you on the cell phone or scrolling through your contacts list to make a call, or entering a phone number to call, none of which seem to be prohibited by this new law.

The Governor’s press release makes it seem like we can expect much safer roads now. “Without question, this new law will save lives on our roadways,” the Governor is quoted as saying. On the other hand, a new study released today by the insurance industry shows that such bans have no effect on crash statistics, and seem to have no effect on how much people text behind the wheel. The Boston Globe reports that texters may be causing more accidents by holding the phone down near the seat to avoid detection, and that police departments are talking about getting SUVs so they can ride higher and look down into potential suspects’ cars. Of course if it’s the police car driver who is doing the looking, that is pretty unsafe, too.

Some have suggested that parents have to set an example and stop using cell phones — texting or talking — if they expect their children to obey the law, and that they have to talk to their children about the dangers of distracted driving. Maybe the “shotgun texter,” a friend in the passenger seat who will text for the driver, will become as popular as the “designated driver,” who stays sober and drives his drinking friends where they need to go. It seems that education may be the best way to fight texting while driving, and that the new law may be more important as an expression of what is the right way to behave than as a means to prosecute violators.
Continue reading ›

The Massachusetts Supreme Judicial Court (SJC) today eliminated the ancient distinction between “natural” and “unnatural” accumulations of ice and snow, making property owners liable for injuries caused by their negligent creation or failure to eliminate both kinds of winter hazards.

Calling the distinction between natural and unnatural accumulations of ice and snow a “relic” derived from old cases, which “has sown confusion and conflict in our case law,” the Court in Papadopoulos v. Target Corporation discarded it and stated: “We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to ‘act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.'”

In the past, people who slipped and fell on ice or snow that had fallen or accumulated naturally and which remained untouched by the owner were unable to recover from the owner for their injuries. A property owner was better off not shoveling or plowing the snow or salting or sanding the ice. Over time, this concept was applied expansively to include even natural snow that had been plowed into a pile or ice which was uncovered by the shoveling efforts of the owner. Indeed, in the Papadopoulos case, the trial judge ruled that the defendant was not liable when the plaintiff tripped on a chunk of ice that had fallen from a plowed up snow bank or a patch of refrozen runoff from the snow pile, because those were “natural” accumulations even though they resulted from the plowing of the parking lot.

The SJC applied the new rule “retroactively”, that is, to any cases currently pending or yet to be filed, even if the injury has already occurred, so long as they have not gone to final judgment or the statute of limitations has not expired.
Continue reading ›

The Massachusetts Supreme Judicial Court announced today that injured people will be allowed to introduce the full charges on their medical bills as evidence of their damages at trial despite the Superior Court’s ruling otherwise. The case, Law v. Griffith, was argued by Kathy Jo Cook of KJC Law Firm LLC in Boston. Professor Timothy Wilton, from Suffolk University Law School, served as a consultant on both the brief and the oral argument.

Joanne Law was injured in an automobile accident when Daniel Griffith ran a stop sign and crashed into her car. By the time of the trial, Ms. Law had received extensive medical treatment for which the providers billed Ms. Law $112,269.94. Ms. Law’s medical insurance provider, Mass Health, however, had paid the providers $16,387.14 in full satisfaction of those bills. Ms. Law was not personally responsible for any further payment.

The rates MassHealth will pay for medical treatments are set by statute and are far lower than that which doctors and hospitals charge. By law, providers are not permitted to bill the patient for the balance. Although private health insurers generally pay a higher rate than the government operated MassHealth, they also usually pay less than the amount the providers bill. People without health insurance, however, are responsible for payment of the full charge.

At trial, the defendant argued that the medical bills presented “distorted” evidence of Ms. Law’s damages. The trial judge ruled that Ms. Law could not introduce evidence of the amount “charged” for any of the services, but rather, could only offer evidence of the amount “paid.” Ms. Law was permitted to introduce only the payments of $16,387.14 as her medical expenses, rather than the charges of $112,269.94. The jury was instructed that it could award damages for “medical and hospital bills, as proved,” as well as for scarring, loss of function, impairment of enjoyment of life, and pain and suffering. The jury found for Ms. Law, but in a general verdict for all of the items, it awarded only $48,500.00.

On appeal, attorney Kathy Jo Cook argued that the statute governing the admission of medical bills as evidence of an injured party’s damages for medical expenses required a trial judge to allow the admission of medical bills in the full amount charged. The Supreme Judicial Court unanimously agreed, the majority writing that the statute “states unambiguously that medical bills are admissible to establish the reasonable value of services rendered.”
Continue reading ›

On July 15, 2010, the Massachusetts Appeals Court held in DiNitto v. Town of Pepperell that two motorcyclists who were injured when they failed to stop at a hidden stop sign could not recover from the town because they had failed to give the town the 30 day notice required by the Massachusetts highway defect statute and tried instead to sue the town under the Massachusetts Tort Claims Act. The court held that the highway defect statute was the exclusive remedy for the injured motorcyclists, and that it applied to the town’s negligent failure to keep “trees, brush and overhanging vegetation” growing on adjoining town land from obscuring the sign.

The highway defect statute, over a century old, permits limited recovery against a negligent county, city, or town (and under G.L. c. 81 §18, the state) for bodily injury or property damage caused by a defect in a road. But it also requires that the claimant give the government notice of the time, place and cause of the injury or damage within 30 days.

The more recent Tort Claims Act generally permits claims against the government for injury or damage caused by the negligent acts of government employees. It has a far more realistic two year notice requirement. But it specifically left the highway defect statute intact as the exclusive remedy for those injured by a “defect or a want of repair…in or upon a way.”

The DiNittos argued that the untrimmed vegetation from adjacent town property was not a defect in the road itself. The court relied on some old cases defining the reach of the highway defect statute broadly to permit recovery which was otherwise unavailable at that time. It cited an 1872 case applying the statute to “obstructions overhanging the way,” and a 1920 case involving the limb of a tree growing next to the road which hung too low over the road. Cases enlarging the injured person’s right of recovery were now used to preclude it.

Whenever there is an injury or property is damaged on or near a road or sidewalk, it is critical to get to an experienced lawyer immediately. Defects in the design or maintenance of the property may have played a role, and the very harsh 30 day notice requirement may apply. Waiting for too long or going to the wrong lawyer may cause you to lose your chance of recovery for your injuries or damage.
Continue reading ›

Contact Information