Boston Injury Lawyer Blog

Giving Statements to Car Insurance Adjusters in Massachusetts

Wed, 23 May 2012 09:32:04 -0500

Our clients ask us this all the time following a motor vehicle accident in Massachusetts: "The insurance company called and wants a statement, what should I do?" The answer is a function of whose insurance company is calling and why they are calling.

Typically, it is your own motor vehicle insurance company and, under the insurance agreement, you are obligated to provide information following a collision in Massachusetts where you, or the other party, needs to make a Massachusetts insurance claim. Usually, they ask basic questions to assist them in their investigation. Considering they are obligated to pay legitimate claims, it is usually fine to give them a basic statement. We would recommend you talk to an experienced Massachusetts accident attorney first, however.

What if the other party does not have insurance? You may need to make a Massachusetts uninsured personal injury claim. In which case, you need to be careful because you are, in a sense, making a claim against your own company. Anything you say will, eventually, be used against you. Again, we would recommend you retain experienced Massachusetts counsel.

Unfortunately, there are other scenarios. The easiest one to respond to is when do you talk to the other party's insurance company? The answer can be complicated. If you have insurance, you do not need to talk to them at the outset. However, our clients frequently say that while they have insurance, they do not have collision, or rental. Or, they were a pedestrian or bicyclist in a Massachusetts accident. Thus, they want to give a statement so they can "prove" it was not their fault and get the benefits. Many times that works. Many times it does not.

But when can you get the other driver's statement? In a case that was decided by respected Massachusetts Superior Court Judge John S. Ferrara, it was determined that those statements, given to the other side's insurance company, are "protected work product" and cannot be "discovered" in the event of a lawsuit. See Johnson v. Bertonazzi. In other words, a copy of the other driver's statement to his or her insurance company does not have to be provided to you in the course of a lawsuit against them! The reasoning was that because you have the police report, which is public, and you have the right to take the other driver's deposition, you have all you need.

The problem, as we see it, with this lower court decision, is that it is not clear where you draw the line as far as what is discoverable in litigation, and what is not. Judge Ferrara says that the insurance company was taking the statement of its insured driver "in anticipation of litigation" and therefore it is protected from discovery. But since most cases don't get litigated, using the judge's logic, everything an insurance company is doing is in anticipation of litigation and not discoverable. And, really, wouldn't the defendant driver's statement right after a collision be more accurate than a year or two later in a deposition, after he talks to his lawyer?

Nevertheless, the judge in this case said that the test is to determine if the statement was taken "because of" existing or expected litigation. A factor could also be that the plaintiff's attorney requested the document in a motion just a few weeks before trial and failed to demonstrate a "substantial need" for the document. However, we disagree. Being able to cross examine the defendant on the differences between his statement and his deposition testimony, to us, is a substantial need towards finding the truth! It could also be that an independent witness gave testimony that was similar to the defendant's.

The good news is that a Superior Court judge's ruling is not law. Only the Appeals Court and Supreme Judicial Court's rulings form law. On the other hand, the judges of the Superior Court read each other's rulings, and they can be persuasive.

Arbitration in Massachusetts Wrongful Death Cases

Wed, 02 May 2012 13:38:15 -0500

There may be an upcoming appellate court decision which will have an in impact on Massachusetts wrongful death cases against hospitals and nursing homes in Massachusetts. In a case just appealed by a nursing home in Malden, GGNSC Malden Dexter, there is an attempt to use the Massachusetts Health Care Proxy as a sward for hospitals to enforce binding arbitration agreements.

Here is what happened: when Mrs. Rita Licata became too ill to care for herself, she was admitted to the local hospital for evaluation. She was suffering from Alzheimers, dementia and was confused. At the hospital she signed a Massachusetts Health Care Proxy, giving her son, Salvatore, her proxy to make health decisions if her doctors declared in writing that she was unable to. After four days, Ms. Licata was discharged to the defendant nursing home. While she was found to have "chronically impaired" insight and judgment, there was no specific determination of a need for her Proxy to made a decision. Ms. Licata was admitted to Malden Dexter and her son filled out the forms.

Of necessity, he thought, he signed them all. One of the forms was an Agreement to Arbitrate. That is, an agreement that if Mrs. Licata had any legal claims against the nursing home, she was giving up her right to a jury, giving up her right to a court trial, and agreeing to arbitrate under rules that are very different. Mr. Licata was not appraised of what rights he was signing away, nor was he advised of what was necessary to sign and what was optional. He was thinking only of his mother's immediate care.

Unfortunately, Ms. died at Malden Dexter, and the reason is alleged to be the facilities negligence.

Mr. Licata, through his Massachusetts wrongful death lawyer, filed a lawsuit against Malden Dexter. They filed a motion to dismiss the case be arbitrated because of the signed Arbitration Agreement. The hearing on the motion resulted in the Massachusetts Superior Court Judge agreeing with the Licata family: this case should be heard in court, not by arbitration.

The Court's reasoning was quite clear. First, the court held that it was not clear that the Health Care Proxy was valid because there was no specific finding by Ms. Licata's doctors that she was not able to make decisions. In fact, it wasn't until weeks later, when the Malden Dexter doctor executed the Health Care Proxy required document under Massachusetts General Laws, Chapter 210D. But, more importantly, the court held that the health care proxy that Ms. Licata signed was not a power of attorney. That is, it was not a document that authorized her son to make legal decisions for her, but medical decisions. This is the distinction that seems important in the upcoming appeal.

The court in this case said the Health Care Proxy does not create an "agency relationship" in which that the agent, the son, will act on behalf of the principal, the mother, subjecting the principal to make "purely legal decisions" including waiving her rights to a jury trial.

It is not clear how broad the Appeals Court will make their decision. They could find very narrowly that in this case the Health Care Proxy was not activated in a timely fashion for the signing of the Arbitration Agreement. They could give a broader finding that the Massachusetts Health Care Proxy is not a sufficient legal document to waive legal rights, but simply a medical authorization document. Our reading of MGL Chapter 210D, Section 5, regarding the "authority of agent" is that it is limited to "health care decisions" such as "life sustaining treatment." The law talks about doctors, patients, and medical information but nothing about any legal rights, or the constitutional rights to a jury trial.

For more information about cases regarding wrongful death in Massachusetts please see our articles onWrongful Death.

Workplace Personal Injuries in Massachusetts

Mon, 30 Apr 2012 10:39:39 -0500

As a Massachusetts personal injury lawyer, we often represent families where the person injured was engaged in his or her employment at the time of the injury. Frequently this is a construction type of accident, in which both worker's compensation and Massachusetts third party liability is involved. Thus, it's important to see what are the most dangerous jobs in Massachusetts.

In 2011, the most dangerous job in Massachusetts was firefighting. Perhaps it was particularly awful year, but in 2011, 13 firefighters died from work related injuries. That was 22% of all work related deaths in 2011. Firefighters face numerous job related dangers including exposure to carcinogens, lung disease and cardiac illness from stress.

The leader in 2010 was construction, with 10 deaths; construction related deaths were reduced to 8 in 2011. This information is from the Massachusetts Coalition for Occupational Safety and Health report issued this month. The total number of workplace deaths in 2011 was 58, while the number in 2010 was 47.

It is not clear what this means statistically, but the loss is even more tragic when we learn that the leading causes of death was Massachusetts motor vehicle accidents. This was true in 2010 as well, with 12 fatalities each year. The next leading cause of workplace deaths was workplace violence, with 6 fatalities. Drowning was the third, with 5 losses.

What the study doesn't highlight, but what we are concerned with as well, is that there were 50,000 serious injuries sustained at work in 2011. We will examine the breakdown of these injuries at another time.

One of the overall workplace injury problems is the temporary hiring of low skilled labor. This is especially true when the workers have limited English ability and the jobs are dangerous. Apparently this is especially true when the workers work for temporary agencies, where there may be less training.

Massachusetts does not have an independent Occupational Safety and Hazard Administration like many other states. OSHA laws tend to be responsible for increased workplace safety and are associated with employers taking action rather than simply paying nominal fines.

Firefighters and police officers tend to have excellent worker's compensation systems. Union construction jobs have good plans as well, however, they are still subject to the Massachusetts worker's compensation laws, which at best provide only 60% of your lost earnings. As a personal injury lawyer in Massachusetts, I see many "third party" injury cases. That is, those cases in which the worker has a claim against a third party for their injuries. For example, if you are driving for work and a truck rear ends you and you are injured, you have a third party claim against the driver and owner of that truck. The same is true if you are a construction worker on a worksite where another company's worker's negligence causes your injuries. Many times folks do not realize that they have a third party claim because they never consult with an experienced construction accident attorney. Another issue in Massachusetts is repetitive injuries or stress related injuries where employers are more reluctant than in traumatic injuries to agree to pay a worker's compensation claim.

For a consultation on a third party injury claim, call us for a free consultation at 617-227-7423.

Personal Injury Claims Against the MBTA

Mon, 09 Apr 2012 12:24:55 -0500

The Massachusetts Bay Transit Authority has announced that as a way of saving money, they want a law that imposes limits on Massachusetts personal injury awards capped at $100,000.00. The proposal, initiated by Governor Patrick, will work its way through the various Massachusetts State House committees.

The proposal is a part of a package of "reforms" that the Governor and his minions are proposing regarding transportation. Some of the proposals are pro consumer, like increasing fines against folks who evade paying the fare. Some are simply moving money around from the feds: MBTA Ride services will get more Medicare and Medicaid monies. Some are smart businesslike ideas such as allowing the MBTA to enter into revenue generating advertising agreements. Some involve assistance in insurance adjustments and taxes.

From the perspective of a Boston injury lawyer, it's unfortunate to learn that that there could be more anti consumer news from the state government. Victims of train, bus and trolley accidents should not be treated differently if the MBTA and its drivers cause the injury. What the Governor and the MBTA seem to be doing here is to institute a law that mimics the state law, Chapter 258, which limits tort liability for the state to $100,000.

Because the MBTA has such as vast network of vehicles, there are numerous accidents, collisions and injuries that result. Wrongful death cases, Boston trolley crashes, MBTA bus accidents and excessive speed collisions are among the types of cases we have seen with respect to the MBTA. On the one hand, it may be inevitable, on the other hand, allowing the MBTA to reduce liability for the injuries they cause, seems anti consumer and anti common sense. It takes the decision making away from the jury of one's peers, and puts it into the hands of the government, which makes a law.

It is not the goal of this blog to review the MBTA's budget. We have learned, however, that the MBTA may have other ways to cut costs. On information and belief, MBTA employees can "retire" after only 23 years, with full medical benefits. Again, we haven't reviewed the books, but when the MBTA says they need to implement this plan to save $4 million per year, we wonder if there aren't other measures, ones that don't tax the injured and the maimed, at the expense of rich retirement plans, fare evaders, and a top heavy administration.

Regardless of whether the MBTA gets their way in reducing their liability, any victim of a accident on the MBTA, or as a result of an MBTA collision should get an experienced Boston personal injury lawyer. The MBTA has a host of experienced claims adjusters and attorneys. You will likely encounter a serious attack absent strong representation from the outset. We have represented victims of MBTA accidents since 1985.

Another significant weapon you can deploy, prophylactically, is to buy sufficient homeowners and vehicle underinsurance policies. We have written about this extensively, and direct folks to the Massachusetts Underinsurance section of our website. This way, if you are injured and the MBTA, or even a private entity, has insufficient insurance, you will have a right of recovery.

Call us at 617-227-7423 for a free consultation.

New Liability for Massachusetts Landlords in Personal Injury Cases

Mon, 26 Mar 2012 10:04:44 -0500

We have represented many victims of landlord negligence in Massachusetts. Landlords owe very specific duties to tenants. There are different types of landlords: commercial and residential, for example.

In a decision by Housing Court Judge David Kerman, residential landlords may face increased liability when a tenant is injured as a result of a housing code violation.

The facts in this case are critical to understating what happened and how the law is evolving. The building at issue had a commercial entity on the ground floor, with three residential units above. The plaintiff, Sheehan, was a resident of one of the residential units. He was intoxicated and leaned against the guardrail. Unfortunately, when the guardrail gave way he fell onto the pavement below and was seriously injured.
Sheehan sued the landlord, Weaver. The lawsuit alleged negligence, because of the defect, breach of the landlord's implied warranty of habitability, unfair business practices under Massachusetts General Laws 93A - the Consumer Protection Statute, and strict liability under Section 51 of the Building Code. He proved at trial that the guardrail gave way because it was defective and in violation of the Massachusetts Building Code, thus winning on both the negligence and strict liability counts.

Massachusetts General Laws, Chapter 143, Section 51, of the Massachusetts Building Code is considered to apply to "commercial" buildings. It states that violations of the building code resulting in injury subject the landlord to strict liability. That is, if there is a finding of building code violation, and the injury is a result of that violation, the landlord is responsible. The tenant here was a residential tenant. However, the Court said that this was really a "mixed residential commercial four unit non owner occupied" building which satisfied Section 51. The Court pointed to the non owner-occupied part of the statute and the commercial use of the first floor. The attorney for Sheehan, Louis Muggeo of Salem, Massachusetts, claimed that the decision sets a new "road map" for tenants suing under Section 51 and strict liability.
Counsel for Weaver, Paul Gillespie, of Danvers, who often defends landlords who are insured with Vermont Mutual Insurance, claims that there may be a constitutional violation in the Court's decision. The Law Office of Neil Burns has litigated against Attorney Gillespie. He is tenacious and a tremendous advocate for his clients. On the other hand, he has a tendency to refuse to consider building code violations or fire alarm violations as any evidence of negligence. In light of the $242,000 jury verdict, we wonder if his client could have resolved this case short of that. This case hinges on the definition of the word "building" in Section 51. There is case law which clearly indicates that an owner occupied small residential building (a two family with the owner in one) is not a "building" under Section 51 and no strict liability can apply.

Where should courts draw the line? The defense bar is outraged at this decision. They are calling for an appeal. Attorney Gillespie says he doesn't like the language of Section 51 and an appeal could hurt. Indeed, he is right, the language does not exclude mixed-use buildings such as in this case. It includes "a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment or building." This case may push a great number of cases over the line, declaring that mixed-use buildings can be "buildings" for the purposes of strict liability. The plaintiff bar would agree with Judge Kerman and argue that if a landlord violates a building code and as a result a tenant, or legal invitee, is injured, why shouldn't there be strict liability. After all, the code is there to protect Massachusetts injury victims falling from a defective guardrail in this case. It was not too hard for the landlord to comply with the code - fix the guardrail!

Back Up Cameras For Massachusetts Vehicles

Mon, 05 Mar 2012 10:13:32 -0500

Can backup cameras reduce Massachusetts auto accidents? While almost 50% of new motor vehicles have back up cameras on 23 models, the US Department of Transportation is considering a regulation that would require all new vehicles to have back up cameras. This is derived from the 2008 law passed by Congress requiring increased rear view visibility standards. That law, called the Cameron Gulbransen Kids Transportation Safety Act, was named for a 2 year old whose father, a physician, inadvertently ran his son over while backing up an SUV in his own driveway. According to an National Highway Transportation Safety Adminisgtration study, 43% of backover deaths are in a driveway.

While the regulation has been written for vehicles starting in 2014, this past week the Transportation Secretary announced another delay in imposing the new regulation. The reasons are likely to include significant pressure from industry, whose lobbying group asked for "alternatives." The cameras would cost about $200 per vehicle that would likely be passed on to the consumers. It is worth noting that the cost was estimated at over $325 back in 2006, which the initial report to Congress was completed. Alternatives include various mirrors that would be less expensive than cameras. Another popular alternative is the beeping radar sensors. The author of this blog has one and it's not that effective. Further, it doesn't account for people or other objects that may move into the vicinity suddenly. The NHTSA study concluded that there were many "holes" in this beeper system. Video cameras are the "most comprehensive and cost effective" according to the National Highway Transportation Safety Administration.

Consumer advocates, including Joan Claybrook, the former head of the NHTSA, charge the auto industry of delay tactics. The University of Michigan's Transportation Research Institute concludes that back up cameras would give manufactures an edge. Consumer advocates note that there have been no safety features added for pedestrians since the addition of the third break light rule, added in the 1980s.

While the government, industry and consumer lobbyists jostle over the regulation, we pause to look at whether there is a true need for rear view back up cameras for motor vehicles. Vehicles have changed: SUV's and trucks have large blind spots, but new cars do as well. The Cadillac CTS, for example, has a 101-foot long blind spot! The NHTSA study indicates that vans are more than twice as likely to cause backover crashes. And, according to the US DOT there are an average of 300 deaths each year from vehicles backing up. Half of those deaths are children, under the age of 5. Further, each week there are an estimated 50 children injured from motor vehicle back ups. The total number of injuries is 17,000 per year; and it is estimated that with back up cameras we could avoid up to 8,374 injuries per year.

We have represented thousands of people who have been injured in Massachusetts vehicles, including victims of backovers in Boston and pedestrian accidents in Massachusetts. Call us at 617-227-7423 for a free consultation.

Social Host Liability News in Massachusetts

Mon, 27 Feb 2012 14:53:29 -0500

As a Massachusetts personal injury lawyer, we have represented many people who are injured as a result of illegal and negligent serving of alcohol to people who go on to injure an innocent third person. When the host, or provider, of the alcohol can be found responsible, that is called social host liability in Massachusetts.

In Massachusetts, if you can prove that a liquor store sold alcohol to someone already intoxicated, or that a bartender served to such a person, you can show that they breached their duty to third persons, out there on the road, and hold the seller or server responsible for civil money damages.

What about when the alcohol was served at a party? Since 1986 Massachusetts's courts have ruled that if you supply the alcohol, you may be held responsible.
In that year the Supreme Judicial Court held, in McGuiggan v. New England Telephone, that from now on "a relevant consideration will be whether the social host knew or reasonably should have known that the intoxicated guest might presently operate a motor vehicle" before serving him alcohol. This decision changed social host law in Massachusetts dramatically.

The cases have not held that there is a duty to a guest, who becomes intoxicated, and then injures himself. In 2001 the Court decided Panagakos v. Walsh, a case in which a minor was served at a bar and subsequently was killed while walking along the highway. The estate sued the bar and deceased's companions who were of age and facilitated his use of a false identification. The Court cited Hamilton v. Ganias (1994) as standing for the proposition that if one is an "adult" he or she is responsible for their own actions. In Sampson v. MacDougal, a 2004 case, it was determined that even though the injured party was a minor, age 18, the Court would not impose liability on the homeowner even though it was the homeowner who served the minor alcohol, reasoning that the 18 year old was an "adult" and was in the best position to prevent harm to himself.

If an 18 year old is an adult, why can't s/he buy alcohol? The Courts, in these various decisions, point out that it is for the legislature to make the laws; their job is to interpret the laws.

In a decision handed down last week, February 2012, Juliano vs. Simpson the Supreme Judicial Court held that notwithstanding the fact that there was a teenage drinking party, if the host did not supply the alcohol, the host can not be held liable to third parties injured by an intoxicated guest, even if the third party was a 16 year old guest. The Court said, "liability attaches only where a social host either serves alcohol or exercises effective control over the supply of alcohol." The reasoning was, essentially, that the host could not control the amount of consumption; the host was like a bartender, who would only be responsible if he or she had some control over what and how much a customer/guest was consuming.

None of the above should be interpreted as license to serve or allow minors to have alcohol; or to be intentionally absent from hosting, knowing about a party. The facts in each case are different, and when there are horrendous injuries, are there often are when mixing alcohol and motor vehicles in Massachusetts the victims will pursue all forms of discovery, which often lead to clear responsibility to the hosts.

How Can Social Networking Affect Personal Injury Cases in Massachusetts?

Tue, 21 Feb 2012 10:36:27 -0500

We represent victims of personal injury in Massachusetts. In most cases the insurance company for the defendant will undertake an investigation of Massachusetts accidents. If it is a small case, with a claimant unknown to the insurance world (someone who has not filed many claims) they may not put much effort into their investigation. However, what if it is a large claim? What if it is contested? Can they use social media to investigate victims?

Insurance companies and their attorneys have vast resources. And they don't hesitate to use them. In a personal injury lawsuit, they have the right to have the victim examined by their insurance doctors. They have the right to ask written questions and to have their insurance trial attorney require oral testimony by deposition, from "day to day" to have their questions answers. They can send an investigator to video you going in and out of your house, at the mall, and going to work. And they do all of these things regularly.

With all of the above, you have some control as to how you present. You prepare for your deposition with your experienced Massachusetts injury attorney. You bring your medical records to the insurance doctor for his or her review in conjunction with your exam. You learn that the insurance investigators may be videoing you so you act accordingly. How do you know how to act with respect to social media?

Social media poses a new, albeit similar situation to the above. You need to be aware that the insurance adjusters, investigators and attorneys will look around. How can you respond? First, consider that whatever you post on Facebook, MySpace, Twitter and LinkedIn can and will be monitored by the defense. If you post something, or are tagged, it is likely to be discovered. Second, using Google, what can one find about you? Your website, YouTube videos and any other hits, will be discovered.

What can you do? You can take down or deactivate accounts. You can refrain from posting on your accounts while you are injured and recovering. Do not post photographs or videos. You can adjust privacy settings to the highest levels. You should not discuss your accident, medical condition, medical treatment, and recovery on any public media. Further, be sure that your friends and family are not providing information about you on social media. You should not discuss medication publically. You should not mention your activities, or lack of activities, as activity level is especially monitored as a function of how much better you are at various points of time. You should never accept friend requests from folks you do not know.

Don't think that you can outsmart the insurance defense attorneys by strategically posting. If you post an accurate picture of yourself in the hospital, or sitting gloomily whilst recovering from your injuries, there may be comments by friends. You may be asked about those friends in a deposition; and they may become witnesses. Why give all of that information to someone whose sole job is to discredit you and find holes in your case?

I have been litigating personal injury and motor vehicle injury cases in Massachusetts since 1985. As a Boston injury attorney, I have learned that the only way to effectively counteract the insurance company approach is to be aggressive in preparation. Call us at 617227-7423 anytime to discuss your case.

AeroShots of Caffeine Hit Massachusetts

Mon, 13 Feb 2012 13:39:09 -0500

Back on November 21, 2010, our blog http://www.bostonbankruptcylawyerblog.com/ had a report about Four Loko in Massachusetts, which was about to be banned by the Massachusetts Alcoholic Beverages Control Commission. Now, we are looking at the new phenomenon, AeroShot. College students in Massachusetts, and elsewhere, are trying the new caffeine delivery system.

AeroShot, from the Cambridge, Massachusetts company Breathable Foods and manufactured in France, is now available in Massachusetts and other states, for about $3 a tube. It looks like a lipstick tube and contains 100 milligrams of caffeine and B vitamins. The canister contains about six shots of lemon lime flavored power, for a total of zero calories. The powder dissolves in your mouth. While the promoters say the product is simply caffeine without the coffee, or sugar (such as with Red Bull), others are warning that it may be utilized when consuming alcohol.

For example, if you drink multiple cups of coffee, you are not likely to be consuming alcohol as well. Moreover, it takes a while. However, if you are consuming alcohol, popping the Aeroshots is easy and quick. While the packaging says not to use more than three puffs per day, it's hard to know how consumption will actually work, especially on college campuses where experimentation with drugs, alcohol and caffeine has historically occurred.

The product was developed by Harvard professor of biomedical engineering David Edwards, who has developed other breathable foods, including chocolate, and medications. He has developed inflatable insulin for medical purposes. His goals are to find synergies between products, art and design. His work focus a lot on how to get different flavors incorporated in similar biodegradable canisters, including chocolate another foods and drinks.

While Dr. Edwards need not worry about the effects of AeroShot, and the delivery system is quite brilliant, we need to be vigilant as Massachusetts consumers of the use and how it affects those who drink and then, of course, drive. Like Four Loko, giving individuals the perception that their consumption of alcohol is not as high as it actually is, can be dangerous. This is especially true with new products. The excitement of the novelty needs to be balanced with the concern for its use.

The product is clearly starting off with controversy. Senator Schumer of New York has asked the Food and Drug Administration to review the product, and the American Academy of Pediatrics has criticized the "party drug" promotion. As a Massachusetts injury lawyer, I wonder about the effects on alcohol and driving. On the other hand, Dr. Edwards' products may actually deliver nutrition and medicine via breathing! Getting a flavor experience without calories, or with nominal calories, may be on the forefront of science. For example, breathing medicine avoids the safety concerns of consumption into the gastrointestinal tract or into the lungs. With a lab in Paris, called ArtScience Lab, Dr. Edwards is working on other products. Of course this is very controversial now, but the potential uses of the product (not the caffeine, but the delivery system) seem fascinating.

Massachusetts Consumer Protection Statute, 93A Damages

Wed, 08 Feb 2012 13:47:35 -0500

In an important decision by the Massachusetts Supreme Judicial Court last week, it was determined that the insurance companies used unfair settlement schemes against a victim of a Massachusetts auto accident. As a result, the Court determined that is was necessary to double the jury verdict against the insurance companies. Under the law, insurance carriers are required to make prompt and fair settlement offers, or they will be subject to double to treble damages.

In this case, Rhodes et al v. AIG Insurance et al, SJC-10911, decided on February 10, 2012, a Massachusetts tractor-trailer rear-ended Marcia Rhodes' car in 2002. The crash was so severe that Ms. Rhodes fractured her spinal cord, resulting in paraplegia, multiple broken ribs and other injuries. She was hospitalized for months, and returned to the hospital twice for injury related treatment. Her medical bills exceeded $413,000; her out of pocket expenses were $83,984; and, future expected medical bills were expected to exceed $2,000,000.

Ms. Rhodes and her family retained a Massachusetts injury lawyer and filed a claim against the driver, his employer, and the owner of the vehicle. The insurance companies for those entities hired Crawford & Company to "adjust" the claim. Crawford investigated and determined that, indeed, the claim was valid and that the value was between $5 million and $10 million. Unfortunately, the insurance companies, Zurich, GAF and AIG, refused to make any offer of settlement. (Zurich actually tendered their $2 million policy to the lead insurance companies, and was not ultimately responsible for 93A violations.) Even after the driver plead guilty to the criminal act of operating to endanger, the insurance companies refused to make any reasonable offer settlement offer - they offered nothing near what their own adjusting company recommended.

Wherefore, Ms. Rhodes and her family were forced to try their case. A jury verdict of $11.3 million in September 2004 was rendered. This was, in the ballpark of what the insurance adjusting company had recommended. The law that when a victim receives a judgment on a case and the insurance company is later determined to have refused to make a fair settlement offer, the trial judge may make a finding of violations of Chapter 176d and Chapter 93A and double or triple the verdict as damages for that violation. The judge did so. Thus, the Rhodes family was entitled to $22 million, plus attorney fees, pursuant to 93A and 176d.

The insurance companies appealed. In the Rhodes case, the higher courts, the Appeals Court and the Supreme Judicial Court, were looking at the proper measure of damages. That is, they were not looking at the validity or amount of the jury verdict, nor were they looking at the trial judge's determination that the insurance companies failed to make a fair offer of settlement. They were charged with making a determination as to how to calculate damages against the insurance companies for having clearly violated the settlement law in Massachusetts. The insurance companies, of course, were advocating that damages be calculated to give the victims the minimum amount of money following the 93A verdict. They posited various theories, however, the SJC rejected them.

The SJC looked at the 1989 amendment to Chapter 93A which said that following a finding of 93A violation, the Court "shall" find "up to three but not less than two times such amount...[if the act] was a willful or knowing violation...[and the award] shall be the amount of the judgment on all claims..."

This case serves as an example of how insurance companies often operate in Massachusetts. In a case where liability, or responsibility, is contested, such as an intersection collision where both drivers say they had the green light, they can await a jury verdict as to responsibility. However, when liability is clear, as it was in the Rhodes case, Chapter 176D requires them to "effectuate prompt, fair and equitable settlement" of victims claims. Chapter 93A offers a remedy if they do not offer such settlement: multiple damages and attorney fees.

Massachusetts Personal Injury Trials

Mon, 16 Jan 2012 14:26:14 -0500

Having practiced law in the courts of Massachusetts since 1985, I feel that I have some perspective on the trends. Unfortunately, it's not good for victims of personal injury in Massachusetts. In a recent Massachusetts Lawyer's Weekly article some statistics were pointed out.

The statistics show a statewide success rate of 26% in the 700 personal injury cases tried to a verdict throughout the Commonwealth. The average masks the wide variances, which include very grim numbers for Norfolk County personal injuries. For example, in 2009, only 5 out of 35 personal injury trials were plaintiff verdicts there. (Only the Cape and Islands had a lower rate.) In Essex County, the golden spot for personal injury cases, the success rate for plaintiffs was 36%.

One Judge, Patrick F. Brady, who was a defense trial attorney prior to being appointed to the bench, does his own calculations. According to Judge Brady, from 1993 to 2010, only 16 out of 151 plaintiffs have "won" more than the insurance company offer prior to trial. Broken down, there were 7 of 69 in Norfolk, where Brady presided, and, in Plymouth County 49 of 52 were defense verdicts.

But what are the reasons? The major academic reason cited by trial lawyers is that Massachusetts does not allow jury voir dire. That is, in selecting a jury a judge asks a series of basic questions and the jury is selected. In other states, and in some courtrooms in Massachusetts, the selection process is vastly more extensive, weeding out jurors with bias.

While I fully support the struggle to get Massachusetts judges to allow full jury voir dire, it's not so clear to me that this would resolve the problem. When I look at a jury, I'm always encouraged by how eager they seem to do their job correctly.

I think it's subtler than that. The media has done a brilliant job exaggerating plaintiff victories. The McDonalds coffee burn case, for example. Further, some politicians have convinced folks that their insurance premiums would go up if they awarded monies in a Massachusetts car accident. The insurance industry has spent fortunes convincing folks that we need tort reform. It's ironic that the capitalists want socialism with respect to the courts!

Then there is the economy. When a juror is struggling to pay for his mortgage, or her school loan, and the plaintiff comes in all dressed up and with a fancy lawyer, it seems they just can't pull the trigger for damages as much as they used to. Besides, they are thinking about their insurance bill going up if they award damages.

We don't try medical malpractice cases, but the numbers are even grimmer for plaintiff victims of medical malpractice at trial; they win less than 10% of the time.

This is not a sad story, however. My experience is that there are only two types of cases that go to trial: bad ones and phenomenal ones where the victim has an opportunity to get a huge verdict. Those cases skew the statistics. Insurance companies tend to make reasonable offers of settlement on good cases. Their reasonableness is in lower dollar figures than a decade ago, however. But if a Massachusetts personal injury case is aggressively pursued, most insurance companies will, eventually, take the case seriously.

Victims of Massachusetts Drunk Drivers Can't Get Social Host Coverage

Wed, 04 Jan 2012 16:40:08 -0500

There has been longstanding law in Massachusetts that protects victims of drunk drivers who were served alcohol by a Massachusetts homeowner who knew, or should have known, that the driver should not have been allowed out of the home and onto the roads. The law was from the case Worcester Mutual Insurance v. Marnell, which was decided in 1986.

The way it has worked for decades is as follows: if you, or a loved one, is injured or killed by a drunk driver who was served by a homeowner, you can file a claim against two separate and distinct parties: the homeowner, for negligently serving the alcohol and allowing the driver to drive, and the driver, for his or her negligence in driving. The practical consequence is that there have been two insurance policies to help compensate victims for their injuries: homeowners insurance and automobile insurance. For serious injuries in Massachusetts this duel approach has been effective in helping victims to recover damages in Massachusetts.

However, there is a disturbing trend in Massachusetts which does not bode well for victims of such collisions. In the case recently decided by the Massachusetts Court of Appeals, a homeowner hosted a party in Lawrence where alcohol was served to a minor. The homeowner allowed the minor guest to leave the party and drive a motor vehicle. The vehicle struck another vehicle resulting in serious personal injuries to the persons in that other vehicle. However, in this case, Massachusetts Property Insurance Underwriting Association v. Berry, the Court noted that the specific language in the homeowners policy excluded insurance coverage for "motor vehicle liability" arising out of the operation of a vehicle "by any person" notwithstanding the fact that the operator of the vehicle at issue was not owned by the homeowners.

There seems to be a trend with the Massachusetts and federal courts, based on new languages in insurance policies, to limit coverage. In a case called Yerardi v. Pacific Indem Co, the federal court, using Massachusetts law, precluded coverage for a spouse of the insured. In another case, Hingham Mutual Fire Insurance v. Smith, involving sexual assault by the homeowner's son, a family claimed that there was negligent supervision. However, the Massachusetts Court of Appeals held that the Marnell case involved auto insurance and did not apply.

The significance, from the prospective of a Massachusetts personal injury lawyer, http://www.neilburnslaw.com/lawyer-attorney-1393809.html is that there is increasingly less insurance coverage available to victims in Massachusetts. The insurance companies are trying to tighten the drafting of the language in their policies. And, the courts are preventing victims from using all of the traditionally available insurance policies to protect those that are injured.

One way to combat this trend, on a personal level, is to be sure to purchase sufficient Massachusetts underinsurance coverage. This coverage, which you buy on your own policy, would apply to you and your family. It generally provides insurance coverage in addition to the insurance coverage of the drunk driver.

Massachusetts Auto Accident Lawyer Reviews 2011 Statistics

Sun, 01 Jan 2012 11:46:39 -0500

When a Massachusetts personal injury lawyer represents a client, we work diligently for the best result given the circumstances of the collision, the client's injuries, his or her work history, and the permanency of the injuries. However, when we review statistics from Massachusetts and from around the country, we look to seek if there are any patterns that show things are safer year after year. The good news this year is they are!

There were 605 Massachusetts highway fatalities in 1990, 433 in 2000, 441 in 2005 and 334 in 2009. Massachusetts' fatality rate was 1.3 deaths per 100 million miles driven in 1990; in 2009 it was reduced to 0.6. The United States total rate went from 2.1 down to 1.1 in that time period. That is, from 44,599 deaths to 33,808 deaths. In Connecticut, for example, the rate went from 1.5 down to 0.7; in New Hampshire the rate went from 1.6 to 0.9. While the statistics are getting better, there are still too many wrongful deaths in Massachusetts, as well as injuries and permanent losses in Massachusetts.

One statistic that gets better but remains a nagging fact is with respect to drunk driving accidents in Massachusetts. Notwithstanding the fact that drunk driving may be down by 30%, according to the United States Centers for Disease Control and Prevention, drivers in the US drove while impaired 112 million times in 2010. In 2009, the result was 11,000 deaths as a result of alcohol related driving. The statistics include the fact that men are responsible for 81% of the drinking and driving episodes; and, while men aged 21 to 34 represent only 11% of the population, they are responsible for 32% of the alcohol related driving instances. Further, 85% of drinking and driving episodes involved "binge drinking" which is 5 for more drinks for men and 4 or more for women. According to the CDC, having only two beers results in loss of judgment and having trouble doing two tasks at the same time.

An unnerving fact is that a 2011 study of drivers throughout the 50 states undertaken by the GMAC Insurance Company indicates that 80 % of current drivers cannot pass a basic driving written test! What is even scarier is that drivers in the Northeast scored the lowest

With the casino gambling issue rising again in Massachusetts, one argument is that there will be more crime, especially organized crime. We have no sense of the criminal activity following casino growth. However, another area we are concerned with is the rise in more dangerous driving, including alcohol related driving, that may accompany the growth of local casinos. If Native Americans get a license, there is an added concern because Native Americans are significantly more likely to be involved in alcohol related driving fatalities, according to a United Stated Department of Transportation, National Highway Traffic Safety Administration study.

Whether it's a casino or just plain neighborhood drivers, we continue to follow the statistics of senior drivers. In a 2011 Israeli study regarding "hazard detection" of drivers verses pedestrians in the road, it was found that elderly drivers had a slower response time. The study showed that the elderly had limited useful field of view. They also drove 20% slower; perhaps knowing their response time was slower.

On the other hand, children were found to be safer when driving with their grandparents versus their parents! This is from a study in Pediatrics by Fred Henretig.

Finally, with the large number of college students and young people in Massachusetts, we are concerned with their driving. In a 2009 Australian study published in March 2011, psychologically distressed driving was the explanation for 8.5% higher rate of risky driving among drivers aged 17 to 25. The rate was significantly higher for females; 9.5% versus 6.7% for males.

Here is to working with all of you to make 2012 a safer new year!

Massachusetts Study to Evaluate Elderly Drivers

Tue, 20 Dec 2011 14:25:19 -0500

In the United States, there is often the feeling that once you get your driver's license at age 16 or so, you have a license to drive over state and federal roads until the day you die. Some drivers, young or old, are always safe. Some are reckless at any age. But what about those who were safe drivers for so long, but now may be just old enough that reflexes are too slow?

In a program called "Keys to Independence" Emerson Hospital, in Concord Massachusetts, will utilize objective testing to determine the answers to those questions. The battery of tests, administered by an occupational therapist, is to include visual acuity, strength tests range of motion testing, and cognitive and perceptual abilities.

Emerson Hospital also hosts an AARP driving safety program. However, helpful these programs are, we would note that in a recent case in our Massachusetts accident law office, a 95 year old man who testified that he satisfactorily "passed" that program pulled out from a stop sign and caused a crash, on Route 2A in Acton, Massachusetts, when he misjudged the timing of his turn.

Nevertheless, the program seems to be a good step in informing responsible drivers how they are doing. We wonder, however, how much of an effect this will have considering the number of elder drivers that will take the class, and even if they do, what they will do with the results.

In a study undertaken by professors at the Eastern Virginia Medical School,
published in 2005, elderly drivers were tested to see how their perception of their driving skills was, compared to their actual skills. The conclusion of the study stated that "Cognitive ability was not related to self-rated driving evaluation performance." That is, after self-evaluation, drivers over 65 who considered themselves better drivers than their piers were "over four times more likely to be unsafe drivers."

Massachusetts law does not require driving tests following the initial test, usually taken at age 16 or 17! There is a new law, which requires that all license renewals for Massachusetts's drivers at age 75 or above must undertake the Massachusetts RMV vision test, or produce a "vision screening certificate" from their doctor. That law, which became effective on September 30, 2010, known as the Safe Driving Law, was the law that forbids new drivers from using cell phones, and all drivers from texting while driving in Massachusetts.

Let's try to be fair. As a Boston accident lawyer, I hear a lot from folks who wonder why "that person was driving" at all. Folks that say the elderly shouldn't drive are just as prejudiced as those that say all teenagers are texting. Most folks take driving very seriously and most have impeccable driving records. How can we differentiate those who are dangerous drivers from the rest of us? Most people know when their capacity to drive diminishes, and they stop. Or they stop at night when they can't see as well. The motor vehicle laws, no matter how expansive or restrictive, won't stop negligent drivers and won't stop someone from slipping on ice or following too close. Thus, be careful out there. And evaluate yourself, your neighbors and your loved ones on a regular basis. Recommend the Emerson Hospital class, or a similar one, to folks whose driving you think could use evaluation.

Can You Protect Yourself From Dangerous Drivers in Massachusetts?

Mon, 12 Dec 2011 10:10:18 -0500

In Hingham, Massachusetts last week, a 41-year-old man with 10 prior license suspensions, was allegedly operating a motor vehicle under influence of alcohol when he crossed over the double yellow line and struck another vehicle, seriously injuring the two people in the other vehicle and himself. Police found open containers of alcohol in the vehicle. The negligent Massachusetts driver allegedly had 16 speeding tickets on his record and was involved in five prior motor vehicle collisions in Massachusetts. Further, the driver had other serious violations including violation of open container, driving to endanger, and defaults. He may be considered a habitual traffic offender in Massachusetts.

What laws protect us from these drivers?

A first offense for operating under the influence conviction will result in up to 90-day loss of license. It can also carry incarceration in the county house of detention for up to 2 ½ years. Usually, however, there is a plea to the alternative disposition, which is 45 days of loss of license, a drug/alcohol class and fines. In the case above, while it was a first offense for driving under the influence, because of the collision and the prior record, the judge may not agree to a plea to the minimum offense policy. Thus, we are not very well protected, but then again, it's his first offense.

The second offense for operating under the influence is 60 days to 2 ½ years in incarceration, fines, suspended license for 2 years (a work hardship license available after 1 year). However, if the driver refuses the Breathalyzer they are not usually able to get a hardship license. Also, there is the new "interlock" device for convicted drivers. However, again, there is the "alternative disposition" which is 2 years of probation, 14 days in a confined alcohol treatment program, license suspension for 2 years, the interlock device. However, if the first offense was more than 10 years from the second defense, the driver may be entitled to only the penalties of the first offense.

Third offense operating under the influence drivers face a mandatory 5-6 months in jail and a license suspension of up to 8 years, with a work license in 4 years. A fourth offense includes jail time of 2 years, which, in Massachusetts means you serve one year.

A conviction for driving to endanger will result in a 60-day loss of license and up to 2 year jail sentence. But not usually; these folks don't serve any significant time in jail unless there are injuries associated with the offense. In a case where we represented the family of a Massachusetts wrongful death victim the negligent driver only got 18 months incarcerated even though he had a significant driving violation history.

Other penalties by the Department of Motor Vehicles include: three speeding tickets within one 12 month period will result in a suspension for 30 days. If a driver has three surchargeable events within a 24 month period, s/he has to comply with the DMV regulations to avoid suspension. Compliance includes taking the Driver Retraining Course. If a driver has five surchargeable events within a 3 year period triggers a suspension, but again, a driver need only take the class and a license can be reinstated. Only when there are 7 surchargable events within a 3 year period is there a mandatory loss of license - for 60 days.

The news, perhaps, for the Hingham driver, is that there is a statute called the Massachusetts Habitual Traffic Offender. Habitual offender violations results in a 4-year revocation of license -- if there is an accumulation of three "major" moving violations, or a combination of 12 major and minor moving violations and includes violations in other states.

Are we protected? No law stops the one time someone makes a mistake that injures or kills a loved one, but perhaps the seriousness with which Massachusetts treats habitual offenders needs to be reevaluated.