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Boston, Massachusetts 02108-3002

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Pain and Suffering Damages Not Subject to Workers’ Compensation Lien - Boston, MA

Tuesday, March 01, 2016

by Curtis B. Dooling

The Supreme Judicial Court recently held that pain and suffering damages recovered by an injured plaintiff in a third-party personal injury case were not subject to a lien held by a workers’ compensation insurer that paid benefits to the injured plaintiff. Although it is too early to tell what effect this case will have in civil practice, the likely result is that tort cases with large workers’ compensation liens may be easier to settle by allocating portions of settlements to pain and suffering damages, circumventing the statutory lien rights of workers’ compensation insurers. However, settlement agreements that are subject to a workers’ compensation lien still have to be approved by a judge so any allocation must be reasonable.

DiCarlo v. Suffolk Construction Co., Inc., 2015 WL 10045032, involved two separate underlying cases that both arose out of workplace accidents. In both cases, the plaintiffs, Robert DiCarlo and Bernard Martin, sustained injuries at work and both collected workers’ compensation benefits. Both plaintiffs then reached settlement agreements with third parties, which included damages for pain and suffering. In both cases, the workers’ compensation insurer sought reimbursement under G. L. c. 152, § 15 from the plaintiffs’ settlement proceeds, including pain and suffering damages.

In DiCarlo’s case, a Superior Court judge rejected a settlement agreement because it did not permit the workers’ compensation insurer to recover a lien on the entire settlement amount, including pain and suffering damages. In Martin’s case, a Superior Court judge allowed a similar settlement agreement. The practice of allocating damages between pain and suffering and special damages is relatively new, leading to inconsistent results, as evidenced by the conflicting decisions in the DiCarlo case and Martin case.

The SJC focused on the language of the workers’ compensation statute, which permits a workers’ compensation insurer to recover benefits paid to injured workers’ where the injured worker recovers damages for the same injury from a third-party tortfeasor. A workers’ compensation insurer is entitled to “the gross sum received in payment for the injury.” G. L. c. 152, § 15. The issue before the SJC was whether “injury” included pain and suffering damages. The Court concluded that it did not.

The Court reasoned that since a workers’ compensation insurer pays for lost wages and medical expenses only, not pain and suffering damages, it is not entitled to be reimbursed for something that it did not pay.

Interestingly, the Court recognized the chance that a plaintiff and settling tortfeasor may attempt to inappropriately allocate the bulk of settlement proceeds to pain and suffering damages in order to work around a large workers’ compensation lien. However, the Court noted that since settlements needed to be approved by a judge after a hearing where the workers’ compensation insurer is permitted to participate, such inappropriate allocation would not be permitted.

The American Insurance Association submitted an amicus curiae brief in support of the workers’ compensation insurer’s position, evidence of the fact that workers’ compensation insurers are not going to be pleased with this decision. On the other hand, general liability insurers may be in favor of the decision because it will make it easier to resolve tort claims with large workers’ compensation liens. Going forward, plaintiff’s lawyers may request that juries allocate damages between pain and suffering and medical/lost wage damages to lessen the amount of jury awards that are subject to a workers’ compensation lien.

Pierce & Mandell’s litigation attorneys have years of experience defending personal injury claims on behalf of insurers and self-insureds. Please contact us with any questions about this new development or any other litigation need.

Recent Changes to Superior Court Rule 9A

Friday, January 22, 2016

By: Curtis B. Dooling

Superior Court Rule 9A governs the service and filing of all civil motions in the Massachusetts Superior Court. A thorough understanding of Rule 9A is essential to a successful litigation practice.

A recent change to Rule 9A that went into effect on January 1, 2016 has simplified the manner in which reply memoranda can be filed. Under the pre-January 1, 2016 version of Rule 9A(3), a moving party was required to seek leave of court to file a reply memorandum after receiving the opposition papers.

Under the newly enacted version, the moving party may file a reply brief without seeking leave of court in order to address “matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum.” The reply memorandum is limited to five pages and is to be filed with the Rule 9A package.

Parties must still seek leave of court to file sur-replies, but the procedure to request leave of court has also been slightly changed. A request for leave of court to file a sur-reply must be in the form of a pleading, can be no longer than one page, and must be addressed to the session clerk.

These changes were put in place in an attempt to remove some confusion surrounding the correct way to request leave of court to file reply and sur-reply memoranda. Under the pre-January 1, 2016 version of the rule, it was unclear whether the moving party needed to provide the proposed reply memorandum to the court when requesting leave of court to file the reply. Some clerks and judges required this, while others didn’t.

Under the pre-January 1, 2016 version of the rule, it was also somewhat unclear to whom the request for leave of court should be addressed, resulting in delays in the filing of motions. If no response came from the judge before the Rule 9A filing deadline, reply memoranda were often filed after the Rule 9A package and were not received by the judge in a timely manner.

This change to Superior Court Rule 9A, although not monumental, nevertheless is important for litigators to understand and to follow. The change to the reply memorandum procedure is also an important step in streamlining Superior Court motion practice.


Monday, January 11, 2016

On January 8, 2016, an Essex County (Newburyport)  jury returned a defense verdict in favor of Pierce & Mandell’s client on plaintiff’s significant personal injury claim.  Bob Pierce tried the case, and Scott Zanolli assisted.

The plaintiff in the case claimed that she fell on the walkway of a condominium complex due to untreated snow and ice.   Plaintiff brought claims against the condominium trust, the condominium manager, and Pierce & Mandell’s client, the snow removal contractor.  The plaintiff claimed that she suffered a herniated disc in her back as a result of the fall.  She underwent surgery about one month after the accident, and the surgery was allegedly botched, causing the plaintiff to suffer a torn aortic artery.   The plaintiff was airlifted to Mass General Hospital, where she underwent emergency life-saving surgery.

Under Massachusetts law, a defendant is liable for all foreseeable consequences of its negligence, including a surgeon’s malpractice.   Thus, if the plaintiff succeeded at trial, Pierce & Mandell’s client would have been liable for not only the herniated disc, but the injuries arising out of the claimed medical malpractice.   The plaintiff’s medical bills approached $400,000, and the plaintiff was permanently disabled after the accident.  Plaintiff’s initial demand for settlement was $5 Million.

On the first day of trial, Bob Pierce convinced the court that the liability aspects of the trial should be bifurcated from the damages portion of the case.  This ruling prohibited the plaintiff from offering evidence of her significant injuries during the liability trial.

After a several day trial on liability, the jury ruled that Pierce & Mandell’s client was not negligent, resulting in a  complete victory for Pierce & Mandell and its client.

Bob Pierce has now achieved complete victories for his clients in his last 6 jury trials.   Overall, Bob has achieved complete victory for his clients in over 85% of the cases he has tried to conclusion.

Available Recoverable Damages In Wrongful Death Actions - Boston, MA

Friday, December 04, 2015

By: Scott M. Zanolli

In wrongful death cases, estates of the deceased are entitled to specific statutory damages.  Under Massachusetts law, these damages are governed by G.L. c. 229, §2.  A claim for wrongful death is enforced by the personal representative of the decedent’s estate for the benefit of the statutory beneficiaries.  Under G.L. c. 229, §1, the beneficiaries of the decedent’s estate entitled to recovery are the surviving spouse, children of the deceased, and, if neither of those apply, the next of kin.

These individuals may recover the fair monetary value for: (i) the loss of reasonably expected net income, (ii) “consortium-like damages,” i.e., loss of protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice, (iii) conscious pain and suffering, and (iv) reasonable funeral expenses.  Punitive damages of no less than Five Thousand Dollars ($5,000) may be awarded when the decedent’s death was caused by malicious, willful, wanton or reckless conduct, or by gross negligence.

Loss of Reasonably Expected Net Income

Determination of the amount of lost income damages is largely dependent on probabilities, and many factors will be taken into account by a court or jury, Lane v. Meserve, 20 Mass. App. Ct. 659, 667 (Mass. App. Ct. 1985), including the life expectancy of both the decedent and the beneficiaries, and the future prospects of the decedent.  The award is generally equal to the amount of net income that the decedent would reasonably have been expected to contribute to the beneficiaries.

Funeral Expenses

The estate of the deceased is entitled to recover funeral expenses.  The portion of the statute relating to funeral expenses does not refer to beneficiaries because funeral expenses become debts of the decedent's estate. Burt v. Meyer, 400 Mass. 185, 186 (1987).

“Consortium-like” Damages, i.e., loss of protection, care, assistance, society, companionship, comfort, guidance, counsel, and advice

Massachusetts does not recognize a separate cause of action for loss of consortium for family members in wrongful death cases.  However, the administrator of the estate of the deceased may bring suit for recovery for loss of consortium under the wrongful death statute, Litif v. United States, 682 F. Supp. 2d 60 (D. Mass. 2010), and the statute contemplates recovery for both spousal companionship and loss of consortium for the child of a deceased parent. Doyon v. Travelers Indem. Co., 22 Mass. App. Ct. 336 (1986).

Conscious Pain and Suffering

General Laws c. 229, § 6 permits recovery for the decedent's conscious pain and suffering between the time of the injury and the time of the death.  Recovery is made on behalf of the estate and is divided among the surviving beneficiaries under the terms of the decedent's will, or the law of intestate succession if there is no will.  The term "conscious" is not meant to be interpreted “with the refinements one expects to find in a study of the elusive subject of consciousness,” but rather, the conscious suffering shown by proof beyond mere conjecture. Or v. Edwards, 62 Mass App 475 (2004).  A potential subset of conscious pain and suffering is recovery for fear of impending or imminent death.  This is an unsettled area of law in Massachusetts, but has been recognized in other jurisdictions under certain circumstances, most notably in aviation accidents.

Punitive Damages

Punitive damages are available under the wrongful death statute in circumstances where death was caused by the malicious, willful, wanton or reckless conduct, or by the gross negligence of the defendant.  This category of damages is designed to punish the defendant, not to make the plaintiff whole. Burt v. Meyer, 400 Mass. 185 (1987).  Under this portion of the statute, the negligence of the deceased is not to be taken into account. Lane v. Meserve, 20 Mass. App. Ct. 659 (1985).

Damages in wrongful death cases are extremely complex to evaluate and estimate.  This is due in part to the fact that consortium type damages are wholly subjective, and thus their quantification can vary widely from juror to juror.  Also, determinations related to conscious pain and suffering are muddled in instances where the decedent died instantly, but suffered from an obvious fear of impending death.  Pierce & Mandell has considerable experience handling complex insurance defense, as well as wrongful death litigation, and can assist anyone involved in this type of case.


Wednesday, November 18, 2015

By Curtis B. Dooling

On New Year’s Eve 2014, an UberX driver in San Francisco struck a family crossing the street and killed a six year-old girl. This was the first – but likely not the last - tragic motor vehicle accident involving vehicles driven by Uber drivers or other ride-share companies.

What propelled this story after the tragedy was a wrongful death claim filed by the family of the little girl against Uber, which denied liability on the basis that while the UberX driver was available to pick up passengers, there were no passengers in the car at the time of the accident. If the regulatory scheme for ride-share companies is complex, the issue of liability is no less complicated.

Under the Massachusetts personal automobile insurance policy, all vehicles are required to carry bodily injury coverage of $20,000 per person and $40,000 per accident, with the option to purchase additional bodily injury coverage over the compulsory limits. This compulsory coverage is available only to individuals who are not occupants of the insured vehicle. Many ride-share drivers use their own personal vehicles when driving ride-share passengers, but don’t disclose their activities to their respective insurers. When insurers learn of this, usually after an accident, the insurer will disclaim all optional coverage, leaving only compulsory coverage available to all non-occupants of the insured vehicle. Thus, often times there is no coverage available under the driver’s auto policy for ride-share passengers injured during a ride-share trip.

According to Uber’s website, from the moment a driver accepts a trip request until that trip ends, Uber provides $1 million in liability coverage, including uninsured and underinsured coverage. This coverage is available to injured ride-share passengers, other drivers, and pedestrians, as long as the ride-share app is on and the driver has passengers. To the contrary, most taxi companies normally only carry the minimum in bodily injury coverage ($20,000 per person/$40,000 per accident). Therefore, Uber’s $1 million in liability coverage is significantly better than the average taxi’s insurance coverage.

However, there is a ride-share insurance gap. When an Uber driver has the ride-share app on but doesn’t have any passengers, does Uber’s $1 million insurance provide coverage? This issue first came to light after the tragic accident in San Francisco. The family of the six year-old girl filed a wrongful death lawsuit against Uber, which denied liability on the basis that the UberX driver, although available, didn’t have any passengers at the time of the accident. After much public outcry and criticism, Uber changed its policy to eliminate this insurance gap uncertainty. Since that time, Uber claims that its drivers are covered by bodily injury coverage from the moment that a driver turns on the app and is available for a trip request. However, the limits of coverage aren’t the same. If an Uber driver is available but has no passengers and hasn’t accepted a job, Uber provides $50,000 person/$100,000 per accident in coverage. Once a driver accepts a job, the $1 million in coverage becomes available.

Governor Charlie Baker is now weighing in on this topic with legislation that would create statutory standards to govern ride-share companies (referred to as Transportation Network Companies or TNCs). The proposed law would require that all TNC drivers carry the standard minimum automobile bodily injury coverage, effective when a TNC driver is available but before accepting a trip request. Upon accepting a trip request, a TNC driver then would be required to carry $1 million in liability insurance. The bill would bring all TNCs within the regulatory authority of the Commonwealth, and would subject TNC drivers to more stringent background and eligibility requirements. The proposed legislation has been vehemently opposed by the taxi industry, which argues that ride-share companies should be subject to the same regulation as the taxi industry.

As the popularity of Uber and other similar companies increases, regulators and lawmakers are responding with changes in the law that will affect liability coverage for ride-share companies, drivers, riders and those who may become involved in an accident with an Uber-driven vehicle. Pierce & Mandell’s attorneys have years of experience in all areas of insurance litigation and personal injury litigation.

Massachusetts Appeals Court Extends Workers’ Compensation Bar to “Alternate Employers”

Friday, November 06, 2015

by Paul Hourihan, Pierce & Mandell, P.C.

The Massachusetts Appeals Court recently extended the bar on liability provided in the Massachusetts Workers’ Compensation Act, G.L. c. 152, § 1, et seq., to protect employers whose employees are provided by a separate staffing entity. The Massachusetts Workers’ Compensation statute requires employers to obtain workers’ compensation insurance for all employees to ensure that employees injured during the course of their employment will be adequately and expeditiously compensated.  The statute also provides that, on the other hand, workers injured on the job cannot sue their employer for negligently causing the accident.

This statute has created a bit of an ambiguity in the context of the temporary workers provided by staffing companies. When a company needs extra manpower (or womanpower), and contracts with a staffing company for temporary employees, nothing in the Workers’ Compensation Act prevents an injured temporary employee from suing the temporary employer, regardless of coverage under an insurance policy.

The Massachusetts Appeals Court, in Molina v. State Garden, Inc., 88 Mass. App. Ct. 173 (Sept. 3, 2015) recently ruled that the Workers’ Compensation Act will serve to bar the claims of an injured employee against a temporary employer when (1) the temporary employer works at the direction of the temporary employer and (2) the temporary employer is afforded workers’ compensation insurance coverage under an “alternate employer endorsement” of the staffing company’s insurance policy. The “alternative employer endorsement” of the policy will serve to cover a temporary employee’s accident and will provide the temporary employer the protections of the Workers’ Compensation Act.

This ruling serves as an exhortation to any employers who contract for employees from staffing companies: insist that any staffing company provide an “alternate employer endorsement” naming your company as an alternate employer. Doing so will protect your temporary employees and will protect your company from lawsuits.

Paul Hourihan is an associate at Pierce & Mandell who handles claims for workplace accidents and injuries.

Trip and Fall Suit Against Retail Store Dismissed on Summary Judgment - Boston, MA

Friday, October 02, 2015

By: Curtis B. Dooling

A superior court judge recently dismissed a plaintiff’s trip and fall claim against Ward’s Berry Farm in Sharon, MA, holding that a pallet with a box of empty fruit baskets on it next to a checkout counter was not an unreasonable danger that required the store to warn customers.

In the case, Belanger v. Boys in Berries, LLC, the plaintiff was at a checkout counter at Ward’s Berry Farm, a pick your own fruit farm stand. While in the checkout line, the plaintiff saw a large box that contained a number of empty fruit baskets used to pick your own fruit. The plaintiff didn’t notice that the baskets sat on a wooden pallet. As the plaintiff walked away from the checkout counter, she tripped and fell over a corner of the wooden pallet.

The plaintiff claimed that the placement of the pallet directly adjacent to the checkout counter was dangerous and that the store breached its duty to maintain the premises in a reasonably safe condition. The court disagreed. The court found that placing the pallet at the end of the checkout counter in full view of customers was “fully consistent” with a store’s duty to maintain its premises in a safe condition. The court relied on two Supreme Judicial Court cases which held that customers in supermarkets could not sue for tripping over stock carts or shopping carts in aisles. The court held that a pallet near a checkout counter was just as ubiquitous as a shopping cart in a supermarket aisle and was not an unreasonably dangerous condition.

The ruling is a victory for property owners. The ruling confirms that it is insufficient for a plaintiff simply to show that she tripped over an item in a retail store. To the contrary, a plaintiff must show that she tripped because of a retail store’s failure to remedy a dangerous condition. Having a pallet with boxes on it is quite common in retail stores. In this case there was no evidence of poor lighting or damage to the wooden pallet or any other indicia that the pallet or its location in the store was dangerous.

All too often property owners and insurers are willing to settle trip and fall claims rather than litigate the cases and seek summary judgment. Pierce & Mandell’s litigation attorneys regularly represent small businesses and property owners and are uniquely qualified to aggressively defend any slip and fall claim.

“Hereof fail not…” – The SJC’s Recent Change to Mass. Subpoena Procedure

Wednesday, July 15, 2015

by Paul Hourihan, Associate, Pierce & Mandell, P.C.

The Massachusetts Supreme Judicial Court recently amended Rule 45 of the Mass. Rules of Civil Procedure to include language authorizing “documents only subpoenas.”  Prior to this change, subpoenas in Massachusetts were deposition subpoenas: attorneys, even if they didn’t want to talk to you, would send you a subpoena that made it look like they wanted to sit down and talk to you, when all they really wanted was your documents.  (This is called a deposition subpoena duces tecum, Latin for “you will bring with you…”).

The change undoubtedly clarifies a heretofore ambiguous procedure, and may help settle the question of “do they really want me (or my client) to show up, or do they just want documents?”  What remains to be seen is if this will cause a spike in subpoena non-compliance.  A subpoena is easier to ignore if you are not being compelled to actually show up at a certain place and time. With the threat of schedule disruption having been removed, to ensure compliance, attorneys will have to rely on official-looking notary seals and that omnipresent, intimidating, inscrutable subpoena sign-off, “Hereof fail not as you will answer your default under the pain and penalties in the law in that behalf made and provided.”

In the health care field, the rule change does not eliminate the need of health care providers to serve an objection letter if the subpoena is served without a signed patient specific authorization when (1) the records sought are hospital or clinical records and the records include protected information or (2) the records sought contain non-facility practitioner/practice health information of any kind.

Pierce & Mandell, P.C. has extensive experience in the field of subpoena compliance, navigating the confidentiality and privilege pitfalls of subpoena responses for individuals, health care providers, and corporations of all types and sizes.

Pro Hac Vice Counsel; Only as Good As Their Local Counsel

Thursday, March 26, 2015

By: Dennis Lindren

Pursuant to G.L. c. 221, §46A, out of state counsel may seek permission to practice law temporarily in Massachusetts pro hac vice.   While the provisions of that particular statute clearly allow the Court wide discretion in deciding a pro hac vice motions (see e.g. Diluzio v. United Electrical, Radio and Machine Workers of America, Local 274, et al., 391 Mass. 211 (1984), in practice, opposing counsel rarely oppose, and the Courts routinely grant, pro hac vice motions to out of state counsel who satisfy the requirements of the statute.  The operative question then is not whether out of state counsel can represent their clients in Massachusetts Courts, but whether the best interests of the client are advanced by doing so.

To even the most experienced out of state lawyer, the legal landscape in Massachusetts can be confusing, if not somewhat intimidating.  From the unique procedural requirements of Superior Court Rule 9A, to the considerable remedies (in theory) allowed pursuant to the Massachusetts Consumer Protection statute, G.L. c. 93A, developing a basic understanding of Massachusetts law in any given practice area is no small task.  In addition, there are very important cultural, economic and geographic considerations unique to Massachusetts to be taken into account in formulating litigation and trial strategy that the uninitiated lawyer may likely overlook to their client’s detriment.  In short and not surprisingly, there is a considerable home field advantage for the client who is represented by a Massachusetts attorney in a Massachusetts action.

Nevertheless and for a variety of reasons, it often makes sense (or the client simply prefers) that their out of state counsel seek to be admitted pro hac vice.   In such instances, the first and most critical step is to identify and retain experienced, local trial counsel.  Not only are local counsel required to enter an appearance in the matter and sponsor the pro hac vice motion, but much more importantly, when allowed, they act as procedural guides and local legal experts, invariably saving the client time and money in the prosecution or defense of their action.  At Pierce & Mandell, P.C., we are experienced trial lawyers who try cases.  We have broad experience trying the most sophisticated civil litigation matters.  We have worked with a variety of small, medium and large out of state firms, both as co-counsel and local counsel, in the prosecution and defense of civil actions here in the Commonwealth.  If your client is in need of Massachusetts counsel, or you are in need of local counsel to sponsor your pro hac vice motion, please contact Dennis Lindgren at (617) 720-2444.

Bob Pierce tells Boston Business Journal to Expect a Major Spike in Winter-Related Litigation - Boston, MA

Friday, March 06, 2015

Seasoned Pierce & Mandell litigator and founding partner Bob Pierce may not get his NCAA Final Four Championship bracket exactly right, but he was pretty confident when reached by The Boston Business Journal this week about the effect of this biblical winter on future litigation.  Unlike some past winters that were relatively mild with minimal snow and ice events, Pierce said that this year’s historic winter will inevitably lead to more litigation, predicting a 50 percent increase in winter related claims.

“By the summer we’ll see a spike in litigation,” the veteran attorney told the Boston Business Journal’s Greg Ryan, whose story describes this winter as ‘snowmaggedon.’

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