Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Insurance Defense and Litigation

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Pierce Mandell Secures Important Appellate Victory Case Involving Disparate Fault Theory of Common Law Indemnity

Tuesday, October 01, 2013

Pierce & Mandell, P.C. has secured an important appellate victory for a subcontractor and buyer of industrial scaffolding equipment in the appeal of a dismissal of the indemnity claims the equipment’s manufacturer.  

In Fraco Products, Ltd., et al. v. Bostonian Masonry Corp., the Massachusetts Appeals Court addressed whether or not the trial court erred in dismissing the indemnity claims of the manufacturer of industrial mast-climbing scaffolding equipment that collapsed on Boylston Street in Boston in April 2006.  In its appeal, the manufacturer sought indemnity for the amount it paid to settle to the claims filed by the estate of an employee of the purchaser who was killed in the accident.  

Robert Pierce, a shareholder at Pierce & Mandell, argued successfully for the defense.  

Among the issues addressed by the Appeals Court was the so-called “disparate fault” theory of common law indemnity.  In general, a party who is at fault for an injury is not entitled to common law indemnity from another negligent party.  However, under the “disparate fault” theory, a party whose negligence in connection with a particular injury is relatively small as compared to that of another party may seek indemnification from the party who is disproportionately at fault for the same injury.

The opinion of Justice Katzmann, who wrote for the panel of three justices, stated “[a]lthough the Supreme Judicial Court has adverted to the differing degree of fault theory in two modern decisions, see Rahthbun, Western Mass. Elec. Co., 395 Mass. 361 (1985), and Economy Engr. Co. v. Commonwealth, 413 Mass. 791 (1992), in neither case was indemnification allowed.   Moreover, a review of the cases cited in Rathbun reveals only one case, more than a century ago — before the existence of statutory contribution and workers’ compensation — in which the court allowed indemnification to one of two joint tortfeasors based on differing degrees of fault.”  The Appeals Court, instead, applied the general rule that a party who is at fault for an injury is not entitled to common law indemnity and upheld the dismissal of the claims of the manufacturer.

In so ruling, the Appeals Court determined that the plaintiff manufacturer was not entitled to a new trial to ascertain whether or not its negligence was of the small amount contemplated by the “differing fault” theory of common law indemnity.  The Appeals Court also ruled that no common law indemnity obligation could be inferred from the buyer-manufacturer relationship of the parties, and that the contractual indemnity claims of the manufacturer also failed as a matter of law.
 
Pierce & Mandell has broad experience in the most sophisticated insurance defense, catastrophic injury and construction related litigation, and we routinely handle high value trials and appeals where cutting edge legal issues in these fields are determined.

Interest On Tort Judgments for Personal Injury and Property Damage Claims - Boston, MA

Monday, March 11, 2013
By: Thomas E. Kenney

In Massachusetts, interest on tort cases is governed by two statutes, one providing for pre-judgment interest, and one governing post-judgment interest.  G.L. c. 231, § 6B provides that where a plaintiff recovers in a personal injury claim or property damage claim, the clerk shall automatically add interest to the recovery in the amount of twelve percent per annum for the period from the date of filing the complaint until the date of judgment.  This is simple interest, with no compounding.  Thus, by way of example, if the plaintiff filed suit on January 1, 2012 and recovered a jury verdict in the amount of $100,000 on December 31, 2012, the clerk would automatically add $12,000 to the award for pre-judgment interest, and enter judgment in the amount of $112,000 plus any litigation costs and/or attorneys fees awarded.

G.L. c. 235, § 8 provides that interest on judgments shall run at the same rate as pre-judgment interest accrued on the judgment.  Thus, for personal injury and property damage claims post-judgment interest runs at the rate of twelve percent annum, with no compounding.  In other words, the interest runs post judgment at the rate of one percent (1 %) per month of the total amount of the judgment.  Because the judgment amount includes pre-judgment interest, and post-judgment interest is calculated on the entirety of the judgment, post-judgment interest includes interest on interest – that is interest on the pre-judgment interest awarded.  In addition, to the extent that the judgment includes amounts awarded for litigation costs and attorneys fees, post-judgment interest accrues on those amounts at the same rate.  Thus, under the example in the prior paragraph, assuming a jury verdict of $100,000, pre-judgment interest of $12,000, and litigation costs of $8,000, the clerk would enter a judgment in the amount of $120,000.  Post-judgment interest would run on the entire $120,000 judgment at the rate of twelve percent per annum, or $1,200 per month.      

The litigation attorneys at Pierce & Mandell have a wealth of experience in all facets of tort litigation, including personal injury cases and property damage cases.  Please contact Bob Pierce at 617-720-2444 if you have any questions, or would like to discuss a potential tort litigation matter.

Dennis M. Lindgren named "Rising Star" by Super Lawyers 2012

Wednesday, January 02, 2013

Pierce & Mandell, P.C. congratulates our newest partner, Dennis M. Lindgren, on being named a "Rising Star," in the practice of Plaintiff's Personal Injury law by Super Lawyers 2012, a joint publication of Boston Magazine and Reuters.

Rising Stars are those attorneys under the age of 40 who have been nominated by peers for excellence in their chosen practice area.  Candidates are then evaluated utilizing twelve indicators of peer recognition and professional achievement.  

No more than 3% of eligible lawyers in Massachusetts are named to the Rising Star list each year.  We are proud that Dennis has been inducted into this elite group for the second straight year.

For assistance with your potential personal injury claims, contact Pierce & Mandell, P.C. or Dennis M. Lindgren.

Out of State Driver’s Damages not Offset by Personal Injury Protection

Tuesday, December 18, 2012

In Massachusetts, every insured driver carries their own personal injury protection coverage ("PIP") which, regardless of fault, will cover some portion of that person's medical bills and lost wages (anywhere between $2,000.00 and $8,000.00, depending upon the circumstances). When those drivers are injured by the negligence of another driver, and seek compensation through a personal injury claim, defendant drivers and their insurance companies have typically relied upon what is known as a “PIP offset”, as provided in Massachusetts General Laws chapter 90, §34M, which exempts a defendant from tort liability to the extent of PIP benefits available to an injured plaintiff. 

In practice, the PIP offset allows the defendant's insurer to deduct from a verdict any moneys spent by the plaintiff's PIP carrier on his or her behalf.  For example, if a plaintiff was awarded $50,000.00 in a motor vehicle personal injury case, but received $8,000.00 in PIP benefits, the defendant's insurer would be entitled to an offset (or credit) of $8,000.00, and would only be liable to the plaintiff for $42,000.00 (excluding interest).  Even where a plaintiff attempts to settle their claims before initiating litigation, insurance companies often invoke the PIP offset to justify what otherwise might be an unreasonably low offer.  PIP offsets are therefore just one of many traps awaiting the unwary who are unfamiliar with motor vehicle and personal injury litigation, and the claims settlement process.

Recently, however, Massachusetts courts have begun to limit the scope of the PIP offset.  According to a recent Appellate Division ruling, an out of state motorist whose insurance did not have PIP benefits, but whose negligence caused injury to another driver in Massachusetts, was not entitled to have the injury victim’s damages offset by the amount of PIP benefits the victim received from his own insurer.  See DiStefano v. Jovet, Lawyers Weekly No. 13-060-12. 

This is an important development, especially in the Northeast where automobile travel is common between a large number of states, all with their own unique insurance laws.  Frequently out of state drivers are involved in motor vehicle accidents here in Massachusetts, and in such instances, those who do not carry PIP coverage may not be entitled to the offset.  For the moment, whether the Appellate Division's recent opinion in DiStefano results in out of state insurers ending their practice of invoking the PIP offset remains to be seen.  Regardless, an informed claimant with knowledgeable counsel needs to be prepared to confront these, and other intricacies of the personal injury claims settlement process.

If you have been involved in an accident where PIP coverage is in question, contact Pierce and Mandell, P.C.

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