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Recent SJC Decision Establishes That Insurer’s Duty to Defend Does Not Include Counterclaims

Monday, November 20, 2017

Curtis B. DoolingBy Curtis B. Dooling

Under Massachusetts law, an insurer’s duty to defend its insured is broad. An insurer has a duty to defend its insured if the allegations against the insured are “reasonably susceptible of an interpretation that states or roughly sketches a claim” that falls within the defense obligation’s scope. Billings v. Commerce Ins. Co., 458 Mass. 194, 200 (2010).

Even where some claims against an insured are not covered by insurance, if some of the claims are covered, an insurer has a duty to defend the insured against all claims. This is commonly referred to as the “in for one, in for all” doctrine.

Until recently, the law was unsettled in Massachusetts as to whether an insurer had a duty to pay the legal costs associated with a counterclaim filed by an insured in response to a covered claim against the insured. In the case of Mount Vernon Fire Insurance Company v. Visionaid, Inc., the Supreme Judicial Court, in a 5-2 opinion, held that an insurer is not required to pay for its insured’s counterclaim. Massachusetts has joined the majority of jurisdictions that don’t obligate an insurer to cover the costs of an insured’s counterclaim, even where the counterclaim is related to and assists in the defense of the underlying case.

The defendant/insured, Visionaid, Inc., argued that the duty to defend included all reasonably necessary steps to reduce the liability of the insured, including the costs of a counterclaim. The SJC relied on the plain meaning of the insurance policy and held that the policy did not impose an obligation on the insurer to fund a counterclaim.

Chief Justice Gants dissented and noted that an insurer can’t fulfill its duty to defend without prosecuting related counterclaims that reduce its insured’s liability. The majority disagreed and held that an affirmative counterclaim did not fall within the definition of “defend” under the policy.

Practically speaking, an insured who believes that it has valid counterclaims may still assert the claims, but will have to do so at its own expense. When this scenario occurs, insurance defense counsel will have to work closely with the insured’s personal counsel to both defend the case and prosecute the counterclaim.

Pierce and Mandell’s insurance and litigation attorneys are well-versed in these areas and can assist both insurers and policyholders in assessing what claims are covered under an insurance policy.

The Wage Act – Are Commissions Considered Wages?

Tuesday, July 18, 2017

Pierce & Mandell, P.C., Boston, MABy Curtis Dooling

The Massachusetts Wage Act, G. L. c. 149, § 148, requires that employees pay their employees’ wages within six days of the end of the applicable pay period. The law includes harsh penalties for failure to pay wages, including the mandatory award of triple damages and attorneys’ fees. An employer that violates the Wage Act can also be subject to criminal penalties and corporate officers and directors can be held personally liable for Wage Act violations.

While the payment of hourly wages and salaries is generally straightforward, the payment of commissions can be decidedly less so. Employers often refuse to pay commissions to employees upon termination, even when the employee has earned the commission.

The Wage Act applies to commissions and the failure to pay earned commissions subjects employers to the same harsh penalties as the failure to pay hourly wages. The Wage Act states, in relevant part,

This section shall apply, so far as apt, to the payment of commissions when the amount of such commissions, less allowable or authorized deductions, has been definitely determined and has become due and payable to such employee, and commissions so determined and due such employees shall be subject to the provisions of section one hundred and fifty.

In other words, if the commission can be calculated and is due under the terms of an employment contract, the employer must pay it, or be subject to the penalties set forth in the Wage Act.

Even if the commissions are discretionary, that doesn’t necessarily mean they don’t fall under the guise of the Wage Act. Even when employers have wide discretion in making calculations and determinations as to the amount of commissions, an employee can still bring a Wage Act claim and can be awarded damages if the employee can show that the commissions were due and payable and definitively determined.

Pierce & Mandell’s litigation attorneys are well-versed in all aspects of the Wage Act and can guide both employers and employees through the process of filing and defending a Wage Act claim.

Dooling Wins Premises Liability Jury Trial in Berkshire County

Thursday, February 02, 2017

Curt Dooling recently obtained a defense verdict on behalf of his clients in a jury trial in the Pittsfield District Court in Berkshire County.

The plaintiff sustained multiple leg fractures after tripping over an entrance rug in a convenience store in Pittsfield, Massachusetts. Dooling represented the owner and operator of the convenience store. The plaintiff alleged that the entrance rug on which he tripped was defective because it failed to comply with American National Standard B101.6, the Standard Guide for Commercial Entrance Matting. The plaintiff also claimed that the store failed to properly secure the mat to the floor, which created a tripping hazard.

Before the trial began, Dooling filed a motion in limine to exclude any evidence regarding the size and type of the entrance rug on which the plaintiff tripped and whether the rug complied with any industry standard or regulation. The trial judge allowed Dooling’s motion in limine, and as a result, the plaintiff was foreclosed from presenting evidence in support of key elements of his theory of liability.

The jury deliberated for less than one hour and returned a defense verdict, determining that Pierce & Mandell’s clients were not negligent.

Attorney Curtis Dooling Participates in MCLE Practicing with Professionalism Course

Friday, December 02, 2016

On November 14, 2016, Pierce & Mandell attorney Curtis Dooling participated in a lunchtime roundtable discussion for approximately 100 newly admitted lawyers in a program sponsored by Massachusetts Continuing Legal Education (MCLE).

Pursuant to Supreme Judicial Court Rule 3:16, newly admitted lawyers in Massachusetts must take a one-day professionalism course within 18 months of admission. During the day-long course, new lawyers attended seminars and training on a variety of topics, including ethics, court practice and successful attorney-client relationships. During the lunch session of the program, Dooling and three other experienced attorneys, two of whom practiced civil law and two of whom practiced criminal law, presented for nearly one hour. Dooling and his fellow panel members answered questions from attendees on all manner of practical legal issues like developing good relationships with clients, balancing work and family life and dealing with judges and court personnel.

On participating in the Practicing with Professionalism course, Dooling noted, “I found the discussion to be enlightening and enjoyable. I hope I was able to provide some practical advice to the newly-admitted attorneys. The discussion focused on real-life issues that lawyers must deal with that unfortunately aren’t taught in law school. The MCLE does a great job in running the program.”

Liability Waivers and Releases – Who and What is Being Released - Boston, MA

Thursday, December 01, 2016

Pierce and Mandell, PC. Boston, MAby Curtis Dooling

Superior Court Judge Dennis Curran recently allowed the estate of a man who died at a YMCA facility to proceed with a wrongful death claim against the YMCA even though the decedent signed a liability release. The decedent, who was participating in an elderly exercise program at the YMCA, was found unconscious in a steam room. YMCA employees could not access the control room to shut off the steam heat. The decedent experienced catastrophic burn injuries and died shortly after being transported to the hospital.

The decedent signed a release absolving the Silver Sneakers program from all liability. The Silver Sneakers program was an elderly exercise program that encouraged seniors to join the YMCA to exercise. The program was operated by the YMCA at a YMCA facility. Although the release had broad and somewhat ambiguous release language, it did not specifically mention the YMCA as a released party. Thus, the court held that the plaintiff’s claims against the YMCA and its employees were not barred by the release. The court also held that the release did not bar claims for gross negligence because these claims were not specifically mentioned in the release.

This case demonstrates the importance of the language of a liability release. Liability releases and waivers are ubiquitous in modern society. Businesses often make patrons sign releases to protect against claims and lawsuits. However, as this case makes clear, poorly and vaguely written releases won’t stand up in court. It is vitally important to ensure that liability releases and waivers are carefully drafted to release the numerous potential claims that could be brought and to identify the parties being released as anyone or anything that is involved in any way in owning, managing or working at a business, facility or event.

Pierce & Mandell’s litigators have years of experience advising and representing businesses in risk and claims management and have litigated countless cases involving liability waivers and releases.

Attorney Curtis B. Dooling Admitted to Supreme Court Bar - Boston, MA

Monday, May 16, 2016

On Monday, May 2, 2016 Pierce & Mandell, P.C. attorney Curtis B. Dooling was admitted to the Bar of the United States Supreme Court. Dooling was admitted along with fellow alumni of New England Law | Boston, where he graduated in 2006 and where he is an Adjunct Professor of Legal Research and Writing. United States Supreme Court Chief Justice John Roberts administered the oath to Dooling and his fellow admittees.

Dooling is also admitted to practice in Massachusetts, New Hampshire, the United States District Court for the District of Massachusetts and the United States Court of Appeals for the First Circuit. Dooling is a litigator with a focus on tort litigation, real estate and land use litigation and commercial litigation.

Curtis B. Dooling named a 2012 “Rising Star” by Super Lawyers

Tuesday, December 18, 2012

Pierce & Mandell, P.C. congratulates Curtis B. Dooling on being named a “Rising Star” by Boston Magazine in the practice of Land Use and Zoning by Super Lawyers 2012, a joint publication of Boston Magazine and Reuters.

Rising Stars are a select group of attorneys under the age of 40 who have been nominated by their 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 percent of eligible lawyers in Massachusetts are named to the Rising Star list each year. We are proud that Curt has been inducted into this elite group.

For help with land use and zoning issues, contact Pierce and Mandell.

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