Articles Posted in COMMERCIAL LITIGATION

O’CONNOR vs. MERRIMACK MUTUAL FIRE INSURANCE COMPANY
No. 06-P-1750.November 24, 2008

After a fire destroyed a commercial building, a dispute arose between the insurer and the insured concerning the methodology used by the insurer to value the loss. The insured then brought an action against the insurer asserting numerous tort and contract claims as well as violations of G.L. c. 175, § 181, and G.L. c. 93A. After a jury-waived trial, the judge determined, based on the terms of the insurance policy, that the insurer had a choice of methods to calculate the loss and found for the insurer on all claims. The Appeals Court affirmed the lower court decision.

The insured had purchased an $800,000 property and casualty insurance policy. Under the terms of the policy, coverage on the building would be determined on a actual cash value basis up to the amount of the policy limit of $800,000. Although the policy did not define the term “actual cash value,” it expressly provided that the policy contained all the agreements between the parties concerning the insurance afforded and that the terms of the policy could be amended or waived only by endorsement issued by the insurer.

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ZABIN vs.PICCIOTTO
Nos. 06-P-1419, 07-P-842. November 18, 2008.

The Massachusetts Appeals Court has upheld jury verdicts in favor of five attorneys who assisted in the recovery of a $9 million settlement against an insurance company who allegedly engaged in unfair claims settlement practices. The jury found that the five attorneys performed work on the case, were subsequently dismissed by the Plaintiffs, who filed legal malpractice claims against each attorney. The attorneys then brought counterclaims to recover for legal fees arising from their representation. Several of the attorneys worked for hourly fees and several had contingent fee agreements. The Court found that a jury was justified in considering evidence of the contingent fee agreements, which the Plaintiffs signed, and could make an award in reliance on the formulas therein.

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