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The wife of an employee who suffered injuries while operating a forklift, which resulted in his death, is entitled to keep an award of $1.5 million awarded by a jury who found that the manufacturer of the forklift beached a duty it owed to the subsequent users of the machine, even though they were not its original purchasers.

The U.S. First Circuit Court of Appeals had certified a question to the Maine Supreme Court regarding a jury instruction given in the case, which was taken from the Restatement of Torts, section 10, involving products liability. The question was whether a manufacturer had a duty to warn known but indirect purchasers where a product was not defective at the time of sale, but a product hazard developed thereafter.

The Maine Supreme Court answered in the affirmative, not relying on the Restatement language, but based on the facts presented in the case, determining that liability could be established on a theory of simple negligence. This was so because the manufacturer specifically knew that this company owned one of its forklifts and therefore the risk of injury to this particular defendant was foreseeable.

The Defendant argued that it was entitled to a new trial because the Restatement jury instruction was improper, based on this interpretation. The First Circuit disagreed. Specifically, the Court found that the duty of care issue had been properly presented to the jury, and before the Court made any kind of ruling on the jury instructions, and in fact it was the Defendant who had requested the Restatement instruction.

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A January 22, 2009 collision between a police cruiser responding to an auto accident and a vehicle driven by an Auburn woman has reminded us of a law little known to most, which limits the unfettered rights of official vehicles responding to an emergency.

While it is well known that laws require driver’s to yield to police and other emergency vehicles, few are aware that the responders also have limitations on their rights. Specifically, although permitted to pass through an intersection against a red traffic light or where there is a stop sign, in the interest of avoiding dangerous collisions, the responders are nonetheless required to come to a complete stop before proceeding.

This particular car accident occurred in Sutton, Massachusetts at around 8:45 a.m. when a car collided with a Sutton police cruiser at the intersection of Route 146 and Boston Road. Although the woman was cited for failing to yield, it appears that she was legally passing through the intersection with a green light, and the police cruiser passed through a red light signal. 

Apparently, other vehicles were aware of the cruiser and had yielded, but the woman did not. It is assumed she was not aware of the presence of the police car, and the obvious question is whether the cruiser indeed came to a complete stop before proceeding through the intersection.

 

police-cruiser-collisionIf it is determined that the officer did not completely stop before proceeding, he violated a Massachusetts statute, G.L. c.89, §7B, entitled Operation of emergency vehicles , which states in part:

….that the driver of a vehicle of a police or recognized protective department or the driver of an ambulance, in an emergency and while in performance of a public duty or while transporting a sick or injured person to a hospital or other destination where professional medical services are available, may drive such vehicle …through an intersection of ways contrary to any traffic signs or signals regulating traffic at such intersection if he first brings such vehicle to a full stop and then proceeds with caution and due regard for the safety of persons and property… 

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textron.jpgInternal documents prepared by a corporation, which analyze the potential success of IRS challenges to its tax returns, is protected work product and not discoverable by the IRS as part of a subsequent investigative subpoena, according to the U.S. First Circuit Court of Appeals.

In this case, Textron, Inc. and its various subsidiaries had prepared internal tax accrual workpapers, which listed positions the company was taking on its 2001 IRS returns, and which might require the company to set aside a reserve. These positions were then analyzed by Textron attorneys who estimated a percentage likelihood that the position would not prevail if challenged by the IRS. Textron had also produced these workpapers to its independent auditor, Ernst & Young.

The IRS had issued an administrative summons to obtain the documents, which Textron refused to produce, claiming various legal defenses. The IRS sued to enforce the subpoena. After an evidentiary hearing, the district court for the District of Rhode Island ruled that the documents were protected as work-product, and also found that Textron’s disclosure to Ernst & Young did not constitute a waiver (although it did rule that the disclosure constituted a waiver of any attorney-client privilege claimed).

The IRS appealed. The First Circuit agreed with the District Court, finding that the documents were produced “because of” potential litigation. While not all dealings with the IRS during an audit could be construed as comercial litigation, “the resolution of disputes through adversary administrative processes, including proceedings before the IRS Appeals Board” fell under the definition of litigation.

The IRS had argued that preparation of tax returns was not meant to be an adversary process, but a self-reporting exercise, which relied on the good faith of taxpayers, and that it was entitled to verify such self-assessment by reviewing any relevant information.

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Accidents often arise out of situtions where someone’s conduct causes injury to another, and it appears that the act causing injury was carried out intentionally. The most obvious type of situation is an assault and battery. Someone hits you in the face with their fist and causes injury, requiring medical treatment. You obtain treatment, seek the services of an attorney and bring a claim. The individual who caused the injury usually resides in a home and may have liability insurance coverage under the policy insuring the home, even if someone else owns the house. 

Most homeowners’ insurance policies provide insurance coverage for household members for their conduct both within and outside of the home. However, there are usually exclusionary provisions, which preclude coverage for intentional acts, and more specifically, for intentional illegal or criminal acts.

At first blush, one might assume that in all such situations, where an act appears to be intentional, there will be no coverage. However, Courts in Massachusetts and elsewhere have interpreted insurance policies to preclude coverage only where there was an intent to cause a specific injury, rather than simply if the act itself was intentional.


febsnow_snowball_fight400x300.jpgThus, for example, if a group of children were throwing snowballs at one another in the yard, obviously intending to hit one another, and a snowball happened to hit a child in the face, causing injury to an eye, for example, it is likely that there would be insurance coverage for the accident. The act was intentional, but there was no intent to cause the specific injury. In this situation, there would likely be coverage afforded.

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prostitution02cc_400.jpgA police officer who prevented an suspected prostitute from leaving a hotel by grabbing her in a hotel hallway and then detaining in her in a hotel room, after physically preventing her from leaving the premises, may be liable for personal injuries as the result of using excessive force, but not for wrongful detention, according to the U.S. Court of Appeals.

The case involved a prostitution sting, which took place in a hotel in Portland, Maine in March, 2006. The hotel room was set up for video and audio surveillance, with officers and a prosecutor set up in an adjoinging hotel room. The Plaintiff had responded to a telephone request for an exotic dancer to come to the hotel. An undercover officer was in the room impersonating a customer seeking sexual favors.

The Plaintiff entered the room, and was asked to undress, but suspicious of the circumstances, told the officer she was only there to dance and then asked the officer to take his clothes off. He refused. She then agreed to undress, but quickly discerned that the police were involved. Money was sitting on the dresser and the woman took a $20.00 to “pay for her trouble”, and commenced to leave the room and the hotel.

However, she was apprehended in the hallway by a police officer who had been in the adjoining room. He grabbed the Plaintiff by the arm, put her against the wall, and then took her back into the hotel room to further question her. She was ultimately permitted to leave without any arrest. The Plaintiff went home, called the police, and later went to the hospital, where was treated for injuries to her arm and shoulder, which later was diagnosed as a torn rotator cuff.

The Plaintiff filed a 42 U.S.C. 1983 action, claiming her civil rights had been violated by the police officer, alleging wrongful detention and excessive force. The Defendant moved for summary judgment, which was granted by the U.S. District Court Judge, finding that the police officer had probable cause to detain the Plaintiff based on the “pooled knowledge” of the police present, and specifically because the Plaintiff had stolen the $20.00 bill (although she gave it back at the hotel). The judge ruled that the detention, and force used, were reasonable, given that there was probable cause for an arrest and that the officer had limited immunity in carrying out reasonable and appropriate police activities.

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docsThe Massachusetts Appeals Court has reversed a Superior Court ruling reinstating a medical professional malpractice complaint, which had been dismissed for lack of service, but reinstated over one year later on a Motion to Vacate Judgment under Mass. Rules of Civil Procedure Rule 60(b).

The original complaint had been filed within the statute of limitations, but not served within the following ninety (90) days as required under the Mass. Rules of Civil Procedure, Rule 4(j). Counsel for the Plaintiff had sought and obtained not less than five (5) extensions from the Court, but still was unable to effect service.

The medical malpractice action was filed against the Beth Israel Deaconess Medical Center, Inc. and two of its physicians, alleging their failure to diagnose cystic fibrosis during care and treatment of him up to and including December 3, 2001.

Plaintiff’s attorney filed an initial complaint and then repeatedly sought the Court’s permission to delay filing “a more detailed” complaint. Other excuses followed resulting in a total of six extensions. However, the complaint never got served and the Complaint was dismissed.

Thirteen months later, Plaintiff’s counsel filed an ex parte motion to vacate the judgment, which was allowed. Service was then effected, and Defendants filed motions to reconsider the allowance of the Rule 60(b) motion, which vacated the judgment. The motions were denied, and the defendants appealed.

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stumps.jpgThe Massachusetts Appeals Court has determined that a bank, acting as a fiduciary under a family trust, was liable for ignoring the provisions in a lease, which gave the lessee of a Cape Cod property used as a tree stump dump a right of first refusal with respect to purchase of the property.

The Plaintiff in this case operated a stump dump on property in Chatham owned by the Defendant, Fleet Bank, as Trustee of a family trust. It had a series of leases with the owner, which contained renewal options as well as a right of first refusal in the event of a bona fide offer of purchase from an outside party. The plaintiff brought suit after the subject property was transferred to the beneficiaries and then sold to a third-party purchaser. At the time of sale, the plaintiff’s leases on the property had not been renewed, but verbal extensions had been granted while negotiations were ongoing.

The plaintiff alleged in its complaints that both Fleet and the beneficiaries breached the implied covenant of good faith and fair dealing with regard to lease renewal option and the right of first refusal contained in the leases; and that both constituted unfair and deceptive acts or practices, in violation of G.L. c. 93A.
The Plaintiffs had been involved in extended negotiations for a lease renewal under the option granted in the expiring leases, and also made an offer to purchase the property, which was held up due to issues surrounding the title. During the negotiations, the oldest beneficiary under the trust died, which caused the trust assets to be distributed to the remaining beneficiaries.

During this extended period, the owners received another offer to purchase from a third party, and ultimately, title was transferred to the beneficiaries and then to the new offeror. The Plaintiffs were aware of the offer, and through counsel, sought to learn the terms so that they could exercise their right of first refusal. Their requests were ignored by Fleet and the beneficiaries.

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A severe fire related accident occurred as the new year struck in Freedom, NH. The location was a lakeside private home owned by one of the group, all recent graduates from Holy Cross College. The group was outside celebrating and had a bonfire going on an old grill.  It appears that the accident occurred when one of the revelors poured an accelerant, said to be a lantern fuel, onto a smoldering log, intending to restoke the fire. It is believed that gas fumes from the fuel ignited and set fire to the clothing worn by three woman who were huddled around the fire causing personal injuries to several woman present.

Two of the woman were Boston area residents and were critically injured with first, second and third degree burns. The third girl’s injuries were less severe, as she was apparently wrapped with a blanket more quickly following the incident. It was said that the other girls ran back to the larger group still aflame, and only then were wrapped so that the flames could be put out.

The accident brings to mind the severe danger, which fires, and in particular outdoor bonfires present, especially during holiday times, when the consumption of alcohol seems to become a factor in the judgment used by partygoers.  The U.S. government has conducted studies, which show that outdoor fires spike during holiday periods, and that the period between midnight and 1:00 a.m. on New Years has a particularly high incidence rate of fires, and fire related accidents, much more so than other times of the winter and the rest of the year. Based on a 2001-2 study conducted by the U.S. Fire Administration, there were an estimated 6,400 fires during the New Year’s period, causing an average of 30 deaths and 93 injuries.

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submarineThe U.S. First Circut Court of Appeals has upheld an arbitration award against the general contractor and in favor of a subcontractor who left a jobsite prior to completion of its work on a project at the Portsmouth Naval Shipyard in Kittery, Maine. The case was Eastern Seaboard Construction Co, Inc. v. Gray Construction, Inc.

The subcontractor, Eastern Seaboard Construction, Inc. (“Eastern”), was performing site work and encountered changed conditions, which increased the cost of the work and delayed completion of the project. The subcontractor sought extra payment for the changed conditions, which the general contractor, Gray Construction, Inc. (“Gray”), refused to pay after the U.S. government denied its request for extra payment for Eastern’s work.

There was an arbitration provision in the subcontract between Eastern and Gray, and therefore the parties conducted hearings before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator heard evidence and gave an award to Eastern, which was reduced by the cost incurred by Gray to complete Eastern’s work.

Eastern then made a request to the arbitrator, pursuant to AAA rules, to amend the award to reflect a credit to Eastern for the unpaid balance of its contract, which was only around $10,000 less than the credit Gray had received for its completion costs. Both parties appealed to the U.S. District Court, where a magistrate judge vacated the amended award, which had given Eastern its credit for the balance remaining on its contract. The U.S. District Court affirmed the magistrate’s decision and Eastern appealed to the 1st Circuit.

The 1st Circuit reviewed the decision de novo and recited the well established principal that arbitration awards are rarely disturbed by reviewing courts, but that there are instances when justice so requires. Here, the issue raised by Eastern was whether the arbitrator had the authority to alter its decision after the award became final.

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The Massachusetts Supreme Judicial Court has determined that the Workers’ Compensation Trust Fund must pay benefits to an employee of a tree cutting company who failed to obtained workers’ compensation insurance based on the employee’s total earnings, including wages earned from a second job with an insured employer.



thmb_Limb_falling_from_free_fall_cut.jpgThe thirty-three (33) year old worker suffered a severe injury in September, 2001, when a tree limb fell onto him, severing his spinal column and leaving him a quadriplegic. and totally disabled. The tree service had violated the Workers’ Compensation Act, G.L. c. 152, s. 25A, by not carrying workers’ compensation insurance. The worker earned most of his income from a second job with another company, which was properly insured, but because the injury occurred while he was working for an uninsured employer, the trust fund was required to pay all of his benefits.

Following the accident, the worker filed for workman’s compensation benefits, seeking two thirds of his average weekly wage from both jobs because he was totally and permanently disabled. The Trust fund objected and an administrative judge thereafter issued an order awarding benefits from the date of his injury calculated by considering only his average weekly wage from the uninsured employer.

Both parties appealed, and at a de novo hearing before the same judge, but with a stipulation that the worker was permanently and totally disabled. This time the judge ruled that the trust fund must pay permanent total incapacity benefits based on the worker’s average weekly wage from both employers.

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