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KOSTRZEWA, admn. v. SUFFOLK CONSTRUCTION COMPANY, INC.

No. 07-P-1450, December 18, 2008

The Massachusetts Apppeals Court has ruled that the general contractor for a project to renovate a government building in Boston may be found liable for an accident on the job for failing to maintain a safe workplace. The injured worker was the employee of an asbestos abatement contractor who had been contracted by the demolition subcontractor on the project renovating the Saltonstall Building in downtown Boston. The worker was injured when the scaffolding on which he was working fell over. His attorney brought this suit against the general contractor, alleging negligent supervision. The men were working on scaffolding that was approximately twenty feet high and mounted on wheels. The general contractor did not own and had not erected the scaffolding. To move the scaffolding to work on a new spot, the workers would either have someone on the ground push it or, using the wall or ceiling, they would themselves pull or push the scaffolding to the new location. At the time of the accident, the scaffolding fell over while the employee was trying to move the scaffolding on which he and the other worker were standing. The contract between general contractor the building owner conferred on the general overall responsibility and control of the project, including responsibility for safety. The contract provided that the general contractor was solely responsible for and had control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the work under the contract.

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PILGRIM INSURANCE COMPANY vs. MOLARD

No. 07-P-1676, December 16, 2008.

In a two car motor vehicle accident where a passenger in a taxi cab sustained injuries, which did not become apparent until after she had returned home, and thereafter, despite reasonable efforts, was not able to identify the operator of either the taxicab or the second car in the accident, The Massachusetts Appeals Court has reversed a lower court judgment denying uninsured motorist coverage from a policy issued to the injured girl’s mother.

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The passenger was an eighteen year old girl who was injured while riding in a taxicab in October, 2002. She was unable to identify either the taxi driver or the driver of the other vehicle involved in the accident, and therefore, because she lived at home with her mother, she filed a claim seeking uninsured motorist benefits under her mother’s policy. The insurer declined coverage on the basis that there was no hit and run accident and that it had been prejudiced by girl’s late notice of the claim. It then filed a declaratory judgment action in Superior Court and the girl counterclaimed. The lower court judge granted judgment for the insurer finding that there was a “hit and run accident” as defined under the policy, but that the late notice had prejudiced the insurer. The Appeals Court, however, concluded that genuine issues of material fact precluded entry of judgment for either party. More specifically, it found that a passenger in an at-fault vehicle who, unaware of her injuries or incapacitated by them at the time, leaves the vehicle without obtaining identifying information about the vehicle, may be entitled to recover under the hit-and-run provisions of the policy.

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La Frenier v. Town of Townsend et al.
U.S. Court of Appeals, 1st Cir. 07-1644

 

The U.S. Court of Appeals, First Circuit, has upheld a summary judgment entered against an individual who sued the Town of Townsend and two of its police officers for civil rights violations based on an arrest, which took place in June, 2001. The Plaintiff was the operator of a motor vehicle who had pulled over to the side of the road, disoriented, confused and physically ill. He was taking medications at the time. The police attempted to remove him from the vehicle at which time he resisted, was restrained and thereafter arrested for assault and battery, resisting arrest and disorderly conduct. All charges were all ultimately dismissed or resulted in acquittals.

handcuffsThe driver then filed claims against the arresting officers and the town for violation of state and federal statutes, including civil rights violations under 42 U.S.C. s. 1983. He sued the town for negligent supervision, and the police officers for false arrest, excessive force and failing to provide medical assistance.

The lower court granted summary judgment on the basis that the undisputed facts, as presented to the court, showed that the officers had probable cause to make the arrest based on the plaintiffs conduct at the time, and had no motive to mistreat or deny him medical treatment.

The court principally relied on the fact that the Plaintiff had failed to present any affirmative evidence to contradict the statements of the Defendants, and that absent such evidence, judgment for Defendants was the appropriate remedy. The Plaintiff maintained that the police were not credible and that questions of creditability created an issue for the jury and warranted denial of summary judgment.

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This is the Boston Accident Injury Blog, written by the attorney, a Boston trial lawyer, with over twenty-five years of experience practicing law and trying case in the Boston area and throughout New England. He has started this Blog with two purposes in mind: first to provide persons with legal problems with information about what they can do to recover for injuries and damages caused by the conduct or misconduct of others, and second, to try to provide information to other lawyers about developments in the law in Massachusetts and elsewhere.

The Blog will attempt to inform and educate persons and businesses about their rights and their right of access to the court system when they need to redress wrongs, breaches or other injustices caused by others, and also to provide a forum to review and analyze recent decisions from state and federal courts, which involve interesting fact patterns and/or provide incite as to the present state of the law in Massachusetts, and elsewhere,

This Blog will also try to describe some of my areas of practice, including summary descriptions of cases of interest, which my firm has handled in the past. Today, a brief description of Attorney the attorney’s prior experience in CONSTRUCTION ACCIDENT CLAIMS.

Attorney the attorney has represented numerous workers who are victims of construction worksite accidents. While workers are prevented by law from bringing claims against their employers, which is reserved to workman’s compensation claims, there are often third parties who may have legal responsibility for keeping a safe worksite, and therefore can be sued for negligence. Also, sometimes there are products used on the jobsite, which can be proved to be defective or unreasonably unsafe for use on the job. These are called product liability claims. Attorney The attorney has successfully litigated both of these types of claims.

A CASE IN POINT:

A garbage truck operator struck in the face by steel hook used for raising dumpster collects over $300,000 from property owner whose employee improperly attached hook to dumpster

US_Garbage_Truck.jpg The Plaintiff was the driver and operator of a waste collection truck, removing trash from a dumpster behind a Boston apartment building. He was standing at the rear of the truck, raising the dumpster with a steel cable and hook, which had been attached to the dumpster by an employee of the property owner. The hook pulled free from the dumpster and hit the plaintiff in the face, causing serious facial injuries, which required extensive plastic surgery to repair. the attorney filed an action in Suffolk Superior Court claiming negligence against the property owner. The case settled prior to trial with a substantial six figure payment to the Plaintiff.

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A claim filed in United States District Court filed by a 28 year old Derry, New Hampshire mother on behalf of herself and her deceased 6-year-old son settled on the eve of trial for $2.5 million.

The mother was driving a motor vehicle northbound on Interstate 93 in February, 2007 in a snowstorm and icy conditions when her the vehicle was struck by a tractor trailer, which jack knifed while attempting to pass her. Her car was dragged several hundred yards.

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The boy was killed instantly and the mother suffered grave injuries, including a concussion, a lacerated liver, a fractured right hip and a collapsed lung. She remained in a coma for five days without knowing that her son had died in the accident.

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Construction Claims. Boston, Massachusetts Attorney has been representing contractors, subcontractors, equipment suppliers and material suppliers in construction related disputes and claims for over twenty years. He has litigated disputes on both public and private construction projects in state and federal courts, and also before the American Arbitration Association. He has filed and enforced mechanic’s liens, bid protests and has successfully prosecuted and defended numerous performance and payment bond claims. He has also represented contractors in administrative proceedings before government agencies, including states’ attorney general, local building departments, and federal agencies such as OSHA and the U.S. Department of Labor.

A CASE IN POINT :

Contractor obtains jury verdict and collects 1.5 million dollars from City of Boston
for unforeseen asbestos removal work on Brighton High School

S&S Contracting Co., Inc. v. City of Boston:

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A minority owned Boston contractor entered into a $1 million contract to remove asbestos from the Brighton High School in Boston, Massachusetts. After work commenced, significant amounts of additional asbestos were discovered and the contractor was ordered to remove the additional materials, which doubled the work. The contractor submitted change requests, but the City failed to timely process and pay for the extra work, which forced the contractor to file bankruptcy and eventually put it out of business. the attorney brought an action in Suffolk Superior Court. The case was tried to a jury who returned a verdict in favor of the contractor for 1.5 million dollars with interest. The City appealed. The attorney handled the appeal, which affirmed the lower court judgment. The City paid the full amount of the judgment.

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COMMONWEALTH vs. FREMONT INVESTMENT & LOAN CO.

SJC-10258, December 9, 2008.

The Massachusetts Supreme Judicial Court has upheld a preliminary injunction requested by the Massachusetts Attorney General and issued by a Superior Court judge preventing a subprime lender, Fremont Investment & Loan Co., from proceeding to foreclose on property subject to its mortgages, without first negotiating with the owners, and then if deemed necessary, obtaining specific court approval to proceed to foreclose.

Fremont is an industrial bank chartered by the State of California. Between 2004, and 2007, Fremont had originated almost 15,000 loans to Massachusetts residents secured by mortgages on owner-occupied homes, over fifty to sixty per cent of which were subprime.

When the Attorney General brought suit in 2007, a significant number of Fremont’s loans were in default. The Attorney General analyzed ninety-eight of those loans and found that all were ARM loans with a substantial increase in payments required after the first two or three years, and that ninety per cent of the ninety-eight had a one hundred per cent loan-to-value ratio.

The SJC agreed with the lower court judge who concluded that there was a likelihood of success on the merits of the claim because the lender had originated home mortgage loans with four specific characteristics, which made it almost certain that the borrower would not be able to make the necessary loan payments, leading to default and then foreclosure, which the court deemed was an unfair act or practice within the meaning of G.L. c. 93A, § 2.

The four features were as follows:(1) the loans were ARM loans with an introductory rate period of three years or less; (2) they featured an introductory rate for the initial period that was at least three per cent below the fully indexed rate; (3) they were made to borrowers for whom the debt-to-income ratio would have exceeded fifty per cent if the lender had measured the borrower’s debt by the monthly payments at the fully indexed rate rather than the introductory rate; and (4) the loan-to-value ratio was one hundred per cent, or the loan featured a substantial prepayment penalty or a prepayment penalty that extended beyond the introductory rate period.

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Following an accident resulting in personal injuries, the injured party inevitably will come into contact with representatives of one or more insurance companies, either their own or the company that insures the party responsible for the accident. There will be an adjuster or adjusters who want to ask you questions, and often want to record or memorialize your answers. No matter how friendly or helpful they appear, the insurance adjuster is not your friend. His/her job is not to minimize the exposure of their company, regardless of whom they represent.

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In certain instances, the misconduct of the insurer rises to a level of behavior, which is not only inappropriate, but may give rise to a separate and actionable claim. In Massachusetts and almost every other state, there are laws, which specify acts or practices of insurers, which are unlawful. These unlawful acts are often called unfair claims settlement practices or INSURANCE BAD FAITH .

Because insurers are required to deal fairly with claimants, when it is clear that someone is responsible for your injuries, the insurer must make reasonable offers of settlement. When the insurer refuses to offer to settle a case when liability is clear, the law permits claimants to sue the insurer directly.

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WEST LAKE ACADEMY v. THE TRAVELERS INDEMNITY COMPANY et al.
U.S. Court of Appeals, 1st Circuit, Nos. 07-2190, 07-2204

The U.S. Court of Appeals for the First Circuit has upheld a decision of the District Court that an general commercial insurance policy issued to a mental health care provider did not provide coverage for the sexual misconduct of one of its employees, who had sexual intercourse with a minor female patients, based on a sexual molestation exclusion in the policy.

The female minor patient had been involuntarily committed to West Lake Academy, a facility for mentally ill teenagers between 1993 and June 1995. In June 1995, a West Lake employee transported the patient alone between West Lake and a bus station on several occasions. More than once, the employee had sexual intercourse with the patient, who became pregnant and had his child.

The patient successfully sued the employee father and another West Lake employee, a supervisor, who she alleged had negligently failed to supervise the father of the child and recovered a large judgment against West Lake and the employees. National Union Fire Insurance Company provided a commercial general liability insurance policy to West Lake and their employees.

After the judgment, National Union refused to pay on the claim and in July, 2000, filed suit in the District Court in Massachusetts against its insureds, seeking a declaratory judgment limiting its exposure under the policy. The National Union policy included an exclusion, entitled “Abuse or Molestation Exclusion,” which limited coverage to $100,000 on claims based on abuse or molestation of anyone in the custody of the insureds.

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The attorney is a Boston civil trial attorney licensed to practice in Massachusetts and New York. He has been litigating in state and federal courts in Massachusetts, New York, New Hampshire, Rhode Island and Vermont for nearly thirty years. He graduated from Yale University in 1976 and from University of Virginia Law School in 1980. He began his legal career in Paris, France and is fluent in French. In 1981 he returned to the U.S. and opened his own law practice in Cambridge, Massachusetts. He spent several years in the late 1980’s with a boutique Boston litigation firm, where he handled all the firm’s personal injury work. In 1987, he left the firm to reopen his own practice and has maintained his own law practice ever since.

While the attorney has trial experience in many practice areas (including criminal, divorce and probate), his primary focus has been civil trial practice, with an emphasis on plaintiffs’ personal injury and products liability claims. Other practice areas include insurance bad faith, legal malpractice, construction law and general commercial litigation, representing both plaintiffs and defendants.

the attorney brings a unique approach to business litigation. Unlike most firms, which bill hourly fees for services and demand large up front retainers, he is often prepared to represent claimants on a contingent fee basis, receiving payment only upon a successful recovery by trial or settlement.

While not every claim is appropriate for contingent fees, the attorney is prepared to review and evaluate potential claims at no initial cost to the client, and when appropriate, will enter into fee agreements contingent at least in part on the success of the case. This permits litigants to prosecute or defend claims knowing from the outset what it will cost to proceed with a claim.

The key to success in litigation, and in particular contingent or fixed fee cases, is objective and realistic early evaluation of the merits of a claim. This requires cooperation from the client in providing all the facts and producing all the relevant documents from the outset. There should be no surprises after the commencement of an action.

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