Boston Accident and Injury Lawyer

December 3, 2008

Lawyers Do Make Mistakes and its called Legal Malpractice

by Boston Lawyer

This is the Boston Accident Injury Blog, written by Attorney 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. I have 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,

I 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, I will begin with a brief discussion of LEGAL MALPRACTICE .

LEGAL MALPRACTICE SUMMARY

To err is human, but attorneys are not immune from the consequences of mistakes made in the course of representation of a client. Most attorneys carry malpractice insurance for this express purpose. the attorney has represented clients with claims against attorneys who have represented them in cases, but those attorneys have made errors resulting in monetary damages.

December 2, 2008

SJC Says Boston Accident Victims can sue Livery Service for Permitting Intoxicated Customer to Operate Vehicle After an Evening of Partying

by Boston Lawyer

COMMERCE INSURANCE COMPANY vs. ULTIMATE LIVERY SERVICE, INC.
SJC-10149, November 26, 2008.

The Massachusetts Supreme Judicial Court has ruled that Boston Accident Victims of a two car collision could sue a livery service whose driver permitted an intoxicated customer to exit its van after a long night of partying and drinking, and to operate his vehicle to return home. He never made it, causing an accident with another vehicle, in which one occupant was killed and several seriously injured as the result of the crash.

The Court reversed a lower court dismissal of the action against the livery service, and also reversed a declaratory judgment, which had entered, permitting the insurer, Commerce Insurance Company to avoid coverage and its obligation to defend the action.

In August, 2001, a group of men had hired the services of Ultimate Livery Service, Inc. to attend a bachelor’s party. The group planned to consume alcohol and wanted someone else to drive, so they wouldn’t have to worry about getting home. It was arranged that the group would be picked up and dropped off at a bar in South Boston.

A member of the group, William Powers, drove his girl friend’s vehicle to the bar on the evening of the party. He drank at the bar until Ultimate’s driver and van arrived around 8 P.M. They left the bar, went to a liquor store to buy beer and then proceeded to a strip club in Rhode Island, where they continued drinking until closing around 1 A.M. They then returned to the Boston bar, continuing to drink beer in the van on the ride back.

The group arrived at the bar at about 2:00 A.M. It was closed, as was a nearby subway station. About ten minutes later, the driver departed with two member of the group, who intended to go to another party. The other passengers had left the van. The Ultimate driver did nothing to determine whether the passengers were capable of getting home on their own.

Powers, along with two others, drove off in his vehicle, and shortly thereafter, collided with another car, killing one passenger and seriously injuring most of the other occupants of both cars. Powers was transported to a nearby hospital, where a toxicology screen showed his blood alcohol level to be three times the legal limit.

November 30, 2008

Massachusetts Appeals Court Allows G.L. c. 93A Claim while Finding No Contract Breach

by Boston Lawyer

GIUFFRIDA vs. HIGH COUNTRY INVESTOR, INC.
No. 07-P-751. November 24, 2008.

The Massachusetts Appeals Court has ruled that a family who had “shopping and dining privileges for life”, as part of the the sale of their Saugus, Massachusetts steak restaurant, could maintain an action for unfair business practices in violation of G.L. c. 93A when a subsequent buyer terminated those rights. This was so, even though the Court also upheld the dismissal of breach of contract and other related claims against the buyer, finding that the termination was justified because the buyer had exercised an option to purchase the real property where the restaurant was located.

The Plaintiffs were the wife and two daughters of Frank Giuffrida, founder of the Hilltop Steak House restaurant, who died in December, 2003 at the age of 86. Giuffrida had negotiated the privileges as part of the sale of the restaurant in the late 1980s. The defendant, High Country Investor, Inc., acquired Hilltop in 1994 by means of an asset purchase from the original buyer. In September, 2004, High Country ceased to provide the privileges, claiming that the plaintiffs’ rights had terminated. The plaintiffs then filed suit.

The initial sale had not included the land and building where Hilltop operated. Rather, there was a lease, which included provisions also contained in the purchase and sale agreement, in which the new tenant agreed to provide Giuffrida and and his immediate family dining and shopping privileges at Hilltop during their lives. The Lease also contained an option for the tenant to buy the premises after Giuffrida’s death. In 1994, the initial buyer sold certain assets, including Hilltop, to High Country, which also received an assignment of the Lease, and assumed the tenant’s obligations therein. Following Giuffrida’s death, High Country gave written notice of its intent to exercise the option to purchase the property.

November 28, 2008

Massachusetts SJC Rules that Workman’s Comp Statute Precludes Parents’ Suit against Employer for Child’s Death Even Though Employer Paid No Benefits

by Boston Lawyer

SAAB vs. MASSACHUSETTS CVS PHARMACY, LLC
SJC-10193, November 13, 2008

The Massachusetts Supreme Judicial Court has affirmed a judgment of dismissal of a claim by the parents of a deceased CVS employee, who died from injuries suffered when he was stabbed with a knife while trying to apprehend a shoplifter. The Court concluded that the determination whether an employee’s injury is compensable under the Workmans’ Compensation Act, G.L. c. 152, § 24, and whether the exclusivity provision applied, did not turn on whether a claimant was entitled to or actually receives compensation under the act. Because the employee’s work-related injuries were compensable, his parents were barred from maintaining any action against his employer.

The employee was working at a CVS store on Longwood Avenue in Boston in February, 2004. Employees, including the deceased, attempted to apprehend a suspected shoplifter, who responded violently, stabbing the employee in the neck with a knife. He died at the scene shortly thereafter. At the time of death, the employee was an eighteen year old high school student, lived at his mother’s home, had no dependents and was financially dependent on his parents.

November 27, 2008

Motor Vehicle Accident in Beverly, Massachusetts Kills Pedestrian

by Boston Lawyer

On Tuesday, November 25, 2008, a pedestrian was struck and killed in a motor vehicle accident, which occurred around 7:00 p.m. in Beverly, Massachusetts, north of Boston. The driver was a 37 year old Beverly resident, whom the police described as drowsy and “droopy-eyed” at the time of his arrest in his home, which was less than a mile away from the scene of the accident. Using a broken side mirror found at the scene of the accident, the police were able to identify the vehicle as a Ford Taurus, which it turned out had just backed into another car at a different location. Witnesses there were able to identify the car and provide a license number, and went to the driver’s residence. The driver was charged with driving while under the influence of drugs, leaving the scene of an accident with personal injury or death resulting, and speeding, as well as leaving the scene of another accident moments before the fatal crash. It is expected that he will later also be charged with vehicular homicide.

November 26, 2008

Massachusetts Appeals Court Permits Insurer to Choose Method of Calculating ‘Actual Cash Value’ for Building Destroyed by Fire

by Boston Lawyer

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.

November 25, 2008

Massachusetts Appeals Court Permits Fired Attorneys to Collect Contingent Fees

by Boston Lawyer

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.

November 23, 2008

Massachusetts SJC Waives Law School Requirement For Bar Admission

by Boston Lawyer

MITCHELL vs. BOARD OF BAR EXAMINERS , SJC-10157.
Decided November 20, 2008.

The Massachusetts Supreme Judicial Court has carved out an exception to the longstanding rule that only graduates from American Bar Association (“ABA”) accredited law schools may sit for the bar exam to gain admission to the bar. The Court used its equitable powers to waive a particular requirement of a court rule concerning admission to the bar, and more specifically the law school accreditation requirement set out in S.J.C. Rule 3:01, § 3.3, that an applicant have graduated from a law school accredited by the ABA.

The applicant had argued that by requiring graduation from an ABA-approved law school in order to sit for the Massachusetts bar examination, S.J.C. Rule 3:01 violated the equal protection guarantees of the Massachusetts Declaration of Rights. The Court did not reach the constitutional arguments, but decided the case on other grounds.

November 21, 2008

Boston Corrections Officer Gets Workmen’s Comp for Stress From False Reports of Abuse published in Boston Herald

by Boston Lawyer

Cosmo BISAZZA’S CASE
SJC-10183. November 20, 2008.

The Massachusetts Appeals Court has confirmed a ruling by the Industrial Accident Board that a Boston corrections officer suffered emotional injuries related to his employment, and therefore was entitled to benefits, when inmates threatened to disseminate false stories about his harassment of prisoners, and those stories were later published in the Boston Herald.

Cosmo Bisazza was a corrections officer who in 2003 worked in a special housing unit at the Massachusetts Correctional Institution in Concord, Massachusetts. The unit provides separate housing for gang members, pedophiles, murderers, and sex offenders to protect them from attacks by the general prison population. Bisazza did Cosmo BISAZZA’S CASEnot suffer job-related stress or anxiety prior to 2003, and had no prior history of psychiatric or emotional difficulties.