Cape Cod Injury Lawyer Blog

July 5, 2017

Federal Court in Massachusetts Denies Summary Judgment to Claims Service that Refused to Settle Nursing Home Negligence Case

Many civil lawsuits are filed each year in the state and federal courts – far too many to be handled efficiently by the court system if a full-blown trial is required in every case. For this and other reasons, settlements are highly encouraged.

Under Mass. Gen. Laws ch. 176D, § 3(9)(f), an insurance company has a legal obligation to effectuate a “prompt, fair, and equitable settlement” of claims in which liability is clear. When this does not happen, Mass. Gen. Laws ch. 93A, § 9 allows the person whose rights were affected by the violation of the law to bring a civil action against the insurance company to recover damages.

June 28, 2017

Plaintiff’s Medical Malpractice Action Fails Due to Insufficient Proof, Says Massachusetts Appeals Court

By John C. Manoog III

Medical malpractice lawsuits are expensive and procedurally difficult. This is not to say that a plaintiff cannot be successful in an attempt to hold a negligent doctor liable in a particular case, but only that doing so can be much more difficult than, for example, holding a negligent driver liable in a motor vehicle accident case.

One of the main reasons for the difficulty in pursuing a medical malpractice case is the requirement for expert proof as to the medial professional’s deviation from the standard of care. Just as medical care itself is costly, so, too, is hiring a medical expert to testify as to a mistake made in the plaintiff’s treatment.

June 21, 2017

Massachusetts Court Finds that Malpractice Case Against Ob-Gyn Nurse Lacked Sufficient Proof

By John C. Manoog III

Under Massachusetts medical malpractice law, the burden of proof is on the plaintiff to prove, by a preponderance of the evidence, that the defendant health care provider violated the applicable standard of care.

First, however, the plaintiff must find an expert witness who is willing to testify in court as to what the standard of care required – and how the defendant’s actions or inaction violated this standard.

June 13, 2017

Massachusetts Law Requires Arbitration of UM/UIM Claims Unless Parties Agree to Settlement

By John C. Manoog III

When an automobile accident results in injuries, the plaintiff’s medical expenses and lost wages can easily reach tens of thousands – or even hundreds of thousands – of dollars. Even if the at-fault party has liability insurance, there may not be enough coverage to fully compensate the injured party.

This is why uninsured/underinsured motorist insurance is so important. It can help fill the gap between the at-fault party’s liability insurance limits and the plaintiff’s actual damages. Of course, payment under such a policy is not automatic. Like other matters in which insurance companies are involved, the process can be difficult and contentious.

June 6, 2017

Bystander Bitten by Police Dog Had Right to Seek Compensation Under Massachusetts Tort Claims Act

By John C. Manoog III

Police dogs are used by many law enforcement agencies across the country to assist officers as they search for drugs, locate missing individuals, and, sometimes, help apprehend suspects who attempt to flee the scene after being arrested.

Just as human officers can occasionally make mistakes, so, too, can K-9 officers. When this happens, should an innocent person who is injured by the dog’s error have the right to sue the government for damages?

May 30, 2017

Massachusetts Court Rules that Homeowners Insurance Company Was Obligated to Defend Dog Bite Claim, Despite Alleged Misrepresentation About Bite History

By John C. Manoog III

A liability insurance policy is, at its essence, a contract. In determining whether to enter into the agreement, an insurance company is entitled to rely on certain representations made by the would-be insured and to price its product accordingly.

Once the agreement is made, the insured has the right to demand that the insurance company defend him or her against any claims that are covered under the policy and pay any judgments (up to the policy limits) resulting from such claims.

A recent case explored the issue of whether a particular misrepresentation by the insureds during the application process was sufficient for the insurance company to later void the policy and deny coverage of a claim that would otherwise be covered.

May 24, 2017

Massachusetts State Court No Longer Had Jurisdiction After Tribunal’s Review of Federal Medical Malpractice Claim

By John C. Manoog III

Purportedly to combat the growing problem of frivolous medical malpractice lawsuits, the Massachusetts legislature passed a law (codified at Mass. Gen. Laws ch. 231, § 60B) several years ago, requiring the plaintiff in a medical negligence case to submit an “offer of proof” to a three-member reviewing tribunal after filing a formal lawsuit against a doctor or another medical professional. The tribunal consists of a judge, a physician (or another health care provider), and an attorney.

If the tribunal determines that the plaintiff has presented sufficient evidence to raise a “legitimate question of liability,” the matter proceeds toward trial. If not, the plaintiff has the option of posting a filing bond of $6,000 (in most cases, although that amount can vary) or having his or her case dismissed.

If the case is dismissed, the plaintiff may appeal that decision to a higher court for review.

May 17, 2017

Massachusetts Appeals Court Holds that Worker Was Only Entitled to Interest from Date of Claim that Ultimately Led to Benefits

By John C. Manoog III

While the majority of cases involving injuries (such as car accident lawsuits, slip and fall cases, and workers’ compensation claims) are settled out of court, sometimes litigation can drag out for several years.

In a recent workers’ compensation case heard by a Massachusetts appellate court, however, an injured worker’s case had been going on since the 1990s.

The appellate court was called upon to determine the date from which interest was due. Due to the filing of multiple claims over a 20-year period, the matter was more complicated than it might initially seem.

May 5, 2017

Massachusetts Court Considers Unfair Settlement Practices Following Accident Between Motorist and Tow Truck Operator

By John C. Manoog III

Should an insurance company be required to settle a lawsuit against its insured if liability is clear? If so, how long should the settlement process take? Which party should make the first move? What about situations in which the insurance company and the injured person have very different ideas about the value of the claim?

The Massachusetts Court of Appeals recently considered these and other issues in a lawsuit filed by a disgruntled liability insurance claimant.

April 25, 2017

Massachusetts Appeals Court Sides With Homeowners in Premises Liability Case – No Sanctions for Spoliation of Evidence, Summary Judgment Affirmed

By John C. Manoog III

When a person is hurt on another person’s property, he or she has a right to seek compensation through a premises liability lawsuit. Of course, just as in any negligence case, the burden of proof is on the plaintiff to prove that the defendant owed him or her a duty of care, that the duty of care was breached, that the plaintiff was harmed, and that there was a link of causation between the harm and the breached duty.

In proving his or her case, the plaintiff may introduce several types of evidence, including physical evidence, if applicable. In a recent case, an injured man sought sanctions against the defendant homeowners for their alleged destruction of a ladder that he alleged caused him to fall. He also sought the reversal of an order of summary judgment entered in the defendants’ favor.