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Articles Posted in Negligence

It is to be expected that an insurance company will do everything within its power to limit the payout on a Cape Cod personal injury or wrongful death case. However, there are limitations on just how far an insurance company can go in its attempt to protect its pocketbook. Under Massachusetts’ consumer protection laws, “unfair or deceptive” practices are illegal, as are unfair claim settlement practices.

When a claimant believes that an insurance company has violated the law with regard to the investigation of his or her claim, he or she should talk with an attorney as soon as possible. In fact, it is usually best to consult an attorney before even speaking with an insurance adjuster about a personal injury or wrongful death case.

Facts of the Case

In a recently decided federal case, the original plaintiff was a young woman who, at the age of 20, was seriously injured in a 2010 car accident. The wreck happened shortly after the plaintiff had left the original defendant night club, where she was employed as a dancer and where she had allegedly been served alcohol despite being under the legal drinking age. The young woman sued the night club in state court, and the parties entered into a $7.5 million consent judgment under which the night club’s liability insurer tendered policy limits and the night club agreed to pay $50,000.

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More and more often, defendants in Cape Cod wrongful death and personal injury lawsuits are attempting to circumvent the traditional litigation process in cases charging them with negligent or reckless conduct. Of course, this tactic is more common in certain scenarios than in others. For example, in nursing home negligence cases, defendant care facilities often rely on clauses agreeing to arbitration – usually signed along with other paperwork when the patient was admitted to the nursing home – in their quest to avoid the courthouse. A recent case addressed the question of whether or not such an agreement was enforceable against the wrongful death beneficiaries of a deceased patient on whose behalf such an agreement had been signed.

Facts of the Case

In a case recently ruled upon by the Supreme Judicial Court of Massachusetts, the plaintiff was the personal representative of her mother’s estate. Prior to her mother’s admission into the defendant nursing home, the plaintiff signed an arbitration agreement on her mother’s behalf (the plaintiff had power of attorney for the mother). After the mother passed away in 2013 due to the defendant’s alleged negligence, the plaintiff filed a wrongful death lawsuit in state court against the defendant, seeking monetary compensation for her mother’s death. The defendant insisted that the Federal Arbitration Act barred the plaintiff’s lawsuit.

The defendant filed suit in federal court. On appeal from a federal district court’s order compelling arbitration, the United States Court of Appeals for the First Circuit certified two questions to the state’s highest court pursuant to Massachusetts Supreme Judicial Court Rule 1:03. One of those questions pertained to whether the Massachusetts wrongful death statute, which was codified at Massachusetts General Laws ch. 229, § 2, provided rights to statutory beneficiaries’ derivative of, or independent from, what would have been the decedent’s own cause of action.

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Not every bad result in an operating room or emergency treatment center results in a finding of medical negligence. After all, some patients have medical conditions that may not respond to treatment, and some have diseases or injuries for which there is no cure.

However, if a particular patient could have been saved through the exercise of reasonable medical care but, instead, dies because the treating physician’s care fell below the standard of competency for doctors who regularly perform such procedures, a Cape Cod medical malpractice lawsuit may be possible. An attorney who practices in this area will need to review the facts of your loved one’s particular case in order to determine whether there is a reasonable chance for success on the merits before going forward with the case.

Facts of the Case

In a recent case, the plaintiff was the surviving spouse and personal representative of a woman who died after undergoing surgery for treatment of a hiatal hernia in her diaphragm. The plaintiff brought a medical malpractice wrongful death lawsuit against the defendants, a doctor, a nurse, and the professional corporation for whom they worked, alleging that defendants’ treatment of the decedent fell below the standard of care for an average qualified surgeon and nurse and that this breach of care was a substantial factor in the decedent’s death. The defendants answered that the decedent died as a result of longstanding damage to her heart caused by her hiatal hernia rather than from any alleged negligence committed by them.

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In a Cape Cod personal injury lawsuit, there are many laws, procedures, and rules that guide a case through the legal system. Experienced litigation attorneys are schooled in these matters and have systems in place to make sure that everything is filed in a timely and appropriate matter.

Those who chose to represent themselves – rather than hire a knowledgeable accident and injury attorney – are at a huge disadvantage in the court system. While a pro se litigant may be able to access some information about the court system online or at a law library, this limited knowledge is very rarely enough to result in a successful outcome in the case. Much more frequently, the plaintiff ends up having his or her case dismissed – often on procedural grounds – effectively forfeiting any chance of obtaining a verdict against the opposing party.

Facts of the Case

In a recent case heard by the Massachusetts Supreme Judicial Court, the record was sparse, but it appeared that the plaintiff was a man who had attempted to represent himself pro se in a personal injury lawsuit asserting a negligence claim against the defendant grocery store. The district court apparently dismissed the plaintiff’s cause of action. Rather than file a traditional appeal from the district court’s ruling, the plaintiff filed a petition in the county court, relying upon Massachusetts General Laws ch. 211, § 3 and seeking review of certain aspects of the district court’s ruling in his personal injury case.

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It is no secret that having the right automobile accident insurance is important, but many people do not truly understand the type of insurance that they need or even what coverage they currently have. Unfortunately, some drivers do not learn that they have inadequate coverage until they have been involved in a Cape Cod car accident. By then, of course, it is too late to get the appropriate coverage for that particular accident. Knowing what coverage you have, what additional coverage may be advisable, and how different types of coverage work is very important. Below, we discuss several different types of insurance coverage that can protect a family in the event of a crash.

“No-Fault” Does Not Always Mean No Lawsuit

Massachusetts is a “no-fault” state for purposes of automobile accident insurance. Under no-fault laws, drivers are required to purchase personal injury protection (PIP) insurance that will cover a certain dollar amount of medical expenses and a portion of lost wages resulting from an accident, regardless of who caused the collision. However, “no-fault” does not mean that no one can ever be held legally liable for injuries caused by an accident, nor does it mean that all of the insured driver’s expenses are covered under PIP. While each party must rely on his or her own insurance to pay minor expenses associated with a car accident, those who meet a certain threshold established by state statute have the right to file a traditional negligence lawsuit seeking full compensation from the responsible party.

Drivers are also required to purchase liability insurance to cover damages in the event that they are found to be at fault in an accident and the other driver (or a passenger) is able to get past the no-fault threshold and proceed toward traditional tort liability. Currently, the minimum coverage for bodily injury to others is $20,000 per person or $40,000 per accident. There is also a compulsory requirement for property damage (payable when the insured driver causes damages to someone else’s vehicle by causing an accident); the mandatory minimum is $5000 at present.

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Maintaining a personal injury or wrongful death claim against a governmental entity can be difficult. In fact, there was once a time in which such claims were not allowed under the law. Nowadays, however, a Cape Cod personal injury lawsuit against the government may be possible in some situations, although it can be expected that the government will attempt to get the case dismissed, if at all possible. Even if the claim survives a motion to dismiss, there may be limitations on the amount of damages available to the plaintiff for his or her injuries. There may also be other procedural hurdles, including the requirement of formal notice within a relatively short period after the accident.

Facts of the Case

In a recent Massachusetts Appeals Court case, the plaintiffs were a mother, father, and minor child who sought compensation from the defendant, a state child services department, for injuries suffered by the minor child due sexual assault by a foster child whom the family had taken in. Although the placement was supposed to be short-term, the defendant left the foster child (a 12-year-old boy) in the plaintiff foster parents’ care for several months. Unbeknownst to the plaintiffs – but known by the defendant – the foster child had a history of both having been sexually abused himself and also being the perpetrator of sexual abuse.

After the minor child (a 5-year-old girl) disclosed that the foster child had sexually assaulted her, the plaintiffs filed suit against the defendant, claiming that the defendant had been negligent in placing the foster child with them and that the defendant had breached a contractual agreement under which the defendant had agreed to provide the plaintiffs with “sufficient information” about any proposed foster child to enable them to knowledgeably determine whether to accept the child.

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If you have a potential negligence claim against an individual, business, or entity of the government, it is very important to remember that Cape Cod personal injury, wrongful death, and property damage claims can be subject to both a statute of limitations and a statute of repose.

The difference between these two limitations periods is significant. A statute of limitations gives the accident victim a certain amount of time, typically calculated from the date of the accident or sometimes from the date that the injury is discovered, in which to formally file a lawsuit. (Sometimes, formal notice is also required, especially for claims against the government.) In contrast, the statute of repose may be tied to an independent event not related to the actual accident or discovery of harm, thus rendering a claim time-barred before it even happens.

The Factual Background

In a recent case, the plaintiff was the insurer of a building that sustained extensive damage due to a natural gas fire. Acting as subrogee of the building owner, the plaintiff filed suit against the defendant natural gas supplier, asserting that the defendant had been negligent in failing to detect or correct problems associated with the installation of natural gas into the building that had burned.

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Although you might not realize it if you were watching a Cape Cod personal injury case play out in a court room, the vast majority of negligence claims are actually paid by an insurance company, not the defendant himself or herself. Many negligence cases are settled out of court, but, even if a particular case proceeds to a jury trial, it is usually the defendant’s insurance company – not the defendant – who writes the check that satisfies the verdict.

Thus, the actual defendant typically does not have a say in the amount of the settlement or even input as to whether there will be a settlement. The insurance company bears the ultimately financial obligation, so the insurance company controls most of the litigation.

There are some special cases, however, in which the defendant has more of say in the matter. While it all depends on the language in the insurance contract, it is more often a “professional” defendant – such as doctor, lawyer, or engineer, whose professional reputation or even licensure could be affected by an admission of liability – who has an active role in a negligence lawsuit.

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Under Massachusetts law, contributory negligence does not necessarily bar recovery of monetary compensation for damages suffered in a car accident. Generally speaking, this means that being “a little at fault” in causing a crash does not prevent an injured person from filing suit to recover compensation for lost wages, medical expenses, and pain and suffering caused by the collision. (It should be noted that the plaintiff’s recovery will be reduced by his or her percentage of fault in the crash.)

However, if the injured person’s fault was greater than the amount of negligence attributable to the opposing party, the injured person cannot recover any money damages from the other driver. This rule is known as the “modified comparative fault rule.” Additionally, an automobile accident insurance company may opt to impose a surcharge on an insured who is found to be more than 50% at fault in causing an accident. This is yet another reason to seek legal counsel following a Cape Cod car accident, especially one in which it was not clear who was at fault.

Facts of the Case

In a recent case, the appellant was a man who appealed a lower court’s judgment affirming a state board of appeal’s decision in favor of the appellee’s insurer with regard an insurance surcharge imposed on the appellant following an automobile accident. The appellant insisted that that the board (the Massachusetts Board of Appeal on Motor Vehicle Liability Policies and Bonds) had erred in upholding the insurer’s decision to impose a surcharge because, in the appellant’s view, he was not “more than 50% at fault” as the board had determined.

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In a Cape Cod personal injury lawsuit, the essential question is, did the defendant behave in a reasonably prudent manner under the circumstances? These types of cases can be very fact-specific, as what constitutes “reasonable” can vary substantially from situation to situation.

For example, generally speaking, it would not be considered reasonable to run into another person with the intent of knocking an object out of his or her possession. However, the same conduct might be considered acceptable within the confines of two teams playing a rough sport – hockey, for example. Still, even in a game, there are situations in which a negligence or recklessness claim may be viable. As stated above, it all depends on the circumstances.

Facts of the Case

In a recent Massachusetts appeals court case, the plaintiff was a hockey player who brought suit against the defendants (the plaintiff’s coach, a player on an opposing team, the opposing team’s coach, two referees, and others), seeking monetary compensation for injuries he allegedly incurred while participating in a hockey game. Both the plaintiff and the opposing player whose blades allegedly cut the plaintiff’s wrist during the game were 17 years old at the time of the incident giving rise to the litigation.

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