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Articles Posted in Personal Injury

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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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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When a defective product causes injury or death to a consumer, the consumer (or his or her family) may be able to recover a settlement or judgment against the company that made the product. In some situations, the wholesaler and or seller may also be liable. There are several different legal theories upon which the consumer may rely on in a Cape Cod products liability lawsuit. These theories include (but are not necessarily limited to) design defect, manufacturing defect, strict liability, failure to warn, and breach of warranty. It is important that a person who has been hurt by a dangerous product get legal advice in a timely fashion, lest his or her claim become time-barred under state products liability laws.

Battery Banks Recalled

Most of us rely heavily on our cellphones these days, and a dead battery can disrupt not only our entertainment but also our ability to communicate and, when we are traveling, navigate. Portable power banks have become very popular, as we often need additional battery power to get us through a long day or a weekend trip. Unfortunately, power banks are not without risk. Recently, the United States Consumer Product Safety Commission (CPSC)  issued a recall of certain 10,000 mAh power banks because the banks’ battery may overheat and cause a fire. Consumers are advised to stop using the recalled products immediately.

Interestingly, these banks are not associated with a particular brand. Rather, they may contain a company logo on the front and or back of the product. This is because they were distributed as promotional items at meetings or other events rather than sold directly to the public. If you have suffered a fire or a burn caused by one of these banks or another lithium-ion battery product, you may be able to seek compensation via a products liability claim against the manufacturer of the device.

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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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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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When a Cape Cod personal injury lawsuit is filed against a defendant that is a governmental entity, there is often a defense that the entity is immune from suit based on the principles of governmental tort immunity. Of course, this defense is not always successful, as there are many situations in which the government can be sued, and a judgment can be entered. Resolution of the issue of whether or not immunity applies is typically handled by motion practice in the trial court, sometimes with interlocutory review by the appellate court if an appeal is filed by the party aggrieved by the trial court’s decision.

Facts of the Case

In a recent Massachusetts Appeals Court case (unreported), the plaintiff was a man who suffered a closed head injury and bilateral leg amputations after falling onto subway tracks (owned and maintained by the defendant transportation authority) and being struck by a train. He filed a personal injury lawsuit against the defendant, averring that the defendant was negligent in failing to adequately staff the station with a safety inspector or a customer service agent (CSA) on the day the accident occurred.

The defendant sought summary judgment, arguing (among other things) that it was immune from liability for the plaintiff’s failure-to-staff claim, citing the discretionary function exception contained in Massachusetts General Laws ch. 258, § 10(b). The trial court denied the defendant’s motion, and the defendant filed an interlocutory appeal of the denial of its motion under the doctrine of present execution.

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In a Cape Cod personal injury case, the plaintiff has the burden of proving four elements, each by a preponderance of the evidence. These elements include duty, breach of duty, damages, and causation. Once these elements have been proven, it is up to the jury to determine the amount of money damages to which the plaintiff is entitled in compensation for his or her injuries.

Along the way, both the plaintiff and the defendant are bound by certain rules regarding the admissibility of evidence and the civil procedures to be used. If an overzealous legal advocate runs afoul of these rules, it is up to the trial court judge – and ultimately the appeals courts, if further review is taken – to decide whether a new trial is warranted under the circumstances. As was reiterated in a recent case, the question is not merely whether there was wrongdoing by an attorney at trial but, rather, whether the misconduct had such an effect on the jury that a mistrial was required.

Facts of the Case

In a recent case considered on appeal by the Massachusetts Appeals Court, the plaintiff was a woman who suffered a broken tooth while eating a fast food hamburger in 2011. After determining that there had been a bone fragment in the burger, the plaintiff filed suit against the defendants, the restaurant where the hamburger was purchased and the company that supplied beef to the restaurant, seeking compensation for the injury to her tooth (which had required nearly two dozen trips to the dentist over a two-year period to resolve).

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Massachusetts workers have certain protections under state and federal law. For instance, most workplace injury cases fall under the provisions of Massachusetts workers’ compensation laws. Generally speaking, if a worker’s injury is covered by workers’ compensation, he or she will not be able to file a negligence lawsuit against the employer or a co-worker. While there are some exceptions to this general rule, most such claims are barred under Massachusetts law. A recent case explored this concept.

Facts of the Case

In a recent appeals court case, the plaintiff was a woman who sued her former employer (a bank) and two former co-workers, alleging that she had suffered personal injuries due to the defendants’ creation of a “toxic work environment” and asserting claims for negligent retention and/or supervision, negligent infliction of emotional distress, and civil conspiracy. The defendants filed a motion to dismiss the plaintiffs’ complaint pursuant to Mass. R. Civ. P. 12(b)(6).

The plaintiff opposed the defendants’ motion and moved for permission to amend her complaint to assert a claim for retaliation under the federal Family and Medical Leave Act (FMLA). The trial court judge dismissed the plaintiff’s complaint without ruling on her motion to amend. The plaintiff appealed.

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