Personal Injury

July 14, 2020

Massachusetts Appeals Court Sides with Insured in Third Party Claim as to Insurance Coverage in Lead Poisoning Case

In most Cape Cod personal injury lawsuits, the main issue is whether the defendant should be held liable for the plaintiff’s injuries and, if so, the amount of compensation to which the plaintiff is entitled for his or her medical expenses, lost earnings, pain and suffering, and other damages. The defendant’s insurance company is somewhat of a “silent partner” in the case, insomuch as it pays the defendant’s legal expenses and, when all is said and done, writes the check that satisfies the jury’s verdict but is otherwise out of view.

In some cases, however, the insurance company’s participation is more direct. In a recent case, the defendants filed a third-party action against their insurance company, which they averred had wrongfully denied a claim that had been filed against them.

After the original claim between the defendants and the parties who sought compensation for certain personal injuries was settled, the defendants’ claim against the insurance company proceeded to trial – twice. After the second trial, the insurance company sought appellate review of the decision entered against it in the court below.

June 26, 2020

Federal District Court in Massachusetts Is Called Upon to Determine Proper Forum for Cross-Claims in Products Liability Lawsuit

By John C. Manoog III

In a Cape Cod products liability case, there are likely to be several defendants. This is because several different parties in the chain of distribution – from the manufacturer to the wholesale distributor to the retailer – can potentially be liable to the plaintiff.

While it might seem simpler to name only a single defendant, this is rarely wise. Naming multiple defendants can help ensure that the plaintiff ultimately receives what he or she is due if there is a favorable judgment, even if one or more of the defendants proves to be insolvent or has limited resources for satisfying the plaintiff’s claim.

When there are several defendants, each of whom could potentially be held liable for a plaintiff’s personal injuries, it is not unusual for there to be cross-claims between the defendants as each attempts to limit its own monetary outlay to the plaintiff. Experienced product injury lawyers are well-acquainted with these tactics and understand that this “infighting” between the defendants cannot stand in the way of the injured party’s quest for justice.

June 22, 2020

Massachusetts Appeals Court Agrees with Lower Tribunal That Moving Company Could Not Be Held Liable for Employee’s After-Hours Sexual Assault on Non-Customer

By John C. Manoog III

There are four things that must be proven in a Cape Cod negligence case: duty, breach of duty, damages, and causation. “Duty” means that the plaintiff has to show that the defendant had an obligation to either act in a certain manner or refrain from acting in a particular way. “Breach of duty” occurs when the defendant failed to perform the action(s) required by the duty he or she had to the plaintiff or when the plaintiff performed an action that he or she should not have, given the duty. For example, drivers owe one another a duty to keep a proper lookout while driving. If a driver is looking down to read a text, he or she has likely breached this duty. If you’ve been injured and believe another person may be responsible, discussing the details of the incident with a Cape Cod personal injury lawyer is a good idea.

Not every breach of duty results in a finding of liability, however. This is because there must also be proof of damages (such as physical injury) and proximate causation. The question of proximate causation is more than a simple “someone breached a duty and someone else got hurt” proposition. Rather, the harm that befell the plaintiff must have been a foreseeable result of the breach of duty.

Sometimes, a defendant may have blatantly breached a duty of some sort but still not be held liable for a plaintiff’s injuries. This is because, in the court’s view (or in the jury’s view, if the case proceeds to trial) the harm that resulted was beyond that which a reasonable person would have foreseen at the time that the defendant acted (or failed to act).

June 12, 2020

Massachusetts Appeals Court Discusses Duties Owed – and Not Owed – Directly to a Parent Whose Child is Being Treated by a Healthcare Professional

By John C. Manoog III

Being the victim of professional malpractice can be doubly difficult. First, there is the harm caused by a negligent Cape Cod doctor, nurse, or other provider. This alone can be substantial, expensive to rectify (if this is even possible), and life-altering.

Then, there is the emotional difficulty of accepting that someone you trusted to help you was actually the person or entity that caused the harm. The idea of confronting a careless medical professional in a court of law can be daunting, and, truth told, can even dissuade some would-be litigants from seeking compensation for what has happened to them.

However, this only serves to give the negligent provider a “free pass” to continue such conduct in the future, possibly leading to additional patient harm or even death. If you find yourself as the victim of medical malpractice, it is important to consult a Cape Cod medical malpractice attorney who can explain your legal rights, the process of filing a claim, and the procedure necessary in order to seek fair compensation for your injuries.

June 8, 2020

Massachusetts Appellate Court Refuses to Set Aside Arbitration Award in Car Accident Case

By John C. Manoog III

While the right to a trial-by-jury in a Cape Cod car accident case is very important, there are sometimes occasions when the parties to such a matter may opt to submit their dispute to arbitration rather than move forward with a traditional trial. Like other kinds of alternative dispute resolution such as mediation, arbitration takes the case away from the consideration of a traditional judge and jury and places decision-making into the hands of one or more neutral persons.

In such a situation, there may be a single arbitrator, or there may be several. The result of the arbitration may be binding or non-binding (although, typically, “arbitration tends to be binding, while “mediation” tends to be non-binding).

Arbitration can sometimes be mandatory (such as when someone has signed an agreement to arbitrate all claims prior to the accident or event at issue). Arbitration can also be entered into by the agreement of the parties when all sides believe that it is the most fair and effective means of resolving the issues in a particular case.

May 27, 2020

Massachusetts Was More Convenient Forum in Federal Case Involving Grocery Store Slip and Fall

By John C. Manoog III

Ideally, the outcome of a Cape Cod premises liability or personal injury case would be the same regardless of whether it went to trial in a state court or a federal court, before a jury or just a judge, or in the city or in a small town. Justice is justice, right?

Unfortunately, the court system is far from perfect, and there can be differences in the outcome of a given case based on these and other factors. Because of this, the plaintiff in a case may choose to file his case in one venue rather than another – if there is a potential choice about such matters, given the facts. Defendants, too, sometime engage in “forum shopping” of sorts by seeking removal of a state case to federal court or transferal of a federal case from one district to another.

Facts of the Case

The plaintiff in a recent slip and fall negligence case was a man who alleged that he was injured when he slipped on a “wet, dangerous, and hazardous condition” located on the floor of a Massachusetts grocery store. He filed suit against the defendant store owners in a New Jersey state court in late 2019, seeking fair compensation for his medical expenses and associated damages resulting from the fall. The defendants removed the case to a federal court located in New Jersey based on diversity of citizenship.

May 7, 2020

Massachusetts Appeals Court Reverses and Remands in Case in Which Defendant Alleged There Was a Settlement but the Plaintiff Disagreed

By John C. Manoog III

Many Cape Cod personal injury cases settle outside of court. Some claims settle before a lawsuit has been filed, some suits settle after the discovery phase has been completed, and some cases literally settle on the front steps of the courthouse. In most situations, the parties agree that the case has been settled, paperwork is drawn up, and the defendant pays the plaintiff the monetary amount that has been agreed upon. Sometimes, however, a dispute arises as to whether a “meeting of the minds” has truly been had – such as recently happened in a case involving multiple plaintiffs who were seeking recovery against the same defendant.

Facts of the Case

In a recent unreported case, the plaintiff was apparently a litigant or a would-be litigant in a personal injury case that involved her sister and the defendant. (The circumstances of the case are not explained in the court’s opinion.) The plaintiff’s sister allegedly settled her claim against the defendant. The plaintiff, however, alleged that she did not authorize an attorney to settle her claim; rather, according to the plaintiff’s response to the defendant’s motion to enforce the purported settlement agreement, the plaintiff’s attorney sent an email to the defendant’s attorney to formally reject the offer that had been made.

The trial court judge granted the defendant’s motion to enforce the settlement that he alleged the plaintiff had entered into. The plaintiff appealed, seeking review of the appellate court.

March 26, 2020

Federal Court of Appeals Affirms, with Modifications, Judgment in Favor of Massachusetts Woman in Unfair Settlement Practices Claim Against Night Club’s Insurer

By John C. Manoog III

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.

March 10, 2020

Massachusetts Supreme Judicial Court Answers Federal Appeals Court’s Question About State Wrongful Death Statute

By John C. Manoog III

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.

February 20, 2020

Pro Se Litigant’s Petition for Review Dismissed by Massachusetts Supreme Judicial Court

By John C. Manoog III

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.