Some Cape Cod personal injury cases are multi-faceted. In addition to pursuing several different theories of liability and/or naming several defendants in a suit, a plaintiff may also file multiple lawsuits in different courts, seeking different types of compensation, as the case progresses. For instance, a plaintiff may seek compensation for a business owner’s negligence in his or her initial lawsuit. Later, that same individual may file a different type of lawsuit against the original defendant’s insurance company due to its failure to meet its legal obligations during settlement negotiations in the first case.
In both situations, the burden of proof is on the plaintiff to prove his or her case by a preponderance of the evidence. Thus, it is important that the plaintiff be represented by experienced legal counsel who can assist him or her in the filing of the required pleadings, the gathering of evidence, and the presentment of the case to the jury at trial.
Facts of the Case
In a recent (unreported) case, the plaintiff was a man who suffered a traumatic brain injury in 2008 as a result of an argument that began over a bar stool in a restaurant and culminated in an exchange of blows in the street later in the evening. The plaintiff filed a negligence security practices lawsuit against the restaurant, and, in 2012, a jury determined that the restaurant and an associated entity were each 45% at fault for the plaintiff’s injuries. The plaintiff was awarded $4.5 million in compensatory damages. The plaintiff then filed a second case against the insurance company that insured the defendants in the first case, seeking damages for the insurer’s alleged failure to effectuate a prompt, fair, and equitable settlement of the first case after liability had become clear.
In the second case, the parties waived a jury trial, and the trial court judge found that liability did not become reasonably clear until after closing arguments in the first case and that the insurer had violated Massachusetts General Laws ch. 176D, § 3(9)(f) from that time point until six weeks later. However, the trial court found that this violation was not willful or knowing and, accordingly, awarded the plaintiff damages of only $25, plus attorney’s fees and costs. Both parties appealed.
The Court’s Decision
The Massachusetts Appeals Court affirmed in part and reversed in part, thereby vacating the portion of the lower tribunal’s order that had determined that the insurer’s violation of ch. 93A was not willful or knowing. The court then remanded the case for a determination as to whether the amount of the judgment on the claims arising out of the case and the underlying occurrence should be doubled or tripled under ch. 93A, § 9(3).
The reviewing court thereby rejected the insurer’s contention that an alleged settlement after the first lawsuit precluded the plaintiff’s claims in the second suit. According to the appeals court, the settlement of the underlying insurance claim – even within a short time of a ch. 93A demand letter – did not necessarily resolve the associated ch. 93A claims because those claims allowed the plaintiff to remedy the separate harm caused by the insurer’s unfair settlement practices. Because of the distinction between the claims in the first and second suits, the plaintiff’s acceptance of the insurer’s tender of payment for an insured claim litigated in the first suit did not vitiate a claim under ch. 93A as a matter of course. Such would only happen if the latter claim had been expressly settled, which was not the situation here.
To Ask a Cape Cod Attorney a Question About a Possible Lawsuit
In addition to the obligation to keep their premises safe from dangerous conditions such as slippery floors and icy parking lots, those who own bars, restaurants, and similar establishments also have a responsibility to have effective security measures in place to protect customers from foreseeable harm. If you have a question about a Cape Cod bar or restaurant’s liability, call the Law Offices of John C. Manoog III, at 888-262-6664, and ask to speak to a member of our legal team. During the COVID-19 pandemic, we are taking steps to limit exposure to the virus for our clients and staff, but we are still able to conduct business remotely, such as through a telephone call or a video chat.