Cape Cod Injury Lawyer Blog

May 14, 2020

Massachusetts Appellate Court Affirms Dismissal of Medical Malpractice Litigant’s Case for Failure to Prosecute

Cape Cod medical malpractice cases have some special requirements that other types of negligence cases do not. One of these is the filing of an offer of proof that is presented to a three-person tribunal that will determine whether the plaintiff has enough evidence to raise a legitimate question as to the defendant(s)’ liability for harm caused by medical negligence.

If the tribunal answers the question in the affirmative, the case proceeds to the next phase of litigation in the same manner that a non-medical tort case would. If the tribunal does not find that the plaintiff has presented substantial evidence of liability, however, the case is not necessarily over.

At that point, the plaintiff has the option of posting a bond to cover certain defense costs if he or she does not prevail in the litigation. The court has some flexibility as to the amount of the bond, and the parties may argue that it be adjusted upward or downward from the “usual” amount of $6000.

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.

April 28, 2020

Summary Judgment to Plaintiff is Dog Bite Case Affirmed by Massachusetts Appeals Court

By John C. Manoog III

Those who own animals that cause serious injury to others by biting them or otherwise attacking them can be held liable for medical expenses, lost earnings, and other damages. Of course, there are some limitations on this general rule. For instance, if the bite or attack came as a result of the plaintiff provoking the animal in some manner, the owner may not be liable for the plaintiff’s injuries. Often, Cape Cod dog bite cases come down to a factual dispute that must be resolved by the trier of fact. Sometimes, however, dog bite cases can be handled though the pre-trial summary judgment process.

Facts of the Case

The plaintiff in a recent (unreported) case was a man who was bitten by a dog owned by the defendant. Seeking monetary compensation for serious injuries he allegedly received in the incident, the plaintiff filed suit against the defendant pursuant to Massachusetts General Law ch. 140, § 155. In his suit, the plaintiff stated claims for both negligence and strict liability, alleging that, at the time that he was bitten, he was not “teasing, tormenting, or abusing” the dog but, rather, had merely leaned down to pet the animal. The defendant’s unsigned answers to interrogatories asserted that the plaintiff had awoken the dog from sleep, stepped on its tail, and swung a heavy medallion at the dog.

The trial court granted summary judgment to the plaintiff. The defendant sought reconsideration, but the trial court did not change its earlier ruling in the plaintiff’s favor. The defendant appealed.

April 21, 2020

Massachusetts Appeals Court Affirms Dismissal of Car Accident Case Against City Due to Lack of Presentment of Claim

By John C. Manoog III

Most Cape Cod car accident lawsuits are filed by an individual, couple, or family against a motorist whose careless conduct led to injury or death. Sometimes, however, there are other possible defendants in such cases.

If the allegedly negligent driver was acting in the course and scope of his or her employment at the time that the motor vehicle collision occurred, the driver’s employer may be named as a defendant. In some situations, a governmental entity may be a defendant in a personal injury case – particularly in cases in which a city employee’s allegedly negligent driving led to an accident. Lawsuits against the government often have special requirements, so it is important to talk to a lawyer as soon as possible if you or a loved one has been hurt in a crash caused by someone employed by a local or state government who was on the job at the time of the accident.

Facts of the Case

In a recent unreported case, the plaintiff was a woman who sued the defendant city and a police officer whom it employed, asserting a claim for personal injuries she sustained due to the officer’s allegedly negligent operation of a motor vehicle. After filing her initial complaint against both the officer and the city, the plaintiff opted to file an amended complaint in which only the city was named as a defendant. In turn, the defendant city filed a pre-answer motion pursuant to Massachusetts Rule of Civil Procedure 12(b)(6) asking the trial court to dismiss the plaintiff’s complaint for failure to state a claim.

April 14, 2020

Massachusetts Appeals Court Affirms Conviction for Carrying a Dangerous Weapon

By John C. Manoog III

Many Cape Cod criminal defense cases revolve around the issue of searches and seizures. Police sometimes overstep their bounds during stop-and-frisk incidents, arrests, and the execution of search warrants.

Sometimes, however, the issue is not so much whether a search itself was legal but, rather, whether the evidence that was found by police during the search was of a particular type or located in a place such that a given statute is applicable. Because reasonable minds can disagree about such matters, it is not unusual for such cases not only to proceed to trial (rather than be settled via a plea agreement) but, sometimes, through the appellate process, as well.

Facts of the Case

The defendant in a recent case was charged with carrying a dangerous weapon on his person or under his control in a vehicle in violation of Massachusetts General Laws ch. 269, § 10(b). The charge was brought after a woman, with whom the defendant was apparently in a relationship of some sort, made a complaint to police, and police began searching for the defendant. The defendant and the complainant were located inside a truck and camper that was parked in the parking lot of a large retail store. At the time police approached the defendant, who was inside the camper, the camper was hooked up to a running generator. According to the complainant, the pair had been living in the camper for several days at that location.

April 7, 2020

Massachusetts Court of Appeals Rules Against Insurance Company in Unfair Settlement Practices Lawsuit

By John C. Manoog III

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.

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 19, 2020

Massachusetts Court of Appeals Affirms Termination of Injured Employee’s Workers’ Compensation Benefits

By John C. Manoog III

A typical Cape Cod workers’ compensation case involves several different types of benefits, including medical care, temporary disability, and permanent disability. The determination of what is due an injured worker in a particular case can be a complex process. Oftentimes, there is a great amount of disagreement between the injured worker and his or her employer’s workers’ compensation insurance company regarding the benefits that are due.

Employees have a right to legal counsel during the benefits determination process. If you have been hurt and are wondering whether you should hire an attorney to represent you in your case, please keep in mind that workers’ compensation attorneys do not charge legal fees up front. Rather, your attorney’s fee will be paid out of any settlement or judgment that you receive, so that the inability to pay an attorney when you are already hurt and out of work is not a barrier.

Facts of the Case

The claimant in a recent (unreported) workers’ compensation case appealed to the Commonwealth of Massachusetts Appeals Court was woman who injured her back in mid-March of 2014 while working as a law librarian for a law firm. The plaintiff first sought medical treatment for her back injury in June 2014. She permanently left her employment in December 2014, at which time she was allegedly still suffering from pain, muscle spasms, and swelling. In September 2015, the employer’s workers’ compensation insurer filed a complaint to discontinue the claimant’s disability benefits.

March 13, 2020

Per Massachusetts Highest Court, Decedent’s Signature on Covenant Not to Sue Barred Wrongful Death Claim by Statutory Beneficiaries

By John C. Manoog III

When someone is injured by another’s breach of the duty of due care, he or she has a right to file a negligence claim seeking compensation from the responsible party for his or her personal injuries. This includes payment for medical expenses, lost earnings, pain and suffering, and other damages.

A Massachusetts wrongful death action may lie when a person is killed by another’s negligence. These suits are typically brought by the personal representative of the victim’s estate, acting on behalf of the beneficiaries enumerated under the state’s wrongful death statute, and, if successful, may result in the awarding of different elements of damages than would have been available in a personal injury lawsuit filed by the victim. The state’s highest court recently clarified the relationship between these two types of claims.

Facts of the Case

In a recent case, the plaintiff was the personal representative of a man who died in a scuba diving accident in 2014. The plaintiff filed a lawsuit against the defendants, the manufacturer of the decedent’s dry suit, the person who supplied the decedent’s diving equipment, and the dive leader, seeking to assert a wrongful death claim under Massachusetts General Laws ch. 229, § 2. The plaintiff settled her case against all defendants except the dive leader. Thereafter, the dive leader filed a motion for summary judgment, relying upon a release and covenant not to sue that the decedent signed prior to his death. The trial court granted the motion, and the plaintiff appealed. The Massachusetts Supreme Judicial Court transferred the case from the intermediate appellate court on its own initiative.

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.