Pierce & Mandell, P.C.

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Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Insurance Defense and Litigation

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Curt Dooling Prevails In Anti-Slapp Special Motion To Dismiss

Tuesday, July 31, 2018
Curtis B. Dooling

The Massachusetts anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, G. L. c. 231, § 59H, authorizes a party sued because of his petitioning activity to file a special motion to dismiss within 60 days of service of the complaint. The purpose of the anti-SLAPP statute is to protect individuals from harassing litigation and from the burden of defending against retaliatory lawsuits.

In 2017, the SJC issued a decision, Blanchard v. Carney Hospital, 477 Mass. 141 (2017), that modified the anti-SLAPP legal analysis. In Blanchard, the SJC modified the Anti-SLAPP burden-shifting test by adding a second part to the analysis once the moving party makes a showing that the non-moving party’s claims are solely based on petitioning activity. Blanchard, 477 Mass. at 159-60. Under the pre-Blanchard test, the moving party had to first demonstrate that the nonmoving party’s claims were solely based on its own petitioning activity. Id. If the moving party met this initial burden, the non-moving party could defeat an anti-SLAPP special motion to dismiss by showing that the moving party’s petitioning activities were “sham petitioning.” Id.

In Blanchard, the SJC added a second prong to the burden shift on the nonmoving party. If the nonmoving party cannot show that the petitioning activity was a “sham” and was devoid of any reasonable basis in law or fact, the nonmoving party may defeat a special motion to dismiss by showing that the challenged claims were not primarily brought to chill legitimate petitioning activity.

Pierce & Mandell attorney Curt Dooling recently prevailed on an anti-SLAPP motion to dismiss under the new Blanchard standard. The plaintiff filed suit against Pierce & Mandell’s client for statements they made before a FINRA arbitration panel and for seeking criminal complaints against the plaintiff. Dooling successfully argued that the claims had to be dismissed because they were based solely on valid, protected petitioning activity. The Superior Court allowed Pierce & Mandell’s special motion to dismiss and awarded costs and fees to Pierce & Mandell’s client.

Pierce & Mandell’s litigators have successfully litigated numerous anti-SLAPP cases and are well-versed in the latest case law.

Lena Finnerty Wins Summary Judgment on Negligence Case

Monday, May 21, 2018

Lena Finnerty, Pierce & Mandell, P.C., Boston, MAPierce & Mandell attorney Lena Finnerty recently won summary judgment for the firm’s architect client in a case involving a slip and fall at a local federal government facility.

The firm represented an international architectural firm in a case involving a federal government employee who fell in the indoor “winter garden” of her employer’s large facility. Plaintiff alleged that she fell on pea stones that had migrated from the garden area onto the walking paths. The allegation against the firm’s client was that it was negligent in designing the winter garden by including pea stones as a feature.

The basis for the summary judgment motion was that plaintiff did not offer an expert witness to testify that designing the winter garden using pea stones violated the standard of care.

Founding partner Bob Pierce was lead counsel on the case for the architect, but Lena Finnerty wrote and argued the summary judgment motion. “I am so proud of Lena having developed this basis for a summary judgment motion and winning this dismissal for the client. This was tremendous work by Lena on behalf of the client and Pierce & Mandell.”

Pierce & Mandell is well known for defending every type of product liability, personal injury and construction defect case.

Recent SJC Decision Establishes That Insurer’s Duty to Defend Does Not Include Counterclaims

Monday, November 20, 2017

Curtis B. DoolingBy Curtis B. Dooling

Under Massachusetts law, an insurer’s duty to defend its insured is broad. An insurer has a duty to defend its insured if the allegations against the insured are “reasonably susceptible of an interpretation that states or roughly sketches a claim” that falls within the defense obligation’s scope. Billings v. Commerce Ins. Co., 458 Mass. 194, 200 (2010).

Even where some claims against an insured are not covered by insurance, if some of the claims are covered, an insurer has a duty to defend the insured against all claims. This is commonly referred to as the “in for one, in for all” doctrine.

Until recently, the law was unsettled in Massachusetts as to whether an insurer had a duty to pay the legal costs associated with a counterclaim filed by an insured in response to a covered claim against the insured. In the case of Mount Vernon Fire Insurance Company v. Visionaid, Inc., the Supreme Judicial Court, in a 5-2 opinion, held that an insurer is not required to pay for its insured’s counterclaim. Massachusetts has joined the majority of jurisdictions that don’t obligate an insurer to cover the costs of an insured’s counterclaim, even where the counterclaim is related to and assists in the defense of the underlying case.

The defendant/insured, Visionaid, Inc., argued that the duty to defend included all reasonably necessary steps to reduce the liability of the insured, including the costs of a counterclaim. The SJC relied on the plain meaning of the insurance policy and held that the policy did not impose an obligation on the insurer to fund a counterclaim.

Chief Justice Gants dissented and noted that an insurer can’t fulfill its duty to defend without prosecuting related counterclaims that reduce its insured’s liability. The majority disagreed and held that an affirmative counterclaim did not fall within the definition of “defend” under the policy.

Practically speaking, an insured who believes that it has valid counterclaims may still assert the claims, but will have to do so at its own expense. When this scenario occurs, insurance defense counsel will have to work closely with the insured’s personal counsel to both defend the case and prosecute the counterclaim.

Pierce and Mandell’s insurance and litigation attorneys are well-versed in these areas and can assist both insurers and policyholders in assessing what claims are covered under an insurance policy.

Dooling Wins Premises Liability Jury Trial in Berkshire County

Thursday, February 02, 2017

Curt Dooling recently obtained a defense verdict on behalf of his clients in a jury trial in the Pittsfield District Court in Berkshire County.

The plaintiff sustained multiple leg fractures after tripping over an entrance rug in a convenience store in Pittsfield, Massachusetts. Dooling represented the owner and operator of the convenience store. The plaintiff alleged that the entrance rug on which he tripped was defective because it failed to comply with American National Standard B101.6, the Standard Guide for Commercial Entrance Matting. The plaintiff also claimed that the store failed to properly secure the mat to the floor, which created a tripping hazard.

Before the trial began, Dooling filed a motion in limine to exclude any evidence regarding the size and type of the entrance rug on which the plaintiff tripped and whether the rug complied with any industry standard or regulation. The trial judge allowed Dooling’s motion in limine, and as a result, the plaintiff was foreclosed from presenting evidence in support of key elements of his theory of liability.

The jury deliberated for less than one hour and returned a defense verdict, determining that Pierce & Mandell’s clients were not negligent.

Bob Pierce Successfully Tries Four Jury Cases in 2016

Thursday, December 15, 2016

Founding shareholder Bob Pierce took four cases to jury trials in 2016. The cases were tried in four separate superior courts: Essex (Newburyport), Middlesex, Suffolk, and Dukes County (Martha’s Vineyard). In three of the cases, Bob achieved defense verdicts on behalf of his clients; in the fourth, the case settled after several days of trial based on a payment of less than 10% of plaintiff’s pre-trial demand.

Two of the cases were tort cases with large claimed damages. In one case, the plaintiff suffered a herniated disc in her back, which was exacerbated by a botched surgery which required multiple surgeries to correct. The plaintiff had well over $300,000 in medical bills.  Despite the substantial damages and a sympathetic plaintiff, the jury returned a defense verdict for Bob’s client.

In the second tort case, the plaintiff claimed a serious brain injury, and over $1 Million in lost earnings.  Once again, the jury returned a defense verdict, awarding the plaintiff nothing.

The third case involved claims by the plaintiff that the defendants, one of whom was defended by Pierce & Mandell attorney Lena Finnerty, had made false statements to the police about the plaintiff’s actions. As a result of these alleged false statements, the plaintiff was arrested, and charged with crimes. The plaintiff’s arrest generated substantial publicity in Boston newspapers and TV news. The plaintiff claimed that the arrest and attendant publicity caused her to lose substantial money in connection with the business she ran. Specifically, plaintiff claimed well over $1 Million in lost income. However, as a result of rulings on motions in limine in favor of the defense, and the inability of the plaintiff to obtain favorable testimony from the six witnesses who testified at trial, the case settled for a modest amount that was a fraction of the pre-trial demand.

The fourth case was a product liability case in which the plaintiff lost his left eye. The case was tried on Martha’s Vineyard, and the plaintiff was very sympathetic because he had obviously suffered an extremely serious and life changing injury. After a trial spanning close to two weeks, the jury returned a verdict in Bob’s client’s favor and awarded the plaintiff nothing.

PIERCE and DOOLING WIN PRODUCT LIABILITY TRIAL ON MARTHA’S VINEYARD

Wednesday, December 14, 2016

Pierce & Mandell, Robert Pierce, Boston, MAPierce & Mandell, Curtis Dooling, Boston, MABob Pierce and Curt Dooling recently obtained a defense verdict on behalf of their client in a jury trial in Dukes County Superior Court on Martha’s Vineyard.

The plaintiff in the case sustained a serious eye injury, which eventually led to the loss of the plaintiff’s eye, when he was struck with a golf disc designed and manufactured by Pierce & Mandell’s client. The plaintiff claimed that the golf disc that struck and injured him was dangerously defective because of its design and because it lacked proper warnings alerting users to its dangers. The firm challenged the plaintiff’s credibility by showing that the plaintiff’s version of how he was injured was not credible based on witness testimony and relevant medical records. The firm also successfully argued that the golf disc was not dangerously defective.

The case was challenging due to the very serious injury that the plaintiff suffered, and the fact that the individual who threw the disc that struck the plaintiff was no longer living in the United States and was unable to testify at trial.  Rather, his deposition testimony was read to the jury.

The case was tried over 6 days, and the jury deliberated for approximately 7 hours. The jury determined that Pierce & Mandell’s client did not breach the warranty of merchantability and that the golf disc was not dangerously defective.

Bob Pierce has now achieved complete victory for his clients in the last eight jury cases that went to verdict.

Liability Waivers and Releases – Who and What is Being Released - Boston, MA

Thursday, December 01, 2016

Pierce and Mandell, PC. Boston, MAby Curtis Dooling

Superior Court Judge Dennis Curran recently allowed the estate of a man who died at a YMCA facility to proceed with a wrongful death claim against the YMCA even though the decedent signed a liability release. The decedent, who was participating in an elderly exercise program at the YMCA, was found unconscious in a steam room. YMCA employees could not access the control room to shut off the steam heat. The decedent experienced catastrophic burn injuries and died shortly after being transported to the hospital.

The decedent signed a release absolving the Silver Sneakers program from all liability. The Silver Sneakers program was an elderly exercise program that encouraged seniors to join the YMCA to exercise. The program was operated by the YMCA at a YMCA facility. Although the release had broad and somewhat ambiguous release language, it did not specifically mention the YMCA as a released party. Thus, the court held that the plaintiff’s claims against the YMCA and its employees were not barred by the release. The court also held that the release did not bar claims for gross negligence because these claims were not specifically mentioned in the release.

This case demonstrates the importance of the language of a liability release. Liability releases and waivers are ubiquitous in modern society. Businesses often make patrons sign releases to protect against claims and lawsuits. However, as this case makes clear, poorly and vaguely written releases won’t stand up in court. It is vitally important to ensure that liability releases and waivers are carefully drafted to release the numerous potential claims that could be brought and to identify the parties being released as anyone or anything that is involved in any way in owning, managing or working at a business, facility or event.

Pierce & Mandell’s litigators have years of experience advising and representing businesses in risk and claims management and have litigated countless cases involving liability waivers and releases.

Pierce & Mandell Attorneys Achieve Defense Verdict

Wednesday, September 21, 2016

Bob Pierce and Lena Finnerty obtained a defense verdict on behalf of their client in a jury trial in Middlesex Superior Court that concluded on September 19, 2016.

The plaintiff in the case claimed that he suffered serious head injuries when he fell on black ice in the parking lot of the office park owned by Pierce & Mandell’s clients.  Plaintiff claimed in excess of $1 Million in lost earning capacity, and asked the jury for an award of over $4 Million.  The firm defended the case on the basis that the property owner client was not negligent, and that if the plaintiff did fall on black ice, the fall was caused by his own negligence.

The case was tried over 7 days, and the jury deliberated for approximately 2 ½ hours.  The jury determined that Pierce & Mandell’s client was not negligent, and the plaintiff was awarded nothing.

Bob Pierce has now achieved complete victory for his clients in well over 80% of the cases he has tried.

Curt Dooling Quoted in Massachusetts Lawyers Weekly Article on Recent SJC Decision DiCarlo v. Suffolk Construction Co., Inc., et al.

Wednesday, July 06, 2016

Pierce & Mandell attorney Curt Dooling was quoted in a Massachusetts Lawyers Weekly article on the recent Supreme Judicial Court decision of DiCarlo v. Suffolk Construction Co., Inc., et al. In DiCarlo, the SJC held that pain and suffering damages were not subject to a workers compensation lien pursuant to G. L. c. 152, § 15.

In the article, Dooling discussed the implication of the case on the settlement of personal injury claims. Dooling noted that workers compensation insurers are less likely to take a hard line in settlement discussions because the SJC has made it clear that pain and suffering damages are not subject to a workers compensation lien. Read Curt’s comments and the full article.

Pain and Suffering Damages Not Subject to Workers’ Compensation Lien - Boston, MA

Tuesday, March 01, 2016

by Curtis B. Dooling

The Supreme Judicial Court recently held that pain and suffering damages recovered by an injured plaintiff in a third-party personal injury case were not subject to a lien held by a workers’ compensation insurer that paid benefits to the injured plaintiff. Although it is too early to tell what effect this case will have in civil practice, the likely result is that tort cases with large workers’ compensation liens may be easier to settle by allocating portions of settlements to pain and suffering damages, circumventing the statutory lien rights of workers’ compensation insurers. However, settlement agreements that are subject to a workers’ compensation lien still have to be approved by a judge so any allocation must be reasonable.

DiCarlo v. Suffolk Construction Co., Inc., 2015 WL 10045032, involved two separate underlying cases that both arose out of workplace accidents. In both cases, the plaintiffs, Robert DiCarlo and Bernard Martin, sustained injuries at work and both collected workers’ compensation benefits. Both plaintiffs then reached settlement agreements with third parties, which included damages for pain and suffering. In both cases, the workers’ compensation insurer sought reimbursement under G. L. c. 152, § 15 from the plaintiffs’ settlement proceeds, including pain and suffering damages.

In DiCarlo’s case, a Superior Court judge rejected a settlement agreement because it did not permit the workers’ compensation insurer to recover a lien on the entire settlement amount, including pain and suffering damages. In Martin’s case, a Superior Court judge allowed a similar settlement agreement. The practice of allocating damages between pain and suffering and special damages is relatively new, leading to inconsistent results, as evidenced by the conflicting decisions in the DiCarlo case and Martin case.

The SJC focused on the language of the workers’ compensation statute, which permits a workers’ compensation insurer to recover benefits paid to injured workers’ where the injured worker recovers damages for the same injury from a third-party tortfeasor. A workers’ compensation insurer is entitled to “the gross sum received in payment for the injury.” G. L. c. 152, § 15. The issue before the SJC was whether “injury” included pain and suffering damages. The Court concluded that it did not.

The Court reasoned that since a workers’ compensation insurer pays for lost wages and medical expenses only, not pain and suffering damages, it is not entitled to be reimbursed for something that it did not pay.

Interestingly, the Court recognized the chance that a plaintiff and settling tortfeasor may attempt to inappropriately allocate the bulk of settlement proceeds to pain and suffering damages in order to work around a large workers’ compensation lien. However, the Court noted that since settlements needed to be approved by a judge after a hearing where the workers’ compensation insurer is permitted to participate, such inappropriate allocation would not be permitted.

The American Insurance Association submitted an amicus curiae brief in support of the workers’ compensation insurer’s position, evidence of the fact that workers’ compensation insurers are not going to be pleased with this decision. On the other hand, general liability insurers may be in favor of the decision because it will make it easier to resolve tort claims with large workers’ compensation liens. Going forward, plaintiff’s lawyers may request that juries allocate damages between pain and suffering and medical/lost wage damages to lessen the amount of jury awards that are subject to a workers’ compensation lien.

Pierce & Mandell’s litigation attorneys have years of experience defending personal injury claims on behalf of insurers and self-insureds. Please contact us with any questions about this new development or any other litigation need.


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