Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

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

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Insurance Defense and Litigation

Your Legal Rights as a Pedestrian and as a Landowner

Monday, December 24, 2012

As winter quickly approaches, so does the onset of the always unpredictable Boston winter weather. As sidewalks and parking lots start to become wet, icy and slippery, it’s important to know your legal rights as a pedestrian and your legal duties as a landowner.

Historically, Massachusetts courts distinguished between natural and unnatural accumulations of snow and ice when considering whether property owners are liable for personal injuries occurring from winter weather slip and fall accidents. Prior to the Massachusetts Supreme Judicial Court’s ruling in Papadopoulos v. Target Corp., landowners had no duty to remove natural accumulations of snow and ice on their property. Papadopoulos v. Target Corp., 457 Mass. 368, 370 (2010); Sullivan v. Town of Brookline, 416 Mass. 825, 827 (1994). This archaic legal rule, known as the Massachusetts rule, resulted in bizarre rulings that often hinged on whether a particular patch of ice or pile of snow was natural or unnatural, which created “confusion and conflict.” Papadopoulos, 457 Mass. at 377-78.

The distinction between natural and unnatural accumulation no longer exists in Massachusetts. A property owner now has a duty to “act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk.” Id. at 383. It’s now up to a jury to consider whether a property owner’s snow and ice removal efforts are reasonable in light of the expense they impose on the landowner and the probability and seriousness of the foreseeable harm to others. Id. at 384.

With the holiday season in full swing, mall parking lots are bound to be full of pedestrians and cars. They may also be full of ice and snow. It’s important to remember that business owners now have an affirmative duty to make sure that their property is well maintained and free from dangerous snow and ice conditions, whether natural or unnatural. Landowners can no longer hide behind the defense that they have no duty to alter or remove snow or ice – they most certainly do. If you are the victim of a landowner’s failure to properly salt, plow or shovel their property – you have legal rights and it’s vital to contact Pierce and Mandell, P.C. if you’ve been injured.

Out of State Driver’s Damages not Offset by Personal Injury Protection

Tuesday, December 18, 2012

In Massachusetts, every insured driver carries their own personal injury protection coverage ("PIP") which, regardless of fault, will cover some portion of that person's medical bills and lost wages (anywhere between $2,000.00 and $8,000.00, depending upon the circumstances). When those drivers are injured by the negligence of another driver, and seek compensation through a personal injury claim, defendant drivers and their insurance companies have typically relied upon what is known as a “PIP offset”, as provided in Massachusetts General Laws chapter 90, §34M, which exempts a defendant from tort liability to the extent of PIP benefits available to an injured plaintiff. 

In practice, the PIP offset allows the defendant's insurer to deduct from a verdict any moneys spent by the plaintiff's PIP carrier on his or her behalf.  For example, if a plaintiff was awarded $50,000.00 in a motor vehicle personal injury case, but received $8,000.00 in PIP benefits, the defendant's insurer would be entitled to an offset (or credit) of $8,000.00, and would only be liable to the plaintiff for $42,000.00 (excluding interest).  Even where a plaintiff attempts to settle their claims before initiating litigation, insurance companies often invoke the PIP offset to justify what otherwise might be an unreasonably low offer.  PIP offsets are therefore just one of many traps awaiting the unwary who are unfamiliar with motor vehicle and personal injury litigation, and the claims settlement process.

Recently, however, Massachusetts courts have begun to limit the scope of the PIP offset.  According to a recent Appellate Division ruling, an out of state motorist whose insurance did not have PIP benefits, but whose negligence caused injury to another driver in Massachusetts, was not entitled to have the injury victim’s damages offset by the amount of PIP benefits the victim received from his own insurer.  See DiStefano v. Jovet, Lawyers Weekly No. 13-060-12. 

This is an important development, especially in the Northeast where automobile travel is common between a large number of states, all with their own unique insurance laws.  Frequently out of state drivers are involved in motor vehicle accidents here in Massachusetts, and in such instances, those who do not carry PIP coverage may not be entitled to the offset.  For the moment, whether the Appellate Division's recent opinion in DiStefano results in out of state insurers ending their practice of invoking the PIP offset remains to be seen.  Regardless, an informed claimant with knowledgeable counsel needs to be prepared to confront these, and other intricacies of the personal injury claims settlement process.

If you have been involved in an accident where PIP coverage is in question, contact Pierce and Mandell, P.C.

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