Commonwealth v. DePina; Commonwealth v. Monteiro (Lawyers Weekly No. 10-043-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11794 SJC-11932 COMMONWEALTH vs. ESAU DePINA. COMMONWEALTH vs. ISAIAH MONTEIRO. Plymouth. November 10, 2016. – March 13, 2017. Present: Gants, C.J., Lenk, Hines, & Lowy, JJ. Homicide. Firearms. Evidence, Testimony before grand jury, Hearsay, Admission by silence, Statement of codefendant, Joint venturer, Prior misconduct, Immunized witness, Third-party culprit, Expert opinion. Constitutional Law, Confrontation of witnesses. Joint Enterprise. Practice, Criminal, Capital case, Confrontation of witnesses, Hearsay, Conduct of prosecutor, Opening statement, Instructions to jury, Severance, Trial of defendants together. Indictments found and returned in the Superior Court Department on November 10, 2010. The cases were tried before Richard J. Chin, J. Rosemary Curran Scapicchio for Esau DePina. Stephen Neyman for Isaiah Monteiro. Audrey Anderson, Assistant District Attorney, for the Commonwealth. LENK, J. After a jury trial in the Superior Court, the defendants, Isaiah Monteiro and Esau DePina, were each found guilty of murder in the first degree on a theory of deliberate premeditation, as well as of related offenses, in the shooting death of the victim, Anthony Hamilton, on November 16, 2009.[1] In this direct appeal, they challenge the substantive admission of a witness’s grand jury testimony, various statements in that testimony they claim are independently inadmissible, certain portions of the prosecutor’s opening statement, the jury instructions on immunized witness testimony, and the denial of their motions to sever; they also raise various evidentiary issues. In addition, both defendants seek relief under G. L. c. 278, § 33E. We discern no error warranting reversal, and, having carefully reviewed the record, see no reason to reduce or set aside the verdicts under G. L. c. 278, § 33E. Accordingly, we affirm the defendants’ convictions. Background and proceedings. a. Facts. We recite the facts that the jury could have found, reserving certain details for later discussion. On November 16, 2009, at approximately 1 P.M., the victim was with several of his friends on the front porch of a house on Johnson Court in Brockton. A man approached on foot and shot him. Witnesses near the scene — neighbors, a carpenter, and the driver of a passing vehicle — described hearing at least three gunshots and seeing a man running, climbing through a hole in a fence, and getting into a waiting vehicle. None of the witnesses was able to provide more than a general description of that individual, […]
Patriot Power, LLC v. New Rounder, LLC, et al. (Lawyers Weekly No. 11-027-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-420 Appeals Court PATRIOT POWER, LLC[1] vs. NEW ROUNDER, LLC, & another.[2] No. 16-P-420. Middlesex. December 8, 2016. – March 13, 2017. Present: Kafker, C.J., Grainger, & Sullivan, JJ. Declaratory Relief. Practice, Civil, Declaratory proceeding, Burden of proof, Instructions to jury. Contract, Lease of real estate, Condition, Termination. Landlord and Tenant, Termination of lease. Real Property, Lease. Notice. Civil action commenced in the Superior Court Department on March 24, 2014. The case was tried before Bruce R. Henry, J. Mark C. O’Connor (Douglas S. Denny-Brown also present) for the plaintiff. Robert F. Feeney for the defendants. KAFKER, C.J. The issue presented in this declaratory judgment and breach of contract action is which party bears the burden of proof at trial regarding the exercise of a termination option in a lease. The plaintiff, Patriot Power, LLC, doing business as MandaShan Enterprises, was the landlord in a commercial lease; the defendant New Rounder, LLC, was the tenant, and the defendant Concord Music Group, Inc., was the guarantor (we refer to the defendants collectively as tenant). The lease provided that it would automatically renew each year unless either party timely notified the other that it wished to exercise a termination option in the lease. In the instant case, the landlord filed a complaint seeking a declaratory judgment that the tenant had not effectively terminated the lease, and asking for one year’s rent plus consequential damages. The tenant answered and counterclaimed, seeking a declaratory judgment that it had properly notified the landlord of its intention to terminate. The landlord sought a pretrial ruling that the tenant had the burden of proof at trial on the issue of whether it sent a lease termination letter before the nonrenewal deadline. A judge denied the motion, ruling that as the “moving party,” the landlord bore the burden to prove it did not receive the termination letter on time. At trial, a different judge instructed the jury in accordance with the pretrial ruling. The landlord objected to this instruction. The jury returned a verdict in favor of the tenant. On appeal, the landlord contends that the trial judge’s burden of proof instruction was erroneous and prejudicial.[3] We conclude that the tenant had the burden to prove it fulfilled the termination option requirements outlined in the […]
City of Revere, et al. v. Massachusetts Gaming Commission (Lawyers Weekly No. 10-042-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12111 SJC-12177 CITY OF REVERE & others[1] vs. MASSACHUSETTS GAMING COMMISSION. Suffolk. December 5, 2016. – March 10, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Gaming. License. Administrative Law, Judicial review, Intervention. Practice, Civil, Action in nature of certiorari, Review of administrative action, Intervention, Interlocutory appeal. Jurisdiction, Judicial review of administrative action. Civil action commenced in the Superior Court Department on October 16, 2014. A motion to dismiss the intervener’s complaint and a motion to dismiss the plaintiffs’ second amended complaint were heard by Janet L. Sanders, J. The Supreme Judicial Court granted an application for direct appellate review, and following the order by Sanders, J., for entry of final judgment, the Supreme Judicial Court granted a second application for direct appellate review. Kenneth S. Leonetti & Christopher E. Hart (Michael Hoven also present) for the intervener. Patricia L. Davidson for city of Revere. David S. Mackey (Mina S. Makarious & Melissa C. Allison also present) for the defendant. BOTSFORD, J. This case concerns the process by which the Massachusetts Gaming Commission (commission) awarded a gaming license in late 2014 to Wynn MA, LLC (Wynn). The plaintiffs — an unsuccessful applicant for the license, the city that would have hosted the unsuccessful applicant, a labor union, and individual citizens — filed two complaints in the Superior Court that alleged numerous defects in the commission’s process for awarding the license to Wynn. The commission filed motions to dismiss both complaints. A judge in the Superior Court allowed the motions on all but one count of one of the complaints, permitting only the unsuccessful applicant’s claim for certiorari review to survive. The parties now appeal various aspects of the judge’s decision. For the reasons discussed below, we affirm in part, reverse in part, and remand the case for further proceedings. Background. 1. Gaming in Massachusetts. In November, 2011, the Legislature enacted St. 2011, c. 194, An Act establishing expanded gaming in the Commonwealth (act).[2] Section 16 of the act created the gaming commission and set forth standards under which applicants could obtain a license from the commission to operate a gaming establishment. See G. L. c. 23K, inserted by St. 2011, c. 194, § 16. The act describes two types of licenses. The one […]
Categories: News Tags: 1004217, City, Commission, Gaming, Lawyers, massachusetts, Revere, Weekly
Commonwealth v. Crowley-Chester (Lawyers Weekly No. 10-041-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12128 COMMONWEALTH vs. ATREYO CROWLEY-CHESTER. March 9, 2017. Constitutional Law, Search and seizure. Search and Seizure, Motor vehicle, Impoundment of vehicle. The defendant, Atreyo Crowley-Chester, was charged in a complaint with carrying a firearm without a license, in violation of G. L. c. 269, § 10 (a), and possession of a firearm or ammunition without a firearm identification card, in violation of G. L. c. 269, § 10 (h). The charges stem from the recovery of a loaded firearm from a motor vehicle after police officers impounded and conducted an inventory search of the vehicle. The defendant filed a motion to suppress, which a judge in the District Court allowed after an evidentiary hearing. A single justice of this court granted the Commonwealth leave to pursue an interlocutory appeal, and the Appeals Court reversed. See Commonwealth v. Crowley–Chester, 86 Mass. App. Ct. 804 (2015). The case is now before this court on further appellate review.[1] Because we conclude that the motion judge properly allowed the motion to suppress, we affirm. Background. At approximately 3 A.M. on March 15, 2011, Springfield police Officers Matthew Longo and Jose Canini were on routine patrol on Williams Street when they observed a Honda Accord automobile parked on the street in front of a vacant lot and across the street from a church. The vehicle’s engine was running, and its lights were off.[2] Using the police cruiser’s spotlight, Officer Longo observed two individuals seated in the front of the vehicle, both of whom appeared to be making furtive type movements. The defendant was the front seat passenger. The officers approached the vehicle and, after observing an unknown object in the defendant’s hand and a knife in the center console, ordered the driver out of the vehicle. When the driver got out of the vehicle, a white rock-like substance fell to the ground. Officer Longo recognized the object to be consistent with “crack” cocaine, and the driver was placed under arrest. At this point, the defendant was also ordered out of the vehicle. After the defendant got out of the vehicle, Officer Longo retrieved and secured the knife.[3] The driver then asked that the defendant, who was not yet under arrest and who was free to leave the scene, be allowed to drive the vehicle. Officer Longo determined, however, that the defendant did not […]
Categories: News Tags: 1004117, Commonwealth, CrowleyChester, Lawyers, Weekly
Commonwealth v. Abdul-Alim (Lawyers Weekly No. 11-026-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1219 Appeals Court COMMONWEALTH vs. AYYUB N. ABDUL-ALIM. No. 15-P-1219. Hampden. December 13, 2016. – March 9, 2017. Present: Milkey, Massing, & Sacks, JJ. Firearms. Search and Seizure, Probable cause, Protective frisk. Constitutional Law, Search and seizure, Probable cause. Probable Cause. Evidence, Exculpatory. Jury and Jurors. Practice, Criminal, Motion to suppress, Continuance, Jury and jurors, Deliberation of jury, Record. Indictments found and returned in the Superior Court Department on January 19, 2012. A pretrial motion to suppress evidence was heard by John S. Ferrara, J., and the cases were tried before Constance M. Sweeney, J. James B. Krasnoo for the defendant. Alyson Yorlano, Assistant District Attorney, for the Commonwealth. MASSING, J. The defendant, Ayyub Adbul-Alim, appeals from his convictions of unlawful possession of a firearm and unlawful possession of ammunition, aggravated by previous convictions of a serious drug offense and a firearms violation. See G. L. c. 269, §§ 10(a), 10(d), 10(h), 10G(a). He claims, as he did at trial, that his prosecution was the result of a joint Federal and State effort designed to coerce him to provide information about the activities of potential Islamic terrorists in the Springfield area. In light of this claim, he argues specifically that (1) his motion to suppress the firearm and ammunition should have been allowed, (2) the trial judge wrongly denied his request for a continuance of the trial, (3) a mistrial ought to have been declared after the jury reported a deadlock, and (4) the trial judge thwarted appellate counsel’s efforts to obtain record documents. We affirm. Motion to suppress. a. Background. The motion judge found the following facts — which the record supports and the defendant does not challenge as clearly erroneous — regarding the search of the defendant’s person. The defendant had been married to Siham Nafi Stewart for about two years. They lived with their young child in a second-floor apartment on State Street in Springfield. During the investigation of a murder in the apartment building, Stewart and the defendant were identified as witnesses; Stewart met with a Springfield police lieutenant. Days later, after hearing gunfire in the apartment building, she called 911 and spoke with the Springfield police officers who responded to her apartment. “[C]oncerned for the well-being of her child and herself if they continued to […]
Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-025-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-308 Appeals Court NANCY BRADY, executrix,[1] & another[2] vs. CITIZENS UNION SAVINGS BANK[3] & another.[4] No. 16-P-308. Bristol. December 6, 2016. – March 9, 2017. Present: Green, Agnes, & Desmond, JJ. Probate Court, Attorney’s fees, Trust. Trust, Attorney’s fees. Executor and Administrator, Attorney’s fees. Practice, Civil, Attorney’s fees. Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011. Following review by this court, 88 Mass. App. Ct. 416 (2015), an award of attorney’s fees, costs, and compensation for professional services was entered by Virginia M. Ward, J. Carol L. Ricker for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben N. Dunlap for Edwin J. Haznar, Jr. GREEN, J. On remand following our decision in a previous appeal in this case, see Brady v. Citizens Union Sav. Bank, 88 Mass. App. Ct. 416 (2015) (Brady I), the Probate and Family Court judge entered a thorough and detailed written memorandum of decision, in which she reduced from $ 457,902.09 to $ 350,680.80[5] the amount the plaintiffs could recover as reimbursement for fees and costs their decedents incurred in defense of a lawsuit brought against them by the defendant Dale Eggers and her daughter. Eggers has again appealed, contending that (1) the amount of fees is unreasonable in light of the nature and complexity of the underlying litigation; (2) the amount of fees represents an unreasonable proportion of the value of assets held by the Wilson O. Smith Trust (trust); and (3) the judge failed adequately to consider the availability of insurance proceeds as an alternative source of reimbursement. We affirm, addressing Eggers’s arguments in turn.[6] Lodestar method.[7] In determining the amount of a reasonable fee, we consider “the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). Determination of a reasonable fee is in the first instance largely committed to the sound discretion of the trial judge, who is in the best position to evaluate the […]
Commonwealth v. Tuschall (Lawyers Weekly No. 10-040-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12151 COMMONWEALTH vs. KYLE TUSCHALL. Middlesex. November 9, 2016. – March 8, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Constitutional Law, Search and seizure, Probable cause. Search and Seizure, Emergency, Probable cause, Fruits of illegal search. Probable Cause. Indictments found and returned in the Superior Court Department on August 12, 2014. Pretrial motions to suppress evidence were heard by Thomas P. Billings, J. An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. The Supreme Judicial Court granted an application for direct appellate review. Randall F. Maas, Assistant District Attorney, for the Commonwealth. Jessica LaClair for the defendant. LOWY, J. Following a report of a “smell like drugs” emanating from the apartment of the defendant, police made two warrantless entries into his apartment. Based on observations of paraphernalia related to the manufacture of crystal methamphetamine, the police then obtained a warrant. The defendant was subsequently arrested and charged with, among other things, drug related offenses. The defendant filed two motions in the Superior Court — one to suppress the evidence seized during the execution of the search warrant and another to suppress statements he made to police following his arrest. The judge granted both motions after an evidentiary hearing. With respect to the first motion, the judge determined that no emergency justified the warrantless entries, without which the Commonwealth could not establish the probable cause necessary for the subsequent warrant. Regarding the second motion, the judge concluded the defendant’s statements to the police were the “fruit of” the defendant’s unlawful arrest. The Commonwealth appealed from the judge’s decision. A single justice in the county court allowed the Commonwealth’s application for interlocutory review and reported the matter to the Appeals Court. We subsequently allowed the defendant’s motion for direct appellate review. We affirm. Background. The motion judge made the following factual findings, which we accept absent clear error. Commonwealth v. Entwistle, 463 Mass. 205, 209 (2012), cert. denied, 133 S. Ct. 945 (2013). We review de novo the judge’s application of constitutional principles to the facts. Commonwealth v. Phillips, 452 Mass. 617, 624 (2008). On June […]
AM Properties, LLC v. J&W Summit Ave, LLC (Lawyers Weekly No. 11-024-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-1343 Appeals Court AM PROPERTIES, LLC vs. J&W SUMMIT AVE, LLC. No. 15-P-1343. Suffolk. May 17, 2016. – March 8, 2017. Present: Cypher, Blake, & Henry, JJ. Adverse Possession and Prescription. Real Property, Adverse possession. Civil action commenced in the Land Court Department on September 27, 2013. The case was heard by Alexander H. Sands, III, J., on motions for summary judgment. Joseph L. Bierwirth, Jr. (Ryan P. McManus also present) for the defendant. Ann M. Sobolewski for the plaintiff. HENRY, J. The plaintiff, AM Properties, LLC (AM), brought an action in the Land Court seeking to (1) establish title by adverse possession to a strip of land (the strip) that is part of the property of the defendant, J&W Summit Ave, LLC (J&W), and (2) permanently enjoin J&W from interfering with rights in an easement for passage over J&W’s property (the passageway). J&W counterclaimed, denying AM’s claim of title to the strip and asserting its own adverse possession claim to extinguish AM’s rights to the passageway. The central issue in the case is whether AM is entitled to include, or “tack” on, an approximate six-year period of nonpermissive use of the strip by a tenant of a prior owner to satisfy the twenty-year requirement for a claim of adverse possession. On cross motions for summary judgment, a Land Court judge answered this question in the affirmative and ruled in AM’s favor on all claims. J&W has now appealed from that judgment. As is well established, a review of a summary judgment ruling is de novo, taking the facts, along with the reasonable inferences that can be drawn therefrom, in a light most favorable to the party against whom judgment is to enter. See Miller v. Cotter, 448 Mass. 671, 676 (2007); Albahari v. Zoning Bd. of Appeals of Brewster, 76 Mass. App. Ct. 245, 248 n.4 (2010). To that end, we conclude that there is no genuine dispute of material fact[1] and that AM is entitled as a matter of law to tack on the prior period of tenancy to establish adverse possession. Accordingly, we affirm. Background. The following undisputed material facts are evident from the record. A specialty food store named Bazaar International Gourmet (Bazaar) has operated on the AM property at 1432 and 1432A Beacon […]
Ramirez v. Commerce Insurance Company (Lawyers Weekly No. 11-022-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-59 Appeals Court WRBASY RAMIREZ[1] vs. COMMERCE INSURANCE COMPANY. No. 16-P-59. Suffolk. November 7, 2016. – March 7, 2017. Present: Cypher, Massing, & Sacks, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Replacement, Construction of policy. Contract, Insurance, Construction of contract. Evidence, Replacement cost. Civil action commenced in the Superior Court Department on February 21, 2014. The case was heard by Janet L. Sanders, J., on motions for summary judgment. Thomas G. Shapiro for the plaintiff. Nelson G. Apjohn (Eric P. Magnuson also present) for the defendant. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. CYPHER, J. The plaintiff, Wrbasy Ramirez, appeals from a Superior Court judgment entered on a motion for summary judgment filed by Commerce Insurance Company (Commerce). The plaintiff argues that under the standard Massachusetts automobile insurance policy, Commerce must pay, as damages on his third-party claim for the total loss of his automobile, not only the actual cash value of a replacement vehicle, but also the applicable sales tax — even where he has not purchased a replacement vehicle and incurred the sales tax. We affirm.[2] Background. The following undisputed facts are taken from the summary judgment record. In January, 2014, the plaintiff was involved in a motor vehicle collision in Danvers with a vehicle driven by Edith McGuinness. Commerce insured McGuiness through a 2008 edition of the standard Massachusetts automobile insurance policy (the policy), which contains language approved by the Commissioner of Insurance. The policy included benefits for third-party property damage claims where Commerce determined that its insured was legally responsible for the collision. Specifically, part 4 of the policy provided: “[W]e will pay damages to someone else whose auto or other property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement. . . . Damages include any applicable sales tax and the costs resulting from loss of use of the damaged property.” Under the policy and the regulations at issue here, damages are calculated as follows: “Whenever the appraised cost of repair plus the probable salvage value may be reasonably expected to exceed the actual cash value of the vehicle, the insurer shall determine the vehicle’s actual cash value.” […]
Ramirez v. Commerce Insurance Company (Lawyers Weekly No. 11-022-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-59 Appeals Court WRBASY RAMIREZ[1] vs. COMMERCE INSURANCE COMPANY. No. 16-P-59. Suffolk. November 7, 2016. – March 7, 2017. Present: Cypher, Massing, & Sacks, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Replacement, Construction of policy. Contract, Insurance, Construction of contract. Evidence, Replacement cost. Civil action commenced in the Superior Court Department on February 21, 2014. The case was heard by Janet L. Sanders, J., on motions for summary judgment. Thomas G. Shapiro for the plaintiff. Nelson G. Apjohn (Eric P. Magnuson also present) for the defendant. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. CYPHER, J. The plaintiff, Wrbasy Ramirez, appeals from a Superior Court judgment entered on a motion for summary judgment filed by Commerce Insurance Company (Commerce). The plaintiff argues that under the standard Massachusetts automobile insurance policy, Commerce must pay, as damages on his third-party claim for the total loss of his automobile, not only the actual cash value of a replacement vehicle, but also the applicable sales tax — even where he has not purchased a replacement vehicle and incurred the sales tax. We affirm.[2] Background. The following undisputed facts are taken from the summary judgment record. In January, 2014, the plaintiff was involved in a motor vehicle collision in Danvers with a vehicle driven by Edith McGuinness. Commerce insured McGuiness through a 2008 edition of the standard Massachusetts automobile insurance policy (the policy), which contains language approved by the Commissioner of Insurance. The policy included benefits for third-party property damage claims where Commerce determined that its insured was legally responsible for the collision. Specifically, part 4 of the policy provided: “[W]e will pay damages to someone else whose auto or other property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement. . . . Damages include any applicable sales tax and the costs resulting from loss of use of the damaged property.” Under the policy and the regulations at issue here, damages are calculated as follows: “Whenever the appraised cost of repair plus the probable salvage value may be reasonably expected to exceed the actual cash value of the vehicle, the insurer shall determine the vehicle’s actual cash value.” […]