Posts tagged "American"

North American Catholic Educational Programming Foundation, Inc., et al. v. Clearwire Spectrum Holdings II LLC, et al. (Lawyers Weekly No. 09-023-18)

COMMONWEALTH OF MASSACHUSETTS   SUFFOLK, ss.                                                                                   SUPERIOR COURT                                                                                                             CIVIL ACTION                                                                                                             No. 15-3118 BLS 2     NORTH AMERICAN CATHOLIC EDUCATIONAL  PROGRAMMING FOUNDATION, INC. et al.[1] Plaintiffs   vs.   CLEARWIRE SPECTRUM HOLDINGS II LLC, CLEARWIRE LEGACY LLC and SPRINT SPECTRUM, L.P., Defendants   MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION TO STAY ACTION   Plaintiffs are non-profit entities that hold licenses from the Federal Communications Commission (FCC) to operate Educational Broadband Services (EBS) channels in certain geographic markets.  In 2006, plaintiffs granted access to a portion of their wireless communication spectrum to defendants Clearwire Spectrum Holdings LLC and Clearwire, Legacy, LLC (Clearwire) pursuant to various written Agreements, including Master Royalty and Use Agreements (MRUAs).  The defendant Sprint Spectrum L.P. (Sprint) subsequently acquired all the stock in Clearwire’s parent, and a dispute arose between Sprint and the plaintiffs as to what services Sprint was obligated to provide plaintiffs’ customers.  Plaintiffs took the position that Clearwire had effectively sublicensed its use of the broadband spectrum to Sprint, and that, pursuant to the Agreements, this required plaintiffs’ consent – consent which they were entitled to withhold unless Sprint agreed to provide broadband access to plaintiff’s customers that was equivalent to what Clearwire itself would have provided had there been no sublicense. Plaintiffs filed this lawsuit in October 2015 seeking equitable relief and specific performance.  In November 2015, this Court allowed plaintiffs’ Motion for a Preliminary Injunction, concluding that plaintiffs had demonstrated a substantial likelihood of prevailing on the merits.  The injunction among other things required defendants to maintain Cost Free Educational Accounts (CFEAs) that entitle plaintiffs’ customers to access the Clearwire broadband network free of charge.  On June 24, 2016, this Court allowed plaintiffs’ Motion for Partial Summary Judgment as to Count One of the Complaint, which focused on the single issue of consent.  After some period of negotiation seeking a global resolution, two of the six plaintiffs in the instant action filed arbitration claims seeking damages, the MRUAs requiring them to pursue any monetary remedy in that forum.    Defendants now move to stay this action until the arbitration is concluded.  This Court concludes that this Motion must be DENIED. In support of the motion, defendants cite the broad arbitration provision in the MRUAs and argue that under the Federal Arbitration Act, it would be an abuse of discretion not to stay the instant action because the claims its raises substantially overlap with those issues being presented to a three member arbitration panel.  A stay is appropriate, they argue, in order to avoid duplicative discovery and the risk of inconsistent results.  In response, the plaintiffs contend that there is no overlap between the claims that they assert […]

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Posted by Massachusetts Legal Resources - March 10, 2018 at 12:35 am

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American Catalog Mailers Association, et al. v. Heffernan (Lawyers Weekly No. 09-003-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1772 BLS1 AMERICAN CATALOG MAILERS ASSOCIATION and NETCHOICE vs. MICHAEL J. HEFFERNAN, in his capacity as Commissioner of the MASSACHUSETTS DEPARTMENT OF REVENUE MEMORANDUM OF DECISION AND ORDER ENTERING DECLARATORY JUDGMENT ON COUNT I OF PLAINTIFFS’ VERIFIED COMPLAINT In this case, the plaintiff trade associations1 challenge the validity of Directive 17-1 issued by the Commissioner of the Massachusetts Department of Revenue (the Commissioner and the DOR, respectively) on April 3, 2017 (the Directive). The Directive is entitled: “Requirement that Out-of-State Internet Vendors with Significant Massachusetts Sales Must Collect Sales or Use Tax.” In effect, it requires that, beginning on July 1, 2017, large internet vendors who do not have places of business in Massachusetts, but have made a minimum number of product sales for delivery into Massachusetts, collect and remit to the DOR Massachusetts sales or use taxes. This is a new policy, as these internet vendors were not previously required to collect sales or use taxes from their online customers who place orders for goods to be delivered in Massachusetts. The plaintiffs’ verified complaint (the complaint) is pled in four counts: Count One asserts that the Directive was issued in violation of the 1 Plaintiff American Catalog Mailers Association is a trade association representing companies engaged in catalog marketing. Plaintiff NetChoice is a trade association of internet companies engaged in online sales. 2 Massachusetts Administrative Procedure Act (G.L. c. 30A, the APA); Count Two asserts that the Directive is preempted by the federal Internet Tax Freedom Act (47 U.S.C. § 151, the IFTA); Count Three asserts that the Directive violates the Commerce Clause of the United States Constitution; and Count Four asserts that the Directive violates the Due Process Clause of the United States Constitution. The case came before the court on June 27, 2017, three days before the Directive was to take effect, on the plaintiffs’ motion for a preliminary injunction enjoining the Commissioner from enforcing the Directive. In their moving papers, the plaintiffs relied on Counts One and Two in pressing their request for preliminary injunctive relief. At the hearing, both the plaintiffs and the Commissioner agreed that as to Count One, which alleges that the Directive was invalid because not promulgated as a regulation pursuant to the APA, there were no facts in dispute, the issue had been fully briefed, and that Count could be resolved as a matter of law on the materials submitted. In consideration of the parties’ memoranda and oral arguments, the court finds that the Directive established a new policy that substantially altered the rights and interests of the regulated parties and therefore had to be promulgated pursuant to sections 2 […]

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Posted by Massachusetts Legal Resources - September 29, 2017 at 3:06 am

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American Catalog Mailers Association, et al. v. Heffernan (Lawyers Weekly No. 09-004-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1772 BLS1 AMERICAN CATALOG MAILERS ASSOCIATION and NETCHOICE vs. MICHAEL J. HEFFERNAN, in his capacity as Commissioner of the MASSACHUSETTS DEPARTMENT OF REVENUE ORDER ON DEFENDANT’S EMERGENCY MOTION TO VACATE MEMORANDUM OF DECISION AND ORDER ENTERING DECLARATORY JUDGMENT ON COUNT I AND REVISED ORDER FOR THE ENTRY OF FINAL JUDGMENT On June 28, 2017, this Court issued a Memorandum of Decision and Order Entering Declaratory Judgment on Count I of Plaintiff’s Verified Complaint (the Decision). The Decision concluded with the following Order: For the foregoing reasons, Final Judgment shall enter (a) as to Count One of the Complaint, declaring that the Directive is a regulation promulgated without compliance with Sections 2 or 3 of G.L. Chapter 30A and, therefore, invalid; and (b) as to Counts Two through Four dismissing these counts without prejudice. Apparently also on June 28, 2017, the defendant (DOR) revoked the Directive and filed with the court pleadings entitled: “Defendant’s Notice of Immediate Revocation of Department of Revenue Directive 17-1” and “Defendant’s Notice of Objection to Entry of Final Declaratory Judgment on Count I.” The Decision was, however, completed and signed by the Court well before it received these two pleadings. Thereafter, the DOR filed the pending motion in which it asks the court to vacate the Decision. 2 The court denies the motion to the extent that it requests that the Decision be vacated. Count I of the complaint presented a pure issue of law. The parties submitted what appeared to be comprehensive briefs addressing it. There was a lengthy oral argument on the issue on June 27, 2017. The Directive was to go into effect on July 1, 2017. During argument, the DOR rejected the court’s suggestion that it voluntarily delay the date by which internet retailers would have to be in compliance with the Directive. During argument, the court made quite clear its intention to enter a final judgment on Count One (and dismiss the other counts), if it concluded that the Directive was a regulation, as it was undisputed that it had not been promulgated following the procedures required by the Administrative Procedures Act. The DOR expressed no objection to this approach until the following day. By then, the Court had completed and signed the Decision while the matters raised by Count One were still actively in dispute between the parties to this litigation. However, before the separate Final Judgment required by Mass.R.Civ.P. 58 (a) could issue, the court learned that the Directive had been revoked “effective immediately.” It is the court’s understanding that, thereafter, the DOR began the process of promulgating the Directive as a regulation in accordance with the APA. […]

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Posted by Massachusetts Legal Resources - September 28, 2017 at 11:32 pm

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Caira v. Zurich American Insurance Co. (Lawyers Weekly No. 11-045-17)

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-927                                        Appeals Court   MICHAEL CAIRA  vs.  ZURICH AMERICAN INSURANCE CO.     No. 16-P-927.   Essex.     February 2, 2017. – April 21, 2017.   Present:  Grainger, Sullivan, & Lemire, JJ.     Motor Vehicle, Insurance.  Insurance, Unfair act or practice, Settlement of claim.  Consumer Protection Act, Unfair act or practice, Insurance.  Practice, Civil, Consumer protection case, Summary judgment, Continuance, Discovery.       Civil action commenced in the Superior Court Department on April 9, 2015.   A motion for a continuance was heard by Timothy Q. Feeley, J., and the case was heard by him on a motion for summary judgment.     Mark T. Rumson (Paul F.X. Yasi also present) for the plaintiff. Jane A. Horne (Allen N. David also present) for the defendant.     LEMIRE, J.  In this case, we consider whether a judge in the Superior Court erred in granting summary judgment to Zurich American Insurance Co. (Zurich) on a complaint alleging that Zurich committed unfair claim settlement practices in violation of G. L. c. 176D, § 3(9)(f), and G. L. c. 93A, § 2.  We conclude that Zurich did not violate these statutory provisions when it conditioned the payment of its primary insurance policy limit on a release of all claims against its insureds, notwithstanding the availability of excess insurance.  Accordingly, we affirm. Background.  Shortly after midnight on September 14, 2013, Daniel Madigan-Fried was driving a rental car in Swampscott when he was involved in a one-vehicle accident.  The plaintiff, Michael Caira, who was a passenger in the front seat, suffered life-threatening injuries, and the two passengers in the back seat sustained serious injuries.  A few weeks before the accident, Madigan-Fried had rented the vehicle in his capacity as an employee of Groom Construction Co., Inc. (Groom).  Zurich had issued to Groom the primary commercial automobile insurance policy that was in place at the time of the accident.  The bodily injury coverage under the policy was $ 1 million.  In addition, Groom had two excess insurance policies issued by Starr Indemnity & Liability Company (Starr Indemnity) and Navigators Insurance Company (collectively, excess insurers) that provided coverage of $ 5 million each.[1] On October 29, 2013, Caira filed a complaint in the Superior Court against Madigan-Fried and Groom, alleging negligence.[2]  Caira claimed that excessive speed caused Madigan-Fried to lose control of the vehicle and to crash into a granite wall.  Zurich undertook […]

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Posted by Massachusetts Legal Resources - April 21, 2017 at 5:25 pm

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Doe v. American Guaranty and Liability Co., et al. (Lawyers Weekly No. 11-018-17)

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-183                                   Appeals Court   JOHN DOE  vs.  AMERICAN GUARANTY AND LIABILITY CO. & others.[1]     No. 16-P-183.   Essex.     November 8, 2016. – March 1, 2017.   Present:  Wolohojian, Milkey, & Shin, JJ.   Attorney at Law, Malpractice, Communication with represented party.  Evidence, Legal malpractice, Privileged communication.  Privileged Communication.  Waiver.  Practice, Civil, Motion to dismiss.       Civil action commenced in the Superior Court Department on March 17, 2015.   Motions to dismiss were heard by Robert A. Cornetta, J.     Michael A. Tucker for the plaintiff. William T. Bogaert for George Rockas. Marissa I. Delinks for H. Ernest Stone. Jonathan Small for American Guaranty and Liability Co.     MILKEY, J.  Attorney H. Ernest Stone represented John Doe in a criminal case and a related tort action.  In the course of that representation, Doe relayed certain information to Stone that all parties indisputably agree was subject to attorney-client privilege.  After the tort action ended in a default judgment against Doe, Doe brought a legal malpractice action against Stone based on his handling of the tort case.  The malpractice action concluded via a settlement agreement.  Doe next filed a complaint in the Superior Court alleging that in defending the malpractice action, Stone misused the privileged information he received during his earlier representation of Doe.  Doe named as defendants Stone; George Rockas, the attorney who represented Stone in the malpractice action; and American Guaranty and Liability Co. (American), Stone’s legal malpractice insurer.  The defendants filed motions to dismiss, raising a wide variety of defenses.[2]  See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974).  The judge allowed the motions and judgment entered dismissing the complaint.  Doe appeals.  Because we agree with the motion judge that in bringing the malpractice action, Doe waived the privilege that otherwise applied to the information at issue, we affirm.  Resolving the case on that ground, we have no occasion to reach the defendants’ other defenses. Background.  As noted, this appeal involves four related actions.  We begin by summarizing those actions in the order they were brought, reserving certain details for later discussion.  Our factual recitation is drawn from the allegations set forth in the amended complaint in the action before us, supplemented by background facts drawn from the attachments to that complaint and documents that recount the course of the earlier proceedings.  See Shaer v. Brandeis Univ., […]

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Posted by Massachusetts Legal Resources - March 2, 2017 at 8:15 am

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OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-112-16)

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   13-P-1240                                       Appeals Court   ONEBEACON AMERICA INSURANCE COMPANY  vs.  NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants.     No. 13-P-1240.   Suffolk.     June 3, 2014. – August 31, 2016.   Present:  Kantrowitz, Hanlon, & Carhart, JJ.[2]     Conflict of Laws.  Insurance, Comprehensive liability insurance, Excess Liability Insurance, Pollution exclusion clause.  Contract, Insurance, Choice of law clause.  Real Property, Environmental damage.       Civil action commenced in the Superior Court Department on July 25, 2005.   Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J.     Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue.     CARHART, J.  This matter is before us pursuant to the December 28, 2015, order of the Supreme Judicial Court, remanding to this court for express consideration the substantive law to be applied to the interpretation of the insurance contracts at issue in OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 2), 87 Mass. App. Ct. 1126 (2015) (OneBeacon No. 2).  The plaintiff, OneBeacon America Insurance Company (OneBeacon), along with third-party defendants Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies (collectively, London), American Home Assurance Company (American Home), and Century Indemnity Company (Century) argued in their respective appeals that a Superior Court judge erred in determining that Rhode Island law would apply both in deciding whether the insured, Narragansett Electric Company (NEC), was entitled to coverage for environmental contamination at several Rhode Island sites, and in the allocation of damages on the jury’s verdicts as to one of the sites. For background, we refer to OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 1), 87 Mass. App. Ct. 417 […]

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Posted by Massachusetts Legal Resources - August 31, 2016 at 5:21 pm

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McLaughlin, et al. v. American States Insurance Company (Lawyers Weekly No. 11-099-16)

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-729                                        Appeals Court   DANIEL McLAUGHLIN & another[1]  vs.  AMERICAN STATES INSURANCE COMPANY.     No. 15-P-729.   Middlesex.     May 19, 2016. – August 12, 2016.   Present:  Kafker, C.J., Cohen, & Green, JJ.     Consumer Protection Act, Insurance, Offer of settlement, Unfair act or practice, Attorney’s fees, Damages.  Insurance, Settlement of claim, Unfair act or practice.  Damages, Attorney’s fees.  Practice, Civil, Attorney’s fees.       Civil action commenced in the Superior Court Department on February 21, 2008.   The case was heard by Paul D. Wilson, J.     John F. Brosnan (James E. Harvey, Jr. with him) for the defendant. Matthew N. Kane for the plaintiffs.     GREEN, J.  After the well installed by Shaun Harrington began pumping salt water through the plaintiffs’ (McLaughlins) irrigation system, causing extensive damage to their landscaping, the McLaughlins sought recovery from Harrington and his insurer, the defendant, American States Insurance Company (ASIC).  Both denied liability, and the McLaughlins eventually filed an action against Harrington and two others.[2]  After the McLaughlins obtained a judgment in their favor against Harrington, they commenced this action against ASIC, claiming unfair insurance settlement practices.  A judge of the Superior Court entered judgment against ASIC, and awarded the McLaughlins damages based on the legal expenses they incurred in prosecuting their suit against Harrington, but declined to award multiple damages as permitted by the statute.  See G. L. c. 93A, § 9(3).  On the parties’ cross appeals, we conclude that the judge correctly determined that ASIC failed to conduct a reasonable investigation of the McLaughlins’ claim, and that it failed to make a reasonable offer of settlement after liability of its insured became reasonably clear.  We also discern no error of law or abuse of discretion by the judge in his refusal to award the McLaughlins multiple damages.  However, we conclude that the judge erred in his failure to award the McLaughlins damages based on the loss of use of the funds ASIC should have offered in settlement once Harrington’s liability became reasonably clear. Background.  We summarize the written findings of fact entered by the judge in his detailed and thorough memoranda of decision.[3] In 2003, Assurance was nearing completion of construction of a home for the McLaughlins in Osterville.  The home is on a peninsula, surrounded on three sides by salt water bodies connected to Nantucket […]

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Posted by Massachusetts Legal Resources - August 13, 2016 at 5:43 am

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Boyle, et al. v. Zurich American Insurance Company (Lawyers Weekly No. 10-155-15)

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-11791   JOSEPH P. BOYLE & another[1]  vs.  ZURICH AMERICAN INSURANCE COMPANY. Middlesex.     April 6, 2015. – September 14, 2015.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Insurance, Insurer’s obligation to defend, Notice, Settlement of claim.  Notice, Insurance claim.  Consumer Protection Act, Insurance, Unfair or deceptive act.  Practice, Civil, Damages.       Civil action commenced in the Superior Court Department on June 27, 2011.   The case was heard by Kenneth W. Salinger, J.   The Supreme Judicial Court granted an application for direct appellate review.     John T. Harding (Rachel M. Davison with him) for the defendant. Michael K. Gillis (David R. Bikofsky & Joseph I. Rogers with him) for the plaintiff. The following submitted briefs for amici curiae: Laura Foggan, of the District of Columbia, & Rosanna Sattler for Complex Insurance Claims Litigation Association. Anthony R. Zelle & Robert J. Maselek, Jr., for Massachusetts Defense Lawyers Association. Charlotte E. Glinka, Thomas R. Murphy, & J. Michael Conley for Massachusetts Academy of Trial Attorneys.     LENK, J.  Joseph P. Boyle was injured by an exploding tire in an automobile repair shop operated by C&N Corporation (C&N).  Joseph[2] and his wife, Janice M. Boyle, filed a complaint against C&N, asserting claims for bodily injury and loss of consortium.  C&N held an insurance policy issued by Zurich American Insurance Company (Zurich).  The policy required that C&N provide notice to Zurich of any suit brought against it.  C&N informed Zurich about Joseph’s injury.  It did not notify Zurich about the lawsuit, but the Boyles’ counsel eventually did.  Zurich did not defend against the suit.  C&N defaulted, and judgment by default was entered for the Boyles. Subsequently, the Boyles brought suit against Zurich, asserting both their individual claims and the claims of C&N, which, in the interim, C&N had assigned to the Boyles.  In return for a negotiated sum of money, the Boyles released the claims that they had asserted on their own behalf; these individual claims arose from Zurich’s asserted failure to settle the Boyles’ personal injury action when liability had become reasonably clear.  After a jury-waived trial on C&N’s claims against Zurich, a Superior Court judge determined that Zurich had committed a breach of its contractual duty to defend C&N.  The judge declined to award the Boyles (as C&N’s assignees) multiple damages, […]

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Posted by Massachusetts Legal Resources - September 14, 2015 at 2:42 pm

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OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-055-15)

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   13-P-1240                                       Appeals Court   ONEBEACON AMERICAINSURANCE COMPANY  vs.  NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants (No. 1).     No. 13-P-1240. Suffolk.     June 3, 2014. – June 3, 2015.   Present:  Kantrowitz, Hanlon, & Carhart, JJ. Conflict of Laws.  Limitations, Statute of.  Practice, Civil, Summary judgment, Statute of limitations, Dismissal, Judicial discretion, Attorney’s fees.  Insurance, Comprehensive liability insurance, Excess Liability Insurance, Construction of policy, Insurer’s obligation to defend, Defense of proceedings against insured, Pollution exclusion clause, Disclaimer of liability.  Indemnity. Contract, Insurance, Indemnity, Construction of contract, Parties, Performance and breach.  Real Property, Environmental damage.  Jurisdiction.     Civil action commenced in the Superior Court Department on July 25, 2005.   Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J.     Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue.     KANTROWITZ, J.  To put this rather dense environmental case in perspective, pollution in some of the affected areas started in the mid-1800s, and the first of several insurance policies at issue was written in 1945.  Today, we are asked to rule on the propriety of the allowance of numeroussummary judgment motions and the verdicts in three separate, lengthy jury trials.[2] I.  Background.  The plaintiff, OneBeacon America Insurance Company (OneBeacon), brought this declaratory judgment action in July, 2005, against its insured, Narragansett Electric Company (NEC), seeking a determination that OneBeacon had no duty to defend or indemnify NEC for damages associated with environmental contamination at several sites, formerly utilized by NEC’s predecessors for manufactured gas plant operations and waste disposal.  NEC counterclaimed for breach of contract and declaratory relief, adding other insurers that had issued primary and excess liability insurance policies […]

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Posted by Massachusetts Legal Resources - June 3, 2015 at 9:34 pm

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American International Insurance Company v. Robert Seuffer GmbH & Co. KG (Lawyers Weekly No. 10-081-14)

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‑11418   AMERICAN INTERNATIONAL INSURANCE COMPANY[1]  vs.  ROBERT SEUFFER GMBH & CO. KG. Middlesex.     January 7, 2014.  ‑  May 14, 2014. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.   Jurisdiction, Personal.  Practice, Civil, Affirmative defense, Waiver, Retroactivity of judicial holding.  Waiver.  Retroactivity of Judicial Holding.       Civil action commenced in the Superior Court Department on December 16, 2009.   A motion for summary judgment was heard by Douglas H. Wilkins, J.   A proceeding for interlocutory review was heard in the Appeals Court by Judd J. Carhart, J., and the case was reported by him to the Appeals Court.  The Supreme Judicial Court granted an application for direct appellate review.     Patricia E. Antezana, of Pennsylvania (Meghan M. Sullivan with her) for the defendant. John E. O’Brien, Jr., for the plaintiff.       LENK, J.  The question before us is whether a party may be deemed to have forfeited by its conduct the defense of lack of personal jurisdiction despite having timely asserted that defense in a responsive pleading pursuant to Mass. R. Civ. P. 12 (h) (1), as appearing in 450 Mass. 1403 (2008).  American International Insurance Company (AIIC) filed a complaint in the Superior Court against Robert Seuffer GmbH & Co. KG (Seuffer), alleging various theories of products liability.  In its answer, Seuffer raised the defense of a lack of personal jurisdiction, but did not move to dismiss the case on that basis.  See Mass. R. Civ. P. 12 (b) (2), 365 Mass. 754 (1974).  Instead, it pursued litigation on the merits for over eighteen months before filing a motion for summary judgment that was predicated largely on the jurisdictional defense.  A Superior Court judge denied the motion, ruling both that while Seuffer did not have the minimum contacts with Massachusetts necessary for personal jurisdiction, its conduct amounted to a waiver of the defense, and that genuine issues of material fact existed as to the merits which precluded the entry of summary judgment.  Seuffer appeals from that order. We conclude that, where a party raises the defense of lack of personal jurisdiction in a responsive pleading, the party’s subsequent conduct may in some circumstances result in a forfeiture of that defense.  The determination whether a party’s conduct will cause it to forfeit the right to contest the court’s jurisdiction is fact specific and must be made […]

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Posted by Massachusetts Legal Resources - May 14, 2014 at 11:44 pm

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