Posts tagged "case"

Dorrian v. LVNV Funding, LLC (and a consolidated case) (Lawyers Weekly No. 10-053-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12355   TARA DORRIAN[1]  vs.  LVNV FUNDING, LLC (and a consolidated case[2]).       Suffolk.     January 5, 2018. – April 9, 2018.   Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.     Debt.  Collection Agency.  Consumer Protection Act, Collection of debt.  Words, “Debt collector.”       Civil actions commenced in the Superior Court Department on August 22 and December 30, 2014.   After consolidation, the case was heard by Janet L. Sanders, J., on motions for class certification and for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     David Schultz (Andrew M. Schneiderman also present) for LVNV Funding, LLC. Kenneth D. Quat (Josef C. Culik also present) for Tara Dorrian & another. The following submitted briefs for amici curiae: Nadine Cohen & Philip Weinberg for Greater Boston Legal Services & others. Merrily S. Gerrish, Special Assistant Attorney General, & Heather L. Bennett for division of banks of the Office of Consumer Affairs and Business Regulation. Donald S. Maurice, Jr., & Brady J. Hermann for Receivables Management Association International, Inc. Daniel S. Blynn, Meredith L. Boylan, & Benjamin E. Horowitz, of the District of Columbia, David L. Feinberg, Joseph L. Demeo, & Lawrence S. Delaney for Cavalry SPV I, LLC.     KAFKER, J.  The primary issue presented is the definition of “debt collector” under G. L. c. 93, § 24, particularly its application to the statute’s licensing requirement.  After being sued for the failure to pay debts, the plaintiffs, Tara Dorrian and Virginia Newton, each individually filed suit against the defendant, LVNV Funding, LLC (LVNV), claiming unlicensed debt collection.  The plaintiffs also alleged violations of G. L. c. 93A, asserted claims of unjust enrichment,[3] and sought to proceed against LVNV in a class action suit.  A judge in the Superior Court consolidated the cases and certified them as a class action.  On cross motions for summary judgment, the judge concluded that LVNV violated G. L. c. 93, § 24A, because it operated as a debt collector without a license and granted summary judgment to the plaintiffs.  On the claim that LVNV violated G. L. c. 93A, the judge granted summary judgment to LVNV because it met the exemption from liability in G. L. c. 93A, § 3, as the division of banks of the Office of Consumer Affairs and Business Regulation (division) had permitted LVNV to operate without a license. […]

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Posted by Massachusetts Legal Resources - April 9, 2018 at 9:11 pm

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Butler v. Turco, et al. (and a companion case) (Lawyers Weekly No. 11-036-18)

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; SJCReportersjc.state.ma.us   17-P-814                                        Appeals Court 17-P-968   BRIAN BUTLER  vs.  THOMAS A. TURCO & others[1] (and a companion case[2]).     Nos. 17-P-814 & 17-P-968.   Worcester.     Suffolk.     February 5, 2018. – March 30, 2018.   Present:  Meade, Sullivan, & Wendlandt, JJ.     Imprisonment, Grievances.  Commissioner of Correction.  Constitutional Law, Imprisonment, Ex post facto law, Double jeopardy, Cruel and unusual punishment.  Due Process of Law, Prison regulation.  Practice, Civil, Dismissal.       Civil action commenced in the Superior Court Department on January 5, 2016.   A motion to dismiss was heard by David Ricciardone, J.   Civil action commenced in the Superior Court Department on November 13, 2015.   A motion to dismiss was heard by Paul D. Wilson, J.     Brian Butler, pro se. Owen McCants, pro se. Sheryl F. Grant for the defendants.     MEADE, J.  The plaintiffs, Brian Butler and Owen McCants, inmates supervised by the Massachusetts Department of Correction (department) and housed at MCI-Norfolk, each brought actions pro se challenging the consequences imposed on them pursuant to the department’s “Program Engagement Strategy” (PES).  The defendants filed motions to dismiss both complaints, which were allowed by two different judges.  The plaintiffs appeal, alleging what we construe to be[3] various constitutional infirmities in the PES program.  We consolidated the cases for hearing in this court, and now affirm. Background.  PES program.  In accordance with its mission to “promote public safety by managing offenders,” the department established “appropriate programming in preparation for [inmates’] successful reentry into the community,” such as the Sex Offender Treatment Program (SOTP).  However, the department is unable to mandate participation in such programs.  As a result, by 2012, a high percentage of offenders declined to attend recommended programs, spending their time in ways that did not address “the very issues that [would] decrease the likelihood that they recidivate.”[4]  Nevertheless, these inmates enjoyed the same privileges as “program compliant” offenders, such as single rooms, housing seniority, and institutional jobs.  In response, in December of 2013, the department announced it would implement PES, an incentivization structure for program participation.[5]  Under PES, privileges are awarded as incentives for inmates who voluntarily participate in programs and are withdrawn from inmates who refuse.  The department notified inmates about PES by amending its institutional procedures, hosting informational sessions for inmates, and creating informational flyers.  PES went into effect on January […]

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Posted by Massachusetts Legal Resources - March 30, 2018 at 2:18 pm

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King v. Shank, et al (and a companion case) (Lawyers Weekly No. 11-026-18)

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   17-P-809                                        Appeals Court 17-P-1096   CINDY KING  vs.  JOSEPH Z. SHANK & others[1] (and a companion case[2]).     Nos. 17-P-809 & 17-P-1096.   Suffolk.     November 1, 2017. – March 2, 2018.   Present:  Milkey, Blake, & Singh, JJ.     Municipal Corporations, Removal of public officer, Selectmen.  Elections, Recall.  Practice, Civil, Preliminary injunction.  Appeals Court, Appeal from order of single justice.  Injunction.       Civil action commenced in the Superior Court Department on March 24, 2017.   A motion for a preliminary injunction was heard by John T. Lu, J.   A proceeding for interlocutory review was heard in the Appeals Court by Green, J.   Civil action commenced in the Superior Court Department on June 9, 2017.   A motion for a preliminary injunction was heard by Gary V. Inge, J.     Ira H. Zaleznik (Benjamin W. O’Grady also present) for the defendants. John M. Dombrowski for Cindy King.     SINGH, J.  In February, 2017, the defendants, ten residents of the town of Townsend (town), petitioned to remove Cindy King and Gordon Clark from their positions as members of the town board of selectmen (board) by way of recall petitions.  The town board of registrars found the petitions to be in order, and the board scheduled a recall election for June, 2017.  King filed a complaint in Superior Court seeking a declaratory judgment that the recall petition was invalid and a preliminary injunction enjoining the recall election.  After a judge of the Superior Court denied the motion for a preliminary injunction, King filed a petition for interlocutory relief pursuant to G. L. c. 231, § 118, first par.  A single justice of this court issued the preliminary injunction enjoining the recall election as to King.  Clark then filed a parallel action in the Superior Court, citing the single justice’s order in the King litigation.  A different Superior Court judge allowed Clark’s motion and issued a preliminary injunction enjoining the recall election as to Clark. The defendants appeal the preliminary injunctions issued by the single justice in King’s case and the Superior Court judge in Clark’s case.  Both appeals are brought pursuant to G. L. c. 231, § 118, second par.  The town’s recall election remains stayed pending this appeal.  We reverse. Standard of review.  “We review the grant or denial of a preliminary injunction for abuse of discretion.”  Eaton v. Federal […]

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Posted by Massachusetts Legal Resources - March 2, 2018 at 5:16 pm

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Berger, et al. v. 2 Wyndcliff, LLC, et al. (and a companion case) (Lawyers Weekly No. 11-150-17)

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-336                                        Appeals Court   RALF BERGER & others[1]  vs.  2 WYNDCLIFF, LLC, & others[2] (and a companion case[3]).     No. 16-P-336.   Suffolk.     January 4, 2017. – December 5, 2017.   Present:  Maldonado, Sacks, & Shin, JJ.     Real Property, Restrictions, Covenant running with the land.       Civil actions commenced in the Land Court Department on November 1, 2013.   The cases were heard by Robert B. Foster, J., on motions for summary judgment.     Ellen Rappaport Tanowitz for Ralf Berger & others. Mark Bobrowski for 2 Wyndcliff, LLC, & others.     MALDONADO, J.  In this case, we consider whether certain restrictions on land were legally and effectively amended to extend the time period of their enforcement or whether they had expired.  The judge concluded the restrictions had expired.  For reasons different from those relied on by the judge, we affirm the judgment. Background.  On March 26, 1980, in the course of developing land she owned in Acton, Mabel Jenks McNiff executed an agreement of “protective covenants and easements” for the benefit of “future mortgagees, buyers, and owners of the land.”  The agreement was recorded, apparently on the same date.  McNiff thereafter sold off lots with the benefits and burdens of the agreement.  The parties are all owners of lots subject to the agreement. The agreement expressly provided that the covenants are to “run with the land” and bind the parties claiming under them “for a period of thirty (30) years from the date these covenants are recorded.”  The covenants limited construction on each lot to one single-family dwelling, with a two- or three-car garage, and “such other accessory structures as are commonly used as appurtenant to a single family dwelling.”  The agreement provided that the covenants “may be amended or revoked, in whole or in part, by an instrument signed by two thirds or more of the then owners of the lots covered hereby, said amendment or revocation to be effective upon recording thereof at the . . . Registry of Deeds.” More than two-thirds of the owners of the lots affected by the agreement amended the agreement in minor ways over the years, largely to alter the percentage of costs owners were required to contribute to maintain the roads.  On December 7, 2001, more than two thirds of the owners of the affected lots amended […]

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Posted by Massachusetts Legal Resources - December 5, 2017 at 7:25 pm

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Young v. Young (and a consolidated case) (Lawyers Weekly No. 10-152-17)

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-12240   DEREK L. YOUNG  vs.  JOY G. YOUNG (and a consolidated case[1]).       Norfolk.     March 6, 2017. – September 25, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[2]     Divorce and Separation, Alimony, Findings.       Complaints for divorce filed in the Norfolk Division of the Probate and Family Court Department on January 29 and February 5, 2013.   After consolidation, the case was heard by Jennifer M.R. Ulwick, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     David H. Lee (Jessica M. Dubin also present) for the husband. David E. Cherny (Erin M. Shapiro also present) for the wife. Sanford Durland, III, & Glenn M. Schley, amici curiae, submitted a brief. Jennifer C. Roman & Johnathan P. Diggin, for Women’s Bar Association, amicus curiae, submitted a brief.     GANTS, C.J.  The Probate and Family Court judge in this divorce action made two rulings that are the primary subjects of this appeal.  First, the judge found that, where the husband’s income from his employment was “on an upward trajectory,” the wife may only maintain a standard of living “consistent with the marital lifestyle (which was one where the parties[‘] needs expanded in accordance with the increasingly available income)” by an award of general term alimony that increases commensurate with the increase in the husband’s income.  Second, the judge found that, because of “the complex nature of [the husband’s] compensation over and above his base salary and bonus,” and because of “the constantly shifting nature of [the husband’s] compensation,” “it is reasonable and fair in the circumstances” to award alimony to the wife in the amount of thirty-three per cent of the husband’s gross income, rather than a fixed amount. We conclude that, where the supporting spouse (here, the husband) has the ability to pay, the need for support of the recipient spouse (here, the wife) under general term alimony is the amount required to enable her to maintain the standard of living she had at the time of the separation leading to the divorce, not the amount required to enable her to maintain the standard of living she would have had in the future if the couple had not divorced.  We also conclude that, although there might be circumstances where it […]

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Posted by Massachusetts Legal Resources - September 25, 2017 at 8:24 pm

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Doe, Sex Offender Registry Board No. 326573 v. Sex Offender Registry Board (and a consolidated case) (Lawyers Weekly No. 10-109-17)

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-12182   JOHN DOE, SEX OFFENDER REGISTRY BOARD NO. 326573  vs.  SEX OFFENDER REGISTRY BOARD (and a consolidated case[1]).       Suffolk.     February 7, 2017. – June 23, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Sex Offender.  Sex Offender Registration and Community Notification Act.  Internet.       Civil action commenced in the Superior Court Department on November 21, 2014.   A motion for preliminary injunction was heard by Gregg J. Pasquale, J., and the case was reported by him to the Appeals Court.   The Supreme Judicial Court granted an application for direct appellate review.   Civil action commenced in the Superior Court Department on June 22, 2015.   A motion for a preliminary injunction was heard by Heidi E. Brieger, J.   A proceeding for interlocutory review was allowed in the Appeals Court by Judd J. Carhart, J.  The Supreme Judicial Court granted an application for direct appellate review.     Andrew S. Crouch for John Doe, Sex Offender Registry Board No. 326573, & another. John P. Bossé for the defendant. Dana Goldblatt, for Committee for Public Counsel Services, amicus curiae, submitted a brief.     GANTS, C.J.  In Moe v. Sex Offender Registry Bd., 467 Mass. 598, 616 (2014), we permanently enjoined the Sex Offender Registry Board (SORB) “from publishing on the Internet the registry information of any individual who was finally classified as a level two sex offender on or before July 12, 2013, unless the individual is subsequently reclassified a level two or level three sex offender.”  SORB contends in these two cases that, when it unsuccessfully seeks after July 12, 2013, to reclassify a level two sex offender as a level three sex offender, the individual is reclassified a level two sex offender for purposes of Moe, and SORB may therefore publish the individual’s registry information on the Internet.  We disagree.  We conclude that, under Moe, a sex offender is “reclassified” only where a hearing officer allows SORB’s motion to increase his or her classification based on new information indicating an increased risk of sexual recidivism, not, as here, where the hearing officer denied SORB’s motion for reclassification and retained the earlier level two classification.  We therefore remand these cases to the Superior Court for the issuance of a permanent injunction barring publication of each plaintiff’s registry […]

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Posted by Massachusetts Legal Resources - June 23, 2017 at 3:15 pm

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Hyannis Anglers Club, Inc., et al. v. Harris Warren Commercial Kitchens, LLC (and a consolidated case) (Lawyers Weekly No. 11-063-17)

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-34                                         Appeals Court   HYANNIS ANGLERS CLUB, INC., & others[1]  vs.  HARRIS WARREN COMMERCIAL KITCHENS, LLC[2] (and a consolidated case[3]).     No. 16-P-34.   Barnstable.     October 14, 2016. – May 23, 2017.   Present:  Vuono, Massing, & Sacks, JJ.     Consumer Protection Act, Unfair or deceptive act, Attorney’s fees, Damages.  Fraud.  Deceit.  Damages, Consumer protection case, Deceit.       Civil actions commenced in the Superior Court Department on September 6, 2011, and April 29, 2013.   After consolidation, the case was tried before Christopher J. Muse, J., and a motion for attorney’s fees and costs was heard by him.     Stephen Soule & Clyde K. Hanyen, Jr., for Hyannis Anglers Club, Inc., & another. John J. Lang for Harris Warren Commercial Kitchens, LLC. VUONO, J.  Shortly after 5:00 A.M. on August 27, 2010, a fire erupted in the kitchen of a restaurant in Hyannis owned by Oceans Harbors, LLC (Harbors).  The blaze originated in a “Pitco Frialator” (fryer),[4] a cooking appliance, which, some twelve hours earlier, had purportedly been repaired by a technician employed by Harris Warren Commercial Kitchens, LLC (Harris), a firm engaged in repairing commercial kitchen equipment.  The restaurant operated on the first floor of a two-story building owned by Hyannis Anglers Club, Inc. (Anglers Club).  The Anglers Club, Harbors, and their insurer, Certain Underwriters at Lloyd’s London (Underwriters), brought this action against Harris seeking damages for the losses caused by the fire and for violations of G. L. c. 93A, §§ 2 and 11.[5] Following a trial in the Superior Court, a jury found that Harris was negligent, and the plaintiffs were awarded $ 686,496.44, exclusive of costs and statutory interest.[6]  Thereafter, the trial judge, who had reserved for himself the plaintiffs’ claim under c. 93A, entered findings, rulings, and an order in which he concluded that Harris had violated c. 93A when its employee, for whom Harris was vicariously liable, disabled a safety switch on the fryer, concealed this fact from Harbors, and falsified the associated work documentation in violation of the Attorney General’s rules and regulations regarding repairs and services, 940 Code Mass. Regs. § 3.08(1)(e) (1993).  The judge ruled that this deceptive conduct “caused the fire that damaged plaintiffs’ businesses and property.”  However, the judge declined to find, as the plaintiffs alleged, that Harris had wilfully or knowingly violated c. 93A, a ruling that foreclosed an award of […]

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Posted by Massachusetts Legal Resources - May 23, 2017 at 6:39 pm

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Benoit v. City of Boston (and a consolidated case) (Lawyers Weekly No. 10-080-17)

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-12204   BRIAN BENOIT  vs.  CITY OF BOSTON (and a consolidated case[1]).       Suffolk.     January 9, 2017. – May 16, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Workers’ Compensation Act, Compensation, Public employee, Decision of Industrial Accident Reviewing Board, Insurer.  Public Employment, Suspension, Worker’s compensation.  Municipal Corporations, Officers and employees.       Civil action commenced in the Superior Court Department on November 24, 2014.   A motion to dismiss was heard by Linda E. Giles, J.   Civil action commenced in the Superior Court Department on November 3, 2015.   A motion to dismiss was heard by Paul D. Wilson, J.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     John M. Becker for the plaintiff. David Susich (Thomas A. Pagliarulo also present) for the defendant.   LENK, J.  On September 5, 2011, after working almost twenty years as an emergency medical technician and paramedic for the defendant city’s emergency medical services (EMS), the plaintiff suffered an incapacitating ankle injury while transporting a patient.  Unable to work, he received workers’ compensation payments for almost one year pursuant to G. L. c. 152, the workers’ compensation act. Learning that the plaintiff had been indicted on October 31, 2012, on charges relating to misuse of controlled substances intended for EMS patients, the defendant suspended him indefinitely without pay pursuant to G. L. c. 268A, § 25 (suspension statute).  After the defendant, a self-insured municipal employer, discontinued the plaintiff’s workers’ compensation payments, he took the matter to the Department of Industrial Accidents (DIA); the defendant was ordered to restore those payments. When the defendant did not comply with the DIA order, the plaintiff sought enforcement in the Superior Court pursuant to G. L. c. 152, § 12 (1).  The defendant argued then, as now, that the provision of the suspension statute requiring that suspended public employees “shall not receive any compensation or salary during the period of suspension” prevails over the requirements of the worker’s compensation act, and that the DIA order requiring proscribed payments should accordingly not be enforced.  A Superior Court judge agreed and dismissed the enforcement actions.[2]  We conclude that workers’ compensation benefits are not “compensation” as defined in the suspension statute, because they are not payments made “in return for services rendered.”  G. L. c. 268A, § 1 (a).  The Superior Court actions brought by […]

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Posted by Massachusetts Legal Resources - May 16, 2017 at 2:55 pm

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Comeau’s Case (Lawyers Weekly No. 11-053-17)

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-134                                        Appeals Court   JEFFREY COMEAU’S CASE.     No. 16-P-134.   Suffolk.     January 13, 2017. – May 8, 2017.   Present:  Grainger, Wolohojian, & Neyman, JJ.     Workers’ Compensation Act, Interest.  Statute, Construction. Massachusetts Insurers Insolvency Fund.  Words, “Claim.”     Appeal from a decision of the Industrial Accident Reviewing Board.     Michael Brangwynne & John G. Neylon, Sr., for the employee. Paul M. Moretti for Massachusetts Insurance Insolvency Fund. Margo A. Sutton for Wasau Insurance Company.     WOLOHOJIAN, J.  At issue is the meaning of the word “claim” as it appears in G. L. c. 152, § 50, which requires that interest be assessed on unpaid workers’ compensation claims from “the date of the receipt of the notice of the claim by the department.”  The reviewing board (board) of the Department of Industrial Accidents (department) concluded that, in the circumstances of this case, interest was to run from the date the department received notice of the claim ultimately resulting in the order awarding benefits.  The board rejected the employee’s argument that interest should run instead from the filing date of an earlier, similar claim that had been terminated by agreement, pursuant to G. L. c. 152, § 19, prior to an adjudicated conclusion or an award of benefits.  We affirm. Background.[1]  The case has an extensive history, most of which is not pertinent to this appeal and therefore need not be set out here.  Of importance for our purposes is the following.  The employee was injured in 1993 while working.  Liberty Mutual Insurance Company (Liberty), as successor to Wausau Insurance Company (the insurer on the date of injury), accepted liability and paid the employee benefits for total incapacity pursuant to G. L. c. 152, § 34, until he returned to work.  Liberty then paid the employee partial incapacity benefits pursuant to G. L. c. 152, § 35, benefits until March 10, 1995.  The employee continued to work until October 2, 1995, when he suffered a second injury.  The insurer for this second injury is now the Massachusetts Insurance Insolvency Fund (MIIF), which assumed the risk when Eastern Casualty Insurance Company, the insurer at the time of the second injury, became insolvent.[2]  See G. L. c. 176D, § 5.  On December 26, 1995, on the advice of his treating orthopedic physician, the employee stopped work and has not returned to work since. The employee filed a claim for the second injury on […]

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Posted by Massachusetts Legal Resources - May 9, 2017 at 7:36 am

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Verizon New England Inc. v. Board of Assessors of Boston (and a consolidated case) (Lawyers Weekly No. 10-173-16)

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   SJC-12034   VERIZON NEW ENGLAND INC.  vs.  BOARD OF ASSESSORS OF BOSTON (and a consolidated case[1]).       Suffolk.     April 7, 2016. – November 2, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, & Hines, JJ.[2]     Telephone Company.  Taxation, Assessors, Personal property tax: value.  Constitutional Law, Taxation.       Appeal from a decision of the Appellate Tax Board.   The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.     William Hazel for the taxpayers. Anthony M. Ambriano for board of assessors of Boston. Maura Healey, Attorney General, & Daniel J. Hammond, Assistant Attorney General, for Attorney General & another, amici curiae, submitted a brief. Kenneth W. Gurge, for Massachusetts Municipal Association & others, amici curiae, submitted a brief.     BOTSFORD, J.  Two telephone companies appeal from a decision of the Appellate Tax Board (board) upholding the property tax assessments by the board of assessors of Boston (assessors) for fiscal year (FY) 2012 on certain personal property each company owns.  At issue is whether the tax assessments, which were based on a “split” tax rate structure determined in accordance with G. L. c. 40, § 56 (§ 56), constituted a disproportionate tax that, as such, violated the Constitution of the Commonwealth.  More particularly, the question is whether the split tax rate structure authorized by § 56 — a rate structure that provides for taxable personal property to be taxed at a rate identical to the rate applied to commercial and industrial real property but higher than the rate that would apply if all taxable property, real and personal, were taxed at a single, uniform rate — violates the proportionality requirement of Part II, c. 1, § 1, art. 4, of the Constitution of the Commonwealth, as amended by art. 112 of the Amendments to the Constitution, as well as art. 10 of the Massachusetts Declaration of Rights.  We conclude that the split tax structure authorized by § 56 and related statutes does not violate the Massachusetts Constitution.  We affirm the board’s decision.[3] Background.[4]  a.  Procedural background.  Verizon New England Inc. (Verizon) and RCN BecoCom LLC (RCN) (collectively, taxpayers) are subject to property tax in the city of Boston on personal property consisting primarily of machinery, poles, underground conduits, wires, and pipes (§ 39 property) that they own and use for business purposes.  Pursuant […]

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Posted by Massachusetts Legal Resources - November 2, 2016 at 3:11 pm

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