Posts tagged "Company"

Casseus, et al. v. Eastern Bus Company, Inc., et al. (Lawyers Weekly No. 10-024-18)

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12315

IBNER CASSEUS[1] & another[2]  vs.  EASTERN BUS COMPANY, INC., & another.[3]

Middlesex.     October 2, 2017. – February 8, 2018.

Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Labor, Overtime compensation.  Bus.  Carrier, Charter service, License.  School and School Committee, Transportation of students.

Civil action commenced in the Superior Court Department on May 30, 2014.

Motions for summary judgment were heard by Dennis J. Curran, J. read more

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Posted by Stephen Sandberg - February 8, 2018 at 7:20 pm

Categories: News   Tags: , , , , , ,

Acushnet Company v. Beam, Inc. (Lawyers Weekly No. 11-012-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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

16-P-1611                                       Appeals Court

ACUSHNET COMPANY  vs.  BEAM, INC.[1]

No. 16-P-1611.

Suffolk.     September 14, 2017. – February 2, 2018.

Present:  Wolohojian, Agnes, & Wendlandt, JJ.

Corporation, Sale of assets, Subsidiary.  Contract, Construction of contract.  Sale, Contract of sale, Of corporate property.  Taxation, Accounts receivable.  Practice, Civil, Summary judgment, Findings by judge.

Civil action commenced in the Superior Court Department on March 27, 2012. read more

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Posted by Stephen Sandberg - February 2, 2018 at 4:39 pm

Categories: News   Tags: , , , , , ,

Bennett v. R.J. Reynolds Tobacco Company (Lawyers Weekly No. 09-007-18)

COMMONWEALTH OF MASSACHUSETTS

 

SUFFOLK, ss                                                                                             SUPERIOR COURT

CIVIL ACTION

  1. 2017-0603-BLS1

 

 

TINA BENNETT, INDIVIDUALLY and as PERSONAL REPRESENTATIVE of the ESTATE OF DAVID BENNETT

 

vs.

 

R.J. REYNOLDS TOBACCO COMPANY, individually and as successor by merger to LORILLARD TOBACCO CO., PHILIP MORRIS USA, INC., and GLOBAL PARTNERS, L.P.

 

 

MEMORANDUM OF DECISION AND ORDER ON

DEFENDANTS’ MOTION TO DISMISS

In this action the plaintiff, Tina Bennett, alleges claims for wrongful death and civil conspiracy against the defendants[1].  She brings these claims as the Personal Representative of the Estate of David Bennett (David and the Estate).[2]  The defendants have moved to dismiss the complaint on the grounds that Ms. Bennett was appointed as the personal representative of the Estate under G.L. c. 190B, § 3-108 (4) of the Uniform Probate Code (UPC or the Code), and an appointment under that provision of the Code does not carry with it the authority to bring either a wrongful death action under G.L. c. 229, § 2 or a tort claim that belonged to the plaintiff’s decedent at the time of his death and had become an asset of the estate. [3] read more

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Posted by Stephen Sandberg - February 2, 2018 at 9:29 am

Categories: News   Tags: , , , , , , ,

MHM Correctional Services, Inc., et al. v. Darwin Select Insurance Company, et al. (Lawyers Weekly No. 09-008-18)

COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss SUPERIOR COURT
CIVIL ACTION
NO. 2017-01825-BLS2
MHM CORRECTIONAL SERVICES, INC.,
CENTURION OF MINNESOTA, LLC, CENTURION OF MISSISSIPPI, LLC &
MASSACHUSETTS PARTNERSHIP FOR CORRECTIONAL HEALTHCARE, LLC,
Plaintiffs
vs.
DARWIN SELECT INSURANCE COMPANY N/K/A
ALLIED WORLD SURPLUS LINES INSURANCE COMPANY &
ALLIED WORLD ASSURANCE COMPANY,
Defendants
MEMORANDUM OF DECISION AND ORDER
ON DEFENDANTS’ MOTION TO DISMISS
This case concerns six separate claims for coverage brought by insureds against their insurers. The plaintiffs are MHM Correctional Services, Inc. (MHM), Centurion of Mississippi, LLC (Centurion-MS), Centurion of Minnesota, LLC (Centurion-MN), and Massachusetts Partnership for Correctional Healthcare, LLC (MPCH), each of which provides healthcare services to inmates housed in state prison facilities. Plaintiffs have been sued or are the subjects of indemnification demands in connection with six class action lawsuits alleging that the health care rendered to inmates in those facilities is so inadequate as to violate their constitutional rights. In the instant case, plaintiffs seek declaratory and injunctive relief as to the coverage obligations of the defendants Darwin Select Insurance Company n/k/a Allied World Surplus Lines Insurance Company (Darwin) and Allied World Assurance Company (Allied World) in relation to these six lawsuits. Defendants now move to dismiss, relying on the language of the underlying policies, all of which are before the Court. In the event that this Court does not
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dismiss certain counts, the defendants ask this Court to stay the proceedings. For the reasons that follow, the Motion to Dismiss is Denied.
BACKGROUND
Plaintiffs have contracts with various Departments of Corrections (DOCs) throughout the United States to provide medical and mental healthcare services to their prisoner populations. MHM provides mental healthcare services for the Alabama DOC (ADOC). Centurion-MS provides medical and mental healthcare services for the Mississippi DOC (MSDOC). Centurion-MN provides medical and mental healthcare services for the Minnesota DOC (MNDOC). MPCH provides medical and mental healthcare services for the Massachusetts DOC (MADOC).
These DOCs are currently defendants in six federal class action lawsuits filed between 2010 and 2015 on behalf of incarcerated individuals. Those lawsuits are: Dunn v. Thomas (Dunn), No. 2:14-cv-00601-MHT-TFM; DePriest v. Walnut Grove Correctional Authority (DePriest), No. 3:10-cv-663 DPJ-FKB; Dockery v. Epps (Dockery), No. 3:13-cv-326-TSL-JMR; Ligons v. Minnesota Department of Corrections (Ligons), No. 15-cv-2210, PJT/BT; Paszko v. O’Brien (Paszko), No. 1:15-cv-12298-NMG; and Briggs v. Massachusetts Department of Corrections (Briggs), No. 1:15-cv-40162-GAO. Each of these lawsuits seeks injunctive and declaratory relief as well as attorney’s fees.
Both the MNDOC and Centurion-MN are defendants in Ligons. Both the MADOC and MPCH are defendants in Paszko and Briggs. The ADOC is a defendant in Dunn and the MSDOC is a defendant in DePriest and Dockery. MHM and Centurion-MS are not named defendants in Dunn, DePriest, or Dockery. However, pursuant to indemnification provisions in their service contracts with these DOCs, MHM and Centurion-MS have agreed to defend and indemnify them for losses arising from the lawsuits.
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The language of these indemnification provisions is relevant to the issues before the Court. The indemnification provision in the ADOC’s agreement with MHM (the ADOC Contract) provides that:
MHM will indemnify and hold harmless . . . the ADOC . . . from and against all claims, losses, or costs arising out of MHM’s negligence, gross negligence, wantonness, deliberate indifference, or criminal negligence, or from willful disregard of proper or lawful written instructions from the Commissioner of the ADOC and Associate Commissioner of Health Services. . . .
MHM will indemnify and hold harmless . . . the ADOC . . . from and against any and all loss or damage, including court costs and attorney fees, for liability claimed against or imposed upon the ADOC because of bodily injury, death, or property damage, real or personal, including the loss or the use thereof, arising out of or as a consequence of the breach of any duty or obligation of MHM included in this Agreement, negligent acts, errors or omissions, including engineering and/or professional error, fault or mistake, or negligence of MHM . . . . MHM’s obligation, under this Section, will not extend to any liability caused by the negligence of ADOC. . . .
ADOC Contract at § 10.3. In other words, the indemnification obligation extends only to those losses that arise out of MHM’s negligence or breach of its duties. The indemnification provision in the MSDOC’s agreement with Centurion-MS (MSDOC Contract) provides that:
To the fullest extent allowed by law, Centurion shall indemnify, defend, save and hold harmless, protect, and exonerate the [MSDOC] . . . from and against all claims, demands, liabilities, suits, actions, damages, losses, and costs of every kind and nature whatsoever, including without limitation, judgments, court costs, investigative fees and expenses, and attorney’s fees, arising out of or caused by Centurion . . . in the performance of or failure to perform this Agreement. . . . Centurion’s obligations, duties, and responsibilities under this section include, but are not limited to, the duty to defend and indemnify [MSDOC] . . . in [DePriest and Dockery].
MSDOC Contract at § 10.1. Centurion-MS entered the MSDOC Contract on July 1, 2015, several years after DePriest and Dockery were initiated, and the MSDOC tendered DePriest and Dockery pursuant to Section 10.1 on the same day. However, Centurion-MS specifically
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disclaimed any obligations to defend and indemnify the MSDOC for any actions that occurred prior to July 1, 2015, when there was no contractual relationship between the two. Section 10.1 also arguably limits liability to Centurion-MS’s failure to perform its own obligations and duties. Thus, like the indemnification provision in the ADOC Contract, the indemnification provision in the MSDOC Contract would appear to be limited to those losses arising out of acts and omissions of Centurion-MS and not for those acts or omissions of a third party.
From 2013 through 2016, plaintiffs were insured by primary Locum Tenens and Contract Staffing Professional Liability Insurance Policies issued by Evanston Insurance Company (Evanston). Evanston has declined to provide coverage in connection with Dunn, DePriest, Dockery, and Briggs. It has provided a partial defense in connection with Ligons under a reservation of rights. Plaintiffs have filed a separate coverage action in Illinois state court against Evanston regarding coverage for the class action lawsuits. The Illinois action remains pending.
In addition to the coverage provided by Evanston, plaintiffs were also insured for the years 2013 through 2016 by several Healthcare Excess and Umbrella Liability Insurance Policies issued by Darwin and Allied World to MHM Health Professionals, Inc. and MHM Services, Inc., two entities affiliated with plaintiffs but not themselves parties to this action. For each policy year, MHM Health Professionals and MHM Services were issued separate and identical policies. Plaintiff MHM is an insured under 2013 and 2014 Darwin Policies and a 2015 Allied World Policy issued to MHM Services. Plaintiffs MPCH and Centurion-MN are insureds under a 2014 Darwin Policy and a 2015 Allied World Policy issued to MHM Health Professionals. Plaintiff Centurion-MS is insured under the 2015 Allied World MHM Health Professionals Policy. After
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Evanston largely denied coverage in connection with the six class action lawsuits, plaintiffs sought coverage under these Policies. Defendants, however, declined to provide it.
Each of the Policies at issue in this case contains two “Insuring Agreements,” described as “Insuring Agreement I.A” and “Insuring Agreement I.B.” Insurance Agreement I.A provides Umbrella “Claims Made” Professional Liability coverage; Insuring Agreement I.B provides Umbrella “Occurrence Based” General Liability coverage. With regard to Insuring Agreement I.A, the Policies provide, in relevant part, that:
The Insurer will pay on behalf of the Insured . . . Loss and Defense Expenses. . . which the Insured becomes legally obligated to pay as a result of a Claim alleging a Medical Professional Incident, provided always that: 1. such a Claim is first made against the Insured during the Policy Period . . . ; and 2. notice of such Claim is given to the Insurer in accordance with . . . this Policy….
(Boldface in original). With regard to Insurance Agreement I.B, the Policies provide, in relevant part, that:
The Insurer will pay on behalf of the Insured . . . Loss and Defense Expenses. . . which the Insured becomes legally obligated to pay as a result of a Claim alleging Bodily Injury, Property Damage, or Personal or Advertising Injury caused by an Occurrence, provided always that: 1. such Bodily Injury, Property Damage, or Personal or Advertising Injury occurs during the Policy Period . . . ; and 2. notice of such Claim is given to the Insurer in accordance with . . . this Policy….
(Boldface in original). The relevant terms and conditions of the Policies are in most respects the same. To the extent there are differences, those differences will be discussed below.
DISCUSSION
The claims for which plaintiffs seek coverage fall into two categories. First, MHM and Centurion-MS seek coverage from defendants for the contractual indemnification demands made by the ADOC and MSDOC in connection with Dunn, DePriest, and Dockery. As noted above, neither MHM nor Centurion-MS are named as defendants in those actions. Second, Centurion-MN and MPCH seek a declaration that the defendants have both a duty to defend and indemnify
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them in connection with Ligons, Paszko and Briggs. Centurion-MN and MPCH are named defendants in the underlying complaints in those three cases. As to both categories, plaintiffs maintain they are entitled to coverage under both Insuring Agreement I.A and Insuring Agreement I.B. This Court concludes the Complaint survives the defendants’ Motion to Dismiss under Insuring Agreement I.A. It concludes that there is no coverage for any of the class actions under Insuring Agreement I.B.
A. Insuring Agreement I.A
1. ADOC and MSDOC Indemnification Demands for Dunn, DePriest, and Dockery
MHM seeks coverage under Insuring Agreement I.A of the 2013 Darwin MHM Services Policy (the 2013 Darwin Policy) for its contractual obligation to indemnify ADOC in the Dunn lawsuit. Centurion-MS seeks coverage under Insuring Agreement I.A of the 2015 Allied World MHM Health Professionals Policy (the Allied World Policy) for its contractual indemnification obligations to MSDOC, named as a defendant in DePriest and Dockery. The Court concludes that, based on the documents before me now, MHM and Centurion-MS would appear to be entitled to coverage under Insuring Agreement I.A of these Policies, provided that MHM and Centurion-MS indemnify the DOCs (and seek coverage for that indemnification) only as to losses that arose from their own conduct.1
In support of their motion to dismiss, defendants argue that they are entitled to deny coverage as to the underlying class action complaints because neither MHM nor Centurion-MS has been named as a defendant in those actions and therefore no “Claim” has been made against an insured so as to trigger coverage for those lawsuits. That does not dispose of the issue,
1 It is important to note that these issues are raised by way of a motion to dismiss. The underlying lawsuits remain pending and the indemnification obligations have not been finally decided. This Court therefore makes no final determination in favor of plaintiffs as to coverage. Rather, the only question before the Court at this point is whether the plaintiffs have stated a claim upon which relief may be granted.
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however. The question is rather whether the indemnification demands made against MHM and Centurion-MS as a result of those lawsuits constitute a “Claim” within the meaning of the policies and whether such a claim is covered.
The indemnification demands seek to recoup from MHM and Centurion-MS costs and expenses the DOCs incur as a result of any finding of liability against them in the class action lawsuits and that can be shifted to MHM and Centurion under their service contracts. As to whether that is covered, the applicable policies require the insurer to pay, on behalf of the insured, any “Losses or Defense Expenses” which the insured becomes legally obligated to pay “as a result of a Claim alleging a Medical Professional Incident….” A “Medical Professional Incident” means, among other things, “an actual or alleged act, error, or omission in the Insured’s rendering of or failure to render Medical Professional Services.” (Boldface in original). Dunn, DePriest and Dockery all allege a failure to render adequate medical care to inmates – medical care which MHM and Centurion-MS agreed to provide pursuant to their contracts with the DOCs. In demanding indemnification, the DOCs are seeking to shift liability to MHM and Centurion-MS for costs and expenses incurred by any determination in those lawsuits that inmate medical care was inadequate. As the Court construes the contractual indemnification provisions that form the basis for that demand, the DOCs will be able to shift those costs (and Centurion-MS and MHM are seeking coverage for) only those losses that arose from MHM’s or Centurion-MS’s acts or omissions in rendering inadequate medical services. In other words, it will be for losses incurred as a result of an “act, error or omission in the Insured’s rendering of or failure to render Medical Professional Services.” Accordingly, the indemnification demand would be a “Claim” that triggers coverage.
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Defendants argue that the indemnification provisions are broader than that, however, and allow the DOCs to shift costs for acts or omissions in which the plaintiff insureds played no part. This Court disagrees. As to the ADOC Contract, MHM’s indemnity obligation extends only to losses incurred by the ADOC “arising out of or as a consequence of the breach of any duty or obligation of MHM … including negligent acts, errors or omissions” on MHM’s part. Similarly, the MSDOC Contract permits the MSDOC to seek reimbursement from Centurion-MS for any costs or expenses “arising out of or caused by Centurion . . . in the performance of or failure to perform this Agreement.” Although that contract was entered into after the DePriest and Dockery lawsuits began, Centurion-MS has specifically disclaimed any obligation to defend and indemnify the MSDOC for any actions that occurred prior to July 1, 2015, when there was no contractual relationship between Centurion-MS and MSDOC. In any event, the question before the Court at this juncture in the case is whether the plaintiffs have stated a claim for coverage. If it turns out that the DOCs seek to be indemnified for costs that arise out of acts and omissions by other entities (and a court determines that the DOC is entitled to do that), then the defendants might well be correct to deny coverage. To assume that would occur, however, would be premature, particularly where the contractual indemnification provisions at issue could be more narrowly construed, and (as this Court understands it) plaintiffs are not seeking coverage for costs and expenses which are attributable to the acts or omissions of others.
Defendants next contend that coverage for the indemnification demands are excluded under the Policies’ contractual liability exclusion. The contractual liability exclusion provides that:
This Policy shall not apply to any Claim based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving . . . any Bodily Injury, Property Damage, Personal or Advertising Injury, or a Medical Professional Incident for which the Insured is legally obligated to pay damages
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by reason of the assumption of liability of another in any Express Contract or Agreement.
(Boldface in original). There are two exceptions to the exclusion. First, it does not apply to liability for damages “that the Insured would have in the absence of the contract or agreement.” (Boldface in original) (Exception A). Second, the contractual liability exclusion does not apply to liabilities “assumed in a contract or agreement that is an Insured Contract, provided the Bodily Injury or Property Damage occurs subsequent to the execution of such contract or agreement.” (Boldface in original) (Exception B). This Court concludes that the indemnification demands arguably fall within Exception A, so that the contract exclusion provision would not apply.
The allegations in the underlying complaints suggest that, as the entities that carried out the DOCs’ healthcare-related policies, MHM and Centurion-MS played a role in the alleged failures to deliver adequate care. Moreover (as already noted above) the contractual indemnification provisions can be construed to permit a shifting of costs and expenses only as to MHM’s and Centurion-MS’s own failure to provide the medical care that they promised to the DOCs pursuant to their contracts. Thus, the demands concern conduct for which MHM and Centurion-MS could be liable even absent the indemnification provisions, and therefore fall within Exception A. In short, these claims for coverage are not so clearly outside the scope of the relevant policies as to be subject to dismissal at this stage of the case.
2. Ligons, Paszko, and Briggs
In connection with these three cases, plaintiffs seek coverage not based on an indemnification demand but because they are themselves named as defendants in the underlying complaints. Specifically, Centurion-MN seeks coverage for Ligons under the 2014 Darwin MHM Health Professionals Policy (the 2014 Darwin Policy). MPCH seeks coverage for Paszko
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under that same policy and as to Briggs, under the 2015 Allied World MHM Health Professionals Policy (the Allied World Policy). Defendants make three arguments as to why plaintiffs’ coverage claims have no merit and must be dismissed. First, they contend that MPCH and Centurion-MN did not provide them with timely notice in connection with either the Paszko or Ligons litigation. Under the 2014 Darwin Policy, “prompt” notice is required. Second, the defendants argue that MPCH cannot make a claim for coverage under the Allied World Policy as to the Briggs lawsuit because the claim was not “first made” under that policy. Third, the defendants assert that they are not required to provide coverage to MPCH or Centurion-MN under either the 2014 Darwin Policy or under the Allied World Policy because the underlying complaints in Paszko and Briggs request only declaratory and injunctive relief, which is not a covered “Loss.” This Court will discuss each of these arguments in turn.
As to the notice issue, this Court must decide as an initial matter whether to apply Massachusetts or Virginia law, since there is a material difference between those two states on this issue. Under Massachusetts law, an insurer can prevail on a defense of late notice only if it proves both that the late notice was in breach of the policy’s notice provision and that the breach resulted in actual prejudice. Johnson Controls, Inc. v. Bowes, 381 Mass. 278, 282 (1980); Darcy v. Hartford Ins. Co., 407 Mass. 481, 485 (1990). Under Virginia law, however prejudice to the insurer is only a factor that a court should consider; it is not in and of itself determinative. State Farm Fire and Cas. Co. v. Wallace, 997 F. Supp. 2d 439, 446-447 (W.D. Va. 2014).2 That is, an insurer may deny coverage even in the absence of actual prejudice.
2 Plaintiffs suggest that there is potentially no conflict between Massachusetts and Virginia law because Virginia law has yet to determine whether this rule applies to excess carriers. Plaintiffs emphasize that the Virginia cases on this issue all involve primary insurance policies. However, this Court fails to see why defendants should be treated any differently than the primary insurer, especially since plaintiffs are seeking coverage under the applicable policies under a theory that they should “drop down” to provide a defense of these actions. In other words, plaintiffs are asking that the defendants effectively assume the primary insurer’s obligations.
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In determining which law is applicable, the Court looks to the conflict-of-law rules of the forum state – here, Massachusetts. OneBeacon America Ins. Co. v. Narragansett Elec. Co. (OneBeacon), 90 Mass. App. Ct. 123, 125 (2016). Massachusetts applies a functional choice-of-law analysis, guided by the Restatement (Second) of Conflict of Laws (Restatement). Id. In insurance cases, the first step is to ascertain whether Section 193 of the Restatement will resolve the matter. Clarendon Nat’l Ins. Co. v. Arbella Mut. Ins. Co. (Clarendon), 60 Mass. App. Ct. 492, 496 (2004). Under Section 193, “the rights created by a contract of casualty insurance are to be determined by the local law of the State that the parties to the insurance contract understood would be the principal location of the insured risk during the term of the policy, unless some other State has a more significant relationship under the principles of § 6.” Id. The insured risk will typically be located in the state where the policyholder is domiciled. OneBeacon, 90 Mass. App. Ct. at 125. Where the principal location of the risk cannot be ascertained, the next step is to apply Section 188 of the Restatement. Clarendon, 60 Mass. App. Ct. at 496. Under Section 188, “the rights and duties of the parties, with respect to a contract issue, [are to] be determined by the local law of the State which, as to that issue, has the most significant relationship to the transaction and to the parties under the principles of § 6.” Id. at 497.3 In applying Sections 193 and 188, the Court looks to the circumstances surrounding the procurement and issuance of the policy, not the circumstances that prompted the claim for which coverage is sought. See OneBeacon, 90 Mass. App. Ct. at 126-127.
3 Section 6(2) of the Restatement provides seven factors relevant to the choice of applicable law: “(a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested [S]tates and the relative interests of those [S]tates in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.”
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In the present case, the Court cannot locate the principal location of the insured risk in one state because the relevant policies cover multiple insureds that provide services to prisons in multiple states. See Restatement §193, Comment b, para. Third (noting that the location of the insured risk cannot be determined “where the policy covers a group of risks that are scattered throughout two or more states.”). Accordingly, this Court looks to the law of that state which has the most significant relationship to the notice issue, which is Virginia. The policyholders (MHM Services and MHM Health Professionals) have their principal place of business in that state and the policies were delivered there. See W.R. Grace Co. v. Hartford Accident & Indem. Co., 407 Mass. 572, 585-586 (1990) (holding that New York law governed coverage of nationwide asbestos claims, where most of the policies were negotiated in New York and the insured, which had multistate operations, was incorporated and domiciled in New York); General Elec. Co. v. Lines, 2008 Mass. Super. LEXIS 284 (Mass. Super. July 10, 2008) (Gants, J.) at *6-*13 (applying law of insured’s domicile to late notice issue arising out of more than a hundred different environmental claims nationwide in scope). The Court is also mindful of the fact that in the Evanston coverage litigation, plaintiffs have taken the position that, if a conflict of law arose, Virginia law would control. See MHM Insureds’ Memorandum of Law in Support of Their Re-Filed Motion for Summary Judgment on the Duty to Defend and Indemnify at 9, n.4.
Under Virginia law, untimely notice constitutes a breach of the policy only if the failure to notify is substantial and material. Wallace, 997 F. Supp. 2d at 446. “Three factors bear upon the materiality of a breach of the notice provision of a policy: (1) the reasonableness of the delayed notice, (2) the amount of prejudice suffered by the insurer as a result of the delay, and (3) the length of time that elapsed before notice was given.” Id. at 447 (internal quotes omitted). In evaluating the reasonableness of the delayed notice, the Court applies “an objective standard,
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requiring that an insurer be notified whenever it should reasonably appear to the insured that the policy may be implicated.” Penn-America Ins. Co. v. Mapp, 461 F. Supp. 2d 442, 453 (E.D. Va. 2006). In most cases, the reasonableness of the delay is an issue to be resolved by a fact finder. Wallace, 997 F. Supp. 2d at 447.
Defendants contend that the failure to notify was substantial and material because Paszko was reported to the defendants approximately ten months after the action was filed and Ligons was reported almost twelve months after the action was filed. However, defendants do not assert that they suffered any prejudice as a result of the delay and plaintiffs may be able to show that any delay was reasonable. In particular, plaintiffs maintain that the delay can be explained because they reasonably believed that Evanston would provide a complete defense for these actions and that Evanston would notify the defendants of the lawsuits. This argument could have merit. See Munchenbach v. Nationwide Mut. Fire Ins. Co., 2007 WL 6002108 at *5 (Va. Cir. Feb. 13, 2007) (“If there is a reasonable explanation for the insured’s delay in notifying the insurance company, the insured is not barred from a recovery because of the delay.”); Mount Vernon Realty, Inc. v. St. Paul Ins. Co., 1990 WL 10039273 at *1 (Va. Cir. Mar. 26, 1990) (“Prompt notice under an insurance contract means notice within a reasonable time, and compliance is measured by reference to the facts and circumstances.”). At the very least, this fact-specific determination requires the development of an evidentiary record and cannot be decided on a motion to dismiss.
The defendants’ second argument relates only to Briggs and raises the question of when the claim was “first made.” The Briggs lawsuit was filed on November 24, 2015 and MPCH provided notice of that action to the defendants on April 20, 2016. Both dates are within the period covered by the Allied World policy, which runs from July 1, 2015 to July 1, 2016.
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Defendants, however, argue that the claim was first made on March 20, 2015 – before the Allied World Policy took effect. On that date, the MPCH and the MADOC received a letter from Prisoners’ Legal Services (PLS) accusing them of mistreating or inadequately treating deaf and hard of hearing prisoners in violation of their constitutional and statutory rights. This Court concludes that the PLS letter cannot constitute a “Claim” within the meaning of the Policy.
A Claim is defined under the Allied World Policy as “a written notice received by an Insured that a person or entity intends to hold an Insured responsible for a Medical Professional Incident.” (Boldface in original). The PLS letter came from a prisoners’ advocacy group, which on its own has no standing to bring a lawsuit against MPCH. Without standing, there was no legal mechanism for PLS to hold MPCH “responsible for a Medical Professional Incident.” Moreover, the letter did not state that any prisoners intended to file a lawsuit. Rather, it urged the MADOC and MPCH to take remedial measures and to contact PLS to “discuss a resolution to this matter.” In short, that MPCH received this letter and did not notify defendants of it does not bar its claim for coverage under Allied World Policy.4
Turning to the defendants’ final argument that the complaints in Paszko and Briggs do not involve a “Loss” within the meaning of the Policies, this Court looks to the policy language. Neither one of these lawsuits seeks compensatory damages. They do, however, seek injunctive and equitable relief that will likely require the expenditure of funds if a court determines that the medical care provided to inmates was indeed deficient. They also seek an award of attorney’s fees. Both the 2014 Darwin Policy and the 2015 Allied World Policy define Loss as “any monetary amount paid on account of an award, judgment or settlement which the Insured is
4 Plaintiffs argue in the alternative that if the letter were a “Claim,” then MPCH can seek coverage under the 2014 Darwin Policy. Because this Court agrees with the plaintiffs that the PLS letter is not a Claim, this alternative avenue of coverage is not available to MPCH in connection with the Briggs litigation.
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legally obligated to pay as a result of a Claim.” (Boldface in original). Each of the Policies expressly states that certain things are excluded from this definition and therefore do not constitute a “Loss.” The Policies differ, however, as to what is excluded.
Under the 2014 Darwin Policy, “non-monetary relief or redress in any form other than monetary compensation or damages, including, but not limited to, injunctive, declaratory and administrative relief” does not constitute a “Loss” and therefore is not covered. In other words, non-monetary relief is not a covered Loss. Although that is stated to include injunctive relief, this Policy language does not expressly exclude monetary costs associated with such relief. Keeping in mind that exclusions from coverage must be strictly construed, this Court concludes that this exclusion would not prevent coverage for expenditures that plaintiffs would be required to make to comply with any equitable relief that is ordered. Both Ligons and Paszko seek an injunction ordering defendants to implement and adhere to a comprehensive treatment protocol with regard to prisoners who are infected with the Hepatitis C virus. Because this will likely require the expenditure of money, this Court concludes that Centurion-MN and MPCH’s claims for coverage under the 2014 Darwin Policy in connection with these two lawsuits state a claim upon which relief may be granted.
The exclusion in the 2015 Allied World Policy is broader and makes clear what the 2014 Darwin Policy did not. That is, it does not provide coverage for “non-monetary relief or redress in any form other than monetary compensation or damages, including but not limited to the costs to comply with an order granting injunctive, declaratory, or administrative relief.” (Emphasis added). 5 Thus, there is no coverage obligation with respect to any out-of-pocket expenditures in
5 That this language was included in the Allied World Policy supports this Court’s conclusion that the 2014 Darwin Policy does cover costs associated with injunctive relief. That is, had the parties intended to exclude those costs, they clearly knew how to do that.
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the Briggs litigation that are incurred by MPCH as a result of its compliance with any equitable order. However, the Briggs lawsuit also seeks attorney’s fees, and those costs are arguably covered.
In contending that such costs are not covered, defendants rely on a policy provision which excludes “Defense Expenses” from the definition of Loss so that these expenses are not covered. The Allied World Policy defines Defense Expenses, however, as “reasonable fees, costs and expenses incurred by or on behalf of the Insured in connection with the defense of a Claim.” (Boldface in original, underline added). An award of attorney fees whereby the insured (here MPCH) is required to pay the inmate plaintiffs’ attorney’s fees is therefore not a “Defense Expense.” As to whether attorney’s fees are covered, the Allied World Policy (like the other policies) provide coverage if it is for “Losses or Defense Expenses” which the insured becomes legally obligated to pay “as a result of a Claim alleging a Medical Professional Incident.” Plaintiffs in the Briggs litigation ask the court to require MPCH to pay their attorney’s fees (as required by statute for constitutional violations). This is therefore a claim that seeks monetary compensation. If the Court then ordered MPCH to pay those fees as a result of its failure to provide adequate medical care, then that would fall within the definition of a Loss as defined by the Policy. See UnitedHealth Group Inc. v. Hiscox Dedicated Corp. Member Ltd., 2010 WL 550991 at *10-*11 (D. Minn. Feb. 9, 2010) (applying similar policy language, court concluded that attorney’s fees awarded against the insured in underlying litigation come within insurer’s coverage obligations).
B. Insuring Agreement I.B
Plaintiffs alternatively maintain that they are entitled to coverage under Insuring Agreement I.B because the indemnification demands and the complaints in Paszko, Ligons, and
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Briggs allege “Bodily Injury.” This Court disagrees. Under the Policies, Bodily Injury means “physical injury, sickness or disease sustained by a person other than a Patient, including mental anguish, emotional distress or death resulting therefrom.” (Boldface in original, underline added). Patient, in turn, means “any persons or human bodies admitted or registered to receive Medical Professional Services from an Insured, whether on an inpatient, outpatient or emergency basis.” (Boldface in original). In each of the underlying actions, the prisoner plaintiffs allege that they did not receive adequate medical and/or mental health services. The complaints also allege – either explicitly or implicitly – that plaintiffs were complicit in that failure. The services the prisoner-plaintiffs claimed they should have received were those that plaintiffs were contractually obligated to provide them. Thus, the prisoners-plaintiffs are properly viewed as plaintiffs’ Patients. Accordingly, there is no coverage under Insuring Agreement I.B.
That there is no coverage is made clearer when Insuring Agreements I.A and I.B are read together. Insuring Agreement I.A provides coverage for a Medical Professional Incident, which is defined as, “an actual or alleged act, error, or omission” connected to the “rendering of or failure to render” Medical Professional Services. (Emphasis added). Thus, it envisions coverage for situations where individuals do not receive any medical care. Insuring Agreement I.B is intended to provide coverage for conduct that lies entirely outside the provision of medical care. The underlying lawsuits (and the indemnification demands that arise from them) stem from the failure to render proper medical care. Any coverage obligations would therefore fall under Insuring Agreement I.A.
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CONCLUSION AND ORDER
For the forgoing reasons, Defendants’ Motion to Dismiss is DENIED in that plaintiffs have stated a claim for coverage under Insuring Agreement I.A, at least with respect to some portion of the monetary losses they could incur as a result of the six class action lawsuits. This matter is scheduled for a Rule 16 conference on January ___, 2018 at 2:00 p.m. at which time the defendants can (if they choose) raise the issue of whether this litigation should be stayed pending resolution of the Evanston action.
________________________
Janet L. Sanders
Justice of the Superior Court
Dated: January 8, 2018 read more

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Posted by Stephen Sandberg - February 2, 2018 at 5:55 am

Categories: News   Tags: , , , , , , , , ,

James B. Nutter & Company v. Estate of Murphy, et al. (and two consolidated cases) (Lawyers Weekly No. 10-013-18)

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-12325

JAMES B. NUTTER & COMPANY  vs.  ESTATE OF BARBARA A. MURPHY & others[1] (and two consolidated cases[2]).

Suffolk.     October 2, 2017. – January 18, 2018.

Present:  Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

Mortgage, Foreclosure.  Real Property, Mortgage.

Civil actions commenced in the Land Court Department on October 27, 2015; January 28, 2016; and February 11, 2016, respectively.

A motion for partial judgment on the pleadings was heard by Robert B. Foster, J., and the cases were reported by him to the Appeals Court. read more

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Posted by Stephen Sandberg - January 18, 2018 at 10:26 pm

Categories: News   Tags: , , , , , , , , ,

Kantzelis v. The Commerce Insurance Company (Lawyers Weekly No. 09-045-17)

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COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CA No. 16-3144-BLS1
ALEX KANTZELIS, on behalf of himself and all others similarly situated,
vs.
THE COMMERCE INSURANCE COMPANY
MEMORANDUM OF DECISION AND ORDER ON
DEFENDANT’S MOTION TO STRIKE CLASS ALLEGATIONS
In this action, the plaintiff, Alex Kantzelis, asserts claims arising out of the defendant, The Commerce Insurance Company’s (Commerce), failure to make payments directly to a secured lender that financed the plaintiff’s purchase of his automobile after Commerce denied coverage for the plaintiff’s collision claim because of misrepresentations in the plaintiff’s application for insurance. He brings this action on his own behalf as well as on behalf of a putative class of similarly situated Commerce insureds.
The operative complaint governing the plaintiff’s claims is his Third Amended Class Action Complaint (the Complaint). The original complaint was filed on October 13, 2016. It was amended once as a matter of right and once with Commerce’s assent. Commerce answered this second amended complaint, and also moved to dismiss on the grounds that the plaintiff lacked standing to bring the claims he asserted because he had suffered no damages. At a hearing on that motion, the court noted that the plaintiff’s contention that his debt to the finance firm that financed his purchase of the car would have been extinguished if Commerce had paid
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the secured lender, as it was allegedly required to do under the insurance policy, was not supported by the policy language—if Commerce paid the loss to the lender it would be substituted as the creditor for the amount of the loss so paid.1 The court went on to comment that it was conceivable that a person in the plaintiff’s position might have suffered some other loss because Commerce did not pay the lender, for example if the car was repossessed and this caused consequential damages to the insured. Plaintiff’s counsel suggested that he could allege these kinds of special damages. The court gave the plaintiff an opportunity to file the third amended complaint, which, as noted above, is now the operative complaint in this case.
The case is now before the court on Commerce’s “Motion to Strike Class Allegations.” Commerce contends that because the plaintiff’s claims rest on his allegations of special consequential damages unique to him, they cannot be the predicate for class-based claims. Whether such a motion to strike may be brought under Massachusetts jurisprudence is a question of first impression and discussed below. Of course, a denial of this motion would not be tantamount to the certification of a class, the plaintiff would still have to move for class certification under Mass.R.Civ.P. 23 and provide evidentiary support for class treatment. Rather, the practical issue raised by this motion is whether there are sufficient facts pled in the Complaint to permit the class claims to proceed and the plaintiff to take class discovery from Commerce.
FACTS
The following facts are taken from the allegations in the Complaint and the several exhibits attached to it. They are assumed to be true for the purposes of this motion.
1 This point is further discussed infra.
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Additionally, in prior proceedings the plaintiff, through counsel, conceded that he could not challenge Commerce’s decision to deny his claim based on a false statement in his insurance application and prosecute claims on behalf of a class. He explained that he was not contesting the denial of coverage of his claim. In consequence, the court also assumes that, for the purposes of this motion, the facts underlying Commerce’s denial of coverage are true.
In 2013, the plaintiff purchased a 2010 BMW 535XI Sedan (the BMW). The purchase was financed by BMW Bank of North America (BMW Bank) which obtained a lien on the car. On November 12, 2013, the plaintiff applied to Commerce for an auto insurance policy (the Policy). The Policy issued for the period November 14, 2013 to November 14, 2014. The coverage page reflected that the plaintiff resided in Massachusetts. The BMW was involved in an accident on September 5, 2014 in Fort Lauderdale, Florida, and the plaintiff submitted a damages claim to Commerce for collision/comprehensive coverage.
Commerce assigned an appraisal service to inspect the car. By letter dated September15, 2014, Commerce notified the plaintiff that the BMW had been inspected and found to be a total loss. It recommended that it be moved from the BMW dealership where it was then being stored to a salvage facility. It also stated: “if you have a loan on your vehicle, please contact the bank or lien holder to give them permission to speak with Commerce.” There is no allegation that the plaintiff did this.
The appraisal service that inspected the BMW notified Commerce that this was the third time that the BMW had been appraised and it believed that the plaintiff lived in Florida. This prompted an investigation by Commerce which confirmed that the plaintiff did live in Florida. By letter dated, October 7, 2014, Commerce informed the plaintiff of the results of its investigation and that it was denying the claim. The letter noted that the BMW was still being
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stored at the BMW dealership in Fort Lauderdale and recommended that the plaintiff contact the dealership to have the car returned to him.
At the time of the accident, the plaintiff owed BMW Bank $ 25,390 on the loan secured by the BMW. “Commerce determined that [the BMW] suffered a loss less than the full amount of the loan.”2 Commerce did not advise the plaintiff that Commerce would not pay the secured lender, unless the lender made a demand on Commerce. Commerce also did not notify BMW Bank when it cancelled the plaintiff’s auto insurance Policy. There is no allegation that the plaintiff notified BMW Bank of the accident or the denial of coverage, or that BMW Bank made a demand on Commerce for payment under the policy.
The plaintiff made payments to BMW of $ 4,359 after his claim was denied, including $ 60 in late payment charges. He was also assessed an $ 850 repossession fee.3
The Complaint alleges that the plaintiff suffered various losses because Commerce did not tender payment in the amount of the lien to Commerce.4 They can be summarized as follows:
 The plaintiff’s defense against BMW Bank for non-payment of the loan was weaker.
 The plaintiff was deprived of multiple defenses and counterclaims which he would have had against Commerce, but not against BMW Bank.
 The plaintiff was dunned by creditors for failure to make payment of the BMW Bank loan.
 The BMW was repossessed and he was assessed a fee.
2 The Complaint does not allege the actual amount at which Commerce valued the plaintiff’s loss, which was presumably the value of the BMW at the time of the accident. Obviously, the BMW itself could not suffer a loss.
3 The Complaint does not allege that this fee was paid.
4 The Complaint does not explain why Commerce would pay BMW Bank the outstanding balance on the loan as opposed to the amount of the loss.
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 The plaintiff suffered negative credit consequences.
 The amount of plaintiff’s liability to BMW increased.
 The plaintiff suffered a loss of time and money.
 The plaintiff has an outstanding debt to BMW Bank, or its assignee.
 The plaintiff’s credit rating has been adversely affected.
 Commerce has been unjustly enriched.
The Definition of the Putative Class
The plaintiff defines the proposed class as follows:
All persons insured under a Massachusetts policy of auto insurance issued by Commerce:
A. Who reported to Commerce a first-party Collision, Limited Collision and/or Comprehensive claim; and
B. Who had said first-party claim(s) for coverage denied, and said denial was not based upon any allegation of conversion, embezzlement, or secretion by the insured or any household member of the insured, nor was the denial based upon any allegation of loss of or damage to the insured’s auto resulting from arson, theft, or any other means of disposal committed by you or at your direction; and
C. On whose behalf Commerce failed/refused to make a claim settlement payment to the secured lender identified on the insureds’ application and/or coverage selections page.
The Policy Provision
The relevant provision of the Policy is entitled “Secured Lenders” and states as follows:
When your Coverage Selections Page shows that a lender has a secured interest in your auto, we will make payments under Collision and Comprehensive according to the legal interests of each party.
The secured lender’s right of payment will not be invalidated by your acts or neglect except that we will not pay if the loss of or damage to your auto is the result of conversion, embezzlement, or secretion by you or any household member. Also, we will
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not pay the secured lender if the loss of or damage to your auto is the result of arson, theft, or any other means of disposal committed by you or at your direction.
When we pay any secured lender we shall, to the extent of our payment have the right to exercise any of the secured lender’s legal rights of recovery. If you do not file a proof of loss as provided in this policy, the secured lender must do so within 30 days after the loss or damage becomes known to the secured lender.
DISCUSSION
A. The Court May Entertain Motions to Strike Class Allegations
There are no Massachusetts cases addressing motions to strike class action allegations from a complaint. Federal courts have, however, addressed motions to dismiss allegations that a case should proceed as a class action on a number of occasions. In a fairly recent case, Manning v. Boston Medical Center Corp.. 725 F.3d 34 (1st. Cir. 2013), the First Circuit Court of Appeals addressed the issue as follows:
The dispositive question for purposes of this appeal is whether the complaint pleads the existence of a group of putative class members whose claims are susceptible of resolution on a classwide basis. See Wal-Mart Stores, Inc., v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (holding that common issue of fact “must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke”). The Supreme Court has recognized that “[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff’s claim.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). If it is obvious from the pleadings that the proceeding cannot possibly move forward on a classwide basis, district courts use their authority under Federal Rule of Civil Procedure 12(f) to delete the complaint’s class allegations.16 See, e.g., Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir.2011) (upholding striking of class allegations prior to close of discovery and motion to certify class).
Nonetheless, courts should exercise caution when striking class action allegations based solely on the pleadings, for two reasons. First, while ruling on a motion to strike is committed to the district court’s sound judgment, “such motions are narrow in scope, disfavored in practice, and not calculated readily to invoke the court’s discretion.” Boreri v. Fiat S.p.a., 763 F.2d 17, 23 (1st Cir.1985). This is so because “striking a portion of a
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pleading is a drastic remedy and … it is often sought by the movant simply as a dilatory or harassing tactic.” 5C Charles Alan Wright, et. al., Federal Practice & Procedure § 1380 (3d ed.2011). Second, courts have repeatedly emphasized that striking class allegations under Rule 12(f) is even more disfavored because it requires a reviewing court to preemptively terminate the class aspects of … litigation, solely on the basis of what is alleged in the complaint, and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification.
Mazzola v. Roomster Corp., 849 F.Supp.2d 395, 410 (S.D.N.Y.2012) (citations omitted) (internal quotation marks omitted); see also Cholakyan v. Mercedes-Benz USA, LLC, 796 F.Supp.2d 1220, 1245 (C.D.Cal. 2011) (noting that “it is in fact rare to [strike class allegations] in advance of a motion for class certification” and collecting cases). Accordingly, a court should typically await the development of a factual record before determining whether the case should move forward on a representative basis.
. . .
Accepting the complaint’s allegations as true, as we must, these facts support the plausible inference that this combination of policies affected BMC’s employees across the board, notwithstanding their different roles within the company. Even if the court had concerns about plaintiffs’ ability to represent such a diverse group of employees, those concerns do not justify the drastic measure of striking the class allegations in their entirety. Cf. Twombly, 550 U.S. at 563 n. 8, 127 S.Ct. 1955 (“[W]hen a complaint adequately states a claim, it may not be dismissed based on a district court’s assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder.”). Moreover, the district court has many tools at its disposal to address concerns regarding the appropriate contours of the putative class, including redefining the class during the certification process or creating subclasses. Cf. Fengler v. Crouse Health Found., Inc., 595 F.Supp.2d 189, 197 (N.D.N.Y.2009) (granting class certification in hospital compensation case, but excluding “non-patient care workers,” such as cafeteria workers and security staff, because plaintiffs failed to show that these employees worked without pay with hospital administrators’ knowledge). Therefore, plaintiffs should have the chance to prove their assertions through discovery and a properly-brought motion for class certification.
In reliance of the federal court decisions interpreting Rules 23 and 12(f), this court concludes that, in appropriate circumstances, a Massachusetts trial court can dismiss class allegations under Mass.R.Civ.P. 12(f). The standard to be applied in determining whether to grant such a motion is, however, the standard to be applied for motions to dismiss brought under Mass.R.Civ.P. 12(b)(6), i.e., the court must “take as true the allegations of the complaint, as well as the reasonable inferences as may be drawn therefrom in plaintiff’s favor. . . . What is required
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at the pleading stage are factual allegations plausibly suggesting (not merely consistent with) an entitlement to relief. . . . Factual allegations must be enough to raise a right to relief above the speculative level . . . based on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Golchin v. Liberty Mutual Ins. Co., 460 Mass. 222, 223 (2011) (Internal citations and quotations omitted). In the context of a motion to dismiss claims that a case proceed as a potential class action, this means that, accepting as true all factual allegations (as opposed to legal conclusions), the court concludes that it is nonetheless “obvious from the pleadings that the proceeding cannot possibly move forward on a classwide basis” because one of the requirements for class certification defined in Mass.R.Civ.P. 23(a) and (b) cannot be established.5
B. Do the Class Allegations Support A Plausible Claim for Class Treatment?
1. Claims that are not consistent with the Policy or the plaintiff cannot assert.
The plaintiff’s second amended complaint, which Commerce moved to dismiss for lack of standing, was predicated on plaintiff’s apparent contention that if Commerce paid BMW Bank, he would be relieved of his obligations under the loan he had obtained to purchase the BMW. That contention is unsupported by the language of the Policy. The “Secured Lender” provision in the Policy makes clear that while BMW Bank’s right to payment of the amount of the loss is not “invalidated” by an insured’s false statements in an insurance application, Commerce steps into the position of the secured lender when it pays the lender under this provision: “to the extent of
5 The motion now before the court should be distinguished from motions brought by defendants to deny class certification after the plaintiff has had an adequate time to undertake class discovery. Federal Courts have held that Fed.R.Civ.P. 23 should not be read to permit only a plaintiff to file a motion for class certification, thereby requiring defendants to wait until the plaintiffs act before requesting a court to address the issue of whether the case can proceed as a class action. See Vinole v. Countrywide Home Loans, Inc. 571 F.3d 935 (9th Cir. 2009) and cases there cited. However, in those cases the Federal Courts have distinguished motions brought under Rule 12(f) predicated on the inadequacy of the pleadings from those brought after the plaintiffs have had an adequate time to conduct discovery and present a factual record supporting their claim to proceed on behalf of a class of similarly situated individuals. Id. at 940-941.
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our payment [we] have the right to exercise any of the secured lender’s legal rights of recovery.” In other words, from the perspective of the insured there is no transfer of risk of loss; there is only a change of creditors with Commerce substituted for the financing firm. In consequence, there is no class of insured’s that suffered economic loss simply because Commerce did not pay the finance company that held a disclosed lien on its insured’s automobile. While this theory of loss could be applied to a class of insureds, it is not supported by the language of the Policy.
In the operative third amended complaint the plaintiff also alleges that Commerce is unjustly enriched when it fails to pay a secured lender which has not made a claim under the policy. However, an insurance policy is a contract between the insurer and the insured. See Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 146 (1982). And, a claim of unjust enrichment cannot be asserted when the parties’ obligations to one another are covered by a contract. See, e.g., Bosewell v. Zephyr Lines, Inc. 414 Mass. 241, 250 (1993) (Where the court held that recovery for unjust enrichment or other quasi contract theories “presupposes that no valid contract covers the subject matter of a dispute.”). Moreover, it should be noted that the right of a secured lender to recover the amount of the loss when the insurer has properly denied the policy holder’s claim is not a “coverage” described in the coverage section of the Policy or listed on the policy holder’s Coverage Selection Page. No part of the premium is calculated based on this policy provision, and it is included in every policy regardless of whether there is a lien on a covered automobile. In any event, no claim for unjust enrichment can be brought by the plaintiff in this case or by a class of plaintiffs.
The plaintiff also alleges an element of damages in the Complaint that could, in theory, be asserted by him and other policy holders, but which he has specifically represented to the court he is not pursuing. The plaintiff contends that he has defenses and counterclaims that he
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could assert against Commerce, if Commerce had paid BMW Bank and sued him as successor to BMW Bank’s rights under the loan. However, the plaintiff has stated that he is not contesting Commerce’s decision to deny his direct claim because of misrepresentations concerning his residence and where the BMW was garaged. Clearly, the only defense (or counterclaim) that the plaintiff could assert against Commerce that would not lie against BMW Bank would arise from assertions that Commerce wrongfully denied coverage for the loss sustained when the BMW crashed. Presumably, the plaintiff renounced any claims based on a wrongful denial of coverage because the coverage question would involve facts unique to any policyholder and would not be susceptible to class treatment. In any event, the plaintiff cannot reintroduce wrongful denial of coverage into this litigation by alleging that an inability to defend against claims under the loan based on a denial of coverage is as an element his damages.
It may be noted that an insurer’s refusal to pay a secured lender when the insured is validly contesting a denial of coverage on the grounds of misrepresentation might well cause damages to the insured, who might not have the funds to obtain substitute transportation and pay the existing loan while contesting the insurer’s position. Whether such claims could be asserted on behalf of a class is unclear. In such circumstances, the validity of the insured’s position would likely turn on facts unique to each insured. This is likely why, in this case, the plaintiff made clear that he was not contesting Commerce’s denial of coverage.6
6 The prerequisite for class certification that common questions of law and fact predominate over individualized questions is discussed infra. See Mass. R. Civ. P. 23(b). The court also notes that, having reviewed the October 7, 2014 letter to plaintiff in which Commerce informed the plaintiff of the results of its investigation concerning his residence, the court has some question as to whether the plaintiff would be an adequate class representative of a class of plaintiffs who had valid reasons to contest a denial of coverage on the grounds of misrepresentations in the insurance application.
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2. Claims in which common questions of fact are not predominant.
Under Mass. R. Civ. P. 23, in order for a class to be certified by the court, a plaintiff must demonstrate that (1) the class is sufficiently numerous to make joinder of all parties impracticable, (2) there are common questions of law and fact, (3) the claims or defenses of the representative party are typical of the claims or defenses of the class, and (4) the named plaintiff will fairly and adequately protect the interests of the class. See Mass. R. Civ. P. 23(a). Additionally, a plaintiff must show that common questions of law and fact predominate over individualized questions and that the class action is superior to other available methods for fair and efficient adjudication of the controversy. See Mass. R. Civ. P. 23(b). It is the “predominance” test which arises under Rule 23(b) that requires close attention in addressing the pending motion to strike.
“The predominance test expressly directs the court to make a comparison between the common and individual questions involved in order to reach a determination of such predominance of common questions in a class action context” Salvas v. Wal-Mart Stores, Inc., 452 Mass. 337, 363 (2008) (citation omitted). The predominance requirement is satisfied by a sufficient constellation of common issues between class members and cannot be reduced to a mechanical, single-issue test. See Weld v. Glaxo Wellcome Inc., 434 Mass. at 92. See also Waste Mgt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 296 (1st Cir. 2000).
There is, of course, a predominant issue of law raised by the Complaint and common to any policyholder: (1) who disclosed a lien on a covered automobile in her/his insurance application; (2) subsequently had a claim denied based on the insured’s “acts or neglect” (other than loss to the insured’s auto that “is the result of conversion, embezzlement, or secretion by you or any household member”); (3) where the lien holder did not make a demand for payment
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of the loss,7 and (4) Commerce did not tender payment in the amount of the loss to the lien holder. It is the court’s understanding that Commerce’s position is that the Policy does not require it to tender payment under these circumstances. Whether that interpretation of the Policy is correct raises a common and predominant question of law. However, for a putative class member to have a claim and therefore to be a member of a class, he/she must have suffered a loss. The question of whether an insured suffered damage as a result of Commerce’s position on the Secured Lender provisions of the Policy appears to introduce individualized and predominant questions of fact. A review of the overbroad class definition alleged in the Complaint makes this clear.
The plaintiff contends that every insured whose collision/comprehensive coverage claim was denied for the reasons stated above and whose lender was not paid the loss that would have been paid to the insured, but for the denial of coverage, is a member of the class. It is, however, evident that many insureds, if not most of them, would not have suffered any loss as a result of Commerce’s failure to pay the secured lender, have no claim, and consequently not be a member of the proposed class.
For example, the proposed class definition included claims like the one asserted in this case in which the car was a total loss, as well as claims in which the car was capable of repair. An insured who fixed the car and kept-up payments on the loan will have suffered no loss. Indeed, an insured who knew that he had no basis for contesting the denial of coverage might well not want the finance company which financed the purchase of his car to know that he had made misrepresentations on his insurance application. Even when the car is a total loss, many
7 The Complaint does not allege that the plaintiff made a demand on Commerce to pay BMW Bank. It is not clear from any pleading filed in this case, if Commerce has a practice of refusing to pay the lien holder if the insured directs Commerce to make the payment.
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insureds might prefer to deal with a finance company, as opposed to creating a financial obligation to Commerce. For instance, where the amount of the loss is far less than the amount still due on the loan, the insured might prefer to have one creditor to negotiate with rather than owing the finance company the balance due on the loan and Commerce the amount of the loss paid to the finance company. And, of course, where an at-fault driver of another car caused the loss, the insured may suffer no loss.
Because Commerce’s payment to the lien holder only causes a substitution of Commerce as creditor, it is manifest that a special set of events has to occur as a consequence of Commerce’s failure to pay the loss to the finance company for Commerce’s conduct to have caused its insured to sustain damages. These events would have to be proven by any insured making a claim against Commerce, as the plaintiff himself must do to prevail in his own individual claims against Commerce in this litigation.8
The plaintiff argues that: “[t]he particular nature of the damages flowing from the same [sic, presumably wrongful act] are irrelevant for the purposes of certification,” citing Weld v. Glaxco Wellcome Inc., 434 Mass. 81, 92 ( 2001). However, in Weld, the Supreme Judicial Court (SJC) noted that the allegedly wrongful course of conduct engaged in by the defendants involved a per se violation of the privacy of each class member and whether there would even be differences in potential damages among class members was not clear. By contrast, in the instant case, it is evident that a factual inquiry as to whether a potential class member suffered any
8 In this case, the plaintiff alleges as damages that he paid $ 4,359 to BMW Bank after the accident, but he also alleges that Commerce informed him that the amount of the loss on the BMW was less than the amount still due on the loan at the time of the accident. It may be that the amount he paid BMW Bank was not in excess of the balance of the loan less the amount of the loss. Additionally, he alleges that the BMW was repossessed, but also that it was a total loss. The correspondence that he attached to the Complaint suggests that he may have simply left the vehicle at the BMW dealership in Fort Lauderdale. In addressing the pending motion all plausible factual inferences must, of course, be drawn in favor of the plaintiff. Nonetheless, the nature of these factual allegations underscore the individualized factual issues that would have to be resolved in ruling on each putative class member’s claim.
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damage is required. In Aspinall v. Philip Morris Cos., 442 Mass. 381, 397 n.19, (2004), the SJC explained that: “The plaintiffs do not seek damages for personal injuries. Were it otherwise, unique and different experiences of each individual member of the class would require litigation of substantially separate issues and would defeat the commonality of interests in the certified class.” Again, this case requires individual fact finding not only to determine the amount of damages, but whether a claimant suffered any damages and therefore could be a member of the class.
There is another way to think about the problems that arise when individualized fact finding is required to determine who is a member of a putative class. Federal case law suggests that there is another implicit element that must be established before a class may be certified, that is that the class is “ascertainable.” In Dononvan v. Philip Morris USA, Inc., 268 F.R.D. 1, 9 (D. Mass. 2010), a Federal District Court described this requirement as follows: “While not explicitly mentioned in Rule 23, an implicit prerequisite to class certification is that a ‘class’ exists—in other words, it must be administratively feasible for the court to determine whether a particular individual is a member . . . . To be ascertainable, all class members need not be identified at the outset; the class need only be determinable by stable and objective factors.” Dononvan v. Philip Morris USA, Inc., 268 F.R.D. at 9 (internal quotations and citations omitted). However, when “class members [are] impossible to identify prior to individualized fact-finding and litigation, the class fails to satisfy one of the basic requirements for a class action under Rule 23.” Shanley v. Cadle, 277 F.R.D. 63, 68 (D. Mass 2011). See also Kwaak v. Pfizer, Inc., 71 Mass. App. Ct. 293, 300-301 (2008) (where class certification was reversed when individual proof would be required to determine whether a particular purchaser of Listerine was exposed to
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deceptive advertising that affected the decision to purchase the product as the advertising was not uniform during the class period).
In this case, while Commerce’s own records might be adequate to identify insureds who had their collision/comprehensive claims denied because of their own conduct or neglect, had disclosed liens on their covered automobiles, and the lien holders were not paid the amount of the loss, those records would be inadequate to identify which of those insureds suffered a loss—that would require individualized fact finding concerning what thereafter happened to these insureds, more specifically whether they then suffered some manner of loss attributable to a failure to pay the lien holder. In Carrera v. Bayer Corp., 727 F.3d 300, 306-307 (3rd Cir. 2013), the Third Circuit Court of Appeals explains the concept of ascertainability at length and its importance in determining whether a class may be certified. Of relevance to this case, the Third Circuit explains: “A defendant in a class action has a due process right to raise individual challenges and defenses to claims, and a class action cannot be certified in a way that eviscerates this right or masks individual issues . . . A defendant has a similar, if not the same, due process right to challenge the proof used to demonstrate class membership as it does to challenge the elements of a plaintiff’s claim.” Id. at 307. No Massachusetts appellate decision has yet specifically addressed the question of whether ascertainablity should be considered in determining whether a class may be certified, but these concerns appear to underlay the Appeals Court’s decision in Kwaak cited above.
C. Applying the Rule 12(b)(6) Standard.
The standard to be applied in deciding whether to strike class action allegations from a complaint is a rigorous one. Nonetheless, in this case the factual allegations of the complaint do not support a plausible claim that the plaintiff may proceed on behalf of a class of similarly
16
situated individuals. In order to avoid dismissal of his own claim, the plaintiff amended his complaint to assert special damages allegedly incurred because Commerce did not pay BMW Bank the amount of the loss occasioned by the crash of his BMW. The plaintiff will have to prove these consequential damages to recover against Commerce. Any other plaintiff would similarly have to prove such damages to recover—or be a member of a class. No discovery obtained from Commerce could cure the inherent shortcomings in the class allegations.
ORDER
For the foregoing reasons, the defendant’s motion to strike the class action allegations is ALLOWED.
__________________
Mitchell H. Kaplan
Justice of the Superior Court
Dated: November 9, 2017 read more

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Posted by Stephen Sandberg - December 6, 2017 at 8:28 pm

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Ressler v. Deutsche Bank Trust Company Americas, et al. (Lawyers Weekly No. 11-148-17)

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Posted by Stephen Sandberg - December 1, 2017 at 6:49 pm

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Clairmont, et al. v. Amer Sports Winter & Outdoor Company, et al. (Lawyers Weekly No. 09-039-17)

1
COMMONWEALTH OF MASSACHUSETTS
PLYMOUTH, ss. SUPERIOR COURT
CIVIL ACTION
NO. 14-00505
FRANCIS CLAIRMONT AND GEORGE CLAIRMONT
vs.
AMER SPORTS WINTER & OUTDOOR COMPANY & another1
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT, AMER SPORTS WINTER & OUTDOOR COMPANY’S, MOTION FOR SUMMARY JUDGMENT
This action arises out of a January 15, 2011 incident in which the plaintiff, Francis Clairmont (“Clairmont’), tripped and fell while wearing a pair of boots manufactured by defendant Amer Sports Winter & Outdoor Company (“Amer Sports”). Clairmont’s Complaint against Amer Sports alleges negligence (Count I), defective design (Count II), breach of warranty (Count III), and failure to warn (Count IV) in connection her accident. Clairmont’s husband and co-plaintiff, George Clairmont, also asserts a claim for loss of consortium in the Complaint (Count IX).
This matter is before the Court on Amer Sports’ motion for summary judgment on all of the Plaintiffs’ claims. For the following reasons, Amer Sports’ motion is ALLOWED.
BACKGROUND
The following relevant facts are either undisputed or presented in the light most favorable to the non-moving party, in accordance with the dictates of Mass. R. Civ. P. 56.
On or about January 15, 2011, Plaintiff Francis Clairmont (“Francis”) was shopping at the Derby Street Shoppes in Hingham. She was wearing a pair of Solomon Gore-tex Contragrip
1 Eastern Mountain Sports, Inc.
2
ankle high hiking boots (“the Boots”) at the time. Amer Sports manufactured the Boots. The Boots have a “speed lacing” design, which includes a rigid J-shaped hook comprised of a curved neck and a fastening tail, through which the laces pass to tie each of the Boots. As Francis exited the store, the lace of the left boot caught on the hook of her right boot. She fell forward as her legs became entangled and was injured.
Plaintiffs present no expert testimony on the design of the speed laces, and have adduced no evidence that Amer Sports knew, or had reason to know, of any similar accidents or occurrences caused by the speed laces.
Amer Sports contends that manufacturers have used the patented speed lacing design for more than one-hundred years, and that this design is popular on hiking boots, work boots, and ice skates.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when the record shows that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Mass. R. Civ. P. 56(c); see also DuPont v. Commissioner of Corr., 448 Mass. 389, 397 (2007). The moving party bears the initial burden of demonstrating that there is no triable issue and he or she is entitled to judgment. Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 644 (2002), citing Pederson v. Time, Inc., 404 Mass. 14, 17 (1989); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991). In reviewing a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party and draws all reasonable inferences in his or her favor. Jupin v. Kask, 447 Mass. 141, 143 (2006), citing Coveney v. President & Trs. of the Coll.
3
of the Holy Cross, 388 Mass. 16 (1983); see also Simplex Techs., Inc. v. Liberty Mut. Ins. Co., 429 Mass. 196, 197 (1999).
II. Negligence, Defective Design, and Breach of Warranty Claims (Counts I, II, and III)
While styled as three different theories of liability, Counts I, II, and III alleging negligence, defective design and breach of warranty, respectively, all turn on the same core contention that the speed laces on the Boots were defectively designed and that such defect caused plaintiff Francis’ accident.
To establish a claim for defective design, a plaintiff must show that the manufacturer “failed to exercise reasonable care to eliminate avoidable or foreseeable dangers to the user of the product.” Morrell v. Precise Engineering, Inc., 36 Mass. App. Ct. 935, 936 (1994) (Rule 1:28 Opinion), citing Uloth v. City Tank Corp., 376 Mass. 874, 880-881 (1978). A defective design claim requires proof that the product is not reasonably safe for its intended purposes and for reasonably foreseeable uses, considering the customer’s ordinary expectations about the product. See Back v. Wickes Corp., 375 Mass. 633, 640–641 (1978); see also Haglund v. Philip Morris, Inc., 446 Mass. 741, 748 (2006) (in design defect case, “jury must weigh multiple factors, including ‘the gravity of the danger posed by the challenged design, the likelihood that such danger would occur, the mechanical feasibility of a safer alternative design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.’”) (citations omitted). Further, “[i]n claims alleging negligence in the design of a product, as with claims of a design defect in breach of the implied warranty of merchantability, the plaintiff must show an available design modification which would reduce the risk without undue cost or interference with the performance of the [product], and the jury must consider whether a safer alternative design was available in deciding whether
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the defendant was negligent for failing to adopt that design. … a reasonable alternative design must be shown before a defendant may be found liable for breach of the implied warranty of merchantability based on a design defect, and [a] defendant cannot be found to have been negligent without having breached the warranty of merchantability.” Evans v. Lorillard Tobacco Co., 465 Mass. 411, 443-444 (2013) (citations, internal punctuation omitted).
In this case, Plaintiffs present no expert testimony on whether the design of the speed laces was defective or whether there was an available appropriate design modification that would have reduced such risk without undue cost or interference with the product’s performance. Plaintiffs contend they do not need an expert; Amer Sports argues that they do. The parties appear to agree, however, that the requirement of expert testimony poses a purely legal question for the Court to resolve. Expert testimony is generally required where an issue the jury must decide “is beyond the common knowledge or understanding of the lay juror.” Commonwealth v. Sands, 424 Mass. 184, 186 (1997). Accordingly, Massachusetts courts have routinely held that expert testimony in design defect cases is required. See, e.g., Enrich v. Windmere Corp., 416 Mass. 83, 87 (1993) (alleged defect in an electric cooling fan required expert testimony); Morrell, 36 Mass. App. Ct. at 936 (determination of proper scaffolding brackets required expert testimony); Wiska v. St. Stanislaus Social Club, Inc., 7 Mass. App. Ct. 813, 821 (1979) (alleged defective design of an automobile’s windshield required expert testimony). It is only in rare cases, where the jurors can simply apply their own lay knowledge to determine liability because the “design defect claimed is so simple or obvious that the need for technical assistance is eliminated,” that such expert testimony is unnecessary. Esturban v. Massachusetts Bay Transp. Auth., 68 Mass. App. Ct. 911, 912 n. 7 (2007); Smith v. Ariens Co., 375 Mass. 620, 625 (1978) (a jury could infer without expert testimony that metal protrusions on the handlebars of a
5
snowmobile, which cut the plaintiff’s face when she was propelled forward in a collision, amounted to an obvious design defect); doCanto v. Ametek, 367 Mass. 776, 782 (1975) (no expert testimony needed where plaintiff introduced the defendant’s subsequent remedial measures to the machine that caused the injury and the opinion of the designer of the machine that the product was unsafe).2
While the speed laces in this case are of a simple design, and the facts of the accident are straightforward, the analysis of the alleged design defect in the speed laces is neither simple nor straightforward. The jury would have to consider the biomechanics of a person walking in the Boots, the design and location of the speed laces on the Boots, and the appropriateness of an alternative design, all issues which are not sufficiently obvious that they are within the average juror’s common knowledge. See Esturban, 68 Mass. App. Ct. at 912 (“Without the aid of an expert in the field, jurors would also be left to speculate about whether alternatively engineered designs might have prevented the accident”) (citation omitted). This Court thus finds expert testimony is required in this case to prove a design defect in the Boots, and that speed laces – which haves been widely used in a variety of footwear for a century – do not present a gross or obvious defect.
Moreover, aside from Plaintiffs’ post-accident claim that the Boots posed an obvious trip hazard, Plaintiffs failed to elicit any evidence concerning similar incidents related to the speed lacing design or that Amer was aware of any such risks associated with the speed laces.
2 The rule is similar in professional negligence cases. In them, a plaintiff can prove professional negligence without an expert “[o]nly where professional negligence is so gross or obvious that jurors can rely on their common knowledge to recognize or infer negligence.” Herbert A. Sullivan, Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 403 (2003). Examples of such “gross or obvious” malpractice in the professional context includes a failure to meet deadlines, lack of compliance with client’s instructions, and unexcused failures to defend a client, particularly when such actions are compounded by misrepresentations and false statements to the client. See, e.g. Global Naps, Inc. v. Awiszus, 457 Mass. 489, 501 (2010); Wagerman v. Adams, 829 F.2d 196, 218-220 (1st Cir. 1987); Glidden v. Terranova, 12 Mass. App. Ct. 597, 598-601 (1981).
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Plaintiffs thus therefore failed to demonstrate that the speed laces on the Boots created a reasonably foreseeable risk of accident. Two other courts have come to similar conclusions. In a case addressing a similar claim involving shoes with a speed lacing design, the United States District Court for the Southern District of Ohio granted summary judgment against the plaintiff’s claim, finding that the plaintiff had “fail[ed] to raise genuine issues of material fact regarding the breach of duty, foreseeability, and causation elements of his negligence claim related to speed-lace hooks. Plaintiff did not demonstrate how a reasonable jury could find that Defendant was on actual or constructive notice of the alleged danger of speed-lace hooks nor did Plaintiff show that an accident from the use of speed-lace hooks was reasonably foreseeable.” Barger v. CSX Transp., Inc., 110 F. Supp. 2d 648, 653-654 (S.D. Ohio 2000). Similarly, the First Circuit affirmed a grant of summary judgment in a similar case to a manufacturer of resin sandals, called “Crocs,” in part because the plaintiff “failed to put forward an expert to accredit” a government report on potential dangers of the product. Geshke v. Crocs, Inc., 740 F.3d 74, 79 (1st Cir. 2014).
Plaintiffs failed to adduce evidence, expert or factual, to support their contention that the Boots posed an obvious design defect or that a reasonable alternative design was available. Amer Sports is thus entitled to judgment as to Counts I, II, and III of the Complaint.
III. Failure to Warn (Count IV)
Count IV of the Complaint alleges Amer Sports had a duty to warn Plaintiff Francis Clairmont that the Boots posed a tripping hazard.
A manufacturer has a duty to warn against a foreseeable use of its product involving a hazard not apparent to the user. Fegan v. Lynn Ladder Co., Inc., 3 Mass. App. Ct. 60, 63-64 (1975). However, a manufacturer has no duty to warn of “risks that were not reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing
7
prior to marketing the product.” Vassallo v. Baxter Healthcare Corp., 428 Mass. 1, 23 (1998). “A warning is not required unless ‘the person on whom the duty rests has some reason to suppose a warning is needed.’” Killeen v. Harmon Grain Prod., Inc., 11 Mass. App. Ct. 20, 24 (1980) (quoting Carney v. Bereault, 348 Mass. 502, 506 (1965)). Further, “where the danger presented by a given product is obvious, no duty to warn [exists] because a warning will not reduce the likelihood of injury.” Bavuso v. Caterpillar Indus., Inc., 408 Mass. 694, 699 (1990), quoted in Evans, 465 Mass. at 439.
Francis’ argument that the speed laces were obviously defectively designed undermines her failure to warn claim. Even leaving that aside, Francis failed to establish that the speed laces posed a reasonably foreseeable risk or that such risk could have been discovered through additional product testing. Accordingly, based upon the facts before this Court, Amer Sports had no reason to believe a warning was required and is entitled to summary judgment as to Count IV of the Complaint.
IV. Loss of Consortium (Count IX)
Recovery for loss of consortium generally requires proof of a tortious act which caused injury to one’s spouse. Sena v. Commonwealth, 417 Mass. 250, 264 (1994) (citations omitted); Mouradian v. General Elec., 23 Mass. App. Ct. 538, 544 (1987) (citations omitted). As discussed above, as the substantive counts brought by Francis against Amer Sports must be dismissed, the claims of her husband, George, for loss of consortium arising from Francis’ claims must also be dismissed. Short v. Town of Burlington, 11 Mass. App. Ct. 909, 910 (1981) (claim of wife for loss of consortium failed as entirely derivative of failed personal injury claim by husband). Amer Sports is therefore entitled to summary judgment on Count IX.
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ORDER
For the foregoing reasons, Amer Sports Winter & Outdoor Company’s motion for summary judgment on Counts I-IV and IX is ALLOWED.
______________________________
Michael D. Ricciuti
Justice of the Superior Court
DATED: October 30, 2017 read more

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Posted by Stephen Sandberg - November 13, 2017 at 9:29 pm

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Great Divide Insurance Company v. Lexington Insurance Company (Lawyers Weekly No. 10-172-17)

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-12164

GREAT DIVIDE INSURANCE COMPANY  vs.  LEXINGTON INSURANCE COMPANY.

Suffolk.     March 6, 2017. – November 1, 2017.

Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.[1]

Motor Vehicle, Insurance.  Insurance, Motor vehicle insurance, Excess liability insurance.

Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.

 

Adam R. Doherty (Thomas M. Elcock also present) for the plaintiff. read more

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Posted by Stephen Sandberg - November 1, 2017 at 4:07 pm

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OneBeacon America Insurance Company v. Celanese Corporation (Lawyers Weekly No. 11-134-17)

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-203                                        Appeals Court

ONEBEACON AMERICA INSURANCE COMPANY  vs.  CELANESE CORPORATION.

No. 16-P-203.

Suffolk.     November 18, 2016. – October 16, 2017.

Present:  Trainor, Meade, & Hanlon, JJ.

Insurance, Defense of proceedings against insured, Insurer’s obligation to defend.  Contract, Insurance.  Conflict of Interest.  Practice, Civil, Summary judgment, Attorney’s fees.

Civil action commenced in the Superior Court Department on March 2, 2010. read more

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Posted by Stephen Sandberg - October 16, 2017 at 5:18 pm

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