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

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-1240                                       Appeals Court   ONEBEACON AMERICA INSURANCE COMPANY  vs.  NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants.     No. 13-P-1240.   Suffolk.     June 3, 2014. – August 31, 2016.   Present:  Kantrowitz, Hanlon, & Carhart, JJ.[2]     Conflict of Laws.  Insurance, Comprehensive liability insurance, Excess Liability Insurance, Pollution exclusion clause.  Contract, Insurance, Choice of law clause.  Real Property, Environmental damage.       Civil action commenced in the Superior Court Department on July 25, 2005.   Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J.     Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue.     CARHART, J.  This matter is before us pursuant to the December 28, 2015, order of the Supreme Judicial Court, remanding to this court for express consideration the substantive law to be applied to the interpretation of the insurance contracts at issue in OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 2), 87 Mass. App. Ct. 1126 (2015) (OneBeacon No. 2).  The plaintiff, OneBeacon America Insurance Company (OneBeacon), along with third-party defendants Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies (collectively, London), American Home Assurance Company (American Home), and Century Indemnity Company (Century) argued in their respective appeals that a Superior Court judge erred in determining that Rhode Island law would apply both in deciding whether the insured, Narragansett Electric Company (NEC), was entitled to coverage for environmental contamination at several Rhode Island sites, and in the allocation of damages on the jury’s verdicts as to one of the sites. For background, we refer to OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 1), 87 Mass. App. Ct. 417 […]

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

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The Home Insurance Company v. Workers’ Compensation Trust Fund (Lawyers Weekly No. 11-127-15)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   14-P-1356                                       Appeals Court   THE HOME INSURANCE COMPANY  vs.  WORKERS’ COMPENSATION TRUST FUND. No. 14-P-1356 Suffolk.     June 2, 2015. – September 3, 2015.   Present:  Vuono, Grainger, Blake, JJ. Workers’ Compensation Act, Reimbursement of insurer, Cost of living allowance.  Insurance, Insolvency of insurer. Practice, Civil, Standing.  Administrative Law, Agency’s interpretation of statute.  Statute, Construction.     Appeal from a decision of the Industrial Accident Reviewing Board.     Eric A. Smith (Donald E. Wallace with him) for the plaintiff. Douglas S. Martland, Assistant Attorney General, for the defendant. W. Frederick Uehlein & Dorothy M. Linsner, for Lumbermens Mutual Casualty Company, amicus curiae, submitted a brief. Joseph C. Tanski, Gregory P. Deschenes, & Kurt M. Mullen, for Massachusetts Insurers Insolvency Fund, amicus curiae, submitted a brief.      GRAINGER, J.  We are called upon to analyze certain rights and obligations resulting from the liquidation of a New Hampshire insurance company that issued workers’ compensation policies in Massachusetts.  At issue in this appeal is the company’s entitlement pursuant to G. L. c. 152, § 65(2), to reimbursement for cost of living adjustments (COLA, COLA increases), as prescribed by G. L. c. 152, § 34B, to eleven individuals receiving workers’ compensation benefits.  Both an administrative judge (judge) and the reviewing board (board) of the Department of Industrial Accidents (DIA) determined, albeit on different rationales, that the company was not entitled to reimbursement. Background.  The undisputed facts, excerpted below, are recounted in detail in the board’s comprehensive decision.   COLA payments as part of the workers’ compensation scheme. Persons receiving workers’ compensation benefits in Massachusetts are entitled to receive annual COLA increases to reflect changes in the cost of living.  See G. L. c. 152, § 34B.  These COLA increases are funded, then subject to reimbursement, as follows:  Revenues to fund the defendant Workers’ Compensation Trust Fund (trust fund) are raised by an annual assessment[1] on employers pursuant to G. L. c. 152, § 65.  Under normal circumstances (i.e., involving solvent insurers), the yearly assessments are collected from employers by their insurers such as the plaintiff  Home Insurance Company (Home), who transmit them to the trust fund.  The insurers then pay the COLA increases together with other monthly benefits to injured workers.  See G. L. c. 152, § 65(2).  This, in turn, entitles the insurers to reimbursement from the trust fund for the COLA payments on a quarterly basis.  Ibid. Home’s […]

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Posted by Massachusetts Legal Resources - September 4, 2015 at 4:12 am

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

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-1240                                       Appeals Court   ONEBEACON AMERICAINSURANCE COMPANY  vs.  NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants (No. 1).     No. 13-P-1240. Suffolk.     June 3, 2014. – June 3, 2015.   Present:  Kantrowitz, Hanlon, & Carhart, JJ. Conflict of Laws.  Limitations, Statute of.  Practice, Civil, Summary judgment, Statute of limitations, Dismissal, Judicial discretion, Attorney’s fees.  Insurance, Comprehensive liability insurance, Excess Liability Insurance, Construction of policy, Insurer’s obligation to defend, Defense of proceedings against insured, Pollution exclusion clause, Disclaimer of liability.  Indemnity. Contract, Insurance, Indemnity, Construction of contract, Parties, Performance and breach.  Real Property, Environmental damage.  Jurisdiction.     Civil action commenced in the Superior Court Department on July 25, 2005.   Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J.     Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue.     KANTROWITZ, J.  To put this rather dense environmental case in perspective, pollution in some of the affected areas started in the mid-1800s, and the first of several insurance policies at issue was written in 1945.  Today, we are asked to rule on the propriety of the allowance of numeroussummary judgment motions and the verdicts in three separate, lengthy jury trials.[2] I.  Background.  The plaintiff, OneBeacon America Insurance Company (OneBeacon), brought this declaratory judgment action in July, 2005, against its insured, Narragansett Electric Company (NEC), seeking a determination that OneBeacon had no duty to defend or indemnify NEC for damages associated with environmental contamination at several sites, formerly utilized by NEC’s predecessors for manufactured gas plant operations and waste disposal.  NEC counterclaimed for breach of contract and declaratory relief, adding other insurers that had issued primary and excess liability insurance policies […]

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

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Barrow v. Dartmouth House Nursing Home, Inc., et al. (Lawyers Weekly No. 11-095-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-1375                                       Appeals Court   SCOTT R. BARROW, executor,[1]  vs.  DARTMOUTH HOUSE NURSING HOME, INC.,[2] & others.[3] No. 13-P-1375. Essex.     April 8, 2014.  –  August 18, 2014. Present:  Kafker, Brown, & Sikora, JJ. Nursing Home.  Arbitration, Parties, Stay of judicial proceedings, Confirmation of award.  Contract, Arbitration, Parties, Validity, Third party beneficiary.  Agency, Scope of authority or employment.  Health Care Proxy.  Estoppel.  Practice, Civil, Stay of proceedings.       Civil action commenced in the Superior Court Department on May 26, 2010.   The case was heard by Robert A. Cornetta, J.   John Vail, of the District of Columbia (David J. Hoey with him) for the plaintiff. Tory A. Weigand (Noel B. Dumas with him) for the defendants.     KAFKER, J.  The enforceability of arbitration agreements signed on behalf of family members being assisted in the nursing home admission process has been the subject of a recent constellation of cases.  See, e.g., Miller v. Cotter, 448 Mass. 671, 679-684 (2007); Johnson v. Kindred Healthcare, Inc., 466 Mass. 779, 781-789 (2014), and Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793, 796-799 (2014).  Here, the plaintiff, Scott R. Barrow, signed such an arbitration agreement on behalf of his ninety-six year old mother, Elizabeth Barrow, as he helped her enter the Brandon Woods Long Term Care Facility (nursing home).  After she was allegedly beaten and strangled to death by her ninety-seven year old roommate, Scott[4] brought, in his capacity as executor of his mother’s estate, a multicount suit in Superior Court.[5]  The Superior Court judge ordered all claims to arbitration.  The arbitrator decided all claims in favor of the defendants, and Scott appealed on the grounds that the arbitration agreement was unenforceable. We agree that the arbitration agreement was not enforceable and reverse the decision of the judge compelling arbitration.  Scott did not have a durable power of attorney.  Nor was he acting as his mother’s guardian or conservator.  A health care proxy, as the Supreme Judicial Court has previously held, is insufficient to authorize the health care agent to sign an arbitration agreement.  There was no evidence or suggestion that Scott’s mother specifically authorized him to sign the arbitration agreement.  The agreement, by its express terms, was not a requirement of admission to the nursing home.  We also conclude that Scott did not sign the arbitration agreement in his individual capacity and […]

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Posted by Massachusetts Legal Resources - August 19, 2014 at 9:20 pm

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South End Home of the Week: 99 Waltham Street

Stop by for an open house on August 11 from 12-2 p.m. South End Patch News

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Posted by Massachusetts Legal Resources - August 11, 2013 at 10:39 am

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Can You Barter Your Way To A Renovated Home?

Neighbors have always shared things — from sugar and milk to ladders and wheelbarrows. But now time banks are helping neighbors share their talents in exchange for bigger services like repairs and renovations. South End Patch News

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Posted by Massachusetts Legal Resources - July 30, 2013 at 9:04 pm

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South End Home of the Week: 771 Tremont St.

Stop by for an open house on July 28 from 1-3 p.m. or July 29 from 5-7 p.m. South End Patch News

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Posted by Massachusetts Legal Resources - July 28, 2013 at 10:14 am

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Last Boston Marathon Bombing Victim Heads Home

On the 100th day since the April 15 attacks, Stoneham resident Marc Fucarile left Spaulding Rehabilitation Hospital for the next stage of his recovery. South End Patch News

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Posted by Massachusetts Legal Resources - July 24, 2013 at 9:45 pm

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South End Home of the Week: 37 Worcester Sq.

You can check out this house on July 21 from 1 p.m. to 2 p.m. South End Patch News

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Posted by Massachusetts Legal Resources - July 21, 2013 at 10:49 am

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Home Invasion on Fenwood Road

Boston Police responded to the report of a home invasion at 51 Fenwood Rd. in Roxbury, not far from the South End area, on Sunday evening. Shortly before 9:03 p.m., an individual forced their way into the residence, then fled from the scene, a BPD South End Patch News

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Posted by Massachusetts Legal Resources - July 16, 2013 at 7:04 am

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