Doe v. American Guaranty and Liability Co., et al. (Lawyers Weekly No. 11-018-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 16-P-183 Appeals Court JOHN DOE vs. AMERICAN GUARANTY AND LIABILITY CO. & others.[1] No. 16-P-183. Essex. November 8, 2016. – March 1, 2017. Present: Wolohojian, Milkey, & Shin, JJ. Attorney at Law, Malpractice, Communication with represented party. Evidence, Legal malpractice, Privileged communication. Privileged Communication. Waiver. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on March 17, 2015. Motions to dismiss were heard by Robert A. Cornetta, J. Michael A. Tucker for the plaintiff. William T. Bogaert for George Rockas. Marissa I. Delinks for H. Ernest Stone. Jonathan Small for American Guaranty and Liability Co. MILKEY, J. Attorney H. Ernest Stone represented John Doe in a criminal case and a related tort action. In the course of that representation, Doe relayed certain information to Stone that all parties indisputably agree was subject to attorney-client privilege. After the tort action ended in a default judgment against Doe, Doe brought a legal malpractice action against Stone based on his handling of the tort case. The malpractice action concluded via a settlement agreement. Doe next filed a complaint in the Superior Court alleging that in defending the malpractice action, Stone misused the privileged information he received during his earlier representation of Doe. Doe named as defendants Stone; George Rockas, the attorney who represented Stone in the malpractice action; and American Guaranty and Liability Co. (American), Stone’s legal malpractice insurer. The defendants filed motions to dismiss, raising a wide variety of defenses.[2] See Mass.R.Civ.P. 12(b), 365 Mass. 754 (1974). The judge allowed the motions and judgment entered dismissing the complaint. Doe appeals. Because we agree with the motion judge that in bringing the malpractice action, Doe waived the privilege that otherwise applied to the information at issue, we affirm. Resolving the case on that ground, we have no occasion to reach the defendants’ other defenses. Background. As noted, this appeal involves four related actions. We begin by summarizing those actions in the order they were brought, reserving certain details for later discussion. Our factual recitation is drawn from the allegations set forth in the amended complaint in the action before us, supplemented by background facts drawn from the attachments to that complaint and documents that recount the course of the earlier proceedings. See Shaer v. Brandeis Univ., […]
Callahan v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-122-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-475 Appeals Court ELEANOR CALLAHAN vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1] No. 15-P-475. Suffolk. February 1, 2016. – September 12, 2016. Present: Cohen, Carhart, & Kinder, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide. Registrar of Motor Vehicles, Revocation of license to operate. License. Administrative Law, Decision. Civil actions commenced in the Superior Court Department on March 31, 2011, and January 21, 2014. After consolidation, the case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion to dismiss was also heard by him. Martin P. Desmery for the plaintiff. Robert L. Quinan, Jr., Assistant Attorney General, for the defendants. COHEN, J. The plaintiff sought judicial review of a decision of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) denying her application for reinstatement of her driver’s license. On cross motions for judgment on the pleadings, a judge of the Superior Court ruled in favor of the board, and the plaintiff appealed to this court. The plaintiff argues that the board erred in determining that her 1989 conviction of “driving while ability is impaired,” in violation of the New York State Vehicle Traffic Law (VTL), is “substantially similar” to a Massachusetts conviction of operating a motor vehicle while under the influence of intoxicating liquor (OUI), thereby subjecting her to lifetime revocation of her driver’s license as a result of her subsequent conviction of motor vehicle homicide while OUI. The plaintiff also argues that the board lacked the authority to reconsider an earlier decision granting her a restricted, hardship license. For the reasons that follow, we affirm. Background. The relevant facts are drawn from the administrative record and are not disputed. On October 30, 1988, the plaintiff was charged in Lewisboro, New York, with driving while intoxicated per se, pursuant to VTL § 1192.2; driving while intoxicated, pursuant to VTL § 1192.3; and driving left of the pavement marking, pursuant to VTL § 1126a. These charges were resolved on January 23, 1989, when the plaintiff pleaded guilty to the lesser charge of “driving while ability is […]
Burke v. Board of Appeal on Motor Vehicle Liability Policies and Bonds, et al. (Lawyers Weekly No. 11-121-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-117 Appeals Court JOSEPH L. BURKE vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS & another.[1] No. 15-P-117. Suffolk. March 16, 2016. – September 12, 2016. Present: Cohen, Katzmann, & Blake, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence, License to operate, Homicide. License. Registrar of Motor Vehicles, Revocation of license to operate. Administrative Law, Agency’s interpretation of statute. Statute, Construction, Retroactive application. Civil action commenced in the Superior Court Department on December 9, 2013. The case was heard by Edward P. Leibensperger, J., on a motion for judgment on the pleadings, and a motion for reconsideration was considered by him. Brian K. Wells for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants. KATZMANN, J. In this appeal, we are again asked to consider whether a lifetime suspension is appropriate for a driver who, after having committed an operating under the influence (OUI) offense, causes a fatality in the course of a second OUI offense. Plaintiff Joseph Burke appeals from a judgment of the Superior Court upholding a decision of the defendant Board of Appeal on Motor Vehicle Liability Policies and Bonds (Board) that affirmed the denial by the Registrar of Motor Vehicles (registrar) of Burke’s application for reinstatement of his driver’s license pursuant to G. L. c. 90, § 24(1)(c)(4), as amended through St. 1982, c. 373, § 4, as well as the registrar’s permanent revocation of that license, on the basis that Burke’s second drunk driving offense resulted in a fatality.[2] We affirm. Background. On February 27, 2000, Burke, was arrested for OUI after a motor vehicle accident in Rehoboth. On May 1, 2000, Burke admitted to sufficient facts for a finding of guilty of OUI in connection with the February incident but received the benefit of a continuance without a finding of guilty (CWOF) for one year until May 1, 2001, during which time he was placed on probation. The terms of his probation included a 180-day loss of license and an assignment to an alcohol education program. On August 6, 2000, while still on probation with his license suspended as a result of the incident the previous February, Burke drove a […]
Winbrook Communications Services, Inc., et al. v. United States Liability Insurance Company (Lawyers Weekly No. 11-068-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 15-P-401 Appeals Court WINBROOK COMMUNICATION SERVICES, INC., & others[1] vs. UNITED STATES LIABILITY INSURANCE COMPANY. No. 15-P-401. Suffolk. March 8, 2016. – June 14, 2016. Present: Hanlon, Sullivan, & Massing, JJ. Practice, Civil, Default, Summary judgment. Insurance, Coverage, Insurer’s obligation to defend, Construction of policy. Contract, Insurance, Performance and breach. Damages, Negligent misrepresentation. Civil action commenced in the Superior Court Department on December 20, 2011. The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion for reconsideration and a second motion for summary judgment were heard by Bonnie H. MacLeod, J. Eric F. Eisenberg for the plaintiffs. John B. DiSciullo for the defendant. SULLIVAN, J. In this insurance coverage dispute we consider whether the factual record on cross motions for summary judgment is adequate to permit either party to establish entitlement to judgment as matter of law. Plaintiff Winbrook Communication Services, Inc. (Winbrook[2]), appeals from a summary judgment declaring that the defendant, United States Liability Insurance Company (USLIC), had no obligation under a directors and officers liability policy to pay a judgment obtained by Winbrook against USLIC’s insureds, DeSales Group, LLC (DSG), and William York (collectively, DSG). We conclude that it was error to grant USLIC’s motion for summary judgment because there remain genuine issues of material fact as to the applicability of the policy’s personal profit exclusion. More precisely, there is a genuine dispute of material fact whether DSG received any profit, benefit, remuneration, or advantage to which DSG was not legally entitled. Accordingly, we vacate and remand for further proceedings. Background. The procedural history of the litigation is both material and undisputed. Winbrook filed suit against DSG and York on August 24, 2010, alleging that York had made a series of negligent misrepresentations concerning DSG the entity’s financial condition that induced Winbrook to continue to work on the development of a children’s storybook series and associated promotional items. The series never went to market and Winbrook sued, seeking compensation for work performed. DSG gave notice to USLIC of Winbrook’s claims in advance of suit. USLIC replied that the policy would not cover the claims. After suit was filed, Winbrook notified USLIC of the suit and of a pending motion for entry of default. DSG reportedly told USLIC that it did not intend to […]
Tirado v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (and two companion cases) (Lawyers Weekly No. 10-130-15)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11818 ALFREDO TIRADO vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS (and two consolidated cases[1]). Norfolk. Worcester. Suffolk. May 5, 2015. – July 28, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Motor Vehicle, License to operate. License. Registrar of Motor Vehicles, Revocation of license to operate. Carrier, License. Practice, Criminal, Conviction, Admission to sufficient facts to warrant finding, Continuance without a finding. Civil action commenced in the Superior Court Department on January 3, 2013. The case was heard by Kenneth J. Fishman, J., on a motion for judgment on the pleadings. Civil action commenced in the Superior Court Department on February 28, 2013. The case was heard by Robert B. Gordon, J., on a motion for judgment on the pleadings. Civil action commenced in the Superior Court Department on March 28, 2013. The case was heard by Judith Fabricant, J., on a motion for judgment on the pleadings. After consolidation of the cases in the Appeals Court, the Supreme Judicial Court granted an application for direct appellate review. David R. Marks, Assistant Attorney General, for the defendants. Dana Alan Curhan for Scott Channing. Ryan E. Alekman, for Alfredo Tirado, was present but did not argue. Cornelius J. Madera, III, for John J. Kelly, was present but did not argue. William A. Quade, for United States Department of Transportation Federal Motor Carrier Safety Administration, amicus curiae, submitted a brief. SPINA, J. In these consolidated appeals, we are asked to determine if a defendant’s admission to sufficient facts to warrant a finding of guilty and a judge’s continuance of the case without a finding (CWOF) constitute a “conviction” as that term is defined in G. L. c. 90F, § 1,[2] governing the licensure of commercial drivers. Judges in the Superior Court determined that it did not and vacated the decisions of the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board) upholding the suspension of the commercial drivers’ licenses (CDLs) at issue by the registrar of motor vehicles (registrar). The board and the registrar appealed. The Appeals Court consolidated the three appeals, and we granted the parties’ joint application for direct appellate review. As we explain, we […]
Scheffler v. Board of Appeal on Motor Vehicle Liability Policies and Bonds (Lawyers Weekly No. 11-113-13)
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 12‑P‑1616 Appeals Court THOMAS SCHEFFLER vs. BOARD OF APPEAL ON MOTOR VEHICLE LIABILITY POLICIES AND BONDS. No. 12‑P‑1616. September 16, 2013. Board of Appeal on Motor Vehicle Liability Policies and Bonds. Registrar of Motor Vehicles. Motor Vehicle, Board of Appeal on Motor Vehicle Liability Policies and Bonds, Operating under the influence. The plaintiff, Thomas Scheffler, appeals from a decision by a judge of the Superior Court allowing the motion of the defendant, the Board of Appeal on Motor Vehicle Liability Policies and Bonds (board), for judgment on the pleadings. The board’s decision affirmed the Registrar of Motor Vehicles’ (registrar) determination that the plaintiff’s assignment, in Connecticut, to a pretrial alcohol education program following his arrest in that State on what amounts to operating under the influence of intoxicating liquor (OUI) was a “like offense” within the meaning of G. L. c. 90, § 24, and that the Connecticut offense should be added to the plaintiff’s driving history.[1] 1. Background. On April 24, 2009, the plaintiff was arrested and charged with operating under the influence of liquor, in violation of Conn. Gen. Stat. § 14-227a (2013).[2] Following the plaintiff’s successful completion of a pretrial alcohol education diversion program, see Conn. Gen. Stat. § 54-56g (2013), the Connecticut charge was dismissed. However, Connecticut suspended the plaintiff’s license for six months as a result of his refusal to comply with a breathalyzer test. On June 18, 2009, the plaintiff received notification from the registrar that his license would be suspended, beginning July 18, 2009, for one year based on the Connecticut OUI charge. Later, the registrar learned that the plaintiff’s license was suspended in Connecticut for the breathalyzer refusal and not OUI. However, the plaintiff’s Massachusetts driving record reflects the Connecticut incident for both the breathalyzer refusal and the OUI dismissal, as well as his successful completion of the alcohol education program. The plaintiff appealed to the board, and on December 28, 2010, the board upheld the registrar’s decision to add the Connecticut incident to the plaintiff’s driving history. A Superior Court judge affirmed the board’s decision, concluding that the registrar’s actions were proper. 2. Discussion. Our review does not “extend to examining the weight of the evidence to determine whether the Superior Court’s decision — either upon its own findings of […]