Posts tagged "National"

U.S. Bank, National Association, v. Milan, et al. (Lawyers Weekly No. 11-149-17)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-1011                                       Appeals Court   U.S. BANK, NATIONAL ASSOCIATION, trustee,[1]  vs.  STEVEN L. MILAN & another.[2]     No. 16-P-1011.   Essex.     March 1, 2017. – December 4, 2017.   Present:  Green, Wolohojian, & Sullivan, JJ.     Mortgage, Foreclosure, Real estate.  Summary Process.  Real Property, Mortgage, Sale.  Notice, Foreclosure of mortgage.  Sale, Real estate.  Practice, Civil, Summary process, Retroactivity of judicial holding.  Retroactivity of Judicial Holding.       Summary process.  Complaint filed in the Northeast Division of the Housing Court Department on July 23, 2012.   The case was heard by David D. Kerman, J., on motions for summary judgment.     Michael R. Murphy (Michael R. Stanley also present) for the plaintiff. Carl D. Goodman for the defendants.     GREEN, J.  The plaintiff (U.S. Bank) appeals from a judgment of a Housing Court judge, dismissing its complaint for summary process.  The Housing Court judge based his order of dismissal on the failure of U.S. Bank’s notice of default to comply strictly with the requirements of paragraph 22 of the mortgage it foreclosed against the defendants, Steven and Karen Milan (Milans), incident to U.S. Bank’s acquisition of title to the property.  In so doing, the judge applied the holding of Pinti v. Emigrant Mort. Co., 472 Mass. 226, 241-242 (2015) (Pinti), to invalidate U.S. Bank’s claim of title.  We conclude that was error, and reverse. Background.  The Milans are the former owners and current occupants of residential property located at 56 Jasper Road in Saugus.  On May 16, 2005, incident to a loan refinance, the Milans granted to Mortgage Electronic Registration Systems, Inc. (MERS), a mortgage on the property to secure a note made to Saugus Federal Credit Union.[3]  In 2007, the Milans defaulted on the mortgage loan, and on June 18, 2007, U.S. Bank’s servicing agent (which had succeeded MERS as mortgagee by assignment) sent to the Milans the first of several notices of default.[4]  The Milans assert, and the Housing Court judge concluded, that the notices did not comply strictly with the requirements specified for such notices in paragraph 22 of the mortgage.[5]  Thereafter, U.S. Bank conducted a foreclosure auction, pursuant to the statutory power of sale contained in the mortgage, and (as U.S. Bank was the successful bidder at the auction) a foreclosure deed in favor of U.S. Bank was recorded on June 21, 2012.  The Milans […]

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Posted by Massachusetts Legal Resources - December 4, 2017 at 6:23 pm

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Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 09-017-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2017-0491 BLS 1 TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class representatives vs. NATIONAL AMUSEMENTS, INC. et al1 MEMORANDUM AND ORDER ON MOTIONS FOR RECONSIDERATION Both plaintiffs and defendants ask the court to reconsider its decision dated August 29, 2017 (“Decision”), allowing, in part, and denying, in part, defendants’ motion to dismiss Count III of the First Amended Complaint. Plaintiffs re-argue their position that workers at Showcase Cinemas are entitled to be compensated at one and half times their regular pay (‘premium pay”) when they work on Sundays. After review of the argument, plaintiffs’ motion to reconsider is DENIED for the reasons stated in the Decision. Defendants, referred to collectively in the Decision and here as “Showcase”, move to reconsider that portion of the Decision that denied complete dismissal of Count III. In the Decision, I held that application of G.L. c. 136, § 13 required that Showcase pay premium pay to workers for work performed on three holidays: New Year’s Day, Columbus Day and Veteran’s Day (the “Holidays”). This somewhat odd result was directed by the decision of the Appeals Court in Drive-O-Rama, Inc. v. Attorney General, 63 Mass. App. Ct. 769 (2005) concerning 1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone 1 retail establishments. Showcase now argues that its operation on the Holidays is governed by a different section of the General Laws that does not require premium pay. For the reasons stated below, I agree. Section 13 of c. 136 applies to a retail establishment that operates on the Holidays “under the exemption granted by this section.” Showcase now points out that movie theaters operate on the Holidays pursuant to another section of c. 136; i.e., § 14. Section 14 was enacted by the Legislature on the same day as § 13, and states that “[n]otwithstanding any provision of this chapter to the contrary” the activities of “sport, fair, exposition, play, entertainment or public diversion” may be conducted on any legal holiday. “[A]ny labor, business or work necessary or incidental thereto may be performed on any legal holiday . . . .” Section 14, unlike § 13, does not require premium pay for employees working on any legal holiday. As referenced in the Decision, a movie theater may be viewed as a retail establishment. At the same time, the operation of a movie theater is also a business providing “entertainment or public diversion” as described in § 14. That conclusion is consistent with the plain meaning of the words in § 14. Moreover, the conclusion is bolstered by the Legislature’s specific reference to “exhibition of motion pictures by a movie theater” in Clause 8A of […]

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Posted by Massachusetts Legal Resources - October 11, 2017 at 7:14 pm

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Smith-Berry, et al. v. National Amusements, Inc., et al. (Lawyers Weekly No. 12-123-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2017-0491 BLS 1 TREMAYNE SMITH-BERRY and JESSA DAPRATO, individually and as class representatives vs. NATIONAL AMUSEMENTS, INC. et al1 MEMORANDUM AND ORDER ON DEFENDANTS’ PARTIAL MOTION TO DISMISS This motion presents an issue of apparent first impression; i.e., whether a movie theater company must pay its hourly employees who work on Sunday and certain holidays one and onehalf times their regular pay. BACKGROUND Plaintiffs bring this action as a putative class action on behalf of hourly employees at Showcase Cinemas movie theaters. The named plaintiffs work as a wait staff employee and bartender, respectively. First Amended Complaint (“FAC”) ¶¶ 5, 6. Both plaintiffs provide food and beverage services to Showcase’s patrons. FAC ¶¶ 33, 35. The FAC alleges two counts (Counts I and II) of violation of Massachusetts law regarding the handling of service charges or tips. Count III of the FAC alleges violation of the Wage Act, G.L. c. 149, §§ 149, 150, for failure to pay plaintiffs for work on Sunday and holidays at the rate of one and one half times their regular hourly rate. This partial motion to dismiss concerns only Count III. 1 Cerco LLC, d/b/a Showcase Cinemas and Shari Redstone 1 The FAC asserts the following facts which, for purposes of this motion, I accept as true. Defendants, referred to collectively as “Showcase”, operate a chain of movie theaters at eleven locations in Massachusetts. The movie theaters are open for business on Sundays and holidays. Plaintiffs are employed by one or both of the corporate defendants to work in the movie theaters. Showcase regularly requires plaintiffs and other hourly employees to work on Sunday and holidays. Showcase does not pay hourly employees the premium of one and one half times their regular hourly rate (“premium pay”) for their work on Sunday and holidays. When the movie theaters are open for the business of exhibiting motion pictures, they sell food and beverages to patrons for consumption on the premises. FAC ¶ 38. The food items include fresh popped popcorn, chips, candy, ice cream novelties, confectionaries, fountain soft drinks and alcoholic beverages. Id. ANALYSIS A. Sunday Pay The resolution of the issue regarding pay for work on Sunday requires an analysis of the statutory scheme. G.L. c. 136 is commonly referred to as the Sunday closing or “Blue” laws. Zayre Corp. v. Attorney General, 372 Mass. 423, 424 (1977). “The general philosophy of the various enactments and versions of the Sunday law up to and including the present G.L. c. 136 is to begin with a general prohibition of all work, labor and amusements on Sunday and then to engraft on that general prohibition the exemptions […]

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Posted by Massachusetts Legal Resources - September 7, 2017 at 5:11 am

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Philadelphia Indemnity Insurance Company v. National Union Fire Insurance Company of Pittsburgh, PA (Lawyers Weekly No. 12-083-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2016-00045 BLS1 PHILADELPHIA INDEMNITY INSURANCE COMPANY vs. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Plaintiff Philadelphia Indemnity Insurance Company (PIIC) and defendant National Union Fire Insurance Company (National Union) each issued insurance policies to North Suffolk Mental Health Associated, Inc. (North Suffolk). PIIC issued a Commercial General Liability (CGL) policy; and National Union issued a Workers’ Compensation and General Liability (Workers’ Comp.) policy. In a case filed in the Middlesex Superior Court in 2011, captioned Estate of Stephanie Moulton v. Nicholas Puopolo, et al. (the Underlying Action), the plaintiff estate brought suit against eighteen directors of North Suffolk (the Director Defendants) asserting claims arising out of the work related death of Ms. Moulton, a North Suffolk employee. The Director Defendants tendered the claim to both PIIC and National Union. PIIC defended the claim (under a reservation of right) and National Union declined coverage. The Director Defendants’ motion to dismiss the Underlying Action was eventually allowed, after appeal to the Supreme Judicial Court (SJC). See Estate of Moulton v. Puopolo, 467 Mass. 478 (2014) (Moulton). In this action, PIIC has filed suit against National Union asserting claims for 2 declaratory judgment and equitable subordination and seeking to recover the cost of its successful defense of the Underlying Action. The case is now before the court on the parties’ cross-motions for summary judgment. For the reasons that follow, National Union’s motion is ALLOWED, and PIIC’s motion is DENIED. ADDITIONAL FACTS The following additional facts are undisputed. Ms. Moulton was an employee of North Suffolk, a charitable corporation that provides mental health and rehabilitation services. She was assaulted and killed by a patient while performing her job. As explained in Moulton, her estate (the Estate) filed the Underlying Action against the directors of North Suffolk and others. It alleged claims for willful, wanton, reckless, malicious and grossly negligent conduct and, also, as to the Director Defendants, breach of fiduciary duty. The complaint alleged that the Director Defendants “effectuated” policies and failed to “effectuate” other policies that caused Ms. Moulton’s death. Id. at 480. They “moved to dismiss the complaint chiefly on the grounds that, with respect to the wrongful death action, they are immune from suit, as Ms. Moulton’s employer, under the exclusive remedy provision, G.L.c. 152, § 24 of the Workers’ Compensation Act (act), and, with respect to the breach of fiduciary duty claim, they owed Moulton no such duty.” Id. The Superior Court denied the motion to dismiss; the director defendants sought interlocutory review under the doctrine of present execution; and the case was transferred to the SJC. As […]

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Posted by Massachusetts Legal Resources - July 3, 2017 at 10:06 pm

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George, et al. v. National Water Main Cleaning Company, et al. (Lawyers Weekly No. 10-110-17)

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-12191   ROBERT GEORGE & others[1]  vs.  NATIONAL WATER MAIN CLEANING COMPANY & others.[2]       Suffolk.     February 14, 2017. – June 26, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Supreme Judicial Court, Certification of questions of law.  Massachusetts Wage Act.  Labor, Wages, Failure to pay wages, Damages.  Damages, Interest.  Interest.  Judgment, Interest.  Practice, Civil, Interest, Judgment, Damages.       Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.     Adam J. Shafran (Jonathon D. Friedmann also present) for the plaintiffs. Richard L. Alfred (Dawn Reddy Solowey & Anne S. Bider also present) for the defendants. John Pagliaro & Martin J. Newhouse, for New England Legal Foundation, amicus curiae, submitted a brief. Annette Gonthier Kiely, Kathy Jo Cook, Thomas R. Murphy, & Timothy J. Wilton, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief.     GANTS, C.J.  Several employees of National Water Main Cleaning Company filed a class action suit against the company and its parent company, Carylon Corporation, in the Superior Court, alleging, among other claims, nonpayment of wages in violation of the Massachusetts Wage Act, G. L. c. 149, §§ 148, 150 (Wage Act).  After the case was removed to the United States District Court for the District of Massachusetts, the judge granted final approval of a class settlement agreement that resolved all outstanding issues except one question of law.  To resolve that question, the judge certified to this court the following question pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): “Is statutory interest pursuant to [G. L. c. 231, § 6B or 6C,] available under Massachusetts law when liquidated (treble) damages are awarded pursuant to [G. L. c. 149, § 150]?”   In answer to the question, we declare that, under Massachusetts law, statutory prejudgment interest pursuant to G. L. c. 231, § 6H, shall be added by the clerk of court to the amount of lost wages and other benefits awarded as damages pursuant to G. L. c. 149, § 150, but shall not be added to the additional amount of the award arising from the trebling of those damages as liquidated damages.[3] Interpretation of the certified question.  Before we answer the certified question, which the judge issued at the joint request of the parties, we must first ascertain its […]

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Posted by Massachusetts Legal Resources - June 26, 2017 at 2:48 pm

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New England Patriots Fans v. National Football League, et al. (Lawyers Weekly No. 12-060-17)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV03929-BLS2 ____________________ NEW ENGLAND PATRIOTS FANS v. NATIONAL FOOTBALL LEAGUE, ROGER GOODELL, and ROBERT KRAFT ____________________ MEMORANDUM AND ORDER DENYING MOTION SEEKING RECONSIDERATION OF THE ORDER DISMISSING PLAINTIFF’S APPEAL Final judgment dismissing this action was entered on February 27, 2017. Plaintiffs filed a notice of appeal on April 12, 2017. The Court allowed Defendants’ motions to dismiss the appeal as untimely because it was filed more than thirty days after the entry of judgment. See Mass. R. App. P. 4(a). In its prior ruling, the Court explained that Plaintiffs’ post-judgment motion for findings did not toll the deadline for filing a notice of appeal because that motion was not served within ten days of the entry of judgment. See Mass. R. Civ. P. 52(b). The Court has no power to extend this time limit. See Mass. R. Civ. P. 6(b). Plaintiffs seek reconsideration of the order dismissing their appeal. They argue that they are entitled to the benefit of the “mailbox rule” because the final judgment was mailed to their counsel. Plaintiffs contend that their Rule 52(b) post-judgment motion for findings was timely because the deadline for serving that motion was automatically extended by three days under Mass. R. Civ. P. 6(d). This argument is incorrect. Rule 6(d) only adds more time to deadlines that allow or require a party to do something “within a prescribed period after the service of a notice or other papers upon him.” But the ten-day deadline for serving post-judgment motions for findings does not start to run upon “service” of anything. Instead, such a motion must be served “not later than 10 days after entry of judgment.” Rule 52(b). The three-day grace period after mailing provided in Rule 6(b) therefore does not apply to Plaintiff’s deadline for filing post-judgment motions under Rule 52(b). See Commonwealth v. White, 429 Mass. 258, 261-262 (1999) (since period for filing notice of appeal starts to run upon entry of judgment, not upon service, mailbox rule in Mass. R. App. P. 14(c) does not apply); Goldstein v. Barron, 382 Mass. 181, 182- – 2 – 185 (1980) (since period for posting medical practice bond starts to run upon entry of tribunal’s finding, not upon service, mailbox rule in Mass. R. Civ. P. 6(d) does not apply); Flint v. Howard, 464 F.2d 1084, 1087 (1st Cir. 1972) (per curiam) (since deadline for filing post-judgment motion for findings under Fed. R. Civ. P. 52(b) “begins to run from ‘entry of judgment’ rather than from receipt of notice,” mailbox rule in Fed. R. Civ. P. 6 does not apply); see also Smaland Beach Ass’n, Inc. v. Genova, 461 Mass. 214, 228 (2012) (judicial construction of […]

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Posted by Massachusetts Legal Resources - June 1, 2017 at 3:00 am

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Federal National Mortgage Association v. Gordon, et al. (Lawyers Weekly No. 11-060-17)

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   15-P-441                                        Appeals Court   FEDERAL NATIONAL MORTGAGE ASSOCIATION  vs.  HEATHER GORDON & another.[1]     No. 15-P-441.   Suffolk.     March 8, 2016. – May 17, 2017.   Present:  Hanlon, Sullivan, & Massing, JJ.     Trespass.  Real Property, Trespass, Mortgage, Lease.  Mortgage, Foreclosure.  Landlord and Tenant, Control of premises.  Housing Court, Jurisdiction.  Jurisdiction, Housing Court.  Summary Process.  Practice, Civil, Summary judgment, Summary process.       Civil action commenced in the City of Boston Division of the Housing Court Department on June 24, 2013.   The case was heard by MaryLou Muirhead, J., on a motion for summary judgment.     Thomas B. Vawter for the defendants. Danielle C. Gaudreau (Thomas J. Santolucito also present) for the plaintiff.     HANLON, J.  The defendants in this trespass action, Heather Gordon and her granddaughter, Kaire Holman, challenge the validity of a judgment for possession entered by the Housing Court in favor of the plaintiff, the Federal National Mortgage Association (Fannie Mae), on its motion for summary judgment.  Fannie Mae claims ownership, through foreclosure, of the residential condominium at issue, known as Unit 2 at 7 Valentine Street, in the Roxbury section of Boston (the property).  Gordon claims that she and Holman occupy the property pursuant to a lease from Carolyn Grant, who held record title to the condominium as a joint tenant with Gilbert R. Emery prior to the foreclosure.  The lease on which Gordon and Holman rely, however, is dated after both (i) the date of the foreclosure, and (ii) the date on which Fannie Mae began a summary process action against Emery, Grant, and another occupant[2] to obtain possession of the property. When Fannie Mae learned that Gordon and others had moved into the property as ostensible lessees, Fannie Mae brought a new action (separate from the summary process case) for common law trespass, which is the case now before us.[3] After review, we reverse the final judgment, holding as follows:  (i) the Housing Court has jurisdiction pursuant to G. L. c. 185C, § 3, to hear trespass claims; (ii) the teaching of Attorney Gen. v. Dime Sav. Bank of N.Y., FSB, 413 Mass. 284, 288 (1992) (Dime Savings), with respect to whether G. L. c. 184, § 18, bars trespass actions by postforeclosure owners against tenants with actual possession, applies with equal force in the circumstances of this case; and (iii) the summary judgment record does […]

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Posted by Massachusetts Legal Resources - May 17, 2017 at 3:58 pm

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Federal National Mortgage Association v. Marroquin, et al. (Lawyers Weekly No. 10-074-17)

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-12139   FEDERAL NATIONAL MORTGAGE ASSOCIATION  vs.  ELVITRIA M. MARROQUIN & others.[1]       Essex.     January 9, 2017. – May 11, 2017.   Present:  Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.     Mortgage, Foreclosure, Real estate.  Real Property, Mortgage, Sale.  Notice, Foreclosure of mortgage.       Summary process.  Complaint filed in the Northeast Division of the Housing Court Department on June 18, 2012.   The case was heard by David D. Kerman, J., on motions for summary judgment.   The Supreme Judicial Court granted an application for direct appellate review.     Cody J. Cocanig for the plaintiff. Dayne Lee (Eloise P. Lawrence also present) for Elvitria M. Marroquin. Joshua T. Gutierrez, Daniel D. Bahls, & Andrew S. Webman, for Lewis R. Fleischner & another, amici curiae, submitted a brief.     GANTS, C.J.  In Pinti v. Emigrant Mtge. Co., 472 Mass. 226, 227, 232 (2015), we held that a foreclosure by statutory power of sale pursuant to G. L. c. 183, § 21, and G. L. c. 244, §§ 11-17C, is invalid unless the notice of default strictly complies with paragraph 22 of the standard mortgage, which informs the mortgagor of, among other things, the action required to cure the default, and the right of the mortgagor to bring a court action to challenge the existence of a default or to present any defense to acceleration and foreclosure.  We applied this holding to the parties in Pinti but concluded that our decision “should be given prospective effect only.”  Id. at 243.  We therefore declared that the decision “will apply to mortgage foreclosure sales of properties that are the subject of a mortgage containing paragraph 22 or its equivalent and for which the notice of default required by paragraph 22 is sent after the date of this opinion,” which was issued on July 17, 2015.  Id.  We did not reach the question whether our holding should be applied to any case pending in the trial court or on appeal.  Id. at 243 n.25.  We reach that question here, and conclude that the Pinti decision applies in any case where the issue was timely and fairly asserted in the trial court or on appeal before July 17, 2015.  Because we conclude that the defendants timely and fairly raised this issue in the Housing Court before that date, and because the notice of default did not strictly […]

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Posted by Massachusetts Legal Resources - May 12, 2017 at 12:00 am

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Anderson, et al. v. National Union Fire Insurance Company of Pittsburgh PA, et al. (Lawyers Weekly No. 10-022-17)

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-12108   ODIN ANDERSON & others[1]  vs.  NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA & others.[2]       Middlesex.     October 6, 2016. – February 2, 2017.     Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Lowy, Budd, JJ.     Consumer Protection Act, Insurance, Unfair or deceptive act, Offer of settlement, Damages.  Insurance, Settlement of claim.  Damages, Consumer protection case, Interest, Punitive.  Interest.  Judgment, Interest.  Practice, Civil, Judgment, Damages, Interest.       Civil action commenced in the Superior Court Department on March 13, 2003.   The case was heard by Brian A. Davis, J., and motions to alter or amend the judgment were also heard by him.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Kathleen M. Sullivan for National Union Fire Insurance Company of Pittsburgh PA. Leonard H. Kesten (Richard E. Brody also present) for the plaintiffs.     GAZIANO, J.  In this appeal, we consider the proper measure of punitive damages to be assessed against defendants who engage in unfair or deceptive insurance settlement practices in violation of G. L. c. 176D, § 3, and G. L. c. 93A, § 9 (3).  The plaintiffs — Odin Anderson, his wife, and his daughter — filed a personal injury action in the Superior Court for serious injuries Odin[3] suffered after being struck by a bus owned by Partners Healthcare Systems, Inc. (Partners), that was being driven by one of its employees.  The plaintiffs filed a separate action, under G. L. c. 176D, and G. L. c. 93A, against Partner’s insurers and claims representatives; proceedings in that action were stayed pending resolution of the underlying tort claims.  After a trial, a Superior Court jury awarded Anderson $ 2,961,000[4] in damages in the personal injury action, and awarded his wife and daughter $ 110,000 each.  At a subsequent, jury-waived trial, a different Superior Court judge found that the insurers and claims representatives violated G. L. c. 93A and G. L. c. 176D by their “egregious,” “deliberate or callously indifferent” actions, “designed to conceal the truth, improperly skew the legal system and deprive the Andersons of fair compensation for their injuries for almost a decade.”  Based on these findings, the judge concluded that the insurers’ and claims representatives’ “misconduct warrants the maximum available sanction . . . , both as punishment for what transpired and as a deterrent to similar conduct in the future.”  He awarded the plaintiffs treble […]

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Posted by Massachusetts Legal Resources - February 2, 2017 at 6:14 pm

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Everest National Insurance Company v. Berkeley Place Restaurant Limited Partnership (Lawyers Weekly No. 12-155-16)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2011-1470 EVEREST NATIONAL INSURANCE COMPANY vs. BERKELEY PLACE RESTAURANT LIMITED PARTNERSHIP ORDER ON POST-VERDICT ISSUES AND FOR JUDGMENT This action was commenced by Everest National Insurance Company as subrogee of three persons: Timothy J. Barletta (“Timothy”), Barletta Engineering Corporation (“Barletta Corp.”) and Osprey Equipment Corporation (“Osprey”). The action is one for contribution under G.L. c. 231B, § 1(d ). Everest, as insurer for all three persons, paid a settlement amount to a state trooper who was seriously injured in a car accident when he was struck from behind by a car driven by Timothy. Everest asserted in this case that defendant, Berkeley Place Restaurant Limited Partnership, d/b/a Grill 23 (“Grill 23″), is jointly liable to the state trooper as a result of negligently serving Timothy alcohol in the hours before the accident. Following a jury verdict in favor of Everest that determined that Grill 23 is liable as a joint tortfeasor and that the settlement reached by Everest with the state trooper and his wife was reasonable, the parties address two issues: (1) how many tortfeasors bear responsibility for a pro rata share of the settlement, and (2) what amount is Everest entitled to receive as contribution from Grill 23? Both questions involve application of the contribution statute. For the first question, the court must determine whether “if equity requires, the collective liability of some as a group shall constitute a single share.” G.L. 1 c. 231B, § 2(b). The second question is whether, under G.L. c. 231B, §1, Everest may obtain contribution for more than a pro rata share of what it paid in settlement? FACTS On Saturday night, September 27, 2008, Timothy attended a private birthday party at the Grill 23 restaurant in Boston. The person being celebrated was Timothy’s sister-in-law, Laura Barletta, and the person throwing the party was her husband, Timothy’s brother, Vincent Barletta. Approximately 40 people attended the party and the guests were, generally, friends and family of Laura Barletta. The party was held in a function room, separate from the rest of the restaurant. There was evidence before the jury sufficient to show that at the party Timothy was served alcohol after it had been recognized by the Grill 23 manager on duty that Timothy was visibly intoxicated. Timothy left the party with his girlfriend, got into a motor vehicle, and drove west on the Mass Pike. Several minutes later, Timothy, while operating under the influence of alcohol, smashed into the rear of a state police vehicle parked on the edge of the Pike to assist a stopped car. State Trooper Christopher Martin was inside the state police vehicle. As a result of the […]

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Posted by Massachusetts Legal Resources - December 6, 2016 at 12:36 am

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