Safety Insurance Company v. Chau, et al. (Lawyers Weekly No. 09-005-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2015-02554-BLS2 SAFETY INSURANCE COMPANY vs. LAURA CHAU & NAKOUZI ENTERPRISES, INC. d/b/a UNION AUTOMOTIVE MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff Safety Insurance Company (Safety) filed this action to determine its coverage obligations with respect to a motor vehicle accident which is the subject of separate litigation. The defendant Laura Chau was allegedly injured in that accident and in that separate lawsuit, seeks to recover against Nakouzi Enterprises, Inc. d/b/a Union Automotive (Nakouzi), which is Safety’s insured. The Complaint seeks a declaration both as to Safety’s duty to defend Nakouzi and its duty to indemnify. The matter is now before this Court on Safety’s Motion for Summary Judgment. This Court concludes that Safety does have a duty to defend, but that the obligation to indemnify cannot be decided at this juncture because of fact disputes as to what caused the accident. BACKGROUND The summary judgment record contains the following relevant facts. In June 2015, Chau filed a lawsuit against David Lam and Nakouzi in Plymouth Superior Court seeking to recover for injuries she suffered in an accident that occurred while she was driving Lam’s car. See Chau v. Lam et al., Civ. No. 2015-00589 (the Plymouth Action). The complaint filed in the 2 Plymouth Action alleges that, prior to the accident, Nakouzi had issued a Certificate of Inspection for the vehicle despite the fact that its tires had heavily worn treads that did not comply with the state’s safety requirements for tire tread depth. As a result of Nakouzi’s negligence, Chau mistakenly believed that Lam’s vehicle was safe to drive and that the accident occurred because the worn tire treads led her to lose control of the car and collide with oncoming traffic. The Plymouth Action is still pending. At the time of the accident, Nakouzi was the named insured on a Massachusetts garage insurance policy issued by Safety (the Policy). The Policy provided two types of liability coverage for injuries resulting from “garage operations” — specifically, a) coverage for injuries from garage operations involving the ownership, maintenance and use of covered “autos,” and b) coverage for injuries from garage operations other than the ownership, maintenance, and use of covered “autos.” The parties agree that Lam’s car was not a covered auto, so it is the second type of liability coverage that is relevant here. As to both types of liability coverage, Safety was required to pay all sums its insured was legally required to pay as damages for bodily injury or property damage provided that such injury or damage was “caused by an ‘accident’ and resulting from ‘garage operations.’” Garage Operations was defined to include “all […]
Boston’s New Public Safety Strategies for Summer
Expect to see more Boston police in the neighborhoods this summer as part of the city’s summer public safety plan. Increasing cop bike and walking beats is just one of many ways the city plans to ensure a safe summer. Using technology, increasing engagement with the community and offering opportunities to youths were some of the main points highlighted by Boston Mayor Thomas Menino on Thursday, in a press conference with city police, school and human services personnel. Along with increasing bike and walk beats, Boston Police’s current class of recruits will be deployed to target heavy crime areas after graduating in July. In addition, two new “Safe Street Teams” will be added in July in the Harvard Avenue area of District B-3 and the Newbury Street area of District D-4. Boston Police are also synching up 100 percent of all surveillance cameras with the city’s DVTEL, BRIC and emergency services systems, which will allow any camera within 1,000 feet of an incident to automatically turn in the direction of the incident, according to a press release. “I have directed my summer safety teams to do more this year. We will be more proactive, more visible and more available to the public than ever before,” Menino said in the press release. “We will not tolerate anyone trying to disrupt summer in Boston with violence.” Already Boston Police have made a huge dent in possible violence with this week’s Operation H that targeted drug distribution and other crime in Roxbury. As of Tuesday afternoon, 75 individuals were facing charges, and the Youth Violence Strike Force will continue to work in the area to stop gang activity. But Boston leaders aren’t waiting for people to come to them—they’re going to the people. Starting in June, Violence Intervention and Prevention teams are beginning a door-to-door campaign to let people know about summer programming for youths and residents. One such event is the Boston Centers for Youth and Families’ first Girls’ Night IN, an overnight event targeting 50 girls ages 13 to 15 to talk to them on topics of health, safety and empowerment. On Aug. 6, Boston will host its second annual National Night Out, with more than 1,000 Boston residents expected to attend across the city. There are many public safety watches and groups, organized in conjunction by police and residents. Neighborhood watch groups and police community service officers will conduct “flashlight walks” to bring residents out together in their neighborhoods in the evenings. Keeping people busy is a good way to stem violence, and the city is hosting movie nights in parks across the city, as well as sports tournaments and exercise and nutritional sessions. And many of Boston’s teens, approximately 10,000, […]
Marathon Bombing: What is a Public Safety Exception?
When a suspect has been arrested, they are informed they have the right to silence and an attorney under the constitution—these are the Miranda rights. U.S. Attorney Carmen Ortiz said Friday that Boston Marathon bombing suspect Dzhokhar Tsarnaev was not read his Miranda rights when taken into custody because of a public safety exception in cases of national security and acts of terrorism, but he has since had the Miranda rights read. At Tsarnaev’s bedside hearing, a federal magistrate read him the Miranda rights on Monday. See the full transcript of the bedside hearing on the New York Times website (the reading of Miranda rights begins on Page 4). The exception stems from a 1984 case, New York V. Quarles, in which police were apprehending a rape suspect. He was wearing an empty shoulder holster, which police believed meant there was a gun nearby. The arresting officer asked if there was a gun nearby, and the suspect nodded in the direction of the gun and answered. The question was later ruled admissable by the Supreme Court, according to the FBI. From a 2011 FBI Law Enforcement Bulletin: When police officers are confronted by a concern for public safety, Miranda warnings need not be provided prior to asking questions directed at neutralizing an imminent threat, and voluntary statements made in response to such narrowly tailored questions can be admitted at trial. Once the questions turn from those designed to resolve the concern for safety to questions designed solely to elicit incriminating statements, the questioning falls outside the scope of the exception and within the traditional rules of Miranda. The Public Safety Exception allows for limited questioning before Miranda rights and has been used in a couple of other recent notable cases, including the so-called “underwear bomber” in 2009 and the Times Square bomber in 2010, according to the Huffington Post. On Friday, the American Civil Liberties Union (ACLU) expressed concern over Tsarnaev’s arrest without a reading of the Miranda rights. According to the AP, via Huffington Post, ACLU Executive Director Anthony Romero said the Public Safety Exception cannot apply when there is no continued threat to public safety and is “not an open-ended exception” to the Miranda rule. South End Patch
Removed Tremont St. Trees Presented Public Safety Hazard, According to City
A big shock came to residents of the Tremont and W. Brookline area this week, when three trees marked for “maintenance” were completely removed. Resident Patrick Miller wrote in to South End Patch noting that the tree removal destroyed his property’s curb appeal and privacy. “My windows are directly above Gold Gallery looking out onto W. Brookline,” he said. “I now have no privacy, and the street looks horrible. They also destroyed our brick sidewalk in the process.” It wasn’t long before others began to share their own concerns. Reader Omar wrote that he was very disappointed – and borderline angry – to see the trees removed from the block. “Trees are a key component of West Brookline Street’s charm and beauty,” he wrote. “The fact that the removal came without warning adds insult to injury. The neighborhood should be more aware of this kind of activity and prevent it in the future.” However, the root of the issue actually dates back to 2011, according to the city of Boston, which has come through with an answer and specific information as to what lead to the tree’s removal through a Citizen’s Connect response from the Parks Department. Max Ford-Diamond of the Parks Dept. wrote in his response the three pear trees at 655-657 Tremont St on W. Brookline were removed due to the hazard that they posed to public safety. “The original case was created on June 10, 2011, which requested that the trees be pruned,” he wrote. “The site was inspected on June 30 by the Boston Parks Departments Inspector who is a Massachusetts Certified Arborist.” “At the time the three trees were inspected they were deemed unable to be pruned to the cities pruning specifications and in need of removal for several reasons: All three trees were leaning more then 25 degrees over the road; All three trees have had multiple emergencies where large leaders had broken off of them; The trunks of the trees have been hit numerous times by trucks and cars and have large wounds that have never healed and were starting to decay. The Boston Parks Department also does not plant this species of tree anymore due to there high risk of failure due to poor branch structure and weak branch attachment points. The Boston Parks Department has pictures of these defects that show why the trees needed to be removed. A new tree request will be made for this location to have the site inspected for new trees. The replanting process currently takes between 6 and 12 months. The contractor who removed the trees has been notified to go back to […]