Committee for Public Counsel Services, et al. v. Attorney General of Massachusetts, et al. (Lawyers Weekly No. 10-051-18)
SUFFOLK, ss. COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY No. SJ-2017-347 COMMITTEE FOR PUBLIC COUNSEL SERVICES, HAMPDEN COUNTY LAWYERS FOR JUSTICE, INC., HERSCHELLE REAVES, and NICOLE WESTCOTT vs. ATTORNEY GENERAL of MASSACHUSETTS, DISTRICT ATTORNEY for BERKSHIRE COUNTY, DISTRICT ATTORNEY for BRISTOL COUNTY, DISTRICT ATTORNEY for the CAPE and ISLANDS, DISTRICT ATTORNEY for ESSEX COUNTY, DISTRICT ATTORNEY for HAMPDEN COUNTY, DISTRICT ATTORNEY for MIDDLESEX COUNTY, DISTRICT ATTORNEY for NORFOLK COUNTY, DISTRICT ATTORNEY for the NORTHWESTERN DISTRICT, DISTRICT ATTORNEY for PLYMOUTH COUNTY, DISTRICT ATTORNEY for SUFFOLK COUNTY, and DISTRICT ATTORNEY for WORCESTER COUNTY DECLARATORY JUDGMENT This matter came before the court, Gaziano, J., on a petition pursuant to G L. c. 211, § 3, seeking relief for defendants affected by the misconduct of state chemist Sonja Farak. As an initial matter, the respondents — the Attorney General and the offices of the Massachusetts District Attorneys — have agreed to vacate certain convictions obtained using drug certificates signed by Sonja Farak. The respondents have filed with the court, and served on the petitioners, formatted interim lists identifying the defendants and their convictions, delinquency or youthful offender adjudications, or other adverse dispositions that the respondents agree should be vacated and dismissed with prejudice. The convictions, adjudications, or other dispositions of those cases are addressed in this orcler. Final lists are to be provided by the respondents and filed with this court no later than April 30, 2018. Those lists may result in additional dismissals. Accordingly, it is ORDERED that the convictions of drug offenses under G. L. 94C that have been so identified by the respondents in the interim lists filed with this court on or before March 30,2018, shall be and are hereby VACATED AND DISMISSED WITH PREJUDICE, and any outstanding warrants associated with those convictions are recalled. The clerk shall provide copies of the formatted lists to the Judicial Information Services Department of the trial comi fmihwith in order to effectuate the dismissals. Entered: April 5, 2018 ~ Comi (Gaz.·ia./n.o, J.), fiJ1{y- , ‘\ (‘ – . f;} – /8 r. ;/ . I !f~{A /1 2~U lriaura S. Doy~~re~J I /~ ‘4 Full-text Opinions
Silva v. Todisco Services, Inc. (Lawyers Weekly No. 09-027-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR CLASS CERTIFICATION Todisco Services, Inc., towed Christopher Silva’s motor vehicle without his consent from a private parking lot. This was a “trespass tow,” made at the request of the property owner or manager pursuant to G.L. c. 266, § 120D. Silva alleges that the mileage charge and fuel surcharge imposed by Todisco were illegal because the invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a Department of Public Utilities (“DPU”) regulation that establishes maximum rates for involuntary tows. Silva asserts claims for violation of G.L. c. 93A, declaratory relief, negligent misrepresentation, intentional fraud, and unjust enrichment. Silva has moved to certify a class of plaintiffs whose passenger vehicles were towed without their consent by Todisco, either as a trespass tow or as a “police tow” made at the request of a local police department, and who were assessed similar surcharges without being provided information required by the DPU regulation. Todisco asserts that this action is moot because Todisco tendered payment of the full treble damages Silva seeks for himself under G.L. c. 93A. In the alternative Todisco urges the Court either to deny class certification completely or to certify a narrower class consisting only of people subjected to trespass tows. The Court concludes that Todisco’s attempt to “pick off” the named plaintiff did not moot Silva’s individual claims or the class action. It will allow the class certification motion in part and, in the exercise of its discretion, will certify a class of “trespass tow” plaintiffs for the purposes of the claims asserted under c. 93A and for declaratory relief. But it will deny the motion to the extent that Silva seeks to include “police tow” plaintiffs in the class, and to the extent that he seeks to certify a class with respect to the misrepresentation, fraud, and unjust enrichment claims. – 2 – 1. Effect of Tender to Named Plaintiff. Todisco argues that Silva’s individual claims are moot, and that therefore class certification is inappropriate,1 because Todisco has already tendered the maximum amount of compensation that Silva himself could possibly recover in this action. Silva (or his son acting on his behalf) paid Todisco $ 169.00 to regain his vehicle after Todisco had towed it. In May 2017, almost 20 months after Silva filed this suit, Todisco sent Silva a check for three times that amount ($ 507.00). Todisco said in its cover letter that it tendered this payment “without any conditions and/or restrictions.” Silva responded by saying […]
Anesthesia Associates of Massachusetts, PC v. Plexus Anesthesia Services of Massachusetts, PC (Lawyers Weekly No. 09-016-18)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1884CV00375-BLS2 ____________________ ANAESTHESIA ASSOCIATES OF MASSACHUSETTS, PC v. PLEXUS ANESTHESIA SERVICES OF MASSACHUSETTS, PC ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Anaesthesia Associates of Massachusetts, PC (“AAM”) claims that defendant Plexus Anesthesia Services of Massachusetts, PC (“PASM”) owes it at least $ 2.0 million for past anesthesia services. AAM asks the Court to enter a preliminary injunction that would PASM from transferring or encumbering any assets, or from making any payments of any funds except for paying wages to its employees, paying its attorneys, or paying rent, utilities, and taxes. AAM asserts that it will suffer irreparable harm without the requested injunction because PASM has been making and would continue to make preferential payments to entities other than AAM, thereby preventing from receiving money it is still owed for past services rendered. “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To the contrary, “the significant remedy of a preliminary injunction should not be granted unless the plaintiffs had made a clear showing of entitlement thereto.” Student No. 9 v. Board of Educ., 440 Mass. 752, 762 (2004). “Trial judges have broad discretion to grant or deny injunctive relief.” Lightlab Imaging, Inc. v. Axsun Technologies, Inc., 469 Mass. 181, 194 (2014). The Court will DENY this motion for a preliminary injunction for two reasons: AAM has not met its burden of proving irreparable harm, and the broad relief it seeks is not permitted without a judgment under Massachusetts law.1 1 At the close of the oral argument, the Court stated that it was also persuaded that granting the preliminary injunction sought by AAM would be against the public interest because it would materially interfere with PASM’s ability to provide anesthesiology services to its hospital clients. However, the Massachusetts Appeals Court has held that it is reversible error for a trial court to consider harm to the public interest as a factor in granting or denying a preliminary injunction in a case like this – 2 – 1. Failure to Prove Irreparable Harm. As the moving party, AAM has the “burden of showing it would suffer an irreparable harm absent an injunction.” GTE Products Corp. v. Stewart, 414 Mass. 721, 726 (1993). AAM asserts that it will suffer irreparable harm without the proposed preliminary injunction because PASM has been making preferential payments to another entity. The sole evidence supporting that assertion is a statement made “upon information and belief” by AAM’s chief operating officer. But assertions in an affidavit or verified complaint made on “information and belief” that are not supported by any other evidence […]
Categories: News Tags: 0901618, Anesthesia, Associates, Lawyers, massachusetts, Plexus, Services, Weekly
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 2 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 […]
Juliand v. Stanley Services, Inc. (Lawyers Weekly No. 09-010-18)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-01570-BLS2 CHARLES JULIAND, on behalf of himself And all others similarly situated, Plaintiff vs. STANLEY SERVICES, INC., Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS In this putative class action, plaintiff alleges that the defendant Stanley Services Inc., (Stanley) unlawfully assesses a fuel surcharge on the motor vehicles that it tows. The Amended Complaint contains multiple counts, including a claim under G.L.c. 93A. Stanley now moves to dismiss on the grounds that the case is moot in light of Stanley’s proffer of an amount to the individual plaintiff that was more than enough to cover any out-of pocket loss to him. More generally, Stanley argues that the Complaint fails to state a claim upon which relief may be granted. This Court concludes that the Motion must be DENIED. Briefly summarized, the Complaint states the following. On December 1, 2016 and then again on March 24, 2017, Stanley removed plaintiff Charles Juliand’s car from a street in Jamaica Plain, Massachusetts and towed the car to Stanley’s Jamaica Plain facility. On both occasions, Stanley assessed a fuel charge for the tow — $ 1.80 on December 1 and $ 2.25 on March 24. Massachusetts regulations permits a fuel charge only where the tow in question exceeds five miles and then only if certain information is provided on the tow slip. These tows did not exceed five miles and the tow slips did not provide the requisite information. 2 The Complaint alleges that Stanley has engaged in a practice of assessing these unlawful charges for years; it seeks relief on behalf of Juliand individually as well as others similarly situated. In addition to seeking certification of the class, the Complaint seeks damages as well as injunctive and declaratory relief. On May 19, 2017, two days before this suit was instituted, plaintiff’s counsel sent a Demand Letter to Stanley pursuant to G.L .c. 93A. Plaintiff amended the Complaint on July 19, 2017 to include a 93A count. Defense counsel made a formal response to plaintiff’s Demand Letter by letter dated June 21, 2017 (the Response). Its contents are relevant to the issues before the Court. It begins by stating that it is being “provided in the interest of settlement only, and subject to a full reservation of Stanley Service’s rights.” It goes on at some length to outline why the individual and class claims are legally and factually defective. To the extent that there were any omissions of information regarding the fuel surcharge, the Response says that they were the result of “individual oversight” and do not reflect a general policy. On a more conciliatory note, the Response says that […]
JRM Hauling & Recycling Services, Inc. v. The Newark Group, Inc. (Lawyers Weekly No. 09-056-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2015-3790 BLS 1 JRM HAULING & RECYCLING SERVICES, INC. vs. THE NEWARK GROUP, INC. FINDINGS OF FACT AND RULINGS OF LAW AFTER TRIAL This contract dispute was tried before me, jury waived, from October 23 to 27, 2017. The dispute arises out of a contract between plaintiff, JRM Hauling & Recycling Services, Inc. (“JRM”), and defendant, The Newark Group, Inc. (“Newark”), wherein Newark agreed to purchase and JRM agreed to sell “all secondary fiber produced by [JRM] at” JRM’s location in Malden, Massachusetts (the “Agreement”). JRM claims that Newark wrongfully terminated the Agreement in January 2015. By its terms, the Agreement was to run for ten years from its execution on November 1, 2006 to October 31, 2016. JRM asserts its claim in two counts: breach of contract and breach of the implied covenant of good faith and fair dealing. Newark counterclaims, pursuant to a provision of the Agreement, seeking indemnification from JRM for Newark’s costs, including legal fees and disbursements, incurred defending any unsuccessful claims made by JRM. I. FINDINGS OF FACT The Agreement JRM, a company with headquarters in Peabody, Massachusetts, is a hauler of trash and 1 recycled material. JRM is under contract with municipalities and businesses to pick up at curbside the trash generated by the occupants. JRM picks up trash that has been separated by the occupants to put newspaper and other paper into one bin and all other trash in another bin. The contract in this case concerns what JRM was to do with the “loose paper” picked up at curbside. Under its contracts with the municipalities, JRM was required to guarantee that the materials it collected from the residents would be recycled.. Newark is a New Jersey corporation with corporate offices in Cranford, New Jersey. In February 2015, as discussed below, Newark was acquired by Caraustar Industries, Inc. In 2005, JRM learned that a facility located at 1130 Eastern Avenue in Malden, Massachusetts (“the Malden facility”) might be available as a location for JRM’s operations. The facility had been operated previously as a recycling center. JRM began negotiations with the owner of the facility, Robert Heffernan, who was, at that time, a Newark employee. At around the same time in 2005, Newark was looking for sources of supply of Secondary Fiber/RMP for use by its mill in Fitchburg, Massachusetts. Secondary Fiber/RMP is a description of the loose news and other paper collected by JRM. The mill in Fitchburg manufactured recycled paper board products from the secondary fiber. In particular, the mill was producing “graphic board” to be used as game boards and covers for books. Jonathan Gold was a long time executive of […]
Daley v. Secretary of the Executive Office of Health and Human Services, et al.; Nadeau v. Director of the Office of Medicaid (Lawyers Weekly No. 10-092-17)
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-12200 SJC-12205 MARY E. DALEY, personal representative,[1] vs. SECRETARY OF THE EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES & another.[2] LIONEL C. NADEAU vs. DIRECTOR OF THE OFFICE OF MEDICAID. Worcester. January 5, 2017. – May 30, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Medicaid. Trust, Irrevocable trust. Real Property, Life estate, Ownership. Civil action commenced in the Superior Court Department on February 11, 2015. The case was heard by Dennis J. Curran, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Civil action commenced in the Superior Court Department on December 23, 2014. The case was heard by Shannon Frison, J., on a motion for judgment on the pleadings. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Lisa Neeley (Patrick Tinsley also present) for Lionel C. Nadeau. Brian E. Barreira for Mary E. Daley. Ronald M. Landsman, of Maryland, for National Academy of Elder Law Attorneys, Inc. Elizabeth Kaplan & Julie E. Green, Assistant Attorneys General, for Director of the Office of Medicaid & another. Patricia Keane Martin, for National Academy of Elder Law Attorneys (Massachusetts Chapter), was present but did not argue. Leo J. Cushing & Thomas J. McIntyre, for Real Estate Bar Association for Massachusetts, Inc., amicus curiae, submitted a brief. GANTS, C.J. These two cases require this court to navigate the labyrinth of controlling statutes and regulations to determine whether applicants are eligible for long-term care benefits under the Federal Medicaid Act (act) where they created an irrevocable trust and deeded their primary asset — their home — to that trust but retained the right to reside in and enjoy the use of the home for the rest of their life. The Director of the Massachusetts Office of Medicaid (MassHealth) determined that the applicants in these two cases were not eligible for long-term care benefits because their retention of a right to continue to live in their homes made the equity in their homes a “countable” asset whose value exceeded the asset eligibility limitation under the act. The applicants unsuccessfully challenged MassHealth’s determinations in the Superior Court pursuant to G. L. c. 30A, § 14. We […]
Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services, et al. v. Acting First Justice of the Lowell Division of the District Court Department (Lawyers Weekly No. 10-084-17)
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-12121 DEPUTY CHIEF COUNSEL FOR THE PUBLIC DEFENDER DIVISION OF THE COMMITTEE FOR PUBLIC COUNSEL SERVICES & another[1] vs. ACTING FIRST JUSTICE OF THE LOWELL DIVISION OF THE DISTRICT COURT DEPARTMENT. Suffolk. November 9, 2016. – May 24, 2017. Present: Gants, C.J., Hines, Gaziano, Lowy, & Budd, JJ. Committee for Public Counsel Services. District Court, Drug court session. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on February 23, 2016. The case was reported by Duffly, J. Paul R. Rudof, Committee for Public Counsel Services (Ryan M. Schiff, Committee for Public Counsel Services, also present) for the plaintiffs. Bethany L. Stevens for the defendant. HINES, J. This matter is before us on a reservation and report, by a single justice of this court, of a petition for relief under G. L. c. 211, § 3. The petition, brought by the Deputy Chief Counsel for the Public Defender Division of the Committee for Public Counsel Services and the Deputy Chief Counsel for the Private Counsel Division of the Committee for Public Counsel Services (collectively CPCS), sought an order affirming CPCS’s independent authority under G. L. c. 211D to select and supervise attorneys for indigent defendants in the pilot program it had launched in the drug court session of the Lowell Division of the District Court Department (drug court). The issue arose after the Acting First Justice of the Lowell District Court (Justice), citing the need for a “team” approach to cases in the drug Court, removed CPCS attorneys from drug court cases to which they had been assigned and excluded CPCS attorneys from assignment to any new case in the drug court. The single justice, in her reservation and report, observed that “the matter raises some important legal questions that ought to be decided by the full court, concerning specialty courts in general and adult drug courts in particular, and the respective roles and responsibilities of judges, [CPCS], and individual defense attorneys.” The issue highlights the tension that may arise between an attorney’s duty to zealously advocate for the rights of the drug court defendant and a drug court model that favors a collaborative and nonadversarial approach to supervision of the drug court defendant. We recognize that the success of drug court outcomes depends in large part […]
Airport Fuel Services, Inc. v. Martha’s Vineyard Airport Commission, et al. (Lawyers Weekly No. 12-051-17)
COMMONWEALTH OF MASSACHUSETTS DUKES COUNTY, ss. SUPERIOR COURT CIVIL ACTION 2017-0017 AIRPORT FUEL SERVICES, INC. vs. MARTHA’S VINEYARD AIRPORT COMMISSION and DEPOT CORNER, INC. MEMORANDUM OF DECISION AND ORDER ON THE PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION This action arises out of the defendant, Martha’s Vineyard Airport Commission’s (the Commission) decision to award a lease of Lot #33 in the Airport Business Park (the Property) to the defendant, Depot Corner, Inc. (Depot), following a public bidding procedure. The Plaintiff, Airport Fuel Services, Inc. (AFS), has been the lessee of the Property pursuant to a 20 year lease that expired on March 9, 2017 (the Lease). It constructed a gas station, convenience store, and car wash on the Property and operated them over the term of its lease. In its complaint, AFS alleges that “the 2017 RFP issued by [the Commission] was misleading and an inherently unfair proposal” and seeks an order requiring the Commission to lease the Property to it, according to its bid proposal. The case is before the court on AFS’s motion for a preliminary injunction enjoining the Commission from leasing the Property to Depot. FACTUAL BACKGROUND The following facts are taken from the affidavits and documents submitted in support of and opposition to the motion for preliminary relief. Under the terms of the Lease, AFS was permitted to construct the gas station, convenience store, and car wash which it operated over the Lease term. However, Section Eleven of the Lease provided that: “Lessee shall, on the last day of the term, or on earlier termination and forfeiture of the lease, peaceably and quietly surrender and deliver the Premises to Lessor at Lessor’s option free of subtenants, buildings, additions, and improvements constructed or placed thereon by Lessee.”[1] In 2014, the Commission issued a Request for Proposal (RFP) for a lease for the Premises to commence after the expiry of the AFS Lease, but RFP was withdrawn for reasons that do not affect the court’s ruling on the issues raised by the pending motion. On December 30, 2016, the Commission issued the RFP (which it titled: Request for Qualifications) for a new lease of the Property which is the subject of the present action. In the first section of the RFP, entitled General Information to Proposers, the Commission explained that it “may waive its rights under Section Eleven” (quoted above) to require the present lessee, AFS, to remove the buildings that it constructed on the Property. The RFP went on to state,“[t]he successful Proposer will have the opportunity to either negotiate a separate agreement for the purchase of the existing facilities with the […]
Silva v. Todisco Services, Inc. (Lawyers Weekly No. 12-006-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV02778-BLS2 ____________________ CHRISTOPHER SILVA, on behalf of himself and all others similarly situated v. TODISCO SERVICES, INC. d/b/a Todisco Towing ____________________ MEMORANDUM AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS Todisco Towing towed Christopher Silva’s motor vehicle without Silva’s consent from a private parking lot in Salem, Massachusetts, to East Boston. The Todisco invoice says this was a “trespass” tow, which presumably means that the vehicle was towed at the request of the property owner or manager because it was parked there illegally in violation of a posted notice. Cf. G.L. c. 266, § 120D. Silva says Todisco charged him $ 169.00, including a $ 90.00 towing charge; a $ 42.00 mileage charge; a $ 35.00 storage charge; and a $ 2.00 fuel surcharge. Silva alleges that the mileage charge and fuel surcharge were illegal because Todisco’s invoice or tow slip did not include information required by 220 C.M.R. § 272.03, a regulation promulgated by the Department of Public Utilities (“DPU”) that establishes maximum rates for towing vehicles. Silva asserts claims for negligent misrepresentation, intentional fraud, unjust enrichment, violating G.L. c. 93A, and declaratory judgment. He also seeks to represent a class consisting of all people whose motor vehicles were towed by Todisco and were charged a mileage fee or fuel surcharge when Todisco did not record the required information on the tow slip. Silva seeks monetary compensation for damages, punitive damages under c. 93A, equitable relief, and declaratory relief on behalf of himself and the putative class members. Todisco moves to dismiss this action on the grounds that Silva lacks standing, the DPU has primary jurisdiction, the statute authorizing a fine for violating the tow charge regulation bars any other relief, the cited regulation did not require Todisco to disclose any information, the claims for misrepresentation and fraud cannot be decided on a class-wide basis, and the claims for misrepresentation and fraud and under G.L. c. 93A are all preempted by federal law. The Court concludes that none of these arguments justifies dismissal. It will therefore DENY the motion to dismiss. – 2 – 1. Standing. Todisco asserts that Silva lacks standing to bring this action because the allegations in the complaint establish that Todisco’s alleged wrongdoing did not cause Silva himself to suffer any injury. This argument is without merit. Todisco correctly points out that the complaint alleges that Nathan Silva went to East Boston to retrieve the towed vehicle and paid the $ 169.00 total charge demanded by Todisco. But the complaint also alleges that Nathan paid the towing charges imposed by Todisco on behalf of Christopher Silva, Nathan was acting as Christopher’s agent, Christopher is the one who actually paid […]