Posts tagged "state"

Cournoyer v. Department of State Police, et al. (Lawyers Weekly No. 11-037-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   17-P-579                                        Appeals Court   ARTHUR COURNOYER  vs.  DEPARTMENT OF STATE POLICE & another.[1]     No. 17-P-579.   Middlesex.     January 8, 2018. – April 2, 2018.   Present:  Blake, Neyman, & Ditkoff, JJ.     State Police.  Retirement.  Police, Retirement, Training program, Authority of police chief.  Public Employment, Police, Retirement, Reinstatement of personnel.       Civil action commenced in the Superior Court Department on March 14, 2016.   A motion to dismiss was heard by Bruce R. Henry, J.     Scott W. Lang (Jennifer Davis also present) for the plaintiff. Samuel M. Furgang, Assistant Attorney General, for the defendants.     DITKOFF, J.  The plaintiff, Arthur Cournoyer, appeals from a Superior Court judgment dismissing his claims for declaratory judgment and specific performance against the defendants.  The plaintiff argues that the Department of State Police (department) is required by G. L. c. 22C, § 24A, to develop individualized training programs for former State police troopers seeking reinstatement, rather than require them to complete recruit training at the State police academy (academy).  Concluding that the statute is unambiguous and that the department may require former troopers separated for more than three years to complete recruit training, we affirm, ordering that the judgment be modified to declare the rights of the parties. Standard of review.  We review a ruling on a motion to dismiss de novo, Rodriguez v. Massachusetts Bay Transp. Authy., 92 Mass. App. Ct. 26, 28 (2017), taking the complaint’s allegations as true, as well all reasonable inferences drawn in the plaintiff’s favor, Saliba v. Worcester, 92 Mass. App. Ct. 408, 412 (2017).  To survive a motion to dismiss, the plaintiff must present factual allegations that rise above the level of speculation, Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), and plausibly suggest an entitlement to relief, Flagg v. AliMed, Inc., 466 Mass. 23, 26 (2013). Background.  The plaintiff was a State police trooper from 1992 until 2000.[2]  While so employed, the plaintiff received positive performance evaluations, and he completed all required in-service training in addition to numerous programs, certifications, and service in specialized areas of law enforcement.  In 1998, however, the plaintiff suffered a severe injury while on duty, requiring medical leave and ultimately causing his involuntary retirement in 2000.  Following several operations and physical rehabilitation, the plaintiff was able to obtain employment, working for the Worcester County sheriff’s department […]

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Posted by Massachusetts Legal Resources - April 2, 2018 at 5:26 pm

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State Road Auto Sales, Inc. v. Massachusetts Division of Banks (Lawyers Weekly No. 09-013-18)

COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1784CV04041-BLS2 ____________________ STATE ROAD AUTO SALES, INC. v. MASSACHUSETTS DIVISION OF BANKS ____________________ MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION State Road Auto Sales, Inc., seeks a preliminary injunction that would bar the Massachusetts Division of Banks from completing an ongoing adjudicatory hearing. The Division brought administrative charges asserting that State Road violated G.L. c. 255B, which governs retail installment sales of motor vehicles, by acting as a “motor vehicle sales finance company” without a license and by entering into illegal motor vehicle installment sales with individual consumers. The Legislature authorized the Commissioner of Banks to implement and enforce c. 255B. State Road is entitled to contest those charges through an evidentiary proceeding before a Division hearing officer. State Road argues that the Division’s administrative charges and adjudicatory proceeding are barred by State Road’s recent settlement of a class action brought on behalf of consumers who entered into motor vehicle leases with State Road that were in effect after October 21, 2013, and were signed before January 1, 2016. More specifically, State Road argues that the order approving the class action settlement deprived the Division of subject matter jurisdiction to decide the pending administrative charges and, in the alternative, that the prior settlement has collateral estoppel or issue preclusive effect that would bar the Division from exercising its jurisdiction over State Road. The Court concludes that State Road is not entitled to preliminary injunctive relief because it has failed to exhaust its administrative remedies and therefore is not likely to succeed on the merits of its claims. Cf. Fordyce v. Town of Hanover, 457 Mass. 248, 266 (2010) (vacating preliminary injunction because plaintiffs were “unlikely to succeed on the merits”). The Division of Banks has already began an enforcement action against State Road, those adjudicatory proceedings are still pending, and the determination of – 2 – whether the Division can prosecute and decide the administrative charges turns on disputed issues of fact and not pure issues of law. Under these circumstances, State Road must exhaust its administrative remedies at the Division before seeking to challenge the Division’s exercise of jurisdiction over State Road in court. See Wilczewski v. Commissioner of the Dept. of Envtl. Quality Eng’g, 404 Mass. 787, 793-794 (1989) (affirming dismissal of challenge to agency’s jurisdiction in pending matter); Gill v. Board of Reg. of Psychologists, 399 Mass. 724, 728 (1987) (ordering dismissal of action); East Chop Tennis Club v. Massachusetts Comm’n Against Discrim., 364 Mass. 444, 451 (1973) (vacating decree entered by Superior Court and ordering dismissal of action); Reliance Ins. Co. v. Commissioner of Ins., 31 Mass. App. Ct. 581, 585 (1991) (affirming dismissal of action). […]

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Posted by Massachusetts Legal Resources - March 1, 2018 at 9:05 am

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Dell’Isola v. State Board of Retirement, et al. (Lawyers Weekly No. 11-154-17)

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-963                                        Appeals Court   MICHAEL DELL’ISOLA  vs.  STATE BOARD OF RETIREMENT another[1].     No. 16-P-963.   Suffolk.     September 8, 2017. – December 15, 2017.   Present:  Rubin, Neyman, & Henry, JJ.     Retirement.  Public Employment, Forfeiture of pension.  Correction Officer.       Civil action commenced in the Superior Court Department on December 31, 2014.   The case was heard by Linda E. Giles, J., on motions for judgment on the pleadings.     David R. Marks, Assistant Attorney General, for State Board of Retirement. Nicholas Poser for the plaintiff.     HENRY, J.  Michael Dell’Isola was a correction officer when he committed the crime of possession of cocaine.  The State Retirement Board (board) subsequently conducted a hearing and made factual findings that Dell’Isola came into possession of the cocaine only as a result of an arrangement with an inmate who had been in his custody and who at the time remained in the custody of the Middlesex County sheriff’s office.  This case thus requires us to consider whether, pursuant to G. L. c. 32, § 15(4), Dell’Isola’s conviction requires forfeiture of his retirement allowance.[2]  General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n no event shall any member [of the State employees’ retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.”  Because how Dell’Isola came into possession of the cocaine was factually linked to his position as a correction officer, we hold that his criminal offense falls within the purview of § 15(4) and he is ineligible to receive a retirement allowance. Background.  In September, 2012, a jury convicted Dell’Isola of one charge of possession of cocaine.  The board later held a hearing regarding Dell’Isola’s application for a superannuation allowance.  The board made the following findings of fact based on an evidentiary hearing and largely based on a transcript of Dell’Isola’s own statements during a postarrest interview with the State police. In 2011, Dell’Isola was a sergeant and a senior correction officer with the Middlesex County sheriff’s office, having served in the office since 1982.  An inmate under Dell’Isola’s supervision at the Middlesex County jail in Cambridge, identified only as “George,” offered Dell’Isola “a large amount of cash” and told Dell’Isola to contact George’s mother.[3]  Dell’Isola met with […]

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Posted by Massachusetts Legal Resources - December 15, 2017 at 10:42 pm

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State Board of Retirement v. O’Hare, et al. (Lawyers Weekly No. 11-155-17)

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-965                                        Appeals Court   STATE BOARD OF RETIREMENT  vs.  BRIAN O’HARE & another.[1]     No. 16-P-965.   Suffolk.     September 8, 2017. – December 15, 2017.   Present:  Rubin, Neyman, & Henry, JJ.     Retirement.  Public Employment, Forfeiture of pension, Police.  Police, Regulations.  Police Officer.  State Police.       Civil action commenced in the Superior Court Department on January 29, 2015.   The case was heard by Peter M. Lauriat, J., on motions for judgment on the pleadings.     David R. Marks, Assistant Attorney General, for State Board of Retirement. Eric B. Tennen for Brian O’Hare.     HENRY, J.  Brian O’Hare was a sergeant with the Massachusetts State police when he committed the Federal crime of using the internet to entice a person under eighteen to engage in unlawful sexual activity, a charge to which he subsequently pleaded guilty.  This case presents the question whether the State Board of Retirement (board) correctly ordered forfeiture of O’Hare’s retirement allowance under G. L. c. 32, § 15(4).[2]  General Laws c. 32, § 15(4), inserted by St. 1987, c. 697, § 47, provides that “[i]n no event shall any member [of the State employees’ retirement system] after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance.”  Because we hold that O’Hare’s actions had a direct legal link to his position with the State police, we conclude that O’Hare’s conviction required forfeiture pursuant to § 15(4). Background.  Brian O’Hare served with the Massachusetts State police for twenty years and, in 2006, held the rank of sergeant and was a patrol supervisor and shift commander.  Between August, 2005, and February, 2006, O’Hare communicated online with an individual whom he believed to be a fourteen year old boy.  O’Hare used a family computer while off duty to communicate with the “youth.”  The youth was later revealed to be an undercover Federal Bureau of Investigation (FBI) agent. In February, 2006, O’Hare was arrested by the FBI after arriving at a prearranged meeting place to meet the youth for sexual purposes.  In October, 2006, O’Hare resigned from the State police while under Federal indictment.  In February, 2007, O’Hare pleaded guilty to one charge of using the internet to attempt to coerce and entice a child under the age of eighteen to engage in unlawful sexual activity, […]

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Posted by Massachusetts Legal Resources - December 15, 2017 at 7:08 pm

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Dudley v. Massachusetts State Police (Lawyers Weekly No. 11-071-17)

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-2                                          Appeals Court   RICHARD DUDLEY, JR.  vs.  MASSACHUSETTS STATE POLICE.     No. 16-P-2.   Bristol.     December 1, 2016. – June 1, 2017.   Present:  Cypher, Maldonado, & Blake, JJ.[1]     Massachusetts Tort Claims Act.  Governmental Immunity.  Dog.  Police, Negligence.  Negligence, Governmental immunity, Police.  Practice, Civil, Summary judgment.       Civil action commenced in the Superior Court Department on February 1, 2013.   The case was heard by William F. Sullivan, J., on a motion for summary judgment.     Jason R. Markle for the plaintiff. Andrew W. Koster, Assistant Attorney General, for the defendant.     MALDONADO, J.  The plaintiff, Richard Dudley, Jr., commenced this negligence action, pursuant to the Massachusetts Tort Claims Act (Act), G. L. c. 258, seeking damages from the defendant, Massachusetts State Police (State police), for injuries he suffered as a result of being attacked, in a public parking lot, by a trained police dog.  Moments before the attack occurred, State Trooper Edward T. Blackwell, an experienced police canine handler, had been in pursuit of a criminal suspect who fled, on foot, taking a circuitous route through that parking lot. Dudley sued the State police, a public employer and agent of the Commonwealth,[2] alleging that Trooper Blackwell’s conduct, in releasing the police dog to apprehend a suspect in a public space, where the presence of others would be expected, created a foreseeable and substantial risk of harm to an innocent bystander. The State police answered the complaint, engaged in discovery, and then filed a motion for summary judgment, based on the ground of sovereign immunity under G. L. c. 258.  Following a hearing, a judge of the Superior Court allowed the State police’s motion, ruling that Dudley’s negligence claim was barred by the immunity provisions of the Act, §§ 10(b) and (j).  Dudley appeals from the separate and final judgment.  See Mass.R.Civ.P.54(b), 365 Mass. 820 (1974).  We reverse. Background.  The chase.  In the early afternoon of May 6, 2011, William P. Monopoli led several State police troopers on a high-speed motor vehicle chase, which began in Boston and ended in West Bridgewater. While speeding down the highway, Monopoli abruptly pulled his truck off the road onto an exit ramp.  At the top of the ramp, Monopoli lost control of his truck, crossed the roadway’s double yellow lines, and crashed into a guardrail or curb.  He then exited his […]

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Posted by Massachusetts Legal Resources - June 1, 2017 at 5:18 pm

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State Board of Retirement v. Finneran, et al. (Lawyers Weekly No. 10-051-17)

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-12069   STATE BOARD OF RETIREMENT  vs.  THOMAS M. FINNERAN & others.[1]       Suffolk.     December 8, 2016. – April 5, 2017.   Present:  Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Budd, JJ.[2]     Retirement.  State Board of Retirement.  Public Employment, Forfeiture of retirement benefits.  Constitutional Law, Excessive fines clause.  Practice, Civil, Action in nature of certiorari.       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on December 4, 2015.   The case was reported by Lenk, J.     David R. Marks, Assistant Attorney General, for the plaintiff. Nicholas Poser (Thomas R. Kiley also present) for Thomas M. Finneran.     LENK, J.  Former Speaker of the House Thomas Finneran pleaded guilty in the United States District Court in 2007 to one count of obstruction of justice in violation of 18 U.S.C. § 1503.  The obstruction of justice conviction related to false testimony that he had provided in relation to a Federal court action challenging the 2001 redistricting act, St. 2001, c. 125 (redistricting act).  Finneran had played a significant role in the development of the redistricting act from the point of its inception but denied under oath that he had played any part in its development.  Indeed, he testified that he had not even seen the plan before it was released to the full House of Representatives. After his conviction, Finneran was informed by the State Retirement Board (board) that his crime constitutes a “violation of the laws applicable to his office or position,” pursuant to G. L. c. 32, § 15 (4), requiring the forfeiture of his pension.  Finneran appealed from the board’s determination to the Boston Municipal Court.  A Boston Municipal Court judge reversed, discerning no direct link between Finneran’s “conviction and his position as a Member and/or Speaker of the House.”  We reach the opposite conclusion, and accordingly reverse the decision of the Boston Municipal Court judge and affirm the conclusion of the board. Background.[3] Finneran was first elected to the House of Representatives in 1978, as the representative of the Twelfth Suffolk District.  Thereafter, he was reelected every two years, and concurrently served as Speaker of the House from 1996 until his resignation in 2004. In 2001, Finneran played a key role in shepherding the Commonwealth through the redistricting process pursuant to the 2000 decennial United States census.  The Legislature bore the […]

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Posted by Massachusetts Legal Resources - April 5, 2017 at 3:01 pm

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Alves v. Massachusetts State Police, et al. (Lawyers Weekly No. 11-001-17)

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-1531                                       Appeals Court   DAVID A. ALVES  vs.  MASSACHUSETTS STATE POLICE & others.[1]     No. 15-P-1531.   Bristol.     November 3, 2016. – January 4, 2017.   Present:  Agnes, Blake, & Desmond, JJ.     Res Judicata.  Collateral Estoppel.  Judgment, Preclusive effect.  Negligence, Police.  Practice, Civil, Summary judgment.  State Police.       Civil action commenced in the Superior Court Department on June 29, 2012.   The case was heard by Richard T. Moses, J., on a motion for summary judgment.     Sonja L. Deyoe for the plaintiff. Adam R. LaGrassa, Assistant Attorney General, for Massachusetts State Police.     BLAKE, J.  Following the execution of an anticipatory search warrant, Massachusetts State police officers arrested the plaintiff, David A. Alves, on various charges stemming from the seizure of a package containing approximately twenty-five pounds of marijuana.  The charges were subsequently dismissed, whereupon Alves filed a civil suit in the Superior Court asserting Federal civil rights violations against two State police officers, Paul Baker and William Donnelly, and negligence claims against the State police.  The officers removed the Federal claims to the United States District Court for the District of Massachusetts (Federal District Court), where a magistrate judge allowed Baker’s motion for summary judgment.[2]  The State police then filed a motion for summary judgment in the Superior Court, where the State-based claims remained.  Relying on the findings of fact made by the magistrate judge in his resolution of the Federal claims, a judge of the Superior Court allowed the motion.  Alves now appeals.  We agree that the matter is governed by principles of issue preclusion and accordingly affirm. Background.  After intercepting a suspicious package addressed to a recipient in Massachusetts, a postal inspector at the processing and distribution center of the United States Postal Service in Providence, Rhode Island obtained a Federal search warrant to search the package.[3]  The inspector found approximately twenty-five pounds of marijuana in the package, with an approximate street value of $ 35,000.  The inspector contacted Baker, a Massachusetts State police trooper, who obtained an anticipatory search warrant from the Taunton District Court, to be triggered by the acceptance or acquisition of the package, which bore a distinctive tracking number, and was addressed to “John Couture 443 Weir Street, Taunton, MA.”  The search warrant authorized the retrieval of the package from “44 [sic] Weir Street . . . [a] […]

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Posted by Massachusetts Legal Resources - January 5, 2017 at 3:19 am

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DiMasi v. State Board of Retirement, et al. (Lawyers Weekly No. 10-056-16)

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   SJC-11971   SALVATORE F. DiMASI  vs.  STATE BOARD OF RETIREMENT & others.[1]     Suffolk.     February 9, 2016. – April 21, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Public Employment, Forfeiture of retirement benefits.  Retirement.  State Board of Retirement.  Contribution. Words, “Final conviction.”       Civil action commenced in the Supreme Judicial Court for the county of Suffolk on June 16, 2014.   The case was reported by Cordy, J.     Thomas R. Kiley for the plaintiff. David R. Marks, Assistant Attorney General, for the defendants.          SPINA, J.  After the plaintiff, Salvatore F. DiMasi, was convicted of several violations of Federal law, the State Board of Retirement (board) unanimously approved the forfeiture of his retirement allowance in accordance with G. L. c. 32, § 15 (4), and a judge in the Boston Municipal Court Department affirmed the board’s decision.  DiMasi filed a complaint for relief in the nature of certiorari pursuant to G. L. c. 249, § 4, in the Supreme Judicial Court for Suffolk County.  A single justice reserved and reported the case for determination by the full court.  DiMasi contends that a “final conviction” of a criminal offense for purposes of § 15 (4) occurs at the conclusion of the appellate process, not when a sentence is imposed.  He further contends that the board improperly has withheld his accumulated total deductions since September, 2011.  For the reasons that follow, we conclude that, in the context of pension forfeiture, a “final conviction” occurs when an individual is sentenced.  We further conclude that DiMasi is entitled to the return of his accumulated total deductions, together with interest on such deductions from September, 2011, until such time as payment is made. 1.  Statutory framework.  The provisions of G. L. c. 32, § 15, “pertain to dereliction of duty by a member of the contributory retirement system for public employees (member).”  See State Bd. of Retirement v. Bulger, 446 Mass. 169, 170 (2006) (Bulger).  General Laws c. 32, § 15 (4), states as follows: “In no event shall any member after final conviction of a criminal offense involving violation of the laws applicable to his office or position, be entitled to receive a retirement allowance under the provisions of [§§ 1-28], inclusive, nor shall any beneficiary be entitled to receive any benefits […]

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Posted by Massachusetts Legal Resources - April 21, 2016 at 7:02 pm

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Kilnapp Enterprises, Inc. v. Massachusetts State Automobile Dealers Association, et al. (Lawyers Weekly No. 11-030-16)

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-101                                        Appeals Court   KILNAPP ENTERPRISES, INC.[1]  vs.  MASSACHUSETTS STATE AUTOMOBILE DEALERS ASSOCIATION & others.[2] No. 15-P-101. Suffolk.     December 7, 2015. – March 17, 2016.   Present:  Rubin, Maldonado, & Massing, JJ.     Libel and Slander.  Actionable Tort.  Practice, Civil, Motion to dismiss.       Civil action commenced in the Superior Court Department on March 10, 2014.   A motion to dismiss was heard by Judith Fabricant, J.     Travis J. Jacobs for the plaintiff. Alan D. Rose, Sr., for Fisher & Phillips LLP & another. James F. Radke for Massachusetts State Automobile Dealers Association.     RUBIN, J.  This is an action for defamation brought by Kilnapp Enterprises, Inc., doing business as Real Clean (Real Clean), which describes itself as “a broker for automobile detailing and reconditioning between service providers and automobile dealerships.”[3]  Real Clean brought this action against the Massachusetts State Automobile Dealers Association (MSADA) for its published statements concerning an investigation by the United States Department of Labor (DOL) into the practices of automobile detailing “brokers” including Real Clean.  The complaint asserts not only a claim for defamation, but includes several other related counts that will be described more fully below.  It names as a defendant not only MSADA but the author of the published statements, Attorney Joseph Ambash, and his law firm, Fisher & Phillips LLP.  The defendants brought a motion to dismiss under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), which was allowed.  Real Clean appeals. Because the materials properly considered by the judge in the Superior Court demonstrate that Real Clean will be unable to prove that the defendants’ statements were materially false under the applicable standard, which requires demonstration that actionable statements have been made with knowledge of their falsity or in reckless disregard of their truth or falsity, we affirm the judgment dismissing all of Real Clean’s claims. Background.  Our review of the allowance of a motion to dismiss is de novo.  Glovsky v. Roche Bros. Supermkts., Inc., 469 Mass. 752, 754 (2014).  For purposes of reviewing the allowance of a motion to dismiss we must, of course, take all the allegations in the plaintiff’s operative complaint, here the amended and verified complaint filed on May 7, 2014, as true.  Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). […]

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Posted by Massachusetts Legal Resources - March 17, 2016 at 2:40 pm

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Insurance Company of the State of Pennsylvania v. Great Northern Insurance Company (Lawyers Weekly No. 10-030-16)

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   SJC-11897   INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA  vs.  GREAT NORTHERN INSURANCE COMPANY.       Suffolk.     November 2, 2015. – March 7, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.     Workers’ Compensation Act, Insurer, Coverage, Election of remedies.  Insurance, Workers’ compensation insurance, Contribution among insurers, Insurer’s obligation to defend.  Contribution.  Tender.  Election of Remedies.       Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts.     Barbara I. Michaelides, of Illinois (Aaron S. Bayer, of Connecticut, with her) for the plaintiff. Jennifer C. Sheehan (Richard J. Shea with her) for the defendant. Laura Meyer Gregory, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief.     GANTS, C.J.  The United States Court of Appeals for the First Circuit certified the following question to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): “Where two workers’ compensation insurance policies provide coverage for the same loss, may an insured elect which of its insurers is to defend and indemnify the claim by intentionally tendering its defense to that insurer and not the other and thereby foreclose the insurer to which tender is made from obtaining contribution from the insurer to which no tender is made?”   We answer “no” to the question.  Where, as here, two primary workers’ compensation insurance policies provide coverage for the same loss arising from injury to an employee, the insurance company that pays the loss has a right of equitable contribution to ensure that the coinsurer pays its fair share of the loss.  The employer of the injured employee may not prevent the insurance company that pays the loss from exercising its right of equitable contribution by intentionally giving notice of the injury only to that insurer.[1] Background.  We set forth below the relevant background and procedural history of the case contained in the certification order from the First Circuit, occasionally supplemented by undisputed information in the record.  In January, 2010, an employee of Progression, Inc. (Progression), was severely injured in an automobile accident while traveling abroad on a business trip.  Progression had purchased two workers’ compensation policies from two different insurers, one providing compulsory workers’ compensation coverage from the Insurance Company of the State of Pennsylvania (ISOP), […]

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Posted by Massachusetts Legal Resources - March 7, 2016 at 6:33 pm

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