Mount Vernon Fire Insurance Company v. Visionaid, Inc. (Lawyers Weekly No. 10-108-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-12142 MOUNT VERNON FIRE INSURANCE COMPANY vs. VISIONAID, INC.[1] Suffolk. December 5, 2016. – June 22, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ. Insurance, Insurer’s obligation to defend. Certification of questions of law to the Supreme Judicial Court by the United States Court of Appeals for the First Circuit. Kenneth R. Berman (Heather B. Repicky also present) for the defendant. James J. Duane, III (Scarlett M. Rajbanshi also present) for the plaintiff. The following submitted briefs for amici curiae: Marshall Gilinsky for United Policyholders. Laura Foggan, of the District of Columbia, & Rosanna Sattler for American Insurance Association & others. Michael F. Aylward for American International Group, Inc., & another. GAZIANO, J. In this case we are called upon to answer three certified questions from the United States Court of Appeals for the First Circuit involving the scope of an insurer’s duty to defend, and whether that duty extends to a counterclaim brought by the insured. For the reasons that follow, we conclude that where an insurance policy provides that the insurer has the “duty to defend any claim” initiated against the insured, the insurer’s duty to defend does not require it to prosecute affirmative counterclaims on behalf of its insured.[2] Facts and prior proceedings. We recite the facts based on the United States District Court judge’s memorandum of decision, the decision by the United States Court of Appeals for the First Circuit, and the undisputed documents in the record. Visionaid, Inc. (Visionaid),[3] is a manufacturer of lens cleaning and eye safety products. It purchased an employment practices liability insurance policy from Mount Vernon Fire Insurance Company (Mount Vernon), which covered, among other things, wrongful termination claims brought against Visionaid from May, 2011, through May, 2012. As relevant here, the policy imposed two duties on Mount Vernon with respect to any wrongful termination claim brought against Visionaid. The policy provided that Mount Vernon had “the right and duty to defend any Claim to which this insurance applies,” and that it was obligated to “pay one hundred percent (100%) of the Defense Costs for the [covered] Claim” up to the policy limit. Under the terms of the policy, “Claim” was defined as “any proceeding initiated against [Visionaid] . . . seeking to hold [Visionaid] responsible for […]
Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 10-025-16)
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-11875 BERNARD E. BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] Middlesex. November 3, 2015. – February 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Hospital, Appointment to staff. Anti-Discrimination Law, Race, Employment. Employment, Discrimination. Contract, Employment, With hospital, Performance and breach. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Robert R. Hamel, Jr. (Megan E. Kures with him) for the defendants. Denzil D. McKenzie (James E. Clancy, IV, with him) for the plaintiff. James A.W. Shaw, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. LENK, J. Massachusetts law prohibits employers from discriminating against their employees on the basis of, among other things, race or national origin. See G. L. c. 151B, § 4. Because direct proof of such discrimination is rarely available, employees filing claims under G. L. c. 151B, § 4, are permitted to prove discrimination without direct evidence of discriminatory intent, by relying on evidence that their employers gave a “false reason,”[2] or pretext, for terminating their employment. In this case, we address whether the plaintiff has produced sufficient evidence of pretext to survive his former employer’s motion for summary judgment. In doing so, we clarify the evidentiary burdens each party faces after one party has moved for summary judgment. We address, in particular, three concerns: whether the evidence on which an employee relies to survive a defendant’s motion for summary judgment need show not only that the defendant’s stated reason was false, but also that it concealed a discriminatory purpose; whether it is the plaintiff’s burden to persuade the motion judge based on that evidence that there is an issue of material fact appropriate for trial; and, finally, whether, in discerning the existence of an issue of material fact, the motion judge may weigh or otherwise evaluate the evidence. The plaintiff, Bernard E. Bulwer, is a black male of African descent who is originally from the Central American country of Belize. The plaintiff has a medical degree from the University of the West Indies, and practiced medicine outside the United States until […]
Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 11-118-14)
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 11-P-1583 Appeals Court BERNARD BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] No. 11-P-1583 Middlesex. November 26, 2012. – September 24, 2014. Present: Berry, Kafker, Meade, Sikora, & Wolohojian, JJ.[2] Hospital, Appointment to staff. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Contract, Employment, With hospital, Performance and breach, Interference with contractual relations. Libel and Slander. Unlawful Interference. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. Sara Discepolo for the plaintiff. Robert R. Hamel, Jr., for the defendants. WOLOHOJIAN, J. The plaintiff, Dr. Bernard Bulwer, an experienced physician and a black man from Belize, became a first-year resident at Mount Auburn Hospital (hospital) in August, 2005. He joined the residency program under a one-year contract, with the possibility of advancement to a second year of residency upon successful completion of the first. Eight months into the program, he was told that the hospital would not extend a second-year contract to him but that he would be allowed to continue his residency through the end of his first year. One month later, however, he was terminated. This suit followed, in which Bulwer alleges discrimination and retaliation based on his race and national origin in violation of G. L. c. 151B, breach of contract, defamation, and tortious interference with his contractual relationship with the hospital.[3] Summary judgment entered in favor of the defendants on all counts. We conclude that the summary judgment record sufficed to entitle Bulwer to have a jury decide his discrimination and breach of contract claims, but that summary judgment was properly entered on his remaining claims. Accordingly, we affirm in part and reverse in part. 1. The summary judgment record. In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986), quoting from Attorney Gen. v. Bailey, […]
Mount Washington Bank Robbed of $180 on Friday
The following information was supplied by the Boston Police Department. Charges listed do not indicate a conviction. A man made off with $ 180 from Mount Washington Bank on Friday, according to police. Boston Police officers responded to a bank alarm at 4:08 p.m. on Friday, June 7 at the Mount Washington Bank at 1134 Washington Street. On the scene, officers spoke to witnesses who said that the bank was robbed at about 3:59 p.m. Witnesses told the police that the suspect approached the counter, handed the clerk an EBT card and asked to withdraw $ 150 from the card. The teller said, “no,” and the suspect reportedly handed the teller a note. The note read: “Large bills or I’ll shoot you,” according to police. The suspect was handed $ 180 dollars and left out the front door, heading up East Berkley Street towards Washington Street, police said. Officers were not able to locate the suspect. The investigation is ongoing, police said. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch