DiCarlo, et al. v. Suffolk Construction Co., Inc., et al. (Lawyers Weekly No. 11-142-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 13-P-388 Appeals Court ROBERT M. DiCARLO & another[1] vs. SUFFOLK CONSTRUCTION CO., INC., & others.[2] No. 13-P-388. Suffolk. December 10, 2013. – November 6, 2014. Present: Berry, Meade, & Agnes, JJ. Workers’ Compensation Act, Action against third person, Settlement agreement, Insurer. Lien. Civil action commenced in the Superior Court Department on March 29, 2007. A petition for settlement was heard by Frances A. McIntyre, J. A proceeding for interlocutory review was heard in the Appeals Court by Carhart, J. Alice J. Klein for the plaintiffs. Wystan M. Ackerman for Twin City Fire Insurance Company. Marie Cheung-Truslow, for National Association of Subrogation Professionals, amicus curiae, submitted a brief. BERRY, J. This appeal involves a workers’ compensation insurer’s lien under G. L. c. 152, § 15, and poses the question whether, in cases where an injured employee receives workers’ compensation benefits and then sues and successfully negotiates the allocation of noneconomic damages to the employee in a lawsuit against a third-party tortfeasor, the § 15 lien attaches to the noneconomic damage recovery, such as for pain and suffering. We conclude that this interlocutory appeal[3] from an order denying the plaintiff’s amended petition for settlement is controlled by this court’s previous decision in Curry v. Great Am. Ins. Co., 80 Mass. App. Ct. 592 (2011) (Curry).[4] Curry held that an insurer’s lien under G. L. c. 152, § 15, did not reach the settlement proceeds of an employee’s third-party action that were allocated to the worker for his pain and suffering and to his spouse for loss of consortium. The fact that Curry was a wrongful death action brought by the estate of a deceased worker, and that this case is a tort action brought by an injured worker, does not, we believe, provide a meaningful basis on which to distinguish Curry, and not apply its rationale.[5] As the Curry court pointed out, a deceased worker’s legal representative “stands in the shoes of the deceased” worker for purposes of § 15. Curry, supra at 595 & 597 n.7. We begin by noting that the holding in Curry has been followed by the Department of Industrial Accidents. See Circular Letter No. 341, issued by the department on April 12, 2012, which states, in pertinent part: “The department is presently revising its § 15 interactive calculator [for allocations under G. L. c. […]
Diatcehnko v. District Attorney for the Suffolk District, et al. (Lawyers Weekly No. 10-202-13)
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‑11453 GREGORY DIATCHENKO vs. DISTRICT ATTORNEY FOR THE SUFFOLK DISTRICT & others.[1] Suffolk. September 4, 2013. ‑ December 24, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Constitutional Law, Sentence, Cruel and unusual punishment, Parole, Retroactivity of judicial holding. Due Process of Law, Sentence, Parole. Parole. Retroactivity of Judicial Holding. Homicide. Practice, Criminal, Sentence, Parole, Retroactivity of judicial holding, Capital case. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on March 19, 2013. The case was reported by Botsford, J. Benjamin H. Keehn, Committee for Public Counsel Services, for the petitioner. John P. Zanini, Assistant District Attorney, for District Attorney for the Suffolk District. Amy L. Karangekis, Assistant Attorney General, for chair of the Massachusetts Parole Board & another. The following submitted briefs for amici curiae: Timothy J. Cruz, District Attorney, & Robert C. Thompson, Assistant District Attorney, for District Attorney for the Plymouth District. Annie L. Owens, of the District of Columbia, & Emily R. Schulman for Massachusetts Association of Criminal Defense Lawyers & others. David J. Apfel & Kunal Pasricha for American Civil Liberties Union of Massachusetts & others. Kenneth J. Parsigian, Steven J. Pacini, & Amy E. Feinman for Citizens for Juvenile Justice & others. John J. Barter for Herby J. Caillot. SPINA, J. On the evening of May 9, 1981, Gregory Diatchenko, who was seventeen years old at the time, stabbed Thomas Wharf nine times as Wharf sat in his red Cadillac automobile near Kenmore Square in Boston. Wharf was pronounced dead at 10:40 P.M. A Superior Court jury convicted Diatchenko of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (armed robbery). He was sentenced to a mandatory term of life imprisonment without the possibility of parole, pursuant to G. L. c. 265, § 2.[2] On direct appeal, this court affirmed Diatchenko’s conviction. See Commonwealth v. Diatchenko, 387 Mass. 718, 719 (1982). Among other claims, we rejected his contention that his sentence violated the Eighth and Fourteenth Amendments to the United States Constitution and art. 26 of the Massachusetts Declaration of Rights.[3] Id. at 721-727. Diatchenko’s conviction thus became final.[4] Thirty years later, the United States Supreme Court decided Miller v. Alabama, 132 S. Ct. 2455 (2012) […]
Suffolk County Sobriety Checkpoint Planned Saturday
Massachusetts State Police will be operating a sobriety checkpoint this week at an undisclosed location in Suffolk County. The checkpoint will operate sometime between Saturday, June 22 and Sunday, June 23. “The purpose is to further educate the motoring public and strengthen the public’s awareness to the need of detecting and removing those motorists who operate under the influence of alcohol and/or drugs from our roadways,” Colonel Timothy P. Alben, superintendent of the Massachusetts State Police, said in a press release. Alben noted that, “The selection of vehicles will not be arbitrary, safety will be assured, and any inconveniences to motorists will be minimized with advance notice to reduce fear and anxiety.” For more information, visit the State Police website, www.mass.gov/msp. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
Sheriff of Suffolk County v. Jail Officers and Employees of Suffolk County (Lawyers Weekly No. 10-109-13)
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‑11229 SHERIFF OF SUFFOLK COUNTY vs. JAIL OFFICERS AND EMPLOYEES OF SUFFOLK COUNTY.[1] Suffolk. February 4, 2013. ‑ June 14, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Sheriff. Public Employment, Collective bargaining, Termination. Labor, Public employment, Collective bargaining. Arbitration, Collective bargaining, Award. Damages, Back pay, Mitigation, Interest. Interest. Governmental Immunity. Waiver. Judgment, Enforcement, Interest. Practice, Civil, Interest, Waiver. Civil action commenced in the Superior Court Department on April 24, 2001. Following review by this court, 451 Mass. 698 (2008), a complaint for contempt, filed on August 24, 2009, was heard by John C. Cratsley, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Timothy J. Casey, Assistant Attorney General, for the plaintiff. John M. Becker for the defendant. CORDY, J. This appeal arises from an action in the Superior Court to enforce an arbitrator’s award of back pay to a jail officer employed and wrongfully discharged by the sheriff of Suffolk County (sheriff). The sheriff appeals from the judge’s ruling that the jail officer, Joseph Upton, had no duty to mitigate his damages by seeking comparable employment. The Jail Officers and Employees of Suffolk County (union), on behalf of Upton, cross appeals from the judge’s decision not to assess statutory postjudgment interest on the arbitrator’s award. Although we conclude that Upton did have a duty to mitigate his damages, we affirm the judgment on the grounds that the sheriff waived this issue by failing to raise it earlier in the proceedings, and that, regardless, she failed to meet her burden of proof on the issue.[2] We also affirm the judge’s decision not to assess postjudgment interest on sovereign immunity grounds. 1. Background. This appeal represents the putative final chapter in a case that, at the time of an earlier decision in 2008, already had a “long and tortuous procedural history.” Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 699 (2008) (Sheriff of Suffolk County I). On December 29, 1999, Upton was discharged from his position as a jail officer at the Nashua Street jail in Boston (jail) following an incident in which Upton allegedly “filed untimely and then false reports” concerning an assault of an inmate that he […]
Suffolk County Sobriety Checkpoint Planned Friday
Massachusetts State Police will be operating a sobriety checkpoint this week at an undisclosed location in Suffolk County. The checkpoint will operate sometime between Friday, June 7 and Saturday, June 8. “The purpose is to further educate the motoring public and strengthen the public’s awareness to the need of detecting and removing those motorists who operate under the influence of alcohol and/or drugs from our roadways,” Colonel Timothy P. Alben, superintendent of the Massachusetts State Police, said in a press release. Alben noted that, “The selection of vehicles will not be arbitrary, safety will be assured, and any inconveniences to motorists will be minimized with advance notice to reduce fear and anxiety.” For more information, visit the State Police website, www.mass.gov/msp. SOUTH END PATCH: Facebook | Twitter | E-mail Updates South End Patch
McCants v. Clerk of Suffolk Superior Court for Criminal Business (Lawyers Weekly No. 10-082-13)
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‑11263 OWEN McCANTS vs. CLERK OF SUFFOLK SUPERIOR COURT FOR CRIMINAL BUSINESS. May 14, 2013. Supreme Judicial Court, Superintendence of inferior courts. Moot Question. Practice, Civil, Moot case. Owen McCants appeals from a judgment of a single justice of this court dismissing as moot his petition for a writ of mandamus and for a declaratory judgment. We affirm. A Superior Court jury convicted McCants of several crimes, and the Appeals Court affirmed the convictions. See Commonwealth v. McCants, 65 Mass. App. Ct. 1121 (2006). McCants thereafter filed a motion for a new trial, which was denied. He then filed a notice of appeal, the record was assembled, and the appeal was entered in the Appeals Court, where it remains pending. Then, in April, 2012, he filed a petition in the county court, asserting that the trial court clerk’s office had failed to docket several pleadings that he had filed in that court in connection with the motion for a new trial. In response, the respondent submitted a letter to the county court indicating that the clerk’s office had updated the docket to include the pleadings in question and that the entire record, including those pleadings, had been assembled and forwarded to the Appeals Court. On the basis that McCants had received the relief that he was seeking — the docketing of his pleadings in the trial court — the single justice dismissed the petition as moot. In his appeal from the dismissal of his petition McCants argues that the matter is not moot because the respondent failed to file a timely response to his petition and that she therefore “waived” her right to respond. Regardless whether the respondent’s letter was timely, it was within the court’s discretion to accept it for filing on the date that it was received. As indicated in the letter and reflected in the trial court docket, the pleadings that McCants sought to have docketed had by that time been docketed, apparently in response to McCants’s petition in the county court. Nowhere in the record or in McCants’s appeal to this court does McCants dispute that the pleadings in question have been docketed and included in the record assembled for his appeal from the denial of his motion for a new trial. To the extent that McCants […]
Reading Co-Operative Bank v. Suffolk Construction Company, Inc. (Lawyers Weekly No. 10-038-13)
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‑11159 READING CO-OPERATIVE BANK vs. SUFFOLK CONSTRUCTION COMPANY, INC. Suffolk. November 6, 2012. ‑ March 13, 2013. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ. Uniform Commercial Code, Secured creditor, Damages. Damages, Mitigation. Estoppel. Civil action commenced in the Superior Court Department on May 25, 2006. The case was tried before Stephen E. Neel, J., and entry of judgment was ordered by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. R. Robert Popeo (Paul J. Ricotta with him) for the defendant. Nelson G. Apjohn (Cynthia M. Guizzetti with him) for the plaintiff. LENK, J. This case requires us to determine, among other things, whether art. 9 of the Uniform Commercial Code displaces the common law on the question of the proper measure of a secured creditor’s recovery under G. L. c. 106, § 9-405. We conclude that it does. The defendant, Suffolk Construction Company, Inc. (Suffolk), contracted with Benchmark Mechanical Systems (subcontractor) for construction of elements of a heating, ventilation, and air conditioning (HVAC) system at a building project in Reading. As partial collateral for a revolving line of credit, the subcontractor assigned to the plaintiff, Reading Co-Operative Bank (bank), its right to receive payment under the contract with Suffolk. Suffolk received notification of the assignment and agreed to make payments directly to the bank. However, Suffolk instead made twelve payments to the subcontractor. The subcontractor subsequently ceased business operations, with an outstanding debt to the bank on its line of credit. Seeking recovery of the total value of the misdirected payments, the bank filed an action in the Superior Court for breach of contract and violation of the Uniform Commercial Code (UCC), pursuant to G. L. c. 106, § 9-405. A Superior Court jury found Suffolk liable on both counts for ten of the twelve checks that Suffolk had delivered to the subcontractor. The jury found that the bank was estopped from recovering with respect to the final two checks. The jury calculated the bank’s actual damages as $ 533,348.62, and the judge entered judgment on the contract claim in this amount. However, concluding that he was statutorily required to do so, the judge entered judgment on the statutory claim in the amount of $ 3,015,000.49, the full face value […]
How Will Sequestration Affect Suffolk County?
The numbers here show the federal employees in Massachusetts by county in 2012, according to the latest figures from Eye on Washington, a DC-based lobbying firm that tracks federal employment. It compiles the data from the Office of Personnel Management, Federal Employment Statistics and the Bureau of Labor Statistics. While much has been made written on how the current sequestration battle in Washington could affect the national economy, these numbers are meant to give readers a sense of the sequestration at the local level. No one knows for certain what the sequestration cuts, some $ 85 billion, will mean exactly. Even if the March 1 federal cuts are enacted, the full effects would not be felt immediately. The government is required to alert impacted agencies of what cuts are to be made and what workers are to be furloughed. It should be noted, however, that even the suggestion of cuts and the notification process itself could be felt in some community economies. Uncertainty for federal workers means they are likely to tighten their belts until they see what the cuts look like – and how long they last. It means those workers will likely spend less money at local shops and restaurants. In some communities there may be only a handful of federal workers and the impacts may be small. But as these figures show, in other counties federal employees numbers in the thousands and in those places the sequestration could become a more significant pain, particularly if it drags on for weeks or months. (U.S. Postal Service Employees are excluded in this count. The USPS receives no tax dollars in its operations and would not be affected by the sequestration cuts.) South End Patch
Categories: Arrests Tags: Affect, County, Sequestration, Suffolk