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| Greetings! |
This summary of recent developments in the law of Massachusetts and New Hampshire is provided as a courtesy to our clients. The original text of cases and statutes will be provided upon request.
John D. Boyle |
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BMC OPENS RHODE ISLAND OFFICE |
We are pleased to announce the opening of our Rhode Island office located at 155 Westminster Street in downtown Providence. Attorney Scott M. Carroll, Attorney Kevin M. Riodan, and Attorney Timothy R. Scannell will service our Rhode Island clients.
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| BMC ATTORNEYS NAMED SUPER LAWYERS & RISING STARS |
 Congratulations to BMC's Super Lawyers and Rising Stars. John D. Boyle was named Insurance Defense Super Lawyer, and Anthony M. Campo and Mark W. Shaughnessy were named Civil Litigation Defense Super Lawyers. Congratulations also to Rising Stars Peter L. Bosse, Scott M. Carroll, Kevin M. Riordan, Michael P. Johnson, and Timothy R. Scannell. | |
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I. SUCCESSFUL DEFENSE OF INSURER IN BAD-FAITH LAWSUIT |
Congratulations to our partner, Mark Shaughnessy, on his recent success at trial in Middlesex Superior Court. Mark, along with Aaron White, successfully defended a coverage dispute arising out of a corporate director and shareholder proxy lawsuit in Maine.
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II. WORKERS' COMPENSATION: CAUSAL RELATIONSHIP BETWEEN WORK-RELATED INJURY AND SUICIDE |
| In Dube's Case, 70 Mass. App. Ct. 121 (2007), the Appeals Court held that an employee's wife was entitled to receive workers' compensation benefits, where evidence was sufficient to conclude that a causal relationship existed between the employee's work-related back injury and his subsequent suicide.
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III. CONTRACTUAL INDEMNIFICATION: CONFLICTING TERMS RESOLVED IN FAVOR OF NARROWER "NEGLIGENCE-BASED" PROVISION |
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In Rush v. Norfolk Electric Company, Inc., 70 Mass. App. Ct. 373 (2007), the Appeals Court held that, in a construction subcontract which contained two conflicting indemnification provisions, the narrower "negligence-based" provision superseded the broader "act-based" provision.
Read On... |
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IV. TORT CLAIMS THRESHOLD: INTERVENING ACCIDENT |
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In Lima v. Marshall, 70 Mass. App. Ct. 424 (2007), the Appeals Court held that a plaintiff failed to sustain her burden of proving that she sustained $2,000 in medical treatment related to injuries sustained in an accident, when her treatment also consisted of physical therapy for injuries sustained in a separate, unrelated accident.
Read On... |
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V. WORKERS' COMPENSATION: COLLATERAL ESTOPPEL APPLIED TO BAR SUBSEQUENT TORT ACTION |
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In Supeno v. Equity Office Properties Management, LLC, 70 Mass. App. Ct. 470 (2007), the Appeals Court held that the doctrine of defense collateral barred a worker from asserting a tort action, where the Department of Industrial Accidents (DIA) had previously determined in her workers' compensation claim that she could not establish causation.
Read On... |
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VI. HOMEOWNERS' POLICY: USE OF PREMISES "IN CONNECTION WITH" INSURED LOCATION |
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In Utica Mutual Insurance Company v. Fontneau, 70 Mass. App. Ct. 553 (2007), the Appeals Court interpreted the policy term "used...in connection with" and concluded that an insurer was obligated to defend and indemnify a homeowner against a claim for personal injury arising out of a condition on a property adjacent to his residential premises.
Read On... |
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VII. NO AMBIGUITY IN INSURED LOCATION ON FIRE INSURANCE POLICY |
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In Vermont Mutual Ins. Co. v. Velasco, 70 Mass. App. Ct. 1107 (unpublished disposition, 2007), the Appeals Court held that a fire insurance policy provided no coverage for a fire loss at the mailing address of the named insureds, where the policy unambiguously specified a different insured location.
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VIII. ADVERTISING INJURY: TRIGGER OF COVERAGE |
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In Terra Nova Insurance Company v. Fray-Witzer, 449 Mass. 406 (2007), the Supreme Judicial Court held that the transmission of unsolicited facsimile advertisements were not "accidents" for purposes of coverage, but that "personal and advertising injury liability" coverage applied because the advertisements violated the recipients' right to privacy.
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IX. CONTRIBUTION: EQUITY, NOT STATUTE, PROVIDED FOR EQUAL APPORTIONMENT OF ATTORNEYS' FEES BETWEEN INSURERS |
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In EnergyNorth Natural Gas, Inc. v. Centry Indemnity Company, 2007 WL 1875553 (unpublished disposition, D.N.H.), the United States District Court for New Hampshire held that a New Hampshire statute did not mandate equal sharing of defense costs among two insurers, but that equitable principles supported such an apportionment.
Read On... |
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X. GOVERNMENTAL IMMUNITY: POLICE OFFICERS GRANTED IMMUNITY FOR DISCRETIONARY FUNCTIONS |
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In Everitt v. General Electric Company, et al., 932 A.2d 831 (N.H. 2007), the New Hampshire Supreme Court held that police officers, but not the Town which employed them, were entitled to discretionary function immunity for failing to detain an individual who later caused an auto accident. The court further held that a defendant who had settled with the plaintiff must appear on the jury slip for purposes of apportionment of fault, but could not be brought into the litigation under a claim of contribution.
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| XI. NEGLIGENCE: NO CAUSAL CONNECTION BETWEEN ACCIDENT AND INJURY SUSTAINED IN SUBSEQUENT REPAIR WORK |
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In Macie v. Helms, 2007 WL 2736264 (N.H. 2007), the New Hampshire Supreme Court held that a truck driver who struck and damaged a traffic light was not liable for an injury subsequently sustained by an electrician in the course of his repair of the damaged light.
Read On... |
| XII. CGL INSURANCE COVERAGE: DUTY TO DEFEND FOR "PROPERTY DAMAGE" IN CONSTRUCTION DEFECT CASE |
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In Webster v. Acadia Insurance Company, 2007 WL 3010568 (N.H. 2007), the New Hampshire Supreme Court held that an insurer's duty to defend a contractor under a CGL insurance policy was triggered by the allegations of a writ, which alleged "property damage" separate from the contractor's own work.
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