Boyle, Morrissey & Campo, P.C.            Newsletter
 
July 2009
In This Issue
I. MA - EMPLOYER HOST LIABILITY: EXISTENCE OF "EMPLOYEE ALCOHOL CONSUMPTION POLICY" DOES NOT IMPOSE A DUTY OF CARE ON EMPLOYER THAT DID NOT FURNISH OR CONTROL ALCOHOL TO EMPLOYEE
II. MA - INSURER NOT LIABLE FOR 93A AND 176D VIOLATIONS WHEN IT DID NOT EXERCISE EXCLUSIVE CONTROL OF DEFENSE AND SETTLEMENT OF CLAIM
III. MA - CHARITABLE IMMUNITY DEFENSE: WHETHER CHARITABLE CORPORATION'S JULY FOURTH CARINVAL WAS PRIMARILY COMMERICAL IN NATURE OR FURTHERED CHARITY'S PURPOSE IS QUESTION OF FACT
IV. MA - INSURANCE COVERAGE: INSURED MISREPRESENTED PLACE OF "PRINCIPAL GARAGING" IN COMMERICAL AUTO APPLICATION WHEN VEHICLE WAS GARAGED MORE THAN FIFTY -PERCENT OF TIME AT DIFFERENT LOCATION THAN INDICATED IN APPLICATION
V. NH - INSURANCE COVERAGE: FAILURE OF INDOOR CLIMBING GYM TO OBTAIN WAIVER OF LIABILITY FROM CUSTOMER AS REQUIRED BY POLICY
VI. RI - INSURANCE COVERAGE: NO CONFLICT IN "OTHER INSURANCE CLAUSES" WHEN NO WRITTEN AGREEMENT EXISTED BETWEEN THE PARITES THAT POLICY NAMING ADDITIONAL INSURED WOULD BE PRIMARY OR CONTRIBUTORY
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This summary of recent developments in the law of Massachusetts, New Hampshire, and Rhode Island is provided as a courtesy to our clients. The original text of cases and statutes will be provided upon request.

John D. Boyle
I. EMPLOYER HOST LIABILITY
Existence of "employee alcohol consumption policy" does not impose a duty of care on employer that did not furnish or control alcohol to employee.

In Lev v. Beverly Enterprises-Massachusetts, Inc., 74 Mass. App. Ct. 413 (2009), the Appeals Court of Massachusetts held that the existence of an "employee alcohol consumption policy" did not impose a duty of care on an employer who did not furnish or control alcohol consumed by an employee during a meeting with his supervisor who was involved in a subsequent motor vehicle accident. 
 
 Read On... 
II.  INSURER NOT LIABLE FOR 93A AND 176D VIOLATIONS WHEN IT DID NOT EXERCISE EXCLUSIVE CONTROL OF DEFENSE AND SETTLEMENT OF CLAIM

In Mut. Ins. Co., Ltd. v. Murphy, 2009 WL 1877327 (D. Mass. 2009), the United States District Court, District of Massachusetts held that an insurer who did not exercise exclusive control over defense and settlement of a defamation lawsuit could not be held liable for violations of c. 93A and 176D.

 

III.  CHARITABLE IMMUNITY DEFENSE

Whether charitable corporation's July Fourth Carnival was primarilty commercial in nature or furthered charity's purpose is question of fact.
 
In Webb v. Phillips, 2009 WL 1850962 (Mass. Super. 2009), the Superior Court of Massachusetts, Worcester County, held that a material issue of disputed fact existed as to whether a Fourth of July carnival sponsored by the Lions Club was primarily commercial in nature or whether the event was an activity accomplishing the purpose of the club in order to determine whether the Lions Club could benefit from the statutory charitable cap.
 

IV. MASSACHUSETTS INSURANCE COVERAGE

Insured misrepresented place of "principal garaging" in commerical auto application when vehicle was garaged more than fifty-percent of time at different location than indicated in application.
 
In Arbella Mut. Ins. Co. v. Feigo, 2009 WL 1906418 (Mass. App. Ct. 2009), a decision rendered under Rule 1:28, the Massachusetts Appellate Court held that an insured under a commercial auto policy materially misrepresented the place of principal garaging in his auto application where he garaged the insured auto at a separate location more than 50% of the year. 
 
Read On...

V.  NEW HAMPSHIRE INSURANCE COVERAGE

Failure of indoor climbing gym to obtain waiver of liability from customer as required by policy.
 
In Colony Ins. Co. v. Dover Indoor Climbing Gym, __ N.H. __ (2009), the New Hampshire Supreme Court held that Colony Insurance Company ("Colony") was not required to provide coverage due to an endorsement which required participants at the gym to sign waivers of liability.
 
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VI.  RHODE ISLAND INSURANCE COVERAGE

No conflict in "other insurance clauses" when no written agreement existed between the parties that policy naming additional insured would be primary or contributory.
 
In Irene Realty Corp. v. Travelers Prop. Cas. Co. of America, 2009 WL 1576517 (R.I. 2009), the Supreme Court of Rhode Island held that two "other insurance" clauses existing in two insurance policies did not conflict necessitating coverage on a pro-rata basis.  
 
Read On...