Articles Posted in Car Accidents

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According to a study conducted by Mothers Against Drunk Driving, in 2016 there were 119 drunk driving deaths in Massachusetts, which comprised 31 percent of all traffic fatalities in the state. Drunk driving is often thought of as a criminal violation; but alcohol related accidents also open the door to civil liability, and not just for the drunk driver.

commerce-acts-books-477966-mIn Massachusetts, the person(s) who served the alcohol to the drunk driver may be held liable to the injured third party under the legal theory known as “social host liability”.  The common law theory of social host liability was first recognized by Massachusetts courts in McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152 (1986). In McGuiggan, the defendants hosted a party at their home and provided alcohol to their guests. One of the guests became intoxicated and left with the defendants’ son to drive three other guests home. Due to the drunk guest’s negligent driving, the defendants’ son was injured and died. The court in McGuiggan found that the defendants were not liable for the death because there was no evidence that they knew the driver was intoxicated at any time while he was at their home.

However, the court stated it would “recognize a social host’s liability to a person injured by an intoxicated guest’s negligent operation of a motor vehicle where a social host who knew or should have known that his guest was drunk, nevertheless gave him or permitted him to take an alcoholic drink and thereafter, because of his intoxication, the guest negligently operated a motor vehicle causing the third person’s injury.” The court noted that such an inquiry requires consideration of “whether the social host unreasonably created a risk of injury to a person who the social host should reasonably have foreseen might be injured as a result of the guest’s intoxication.”

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Massachusetts automobile insurance policies are complex legal documents with confusing terms and conditions. Understanding what you are covered for, after you are injured in an accident, can be tricky.  Whether you reside in Middlesex County, Essex County, Suffolk or elsewhere in the Commonwealth, knowing which coverages are required, which are optional and what coverage may be best for you, is complicated.  All too often, car owners’ pay the monthly or annual auto insurance premium without thought to the extent of coverage. It only comes into play after an accident, perhaps  driving along Route 1 from Peabody, Danvers and Lynnfield into Boston; or Route 128 to the North Shore Mall. Only after an accident do most of us look at the level of coverage in the auto insurance policy and then it is too late to increase values.  Once the accident occurs you cannot retroactively alter your coverage.

commerce-acts-books-477966-mThe standard form of the Massachusetts auto insurance policy can be found by clicking the following link: here.  In Massachusetts, the standard policy has a section entitled “Compulsory Insurance” coverage and a section entitled “Optional Insurance” coverage.  “Compulsory” means mandatory. You must have them. Mandatory coverages have the following minimum limits:

  Required coverages (types) for Massachusetts auto insurance, and the required minimum limits (dollar amounts) for each coverage.
Required Coverage Required Minimum Limit
Bodily Injury to
$20,000 per person;
$40,000 per accident
Personal Injury
Protection (PIP)
$8,000 per person, per accident
Bodily Injury Caused
by an Uninsured Auto
$20,000 per person;
$40,000 per accident
Damage to Someone
Else’s Property
$5,000 per accident

Be sure to discuss with your insurance agent whether or not your circumstances warrant increasing those limits beyond the minimum requirement.  In addition, when it comes to “Optional” coverages, particularly with respect to coverage for medical bills and treatment related to an auto accident, being pennywise may be foolish.

The above chart shows that Personal Injury Protection “PIP” coverage is mandatory.  PIP covers medical expense costs and lost wages of occupants of the insured vehicle resulting from an accident regardless of who is at fault.  However, PIP coverage only pays up to $8,000.00 and only pays up to $2,000.00 if you have health insurance.  And then, what if your health insurance has a $2000.00 deductible and 20% co-pay?

Medical Payments coverage, or MedPay, is optional.  It is Part 6 of the current Massachusetts Automobile Insurance Policy.  If you have MedPay coverage it will help pay medical expenses in the event of an accident. Like PIP, Med Pay coverage applies regardless of who is at fault.

MedPay coverage can be used after PIP Coverage and health insurance limits are exceeded. Given the small added premium, it is an option most drivers’ should consider.  MedPay also covers out of pocket expenses that may not be covered by your health insurance, such as dental bills, prosthetics, over the counter medical costs and, in worst case scenario, funeral expenses.

In a recent Massachusetts Superior Court case,  DeOliveira v. Liberty Mutual Insurance Company, the insurance company refused to reimburse its insured under her MedPay coverage for medical expenses she paid out of pocket.  The insured sued the insurance company.  The Superior Court Judge denied the insurance company’s motion to dismiss the insured’s claim.  Suffolk Superior Court C.A. No. 17-00218-BLS1.  The Judge in DeOliveira relied upon an earlier case, Kirby v. Liberty Mutual Insurance Co., 89 Mass. App. Ct. 1136 (2016).  In Kirby, the plaintiff was injured in an auto accident.  She had health insurance.  Her auto insurance company paid the first $2,000 in medical expenses under her PIP coverage.  Her health insurer then paid an additional $4,956.67 but placed a lien on her negligence claim against the at-fault driver.  She paid the $4,956.67 back to her health insurance carrier to satisfy the lien and then submitted a claim under her own MedPay coverage for reimbursement of the $4,956.67.  Her auto insurance company refused to reimburse her.  The Appeals Court in Massachusetts affirmed judgment in her favor and ordered her auto insurer to reimburse her under her MedPay coverage.

Optional coverages available to you under your automobile policy may increase your premium payment can but prove invaluable if you need to submit a claim for medical expenses from a car accident. MedPay is just one of the important options every MA licensed driver should consider.

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According to a recent report released by the Transport Research & Innovation Portal (TRIP), Massachusetts’ highways are some of the busiest and most congested in the nation. The Commonwealth’s highways have the tenth highest rate of vehicle travel per lane per mile and are ranked the sixth most congested in the country. Massachusetts’ ranking will come as no surprise to anyone driving through Middlesex County or Essex County or anywhere in the North Shore during rush hour.

commerce-acts-books-477966-mWith the high number of vehicles on the roads and severe congestion also come a high number of auto-accidents. Fortunately for those injured in a car accident in Massachusetts, the Commonwealth is a no-fault insurance state. As discussed in a prior blog about the types of Damages and Compensation available to someone injured in an auto-accident, no-fault insurance benefits, also known as Personal Injury Protection (PIP), allow an injured party to seek payment for certain economic damages from their own insurance company. If the injured person was a passenger, they must seek PIP benefits from the insurance company for the driver of the car they were in at the time of the auto-accident.

Massachusetts’ no-fault insurance requirements are contained in M.G.L. c. 90, §34M. As the name suggests, no-fault insurance benefits are available to an injured party regardless of liability. In Massachusetts, PIP Benefits cover the first $8,000.00 for costs of medical expenses, a portion of lost wages, and certain replacement services necessary due to injury from the auto-accident. There are certain requirements that an injured person must comply with to receive PIP benefits. For example, the injured person must report whether or not they have private health insurance to their auto-insurance company. If an injured person claiming PIP Benefits has private health insurance, PIP only covers the first $2,000.00 of the injured person’s medical expenses. The remaining $6,000.00 of PIP Benefits may still cover a portion of lost wages, replacement services and out-of-pocket costs to the injured party for medical care.

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Casualty insurance companies, upon being notified of a covered accident and injury, have a legal obligation to properly and timely investigate and then effect a fair settlement    If you are injured in an accident in Massachusetts because of the negligence of another who has insurance and responsibility for the injury is reasonably clear, the insurance company has an obligation to settle the case fairly and promptly.

commerce-acts-books-477966-m           Under Massachusetts law, it is an “unfair claim settlement practice” for an insurance company to fail “to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” M.G.L. c. 176D § 3 In circumstances where it  is reasonably clear that another person is at fault for the accident and has insurance coverage, the insurance company must act promptly, fairly and equitably in attempting to settle the claim against the responsible party and to justly compensate the injured.  Failure to do so, by the insurance company, may result in significant consequences or damages for the insurance company.

Anderson v. National Fire Ins. Co. of Pittsburgh PA  is one example of a recent Massachusetts decision out of the SJC applying M.G.L. c. 93A and c. 176D to an insurer.  On September 2, 1998 Odin Anderson was crossing the street in Boston when he was struck and injured by a bus.  The bus was owned by Partners Healthcare Systems, Inc. as was operated by a Partners employee.  As a result of the accident, Mr. Anderson suffered serious injuries including a fractured skull and intracerebral hemorrhage.  Mr. Anderson, through counsel, attempted to reach a settlement with the defendants.  The defendants rejected the plaintiff’s demand for settlement and refused to enter into settlement negotiations.  In May 2001, Mr. Anderson sued Partners and the employee who was operating the bus at the time of the accident.  In March 2003, Mr. Anderson filed a separate action under M.G.L. c. 176D, §3 and M.G.L. c. 93A, §9(3), alleging “willful and egregious failure to conduct a reasonable investigation of the plaintiffs’ claims, and failure to effectuate a prompt, fair, and equitable settlement, notwithstanding that liability had become ‘reasonably clear’ by the time the plaintiffs filed their initial complaint.”

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North Shore Winter is beautiful but when the roads and highways are snow covered it can also be dangerous.  Plows, sanders and salt trucks work to keep the ways clear but conditions and traffic from Route 95, 128, and Route 1, along with the feeder roads can become treacherous for automobiles during the winter months. For example, recently Massachusetts was hit with a couple of Nor’easters resulting in significant snow and ice accumulations.  According to CBS Boston, a massive car accident on Route 128 involving 55 vehicles occurred around 6:15 a.m. between Exits 39 and 40 in Wakefield, Massachusetts.  The highway was shut down and “eight people were transported to the hospital with… injuries”.  For those injured, a question arises as to damages and causation and compensation. Damages refer to the amount of money you may be entitled to for compensation by someone who has caused you harm as a result of their wrongdoing or negligence.  Massachusetts is a no-fault insurance state.  Under the no fault provisions, among other things, an injured person from a car accident must seek payment from his or her own insurance company for PIP (personal injury protection) for payment of medical bills. Generally, one may not claim damages for economic damages, against another’s insurance company, unless the reasonable medical bills exceed $2,000.00.

commerce-acts-books-477966-mThere is also the issue of different types of Damages. Chiefly they fall into two categories: Economic and Non-Economic. Damages for pain and suffering fall into the non-economic category. Here are some examples of the types of harm covered under economic and non-economic damages:

Economic damages:

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November 6 marked the end of Daylight Saving Time.  We turned the clocks back one hour.  That means it is lighter when we wake up and head out for the morning commute, but it is dark outside when most of us head home from work in the evening.  The loss of one hour of afternoon sunlight increases the risk of traffic and pedestrian accidents in Lynnfield, Lynn, Danvers and Middleton and throughout the North Shore.

commerce-acts-books-477966-m“The time change officially [took] place at 2 a.m., but you don’t have to spring out of bed and move the big hand on your clock back an hour. The change is automatic for most smartphones, computers, tablets and other digital devices.

If you’re still using an analog alarm clock, you’ll probably want to move it back before you go to sleep on Saturday or when you wake up the next morning.

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Halloween has come and gone for 2016 in Lynnfield, Saugus and throughout the North Shore.  October 31st is an exciting day for children across the U.S. to dress up and trick or treat.  There is no better place for goblins and witches to roam the streets than nearby Salem, the home of the Witch Trials in the 17th Century. However, all goblins and witches must beware of the dangers of traffic accidents on this popular night.

commerce-acts-books-477966-mAccording to The Salem News a Beverly man was arrested in a hit-and-run accident that seriously injured two children and one adult in Salem.  He was charged with operating under the influence of alcohol, failing to yield to pedestrians in a crosswalk and leaving the scene of an accident with personal injury.  Halloween is a dangerous night throughout the North Shore due to impaired drivers. In 2015, over half (52%) of all highway fatalities across the nation on Halloween night involved a driver or a motorcycle rider with a Blood Alcohol Content of .08 or higher, according to Traffic Safety Marketing.

There’s nothing scarier on Halloween, or really on any night, than a drunk or impaired driver.

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Under the current law in Massachusetts, marijuana may be legally prescribed by a doctor to the patient. There are more than 12,000 people in the Commonwealth who are allowed, under State law, to purchase the drug. Yet it remains a defined controlled substance, illegal under federal Law.  To seek State approval to acquire marijuana for medical purposes, one must meet with a MA State certified doctor who has been approved for prescribing the drug. There are about 108 approved doctors statewide. The nearest marijuana distribution center serving the North Shore, including the cities and towns of Lynn, Lynnfield, Danvers and Peabody, is in Salem and there is an application pending for a second dispensary in Saugus.

commerce-acts-books-477966-mTo get started you select a clinic or approved Doctor. You must have a “debilitating condition”, for example anxiety or chronic pain, and the certifying Doctor must agree that you will benefit from medical cannabis. You will then get a PIN and a logon and can register in the state’s gateway.  Next is a 15 step process through the gateway to formally register. Once approved you will get a card in the mail and can then go to the dispensary for your medication.

This November a ballot question seeks to expand marijuana use to legalize it for recreation purposes.   The Massachusetts Marijuana Legalization Initiative, also known as Question 4 is on the November 8, 2016 ballot in Massachusetts as an indirect initiated state statute.

  “yes” vote supports this proposal to legalize marijuana, but regulate it similar to alcoholic beverages.
“no” vote opposes this proposal to legalize recreational marijuana, keeping only medical marijuana legal.[1]

If ballot question 4 is passed and then becomes law, individuals over twenty one years old will be allowed to grow, possess and use marijuana (subject to Federal law).,_Question_4_(2016)

According to experts, this may have a significant effect on automobile safety, accidents and personal injuries. “Marijuana use in driving is a growing, contributing factor to fatal crashes,” said Jake Nelson, the director of traffic safety advocacy and research at the American Automobile Association (AAA) said. “It’s a highway safety problem that we should all be concerned about.”

Studies have shown that in those states where marijuana has become legal, the number of drivers who had traces of marijuana in their blood and were involved in fatal accidents, has doubled. More research needs to be done to determine if there is a safe level of THC in the blood stream, what will be defined as impaired driving, and how to accurately and fairly test the level to protect society, yet respect privacy and prevent unwarranted searches.

Blood level of alcohol is an accurate measure of impairment and with properly calibrated equipment or a blood test, can be reliably measured. The state is able to define limits for acceptable levels of blood alcohol and when one is impaired. Unfortunately the same is not true for defining or measuring impairment with marijuana (THC).

Alcohol and THC are different drugs, each of which react in the body differently. To try to use breath test or blood test similar to the one that measures blood alcohol content will not yield accurate information as to driving impaired, or not, under THC. Currently, in states that have legalized marijuana, authorities are using a combination of field sobriety tests, blood tests and evidence from drug impairment experts to identify and define drivers who are impaired by THC. A growing body of thought is to reverse the burden once THC is found in the blood system. It would require the driver accused of operating impaired, to prove that he was not. This would be a dramatic shift in burden and raise potential issues of constitutionality.

The outcome of ballot question 4 may have a significant impact on safe driving and auto accidents and injuries in the years to come.

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It’s summer fun and sun and vacation time.  Vacationers from Peabody, Danvers, Saugus, Salem, Lynn and Wakefield are taking their activities outside to enjoy the balmy breezes and dry pleasant air.  Kids of all ages are pedaling the bike paths and rail trials all over the North Shore. Motorists are enjoying the scenery, taking day trips to the beautiful sandy beaches and strolling the outdoor shopping centers, such as the Lynnfield Market Street.  The North Shore in the summertime is abundant with tourists and residents appreciating all that Massachusetts and the North Shore have to offer.  Unfortunately, along with the crowds enjoying outdoor activities, comes the potential for accidents.  If you are injured while participating in a summer activity, you should consider speaking with an experienced injury lawyer.

commerce-acts-books-477966-mBicycle accidents, car accidents or slips and falls can cause serious injuries, medical expenses and lost time at work.  Talking to a knowledgeable personal injury attorney could go a long way towards getting you a fair settlement for your injuries.  If you have severe injuries, expensive medical bills, or significant loss of wages because of your injuries from an accident, you should consult with a lawyer who practices in the areas of accident and injury law.  Some personal injury lawyers may focus on one area of personal injury in particular, such as slip and fall accidents or car accidents or wrongful death.  One good way to find an experienced accident attorney is by referral, another is to speak with family and friends or search the internet to see what other people have to say about the attorney that you are considering.

If you have an injury from an accident and seek compensation from the wrongdoer, you can expect them to have a lawyer or trained claim handler to review and respond.  This person is not looking out for you.  Rather, they may be trying to trick you into saying something that can be misinterpreted or taken out of context and then be used to reduce or deny your claim.  Level the playing field, don’t wait, get your own skilled lawyer to help as soon as you can.

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The beach beckons. As the weather improves folks on the North Shore from Lynnfield, Saugus, Lynn, Danvers and all around, start to look to spend time at the beach, including Cranes Beach in Ipswich, Long Beach in Gloucester, Lynch Beach in Beverly or maybe Salisbury Beach or Revere Beach.  After a day down the shore it is common to start driving home as the sun is setting.   One important safety factor when driving after sunset is good clear operating headlights. Nearly half of all traffic deaths occur in the dark or in dawn or dusk conditions, thus the importance of upgraded headlights is clear and has the potential to bring about substantial reductions in fatalities, according to the Insurance Institute for Highway Safety.

commerce-acts-books-477966-mAs headlights have progressed over the years, drivers are now able to change their headlights to help with glare and better visibility in general.  There are two main styles of headlights on the market right now.  The older design is a reflector style lamp which has a large reflective surface in the back lining of the headlight.  The reflective disk emits the light forward in a pattern to light up the road ahead but not blind oncoming cares.  The newer headlights have projector style lamps where a focus lens is at the front of the lamp, the bulb is located in the rear of the lens unit and the light is transmitted forward to the lens to create and direct the beam’s pattern.  Retrofit kits offering high intensity discharge lamps to replace the older style are now available. These kits are relatively inexpensive, but once installed in a reflector style headlight they create an unfocused light that often throws light patterns too high and wide and may result in a safety risk to oncoming drivers.

Government standards for headlights allow a huge variation in the amount of illumination they provide. For example, the Prius V headlights earn a good visibility rating when the car is equipped with LED lights and high-beam assist.  However, when the Prius V is equipped with regular halogen lights and without high-beam assist, the car earns a poor rating.  The Prius V’s LED lights on average will give a driver traveling 70 miles per hour enough time to avoid an obstacle where a car with halogen head lights would need to drive 20 miles per hour slower to avoid the same obstacle.

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