Articles Posted in Personal Injury

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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
Others
$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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“The wheels of justice turn slowly, but grind exceedingly fine.” Litigation is often a lengthy process and the old proverb is certainly true for the inundated Massachusetts courts. In 2017 close to 7,000 cases have been filed in the Superior Courts of Essex County and Middlesex County alone. It comes as no surprise that litigation can languish for years before a case is resolved.

commerce-acts-books-477966-mWith the Court backlog and typical litigation delays there are more and more instances where an injured party (Plaintiff in a tort lawsuit) may pass away before the case reaches trial and is resolved at the appellate level. When a tort Plaintiff dies before the case ends, what happens to the personal injury claim? Under Massachusetts statute and common law, certain actions survive the death of the claimant. For example, Massachusetts common law allows contract actions to automatically survive the death of a claimant; however, personal injury claims do not. Personal injury actions are defined as “survival actions” under M.G.L. c. 228 §1, which provides that survival actions include:

“Actions of tort (a) for assault, battery, imprisonment or other damage to the person; (b) for consequential damages arising out of injury to the person and consisting of expenses incurred by a husband, wife, parent or guardian for medical, nursing, hospital or surgical services in connection with or on account of such injury; (c) for goods taken or carried away or converted; or (d) for damage to real or personal property…”

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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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Massachusetts federal and state courts have become a hub of mass tort actions. Mass tort actions are very different from typical North Shore, Lynnfield, Lynn and Saugus torts, accidents and injury law. Mass torts require massive resources and involve high-stakes but what exactly is a mass tort? Many people understand that a tort is a wrongful act that causes harm or injury to a person and exposes the wrongdoer to civil liability. Typically, tort actions involve one plaintiff and one defendant. For example, imagine that you are on your way home from work on Route 128 and the traffic comes to a sudden grinding halt. You come to a complete stop and the car following you slams into the back of your car. This is a classic tort action involving a wrongful act, you as the single plaintiff and the other driver as the defendant. A mass tort is different because where it also involves a single wrongful act; the wrongful act causes harm or injury to numerous victims.

commerce-acts-books-477966-mA majority of the mass tort actions in the Commonwealth are centralized in the Federal District Court District of Massachusetts; however some prominent mass torts are in the state civil courts. Just one mass tort action can involve numerous cases. For example, over 3,000 claims related to a mass tort action involving the dialysis products GranuFlo and NaturaLyte manufactured by Fresenius were filed in the Middlesex County Superior Court in Woburn. See In re: Consolidated Fresenius Cases, CV2013-03400. A settlement for the Fresenius cases in the amount of $250 million was reached earlier this year.

While many mass tort actions involve injuries caused by defective consumer products, specifically pharmaceutical drugs or medical devices, mass torts can also arise from large scale disasters (such as an oil spill) or toxic torts (such as contaminated groundwater). Mass tort actions allow a large number of plaintiffs to sue a common defendant in a consolidated action if their cases arise from a common cause.

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And so today it starts – whether you are a parent that starts planning for the holidays before you put a pumpkin out or you wait until the last minute to run to the Northshore Mall in Peabody or Square One in Saugus, like it or not – the holidays are coming.  One sure sign that the holidays are around the corner is the local news station’s annual report on the worst toys for the year.  Each year, the non-profit watch-dog group from Massachusetts, World Against Toys Causing Harm Inc. (or W.A.T.C.H.) releases its “10 Worst Toys of 2016”.  While some think the edict from W.A.T.C.H. can be alarmist, parents and anyone in Massachusetts looking for toys to buy children should be aware of the list.

commerce-acts-books-477966-mAccording to W.A.T.C.H.’s website http://toysafety.org/, its primary goals are to advocate child safety and correct abuses in the manufacturing and marketing of children’s toys and products.   It seeks to raise awareness about hazards prevalent in the marketplace, creates educational programs, and allows childcare givers and children to make more informed decisions with regard to toys and recreational products.

There is no substitute for parental guidance and common sense, but it is helpful to be mindful of safety concerns that W.A.T.C.H. has with certain toys.  This year, a sampling of those products that made the list are: an inflatable suit that children wear while crashing into each other; hammer inspired by weapons in the movie “Warcraft”; “slimeball launcher” is similar to a slingshot, and is sold with bright green “slimeballs” as ammunition, which can be fired “over 30 feet!” Projectiles launched with such force have the potential to cause serious eye injuries and rank among the 10 most hazardous toys on an annual list released on Tuesday by U.S. child safety advocates.  A puppy with a string pull where the string is 31 inches long is suggested for children “2+”.   The package also contains no warnings.  These are just some of the many toys on the list to be mindful of.

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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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Do you know what happens if you are driving around Lynn, Lynnfield, Peabody, or  other North Shore community in Massachusetts and are injured by a federal government employee or vehicle owned by the federal government?  What if you are in a federal government building in Massachusetts and are injured?  If you are injured by the negligence of an employee of the federal government in Massachusetts, you or your attorney will need to determine whether or not your claim is subject to the Federal Tort Claims Act (“FTCA”).  If so, compliance with FTCA and attention to detail are musts, otherwise you could jeopardize your right to recovery.

commerce-acts-books-477966-mWhat is the FTCA?  While the statutory construction of the FTCA is somewhat complicated for a lay person, the purpose is pretty straightforward – to provide a limited window of recovery against the United States for the wrongdoing of one of its employees.  It starts with the concept of “sovereign immunity”.  This common law doctrine essentially shielded government officials and employees from personal liability in tort for carrying out governmental duties.  So, although private employers could be held liable for the wrongs of their employees, the federal government could not be held liable for the wrongs of its employees.  In 1946, the FTCA was enacted to provide a limited waiver of the federal government’s sovereign immunity when its employees are negligent within the scope of their employment.  28 U.S.C. 2671-2680.  Under the FTCA, the government can be sued ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ 28 U.S.C. S 1346(b).  The FTCA includes a number of exceptions to its application, so it must be determined whether or not your claim falls within the FTCA’s window of allowable claims.

What is Presentment under the FTCA?  Before an action under the FTCA can be filed with a court, the claimant must make proper “Presentment”.   Presentment is written notice to the appropriate government agency. 28 U.S.C. § 2675(a).   Typically this is done by government’s Standard Form 95 (“SF-95”) linked here https://www.justice.gov/sites/default/files/civil/legacy/2011/11/01/SF-95.pdf  although the form is not required if another writing contains the required elements of notice to the agency. The written claim must provide the agency sufficient notice so that it can conduct a proper investigation to determine liability, conduct settlement negotiations and assign value to the claim.  State Farm v. United States, 2004 WL 1638175 (E.D.N.Y.); McNeil v. United States, 508 U.S. 106, 112 (1993).   Presentment must be made within two years after the claim arises and suit must be filed within six months after a claim is made or denied, whichever is first.

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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.