Articles Posted in Personal Injury

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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.

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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. https://www.boston.com/culture/health/2015/09/23/how-to-get-medical-marijuana-in-massachusetts

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).  https://ballotpedia.org/Massachusetts_Marijuana_Legalization,_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.” http://www.livescience.com/54693-high-drivers-double-after-marijuana-legalization.html

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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There are a large number of limousine company’s on the North Shore, in cities such as Lynn, Lynnfield, Saugus and Danvers.

commerce-acts-books-477966-mA recent news article published in the Boston Globe entitled, Two passengers fell out of party bus window concerns a limo company and details the tragic death of a woman in East Boston.  According to the report, a group of 20 friends retained a limousine “for a night on the town” on August 21, 2016.  The group went to an area beach and was returning when the emergency window opened and two women fell out and were subsequently hit by another vehicle leaving one injured and one fatally wounded.  A question has arisen as to the negligence of the limousine company and if they are responsible for the wrongful death of a young woman and the serious injuries of another.

In Massachusetts, wrongful death is governed by M.G.L. Ch. 229, Section 2 which states that a person or company may be liable for the wrongful death if the person or company causes the death of another by:

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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.