Violation of Abuse Prevention Orders (September 24, 2010)

A district court jury recently convicted a defendant for violation of an abuse prevention order by calling the victim and threatening her.

The courts in these matters usually hear from the victim and issue a restraining order which is intended to protect the victim. The terms of the order can be crafted by the judge to prevent the defendant from contacting the victim. The terms of an abuse prevention order usually contain no abuse and to stay away from the victim’s work and home. The courts sometimes issue an order of no abuse and allow the parties to remain in the same household when they do not want to be separated.

The courts usually enter these orders ex parte without notice to the defendant. The period between the issuance of the court order and the time that the defendant is notified can create a problem.

In the case of Commonwealth v. Melton, 77 Mass. App. Ct. 552, the defendant contacted the victim; the victim informed the defendant that she went to court and received a restraining order and that the defendant would be served with that order in due course. After this conversation took place the defendant knowing that there was a restraining order in effect but before he was served, contacted the victim again using threatening language. A jury convicted the defendant, even though he had not been formally served with the court order.

The judges and police departments take these matters very seriously and the temptation to contact a victim when there is a restraining order outstanding even though strong should be avoided.

Bad Faith Claim Could Cost An Insurance Company Over $1 Million (September 17, 2010)

Our Massachusetts Appeals Court recently reviewed a case in which the Plaintiff, who was seriously injured, brought a claim and ultimately sued the Defendant who was insured by Arbella Mutual Insurance Company. The Defendant’s operator was 100% at fault. The Plaintiff suffered fractured bones which required surgery and she incurred more than $50,000 in medical expenses. A demand was sent to Arbella by the Plaintiff’s attorney requesting payment of the $20,000 policy limits carried by the Defendant. Arbella failed to respond within the thirty (30) day period and a lawsuit was brought by the Plaintiff. Ultimately, Plaintiff’s attorney reached a settlement with the Defendant in the amount of $450,000. According to the agreement the Defendant assigned all rights with Arbella to the Plaintiff. In exchange, the Plaintiff agreed not to enforce the judgment against the Defendant personally. Almost two years post settlement with the Defendant; the Plaintiff sent a 93A demand letter to Arbella demanding $1.4 million. Arbella responded with an offer of $23,966.16. Shortly thereafter suit was filed against Arbella by the Plaintiff as assignee of the rights of the Defendant. Recently, the court issued a judgment against Arbella of more than one million dollars.

After about twenty years where the insurance companies have been treated with kid gloves by our appellate courts, we finally have a court which has taken the hammer, as it should, to Arbella. Hopefully, other insurers will take note and treat injured plaintiffs with the respect and dignity which they deserve.

Personal Injury Cases – The Decision to Sue (Tuesday 9/14/10)

We all know that when a person is injured in an accident or incident in which it is clear that someone else is at fault, a claim may be made for money damages to make up for the injuries and resulting damages. When to bring a lawsuit is not always that clear. In order to win a court case, an injured party (referred to as the plaintiff) must prove that the wrongdoer (referred to as the defendant) was negligent or careless. This burden of proof is on the plaintiff, and the standard of proof is an objective one. The standard is that of the hypothetical, ordinary and prudent person and if that person would act under the same or similar circumstances as that of the defendant. If this ordinary, reasonable and prudent person would not do what the defendant did under the same or similar circumstances or if the defendant did something or acted in a particular way which differs from that which the ordinary and reasonably prudent person would do, then the defendant is responsible.

Not only must there be negligence but there must be a causal relationship between that negligence and the resulting injury and damages. Finally, the case must be properly evaluated to determine whether it makes economic sense to justify a claim and perhaps a lawsuit. At Ianello & Brittain P.C. we rarely take cases which cannot proceed to court. Therefore, it is imperative that a client’s case be properly screened and evaluated to determine whether or not it makes economic sense to justify a lawsuit. In other words, will the expected monetary result justify the time and expense, not just for the lawyer, but for the plaintiff and his or her witnesses. The average lawsuit involves 50 to 100 hours of time to properly analyze, evaluate and prepare the case for trial. Litigants and witnesses must be thoroughly and completely prepared for trial to have the confidence it takes to win. Discovery requests, medical records and bills, wage and employment records, and financial records including bank statements and tax returns, if applicable, may also be necessary in the proof of the case. Using superior trial techniques, at Ianello & Brittain we take pride in maximizing a client’s recovery.

Sobriety Checkpoints

Sobriety checkpoints are deemed to be constitutional in OUI, DUI, DWI cases. In two cases the defendants attacked the sobriety checkpoints as unconstitutional because the first stop is made by an officer or state trooper who inquires as to whether someone has been drinking or using alcohol. It is at that point that the trooper makes a determination as to whether or not you are to be directed to a second checkpoint where you are asked to perform field sobriety testing as well as a breath test.

The lower courts both felt that the checkpoint was unconstitutional because it was purely discretionary on the part of the first officer or state trooper’s judgment as to whether or not you should proceed to the second checkpoint. The Supreme Judicial Court, however, reversed the lower court and decided that it was constitutional as long as the officer’s training and experience will allow him to differentiate between someone who is merely drinking (which is not a crime) and someone who may be under the influence as noted by the smell of alcohol, the responses from the person, and observations about speech, movement, etc.

The court did not change the existing law that a person instructed to proceed to the second checkpoint does not have to submit to any field sobriety testing or breath testing as such refusals are still constitutionally protected.

Wind Project Gets OK

On August 31st the Supreme Judicial Court decided that the wind project planned for Nantucket Sound may go forward. Some of the wealthy residents of Nantucket formed a corporation named Alliance To Protect Nantucket Sound, Inc. in order to try and block the wind farm. The wind farm will supply three quarters of the energy on Cape Cod. The wind farm project started in 2001 and it was originally thought that the wealthy residents who were well connected like former Senator Kennedy, current Senator John Kerry and many others would be able to block the project. But even with the help of former Senators Kennedy and John Kerry, both of whom opposed the project, the wind farm should be a great accomplishment to reduce our dependency on oil. It will also advance the technology of wind power which is in the infancy stage at present.

It seems like a repeat of the same old story. Everybody jumps on the bandwagon to support alternative energy and green house gas free but “not in my back yard”.

Loss of Chance Survival

This is a new theory that Massachusetts adopted with reference to our medical malpractice laws as of September 2008 which reinforces an additional theory of recovery in Massachusetts in a delayed diagnosis of cancer case.

For example, a breast cancer patient whose doctor commits medical malpractice by failing to detect a tumor until it has reached the size or the category of a Stage III or IV cancer has reduced the chances for the cancer patient to survive. If the cancer had been properly diagnosed and detected at a Stage I there is a 90% chance of survival, but at a Stage III or IV there is only a 30% chance of survival.

This theory also rebuts the inevitable argument by the negligent doctor that the patient would have died anyway; it was just a matter of time. Unfortunately, some doctors don’t understand that time is a precious commodity to someone who is battling cancer.

Of great significance is whether or not the plaintiff in a malpractice claim was proactive and did everything that they could to seek timely diagnosis and treatment. Any delay on their part could and most likely will be construed as contributing to their delay in diagnosis.

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