Massachusetts Injury Lawyer Blog

It's always a tragedy when someone leaves a bar after a night of drinking, steps in his or her car, and causes a motor vehicle accident resulting in personal injury.

For years, that tragedy was compounded by Massachusetts law, which let bars and restaurants operate without liquor liability insurance. Like other businesses, Massachusetts restaurants and bars have traditionally carried general commercial liability insurance covering on-site problems, including slip and falls and other injuries. But this insurance offers no assistance to drunk driving accident victims.

In late May, Massachusetts lawmakers corrected this and passed a law requiring restaurant and bar owners to carry liquor liability insurance. Establishments must carry a minimum of $250,000 per person/$500,000 per accident coverage. In other words, policies must provide a minimum $250,000 for bodily injury or death of one person and a total of $500,000 per incident involving bodily injury or death.

Innocent victims of drunk driving accidents still face the traditional hurdles in proving their cases against bars. One hurdle is strong juror bias. Juries do not hesitate to hold the drunk driver responsible. But juries are often reluctant to blame a drinking establishment for over-serving a patron, even though the law is perfectly clear that a bar has a legal duty to not serve someone who is intoxicated.

Restaurants and bars seek to avoid liability for over-serving patrons, and they typically claim they did not recognize that the patron was intoxicated. The recent Massachusetts Appeals Court case of Rivera v. Club Caravan, Inc., 77 Mass. App. Ct. 17 (2010), reviewed the legal standards for "dram shop cases." Generally the plaintiff must prove the patron showed outward signs of intoxication by the time he or she was served her last drink. However, circumstantial proof can also be sufficient. If the patron had consumed excessive quantities of alcohol, a jury can draw an inference that he would have been visibly intoxicated. So, where a patron is served fourteen drinks in two hours, as in the Rivera case, or was served six or more white Russians, as in another Massachusetts case, the circustantial evidence is strong enough.  

Personal injury attorney Ronald Gluck called the new law "a step forward" for the safety of Massachusetts residents.  "Restaurants and bars will want to have strong policies in place--and to follow them--not just to avoid liability but also to avoid large increases in their insurance premiums. The new liquor insurance law should help reduce drunk driving accidents in Massachusetts."

Click here for the full text of the law.

Continue reading "Massachusetts Bars Must Now Carry Liquor Liability Insurance" »

If you're a bicyclist, you know safety's first. Knowing the rules of the road and riding defensively are the best ways to protect yourself from harm. But you must also think finances in case of personal injury. Between lost wages and medical costs, the bills can add up fast. Even if a motorist's involved, their car insurance may not cover all your expenses.

There's good news. You can protect yourself financially in a bike accident with a few changes to your own car insurance. The two smartest things a cyclist can do are:

• Purchase adequate amounts of Underinsured and Uninsured Motorist coverage


• Purchase adequate Medical Payments coverage

These coverages are affordable. In fact, you can access up to $100,000 of Medical Payments coverage for just $71! Read on as Boston personal injury lawyer David White shares his advice to cyclists for keeping safe and protecting their wallets.

Click here for full article.

Continue reading "Massachusetts Bicyclists Can Protect Themselves With Car Insurance" »

David White, a principal at the Boston personal injury law firm of Breakstone, White & Gluck, recently appeared on Money Matters Radio for their mid-day show. Here is the audio from the presentation.

Money Matters Radio Broadcast

David talks about what car insurance you should have to protect yourself, and others, in the event of a car accident; about medical malpractice; and about insurance bad faith in Massachusetts.

To download the broadcast, click here.

Many thanks to our good friends at Money Matters Radio and host Chris Findlen.

The state Attorney General is in the preliminary stage of a systematic review of the Massachusetts healthcare system and has already made some startling discoveries about healthcare costs. Martha Coakley's office found significant cost variations among hospitals and physicians based on factors other than quality of care.  Although the investigation is still ongoing, Attorney General Coakley has expressed concern about affordable and accessible healthcare if the identified systematic failures are not addressed and has urged policymakers to implement cost containtment measures.

As part of the investigation, the Attorney General's office reviewed documents from insurance companies and healthcare providers representing the bulk of the healthcare market in the state to examine healthcare costs and costs drivers. Specifically, the Attorney General examined insurance contract prices between insurance providers and hospitals between 2004 and 2008. The concern is that although Massachusetts has improved access to the healthcare market--97 percent of the population has healthcare coverage--this improvement could be compromised by cost increases.  Attorney General Coakley warned if left unchecked, price disparities in the market could create a  provider marketplace dominated by expensive "haves" as lower priced "have-nots" are forced to close down or consolidate with higher priced providers. 

The initial findings of the investigation showed that:

• In the same geographic area and across similar levels of service, prices paid by insurance carriers to hospitals and physician groups varied, at the extreme in excess of 200%.
• Price variations are not correlated with quality of care, complexity of the illness or population being served, extent of patients on Medicare or Medicaid, or whether the provider is an academic or research facility.
• Price variations are correlated with the relative market position of the hospital or physician group as compared to hospitals within a geographic region or within a group of academic medical centers.
• Price variations on a per-member, per-month basis are not correlated with the method of payment (e.g. globally or fee-for-service).
• Price increases cause most of the healthcare cost increases in the state.
• Contracting practices distort the commercial healthcare market and reinforce disparities in pricing.
• The report noted that health care costs are increasing much faster than wages.

The investigation is expected to be completed by March 16th and the findings will be presented to the Massachusetts Office of Health and Human Services, Division of Healthcare Finance and Policy.   

For more information on Massachusetts' unique approach to healthcare access, see the following website on the state mandate and statute.  If you need to obtain health insurance coverage, see the following guide to choosing a health plan.

If you have questions about medical negligence or medical malpractice, please feel free to contact our firm for a free consultation at 800-379-1244 

In a case decided late last year, the First Circuit Court of Appeals determined that a Massachusetts company would be permitted to bring a second lawsuit against its insurance company seeking damages for unfair and deceptive practices, a violation of G.L. c. 93A, Sec. 11. In the case, Andrew Robinson International, Inc. v. Hartford Fire Insurance Company, 547 F.3d 48 (2008), the court determined that the earlier declaratory judgment action in a state court action was not a bar to the second action, which sought monetary damages against the insurance company.

The first case between the parties was a delcaratory judgment action. The plaintiff sought a determination that the insurance company was required to pay for the damages suffered when the business premises were contaminated with lead-laden dust from a remodeling project in a neighboring office. The insurance company argued the claim was barred by a pollution exclusion clause. The state court disagreed, and entered judgment for the plaintiffs. The insurer paid.

The second action sought damages for unfair and deceptive acts in violation of c. 93A, frequently referred to as a bad faith insurance claim. Hartford removed the case to Federal court (diversity jurisdiction) and then moved to dismiss the case, arguing it was improper to allow the plaintiffs to bring a second suit. Hartford argued that the claim was barred under principles of res judicata, and that plaintiffs could not split their claims.

The Appeals Court found no Massachusetts case directly on point, so did its best to determine what Massachusetts would likely do. It found that the action was not barred, carving out a special exception for declaratory judgments. Ordinarily, however, when claims arise from the same transaction and occurrence, a plaintiff is wise to bring all claims in a single action; the exception saved the day for these plaintiffs.

Read More on this case: First Circuit Court of Appeals Allows c. 93A Case to Proceed Against Insurance Company; Previous State Suit Did Not Bar Claim 

This week, the Massachusetts Appeals Court continued its trend of expanding insurance coverage for victims injured in hit-and-run car accidents when it granted a trial to an 18-year-old woman who suffered injuries in a car accident as a passenger in a taxi cab.

In this case, the plaintiff suffered neck injuries when the taxi cab in which she was riding rear-ended another car. Although the drivers spoke to each other to assess the damage to their vehicles, neither driver called the police or exchanged information. The plaintiff, who did not think she was hurt, took down no information. In addition a police report was never filed.

After unsuccessfully trying to track down the identity of the cab driver after the accident, the plaintiff's attorney filed a claim for uninsured motorist benefits under her mother's insurance policy to cover the cost of her injuries. The policy provided coverage for accidents involving "uninsured or hit-and-run autos."

The trial court dismissed the case on summary judgment, ruling that the insurance company was not liable. However, the Massachusetts Appeals Court said, "Not so fast," and explored the question of whether or not the taxi cab in which the plaintiff was riding could be considered a hit-and-run vehicle.

In short, the answer is yes: the taxi cab could be considered a hit-and-run vehicle. The courts have broadly interpreted the phrase "hit-and-run" in order to protect victims like this passenger. In previous cases, the Supreme Judicial Court has found that uninsured motorist claims were viable in other, similar scenarios:

• A driver is forced off the road and into a guardrail by an oncoming vehicle, despite the fact the two cars never made contact with each other; and

• A passenger in a car that is rear-ended realizes that he is injured, hours after the two uninjured drivers had gone their separate ways after concluding that there was no property damage or injuries.

In summary, the court held, "a passenger in an at-fault vehicle who is injured in an accident and who, unaware of her injuries... leaves the vehicle without obtaining identifying information about the vehicle is entitled to recover under the hit-and-run provisions of the policy."

Importantly, however, the court noted that if a passenger realizes immediately after a car accident that he/she has been injured, the passenger is under an obligation to obtain identifying information from the driver(s), as long as his/her injuries are not so grave as to prevent an exchange of information.

The court also rejected the insurance company's claim that it was prejudiced by late notice. The court said this was a factual determination to be made at trial.

The name of this case is Pilgrim Insurance Co. v. Molard. Other key cases in this area of insurance law include Surrey v. Lumbermens Mut. Cas. Co., 384 Mass. 171 (1981) and Commerce Ins. Co. v. Mendonca, 57 Mass.App.Ct. 522 (2003), which each address the bulleted scenarios above.

Uninsured motorist insurance is statutorily required in the state of Massachusetts in order to provide financial protection to those injured by other negligent drivers.

Important Consumer Tips 

• If you are in a car accident and are wondering what to do, it is usually best to err on the side of caution, and obtain identifying information from the other drivers. For more tips about what to do if you are in an accident, visit the Mass. Registry of Motor Vehicles' Driver's Manual page.
• Always notify your insurance company promptly if you are in an accident, even if you are a passenger is somebody else's car.
• Make sure you have enough car insurance to protect yourself if you are injured. You should have enough uninsured and underinsured coverage on your cars to protect yourself from injuries caused by other drivers. Please see our car accident insurance information for Massachusetts drivers.
  

If you were injured as a passenger in a car accident, or are the victim of a hit-and-run accident, call the Massachusetts injury attorneys at Breakstone, White & Gluck at 800-379-1244 for a free consultation.