The issue of whether a jury will be less inclined to award an insurance company plaintiff – versus an individual person or entity – a favorable verdict is a real one for subrogation professionals facing a potential trial. In states where the laws allow carriers to choose between filing in their own name or in the name of the insured, there are numerous factors attorneys must weigh before finalizing the caption. However, if a jury is allowed to know the extent of the carrier’s involvement, the notion of filing in the name of the insured becomes less appealing. Continue reading
In D’Allesandro v. Lennar Hingham Holdings, LLC, 486 Mass 150, 2020 Mass. LEXIS 721, the Supreme Judicial Court of Massachusetts answered a certified question regarding how to apply the Massachusetts statute of repose, Mass. Gen. Laws ch. 260, § 2B, in regards to phased construction projects. The court held that, in this context, the completion of each individual “improvement” to its intended use, or the substantial completion of the individual building and the taking of possession for occupancy by the owner or owners, triggers the statute of repose with respect to the common areas and limited common areas of that building. Additionally, the court held that where a particular improvement is integral to, and intended to serve, multiple buildings (or the development as a whole), the statute of repose is triggered when the discrete improvement is substantially complete and open to its intended use.
In Factory Mut. Ins. Co. v. Skanska United States Bldg., No. 18-cv-11700-DLC, 2020 U.S. Dist. LEXIS 95403 (Skanska), the United States District Court for the District of Massachusetts considered whether contractors on a construction job were additional insureds on the developer’s builder’s risk insurance policy. After a water loss occurred during construction, the builder’s risk insurance carrier paid its named insured for the resultant damage, and subsequently filed a subrogation action against two contractors. The defendants filed a motion for summary judgment, claiming that the anti-subrogation rule barred the carrier from subrogating against them because they were additional insureds on the policy. The court found that based on the particular language of the additional insured provision in the policy, the defendants were not additional insureds for purposes of the subrogation action. Continue reading
In Penn-America Insurance Company v. Bay State Gas Company, 96 Mass. App. Ct. 757 (2019), the Appeals Court of Massachusetts considered whether the plaintiff’s claims against the defendant, arising from an alleged defect in the defendant’s natural gas line, were time-barred by the six-year statute of repose for improvements to real property. The Appeals Court held that the statute of repose did not apply to the plaintiff’s claims, which were related to the defendant’s alleged failure to maintain its property. Thus, in Massachusetts, the statute of repose does not apply if the plaintiff’s claim is rooted in the failure to maintain an improvement, rather than negligent design or construction of the improvement. Continue reading
In D’Allesandro v. Lennar Hingham Holdings, LLC, C.A. No. 17-cv-12567-IT, 2019 U.S. Dist. LEXIS 185874, the United States District Court for the District of Massachusetts recently discussed a case against a general contractor and its related entities, all of whom were involved in the construction of a multi-phase construction project. The court held that, in this context, completion of the “improvement” – which was the whole project, rather than each individual phase – triggered the six-year statute of repose. The court also held that the plaintiffs’ misrepresentation, breach of fiduciary duty and unfair business practices claims were not claims based on the design and construction of the improvement and, thus, were not subject to the statute of repose.
In Bridgwood v. A.J. Wood Construction, Inc., 105 N.E.3d 224 (Mass. 2018), the Supreme Court of Massachusetts determined that the statute of repose barred the plaintiff’s consumer protection claims commenced more than six years after the occurrence of the event that gave rise to the claims. In Bridgwood, the homeowner filed suit against the contractors who had performed renovations 15 years earlier. The homeowner asserted that concealed faulty electrical work caused a fire 11 years after the work was completed. The complaint alleged that the contractors, by violating Mass. Gen. Laws. Chapter 142A §17(10), committed an unfair and deceptive act pursuant to Mass. Gen. Laws Chapter 93A. Continue reading
In a decision handed down yesterday, the Appeals Court of Massachusetts upheld the vitality of Curry v. Great Am. Ins. Co., 954 N.E.2d 580 (Mass. App. Ct. 2011), which limits workers’ compensation insurers’ lien recovery rights. Under Curry, damages for conscious pain and suffering as well as for loss of consortium are not reimbursable to the insurer under G.L. c. 152, § 15.
Such injuries, according to the Curry court, “are not compensable injuries,” and “entirely independent and distinct from the personal injury claims of the employee.” For the court in Curry, “the primary goal of the workers’ compensation statute is wage replacement,” which would obviously prevent an insurer’s lien from attaching to an employee’s damages for pain and suffering, among other injuries.
The Appeals Court in DiCarlo v. Suffolk Const. Co., 2013 WL 9854065 (Mass. App. Ct. Nov. 6, 2014) declared that Curry continues to be the “binding precedent” in Massachusetts, and, as such, “compensation for pain and suffering [is] not subject to the. . . insurer’s lien.”
In DiCarlo, the injured worker suffered serious personal injuries as a result of an accident while working as an electrician at a construction site. He was out of work for two and one-half years and collected workers’ compensation benefits for his medical expenses ($48,431.16) and lost wages ($233,387.95) from his employer’s insurer. In March, 2007, pursuant to G.L. c. 152, § 15, the worker filed a third party action against the general contractor and owner of the property where the injury occurred.
The worker amended his complaint to add a loss of consortium claim on behalf of his wife. The parties participated in mediation and settled the worker’s lawsuit for $100,000, which was to be paid by the insurer of the defendants and third party defendant. Since the parties in DiCarlo reached a settlement, the lower court judge conducted an evidentiary hearing in which she allowed counsel to inquire of the worker and his spouse, as to their claims for pain and suffering and loss of consortium, respectively.
The worker’s settlement proposal requested that approximately 35 % of the settlement be awarded to him for his pain and suffering, approximately 35 % be awarded to his wife for her loss of consortium, and approximately 30 % to the insurer to satisfy its lien, with each portion again assigned a pro rata share of the attorney’s fees and costs. By contrast, the insurer proposed that it should receive no less than 90 % of the settlement and that no more than 10 % be awarded to the worker’s wife if the court found her claim for loss of consortium supported by the evidence. The lower court judge in DiCarlo made detailed findings of fact in which she found the worker and his wife “to be credible in every particular,” and sided with the worker’s proposed allocation of the third party settlement proceeds.
For the time being, Curry remains the law of Massachusetts. In the context of a settlement, this means that workers’ compensation insurers must move for a Superior Court judge to conduct an evidentiary hearing, just like in DiCarlo, to determine the merits of an injured worker’s proposed allocation limiting the pool of funds to which an insurer’s lien may attach.
Still, a rift in the Massachusetts court system appears to be growing increasingly wider, manifest in the impassioned concurrence in DiCarlo. Agreeing with the majority’s opinion in DiCarlo, “based solely on the doctrine of stare decisis,” Judge Peter W. Agnes Jr. expressed concerns about whether Curry was decided correctly. To support his position that “the entire recovery is for the insurer,” Judge Agnes directed to the DiCarlo majority’s attention a slew of Massachusetts Supreme Judicial Court opinions decidedly inconsistent with Curry.
 DiCarlo v. Suffolk Const. Co., 2013 WL 9854065 (Mass. App. Ct. Nov. 6, 2014).
 954 N.E.2d at 582-84.
 Id. at 583-84 (citation and internal quotation omitted).
 Id. at 584 (citation omitted).
 2013 WL 9854065 at *3.
 Id. at *2.
 Id. at *2 n.10.
 2013 WL 9854065 at *2.
 The doctrine of stare decisis means that courts should follow their own precedent.
 2013 WL 9854065 at *4 (Agnes, J., concurring in result only) (citing Rhode v. Beacon Sales Co., 616 N.E.2d 103, 106 (Mass. 1993) (emphasis in original).