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ATV collision results in four injured

Four individuals, two young boys and two men, were hurt during a New Year’s Eve accident involving two all-terrain vehicles at around 9:20 p.m. on Thursday, December 31 in the area of 500 Ashburnham Hill Road in Fitchburg, Massachusetts.

According to Deputy Fire Chief Thomas Dateo, the victims were only identified as a 32-year-old man, a 21-year-old man, a seven-year-old boy, and a six-year-old boy. He added that each ATV was occupied by a man and a boy at the time of the collision.

Emergency medical responders said three of the four individuals who were hurt in the incident sustained “severe multiple-trauma injuries.” The 32-year-old man was airlifted to UMass Memorial Medical Center – University Campus in Worcester where his leg was amputated. The 21-year-old suffered from a head injury and was transported to Leominster Hospital.

The six-year-old boy was suffering from respiratory problems when responders arrived at the scene and was airlifted to UMass. The seven-year-old boy sustained a compound fracture in his left leg and was also taken to UMass via ambulance.


Bridgewater, Raynham vehicular accidents result in multiple injuries

Two serious car crashes which happened less than half an hour apart resulted in injuries to three individuals and the delay of public traffic along Route 24 in Bridgewater and along Interstate 495 in Raynham, both in Massachusetts, on Monday, December 7.

A two-vehicle collision that occurred at around 2:40 p.m. on Route 24 South near Route 104 in Bridgewater critically injured two individuals and also caused the sides of Route 24 to close temporarily. The roads were opened to traffic about 40 minutes later. The injured victims were airlifted to Rhode Island Hospital and Beth Israel Deaconess Center in Boston, according to Massachusetts State Police trooper Paul Sullivan.

The Bridgewater Fire Department and the Massachusetts State Police responded to the scene of the accident and secured the area.

Meanwhile, a second accident occurred at around 3:10 p.m. when a pickup truck flipped over and came to rest on its roof on I-495 South near Exit 8 in Raynham, causing a 21-year-old New Bedford resident to suffer minor injuries.


Massachusetts man charged in motorcycle accident

Twenty-three-year-old Burlington, Massachusetts resident Patrick Litchfield has been charged with multiple criminal offenses in relation to a hit-and-run motorcycle accident that occurred on Route 25 in Gorham, Maine on Monday, October 5 at around 7 a.m. and caused injuries to 37-year-old Hiram resident Jonathan Lord.

Gorham police arrested Litchfield and charged him with reckless conduct with a dangerous weapon, leaving the scene of a personal injury crash, possession of heroin, criminal speeding, driving to endanger, driving after his license was revoked, and trafficking in dangerous knives.

According to Lieutenant Christopher Sanborn, Officer Robert Henckel had been patrolling Route 25 when a gold-colored sedan traveling at 85 miles per hour in a 50 mph zone came zooming past him in the opposite direction.

Henckel said he turned his police cruiser around to question the speeding driver, but he stopped when he found Lord and his battered motorcycle resting beside the road.

Dangerous drivers are out there, and they cause serious accidents every day. If you have been injured in a car accident, call Crowe & Mulvey, LLP at (617) 426-4488 today to discuss your options.


Massachusetts’ stricter teen driving laws appear to have worked

Massachusetts’ laws on teen driving resulted in a decrease of fatal accidents, according to Medical Daily on June 8.

Across the United States, seven teenagers between the ages of 16 and 19 lose their lives every day in car accidents. However, tighter teen driver restrictions in Massachusetts are purportedly being attributed as the cause of the recent 40% reduction in fatal vehicular accidents and injuries in the state. Supervision is now required when teens are driving at night until age 18, as teens were found to more frequently drive while sleep deprived.

Vehicular crashes decreased by 19% and over-all nighttime crashes decreased by 29%.

After their first vehicular offense, teens now must experience a 60-day driver’s license suspension, rather than only a small $35 ticket.

Other states, including Connecticut, New York, and Virginia, have followed suit by implementing similar driving rules for teenagers.

If you have been injured in an accident caused by a negligent driver in Massachusetts, you may be able to pursue financial compensation to cover any damages. Call Crowe & Mulvey, LLP, at (617) 426-4488 today to learn more.


UMass student dies in Belchertown car accident

Twenty-year-old Freehold, New Jersey resident and University of Massachusetts Amherst student Matthew Schiek was struck and killed by a pickup truck in the early morning hours of February 14, CBS 3 Springfield reported.

Schiek and three other students were standing in the vicinity of Old Amherst Road and Two Ponds Road next to Schiek’s broken down vehicle, according to Belchertown Police Detective John Raymer. Schiek attempted to cross the road in the direction of the residency where he had called a taxi when a pickup truck traveling east along Route 9 in Belchertown hit him at around 1:45 a.m. None of the other students were reported as injured.

Raymer said the driver of the pickup truck remained at the scene of the accident and cooperated with the investigation of the police authorities. It was also reported that drugs, alcohol or any other erratic behaviors are not believed to have contributed to the pedestrian accident.


Back to the Future?

A recent Superior Court decision holding a methadone clinic potentially liable for harm done by a patient who should not have been driving highlights an important distinction in this evolving area of the law.  Denying a motion for summary judgment by the clinic, Superior Court Judge James Lang focused on the clinic’s alleged affirmative acts of negligence, holding that the facts were more closely analogous to the Supreme Judicial Court’s decision in Coombes v. Florio, 450 Mass. 182 (2007) than the subsequent case of Medina v. Hochberg, 465 Mass. 102 (2013).

In Vasquez v. Community Health Care, Inc., several people were injured when their SUV was struck during a multi-car crash initiated by “John Doe,” a patient at a Peabody methadone clinic owned by the defendant.  The plaintiffs brought suit against the clinic, alleging that the health care providers had failed to warn Doe of the side effects of the prescribed medication it administered to him.  The clinic moved for summary judgment, claiming that it owed no duty to non-patient third parties to warn Doe, and that in any event, adequate warnings had been given.

Judge Lang carefully reviewed the emerging law in this area, and denied the defendant’s motion, finding that the clinic’s affirmative act of prescribing and administering medication to Doe created a duty to others who might foreseeably be endangered by Doe’s driving.  The court further found that, due to issues with Doe’s noncompliance during the treatment program–including numerous missed appointments and positive drug tests–there was a question about whether the clinic’s initial warnings about driving should have been repeated and/or strengthened.

In reaching his decision, Judge Lang relied on the apparent distinction created by the SJC in Coombes and Medina between a health care provider’s failure to warn the patient about dangerous side effects of a drug prescribed by the provider and the failure to warn about potentially harmful side effects of the patient’s underlying medical condition.  In essence, the SJC seems to be approaching a return  to a long-discarded distinction between malfeasance, or affirmative acts of negligence, and non-feasance consisting of a failure to act.  The need to provide proper instructions and warnings to the patient when prescribing medication is seen as an essential part of the prescribing process.

Judge Lang certainly seems to have identified correctly the line drawn by the SJC in cases involving liability of medical providers to third parties.  Yet the rationale for the distinction is difficult to justify either as a matter of legal doctrine or public policy.  Long a stable of governmental immunity law, the misfeasance/nonfeasance distinction was abandoned 40 years ago as bad law and bad policy.  Yet it seems to be making a comeback.

The SJC’s opinion in Coombes rejected the defendant’s argument that imposing liability to injured third parties would greatly extend the provider’s duty and would interfere with the physician-patient relationship.  Indeed, the Court noted, that the physician would in any event need to warn the patient of medication side effects, so no further action would be required of the physician than under existing law.

Although there is no Massachusetts case directly on point, it would seem logical that a medical provider would be required to warn a patient of the potentially dangerous complications or limitations of an underlying medical condition–such as seizures from a brain tumor.  Given that existing duty, the logic of Coombes would dictate that the liability should extend to third parties.  Yet Medina held otherwise.

I think Judge Lang got it right in Vasquez.  I’m not so sure about the SJC.

Read the Vasquez opinion here.


Who Gets the Money in a Wrongful Death Case?

A recent decision from the United States District Court reaches the initially startling conclusion that the estate of a man injured by the negligence of another driver who also died in the crash could not attach monies received by the defendant’s daughter as compensation for his death.  It sounds incredibly confusing and completely illogical, but because of the way the Massachusetts wrongful death statute works, it’s exactly the right result.  Here’s why:

Amnon Bogomolsky was killed when the minivan he was driving was hit by a truck driven by Michael Furlong, who also died as a result of the collision.  The deadly crash took place near the approach to the Sagamore Bridge in Bourne.  A state police investigation of the crash concluded that several factors contributed to the collision, including Furlong’s excessive speed, the presence of cocaine and benzodiazepines in his system, and poor brakes on his truck.  The police also faulted an unknown vehicle that had merged onto Route 3 eastbound, possibly encroaching into Furlong’s lane, that caused Furlong to veer into Bogomolsky’s lane.

Bogomolsky’s estate sued Furlong’s estate, and sought an attachment of $100,000 in uninsured motorist proceeds that Commerce Insurance Company had agreed to pay to Furlong’s estate in settlement of the uninsured motorist claim–resulting from the negligence of the driver of the unidentified third car.  The court in Bogomolsky v. Furlong denied the attachment, properly ruling that, under Massachusetts law, the proceeds of the wrongful death claim belonged not to Furlong’s estate, but to Furlong’s daughter, who was the beneficiary under the wrongful death statute.  It sounds strange, but the court got it exactly right.

One of the interesting features of the Massachusetts wrongful death statute, G.L. c.229, ss. 1 and 2,  is that the personal representative of the estate has the authority to bring a wrongful death case, but that any recovery is distributed to the so-called statutory beneficiaries–the heirs at law.  The damage recovery never becomes an asset of the decedent’s estate, but instead is held by the personal representative in trust, with the obligation to distributed it directly to the beneficiaries.

What that means in the Bogomolsky case is that the $100,000 uninsurance proceeds, which were being paid on account of a claim by Furlong’s estate against the unidentified driver, never became a part of the estate, but instead, would go directly to Furlong’s daughter, the statutory beneficiary.  Since the proceeds were not an asset of Furlong or his estate, they were not subject to attachment by Bogomolsky’s estate.  In contrast, if Furlong had a bank account or a house in his name at the time of his death, those would be assets that the plaintiff could attach as security for a personal injury judgment.

This principle has important consequences that I’ll discuss in the next post.

Read the opinion in Bogomolsky v. Furlong here.


Insurers Behaving Badly

A Superior Court judge last week made quite a statement about his disgust for the claims handling tactics of AIG’s subsidiaries, slamming the insurance giant with treble damages for its prolonged crusade to avoid paying damages to a lawyer who suffered severe injuries when he was struck by a Partners Health Care bus

Local lawyer Odin Anderson was crossing Staniford Street in Boston on September 2, 1998, when he was struck by a Partners shuttle bus, which was making a left turn from Cardinal O’Connor Way onto Staniford Street. Although Anderson was returning from an extended lunch, which involved alcohol consumption, the sole independent witness described him as walking “briskly” and “with no apparent difficulty.”   Anderson was severely injured, and eventually brought suit against Partners.  The case was tried in June 2003, and Anderson and his family were awarded more than $2.2 million in damages.

Immediately after the accident, the Partners’ insurer, and AIG subsidiary, began an investigation, which included interviewing Norman Rice, the shuttle bus driver.  Rice’s original statement said that he had not seen Anderson before the impact, had no idea which direction he had come or where he was going, and that the impact occurred when Anderson was three-quarters of the way across the left-hand travel lane, “about three feet” from the traffic island.  Rice further stated that, at the time of the accident, he was not looking in the direction the bus was traveling, but rather was looking to his right back up Staniford Street.  Rice’s original version of events, however, didn’t last long.

AIG’s files originally reflected that the company viewed the claim as indefensible, but the tenor of the claims, like Rice’s story, soon began to change.  The claims handlers began to discuss a possible defense based on an assumption–unsupported by any evidence–that Anderson had darted out from between parked cars, and had been struck in the middle of Staniford Street.  By the time the case was tried, Rice testified that he was looking down (not up) Staniford Street in the direction he was turning, that he had seen Anderson walking across the street shortly before the impact, and that he thought Anderson had come from between two parked cars.  A defense expert further testified that, because of the “geometry of the intersection,” it would have been impossible for the bus to turn tightly enough to strike Anderson close to the median strip–an assertion later proved by the plaintiffs to be patently false.  The jury returned a verdict assessing 53% liability against Partners and 47% against Anderson.

A prolonged appellate process followed, eventually resulting in an order affirming the judgment, which by this time had reached $3.2 million with the addition of post-judgment interest.  Anderson then brought bad faith claims against AIG pursuant to G.L. c.93A and  c.176D.  Discovery in that case revealed that AIG had been both aware of and involved in the evolution of Rice’s testimony.  Central to the case was a DVD of Rice’s deposition preparation sessions.

In an extensive opinion, Superior Court Judge Brian Davis held that AIG had engaged in unfair and deceptive acts in its handling of the Anderson claim.  Characterizing the defense as one based on “fictitious evidence and wishful thinking,” the judge noted that AIG had suppressed the original statements of Rice and another Partners shuttle driver who was following directly behind Rice’s bus, created an unsupported scenario that had Anderson “ran” or “rushed” into the street from “between parked cars,” and induced Rice to alter his testimony.  The judge further noted that AIG’s handling of the appeals was based on a decision to “grind down” the plaintiffs, rather than on any realistic likelihood that a second trial would yield a better result for the defense.

Judge Davis held that the AIG claims practices were “egregious,” and not mere oversight.  He awarded the maximum penalty of treble damages under Chapter 93A, then crediting AIG for the single damage award already paid.  Thus, the total damages to Anderson and his family will approach $10 million.

The Anderson decision, although certainly likely to be challenged on appeal, sends an important message to insurers and defense counsel about investigation and trial tactics that are probably more common than those outside the system realize.  While the facts certainly are egregious, and well-detailed in the lengthy opinion, the underlying principles  are worth noting for all defense lawyers and claims personnel.


Driver faces multitude of charges for Massachusetts crash

Late on Monday night, March 24, a car chase between police authorities and Fall River, Massachusetts resident Troy Llewelyn from Massachusetts to East Providence, Rhode Island resulted in Llewelyn acquiring charges of two counts of possession with intent to deliver narcotics, resisting arrest, duty to stop for an accident resulting in personal injury, driving without a license, and driving in possession of a controlled substance.

Lleweyn and a passenger were taken to a nearby hospital for the treatment of their non-life-threatening injuries, after which Llewelyn was brought into police custody.

Llewelyn was arraigned on Tuesday, March 24 in District Court, Providence.

Unfortunately, dangerous and reckless drivers such as this all too often cause innocent people serious harm. If you have been injured by an unsafe driver in Massachusetts, an attorney from Crowe & Mulvey, LLP, may be able to help you take action against them. Call (617) 426-4488 to learn more about taking such action.


NHTSA investigates GM’s recall

The National Highway Traffic Safety Administration is conducting an investigation into General Motors’ massive recall of cars with defective ignition switches. Investigators want to understand why it took the company so long to issue the recall in the first place. GM’s recall affects 1.6 million cars.

31 car accidents and 13 fatalities have been linked to the defective vehicles. The NHTSA says that GM, which underwent restructuring due to filing for bankruptcy in 2009, could be facing up to $35 million in fines.

The NHTSA is encouraging owners of the recalled vehicles to “use only the ignition key with nothing else on the key ring” when driving the vehicle. Owners of the recalled cars should get the necessary repairs as soon as they become available.

The attorneys at Crowe & Mulvey, LLP understand that Massachusetts people face serious expenses when they are injured in car accidents. If you have been injured in a car accident because of negligent manufacturing you could be qualified to receive compensation for your injuries. Call (617) 426-4488 to speak with a member of our legal team today.