Massachusetts Lawyer Blog

Massachusetts has a number of schools (listed below) reported as affected on the USDA beef recall list. Records of beef purchased throughout the two years covered by the recall were reviewed. Note: not all School Food Authorities (SFA) listed had product remaining in inventory when the recall began and inclusion on the list does not necessarily indicate that any individual school within an identified SFA received any of the recalled ground beef products.

The recall followed after disturbing video shot by the Humane Society of the United States (HSUS) was released. On its site, the Humane Society states, “An HSUS investigation reveals one of the leading suppliers of the national school lunch program is permitting sick and injured dairy cows to enter the food supply.”

The list of Massachusetts schools taken from the USDA national list of schools reported by the beef recall includes:

Continue reading " Massachusetts School Food Authorities affected by Beef Recall: List Published by United States Department of Agriculture (USDA) " »

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: General , Health Issues

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Massachusetts competitive auto insurance is about to begin and become available to Massachusetts consumers.

An insurance premium comparison website has been made available for Massachusetts consumers looking to lower their car insurance bills under the new program. The interactive website allows you to compare estimates of premiums for new private passenger automobile policies sold in Massachusetts.

The site was rolled out as part of an introduction to managed competition beginning April 1, 2008 in Massachusetts. The consumer focused website asks several questions before providing results as well as discounts companies may offer.

One of the seven questions makes a distinction between types of auto insurance coverage: "mandatory" or "standard."

Mandatory coverage is the least amount required under Massachusetts law (Bodily Injury ($20,000/$40,000); Personal Injury Protection; Uninsured Motorist ($20,000/$40,000); Property Damage ($5,000)).

The "Standard Policy” offers more protection: Bodily Injury ($100,000/$300,000); Personal Injury Protection; Uninsured Motorist ($100,000/$300,000); Property Damage ($100,000); Collision and Comprehensive ($500 deductible), and is recommended over the required minimum.

The site states, "[a]ccidents can often result in damage that exceeds these [Standard] limits." At least a $100,000 bodily injury policy limit makes a lot more sense than $20,000. Whether you are being sued or if you are injured in a car accident, you will be more protected.

When the other side in your case has no (or too little) insurance – then your insurance policy may be available to compensate you for your damages. Even when you were not at fault, your insurance company may end up paying you for injuries caused by someone else. This was discussed earlier in my Hit and Run post discussing "uninsured" issues.

In the end, the better policy protects both you and others on the roads. Contact me if you’d like to discuss the options available to you when you’ve been injured in car, bus, or truck accident in Massachusetts. We are experienced in these cases and we can help you with the insurance issues they raise. Let our attorneys know if we can help you discover the insurance that may be available to compensate you for your injuries, pain and suffering, or loss.

Posted by Kevin P. Whitaker | Permalink | Email This Post

Posted In: General , Litigation , Personal Injury

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A child left out of a will in Massachusetts may still be able to recover under their parent's will.

M.G.L. Chapter 191, Section 20 discusses the rights of children not included in a will (intentionally or by mistake). Timeliness, however, is critically important. Don't delay if you have been omitted from a will, act quickly to safeguard your interests.

The law states, “If a testator [decedent leaving a will] omits to provide in his will for any of his children, whether born before or after the testator’s death, or for the issue of a deceased child, whether born before or after the testator’s death, they shall take the same share of his estate which they would have taken if he had died intestate [without a will], unless they have been provided for by the testator in his life time or unless it appears that the omission was intentional and not occasioned by accident or mistake; provided, however, that no such child or issue shall take any share in any real property in the testator’s estate unless a claim is filed in the registry of probate by or in behalf of such child or any of such issue within one year after the date of the approval of the bond of the executor.”

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: Estate Administration , Probate Litigation , Wills, Trusts & Estates

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If you are Massachusetts passenger injured in a commuter train accident (or MBTA bus or trolley accident), then several options for compensation may be available to you. You may have an actionable claim (i.e., for negligence) against the train’s operator or owner, as well as claims against other responsible parties.

You must, however, take action in a timely manner. If not, your claims or compensation rights will be forfeited. Massachusetts General Laws (M.G.L.) Chapter 161A, Sec. 38 states, in part, “The authority [MBTA] shall be liable … for personal injury and for death … in the same manner as though it were a street railway company.” Additionally this section establishes a two year statute of limitations for these claims.

Although a report from the Association of American Railroads indicates Massachusetts experienced a 21% decline in train accidents between 2006 and 2007, train accidents continue occurring and may involve serious injuries or fatalities as demonstrated by recent events.

Recently headlines discuss multiple fatalities involving Amtrak trains. Last evening a commuter rail crash took place involving estimates between 100 to 300 people. Injuries were reported to range from a broken leg to back or spine injuries, with details still unknown. Due to the large number of passengers involved, at least three different medical facilities provided care: Caritas Hospital in Norwood, Good Samaritan Hospital in Brockton, and Milton Hospital in Milton, Massachusetts.

This commuter train was apparently struck by a runaway freight train. The freight train, loaded with lumber, was believed to have “rolled” for two to three miles before crashing into the commuter train.

Channel 5 News reported a, “freight train car rolled into a commuter train in Canton on Tuesday afternoon, injuring several people.” FOX video shows the scene of the crash and includes reactions from some passengers.

Dealing with the MBTA on your personal injury claim can be challenging. Your case deserves the attention of an experienced attorney to distinguish your case from the many others being reviewed by the MBTA’s lawyers. In fiscal year 2008, the MBTA law department had a total budget of just under $5.5 million dollars and was expected to handle between 4,000 to 5,000 claims and settle over 1,000 of these while being involved in over 500 lawsuits.

The legal and administrative issues arising with the MBTA are not for the uninitiated. These cases may generally take time to resolve and can also be delayed by fiscal policies related to the timing of settlements and available government funding.

In Massachusetts, several state laws can apply to train accident victims. If you’ve been injured in a train accident, then don’t go it alone. Contact us to review your case and to determine your compensation rights before it’s too late.

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: Litigation , Personal Injury , Probate Litigation

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Massachusetts personal injury and wrongful death cases may involve outstanding medical bills or liens that should be considered before trial or settlement occurs. A lien is basically the right to take another's property if an obligation is not discharged.

For instance, your health insurer may be entitled to a lien against your personal injury case for medical bills arising from a car accident and paid by your insurer. The same could apply to an estate following a fatality. The size of liens or outstanding medical bills in Massachusetts may factor heavily in settlement offers, counteroffers, settlements or jury awards.

A study of 100 cases (involving personal injury, employment, medical malpractice, automobile accidents, and contracts) suggested civil case mediation has about an 80% effectiveness rate, but the rate can be increased if mediators consider the effect of liens in mediations.

As an attorney in Weymouth, Massachusetts I have negotiated liens in a number of personal injury and wrongful death cases. As a mediator in places like Boston, Quincy, or Wrentham, I have seen liens overlooked and not even mentioned by either the plaintiff's or the defendant's lawyer.

Often a lien against your case can be negotiated along with a final settlement (with a lien holder agreeing to accept less than 100% of its lien amount.) A lien may be negotiated to avoid delays, minimize the risk of losing at trial or arbitration, or as contribution toward legal fees involved in obtaining a recovery.

If you have a slip and fall, car crash, or any type of personal injury or wrongful death case in Massachusetts potential liens often arise. This is true even when you are only an injured bystander or a passenger in a car that was rear ended. It is best to make sure all potential lien issues are dealt with before settling your case.

I often consider the effect of liens when valuing a case for our clients. Whether the lawsuit involves a case in Norfolk, Plymouth, Barnstable, Suffolk or other counties, we have successfully negotiated lien amounts, avoided some liens altogether, or had defendant insurance companies take full responsibility for our clients' outstanding liens and medical costs.

If you have a personal injury case in Massachusetts, inquire about the potential liens on your case. Failure to address liens upfront may lead to insurance companies assessing your case for less than it is worth. Insurers often defend their lower offers on cases where no liens exist by arguing the full amount will go to you free and clear (and not shared with a third party). Finally, it is also wise to remember, liens may end up being paid 100% from your settlement or recovery.

Protect your final recovery by ensuring any potential liens are resolved before your case is settled. An unexpected lien is not something you want to learn about only after closing your case and investing your settlement proceeds or recovery elsewhere.

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: General , Litigation , Medical Malpractice , Personal Injury , Probate Litigation

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In "Casinos proposal on brink of defeat", The Boston Globe and others report Governor Deval Patrick's revenue plan of bringing three casinos to Massachusetts is sure to fail this year. The House committee reviewing the plan voted 10-8 against.

The Casino Plan was touted as a means of bringing revenues into the state and to assist local municipalities. The argument in favor of the plan includes jobs, not losing revenues to nearby casinos (outside MA), and generating new revenues in a time of fiscal crisis.

The fiscal situation in cities and towns is bleak. Costs have outpaced revenues and cities and towns are facing tough choices while managing essential services. Last night I attended a Commission on Disabilities meeting where we heard the local budget would be cut 1% to 2%.

The manner is which local government is funded impacts legal issues throughout the Commonwealth. Attempts at Proposition 2 1/2 overrides are increasing. Parking tickets, seeking "mitigation" fees in cities and towns, pointing a finger at someone to blame are becoming more common and more aggressive. Community projects are being delayed. Unions are unsatisfied with contract negotiations. Generally, there are no winners when there is less of the pie to carve. The systemic revenue problems are also flowing downward to residents, whether they find their home in foreclosure or just trying to keep afloat.

I was recently helping a young family who are contemplating leaving the state. They are in a legal bind and they hope to simply survive and to keep some of their investment. If so, leaving the state for an affordable solution is anticipated.

I've spoken with many others who feel similarly. Many young families are asking, what can I get for my money someplace else. As schools go unfunded, police positions unfilled, and essential services injured, this may be a question those with equity in their homes are asking. Should I sell and leave? Will my costs be less someplace warm? Will I get more bang for my buck? I've had mixed results from those clients who have left the area. A few years later, some are quite happy (they like to call me during a winter storm and share how warm it is where they are). Some, however, want to move back home, but often find they can't afford to.

Was the casino plan right for Massachusetts? It wouldn't have addressed all problems, but nobody claimed it would. Regardless of one's position on the plan, its focus does address an immediate challenge facing Massachusetts, how do we find new revenues? Where can we create new jobs to sustain our local economy? How can our laws and our choices provide stability to families and individuals living week to week and wanting what's best for their children? The tide was high in MA for a while, it's receding. How do we turn things back around?

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Posted In: General

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Anyone can be called for juror duty in Massachusetts. If you've received a Summons or Reminder Notice about jury duty, you may have questions. If you're at this site, then you probably know your way around the web. Check out the Massachusetts Juror Service Website.

At this site, you can: confirm your service, request a disqualification, postpone your service, request a hardship transfer, update your contact information, find courthouse information, and complete and print your Confidential Juror Questionnaire.

You'll need your badge number and pin number (located on the notice you received by mail) to use portions of the site.

You don't, however, need a badge or pin to find a courthouse.

The Office of Jury Commissioner (OJC) administers this website and states, "OJC maintains this website for the convenience of jurors and to improve access to our office. This website is continually under construction. While we try to keep the information current and accurate, we make no guarantees."

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Posted In: General

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I attended an interested training last evening at the Norfolk Probate and Family Court in Canton. The training is part of a pilot program allowing lawyers to represent clients on a limited basis in probate and family law maters.

This program is being offered in three counties with discussions of its expansion at the end of the year. Under the pilot program the attorney and client enter a fee agreement for a limited purpose (i.e., attend one day at court, review a case, draft documents or pleadings, coaching, conduct or respond to discovery...). The analogy being made here is to transactional law where clients routinely seek advice on only part of a matter -- like a buyer asking an attorney to review a purchase and sales contract for a set fee.

The testing of this concept in Massachusetts probate and family law litigation matters is a new and interesting development, but one that has been growing in other states (California and Maine were given as examples).

Continue reading " Massachusetts Limited Representation Probate & Family Court Pilot Program " »

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: Competency , Estate Administration , General , Litigation , Probate Litigation , Wills, Trusts & Estates

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A Massachusetts judge advanced a public policy argument finding it, "…unfair to approve a mortgage loan that the borrower cannot reasonably be expected repay if housing prices were to fall…”

The judge indicated loans are “presumptively unfair” under our consumer protection law (MGL Ch. 93A) when they: include an adjustable rate mortgage (ARM) which is adjustable within 3 years; carry an interest rate of at least 3 percent less than the indexed rate; involve borrowers with debt to income ratios above 50%; and have 100% loan to value ratios, or have prepayment penalties that are significant or which last longer than the initial “teaser” period.

Although the loans weren’t fraudulently induced, the judge issued a preliminary injunction and offered, “Just because we, as a society, failed earlier to recognize that loans with these ... characteristics were generally unfair does not mean that we should ignore their tragic consequences and fail now to recognize their unfairness." See Eric T. Berkman’s article in Lawyer’s Weekly, "Lender's 'subprime' foreclosures require attorney general's OK".

How does the injunction work? In this case the California lender must notify the AG’s Office before foreclosure. The AG’s office has 30-45 days to respond (depending on circumstances). If the AG objects, the lender and AG must attempt to work it out in 15 days. If it’s not worked out, the lender needs Superior Court approval to proceed.

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: Bankruptcy , General , Litigation , Real Estate & Real Property

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In Massachusetts or elsewhere, it happens. Someone causes a car accident or a motorcycle accident and then takes off leaving the scene of the wreck. Today’s news has Springfield Police looking for a speeder who was evading the police by making a u-turn into oncoming traffic on an interstate highway.

This phantom driver caused a five car crash. If they catch the driver, then civil lawsuits will likely follow, but what if they don't catch the responsible party? What if you are injured in a car accident or truck accident and the offending vehicle speeds away or takes off before the police arrive, or while you are being taken to the hospital?

In these instances, whether you’re in Boston, Plymouth, Brockton, Weymouth, or anywhere in Massachusetts, the injured party may still recover under an "uninsured" policy claim. In these types of cases, the non-negligent driver's insurance may cover the loss, pain and suffering of anyone injured by the phantom vehicle.

There are steps to take to protect these claims. The trail of insurance coverage may not always make sense, but the key point to remember is this: do not give up on your personal injury claim that involves a hit and run or unidentifiable vehicle. See a Massachusetts lawyer soon and take the steps needed to protect your car accident case.

Posted by Kevin P. Whitaker | Permalink | Email This Post

Posted In: General , Litigation , Personal Injury

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They say good fences make good neighbors. Cutting down your neighbor's trees can make for trouble.

In Glavin v. Eckman, et. al. a neighbor was awarded $90,000 against another neighbor for cutting down ten trees to improve their "view." The damages were calculated at $30,000 and then multiplied by three (trebled) in accordance with Massachusetts law.

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Posted In: General , Litigation

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John R. Ellement of the Boston Globe reports. A Suffolk Superior Court jury awarded a Boston couple a total of $325,000 yesterday, ruling that they suffered emotional distress when a city funeral home lost and possibly cremated the remains of their stillborn. The boy was one of twins. The company held the infant's remains inside plastic bag in a refrigerating unit. Eventually the family was told the boy's remains had been lost and may have been mixed with a cremated old woman. Can anyone comprehend why a trial like this occurs? It's unbelievable, they actually made the mother and father continue suffering for five years litigating their dead son's dignity.

Posted by Kevin P. Whitaker | Permalink | Email This Post | Comments (0)

Posted In: Probate Litigation

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