Automobile Insurance SubrogationAutomobile Total Loss ThresholdsDeductible ReimbursementDiminution of ValueFirst Come, First Served: Subrogating Multiple Claims in Excess of Policy LimitsFuneral Procession Traffic LawsImputing Contributory Negligence of Driver to Vehicle OwnerLaws Regarding using Cell Phones/Headphones/Texting While DrivingLoss Of UseMed Pay/PIP SubrogationOwner Liability For Stolen VehiclesPayment of Sales Tax After Vehicle Total LossPedestrian and Crosswalk LawsRental Car Company Physical Damage and Loss of Use ClaimsRental Car Company’s Liability Insurance Primary or ExcessSlower Traffic Keep RightSudden Medical Emergencies While DrivingSuspension of Drivers’ LicensesUse of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Federal , State, and Local Governmental EntitiesMunicipal/County/Local Governmental Immunity and Tort LiabilityState Sovereign Immunity And Tort Liability
General Tort Laws/StatutesAnti-Indemnity StatutesContribution ActionsContributory Negligence/Comparative FaultDog Bite LawsEconomic Loss DoctrineParental ResponsibilitySpoliationStatute of LimitationsStatute of Limitations Exceptions
Health Insurance SubrogationHealth and Disability Insurance
InvestigationAdmissibility of Expert TestimonyPre-Suit Disclosure of Liability Policy Limits in Third-Party ClaimsRecording Conversations
Product Liability SubrogationProduct Liability Law
Property Subrogation“Matching Regulations” And Laws Affecting Homeowners Property ClaimsCondominium/Co-Op Waiver of Subrogation LawsDamage to Property Without Market ValueGeneral Contractor Overhead And Profit Payments In First-Party ACV Property Damage ClaimsLandlord/Tenant Subrogation
Subrogation GenerallyAnti-Subrogation RuleCriminal RestitutionMade Whole DoctrineMedical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Workers’ CompensationEmployee Leasing LawsHospital Lien LawsOCIP/CCIP Subrogation In Workers’ Compensation Construction CasesRecovery Of Increased Workers’ Compensation Premiums By EmployerWhich Workers’ Compensation “Benefits” Can Be Subrogated?Workers’ Compensation Subrogation Waiver EndorsementsWorkers’ CompensationWorkers’ Compensation Claims by Undocumented Employees
Automobile Insurance Subrogation
Automobile Total Loss Thresholds
Total Loss Formula (TLF)
Insurer determines if it is uneconomical to repair the vehicle and the vehicle is not repaired. M.G.L.A. 90D § 1.
Automobile and Property: No applicable statute, Administrative Code provision or case law exists.
Diminution of Value
First Party: The usual standards of contract interpretation apply. For years, nothing else was payable beyond repairs restoring the vehicle’s pre-collision physical condition.” Given v. Commerce Ins. Co., 440 Mass. 207 (Mass. 2003). In an appropriate case, a plaintiff may successfully claim damages based on an insurer’s specification/use of a substandard non-OEM part, or successfully demonstrate that the insurer’s duty to repair or replace can only be satisfied by the designation of a particular OEM part to repair the specific damage to that vehicle. Roth v. Amica Mut. Ins. Co., 796 N.E.2d 1281 (Mass. 2003). However, Roth ruled that DIV is not covered. Given contradicted this ruling by stating that DIV was “inherent” in physical damage claims. As a result, Deputy Commissioner and General Counsel Daniel R. Judson of the Massachusetts Division of Insurance issued a May 2002 advisory opinion that stated that the Division’s position was that the standard auto insurance policy does not provide coverage “for so-called ‘inherent diminished value,’ nor has the Division ever intended the language to provide such coverage.” Judson added that there are no statutes or regulations requiring insurers to pay claims for diminished value, or rates to include a premium charge for diminished value.
A federal judge ruled in 2019 that inherent diminished value (DIV) was not owed to a third party on a repaired vehicle. Martins v. Vermont Mutual Ins. Co., 2019 WL 3818293 (D. Mass. 2019) (unpublished). However, in 2021, Massachusetts’ highest court ruled the opposite. In McGilloway v. Safety Insurance Company, 174 N.E.3d 1191 (Mass. 2021), the plaintiffs argued that they were entitled to collect DIV damages from the defendants under part 4 of the standard policy. Conversely, the defendants argued that Massachusetts tort law does not permit IDV recovery. The defendants also contended that even if IDV damages were recoverable, such damages are not covered under the standard policy because Massachusetts regulations governing the claims made pursuant to the standard policy are silent as to how insurers should treat DIV damages. The court agreed with the plaintiffs. As of 2021, DIV third-party tort damages are recoverable.
First Come, First Served: Subrogating Multiple Claims in Excess of Policy Limits
A liability insurer with limited insurance limits may settle one or more of multiple claims arising from an accident, notwithstanding that such settlement results in a preference by exhausting its limits to which other injured persons whose claims have not been settled might otherwise look. Bruyette v. Sandini, 197 N.E. 29 (Mass. 1935). An insurance company does have a duty to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear. Mass. Gen. L., ch. 176D § 3(9)(f). The Massachusetts Appeals Court has interpreted that statutory duty to require an objective test in determining whether liability is reasonably clear:
That objective test calls upon the fact finder to determine whether a reasonable person, with knowledge of the relevant facts and law, would probably have concluded, for good reason, that the insurer was liable to the plaintiff. Demeo v. State Farm Mut. Auto. Ins. Co., 649 N.E.2d 803 (Mass. App. 1995).
The term “liability” includes both fault and damages. However, insurance companies must be given the time to investigate claims thoroughly to determine their liability. Van Dyke v. St. Paul Fire & Marine Ins. Co., 448 N.E.2d 357 (Mass. 1983).
Funeral Procession Traffic Laws
Massachusetts law provides that a funeral procession of ten vehicles or less has the right to use any public roadway subject to the same regulations and restrictions as “pleasure vehicles.” Mass. Gen. Laws Ann. ch. 85, § 14A.
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Where driver was not agent of owner, driver’s negligence was not imputed to owner in owner’s suit against third-party tortfeasor for property damage to vehicle. Gibbons v. Denoncourt, 9 N.E.2d 633 (Mass 1937).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
No Family Purpose Doctrine.
Sponsor Liability for Minor’s Driving: No sponsorship statute. However, liability can be statutorily imposed on parents for a minor’s willful act that causes damages to property or injury to a person under M.G.L.A. 231 § 85G.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: Use of cell phone is permitted as long as the driver keeps one hand on the steering wheel. Driver must be over the age of 18 for this to apply. M.G.L.A. 90 § 13.
No person operating a motor vehicle in motion may compose, send, or read an electronic text message with a hand-held device, unless the vehicle is parked. M.G.L.A. 90 § 13B-a.
No driver under the age of 18 may operate a motor vehicle. M.G.L.A. 90 § 8M.
Other Prohibitions: No person may use headphones while driving or operating a motor vehicle, except if the headphones are used for communication in connection with controlling the course or movement of said vehicle. Mass. Gen. Laws ch. 90 § 13.
Loss Of Use
Loss of Use: Yes. “The loss of use of the automobile during the period of repair is as much the natural and necessary consequence of the tortious act of the defendant described in the declaration as is the cost of the repair. It is as plainly as is the loss of time of an individual arising from personal injuries, or the loss of use of any chattel arising from wrongful act… the fair value of the loss of use of the plaintiff’s automobile while being repaired was the hire paid for the one to take its place” Antokol v. Barber, 143 N.E. 350, 352 (Mass. 1924). Recovery for loss of use must be limited to the time reasonably necessary to make repairs – owners of a commercial vehicle must take reasonable action to limit or mitigate damages. Urico v. Parnell Oil Co., 552 F. Supp. 499 (D. Mass. 1982), aff’d, 708 F.2d 852 (1st Cir. 1983) (applying Massachusetts law). Measure of the amount to rent a substitute vehicle as loss of use is not allowed. Antokol v Barber, supra. No caselaw expressly disallowing recovery for loss of use on a total loss claim. Accordingly, there is a strong argument that such a claim can be sustained, especially with favorable policy language.
Lost Profits: There is no direct support for lost profits as a measure of loss of use; however, the same is not strictly barred. “A plaintiff may be entitled to loss of use damages extending beyond the time actually necessary to make repairs, depending on the reasonableness of his efforts to minimize his damages. This, in turn, depends on a number of factual circumstances, including the financial situation of the plaintiff, the cause of the plaintiff’s inability to minimize his loss, the role played by the defendant in contributing to the difficulty in which the plaintiff finds himself at the time mitigation would be required, and the relative ability of both parties to prevent the aggravated loss.” Urico v. Parnell Oil Co., supra.
Med Pay/PIP Subrogation
Med Pay: There is no Med Pay reimbursement provision in Massachusetts’ law.
PIP: PIP carrier can recover PIP payments and any “expenses it incurs on account of such payments, including the net amount of benefits paid, costs of processing claims for any such benefits, and the expenses of enforcing this right.” (5th paragraph of § 34M). Subrogation is allowed regardless of whether the insured/victim crosses the tort threshold or files a BI claim. However, the tortfeasor’s liability carrier only has to pay up to its policy limits. If policy limits paid, there is no duty to reimburse the PIP carrier. M.G.L.A. Ch. 90, § 34M (2003).
- No-Fault State. Monetary threshold. M.G.L.A. Ch. 90, § 34A (2003), 34M, 34N and 34O. Medicals, lost wages and replacement services no-fault benefits recoverable up to $8,000. M.G.L.A. Ch. 90 § 34M (2003). Third-party suit allowed if medicals exceed $2,000 or (1) death; (2) loss of body part; (3) disfigurement; (4) loss of hearing or sight; or (5) fractured bone. M.G.L.A. Ch. 231, § 6D (2003).
Made Whole: Can be overridden with Plan language. Morin v. Massachusetts Blue Cross, Inc., 311 N.E.2d 914 (Mass. 1974).
Statute of Limitations: The three (3) year personal injury statute of limitations runs from date of insured’s accident. M.G.L.A. 260 § 2A (1999).
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: M.G.L.A. 90 § 13.
Common Law Rule: In an early case, Massachusetts courts held that the theft of the car was a superseding intervening act that prevented the car owner from being liable for failing to lock the car and set the brake properly. Slater v. T. C. Baker Co., 158 N.E. 778 (Mass. 1927). A more recent case has called this precedent into doubt by finding that if a person negligently makes the theft of a motor vehicle possible, certain circumstances might exist where the person making the theft possible can be held liable for injuries to a third person caused by the thief. Poskus v. Lombardo’s of Randolph, Inc., 423 Mass. 637, 670 N.E.2d 383 (1996).
Payment of Sales Tax After Vehicle Total Loss
First-Party Claims: Insurer is only required to pay for the ACV of a vehicle as of the day of the loss, not the cost to replace it. 211 Mass. Code Regs. § 133.05. https://www.mass.gov/service-details/frequently-asked-questions-about-auto-insurance-claims#q2
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Pedestrian and Crosswalk Laws
M.G.L.A. § 11: Vehicles must yield to pedestrians in crosswalk when the pedestrian is in or close to vehicle’s half of roadway.
720 Code Mass. Regs. 9.09: Pedestrians must cross a roadway within a marked crosswalk when there is an officer directing traffic, a traffic control signal, or a marked crosswalk within 300 feet of the pedestrian.
Municipalities can fine pedestrians who break jaywalking rules “by a fine of one dollar for the first, second or third such offense … and by a fine of two dollars for the fourth or subsequent such offense so committed in such calendar year.” The legislature is considering a bill to increase jaywalking fines. Pedestrian must exercise reasonable care for own safety. Brereton v. Milford & U. St. Ry. Co., 111 N.E. 715, 223 Mass. 130 (Mass. 1916). Pedestrian crossing at other than crosswalk is not itself negligent and does not relieve driver of duty to exercise care to avoid pedestrian. Ristuccia v. Boston Elevated Ry. Co., 186 N.E. 592, 283 Mass. 529 (Mass. 1933).
Rental Car Company Physical Damage and Loss of Use Claims
Recovery From Renter: Recovery of physical damage and loss of use are not prohibited or otherwise regulated. Terms of rental agreement control. Collision Damage Waivers regulated by statute. Mass Stat. ch. 90 § 32E1/2.
Recovery From Third-Party: Owner of damaged vehicle used in his business entitled to recover the cost to hire a replacement vehicle during repairs, but no cases involving car rental companies. Limited to the time reasonably necessary to make repairs – owners of a commercial vehicle must take reasonable action to limit or mitigate damages. Urico v. Parnell Oil Co., 552 F. Supp. 499 (D. Mass. 1982), aff’d, 708 F.2d 852 (1st Cir. 1983) (applying Massachusetts law). There is no direct support for lost profits as a measure of loss of use; however, the same is not strictly barred. “A plaintiff may be entitled to loss of use damages extending beyond the time actually necessary to make repairs, depending on the reasonableness of his efforts to minimize his damages. Financial situation of the plaintiff, the cause inability to minimize his loss, role played by defendant in contributing to the difficulty in which the plaintiff finds himself at the time mitigation would be required, and the relative ability of both parties to prevent the aggravated loss are all factors considered.” Urico v. Parnell Oil Co., supra. Owner of damaged vehicle used in his business entitled to recover the cost to hire a replacement vehicle during repairs. Antokol v. Barber, 143 N.E. 350 (Mass. 1924).
Rental Car Company’s Liability Insurance Primary or Excess
Summary: Car rental companies must maintain liability insurance on their rented vehicles in the amount of the minimum financial responsibility limits required. Mass. Stat. 90 § 32E. The liability insurance provided by a car rental company is primary. Alamo Rent-A-Car, Inc. v. Matchem, 2000 WL 16763 (Mass. Super. 1999). Escape clauses or “super-escape clauses” are not favored in Massachusetts. Premier Ins. Co. of Massachusetts v. Empire Fiore and Marine Ins. Co., 2002 WL 58465 (Mass. Super.2002).
Slower Traffic Keep Right
Statute: M.G.L.A. 89 § 4B, M.G.L.A. 89 § 2 and M.G.L.A. 89 § 4C.
Summary: A driver of a vehicle shall drive in the right lane except when passing another vehicle or when preparing for a left turn. Heavy commercial vehicles over two and one-half tons and used for transportation of goods, wares, and merchandise must use far-right lane. May use next adjacent lane for passing. May not use other lanes except in emergency. All vehicles must stay to the right except when passing or turning left. Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on visible signal.
Sudden Medical Emergencies While Driving
Sudden Medical Emergency Defense. A sudden and unforeseeable physical seizure rendering an operator unable to control his motor vehicle cannot be termed negligence. Carroll v. Bouley, 156 N.E.2d 687 (Mass. 1959).
Courts seem to use the term “seizure” interchangeably with heart attack and coronary occlusion which cause the driver to become unconscious. McGovern v. Tinglof, 181 N.E.2d 573 (Mass. 1962); Ellingsgard v. Silver, 223 N.E.2d 813 (Mass. 1967).
Suspension of Drivers’ Licenses
Administrative Suspension: Driving without insurance can incur fines between $500 and $5,000, and suspension of driver’s license. M. G. L. A. 90 § 34J. Any person who is convicted of, or enters a plea of guilty to a violation of this section will have his license or right to operate a motor vehicle suspended for sixty (60) days by the Registrar. M.G.L.A. 90 § 34J.
Judgment: The Registrar shall be notified by a court within sixty (60) days when a person fails to pay for damages required in a final judgment. M.G.L.A. 90 § 22A. Suspension will stand until the person satisfies the court by making a deposit with the Clerk of Court for amount of the judgment. A plaintiff must file with the RMV a Registry Form #21150 (Notice of Unsatisfied Judgment for Property Damage). The RMV then notifies the uninsured defendant. M.G.L.A. 90 § 22A.
Contact Information: Massachusetts Dept. of Transportation, Driver Control/Property Damage Claims, Registry of Motor Vehicles (RMV), P.O. Box 55896, Boston, MA 02205-5896, (617) 351-4500, http://www.massrmv.com/.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: M.G.L.A. 90 § 34R; 211 MA ADC § 133.01 to 133.09.
Summary: If non-OEM parts are used to repair the visible exterior sheet metal or plastic parts of a vehicle, then either the insurer or repairer must inform the insured in a written estimate of which non-OEM parts were used. The insured must also be informed in writing that the part’s manufacturer warrants the parts, not the auto manufacturer. In Roth v. Amica Mut. Ins. Co., 796 N.E.2d 1281 (Mass. 2003), the court followed Given, but noted that, “[i]n an appropriate case, a plaintiff may successfully claim damages based on an insurer’s specification of [use of] a substandard non-OEM part, or successfully demonstrate that the insurer’s duty to repair or replace can only be satisfied by the designation of a particular OEM part to repair the specific damage to that vehicle. There are parts of some vehicles where unique dimensions or specifications of the part are such that only a replacement part from the original manufacturer will suffice to restore the vehicle to its proper functioning condition.”
Federal , State, and Local Governmental Entities
Municipal/County/Local Governmental Immunity and Tort Liability
Massachusetts Tort Claims Act: M.G.L.A. Ch. 258, § 2 to § 14 (1978). Public employers (county, city, town, etc.) are liable for injury to property or personal injury caused by negligence of public employee in course and scope, in the same manner and to the same extent as a private individual (tort and contract). M.G.L.A. Ch. 258 § 2.
Notice Deadlines: Claim must be presented in writing to executive officer of the public employer within two (2) years after the date upon which the cause of action arose, and denied. Failure to act in six (6) months is deemed denial. Exceptions: (1) Plaintiff led to believe that presentment not an issue; (2) Actual notice. M.G.L.A. Ch. 258 § 4. No civil action can be brought more than three (3) years after accrual. M.G.L.A. 258 § 4.
Claims/Actions Allowed: Public premises owner owes duty of reasonable care to all persons lawfully on premises. Doherty v. Belmont, 485 N.E.2d 183 (Mass. 1985). Public Duty Rule: The public duty doctrine is considered when an individual alleges that law enforcement personnel or other government employees are liable for injuries due to a breach of a legal duty. Unless the employee created or enhanced a risk or had a special relationship with the plaintiff, there is no recovery because the duty owed by the government to its citizens is to the public generally and not to citizens individually. Judson v. Essex Agricultural and Technical Institute, 635 N.E.2d 1172 (Mass. 1994).
Comments/Exceptions: Public employer not liable for any claim based upon an act or omission as follows: (1) in the execution of a statute; or (2) discretionary acts; or (3) arising out of an intentional tort, assault, libel, slander, or misrepresentation; or (4) negligent inspection of property. See other exceptions at M.G.L.A. 258 § 10. Discretionary function two-step test: (1) Is there discretion as to what course of conduct to follow? (2) Is it the type of discretion for which the Act provides immunity? Fortenbacher v. Com., 888 N.E.2d 377 (Mass. 2008).
Damage Caps: Liability of public employer may not exceed $100,000 for each plaintiff. Public employer not liable to levy or execution or for interest prior to judgment or for punitive damages. Claims against the Massachusetts Bay Transportation Authority are not subject to the $100,000 limit. M.G.L.A. Ch. 258, § 2.
State Sovereign Immunity And Tort Liability
Tort Claims Act: Massachusetts Tort Claims Act. M.G.L.A. Ch. 258, § 2 to § 14 (1978).
Notice Deadlines: Claim must be presented in writing within two years after the date upon which the cause of action arose. M.G.L.A. Ch. 258, § 4.
Claims/Actions Allowed: State shall be liable for injury or loss of property caused by the negligent or wrongful act or omission of any public employee while acting within the scope of employment, in the same manner and to the same extent as a private individual under like circumstances. M.G.L.A. Ch. 258, § 2.
Comments/Exceptions: The State shall not be liable for any claim based upon an act or omission:
(1) in the execution of a statute;
(2) discretionary acts; or
(3) arising out of an intentional tort, assault, libel, slander, or misrepresentation.
See other exceptions at M.G.L.A. 258, § 10.
Tort Claims Act is not to be construed restrictively for motor vehicles. Cop driving vehicle owned and registered to State, caused accident while “on call.” Tort Claims Act was ruled not to apply since cop was not acting within scope of employment. Clickner v. City of Lowell, 663 N.E.2d 852 (1996).
Damage Caps: State not liable for interest prior to judgment or for punitive damages. Liability of the State shall not exceed $100,000. M.G.L.A. Ch. 258, § 2. Claims against the Massachusetts Bay Transportation Authority are not subject to the $100,000 limit. M.G.L.A. Ch. 258, § 2.
General Tort Laws/Statutes
Prohibits Broad Indemnity. Applies to Construction Contracts. Mass. Gen. Laws, ch. 149 § 29C.
Pure Joint and Several Liability. Joint and several liability with defendant’s liability being divided equally irrespective of percentage of fault. Ann L. Mass. Ch. 231B, § 1; Zeller v. Cantu, 478 N.E.2d 930 (Mass. 1985).
Contribution plaintiff entitled to recover from joint tortfeasor the amount of a reasonable settlement which is in excess of his pro-rata share of liability, in third-party action or separate action. Ann. L. Mass. Ch. 231B, § 1 (1962); Shantigar Foundation v. Bear Mt. Builders, 804 N.E.2d 324 (Mass. 2004); Ace Am. Ins. Co. v. Riley Bros., Inc., 2013 WL 4029087 (Mass. Super. 2013).
The statute of limitations runs one year after judgment. M.G.L.A. Ch. 231B § 1(c). If no judgment, must discharge liability within limitations period and file contribution action within one year after payment. M.G.L.A. Ch. 231B, § 1(d).
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff cannot recover if more at fault than defendants; otherwise, plaintiff’s negligence will reduce defendant’s liability. M.G.L.A. 231 § 85.
Dog Bite Laws
Dog owner will be held liable for damages caused by their dog, absent trespass, teasing, or tormenting. If the victim is under the age of 7-years-old, the presumption is that there was no trespass or provocation. Mass. Gen. Laws Ann. 140 § 155.
Economic Loss Doctrine
Intermediate Rule (no strict liability in MA). There is no independent claim of strict liability in tort under Massachusetts law, and the most common causes of action in product liability cases are negligence, breach of the implied warranty of merchantability (virtually the same as strict liability), and unfair deceptive acts or practices in violation of Massachusetts’ laws. Under Massachusetts law, the ELD provides that purely economic losses are not recoverable in negligence and strict liability actions in the absence of personal injury or damage to property other than the product itself. Bay State-Spray & Provincetown S.S., Inc. v. Caterpillar Tractor Co., 404 Mass. 103, 533 N.E.2d 1350 (Mass. 1989). Under Massachusetts law, “economic loss” is defined as damages for inadequate value, costs of repair and replacement of a defective product, or the resulting loss of profits, without any claim of personal injury or damage to other property. Cruickshank v. Clean Seas Co., 346 B.R. 571 (D. Mass. 2006). Where a commercial product injures itself and nothing or no one else, there is no need to create a product liability cause of action independent of contract obligation. The ELD draws a distinction between the situation where the injury suffered is merely the failure of the product to function properly,’ and the situation, traditionally within the purview of tort law, where the plaintiff has been exposed, through a hazardous product, to an unreasonable risk of injury to his person or property. Sebago, Inc. v. Beazer East, Inc., 18 F.Supp.2d 70 (D. Mass. 1998). In order for “other property” damage to negate application of the ELD, the “other property” must belong to the plaintiff – it can’t be property belonging to others. Id.
Willful Misconduct. Liability imposed on parents for minor’s willful act that causes injury to person or damage to property. M.G.L.A. 231 § 85G.
The limit of liability is $5,000.00. Child must be between 7 and 18.
Tort of Spoliation: In Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 773 N.E.2d 420 (2002), the Massachusetts Supreme Court declined to recognize an action in tort for spoliation of evidence.
Sanctions: The Massachusetts Supreme Court has recognized that Massachusetts courts have remedies for spoliation of evidence, i.e., exclusion of testimony in the underlying action, dismissal, or judgment by default. Gath v. M/A-Com, Inc., 440 Mass. 482, 499, 802 N.E.2d 521, 535 (Mass. 2003). Sanctions should be carefully tailored to remedy the precise unfairness occasioned by the spoliation. Id. at 426; Keene v. Brigham & Women’s Hosp., Inc., 786 N.E.2d 824, 833-34 (Mass. 2003). Sanctions may be imposed even if the spoliation of evidence occurred before the legal action was commenced, if a litigant knows or reasonably should know that the evidence might be relevant to a possible action. Stull v. Corrigan Racquetball Club, Inc., 2004 WL 505141 (Mass. Super. 2004).
Statute of Limitations
Personal Property3 YearsMass. Ann. Laws Ch. 260 §§ 2A and 4; and Ch. 106 §§ 2-318
Personal Injury/Death3 YearsMass. Ann. Laws Ch. 260 §§ 2A and 4
Breach of Contract/Written6 YearsM.G.L.A. Ch. 260 §2
Breach of Contract/Oral6 YearsM.G.L.A. Ch. 260 §2
Breach of Contract/Sale of Goods4 YearsM.G.L.A. Ch. 106 §2-725
Statute of Repose/ProductsN/AN/A
Statute of Repose/Real Property6 YearsM.G.L.A. Ch. 260 § 2B*
Breach of Warranty3 YearsM.G.L.A. Ch. 106 § 2-318
Workers’ Comp Third Party Case3 YearsM.G.L.A. 152 § 15
Strict Product Liability3 YearsMass. Ann. Laws Ch. 260 §§ 2A and 4
Statute of Limitations Exceptions
*6 Years from substantial completion of improvement to real property and owner taking possession of improvement. Mass. Ann. Laws Ch. 260 § 2B.
Health Insurance Subrogation
Health and Disability Insurance
Statute of Limitations: 3 Years. Mass. Ann. Laws Ch. 260 §§ 2A and 4.
Subrogation of Medical and Disability Benefits are allowed. Contractual subrogation provisions will be respected. In addition, there is a statutory right found in Mass. Gen. Laws ch. 111, § 70A (Note procedure for perfecting lien).
Made Whole Doctrine does not apply. Rogers St., LLC v. The Am. Ins. Co., No. CIV.A. 04-3377-C, 2004 WL 2425042, at *3 (Mass. Super. Oct. 22, 2004), citing Liberty Mut. Ins. Co. v. National Consol. Warehouses, Inc., 34 Mass. App. Ct. 293, 609 N.E.2d 1243 (1993). Common Fund Doctrine does apply where the contract language is silent as to attorneys’ fees. Seee.g., Commissioner of Ins. v. Massachusetts Acc. Co., 318 Mass. 238, 242, 61 N.E.2d 137, 139-140 (1945). It doesn’t apply if the lien arises under the Medical Lien Statue. SeePierce v. Christmas Tree Shops, Inc., 429 Mass. 91, 93, 706 N.E.2d 633, 636 (1999).
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: Commonwealth v. Lanigan, 641 N.E.2d 1342 (Mass. 1994).
Pre-Suit Disclosure of Liability Policy Limits in Third-Party Claims
Duty To Disclose: Yes. M.G.L. ch. 175, § 112C.
Failure To Disclose A Basis For Bad Faith: Can support a ch. 93A claim. Xu v. Donovan, 34 Mass. L. Rep. 312 (2017); see also M.G.L ch. 176D, § 3(9). M.G.L. ch. 175, § 112C requires insurers doing business in Massachusetts to respond to written requests for liability coverage limits of their insureds within 30 days of receipt of request. The statute provides a penalty of $500 and reasonable attorney’s fees and expenses incurred in obtaining the liability coverage limits.
All-Party Consent: The recording, interception, use or disclosure of any conversation, whether in person or via wire or telephone, without the consent of all the parties is prohibited. However, telephone equipment, which is furnished to a phone company subscriber and used in the ordinary course of business, as well as office intercommunication systems used in the ordinary course of business, is excluded from the definition of unlawful interception devices. Mass. Gen. Laws Ann. ch. 272, § 99(B)(4); Mass. Gen. Ann. Laws ch. 272, § 99(C)(1).
Product Liability Subrogation
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury and wrongful death. M.G.L.A. 260 § 2A. Discovery Rule applies. Statute of Repose is 7 years. M.G.L.A. 260 § 2B.
Liability Standards: Negligence.
Fault Allocations: Modified Comparative. M.G.L.A. 231 § 85.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes.
Heeding Presumption?: Yes. Evans v. Lorillard Tobacco Co., 990 N.E.2d 997, 1023-24 (Mass. 2013) (following Harlow v. Chin, 545 N.E.2d 602, 606 (Mass. 1989)).
Innocent Seller Statute: No.
Joint and Several Liability: Yes. Ann L. Mass. Ch. 231B, § 1.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Presumption; Alcohol/Drugs; Sophisticated User.
Restatement 2nd or 3rd?: Both.
“Matching Regulations” And Laws Affecting Homeowners Property Claims
Condominium/Co-Op Waiver of Subrogation Laws
Rebuilding of the common areas due to fire or other casualty loss shall be carried out in the manner set for by the condo by-laws. No subrogation waiver requirement. M.G.L.A. 183A § 17.
Waivers of subrogation in by-laws do not apply to tenants. Pacific Indemnity Company v. Deming, 2016 WL 3607028 (1st Cir. 2016) (applying Massachusetts law).
Damage to Property Without Market Value
Service Value: “…for the loss of a package…containing a set of plans for a house, which have no market value …the measure of damages is the cost of new plans…” Mather v. American Exp. Co., 138 Mass. 55 (Mass. 1884).
Intrinsic Value: “The measure of damages against a wrongdoer for the conversion of plates for printing labels or advertisements, of great value to the owner, but of very trifling value to others, is the value to him; and in estimating the cost of replacing the plates may be considered.” Stickney v. Allen, 10 Gray 352 (Mass.).
Sentimental Value: “They should be regarded as belonging, in a sense, to the person of the owner, and that the damages should be assessed according to the actual worth of the articles to her for use in the condition in which they were at the time of the fire, excluding any fanciful or sentimental considerations” Wall v. Platt, 48 N.E. 260 (Mass. 1897).
General Contractor Overhead And Profit Payments In First-Party ACV Property Damage Claims
Payment And Depreciation Of GCOP/Sales Tax: No applicable case law, statutes, administrative rules, or other guidance with regard to the calculation and/or depreciation of GCOP.
Massachusetts follows the “Implied Co-Insured Doctrine”. The term “insured” impliedly includes the tenant. Peterson v. Silva, 704 N.E.2d 1163 (Mass. 1999). Absent an express provision in a lease establishing a tenant’s liability, the landlord’s insurance is deemed held for the mutual benefit of both parties. When a residential landlord sues a tenant for damages to the landlord’s, the Implied Co-Insured Doctrine presumes that the landlord’s liability insurance is held “for the mutual benefit of both parties”. This rule applies to residential leases but is generally inapplicable to commercial leases. Federal Ins. Co. v. Commerce Ins. Co., 2010 WL 716412 (1st Cir. 2010).
Massachusetts recognizes that while courts have not distinguished between commercial and residential tenancies in applying the Sutton Rule (see Oklahoma), commercial tenancies present different considerations, for “[c]ommercial tenants tend to be more sophisticated about the terms of their leases and, unlike residential tenants, commercial tenants generally purchase liability insurance”; thus, commercial tenants will be relieved of liability for negligently caused fire damage only if the lease reveals the parties so intended. Seaco Ins. Co. v. Barbosa, 761 N.E.2d 946, 950 (Mass. 2002).
An insurer cannot subrogate against its own insured. Peterson v. Silva, 704 N.E.2d 1163 (Mass. 1999). Being a co-insured under the liability portion of a policy does not inherently make a party a co-insured under the property damage portion of a policy. Commerce Ins. Co. v. Empire Fire & Marine Ins. Co., 879 N.E.2d 1272 (Mass. App. 2008); HDI-Gerling America Ins. Co. v. Navigators Ins. Co., 199 F. Supp.3d 422 (D. Mass. 2016).
In Factory Mutual Ins. Co. v. Skanska USA Building, Inc., 2020 WL 2838860 (D. Mass. 2020), Factory Mutual issued an insurance policy to Novartis Corporation to provide coverage during a construction project. When a loss occurred, Factory Mutual paid on Novartis’ claim and then brought a subrogation action against project contractor Skanska USA Building, Inc. and a project subcontractor, J.C. Cannistraro, LLC. The defendants moved for summary judgment on the ground that the ASR barred the plaintiff’s suit against them because they too are insureds under Factory Mutual’s policy. The policy named only Novartis as an insured, but the defendants argued that the “property damage” provision of the policy also insured the interest of contractors and subcontractors during construction “to the extent of the insured’s legal liability for insured physical loss or damage to such property”, and “limited to the property for which they have been hired to perform work.” The court held that neither the policy nor the record as a whole supported the assertion that the policy’s “Property Damage” provision makes the defendants insureds in addition to Novartis.
Although the applicable statute in Massachusetts allows for a liable criminal defendant to be ordered to make restitution payments to a “victim,” neither Massachusetts case law nor statute has specifically addressed whether or not an insurer qualifies as a “victim” in allowing their receipt of restitution. Mass. Ann. Laws ch. 258B, § 3(o).
Made Whole Doctrine
It does not appear that Massachusetts adheres to or applies the Made Whole Doctrine. In a concurring opinion, the Massachusetts Supreme Court stated as follows:
Subrogation is a reasonable method of assisting and holding down the costs of health insurance. It prevents an undeserved windfall to the insured. It is appropriate to consider the matter of medical expenses apart from other aspects of the insured person’s claim. Whenever uncertainty may exist with respect to other elements of damages, the amount paid under the medical insurance policy can be ascertained and dealt with independently. I see no justification for denying subrogation as the court seems to suggest, because, in settling a case, the claimant may not be made whole on all elements of his damages. The claimant can be and is made whole on his medical costs, to the extent of his coverage. A health insurer should not be obliged to forego asserting subrogation rights in order to assist in making a claimant whole on some other aspect of his damages, such as lost wages and pain and suffering, for which the insured has not purchased coverage from the health insurer. Frost v. Porter Leasing Corp., 436 N.E.2d 387 (Mass. 1982); Rogers Street, L.L.C. v. Am. Ins. Co., 2004 WL 2425042 (Mass. Super. 2004) (unreported decision); Liberty Mut. Ins. Co. v. Nat’l Consol. Warehouses, Inc., 34 Mass. App. Ct. 293 (Mass. App. 1993) (which, according to the decision in Rogers Street, L.L.C., did not adopt the Made Whole Doctrine).
However, at least one Massachusetts case does appear to hold that without evidence of duplicative recovery by the insured as a result of the specific elements of damages recovered in a third-party case, a carrier will not be allowed to subrogate. Blue Cross & Blue Shield of Mass., Inc. v. Trull, 1995 WL 419946 (Mass. Super. 1995); Frost, supra. Thus, it is important for subrogated carriers to see to it that recoveries are allocated among the various elements of damages being recovered. While not specifically adopting the Made Whole Doctrine, per se, this case does state that subrogation clauses are void to the extent they allow the insurer to recover benefits paid where the insured has not been fully compensated. Id.
Speaking specifically with regard to a health insurance Plan’s right of reimbursement, the 1st Circuit, applying Massachusetts’ law, has held the Made Whole Doctrine will not prevent a health insurance Plan from subrogating where, despite the fact that the insured is not made whole, the Plan gives itself such a right according to its terms. Harris v. Harvard Pilgrim Healthcare, Inc., 208 F.3d 274 (1st Cir. 2000). In Massachusetts, the Made Whole Doctrine is merely considered a “gap filler” which comes into play when contracts fail to address the issue clearly and, which, of course, the insured may sign away the right to be made whole. Rogers Street L.L.C., supra; 4 Richard H. Long, The Law of Liability Insurance, § 23.02(2)(a) (2004).
Medical Expenses, Insurance Write-Offs, and The Collateral Source Rule
Collateral Source Rule: Common law CSR followed. Defendant cannot present evidence of collateral source and it doesn’t reduce the defendant’s liability. Corsetti v. The Stone Company, 483 N.E.2d 793 (Mass. 1985); Goldstein v. Gontarz, 309 N.E.2d 196 (Mass. 1974).
Recovery of Medical Expenses Rule:
Private Insurance: CSR bars evidence of discounted payments to providers. Scott v. Garfield, 912 N.E.2d 1000 (Mass. 2009). However, court said that defendants could have challenged reasonableness of amounts billed by cross-examining providers with respect to the medical bills. Concurring opinion suggested that treatment of write-downs is still open to debate. Massachusetts courts have not had occasion to decide whether evidence of a discount from the initial charges for medical services is barred by CSR. In 2010, court held that although no evidence of the discounted amounts allowed, evidence of the range of payments accepted by the healthcare provider is admissible. Law v. Griffith, 930 N.E.2d 126 (Mass. 2010).
Medicare/Medicaid: In a medical malpractice case, the court held that although Medicaid was a collateral source whose right of subrogation was based in federal law, a Medicaid write-off is not a collateral source for purposes of § 60G and, therefore, can be deducted from the damages awarded. Sylvestre v. Martin, 2008 WL 82631 (Mass. Super. 2008).
Exception to CSR. If probative of a relevant proposition (e.g., to impeach plaintiff’s credibility or show another reason why absent from work. Goldstein v. Gontarz, 309 N.E.2d 196 (Mass. 1974).
Medical Malpractice: Statute provides that CSR does not apply to special damages awarded in medical negligence case. M.G.L. A. 231 § 60G.
Employee Leasing Laws
It appears that Massachusetts allows an employee to sue a client company. Margolis v. Charles Precourt & Sons, Inc., No. 97-4029 (May 6, 1999) (unpublished); Home Ins. Co. v. Liberty Mut. Fire Ins. Co., 830 N.E.2d 186 (Mass. 2005).
Hospital Lien Laws
Statute: M.G.L.A. 111 §§ 70A – D. Hospital Liens.
Perfecting Lien: To perfect a lien in Massachusetts, a provider must give:
(1) Written notice containing name and address of injured person, date of accident, name and location of provider of hospital, medical or dental services, name of person alleged to be liable to the injured person for injuries received and, if applicable, name and address of the health maintenance organization, or the hospital, medical, or dental service corporation, shall be mailed by the hospital, health maintenance organization, medical or dental service corporation, certified mail, return receipt requested, to such injured person, to his attorney, to person alleged to be liable to such injured person for injuries sustained and to any insurance carrier which has insured such person against liability. § 70B.
(2) Notice must be given prior to any judgment, settlement, or compromise. § 70B.
Comments: Any hospital shall have a lien for the reasonable and necessary charges of such hospital, not exceeding, however, the amount which would be charged in a ward of such hospital, and any health maintenance organization which has furnished health services, and any hospital, medical, or dental service corporation which has provided benefits for covered services furnished to a person injured in such an accident shall, subject to the provisions of § 70B, have a lien for such benefits, upon the net amount payable to such injured person, his heirs or legal representative out of the total amount of any recovery or sum had or collected or to be collected, whether by judgment or by settlement or compromise, from another person as damages on account of such injuries. § 70A. The lien of any attorney shall have precedence over the lien created under this section. § 70A.
OCIP/CCIP Subrogation In Workers’ Compensation Construction Cases
OCIP Law: No statute or case law specifically dealing with effect of OCIP/CCIP.
Statutory Employer Law: In 2011, Massachusetts Supreme Court held that statutory employers who pay benefits to the employees of a subcontractor are not able to claim protection under the Exclusive Remedy Rule. Wentworth v. Henry C. Becker Custom Bldg., Ltd., 947 N.E.2d 571 (Mass. 2011).
Comments: In 2011, Massachusetts Supreme Court held that statutory employers who pay benefits to the employees of a subcontractor are not able to claim protection under the Exclusive Remedy Rule. Wentworth v. Henry C. Becker Custom Bldg., Ltd., 947 N.E.2d 571 (Mass. 2011).
Recovery Of Increased Workers’ Compensation Premiums By Employer
Recovery For Increased Premiums? No.
Statute/Case Law: R.L. Whipple Co. v. Pondview Excavation Corp., 887 N.E.2d 1095 (Mass. App. 2008).
Rule Summary: Employer cannot recover increased workers’ compensation premiums from the third party who injured its employee because purely economic losses are unrecoverable in tort actions in the absence of personal injury or property damage.
Which Workers’ Compensation “Benefits” Can Be Subrogated?
There is no precedent or discussion in case law regarding whether nurse case management fees or other allocated costs which may benefit the employer and/or employee can be recovered in subrogation. Section 15 describes a workers’ compensation carrier’s subrogation interest as follows: “…the compensation paid under this chapter.” M.G.L.A. 152 § 15. “Compensation” is not defined in the Act, but at least one decision has said that the word “compensation,” as used in the Act, means the money relief afforded an injured employee or his dependents according to the scale established and for the persons designated in the act, and not the compensatory damages recoverable in an action at law for a wrong done or a contract broken. Devine’s Case, 129 N.E. 414 (Mass. 1921); Duart v. Simmons, 121 N.E. 10 (Mass 1918), error dismissed 40 S.Ct. 342, 251 U.S. 547, 64 L.Ed. 408.
Workers’ Compensation Subrogation Waiver Endorsements
Subrogation Statute: M.G.L.A. 152 § 15
Waiver Allowed? Nothing in the Massachusetts Workers’ Compensation Act or applicable case law prohibits the use or efficacy of a waiver of subrogation.
Effect Of Waiver Endorsement on Carrier’s Right To Assert A Lien On Claimant’s Recovery: The effect of a waiver of subrogation on the carrier’s rights, including its right to enforce its statutory lien, has not yet been decided.
Other Applicable Law: None.
Statute of Limitations: 3 Years. M.G.L.A. 152 § 15.
Can Carrier Sue Third Party Directly: Yes, after 7 months.
Right to Intervene: No.
Recovery from UM/UIM Benefits: No.
Subrogation Against Medical Malpractice: Yes.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: The carrier gets first money, less fees and costs, from economic damages allocated to lost wages and medical expenses. Subrogation not allowed against pain and suffering (DiCarlo v. Suffolk Constr. Co., 473 Mass. 624, 633 (2016)) or against loss of consortium (DiCarlo at 631, citing Hultin v. Francis Harvey & Sons, Inc., 40 Mass. App. Ct. 692, 698 (1996)). The court can conduct a “Curry Allocation” to determine what portions of the recovery are for non-economic damages pain and suffering (Curry Allocation) or awarded for a spouse’s loss of consortium (Eisner Allocation).
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Apportionment depending on activity.
Future Credit: Hunter offset. Pays only fraction of future benefits.
Auto No-Fault: Yes.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute is silent on “alien” or “illegal alien”, but the statute uses the phrase “every person.” Mass. Gen. Laws Ch. 152, § 1-4.
Case Law: Brambila v. Chase-Walton Elastomers, Inc., 11 Mass. Workers’ Comp. Rep. 410 (1997); Medellin v. Chasman KPA, 17 Mass Workers’ Comp. Rep. 592 (2003).
Comments/Explanation/Other: Brambila held that status as an illegal alien is not a bar on receiving workers’ compensation, and even if the worker misrepresented his status to gain employment, is still entitled to benefits. The Medellin court upheld Brambila.