INSIGHTS On Massachusetts Personal Injury Law

Welcome to the SUGARMAN blog. We'll be sharing our perspectives on the state of the law and current legal issues in Massachusetts personal injury law. Issues relating to medical malpractice, construction site injuries, premises liability, product liability, motor vehicle accidents, insurance, and more will all be reviewed here by our team of lawyers who have prosecuted some of the most complex cases in Massachusetts personal injury law.

Articles Posted in Auto Accident Law

Published on:

The Federal Highway Administration states that 300-400 people are killed each year in wrong way driving accidents.  Last week Massachusetts got a first-hand look at the impact these accidents have, when a woman drove on the wrong side of 495 in Middleborough and crashed head-on into a car full of four college students – no one survived the incident.  Unfortunately, car accidents happen frequently, but the realities of sharing the road make an impact when extreme incidents make the news.  Here’s what to consider to avoid wrong way drivers.

Be Aware of what Lies Ahead

Many drivers only look a few cars ahead of them and ignore the action happening beyond their immediate view.  Not only do you want to look at the people directly in front of your vehicle, but try to scan the road even further away.  The more information you can gather about what lies ahead, the safer your travel will be.

Published on:

The newest app craze sweeping the country is Pokemon Go, a smartphone game created by Niantic and the Pokemon Company and released over the summer.  The app uses smart phone cameras and GPS tracking, which when integrated with the app, allows you to see and “capture” the Pokemon characters in “real time” as you walk (or drive) nearly anywhere.  While hailed by many as a great way to get children, teenagers and adults alike out of the house and on their feet, the hordes of people walking through city streets, parks, buildings and busy intersections focusing on the screen instead of their surroundings are causing accidents and injuries all over the world.

To date, there are increasing reports of hospitalizations caused by the inattention of people while “catching Pokemon.”  People have tripped over things, walked into poles and trees, fallen into holes and ditches (and two men in California off of a cliff), and they have walked directly into traffic – all as a result of this game, which seems to have a “zombie-like” effect on many.

While the concern for self-injury is high, however, this new obsession also poses significant risks to the non-playing public.  Since the app works anywhere, there have been reported vehicle collisions caused by drivers suspected of Pokemon chasing while driving.  Since the proliferation of the smartphone, texting and emailing while behind the wheel has caused thousands of accidents, many fatal, and this presents yet another challenge to safe drivers on the road, as well as pedestrians, bicyclists, Pedicabs and all of the other individuals sharing the crowded city streets.  While the clear message is not to drive and play Pokemon, many people who fail to heed the advice can cause serious accidents.  Similarly, people walking distractedly into traffic have caused vehicles to collide in avoidance of the unaware pedestrian.  Injuries have also been reported as a result of pedestrians walking into other pedestrians, resulting in injuries.

Published on:

While a true New England winter has not yet set in, there are plenty of hazards to navigate on the roads, including drivers distracted by cell phones and other handheld devices. The sight of a vehicle drifting into another lane because the driver is texting, emailing, GPS-ing or reading on a cell phone has become an all-too-common sight. Drivers need to be vigilant in order to avoid collisions with distracted drivers, which cause tens of thousands of collisions each year, many of which result in death.

In 2010, the Massachusetts Legislature passed a law making it illegal to “use a mobile telephone, or any handheld device capable of accessing the internet, to manually compose, send or read an electronic message while operating a motor vehicle.” A violation of this law is punishable by a fine of $100 for the first offense, $250 for a second offense and $500 for the third or subsequent offense, but under no circumstances would the penalty be a surchargeable offense. M.G.L. ch. 90, § 13B. However, despite people breaking the law on a daily basis, it turned out to be hard to prove that the driver was actually sending or reading messages while driving without subpoenaing phone records, something not generally done to prove a simple traffic violation, without a serious injury or fatality.

A new proposed law, entitled “An Act to Prohibit the Use of Mobile Telephones While Operating a Motor Vehicle,” Bill S.2093, if passed by the legislature, will ban the use of all handheld mobile devices while driving, except to “activate, deactivate or initiate a feature or function.” Moreover, someone who is seen by police driving with a phone near his or her ear or head, is presumed to be in violation of the law, placing the burden of proof on the individual to prove he or she was not violating the law, or that it was for emergency purposes. Fines for violating the new law will remain at $100 for the first offense, $250 for a second offense and $500 for the third or subsequent offense; however, the third or subsequent offense will be considered a moving violation and could affect your insurance premiums.

Continue reading

Published on:

SUGARMAN presents its first installment of “Massachusetts Ride-Share Liability,” a blog series navigating the liability implications posed by ride-share companies when involved in an accident causing personal injuries.

In early 2014, questions surrounding liability and insurance coverage of ride-share companies first emerged when an UberX driver struck an entire family crossing the street and killed a 6-year-old girl in San Francisco. While liability of ride-share companies may, at first glance, appear to be rather straightforward, unfortunately, it’s not that simple. So, what happens when an individual has been injured in an accident involving a ride-share company in Massachusetts?

Under the Massachusetts personal auto policy, all registered vehicles are required to carry compulsory bodily injury coverage in the amount of $20,000 per person/$40,000 per accident, with the opportunity to purchase optional bodily injury in the same amounts and higher. This compulsory coverage is available only to individuals that are not occupants of the insured vehicle. A large segment of ride-share drivers–such as those for UberX, Lyft, and Sidecar–utilize their own personal vehicles when chauffeuring ride-share passengers, but fail to disclose their commercial activities (driving for profit) to their respective insurers. When an insurer learns of this, usually after an accident has occurred, the insurer will disclaim all optional coverage, leaving only compulsory coverage available to all non-occupants of the insured vehicle. Consequently, there is no coverage available under the ride-share driver’s auto policy for ride-share passengers injured during a ride-share trip.

Continue reading

Published on:

This record-setting New England winter has brought about many headaches to daily drivers, and plenty of important issues for Massachusetts personal injury attorneys to talk about. Drivers must navigate through snow and ice covered roads and meticulously around potholes that can all but swallow the front end of a vehicle; they must deal with the reduction in the number of navigable travel lanes (and therefore an increase in commuting time); and they must be aware of snow banks so high that it is nearly impossible to see pedestrians until they suddenly emerge onto the roadway (hopefully in a crosswalk). However, one hazard can be avoided if everyone does their part. It is important to clean all of the snow and ice off of your vehicle before going out onto the roadways. The consequences of failing to do so can be serious, or even deadly, as the Massachusetts State Police pointed out well before the onslaught of weekly winter storms began.

Although several bills specifically prohibiting the operation of motor vehicles with an accumulation of snow and ice have stalled in the Massachusetts Legislature (most pertaining to commercial vehicles), a driver who fails to properly clean his or her vehicle may be cited and fined under the impeded operation statute. Massachusetts General Laws, Chapter 90, §13 provides that “No person, when operating a motor vehicle, shall permit to be on or in the vehicle or on or about his person anything which may interfere with or impede the proper operation of the vehicle or any equipment by which the vehicle is operator or controlled.” Violations carry no criminal penalties, but fines start at $50 and increase with each offense. A driver may also face civil liability for failing to clean the snow and ice from his or her vehicle, if the snow or ice accumulation causes an accident which injures or kills someone.

Several states have enacted laws specifically prohibiting people from driving a vehicle with more than a small amount of snow or ice accumulation, including Connecticut General Statutes §14-252a, which imposes a $75.00 fine. Pennsylvania and New Hampshire each enacted laws following deaths caused by snow and ice accumulation on vehicles. Both laws impose fines of up to $1,000 for violations which cause injury or property damage to another. New Jersey’s snow and ice removal law, enacted in 2010, imposes fines of $25.00-$75.00 for benign violations, and $200-$1,000 fines for violations resulting in injury or property damage. Commercial vehicle drivers face higher fines.

Published on:

Earlier this week, the Boston City Council was expected to take up a first-of-its-kind ordinance geared towards bicyclist and pedestrian safety. On Tuesday, September 9, 2014, Boston Mayor Marty Walsh presented the City Council with an Ordinance to Protect Vulnerable Road Users. If passed, the ordinance would require the implementation of safety apparatuses on all city-owned and city-contractor vehicles weighing over 10,000 pounds. Furthermore, only snowplows and emergency vehicles would be exempt from complying with the proposed ordinance.

These safety apparatuses include protective side guards, cross-over mirrors, convex mirrors, and blind-spot awareness decals. In the event that a cyclist or pedestrian is struck, the side guards reduce the risk of the person falling under the vehicle and subsequently being caught under the wheels. Conversely, the mirrors and decals look to prevent an accident from occurring by reducing drivers’ blind spots, while drawing cyclists’ and pedestrians’ attention to the presence of the blind spots. The Boston Cyclists Union recently released a fact sheet, “Sideguards Save Lives,” that illustrates the benefits of these safety apparatuses. The fact sheet states that although trucks account for only 4% of vehicles nationwide, they are responsible for 11% of all bicyclist fatalities and 7% of all pedestrian fatalities.

According to the 2013 Boston Cyclist Safety Report, between 2010 and 2012, motor vehicle-cyclist accidents accounted for 91 percent of the total 1,446 cyclist accidents in the City of Boston, resulting in nine deaths. Given the increasing number of reported incidents, city officials were called upon to combat this public health issue, and the proposed ordinance is their answer. Now, we have to wait and see whether the Boston City Council agrees with the proposal or whether different safety measures will be taken.

Published on:

Recently, the National Highway Traffic Safety Administration (NHTSA) released a rule which would require rearview cameras to be installed in all new “light vehicles” by May 1, 2018. Light vehicles includes all cars, trucks, vans and SUVs under 10,000 pounds – a vast majority of vehicles on the road today. The safety regulation, which was first introduced as a requirement of the Cameron Gulbransen Kids Transportation Safety Act of 2007, amends the NHTSA’s Federal Motor Vehicle Safety Standard (FMVSS) on rearview mirrors, FMVSS No. 111. Though first introduced in 2010, the regulation’s rollout has been repeatedly delayed due to efforts to conduct research on the issues involved, most likely a result of car manufacturers’ resistance to the new rule.

While technically amending the NHTSA standard on rearview mirrors, the regulation sets requirements for a specified visible area of ten feet wide by twenty feet long immediately behind the center point of a vehicle’s bumper. This area encompasses the area of highest risk for pedestrians to be struck in these type of accidents. In order to satisfy this visibility requirement, the NHTSA notes that “it appears that, in the near term, the only technology available with the ability to comply with this proposal would be a rear visibility system that includes a rear-mounted video camera and an in-vehicle visual display.”

The Cameron Gulbransen Kids Transportation Safety Act of 2007 was named for a two year old, Cameron Gulbransen, who was tragically killed when his father accidentally backed over him in their driveway. While terrible, this story is not uncommon. According to the studies supporting the final rule, the NHTSA estimates that an average of 15,000 injuries occur annually, with 210 fatalities, as a result of these so-called “back over” accidents. Of all of the fatalities, approximately 57% were either children under 5 years old or elderly individuals age 70 or older.

This effective use of technology to save a considerable number of lives comes at little cost to the public, as the impact on overall vehicle cost passed on to the consumer is estimated to be minimal. The NHTSA rule estimates that implementing rearview video systems in the manufacture of a new vehicle without any existing display screen will cost between $132 – $142 per vehicle. For vehicles with an appropriate pre-existing display (such as one for a navigation system), the cost of implementing a camera system is estimated to be between $43 – $45 per vehicle.
Continue reading

Published on:

The insurance industry is constantly bombarding the media and consumers with the idea that frivolous lawsuits are raising rates and taxing the court system. Experienced plaintiff lawyers who litigate and try cases know first-hand that these claims are largely false. A recently decided case in Middlesex County puts a dirty little secret of the industry on display. It is often insurers–loathe to pay claims and engaging in scorched earth tactics against injured people–that are costing the public trust and money.

In a case called Anderson v AIG, a Superior Court judge in Middlesex County found that AIG manipulated evidence, tampered with witnesses and testimony, and dragged a clear liability motor vehicle case through years of litigation rather than paying a claim. The opinion details how the insurer literally created evidence that didn’t exist and, on videotape, changed the testimony of their main witness.

The case started with a bus driver of a privately-owned shuttle who admitted to AIG and its lawyers that he was at fault for badly injuring a pedestrian. There was no defense. A responsible insurer–one concerned about cost and the public good–would simply pay the plaintiff the value of the claim. Instead, AIG embarked on a years-long, incredibly costly legal battle in an effort to wear down the plaintiff and avoid paying the claim. It did this at the expense of the court, the jurors, the policyholder who paid good money to AIG for coverage, and the public trust.

Amazingly, AIG, just a few years ago, was found to have engaged in abusive settlement practices against a paraplegic woman injured in a clear liability accident against one of AIG’s insureds.
Continue reading

Published on:

Unsecured car and truck loads are a serious problem endangering drivers in every state, including Massachusetts. When driving on the highway, cars and trucks can be seen hauling objects, such as mattresses, ladders or pieces of furniture. There is a good chance that this cargo is improperly secured, especially where the car or truck is non-commercial, posing a serious hazard to other motorists if it falls or flies free. For example, such debris might collide with other vehicles, distract nearby drivers or, when cars swerve or stop to avoid hitting it, cause a collision. Any one of these scenarios can lead to property damage, injuries or even death.

Most recently, the failure of a motorist to properly secure cargo caused such a tragic accident. On January 28, 2013, a woman traveling on Route 128 in Burlington was killed after she abruptly stopped her vehicle to avoid hitting a mattress that had flown off a truck traveling in front of her, causing another vehicle to crash into the rear of her car. The police are still searching for the vehicle that lost the mattress as it appears the driver did not stop when the accident occurred.

Similar accidents are an all too common occurrence. According to the National Highway Traffic Safety Administration, in 2010, there were about 51,000 crashes–including almost 10,000 injured persons and 440 known fatalities–involving a vehicle striking an object that came off another vehicle or a non-fixed object lying in the roadway.
Continue reading

Published on:

In Massachusetts, most motorists or pedestrians involved in a car accident enjoy certain “No Fault” benefits. These benefits can pay up to $8,000 in lost wages and/or medical bills, regardless of who was at fault for the accident. In addition, “Med Pay” coverage is a form of motor vehicle insurance coverage that can be used to pay for expenses incurred for medical treatment. In Golchin v. Liberty Mutual Insurance Company, the Supreme Judicial Court held that an insurer must pay benefits available under “Med Pay” even if the insured has had the cost of treatments paid for by his or her health insurance policy. This ruling will likely have a big impact on motor vehicle personal injury cases.

Diane Golchin was seriously injured in an automobile accident and incurred in excess of $100,000 in medical bills. Her health insurer, Blue Cross/Blue Shield, paid for her bills under a policy she held with the company. Blue Cross thereafter asserted a lien against Ms. Golchin’s personal injury claim in the amount of $32,033.03, the amount it actually paid for the treatments she required. Golchin then applied for the $25,000 in Med Pay benefits available under the automobile policy her husband had with Liberty. Liberty refused to provide those benefits because the bills were already paid by Blue Cross. Liberty claimed that Med Pay benefits were to cover expenses “incurred” as a result of an accident and because Golchin had those expenses paid by Blue Cross, the coverage did not apply. Golchin sued Liberty Mutual over this dispute and a Superior Court judge ruled in Liberty’s favor. On appeal, the SJC reversed the lower court’s ruling and found that Med Pay coverage is available even when another insurer has paid the bills for treatment.
Continue reading