Historically, our firm’s civil trial practice has been complemented by a highly regarded appellate practice which has made substantial contributions in shaping the legal landscape in Massachusetts in such areas as tort law, including professional and general liability, evidence, and insurance coverage and fair claims practices.
Over the last two decades the firm’s appellate practice has expanded significantly to include appeals arising not only out of cases tried by our office, but also referrals of appeals seeking reversal of substantial, adverse judgments, consultations with regard to review of cases and their prospect of potential reversal on appeal and strategy considerations relating thereto, and referrals from various industry associations and insurers for participation as amici curiae in appeals involving potentially major impact on their interests.
Also, the firm’s practice has expanded to accommodate pre-trial requests for assistance with regard to analysis and strategy of potential appellate issues in major cases where our appellate lawyers have assisted trial counsel from other firms in the development and presentation of potential appellate issues in advance of, and during, trial.
The following cases provide some examples of a number of novel legal issues as to which our appellate practice has successfully represented our clients’ interests:
Crivello, et al. v. All-Pak Machinery Systems, Inc., et al., 446 Mass. 729 (2006). (Successful defense of a product manufacturer involving issue of first impression regarding the interpretation of Massachusetts General Laws c. 221C, §§ 1-3, which afford a right to the assistance of a qualified court interpreter to “non-English speakers.”)
Carey v. New England Organ Bank, et al., 446 Mass. 270 (2006). (Appeal affirming judgment involving issues of first impression with respect to claims brought under Uniform Anatomical Gift Act applying doctrine of good faith immunity as to alleged technical violations of the Act.)
Fleming v. National Union Fire Insurance Company and AIG Claim Services, Inc., 445 Mass. 381 (2005). (Successful defense of insurer and claims adjusting office in class action brought on theory of “bad faith” under the provisions of Massachusetts General Laws c. 93A involving issue of first impression whether c. 93A affords any remedy to workers compensation claimants with regard to benefits disputes under Massachusetts General Laws c. 152, theWorkers Compensation Act.)
Rudenauer v. Zafiropoulos, 445 Mass. 353 (2005). (Affirming judgment in favor of physician concerning issue of first impression establishing that Massachusetts statute of repose is applicable to medical negligence cases not affected by allegation of “continuing duty.”
Harris-Lewis, Executrix v. Mudge, M.D., 60 Mass. App. Ct. 480 (2004). (Affirmance of judgment in favor of cardiologist in appeal involving issues of admissibility of insurance and alleged drug use in wrongful death claim brought by estate of professional athlete.)
Peerless Insurance Company v. Hartford Insurance Company, 48 Mass. App. Ct. 551 (2000). (Successful defense of workers compensation/employer’s liability insurer involving issue of first impression concerning demarcation of liability coverages between comprehensive general liability insurers and workers compensation/employer liability insurers with respect to wrongful death recovery.)
Hartford Fire Insurance Co. v. Rhode Island Public Transit Authority, 233 F. 3d 127 (1st Cir. 2000). (Affirmance of judgment in favor of insurer with respect to whether duty to indemnify was precluded by motor vehicle liability exclusion of CGL policy where insured attempted to circumvent exclusion under doctrine of “concurrent causation.”)
Suffolk Construction Company, Inc. v. Lanco Scaffolding Co., Inc., 47 Mass. App. Ct. 726 (1999). (Reversing a judgment which had been obtained in favor of the plaintiff with respect to a construction site injury, the Appeals Court ruled that the defendants’ motion for judgment notwithstanding the verdict should have been allowed with respect to cross-claim for indemnity brought by general contractor against subcontractor.)
National Union Fire Insurance Co. of Pittsburgh, PA v. Figaratto, 423 Mass. 346 (1996). (Holding that exclusivity provision of the Massachusetts Workers Compensation Act prohibited claimant from recovering underinsured motorist benefits under Massachusetts motor vehicle liability policy.)
Curtis v. School Committee of Falmouth, 420 Mass. 749, cert. den., 64 U.S.L.W. 2076 (1995). (Defense of school committee to United States Supreme Court in constitutional claims by national groups seeking to limit defendant’s ability to implement educational programs.)
Rohde v. Lawrence General Hospital, 34 Mass. App. Ct. 584 (1993). (Appeal addressing evidentiary requirements and legal sufficiency of Offer of Proof submitted under Massachusetts Medical Malpractice Tribunal statute.)
Thaler v. American Insurance Co., 34 Mass. App. Ct. 369 (1993). (Successful appeal obtaining reversal of trial court ruling that insurer client had committed “bad faith” and violated Massachusetts General Laws c. 93A by insisting on obtaining release on behalf of its insured before paying out liability limits on motor vehicle liability policy.)
Commercial Union Ins. Co. v. Burns, 30 Mass. App. Ct. 617 (1991). (Affirming judgment in favor of insurer providing underinsured coverage under standard Massachusetts motor vehicle policy where agreement for judgment within liability coverage limits of defendant was entered so as to preclude recovery from underinsured coverage.)
Charles T. Main, Inc. v. Fireman’s Fund Insurance Company, 406 Mass. 481 (1990). (Case of first impression in Massachusetts construing the application of “claims made” policy issued to an architectural consulting firm which was sued for alleged professional negligence in overseeing construction of a power plant. The Supreme Judicial Court concluded that the insured failed to timely report the claim within the meaning of the claims made provisions of the policy and found in favor of the insurer client.)
Croteau v. Swansea Lounge, Inc., 402 Mass. 419 (1988). (Appeal involving sufficiency of evidence with respect to requirements for notice provisions concerning statutory dram shop claim.)
Levin v. Berley, 728 F. 2d 551 (1st Cir. 1984). (Seminal case in legal malpractice area interpreting coalescence of notice and harm for purposes of triggering statute of limitations.)
Monadnock Display Fireworks, Inc. v. Andover, 388 Mass. 153 (1983). (Case of first impression successfully enforcing a claim of implied contractual indemnity against municipality.)
REPRESENTATIVE APPELLATE AMICUS FILINGS
Metropolitan Property & Casualty Insurance v. Blue Cross & Blue Shield of Massachusetts, et al., Appeals Court No. 2006-P-1027. (Addressing novel issue of allocation of insurance coverage between health insurers and motor vehicle personal injury protection (“PIP”) and “MedPay” coverages.)
Daniel Boone v. Commerce Insurance Company, Supreme Judicial Court No. 09991. (Addressing novel issue of statutory interpretation as to whether motor vehicle insurers may challenge reasonableness of chiropractic bills based upon review provided by physician conducting medical examination and review of claimant’s records as opposed to challenging such bills based upon review by other member of chiropractic profession.)
David J. Spellman, Sr., et al. v. Shawmut Woodworking & Supply, Inc. a/k/a Shawmut Design & Construction v. East Coast Fireproofing, Inc., 445 Mass. 675 (2006). (Addressing novel issue as to assignability of indemnity claims in personal injury construction site context.)
Clegg v. Butler, 424 Mass. 413 (1997). (Addressing plausibility defense with respect to statutory Unfair Claims Practices Act actions brought against liability insurers based on failure to settle.)
