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B16 | Massachusetts Lawyers Weekly | September 25, 2006 Subscribe Today - Call 1-800-451-9998 www.masslawyersweekly.com | Cite this page 35 MLW 288 Continued from page B15 es on the insurer a duty to indemnify the policyholder for the release of any pollutants while being transported or otherwise in the course of transit. City Fuel Corp. v. National Fire Insurance Company of Hartford (Lawyers Weekly No.10- 078-06) (9 pages) (Cordy, J.) (SJC) Case heard by Walker, J., on a motion for summary judgment. Owen Gallagher and Kara Larzelere for the plaintiff; Michael F.Aylward and Gareth W. Notis for the defendant (Docket No.SJC-09623) (May 10, 2006). Termination of auto policy - Notice - Business records Where a summary judgment was entered in favor of a plaintiff who was struck by a vehicle owned and operated by the defendant’s insured, the judgment must be vacated and the matter remanded in light of a material issue as to whether notice of the defendant’s pre-accident termination of the insured’s policy had been sent to the registrar of motor vehicles. McLaughlin v. CGU Insurance Co. (Lawyers Weekly No. 10-017-06) (9 pages) (Cordy, J.) (SJC) Case heard by Borenstein, J., on motions for summary judgment. Clyde K. Hanyen, Jr., for the defendant; Eric S. Kupperstein for the plaintiff (Docket No.SJC-09528) (Jan.19,2006). Uninsured motorist benefits Where (1) the plaintiff insured operator of a motor vehicle was injured as the result of the combined negligence of two tortfeasors, one of whom was insured under an automobile liability insurance policy and the other of whom was an unidentified hit and run driver, (2) the plaintiff has received indemnity payment from the insurance carrier for the identified tortfeasor and (3) the just-mentioned payment has not been sufficient to compensate the plaintiff fully for his damages, we hold that uninsured motorist benefits are available to the plaintiff under G.L.c. 175, §113L and the standard Massachusetts automobile insurance policy. Gabriel v. The Premier Insurance Company of Massachusetts (Lawyers Weekly No. 10-015- 06) (2 pages) (Rescript) (SJC) Case heard by Rup, J., in the Superior Court. James M. Walsh for the plaintiff; Peter E. Heppner for the defendant (Docket No. SJC-09454) (Jan. 18, 2006). Jurisdiction Joint bank account - Death of depositor Where the plaintiff administrators of a decedent’s estate brought suit seeking the return of money taken by the defendant from a California bank account held jointly by the defendant and the decedent, judgment should have entered for the defendant based on California law. Barboza, et al. v. McLeod (Lawyers Weekly No. 10-137-06) (14 pages) (Ireland, J.) (SJC) Case heard by LaStaiti,J.,in the Probate & Family Court. David Berman for the defendant; Donald H. Barnes Jr. for the plaintiffs (Docket No. SJC-09596) (Aug. 18, 2006). Jury and jurors Impartiality - Racial prejudice Where a defendant has been convicted of heroin and cocaine charges, a new trial must be ordered because the judge’s questioning of a juror was insufficient to dispel doubts concerning the juror’s impartiality. Commonwealth v.Clark (Lawyers Weekly No. 10-077-06) (17 pages) (Spina, J.) (SJC) Cases tried before McDonald, J., in Superior Court. Angela G. Lehman on appeal for the defendant; Bethany C.Lynch for the commonwealth (Docket No. SJC-09522) (May 8, 2006). Jury trial - Land Court - Waiver Where a Land Court judge granted a defendant a jury trial, this was error in light of the fact that the defendant failed to comply with the statutory requirements for exercising its right to a jury trial. PROFILES OF THE JUSTICES Senior Housing Properties Trust, et al. v. HealthSouth Corp. (and a companion case) (Lawyers Weekly No. 10-122-06) (22 pages) (Marshall, C.J.) (SJC) Demand for jury trial heard by Long, J., in Land Court. Paul B. Galvani and Jane E.Willis for Senior Housing Properties Trust & another.Philip Y.Brown and Brian R. Birke for HRPT Properties Trust; Gary R. Greenberg and Jonathan D. Cohen for Greenery Securities Corporation and another (Docket No. SJC-09594) (July 17, 2006). Juvenile Dangerousness - Continuance - Bail Where a Juvenile Court judge released a juvenile on bail after ordering a continuance of a dangerousness hearing, this was beyond the judge’s discretion. Commonwealth v. Lester L., a juvenile (Lawyers Weekly No. 10-160-05) (17 pages) (Cowin, J.) (SJC) Case reported by Spina, J., sitting as single justice.Jane Davidson Montori for the commonwealth; Erica E. Cushna for the juvenile (Docket No. SJC-09427) (Oct. 7, 2005). Receiving stolen vehicle - Possession Where a juvenile was adjudicated delinquent based on a finding of guilt on a charge of receiving a stolen motor vehicle, the juvenile’s motion for a required finding of not guilty should have been allowed on the ground that the evidence did not prove the possession element of the offense. Commonwealth v. Darnell D., a juvenile (Lawyers Weekly No. 10-200-05) (7 pages) (Cowin, J.) (SJC) Case heard by Lauranzano, J., in Juvenile Court.Jennifer H.O’Brien for the juvenile; Kenneth E. Steinfield for the commonwealth (Docket No.SJC-09491) (Dec.29,2005). JUSTICE ROBERT J. CORDY Appointed to SJC: 2001 Will reach retirement age: 2019 Majority opinions written this year: 25 Dissenting opinions written this year: 3 Total dissenting votes cast: 3 Notable decision: Humphrey v. Byron, et al. (Lawyers Weekly No. 10-125-06), which held that commercial landlords, unlike residential landlords, owe no duty of care to non-tenants legitimately on leased premises. Labor Police union - Racial profiling - Officer identification Where a union sought a preliminary injunction to prevent the collection of officer identification numbers in connection with the Boston police department’s gathering of data concerning traffic stops,a single justice’s order staying the information collection should be vacated, as officer identification numbers are required to be collected by state statute. Boston Police Patrolmen’sAssociation,Inc.v.Police Department of Boston, et al. (Lawyers Weekly No. 10-024-06) (11 pages) (Ireland, J.) (SJC) Motion for preliminary injunction heard by Connors, J.,in Superior Court.Bryan C.Decker and John M. Becker for the plaintiff; Amy E.Ambarik for police department of Boston; Susan M. Prosnitz and Christopher Pohl for Secretary of Public Safety;the following submitted briefs for amici curiae: Cristina Beamud for city of Boston and others; John M. Collins for Massachusetts Chiefs of Police Association, Inc.; John Reinstein for American Civil Liberties Union of Massachusetts and others (Docket No. SJC-09621) (Feb. 8, 2006). Prevailing wages - Truck drivers Where (1) the Department of Labor and Industries established a policy in 1993 requiring that truck drivers on public construction contracts be paid prevailing wages for the time spent hauling bituminous concrete to and from construction sites and (2) the deputy director of the division of occupational safety in 2001 rescinded the policy, the deputy director’s action should be upheld because the plaintiff labor organizations have not met their burden to show that the decision of the deputy director was arbitrary or capricious and because we grant due deference to the deputy director’s interpretation of the prevailing wage statute. Teamsters Joint Council No. 10, et al. v. Director of the Department of Labor and Workforce Development, et al. (Lawyers Weekly No. 10-107-06) (17 pages) (Ireland, J.) (SJC) Case heard by Riley, J., on motions for judgment on the pleadings. Mark D. Nielsen and Kathryn B. Palmer for Department of Labor and another; John D. O’Reilly III for Palmer Paving Corporation and others; Paul F. Kelly for the plaintiffs’ Richard D. Wayne and Willard Krasnow, for Utility Contractors Association of New England, Inc., and others, amici curiae, submitted a brief (Docket No. SJC-09505) (June 23, 2006). Landlord and tenant Commercial lease - Duty to third parties Where a commercial landlord was sued by a tenant’s employee who was injured in a fall down a stairway, the defendant was correctly awarded summary judgment on the ground that the defendant — unlike a residential landlord — owed no duty of care to non-tenants legitimately on the leased premises. Humphrey v.Byron,et al.(Lawyers Weekly No. 10-125-06) (15 pages) (Cordy,J.) (SJC) Case heard by Troy, J., on a motion for summary judgment. Joseph C. Borsellino and Neil D. Schnurbach for the plaintiff; Thomas R. Murphy for the defendants;the following submitted briefs for amici curiae:Christopher A.Kenney and Edward S.Cheng for Massachusetts Defense Lawyers Association; Andrew R.Gainger,Martin J.Newhouse and Ben Robbins for New England Legal Foundation and another; Patrick T. Jones and J. Michael Conley for Massachusetts Academy of Trial Attorneys (Docket No. SJC-09449) (July 21, 2006). Licenses and permits Medical license revocation - Misconduct with adolescent patients Where the defendant Board of Registration in Medicine has revoked a plaintiff physician’s license to practice medicine, we hold that the defendant’s decision should be affirmed as it is supported by substantial evidence that the plaintiff committed repeated acts of misconduct with adolescent female patients. Ingalls v. Board of Registration in Medicine (Lawyers Weekly No. 10-165-05) (19 pages) (Ireland,J.) (SJC) Case reported by Spina,J.,sitting as Single Justice. Eve Slattery and Paul Cirel for the plaintiff; William W. Porter for the defendant (Docket No. SJC-09403) (Nov. 14, 2005). Municipal Urban renewal plan - Change Where the defendant city in 2002 altered a 1980 urban renewal plan so as to remove all light industrial uses from the redevelopment area, the city’s decision should be upheld,as the 2002 change to the plan was not a “new plan”requiring new or renewed findings of eligibility. Central Steel Supply Co., Inc., et al. v. Planning Board of Somerville, et al. (Lawyers Weekly No. 10-126-06) (17 pages) (Ireland, J.) (SJC) Case heard by Kern,J.,on motions for judgment on the pleadings. James D. Masterman for the plaintiffs; Annapurna Balakrishna for Department of Housing and Community Development; Anne M.Thomas for Somerville Redevelopment Authority; David P. Shapiro for Planning Board of Somerville, submitted a brief.; the following submitted briefs for amici curiae: William H. Mellor, Clark M. Neily III, Dana Berliner and Jorge Schmidt for The Institute for Justice and another; Michael E. Malamut and Martin J. Newhouse for New England Legal Foundation (Docket No. SJC-09545) (July 24, 2006). Negligence Firearms - Homeowner’s liability - Unsupervised access Where (1) a defendant permitted the man with whom she lived to keep a sizeable gun collection in the basement of the defendant’s house,(2) the man’s son took one of these guns and shot a police officer to death and (3) a lawsuit was then brought against the defendant, an award of summary judgment for the defendant must be affirmed as to counts of public nuisance and strict liability but reversed as to a negligence count. Jupin, et al. v. Kask (Lawyers Weekly No. 10- 115-06) (29 pages) (Cordy, J.) (SJC) Case heard by Fecteau, J., on a motion for summary judgment. Douglas L. Fox for Joanne D. Jupin; June A. Harris for the defendant; John Mizhii and C. Deborah Phillips, for the Town of Westminster, were present but did not argue; Dennis A.Henigan, Elizabeth S. Haile, Daniel R. Vice, Daniel C. Swanson and Clifford J. Zatz, for The Brady Center to Prevent Gun Violence and others,amici curiae, submitted a brief (Docket No. SJC- 09538) (June 30, 2006). Personal injury - Transportation authority Where a jury rendered a special verdict finding the defendant transportation authority liable for reckless conduct in connection with a plaintiff’s loss of part of a limb, we conclude that the evidence did not support a finding of reckless conduct and therefore that the defendant is entitled to judgment notwithstanding the verdict. Montes v. Massachusetts Bay Transportation Authority (Lawyers Weekly No. 10-039-06) (10 pages) (Spina, J.) (SJC) Case tried before Lopez, J., and a motion for judgment notwithstanding the verdict was heard by her. Joseph G. Abromovitz for the plaintiff; Jeremiah P. Sullivan Jr. and Ann Marie Johnnene for the defendant (Docket No. SJC-09568) (March 9, 2006). Recklessness - Operation of train Where a judge dismissed a complaint brought on behalf of a teenager who was struck and killed by a train, the dismissal order must be vacated with respect to claims of recklessness. Boyd v. National Railroad Passenger Corp., et al.(Lawyers Weekly No.10-065-06) (21 pages)
Cite this page 35 MLW 289 | www.masslawyersweekly.com Subscribe Today - Call 1-800-451-9998 September 25, 2006 | Massachusetts Lawyers Weekly | B17 (Spina,J.) (SJC) Motion for summary judgment heard by Kottmyer, J.; motion for reconsideration heard by her. John B. Flemming and Joseph P. Musacchio for the plaintiff; David T. Mitrou for the defendants (Docket No. SJC-09543) (April 14, 2006). Statute of repose - Continuing treatment Where a defendant physician moved for summary judgment with respect to a malpractice claim brought by the plaintiff,the motion should have been allowed,as (1) the complaint was untimely under the statute of repose and (2) the repose period cannot be tolled under the continuing treatment doctrine. Rudenauer v. Zafiropoulos, et al. (Lawyers Weekly No. 10-175-05) (12 pages) (Cowin, J.) (SJC) Motion for summary judgment heard by Fishman,J.; application for leave to prosecute an interlocutory appeal allowed by Green, J., in the Appeals Court. Barry D. Lang for the plaintiff; Edward T. Hinchey and Stacey E. Morris for the defendants; Carl Valvo and Kenneth W. Terrel, for Professional Liability Foundation, Ltd., amicus curiae, submitted a brief (Docket No. SJC- 09455) (Nov. 21, 2005). Statute of repose - Tolling - Misrepresentation Where the plaintiffs’ medical malpractice complaint was dismissed based on the statute of repose,the judgment should be affirmed despite the plaintiffs’ assertion that fraudulent concealment on the part of the defendants served to toll the repose period. Joslyn, et al. v. Chang, et al. (Lawyers Weekly No.10-174-05) (13 pages) (Cowin,J.) (SJC) Case heard by Connolly, J., on a motion for summary judgment. Charlotte E. Glinka for the plaintiffs; George E. Wakeman Jr. for the defendants (Docket No. SJC-09539) (Nov. 21, 2005). Parent and child Custody - Foreign judgment Where a mother living in Massachusetts has been ordered to return to Trinidad with her child, that order should be affirmed in light of a Trinidad court order prohibiting her from taking the child out of that country. Khan v.Samini (Lawyers Weekly No.10-032- 06) (17 pages) (Greaney,J.) (SJC) Case heard by Gould, J., in Probate & Family Court. Michael J. Traft for the mother; Robert J. Rivers Jr. and Tannaz N. Saponaro for the father (Docket No. SJC-09644) (Feb. 15, 2006). Life support withdrawal - Stepfather’s standing Where a judge has issued an order to withdraw life support for a critically injured child in the custody of the Department of Social Services, the order should be affirmed, as the child’s stepfather has no standing to challenge the judge’s findings and order. Care and Protection of Sharlene (Lawyers Weekly No. 10-010-06) (30 pages) (Greaney, J.) (SJC) Case reported by Cowin, J., sitting as single justice. John J. Egan, John M. Thompson and Edward J.McDonough Jr.for the petitioner;Virginia A.Peel for Department of Social Services;Lisa M. Kling for Sharlene; Pamela J. Szmyt Hastings, for the siblings of Sharlene,amici curiae,submitted a brief (Docket No. SJC-09629) (Jan. 17, 2006). Out-of-state removal Where a divorced mother challenges a court order enjoining her from moving out-of-state with her children,the order should be affirmed based on the best interests of the children. Mason v. Coleman (Lawyers Weekly No. 10- 117-06) (17 pages) (Cowin, J.) (SJC) Complaint for modification heard by Dilday, J., in the Probate & Family Court. John T. Ouderkirk Jr. and Carol A. Phinney for the defendant; Adam A. Rowe for the plaintiff; the following submitted briefs for amici curiae: Pauline Quirion, Fern Frolin,Warren Fitzgerald and Martin Healy for Massachusetts Bar Association; Daniel B.Hogan for Fathers and Families, Inc. (Docket No. SJC- 09625) (July 10, 2006). Temporary custody - Hearing Where the Department of Social Services filed a petition for temporary custody of a couple’s children,the petition was sufficient under G.L.c. 119, §24 and thus the mother’s request for dismissal of the petition must be denied. Care and Protection of Lillian,et al.(Lawyers Weekly No. 10-170-05) (15 pages) (Ireland, J.) (SJC) Case reported by Ireland, J., sitting as single justice. Mark A. Papirio and Michael T. Spadea for the mother; Pamela J. Szmyt Hastings and Henry Porter for the father;Virginia A. Peel for Department of Social Services; Dorothy Meyer Storrow for Karen and others; John T. Ouderkirk Jr.for Lillian,was present but did not argue (Docket No. SJC-09535) (Nov. 18, 2005). Unfitness - Temporary nature Where the Appeals Court vacated a Juvenile Court judge’s order terminating a mother’s parental rights, the order should be reinstated because, contrary to the Appeals Court’s conclusion,the judge did make necessary findings regarding whether the mother’s unfitness was temporary. Adoption of Elena (and two companion cases) (Lawyers Weekly No. 10-022-06) (17 pages) (Spina, J.) (SJC) Cases heard by Corbett, J., in Juvenile Court.Brian Pariser for Department of Social Services; Garry M. O’Brien for the children; Robert J. McCarthy Jr. for the mother (Docket No. SJC-09586) (Jan. 31, 2006). Prisons Prison uprising - Building destruction while unlawfully assembled - Hostage taking Where defendants,in connection with an inmate uprising at the Bristol County House of Correction,were convicted of building destruction while unlawfully assembled, those convictions must be reversed because the controlling statute only refers to conduct in a city or town. Commonwealth v. Spearin (and eight companion cases) (Lawyers Weekly No. 10-073-06) (16 pages) (Greaney, J.) (SJC) Cases tried before Connon, J., in Superior Court. Alan D. Campbell for Gualter M.Camara; Joseph J.Mazza for Randall Spearin; David B. Mark for the commonwealth (Docket No. SJC-09524). Religious freedom - Muslim faith - Meals Where a plaintiff prison inmate brought suit claiming that he was unlawfully prevented from practicing his Islamic faith by reason of prison policies and regulations regarding meals and the possession of personal and religious items, a judgment for the defendants must be vacated as to the food claim and affirmed as to the other claims. Rasheed v. Commissioner of Correction, et al. (Lawyers Weekly No. 10-061-06) (23 pages) (Cordy, J.) (SJC) Case heard by Sanders, J., on motions for summary judgment. Neil Mc- Continued on page B18
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