Lawyers Journal

O’Donnell brings humor and to insight personal injury session

This year, those who attended former MBA President Kathleen M. O’Donnell’s AC07 presentation on personal injury and insurance law were treated to a session that was part “award” ceremony and entirely entertaining. O’Donnell delivered her usual thorough review of recent developments in an animated fashion, promising to announce an “award” for the most outrageous decision of 2006.

She began her review by focusing on duty cases, with Jupin v. Kask, 447 Mass. 141 (2006), a duty of reasonable care case, receiving the most thorough treatment. O’Donnell pointed out that this case offers “a good discussion of when a duty will be imposed – a duty finds its source in existing social values and customs, and thus, imposition of a duty generally responds to changed social conditions.”

She then trained her lens on insurance issues, announcing “This has not been a good period of time for plaintiffs in terms of insurance issues.”

She led off with her runner-up for Worst Decision of the Year Award, Wilkinson v. Citation Insurance Company, 447 Mass. 663 (2006). Attorneys fees were not awarded to an insured in a “duty to indemnify” case. The court declined to expand the Gamache exception to the “American Rule.”

The Gamache exception allows those who purchase insurance, which includes a duty to defend, to recover their attorney’s fees when they must resort to litigation against their insurer to enforce that duty. This exception is not extended to circumstances where the dispute between an insured and an insurer concerns whether a claim falls within the coverage of a policy, that is, where the insurer has the duty to indemnity the insured for its loss. According to the court:
There is a meaningful difference between an insurer’s duty to defend and a duty to indemnity. The duty to defend arises in situations of litigation or threatened litigation where time is of the essence. Such is not the case with the duty to indemnity. The time element is less critical. Even though the litigation costs associated with disputed coverage can consume much of the ultimate award, the American Rule applies since insurers in indemnity cases may have to expend funds to keep from paying for coverage.

From the podium, O’Donnell added her opinion, “It’s a bad decision.”

Then, in rapid-fire order, she declared DiGiacomo v. Metropolitan Property and Casualty Insurance Co., 66 Mass. App. Ct. 343 (2006), “A miracle – a pro consumer interpretation of an insurance provision”; American Commercial Finance Corporation v. Seneca Insurance Company, 66 Mass. App. Ct. 830 (2006), “A common sense decision”; and Commerce Insurance Company Inc. v. Theodore, 65 Mass. App. Ct. 471 (2006), “A very logical decision. I wasn’t offended when I read it.”

Medical negligence
O’Donnell’s “award” for Most Outrageous Decision of the Year went to Wojcicki v. Caragher, 447 Mass. 200 (2006), a medical negligence case wherein the plaintiff discovered after trial that a defense expert, apparently egregiously, provided false and misleading information. The SJC held that the judge abused her discretion in granting plaintiff ’s motion for a new trial and imposing sanctions.

Said the Court:
A “fraud of the court” occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party’s claim or defense…. Even perjury does not constitute “fraud upon the court” when there is no evidence the judicial process itself was corrupted…. [Defense expert’s] statement…appears to be baseless, but it is difficult on this record to conclude that it was false.
“It’s just an unbelievable decision,” declared O’Donnell. Evidentiary and procedural issues O’Donnell then gave attendees several useful practice tips related to evidentiary and procedural issues.
• Xarras v. McLaughlin, 66 Mass. App. Ct. 799 (2006) (short statute of limitations; amendment of complaint) – “This case is important to review if you have an estate case.”
• Mahoney v. DeMatteo, Flatiron LLP, 66 Mass. App. Ct. 903 (2006) (computation of statute of limitations) – “Don’t get yourself in this position. You’re living on the edge if you’re looking at the statute of limitations like this.”
• McLaughlin v. CGU Insurance Company, 445 Mass. 851 (2006) (admissibility of computer-generated business records) – “Take a look at this case if you have a business records issue.”

Ever the consummate trial attorney, O’Donnell rested.

©2017 Massachusetts Bar Association