New ‘Traps’ Example: Splitting a Cause of Action

Thursday, July 1, 2021
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The Massachusetts Bar Association is in the process of updating its Traps for the Unwary publication, a member-exclusive reference guide last published in 2011 that looks at some of the malpractice hazards for attorneys who practice in a general, civil practice. While the guide is nearing completion, we invite members to share any “traps” they’ve come across in their practice for possible inclusion in the next edition.

Share your trap suggestion by emailing it to Attorney James E. Harvey of O’Malley, Harvey & Brosnan LLP, who is again serving as editor-in-chief for the project and is working closely with liaisons from several MBA section councils.

To help you identify potential traps, the MBA will periodically publish excerpts from Traps for the Unwary in eJournal. View this week’s trap, plus previously shared examples, below.

TRAPS EXAMPLE: SPLITTING A CAUSE OF ACTION

Splitting a cause of action is prohibited. Cousineau v. Laramee, 388 Mass. 859, 448 N.E.2d 756 (1983); Mancuso v. Kinchla, 60 Mass. App. Ct. 558, 806 N.E.2d 427 (2004). For example, if a person incurs automobile property damage and personal injuries in the same accident, files suit for the property damage and resolves that case, then later files suit for the personal injuries, the personal injury suit will be barred. Exception: When a motor vehicle property damage suit has been filed in small claims court, however, there is no bar or other preclusive effect such as res judicata. M.G.L. c. 218, § 23, para. 11.

VIEW PREVIOUS EXAMPLES