A GUIDE TO BASIC MASSACHUSETTS LAW - Boston MA

1 A GUIDE TO BASIC MASSACHUSETTS LAW INTRODUCTION Hassett & Donnelly s A GUIDE to BASIC MASSACHUSETTS Law is designed to be a concise reference source for issues of MASSACHUSETTS law that arise in insurance defense and coverage cases. The summaries provided for each of the topics covered in this material are meant to provide a beginning point and should be utilized with other reference materials to ensure a complete and accurate analysis with respect to a particular case . The summaries are not meant to set forth a complete legal analysis of the topics addressed in the GUIDE . Given the varying complexity of cases and the ever-changing interpretation of the law, Hassett & Donnelly s A GUIDE to BASIC MASSACHUSETTS Law should not be interpreted as definitive legal advice. In the event that you require additional information or assistance with respect to any issue, whether or not it is addressed in Hassett & Donnelly s A GUIDE to BASIC MASSACHUSETTS Law, please feel free to contact any of our attorneys.

2 _____ Worcester | Boston | Hartford _____ Website: David F. Hassett Gerard T. Donnelly Sarah B. Christie Scott T. Ober Paul S. Rainville John M. Dealy Matthew G. Lindberg John A. Girouard Courtney E. Mayo Peter G. Barrett Tara E. Lynch Margarita Warren Kelly A. Byron *This publication, A GUIDE to BASIC MASSACHUSETTS Law, is intended as a service to Hassett & Donnelly, s clients, but may be considered advertising under the rules of the Supreme Judicial Court. Copies of court decisions may be obtained by calling Attorney David Hassett at (508) 791-6287. i TABLE OF CONTENTS A. CIVIL 1 1. State Court 1 2. Commencement of an 3. Service of 4. Answer to Complaint and Affirmative 2 5. Motions to ..2 6. Default/Default 2 7. Third-Party Practice .. 3 8. Counterclaims and 3 9.

3 Amendments to 10. Limitations of Actions .. 3 11. 5 12. Motion 8 13. Interest on 9 14. Costs and Attorney s 9 B. TORT ACTIONS: GENERAL PRINCIPLES ..9 1. Comparative Negligence and Contributory 2. Assumption of the Risk/Open and Obvious 9 3. Recreational 10 4. Joint 5. Liability of Employer for Tort of 6. Imputed Negligence: 12 7. Imputed Negligence: 8. Interspousal 12 9. Immunity of Child and 12 10. Immunity Between 13 11. Exclusivity of Workers Compensation 13 12. Workers Compensation 14 13. Attorney s 14. Charitable 14 15. Good Samaritan 15 16. Damages Recoverable for Personal 15 17. Pre-Existing 15 18. Emotional 16 19. Punitive 16 20. Loss of 16 21. Advance 17 22. Medical 17 ii 23. 24. Settlement of Claims of Minor 18 25. Waiver of Liability and Indemnity 19 26. Subsequent Remedial C.

4 PARTICULAR TORT 20 1. Liquor 20 2. Domestic Animals 21 3. Domestic Animals 4. Wrongful 5. Wrongful 6. Negligent 23 7. Landlord s Tort Liability To Tenant or 24 8. Landlord s Tort Liability To Tenant s 25 9. Premises Liability 25 10. MASSACHUSETTS Tort Claims 26 11. Trespass to Real 27 12. 28 13. Product 28 14. Medical 29 15. Legal 30 D. MOTOR VEHICLE 30 1. Operator s 30 2. Learner s 3. Junior Operator s 30 4. Financial 5. Owner s Liability for Operator s 31 6. Negligent 31 7. Operator s Negligence Imputed to Passenger only in Special 32 8. Operating Under the Influence: Excessive Blood 32 9. Accident 32 10. Seat Belts and Child 32 11. Motorcycle 32 12. Automobile Collision 32 13. Rules of the 33 iii E. UNINSURED AND UNDERINSURED MOTORIST 33 1. Uninsured and Underinsured Motorist Coverage, 33 2.

5 Prompt Notice to 36 3. Cooperation with Insurer s 36 4. 36 5. 6. Calculating Uninsured-Underinsured Motorist 37 7. 38 8. Statute of 38 9. Additional Exclusions & 38 F. INSURANCE 39 1. Misrepresentation in 39 2. Duty to 40 3. Duty to Defend Responsibility for Pre-Suit 4. Duty to 41 5. Late 42 6. Insured s Duty to 42 7. Policy Language 43 8. 43 9. 10. Insurance Company s Options for Responding to 44 11. Declaratory Judgment 45 12. Reach and Apply 46 13. Burdens of Proof in Coverage 14. Other Insurance 15. Equitable 46 16. The Right to Indemnify and Additional Insured 47 G. PARTICULAR INSURANCE 48 1. Punitive 48 2. Bodily Injury and Emotional 48 3. Property 49 4. 49 5. Child Sexual 49 6. Faulty Workmanship 50 iv H. GENERAL LAWS CHAPTERS 93A AND 50 1.

6 Theories of 50 2. Bringing the 51 3. Defending the 52 4. Notable 54 1 MASSACHUSETTS LAW A. CIVIL PROCEDURE 1. State Court System. MASSACHUSETTS has a number of different departments of the trial court. Civil cases are most typically filed in the superior Court or in the District Court/ Boston Municipal Court. The remaining departments of the trial court consist of the Housing Court, Juvenile Court, Land Court and Probate and Family Court. Civil cases should proceed in District Court/ Boston Municipal Court only if there is no reasonable likelihood that recovery will exceed $25, Civil cases should proceed in the superior Court only if there is no reasonable likelihood that recovery will be less than or equal to $25, One may obtain a six-person jury trial in District Court if properly requested.

7 Cases in superior Court are afforded a 12-person jury trial. Cases from the District Courts/ Boston Municipal Court are typically appealed to the Appellate Division. The Appeals Court is an intermediate appellate court that typically handles appeals from the superior Court. The Supreme Judicial Court is the highest level court which performs appellate functions. 2. Commencement of an Action. A civil action is considered commenced by the mailing to the clerk of the proper court by certified or registered mail a Complaint and entry fee or by filing a Complaint and fee with the clerk. Mass. R. Civ. P. 3. The summons and Complaint must be served within ninety (90) days after the filing of the Complaint unless the party on whose behalf service was required can show good cause why such service has not been made. Mass. R. Civ. P. 4(j). In order to extend the time for service beyond the ninety days, as a matter of practice, a motion must be filed prior to the expiration of the ninety-day deadline, demonstrating good cause as to why service has not been effectuated.

8 See Mass. R. Civ. P. 4(j) and 6(b). Otherwise, the Complaint may be dismissed without prejudice upon the court s own initiative or upon a Motion to Dismiss. Mass. R. Civ. P. 4(j). 3. Service of Process. Service of the summons and Complaint is governed by Mass. R. Civ. P. 4. Under the rule, an individual may be served personally or by leaving the summons and Complaint at his last and usual place of abode. Mass. R. Civ. P. 4(d)(1). Service may be made upon a corporation by delivering a copy of the summons and Complaint to an officer, to a managing or general agent, or to the person in charge of the business at the principal place of business within MASSACHUSETTS . Mass. R. Civ. P. 4(d)(2). An individual or a corporation may also be served by delivering a copy of the summons and Complaint to an agent authorized by appointment or by statute to receive service of process, subject to any further statutory notice requirements.

9 Mass. R. Civ. P. 4(d)(1) and (2). In addition, if the process server makes return that after a diligent search a proposed defendant cannot be located, the court upon motion may issue an Order of Notice as prescribed by law. Out-of-state service is authorized by c. 223A, otherwise known as the long-arm statute. Mass. R. Civ. P. 4(e) embodies the procedure set forth in the long-arm 2 statute for effectuating service outside of MASSACHUSETTS . As a matter of practice, out-of-state defendants are typically served by return receipt mail. 4. Answer to Complaint and Affirmative Defenses. The defendant must serve an answer to a Complaint within twenty (20) days after service of the summons and Complaint. Mass. R. Civ. P. 12(a)(1). An answer to a Crossclaim, Counterclaim or Third-Party Complaint must be served within twenty days as well. In responding to any of these pleadings, the answer must raise the following affirmative defenses or they will be waived: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; waiver; and any other matter constituting an avoidance or affirmative defense.

10 Mass. R. Civ. P. 8(c). 5. Motions to Dismiss. Prior to filing an answer, a party may choose to raise certain defenses by motion. These include: lack of jurisdiction over the subject matter (Mass. R. Civ. P. 12(b)(1)); lack of jurisdiction over the person (Mass. R. Civ. P. 12(b)(2)); improper venue (Mass. R. Civ. P. 12(b)(3)); insufficiency of process (Mass. R. Civ. P. 12(b)(4)); insufficiency of service of process (Mass. R. Civ. P. 12(b)(5)); failure to state a claim upon which relief can be granted (Mass. R. Civ. P. 12(b)(6)); failure to join a party under Rule 19 (persons needed for just adjudication) (Mass. R. Civ. P. 12(b)(7)); misnomer of a party (Mass. R. Civ. P. 12(b)(8)); pendency of a prior action in a court of the Commonwealth (Mass. R. Civ. P. 12(b)(9)); and improper amount of damages in the superior Court as set forth in c. 212, 3 or in the District Court as set forth in c.