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Murphy Riley News

Dec 2012

Jack Coakley secured the dismissal of a place of public accommodation discrimination claim filed with the Massachusetts Commission Against Discrimination by a restaurant patron allegedly denied service by the Respondent restaurant.  The Complainant alleged that he was denied service at the restaurant due to his race.  At the time of the alleged incident, however, the restaurant was closing early due to a St. Patrick’s day parade that was taking place nearby.  Jack Coakley presented evidence that established that the restaurant had a history of closing early on parade day due to the fact that the parade prevented many of the restaurant’s usual customers from accessing the restaurant and that the restaurant tended to be instead patronized on parade day by people more interested in using the restrooms than purchasing food.  Jack Coakley also presented evidence that the Complainant entered the restaurant just before closing time and was not denied service.   The Complainant, in fact, was offered the chance to buy take-out food.   Jack Coakley also presented evidence that all other patrons entering the store at the same time as the Complainant were treated exactly the same as the Complainant was treated.  Finally, Jack Coakley presented evidence that the restaurant had a diverse staff and that the Complainant had been patronizing the restaurant for  years without incident or complaint.  After thoroughly investigating the allegations, the MCAD made a lack of probable cause finding with respect to the Complainant’s claim of discrimination and the case was dismissed.

Oct 2011

Jack Coakley obtained a defense verdict in the Essex County Superior Court in a wrongful termination case.  The plaintiff, a truck driver, alleged that he was terminated by his employer, a land transport company, for repeatedly refusing to drive the employer’s truck for more hours in a given day than permitted under Federal Motor Carrier Safety Administration Regulations.  The employer denied asking or telling the plaintiff to violate any regulation and asserted that the plaintiff was, in fact, terminated for using the employer’s truck for personal business.  Expert evidence presented at the jury trial included global positioning system data that had been recorded by the on-board computer in the plaintiff’s truck.  This data demonstrated that the plaintiff had been using the company truck during off-duty hours in locations where the employer did not make deliveries.  After a one week trial, the jury returned a verdict for the employer.

Jun 2011

Peter C. Kober has joined the firm as of counsel.  Peter is a graduate of the University of Denver (B.A.,  cum laude 1973) and Boston University School of Law (J.D., 1976).  He was admitted to practice in Massachusetts in 1977 and in New York in 1981, and is also admitted to the United States District Court for the District of Massachusetts and the Southern District of New York, the United States Courts of Appeal for the First Circuit and the Second Circuit, and the United States Supreme Court.  Peter has over 30 years of trial and appellate experience in insurance defense, insurance coverage and “bad faith”, and commercial litigation.

May 2011

Melissa S. Arnold joined the firm. Melissa received her law degree from Boston University School of Law in 2002. She brings six years experience in general and premises liability, as well as products liability. Earlier in her career, her practice focused on insurance fraud defense.

Mar 2011

Jack Coakley secured the dismissal of gender/sexual orientation discrimination claims asserted by two former employees of a substance abuse center, which were filed against their former employer with the Massachusetts Commission Against Discrimination (“MCAD”).  The Complainants, both women, began a romantic relationship while they were employed by the treatment center and while one of the Complainant’s directly supervised the other.  This situation violated the center’s written anti-fraternization policy, which prohibited such relationships where there was a direct or secondary line of supervision between the employees involved.   The Center transferred the Complainant who had held the supervisory position to a different department, but with the same duties, title, and pay, to avoid any appearance of impropriety with respect to her dealings with the other Complainant.  A few months later, the Center eliminated that supervisor’s position in a company reorganization and she was given another position.  The Complainants argued that the initial transfer and the subsequent elimination of the supervisory Complainant’s position were discriminatory and that no such measures were taken when heterosexual employees had “office romances.”  The Complainants also asserted that they were subjected to increased scrutiny and a hostile attitude by coworkers and supervisors.  In defending the case, Jack Coakley demonstrated that the instances of heterosexual “office romance” cited by the Complainants were distinguishable in that there was no direct or secondary supervisory relationship between the employees involved.  It was also shown that the reassignment of the supervisory Complainant was not an adverse action in that her title, pay, benefits, duties and opportunity for advancement remained the same.  It was also demonstrated that the elimination of the supervisory Complainant’s position was unrelated to her sexual orientation and was motivated by a need to address inefficiencies and redundancies at the center.   Finally, it was also demonstrated that each of the alleged instances of a hostile work environment either did not happen or were mundane instances of coworkers squabbling and were unrelated to the Complainants’ sexual orientation.  The MCAD, after thoroughly investigating the allegations, made lack of probable cause findings with respect to all of the Complainants’ claims and the cases were dismissed.  The Complainants did not appeal the decisions.        

Mar 2011

Murphy & Riley, P.C. is pleased to announce the relocation of its offices to 101 Summer Street, Boston, MA 02110.

Feb 2011

Lauren J. Birnbaum joined the firm. Lauren received her law degree from Stetson University College of Law in 2000. Lauren has been a member of the Massachusetts Bar since 2006. She brings five years experience in general and premises liability, as well as products liability. Earlier in her career Lauren was an Assistant Attorney General in the Civil Litigation Division of the District of Columbia Attorney General’s office.

Feb 2011

Susan Murphy attended the Mid-Year meeting of the International Association of Defense Counsel in Pebble Beach, California. At the meeting Susan attended the keynote address by Senator Bill Bradley and participated in many continuing education programs addressing E-Discovery and amendments to the Rules of Civil Procedure.


Legal Notes

May 2012

Recently, the Massachusetts Supreme Judicial Court held that a minor host, who did not provide or serve alcohol to her guests, was not liable for injuries sustained by guests who consumed their own alcohol at a party and were subsequently involved in a motor vehicle accident after leaving.  Juliano v. Simpson, 461 Mass. 527 (2012).  In Juliano, Jessica Simpson, the minor host, invited several friends over to her home while her father was away.  Christopher Dunbar attended the party along with Rachel Juliano, both minors.  On the way to the party Dunbar purchased alcohol, which he brought into Simpson’s house and drank at the party.  Juliano drank from her own supply of alcohol that she also brought with her to the party.  While there were some alcoholic beverages belonging to Simpson’s father in the house, Jessica Simpson, the minor host, did not drink her father’s alcohol or offer it to her guests.  Later on, Dunbar and Juliano left the party in a car driven by Dunbar.  Their car struck a utility pole causing injury to both of them. 


The plaintiffs filed a law suit asserting claims against the minor host alleging that she was negligent for allowing Dunbar to possess and drink alcohol on property under her control.  The plaintiffs were requesting that the Court enlarge the scope of social host liability under common law by extending a duty of care to an underage host who did not supply alcohol to the underage guests, but provided a location where they were permitted to consume it.  The Court declined to enlarge the scope of social host liability under common law, and reaffirmed that liability attaches to a social host only where a social host either serves alcohol or exercises effective control over the supply of alcohol.  The Court affirmed the dismissal of the claims against the minor host. 


In reaching its decision, the Court provided an overview of the history of social host liability.  Courts in Massachusetts first recognized common-law tort liability with respect to social hosts in 1986 in the case of McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986).  In subsequent decisions, the Supreme Judicial Court consistently has found a duty only where a host either serves alcohol to guests or somehow controls the supply of alcohol. Thus, the rule in Massachuestts continues to be that for social host liability to attach, a host must actually serve alcohol or make the host’s own alcohol available. 


In reaching its decision in Juliano, the Court cited to policy considerations and the practical difficulties of imposing upon a host the duty to monitor or prevent a guest from drinking a guest’s own supply of alcohol.


The concurring opinions indicate a willingness on the part of some of the justices to alter the long-standing rule if presented with the right case.  For example, Judge Bostford noted in her concurring opinion that the alcohol industry is highly regulated and that it was up to the Legislature to expand social host liability.  Judge Botsford also noted that “we should provide a message that if the Legislature does not act within a reasonable amount of time, when the appropriate case arises we are inclined to change our common-law rule governing social host liability.”  Additionally, while the majority opinion did not address age as a factor in determining liability, Judge Gants noted in a concurring opinion that he “would limit our holding to an underage host, and would wait until we are presented with a case where a social host who has reached legal drinking age knowingly allows underage guests to use his or her home to drink alcohol before we decide whether to extend our holding to all social hosts.”  The concurring opinions suggest that given the “right” case, certain justices may favor an extension of social host liability to those hosts who do not themselves provide alcohol or control the supply of alcohol in a social setting.

Jul 2011

The Massachusetts Appeals Court recently issued an insurance coverage opinion in which it interpreted the word “maintain” In the context of a Protective Safeguards Endorsement in a first-party property insurance policy.  The policy at issue required, as a condition for coverage, that the insured “maintain” a fire protection system.  The court held that, in this context, the word “maintain” was ambiguous because it was susceptible to multiple meanings.  For example, “maintain” could mean narrowly “to keep in existence”, or could mean more broadly “to keep in a condition of good repair”.  Since the term “maintain” is ambiguous, the Court ruled (in accordance with the usual rules for insurance contract interpretation) that the term must be construed against the insurance company and therefore would be given its more narrow interpretation (which in this case would result in coverage for the insured).  The Court also held, however, that the policy contained two exclusions, both of which applied and independently excluded coverage.  The first exclusion operated to exclude coverage if the insured knew of any impairment in the fire protection system and failed to notify the insurer.  The second exclusion operated to exclude coverage if the insured “failed to maintain [the fire protection system] over which [the insured] had control, in complete working order.”  The Court held that since the insurer had established the absence of any genuine dispute that the insured: (1) knew the fire protection system was “impaired” and failed to tell the insurer,  and (2) knew that the fire protection system did not work, each of these two exclusions independently applied and defeated coverage.  The Appeals Court therefore affirmed the trial court’s grant of summary judgment to the insurer.

A few other interesting issues were raised in the decision.  The Court held that since it had determined that coverage was in fact excluded for the loss at issue, a claim brought by the insured for unfair or deceptive insurance practices under Mass. Gen. Laws c. 176D was properly dismissed to the extent that the c. 176D claim was based upon the alleged erroneous denial of coverage. Interestingly the Court appeared to acknowledge that even where coverage was excluded by the terms of the policy, a viable c. 93A claim might exist if the insurer unreasonably delays in responding to the insured’s demands/inquiries about coverage. (IN this case, no such unreasonable delay was found because any delay by the insurer in denying coverage was determined to have been caused, at least in part, by the insured’s failure to provide on a timely basis information about the fire suppression system at issue.  Although this point was only mentioned in a footnote, it served as an important reminder that the cooperation conditions of insurance policies requires an insured to provide information reasonably requested by an insurer even where the information bears not upon the merits of the claim but only bears upon the question of whether the insurer has coverage for the claim. See also in this regard MetLife Auto & Home vs. Cunningham, 59 Mass. App. Ct. 583, 589 (2003).

The Court also held that the insurer was entitled to reimbursement of an “advance” payment made to the insured, holding that the insured would be unjustly enriched if it were permitted to keep an erroneously-made insurance payment (i.e. a payment made based upon the erroneous assumption that there was coverage for the claim). The Court also cited as a general policy consideration that if it had held otherwise, insurers may be disinclined to make advance payments required by such insurance policies for fear that such payments would never be recovered even if it ultimately were determined that there was no coverage for the loss.

The case is French King Realty Inc. v. Interstate Fire & Cas. Co., 79 Mass. App. Ct. 653 (2011).

Jul 2011

Christopher Long successfully argued a motion to dismiss and a motion for summary judgment in favor of his two clients in a case alleging negligent supervision of a woman suffering from severe physical and mental impairments. Plaintiff alleged that as a result of the alleged failure to properly supervise her during lunch, she choked on her meal and lost consciousness.  The motion to dismiss was filed on behalf of the first defendant, an educational collaborative, on the grounds that the plaintiff failed to comply with the presentment requirement of the Massachusetts Tort Claims Act.  The plaintiff sought to pierce the corporate veil, arguing that the collaborative and the second defendant, a not for profit corporation, were one and the same entity. Because plaintiff had properly presented the claim to the corporation, she argued that the collaborative had constructive notice of the claim.  The court rejected that argument and allowed the motion to dismiss as to the collaborative.  Subsequently, a motion for summary judgment was filed on behalf of the not for profit corporation on the grounds that the corporation owed no legal duty to the disabled woman.  The plaintiff again argued that there was a question of fact as to the relationship between the two entities and the degree of control the corporation exerted over the collaborative.  The court found that there were no material of facts in dispute and that the not for profit corporation did not owe a legal duty to the claimant. Summary judgment entered in the defendant’s favor as to all counts.

Jul 2011

Susan Devlin was successful in obtaining the dismissal of all claims filed against an emergency room physician with respect to her report of suspected child abuse of the Plaintiff’s daughter.  The physician reported her suspicions of abuse pursuant to her obligations as a mandated reporter under M.G.L. c. 119, § 51A.  The Plaintiff had alleged that the report was negligently made to local police and that he subsequently suffered damages when the allegations were found to be supported by the Department of Children and Families.  The defendant sought dismissal of all claims as the physician was immune from suit pursuant to § 51A and further that her actions were protected petitioning activities under M.G.L.c. 231, § 59H (the “anti-SLAPP” statute).  Specifically, the defendant asserted that reports of suspected crimes to the police are protected petitioning activities for which she could not be sued.  After a hearing, the Court agreed that the physician’s activities in reporting the abuse were protected by § 59H and further, that the Plaintiff failed to show that the report lacked reasonable factual support.  All counts of the Plaintiff’s Complaint against the physician were subsequently dismissed.

Jul 2011

Bob Murphy and Chris Long obtained a defense verdict in a trial alleging negligent maintenance of training equipment by the defendant health club.  The plaintiff alleged that she tripped and fell, sustaining serious personal injuries, as a result of the defendant’s alleged failure to properly maintain the netting on a tennis training target and its negligent storage of the trainer in close proximity to the court. The defendant maintained that the plaintiff fell as a result of her own negligence, that the subject netting was not unreasonably dangerous and that any dangerous condition was open and obvious. The defense was successful in excluding the plaintiff’s liability expert. The defense was also successful in introducing the amount of the medical bills actually paid by the health insurer, in mitigation of the amount billed by the provider. After a four day trial, the jury returned a verdict in favor of the defendant on all counts. Plaintiff filed a notice of appeal, which was withdrawn following defendant’s motion for costs.

Feb 2011

William Mekrut won an appeal at the Massachusetts Appeals Court in a case involving a consumer protection act claim against a doctor.  The decision is unpublished. See Musial v. Kang, 2010 Mass. App. LEXIS 171 (Mass. App. 2010) Unpub.

Oct 2010

Susan Donnelly Murphy and Kevin M. Sullivan successfully defended a physician in a recent medical malpractice/wrongful death trial in the Suffolk County Superior Court.  The Plaintiff alleged the physician, a specialist in Internal Medicine and Physical Medicine & Rehabilitation, failed to promptly transfer a patient with apparent anaphylaxis from a rehabilitation hospital to a nearby hospital with a fully-staffed and equipped emergency room,  and subsequently failed to perform necessary emergency procedures, including a cricothyroidotomy, to establish an airway for the patient, all of which caused the patient’s death.  After a two week trial, the jury found no negligence and returned a verdict for the physician.