Advanced Spine Centers sued Commerce for PIP and 93A damages. In discovery it sought a number of documents, including reports written by Commerce's proposed experts in other cases. Commerce produced copies of reports of its proposed experts for the case at hand, but asserted that it had no other reports in its possession, custody or control.
Advance moved in limine to preclude the experts from testifying because Commerce had not provided the requested reports. The trial court allowed the motion.
In Advanced Spine Centers, Inc. v. Commerce Ins. Co., 2012 WL 2153943 (Mass. App. Div.), the Massachusetts Appellate Division overturned that ruling, holding that the sanction was too broad and violated the principles of due process.
Thursday, June 28, 2012
Wednesday, June 20, 2012
Great article on exhaustion of underlying coverage
Michael Aylward, one of the premier insurance coverage attorneys in Massachusetts as well as an all-around nice guy, has published a comprehensive article on recent developments in the law relating to when underlying coverage is exhausted for the purpose of triggering excess coverage.
Saturday, June 16, 2012
Appeals Court holds insurer failed to use due diligence to contact insured when it did not use social media
Stephanie Cotto was injured in an automobile accident while riding as a passenger in a vehicle owned by George Luddy Chevrolet and driven by her friend, Luddy employee Julie Bertholdt. Bertholdt was an insured under a policy issued by Universal to Luddy.
Cotto filed suit. She obtained a default judgment as a result of Bertholdt's failure to answer interrogatories. Damages were assessed. Universal refused to satisfy the judgment, asserting that Bertholdt had breached her duty to cooperate.
Cotto filed an action to reach and apply coverage under the policy . The Superior Court held that Universal was entitled to disclaim coverage.
On appeal Cotto argued that Universal had failed to exercise due diligence in obtaining Bertholdt's cooperation.
In Cotto v. Universal Underwriters Ins. Co., 81 Mass. App. Ct. 1142, 2012 WL 2093331 (unpublished), the Massachusetts Appeals Court reversed.
The record on summary judgment showed that Universal had made various attempts to locate Bertholdt and seek her cooperation and that, at one point, she told insurance defense counsel that she was "not going to trial." The Appeals Court held those facts were insufficient to sustain a summary judgment verdict. "Especially given Bertholdt's youth and transient lifestyle, a trier of fact reasonably could conclude that due diligence required Universal to take further steps."
The court noted that after the reach and apply action was filed, Cotto testified at a deposition that she had been able to maintain contact with Bertholdt through text messages, MySpace, and Facebook. "In contrast, there is nothing in the record to indicate that such sites were consulted by Universal or its investigators, despite the importance of social media sites as centers of communication and sources of information. Nor does the record reflect that Universal considered Cotto, herself, as a source of information about Bertholdts' whereabouts."
Cotto filed suit. She obtained a default judgment as a result of Bertholdt's failure to answer interrogatories. Damages were assessed. Universal refused to satisfy the judgment, asserting that Bertholdt had breached her duty to cooperate.
Cotto filed an action to reach and apply coverage under the policy . The Superior Court held that Universal was entitled to disclaim coverage.
On appeal Cotto argued that Universal had failed to exercise due diligence in obtaining Bertholdt's cooperation.
In Cotto v. Universal Underwriters Ins. Co., 81 Mass. App. Ct. 1142, 2012 WL 2093331 (unpublished), the Massachusetts Appeals Court reversed.
The record on summary judgment showed that Universal had made various attempts to locate Bertholdt and seek her cooperation and that, at one point, she told insurance defense counsel that she was "not going to trial." The Appeals Court held those facts were insufficient to sustain a summary judgment verdict. "Especially given Bertholdt's youth and transient lifestyle, a trier of fact reasonably could conclude that due diligence required Universal to take further steps."
The court noted that after the reach and apply action was filed, Cotto testified at a deposition that she had been able to maintain contact with Bertholdt through text messages, MySpace, and Facebook. "In contrast, there is nothing in the record to indicate that such sites were consulted by Universal or its investigators, despite the importance of social media sites as centers of communication and sources of information. Nor does the record reflect that Universal considered Cotto, herself, as a source of information about Bertholdts' whereabouts."
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