Thursday, November 21, 2019

Massachusetts Appeals Court discusses rule that only referees of reference proceeding can seek court order compelling witnesses to testify

A few years ago I wrote a series of posts about a decision of the United States District Court for the District of Massachusetts on a case in which a restaurant called Bearbones alleged bad faith by an insurer with respect to a reference proceeding. 

(A reference proceeding is the proceeding required by Massachusetts statute, and incorporated into property insurance policies,  in which a panel of three referees determines a dispute over the amount of loss in a property damage claim.)

One of the issues at the reference proceeding was the value of damaged kitchen equipment.  The plaintiffs had wanted Blake Purry and Jim Clary, employees of B & G Restaurant, to testify about an estimate that B & G provided for the removal and replacement of the damaged equipment. 

During the reference proceeding the plaintiffs summoned Purry to appear and testify.  When it became apparent that he did not plan to do so, they filed an emergency motion for a capias (which would have forced him to attend) in Superior Court.  A judge denied the motion because the plaintiffs had not followed the proper procedure.  The proper procedure required the referees, rather than a party, to seek the capias. 

The referees asked plaintiffs' counsel if he knew of any authority by which they could enforce the summons.  Plaintiffs' counsel responded that he know of no such authority -- even though the Superior Court judge had informed the attorney of the proper procedure.

The plaintiffs subsequently summoned Clary to appear and testify at the reference proceeding, but he did not appear.  

The plaintiffs filed a lawsuit in which they sought a preliminary injunction requiring Perry and Clary to appear at the reference proceeding, and damages under Mass. Gen. Laws ch. 233 §4, a statute that provides tort damages for failure to comply with a summons. 

In Bearbones, Inc. v. B & G Restaurant Supply, Inc., 2019 WL 4898481 (Mass. App. Ct.) (unpublished), the Massachusetts Appeals Court noted that a witness summoned to testify at a reference proceeding is not always required to do so, as a judge has discretion to compel (or not compel) such testimony.  The plaintiffs did not follow the proper procedure for compelling the testimony of the witnesses, which was to have the referees submit the motion to compel their attendance.  The court affirmed summary judgment for the defendants. 

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