2014 Highlights

2014 was another busy year of varied litigation for the firm, with a continuing emphasis on insurance coverage, wrongful death and business litigation.

Paul is increasingly in demand as an arbitrator, especially as part of the insurance reference process.

John was elected President-Elect of the Hampshire County Bar Association after a number of years on the Executive Board. He was also appointed Assistant Solicitor for the City of Westfield, a part-time office devoted exclusively to litigation for the City.

Insurance and Coverage

The clients' new home burned to the ground just as it was being finished. An insurance policy paid most of the loss and the firm obtained a waiver of subrogation from the insurer. The firm then brought suit against the general contractor and roofer, claiming all of the damages, even those paid by insurance, a position supported by the Collateral Source Rule. The case presented novel issues of Massachusetts insurance law, with conflicting decisions from other jurisdictions. After extensive briefing of the several contested legal issues, the Superior Court, Agostini, J. issued a favorable decision on cross-motions for summary judgment, after which the case was resolved on terms favorable to the client.

A Westfield building truss manufacturer suffered a substantial fire loss during the recent recession. The firm guided the client through the insurance claim process, which was contested at every step, culminating in an arbitration procedure, known as a “reference,” with the insurer on the subject of damages. The firm's presentation of an accounting expert and other evidence resulted in a substantial recovery for lost business income for the client. The insurer based its projection of lost income on the economic performance of the company during the recession just prior to the fire. The firm presented evidence from industry sources showing a significant uptick in the construction industry, an opportunity the client had lost because of the fire. The case is proceeding against the insurance agent due to the building being under-insured. As a result, the client was penalized over $100,000 due to the application of coinsurance. In addition, suit has been filed against the insurer on the issue whether, in order to be compensated for replacement cost for a destroyed item of business personal property, the policyholder must actually have paid for and received the item, or whether “incurring” the obligation to replace under contract is sufficient.

A Berkshire County restaurant was heavily damaged by fire. The business was located at the base of a ski resort and its business cycle largely followed the resort's. The insurer attempted to pay the claim for loss of business income based on the revenue from the year prior to the fire, when snowfall was limited and the number of patrons was down. Using data from the resort and the ski industry in the Northeast for the year following the fire, the firm established that, in fact, revenue would have increased substantially if the fire had not occurred. This resulted in a significant change in the insurer's position.

The firm represents a condominium association in Springfield in claims arising from a gas explosion in 2013 which caused significant damage to several buildings. The volunteer Board of the Association had retained the services of a Public Adjuster to assist in negotiations with its own insurer. The firm is pursuing claims against the gas company on two issues. First, to what extent is a tortfeasor responsible to pay the costs of bringing an older, existing building into compliance with current building codes in order to make repairs? Second, is a tortfeasor liable for the costs incurred by the Board in hiring a Public Adjuster to assist in the claim against its own insurer?

Providing both factual investigation and legal analysis, the firm rendered a number of insurance coverage opinions in a variety of cases, including several frozen pipe water losses. The firm also represented many homeowner and business clients against their insurance companies in cases of disputed coverage.

General Litigation

The firm has brought suit for wrongful death against Cumberland Farms, arising from the tragic death of a wife and mother who was struck down in the doorway of a Cumberland Farms store. The case is the firm's third against Cumberland Farms for death or catastrophic injury resulting from failure to protect pedestrian customers from vehicular traffic with the use of barriers between the pedestrian walkways in front of the stores and the nose-in parking spaces. Trial is set in Hampden County Superior Court in September, 2015.

We continued our representation of a prominent local real estate developer in a multi-faceted dispute with the estate of the client's deceased partner, a dispute which has extended over several years. Our representation included mediation, the filing of two separate related lawsuits, and a one-week arbitration before a three-arbitrator panel in October, which addressed the principal claims. The firm continues to address and advise as to issues and disputes arising from the different companies owned in common by the client and his former partner.

The firm represents a client who sold land and a business in Northampton. The firm is defending claims of a tenant who claims that a right of first refusal contained in a lease was not honored correctly. The case has seen extensive discovery and intensive briefing of the claims and defenses, some of which present novel issues of law in Massachusetts.

The firm represented a local restaurateur in a dispute between former restaurant partners, which culminated in a five day jury trial in January, 2015. The jury addressed claims of breach of fiduciary duty, defamation, and breach of contract.

The firm represents the former long-time operators of a Berkshire gas station against the petroleum distributor landlord. The clients were sued for violation of a lease. The firm's defense includes counterclaims based on a little known and never-interpreted Massachusetts statute which, the firm argued, was violated by the distributor.