ARTICLES ABOUT MASSACHUSETTS LAW AND MASSACHUSETTS LEGAL RESEARCH

Insurance policies are complex contracts.  Whether a particular loss is covered or a given exclusion applies often depends on a court’s interpretation of a single word or phrase in a single provision of the policy.  While the court must divine the intent of the contracting parties, that intent is not always clear.  Massachusetts courts are assisted in their interpretation of insurance policies by the following general rules of construction, among others. The court’s focus should be on determining the intent of the parties by examining the language of the policy, read as a whole. The objective is to construe the contract as a whole, in a reasonable and practical way, consistent with its language, background, and purpose. The interpretation of an insurance contract is a question of law. An insured generally bears the burden of proving that a particular claim falls within a policy’s coverage. Interpretation of language in an insurance contract is no different from the interpretation of any other contract, and the words of the policy must be construed in their usual and ordinary sense. The terms of an insurance policy are interpreted according to the fair meaning of the language used, as applied to the subject matter. Every word in an insurance contract must be presumed to have been employed with a purpose and must be given meaning and effect whenever practicable. Any ambiguities in the language of the contract are interpreted against the insurer who used them and in favor of the insured. If the meaning of the contract language is unclear, a court considers what an objectively reasonable insured, reading the relevant policy language, would expect to be covered (the “reasonable expectations doctrine.”) The reasonable expectations doctrine applies, however, only when the policy terms are ambiguous and not when they are clear and unambiguous. An ambiguity is not created simply because a controversy exists between the parties, each favoring an interp

An amendment to Massachusetts Superior Court Rule 9A(a)(3), effective January 1, 2016, allows litigants to file certain reply memoranda without first obtaining the court’s permission, and changes the procedure for obtaining leave of court where permission is still required. Under the current Rule 9A, a party seeking to file a reply memorandum must seek leave of court to do so, “within 5 days of service of a memorandum in opposition” by sending, “a letter to the Session Judge setting forth the grounds to support the request” and serving that letter on all other parties.  Any such reply must, “be limited to addressing matters raised in the opposition that were not and could not reasonably have been addressed in the moving party’s initial memorandum.” Amended Rule 9A(a)(3) no longer requires a party to obtain the court’s permission before filing a reply memorandum if: (1) “the opposition raises matters that were not and could not reasonably have been addressed in the moving party’s initial memorandum”; (2) the reply is “limited to addressing such matters”; and (3) the reply does not, “exceed five typed double-spaced pages.” The amendment states that “[n]o other reply or surreply shall be allowed without leave of court, which is strongly disfavored,” and changes the procedure for requesting such leave.  First, a request for leave is no longer in the form of a letter but must, instead, be captioned as a pleading.  The amendment also limits the length of the request to, “not more than one double-spaced page.”  Finally, the request must be addressed to “Session Clerk, ATTN: Session Judge,” rather than directly to the judge. A reply memorandum is most appropriate when the moving party seeks to respond to new matters (factual or legal), raised by the party opposing the motion.  The 2016 amendment to Rule 9A(a)(3) simplifies the process for filing such a reply.

Updated: June 1, 2019 This article appears substantially as published in the July 30, 2015, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process. While each section of your brief must be drafted with care and creativity, the other sections set the stage for an effective Argument.  It is in the Argument section that you explain the law and show how that law requires a ruling in your client’s favor.  In the one-third of appeals which are decided without oral argument, your brief is your only opportunity to present your legal positions to the justices. Here and in my next column, I offer a few suggestions to make your Argument section more effective. Do not merely cut and paste from a trial court brief. If you take nothing else from this article, you should be convinced that an appellate brief is a specialized document that should be written from scratch. Be methodical and organized. In determining how to draft the Argument section, keep in mind that your audience consists of Appeals Court justices who do not know the facts of your case as well as you do.  Further, because the justices may be generalists, you should not assume that they have expertise in the legal subject matter of your appeal.  Do not skip steps in your legal analysis, assuming that the justices will follow along.  If your argument has multiple conceptual steps, clearly lay out every one leading to your ultimate conclusion. Because you need to methodically lay out your legal analysis, your brief’s Argument section should be highly structured.  Although the Summary of Argument section of your brief provides an overall roadmap, each major argument within the Argument section should have its own roadmap paragraph. Use headings and sub-headings. You should also use headings and sub-headings to help the reader keep track of complex arguments.  The major headings in your Argument sec

A defendant against whom a plaintiff has obtained a judgment sometimes seeks indemnification from another person or business, attempting to pass the entire liability on the judgment to that other party.  However, indemnification is available only in very limited circumstances. Consider, for example, a situation in which a convenience store is sued by a customer who was injured when she slipped on juice which apparently had leaked from a juice dispenser on the premises.  The store, takes the position that if it is liable to the customer, it should be indemnified by the juice distributor who owned and installed the machine, and was responsible for its maintenance.  However, the contracts between the store and the distributor do not expressly provide for indemnification.  Can the store shift its liability to the distributor?  Probably not. In Araujo v. Woods Hold Martha’s Vineyard Nantucket Steamship Authority, 693 F.2d 1 (1982), the Court of Appeals for the First Circuit, applying Massachusetts law, explained that indemnification is available only in three situations: Three different sets of circumstances may give rise to a right to indemnification. First, an express agreement may create a right to indemnification. Second, a contractual right to indemnification may be implied from the nature of the relationship between the parties…. Third, a tort-based right to indemnification may be found where there is a great disparity in the fault of the parties. Id. at 2.  (Citation omitted).  See also Medeiros v. Whitcraft, 931 F.Supp. 68, 75 (D. Mass. 1996); United States v. Dynamics Research Corp., 441 F.Supp.2d 259, 267 (D. Mass. 2006); In re Access Cardiosystems, Inc., 361 B.R. 626, 647-48 (Bkrtcy. D. Mass. 2007). None of those theories applies in the hypothetical described above. First, there was no express contract written or oral, relating to or providing for indemnification. Second, no contractual right to indemnification should be implied.  “A contractual right to indem

A defendant against whom a plaintiff has obtained a judgment sometimes seeks indemnification from another person or business, attempting to pass the entire liability on the judgment to that other party.  In the absence of an express contractual right to indemnity, or a special relationship justifying between the parties, only a tort-based, so-called “common law” indemnity is allowed.  (For a more general discussion of the three types of indemnity, click here). However, that tort-based indemnification usually requires that the party seeking indemnification be entirely fault free and liable to the plaintiff only vicariously or derivatively (as where an employer had no involvement in the torts of its employee but is liable solely due to the agency relationship).  But what if the party seeking indemnity, although slightly at fault, is far less at fault than the person from whom indemnification is sought?  Is such a person barred from receiving indemnity despite the great disparity in fault? Although the answer is not entirely free from doubt, it appears that, in very rare circumstances, the Massachusetts courts will grant tort-based indemnification to a party who has some fault, where that party’s fault is insignificant, compared to the fault of the party from whom indemnification is sought. In Rathbun v. Western Massachusetts Electric Co., 395 Mass. 361 (1985), the Court noted that in rare circumstances, a party at fault can obtain tort-based indemnification.  The Court stated: The general rule is that a person who negligently causes injury to a third person is not entitled to indemnification from another person who also negligently caused that injury. Indemnification has been permitted, however, where the person seeking indemnification did not join in the negligent act of another but was exposed to liability because of that negligent act. Sometimes the successful indemnitee in such a situation is said to have been only “constructively” rather than “actually” negligent

A recent decision of the Massachusetts Appeals Court arguably expands the “mode of operation” approach, a theory by which a slip and fall plaintiff can hold a commercial property owner liable for damages.  In Bowers v. P. Wile’s, Inc., 87 Mass. App. Ct. 362, 30 N.E.3d 847 (2015), the Court clarified that application of the mode of operation approach is not limited to cases where the dangerous condition causing the plaintiff’s accident resulted from breakage or spillage of items the defendant store is offering for sale. The traditional premises liability rule. Under traditional premises liability rules, where a foreign substance causes a plaintiff invitee’s slip and fall accident, the plaintiff can establish negligence on the part of the business owner in one of three ways: (1) by proving that the defendant caused the substance to be there; (2) by proving that the defendant had actual knowledge of the existence of the foreign substance; or (3) by proving that the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.  If, under (2) or (3), above, the owner knows or should know of the dangerous condition, then the plaintiff must also show that the owner should have expected that invitees would not discover the danger or protect themselves from it, and that the owner failed to exercise reasonable care to protect invitees from the danger. The Sheehan decision. In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007), the Supreme Judicial Court adopted the so-called “mode of operation” approach, which focuses on whether the nature of the defendant’s business gives rise to a substantial risk of injury to customers. Under this approach, where a store owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner can be held liable for injuries to a customer if the customer proves that the owner failed to take all reasonable precaution

Updated: June 1, 2019 This article appears substantially as published in the January 22, 2015, issue of the Massachusetts Lawyers Weekly. It has been modified where necessary to reflect changes in the Massachusetts Rules of Appellate Procedure. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process. Having drafted an effective statement of issues for your appellate brief (the subject of my Aug. 18, 2014, column), your next task is to present the facts of the case. How you present the facts in your appellate brief can be at least as important as your legal analysis. A skillfully drafted factual section will both establish your credibility in the eyes of the court and tell a compelling story, leading the judges to view the case from the perspective most favorable to your client and making them more receptive to the legal positions you take in the argument section. The Massachusetts Rules of Appellate Procedure require that the facts be presented in two separate sections: (1) a Statement of the Case which describes the nature of the case, provides the procedural history relevant to the issues on appeal, and identifies the disposition of those issues by the trial court; and (2) a Statement of Facts section which describes the relevant facts but need not include facts otherwise included in the Statement of the Case. Nature of the case The nature of the case subsection should offer a very short, general description of the dispute between the parties and your view of the issues on appeal. Procedural history The procedural history must include appropriate citations to the record (i.e., to the appendix). It should include all procedural events that are relevant to the appellate issues, but should omit events that are not relevant. Accordingly, if the critical issues on appeal deal with evidentiary rulings at trial, there is no need to refer to most pre-trial events. While it usually makes sense

Updated: June 1, 2019 This article appears substantially as published in the August 18, 2014, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process. My last column concerned how to ensure that a brief complies with the appellate rules. Here, the topic is the importance of drafting a clear and persuasive statement of issues.   A carefully drafted statement of issues is critical to the success of your appellate brief. An Appeals Court judge probably knows little if anything about your case before reading the briefs and is likely to go to those sections that provide an overview of the nature of the appeal, how the appellant claims the trial court erred, and what relief the appellant is seeking from the Appeals Court.   Accordingly, a judge may look at the statement of issues first.   Because your statement of issues may be the judge’s point of entry to your brief, it is very important that it clearly explains what the case is about. Care should also be given to choosing which issues, and how many, to appeal.   I recommend that you draft your statement before writing other portions of the brief. Having forced yourself to clearly identify and concisely explain the legal issues, you will be better prepared to decide which facts are relevant to those issues and should be included in your statement of relevant facts.   You also will have a better sense of how to structure the argument section of the brief to address those issues while ignoring irrelevant issues.   Form and clarity Each issue should be stated in not more than one relatively short paragraph. Although many issues can be summed up in a single sentence, sometimes two or three sentences explain the issue more clearly.   Your appellate issues always should be stated as questions that can be answered “yes” or “no.”   I often begin an issue with “Whether …”, but other formulations (“Did…”, “Wa

Updated: June 1, 2019 This article was originally published in the June 16, 2014, issue of the Massachusetts Lawyers Weekly, but has been edited to reflect later changes in applicable rules. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process. Having completed your research and other preparations, you are now ready to begin drafting a concise and compelling appellate brief.  Before you start typing, however, review the Massachusetts Rules of Appellate Procedure and Appeals Court Standing Orders, which contain detailed requirements for the form and content of appellate briefs and appendices. Because rules can change, you should consult them each time you draft an appellate brief.  It would be unfortunate to find out after completing your brief that it fails to comply with Appeals Court requirements. Formatting. Make sure that the margins, font, line spacing and other attributes of your document comply with Mass. R. App. P. 20(a), which governs the formatting of appellate briefs.  Rule 20 requires: Paper: Standard 8.5 x 11 inch paper should be used. Rule 20(a)(1). Binding: Pages should be bound on their left side. Rule 20(a)(1). A cover or front page must be used. Margins: If printed using a monospaced font, the top and bottom margins should be 1” while the left and right margins should be 1.5”, so that the text area is 5.5” by 9”. If printed using a proportionally spaced font, all margins must be 1”. Page numbers must appear in the margin and the cover page must be paginated as page 1, with all successive pages, including the addendum, consecutively numbered. Rule 20(a)(4). Typeface: If a monospaced font is used, both text and footnotes should be 12 point with character spacing such that no more than 10.5 characters fit with one horizontal inch. If a proportionally spaced font us used, both text and footnotes must be 14 point. Spacing: Text should be double spaced except for footnotes