Archive for the ‘Uncategorized’ Category

How Do You Define The Word Merge?

May 21, 2012

When two roadways angle toward each other in the same direction the drivers are urged by traffic signs to “merge”. What is meant by this instruction? Merge signs are supposed to warn drivers that the lane in which they are driving will gradually narrow into another lane. The traffic sign puts drivers on notice that extra caution is required and that there is the possibility of a speed reduction or acceleration. Merge signs call for extra courtesy to those who will be converging into your lane from another lane of traffic. Why would anyone bother to obey a merge sign. Safety is surely a consideration and efficiency is certainly another. Perhaps courtesy is based upon a vested self-interest. We all proceed more quickly if we cooperate. If only Congress would learn to merge their ideas, that is, compromise and cooperate in doing the people’s business.

Students’ Rights: Do They Have Any?

April 20, 2012

Student Rights: Grammar School, High School, Colleges and Universities

What is the reach of the law inside a grammar school? Can a policeman go into a grammar school without the principal’s permission? Does it make a difference if the grammar school is a private school instead of a public school? If the school is a high school are the students’ legal rights more extensive than they were in grammar school? Is there a difference between public and private high schools.? In colleges and universities are student rights more expansive than they were in high school? One of the earliest legal concepts applied to students while at school was the Latin phrase “in loco parentis”  It translates into English as “in place of a parent.” The legal premise was that students were required to listen and to obey their teachers and principal as if these educators were taking the place of their parents while at school. This authority was diminished during the student rights movement of the 1960s. Today , this concept has all but been abandoned in colleges and universities although it still has some resonance in private institutions and in public grammar and high schools. “In loco parentis” allows educational institutions to act in the best interests of their students as they see fit. The pendulum may be swinging back toward reintroducing a modified form of ‘in loco parentis” in the wake of the shooting and killing of students at Columbine High School and Virginia Tech University. The 1942 Supreme Court case that was responsible for the limitation of ” in loco parentis” was West Virginia State Board of Education v. Barnette. The court ruled that students cannot be forced to salute the American flag. However, in 1969 the Supreme Court decided the case of Tinker v. Des Moines Independent Community School District in which the court held that “conduct by the student, in class or out of it, which for any reason – whether it stems from time, place, or type of behavior – materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”  In 1985, in the case of New Jersey v. T.L.O. the Supreme Court upheld the search of lockers and other personal space while on school property. It indicated the court’s thinking that students are not afforded the same rights as adults while they are at school. In the 1989 decision of Hazelwood School District v. Kuhlmeier the Supreme Court ruled that ” [f]irst Amendment rights of students in the public schools are not automatically coextensive with rights of adults in other settings, and must be applied in light of the special characteristics of the school environment.” Schools may sensor school sponsored publications,  such as a school newspaper, if the content is “…inconsistent with its basic educational mission.” Some form of “in lococ parentis” continues to be applied in primary and secondary education; it has been diminished in higher education. In 1961, the Supreme Court, in a landmark decision, held in the case of Dixon v. Alabama that Alabama State College could not summarily expel students without due process. Some of the issues that currently arise with practically all students in all types of schools, public or private, are the following: underage drinking, security, privacy and social media, roommate behavior, drugs, mental health issues, suicide; and the concern of parents to know what is happening to their child at college versus the student’s expectations to be treated as an adult with the right of privacy and confidentiality. Each of these issues is handled differently depending upon whether the student is in grammar school, high school or college and whether the educational institution is public or private. The germinal case in Massachusetts concerning college security is Lisa Mullins vs. Pine Manor College 389 Mass. 47 (1982). The Supreme Judicial Court held that colleges have a duty to take reasonable measures to protect their students against foreseeable criminal acts of third parties. Under Massachusetts law, the college was considered a charitable institution. Its liability on damages was capped at $20,000 but the security officer of the college was also sued in his individual capacity. The court held that an officer of a charitable institution is not immune from liability for negligence in the performance of a discretionary function. The court stated that the defendants were negligent in permitting certain deficiencies in the college’s security system.

Copyright 2012

Arthur F. Licata

Punitive Damages: What Is The Appropriate Amount

March 7, 2012

Why Punitive Damages Should Remain 2X or 3X The Amount Awarded By A Jury

In previous posts, we have discussed the many factors of punitive damages. It is a deterrent, and a punishment for an insurance company’s bad faith, and its unfair and deceptive claims settlement practices. These public policy decisions by the Massachusetts Legislature were discussed in the recent Massachusetts Supreme Court decision of Rhodes, el v. AIG Domestic Claims, Inc, et al. The court found violations of the Consumer Protection statute. Pursuant to the statute, the court ordered the jury award doubled. Since the case involved a truck rear-ending a car there was no issue concerning liability. The passenger was severely injured. The jury awarded damages for her life-long care in the amount of $9,500,000, and with interest, it amounted to $11,300,000.  In deciding that the amount should be doubled the Supreme Court stated that “[we] recognize that $22,000,000 in c.93A  damages is an enormous sum, but the language and history of the 1989 amendment to c.93A leave no option but to calculate the double damages award against AIGDC based upon the amount of the underlying tort judgment.” The court went on to say that “[t]he Legislature may wish to include more than a single, but less than double, damages; or developing a special measure of punitive damages to be applied in unfair claim settlement practice cases brought under c.176D, section 3(9), and c.93A that is different from the measure used in other types of 93A actions.” It is almost as if the Supreme Judicial Court was apologizing or embarrassed by its decision. This impression is unfortunate. It undermines the very public policy principles that gave rise to consumer protection statutes. The Legislature understood the unequal bargaining power between a multinational insurance company and an individual claimant. The statute encompassed the rightly held view that monetary sanctions are the only way to change the unlawful behavior of an insurance company. As to the appropriate amount of punitive damages to be awarded, the $22,000,000 in the Juliano v. Simpson case is not typical. It should not be used as the criteria or as an example of a fair punitive sanction. Juliano is a catastrophic injury case with life long medical care and lost earning capacity. The more typical cases are those that are the bread and butter of personal injury practice. The parties are usually negotiating cases that are between $100,000 and $500,000. These types of cases are the ones that cumulatively save insurance companies millions of dollars each year when they refuse to settle them, even though liability has become reasonably clear. If one obtained a jury verdict for $100,000, the doubling of the jury award would amount to a punitive damage award of $200,000. If one obtained a jury award of $250,000, and it was doubled in punitive damages, the award for unfair and deceptive claims settlement practices would be $500,000. These are hardly “enormous” or “shocking figures.” They reflect a more realistic likelihood for future punitive damage awards consistent with the Juliano case. These punitive awards have just enough bite that insurers will realize it has become more expensive to ignore the law in Massachusetts than to obey it. If one multiplies these medium size cases over the course of a year or five years, the insurers will lose too much money. They will be exposed to too many potential punitive damage awards for them to maintain a “stonewalling” business model. The public policy behind c. 93A and 176D has just become effective. Neither the Court nor the Legislature should now gut the law’s abilty to protect consumers. As a result of the Juliano decision, Massachustts courts are no longer paper tigers when asked to enforce the state’s consumer protection laws.

Copyright 2012

Arthur F. Licata

Have Private Homes Become The New Safe Havens For Teen Drinking?

February 28, 2012

Social Host Liability

What is meant by social host liability? When used as a legal term it usually means that a homeowner or a member of the homeowners family has either served alcohol to a guest or supplied the alcohol that a guest consumed. The facts most frequently contain a description of how the guest consumed alcohol on the premises; how he became intoxicated and how he injured himself while driving home, or injured a third-party on the highway. The third-party could be driving another car or be a pedestrian. The host of the party could be a minor with or without his/her parent being home; or he could be an adult host making alcohol available to adult guests or to minors. The most troubling scenario for the states’ Supreme Courts has been when the drinking was at a home, but the alcohol was brought to the premises by the guests themselves, be they adults or minors. What is the responsibility of an adult host to an adult guest when the alcohol is furnished by the host? What if the guests are minors and they are given alcoholic drinks by an adult? Does that responsibility change if the guests bring their own beer, wine or liquor? Each state has different laws that govern this vexing topic. Part of the problem is that our fellow citizens are equivocal about the issue of drinking alcoholic beverages. Some people see drinking as a harmless social activity. Others see it as a right of passage as one approaches adulthood. Yet another viewpoint is that alcohol is “harmless or the least harmful drug” as compared to heroine, cocaine or marijuana. There are those that think alcohol should be heavily regulated and supervised especially when it causes so much death and destruction. MADD constantly lobbies that under age drinking is one of the biggest causes of teenage deaths. The people of Massachusetts are typical in their simultaneous holdings of  these conflicting views. The Massachusetts Legislature and the Supreme Judicial Court reflect this ambiguity and equivocation. At the present time, no homeowner in Massachusetts can be  held liable for a guest’s intoxication and injury to himself or others unless the homeowner serves the intoxicated guest or makes the alcohol available to her when she is visibly intoxicated. If the guest brings his own alcoholic drinks to a party held at a private residence there is no homeowner liability for the guest’s alcohol related injury; or the injury he may cause a third-party. For example, an inebriated guest crashing his car into that of another driver. Last week the Massachusetts SJC had another opportunity to clarify the law and the social policy upon which the law is based. It again visited the topic of alcohol consumption in the home by a  guest who ultimately becomes intoxicated. The name of the case is Juliano, et al v. Simpson, et al. Here are the facts: a 16-year-old girl was seriously injured when the car in which she was a passenger struck a utility pole. The driver was a 19-year-old who had brought alcohol to a party which they both had attended. The host of the party was another teenager whose parents where not at home. The father of the minor hostess was unaware of the party, and the drinking of alcohol at his home by underage guests. The question presented on appeal was whether the underage host and her absent father were liable for the alcohol related injuries to the two minors in the car. The plaintiffs asserted that, of course, they were liable because they controlled the premises at which the party was held. They should have done something to prevent the drinking or the intoxication or both because they controlled the property that was their home. The Massachusetts Supreme Court rejected the plaintiffs’ theory of liability and refused to find the defendants negligent. The court stated that “… if mere control of premises gave rise to a duty of care for social hosts, the difficulties facing judges and juries charged with ascertaining the limits of liability would be manifold… Moreover, we are reluctant to impose a duty of care in the absence of clear existing social values and customs supporting such a step.”  The Court invited the Legislature to amend the law regarding social host liability. It stated that the Legislature could more readily reflect the political and social consensus necessary before any changes are made to this evolving legal issue. In the meantime, private homes have become the new safe havens for teen drinking; and high school graduation parties are just around the corner.

Punitive Damages (Part 2): Talking Points.

January 23, 2012
  1. Punitive means to punish, to make an example, to change behavior by coercive means.
  2. The tool is money. The goal to make it more expensive for insurance companies and multinational corporations to ignore the law than to obey it.
  3. For example, Massachusetts has a Consumer Protection law that makes it unlawful for an insurance company to unreasonably delay a settlement of a case when liability becomes reasonably clear. Its purpose is to discourage insurers from acting in bad faith when negotiating a settlement of a personal injury case  before the start of a lawsuit.
  4. If a judge or jury, depending on the circumstances, finds an insurance company failed to make a reasonable offer of settlement when liability was reasonably clear then any judgment awarded by a jury can be multiplied 2x or 3x by the trial judge.
  5. This multiplication of damages is used as a punishment for the bad faith  and unreasonable delay of the insurance company, and for its failure to make a reasonable offer of settlement prior to the start of a lawsuit.
  6. Insurance companies are trying to change the rules in the Consumer Protection statutes. They want to reduce the monetary sanctions to such a degree that the monetary threat becomes meaningless.
  7. Money is the only sanction that gets the attention of an insurance company.The monetary sanctions for bad behavior must be substantial to change the behavior of billion dollar insurance companies.
  8. A case awaiting decision in the Massachusetts Supreme Court is Rhodes, et al v. AIG Domestic claims, Inc., et al. ( oral argument was heard by the court on October 6, 2011.) Insurance companies are seeking to eliminate “effective sanctions” that a judge, in his/her discretion, can impose. They advocate the elimination of punitive awards that are 2x or 3x the jury verdict.
  9. insurance companies want the court to substitute a sanction that would be meaningless and inconsequential as a deterrent.
  10. Insurance companies want to limit the sanctions to “the loss of use” of the money that a jury would award. This term is confusing and misleading. It sounds important but it is not an “effective” sanction. Its punishment is similar to fining a millionaire $10 for speeding. It is hardly a deterrent to a person with that economic clout and financial independence.
  11. The proposed new sanction would work as follows: assume a jury awarded as damages $250,000. The lawsuit took 3 years to complete. How much interest would be earned, at market rates, on the $250,000 over 3 years? For example, $250,000 x 3% interest=$7500 x 3 years=$22,500.
  12. Under the present sanction procedures a judge could multiply the $250,000 by 2x or 3x=a punitive damage award of $500,000 or $750,000. Which sanction do you think would change the behavior of a multinational corporation?
  13. The business plan of an insurance company is to earn money (profit) on the investment of premiums and the money its holds in reserve to pay claims in the future. The business model is as follows: the longer the insurer holds the money set aside to pay claims the more it can earn on the return of its investments in stocks and bonds.
  14. The financial expertise of an insurance company is not in its claims’ department; it is just a necessary evil to collect premiums for investment. The investing experts are in the finance and underwriting departments of the company.
  15. Without the present monetary sanctions in the Consumer Protection law there  is no incentive for an insurance company to pay claims promptly and fairly. The incentive is to pay as little as possible for as long as possible. No adjuster gets promoted for reasonably and promptly paying claims with money that could otherwise be used for investment purposes.
  16. The money “held in reserve” to pay future outstanding claims is held in a special reserve account of the company. These funds can be invested while the claims are pending, sometimes for many years.
  17. This money “held in reserve” is called “float”. Even though it is held in reserve to pay future claims, in the interim, it is “free” investment money that an insurance company can use to earn profits by investing in stocks and bonds.
  18. If one understands the investment plan of an insurance company then one can understand why most adjusters say “no” to fair settlements and why they try to “low ball” their settlement offers prior to a case actually being called for trial.
  19. Insurance companies have convinced trial judges and the general public that punitive damages are “unfair” and too draconian  a remedy to correct their occasional and unintentional bad faith behavior. If trial judges truly understood the business plan of insurers for settling cases they would finally realize that their behavior is premeditated. An insurer’s response to a plaintiff’s claim is to keep its money for as long as possible regardless of the merits of any individual claim.
  20. The business plans of insurance companies is based upon contravening the good faith and fair dealing requirements of Consumer Protection laws in each state.
  21. “Effective” deterrence is money that will compel a change in behavior. Those sanctions only exist if an independent trial judge is permitted to use his discretion to award multiple damages in personal injury cases.

by: Arthur F. Licata, www.alicata.com; arthur@alicata.com

Social Host Liability

January 10, 2012

What Is No Longer Sociable Or Permissible In The Consumption of Alcohol At Home

In the dog days of summer 2000, the Massachusetts legislature passed and the Governor signed a small but potent piece of legislation. An Act relative to the sale or delivery of alcoholic beverages or alcohol to a person under 21 years of age. It provides for criminal penalties when a homeowner, a social host, knowingly or intentionally supplies, gives, provides or allows a person under 21 years old to possess alcoholic beverages on property owned or controlled by him.  The likely target scenario is a private party at a home, an apartment or a condominium at which alcohol is available and where adults and minors are present.  The statute also provides criminal penalties for the direct and indirect sale, delivery, service, or furnishing of alcoholic beverages by an adult to a person under 21 years old at a commercial establishment.  In this instance, the likely scenario is a commercial bar, restaurant, or club in which an adult bartender or customer obtains or furnishes a drink to a minor.

It is a good law.  It will save lives.  Its text is one page.  Its ramifications speak volumes:

Whoever makes a sale or delivery of any alcoholic beverage or alcohol to any person under 21 years of age, either for his own use or for the use of his parent or any other person, or whoever, being a patron of an establishment licensed under section 12 or 15, delivers or procures to be delivered in any public room or area of such establishment if licensed under section 12, 15, 19B or 19C or 19D or in any area of such establishment if licensed under said section 15, 19B, 19C or 19D any such beverages or alcohol to or for use by a person who he knows or has reason to believe is under 21 years of age or whoever procures any such beverage or alcohol for a person 21 years of age in any establishment licensed under section 12 or procures any such beverage or alcohol of a person under 21 years of age who is not his child, ward or spouse in any establishment licensed under said section 15, 19B, 19C or 19D or whoever furnishes any such beverage or alcohol for a person under 21 years of age shall be punished by a fine of not more than $2,000 or by imprisonment for not more than one year or both.  For the purpose of this section the word “furnish” shall have the following meaning: to knowingly or intentionally supply, give, or provide to or allow a person under 21 years of age except for the children and grandchildren of the person being charged to possess alcoholic beverages on premises or property owned or controlled by the person charged.”

In the past, it was civilly unlawful to serve or furnish alcohol to a minor in a commercial establishment when its employees knew or should have known that an adult intermediary was purchasing an alcoholic drink for a minor.  (see Tobin v. Norwood Country Club, 422 Mass. 126 (1996) If that same act had taken place at a private residence there was nothing in civil or criminal law to prevent it.

In the recent past, the illegal consumption or possession of alcohol by a minor at a private residence was not a violation of either criminal or civil law-for either the minor or the adult social host.  The only exception was if a social host directly placed an alcoholic beverage into the hands of a minor or adult who was visibly intoxicated.  As a result, private residences became a haven for illegal drinking on the part of minors and adults.  This law partially closes that legal loop-hole.

Now, it is a misdemeanor (a fine not more than $2,000 or imprisonment for not more than 1 year) for a social host to permit a minor to possess alcoholic beverages on his/her property.  A social host is a person who owns or controls property at which alcoholic beverages are being served or are available.  The legislation provides the practical backbone and rationale for social hosts to prevent their children, and the children of their friends and neighbors from possessing or drinking alcoholic beverages at their social gatherings.  It will encourage cooperation among neighbors and parents to prevent their children’s illegal possession or consumption of alcohol at one another’s homes.

The at-home consumption of alcohol by minors is an old problem.  It has become egregious in recent years as families have two parents working or, a single parent working fulltime.  There are typically two situations where problems occur.  In the first, a social host permits minors to possess or drink alcoholic beverages at a social gathering held at her home during, for example, a graduation party.  Adults and minors attend the party.  Alcoholic beverages are provided to the guests by the social host.  In the second instance, a homeowner does not actually give permission or furnish alcoholic beverages to the minors.  The minors bring the alcoholic beverages to the home or social gathering to be consumed there by them.  Under the new law, a social host may be criminally liable merely for “allowing” the minor to possess alcohol in her home.  Ironically, under Massachusetts law as it now stands, a social host may be criminally liable in this situation, but not civilly liable, since she did not directly serve an intoxicated minor.  It is unclear, at the moment, how far the courts will extend the reach of the statute.

This legislation was passed, in part, to answer the following question:  how does society protect its children from the known ravages of intoxication?  The illegal consumption of alcohol by minors causes harm to themselves and to those with whom they come in contact when they are intoxicated.  We know children are particularly susceptible because of their age, inexperience, and lack of judgment.

The new law is certain to generate controversy.  Some parents believe it is safer for their teenage children and their friends to drink at home.  If the minors have a “few” beers under parental supervision at least the children are protected.  The parents know where their children are and feel reassured that they will not drink and drive.  It is the judgment of these parents that such a scenario is preferable to having their children illegally obtaining alcohol somewhere else and running the risk of driving while under the influence of alcohol.

Other parents are outraged at such behavior.  For them there is still the danger that many of these teenagers will drive while intoxicated to and from this “safe” party.  They also see it as undermining their parental authority and at odds with their strongly held beliefs concerning their children’s physical and emotional wellbeing.

Police, on the other hand, will applaud the law.  As a result of the carnage on the highways, many police departments in the Commonwealth have adopted a “zero tolerance” policy concerning the consumption of alcohol by minors.  The police have strictly enforced the laws against drunk driving and drinking by minors in parks and other places of public accommodation.  In the past, the reaction of parents has been mixed.  Some are very supportive.  They encourage the police.  These parents see the problem as a public health issue that affects their children’s lives, and the lives of everyone in the community.

Other parents have been more ambivalent towards the police’s “zero tolerance” policy.  In some respects, these parents see alcohol as a safe drug.  It is not heroin or cocaine.  It does not bring to mind crack houses, emaciated addicts or hypodermic needles.  They view alcohol consumption by teenagers as a right of passage. Many parents would not even list alcohol as the legally regulated drug that it is.  This ambivalence is at the heart of the matter when parents instruct their children about the use and abuse of alcohol.

In addition, some parents see “zero tolerance” enforcement as unnecessary.  They believe that a more “cooperative” spirit should exist in which their children are not arrested but merely held by the police without being “booked” until such time as their parents can come and get them.  Some parents have even become hostile to the whole notion of police enforcement.  They argue that any criminal offense will have severe repercussions concerning their children’s ability to get into a good college.

Will the law stop underage drinking? It is unlikely.  Minors are presently receiving too many mixed messages about alcohol consumption.  At best, parents seem to be saying, do as I say not as I do.  At worst, parents are tacitly condoning their children’s drinking as long as it does not become a behavioral issue at home.  Unfortunately, Americans have a deep cultural bias toward using alcohol as a lubricant for social interaction.  It is advertised as a means by which adults can unwind from the pressures of daily living.  In that sense, adults are modeling to their children their own learned behavior about alcohol consumption.  If children examined these parental assumptions too closely it would make their parents extremely uncomfortable.

This social ambivalence toward alcohol is reflected in the laws of the Commonwealth.  The legal term for a homeowner’s civil liability concerning the  consumption of alcohol on his premises is called “social host” liability.  The Supreme Judicial Court has state that a homeowner can be held liable only when he directly serves an intoxicated guest an alcoholic beverage at a time when the host observes the guest to be visibly intoxicated.  The mere consumption of alcohol at a private residence by an intoxicated guest will not make the host liable for any alcohol related injuries to the guest;  nor will it make the homeowner liable to anyone the guest may injure as a result of the guest’s intoxication.  The social host “immunity” for the most part has been applicable whether the guest was an adult or a minor.  This is one reason why graduation parties have become such a problem for local police departments.  The private home had, in an odd and unintended way, become a safe haven for illegal drinking by minors.  Sometimes there was adult complicity or tacit acceptance of the consumption of alcohol by minors.  At other times, hosts turned a “blind eye” to the minors’ activity.  The behavior was tolerated for a variety of reasons.   Sometimes it was socially too awkward to address the problem; sometimes the hosts could not control the behavior of the minors in attendance.  At other times, the homeowners were unwilling to risk a public confrontation with friends and family.  These parties frequently had “open” or self-service bars in which it was easy for teenagers, as well as adults, to obtain and consume a variety of alcoholic beverages.

This apparent license to countenance activity in the home that is not lawful in public accommodations has been reaffirmed in recent months.  The Supreme Judicial Court decided in the case of Luoni v. Berube, 431 Mass. 729 (2000) that social hosts were not liable to a guest who was injured at a Fourth of July party by fireworks brought to the party.  The fireworks were set-off by other unidentified guests without the hosts’ permission.  The court held:

The defendants did not furnish the fireworks or give permission for the display on their property.  Their status as social hosts carried with it neither the means, nor the legal obligation, to supervise or prevent the discharge of the fireworks by others.  See Ulwick v. DeChristopher 411 Mass., 401, 406 (1991).  Were the rule otherwise, injuries to guests at parties would lead to considerable litigation, with plaintiffs claiming that social hosts should have supervised guests who misused alcohol, not furnished by the hosts, set off fireworks, not provided by the hosts, played dangerous games, engaged in horseplay around swimming pools, and so forth.” Id. at 734.

With the advent of this criminal statute it is now a misdemeanor for adults to permit minors to consume alcohol at home.  There now will be serious consequences if the homeowner does nothing.  He can be fined, and go to jail.  He may also face substantial civil damages for which he may not be insured.  These not insignificant consequences will make homeowners more likely to monitor alcohol consumption at their parties.  They will also make it more likely that social hosts will say something to friends, neighbors and relatives when alcohol is used by minors, or abused by adults.  In a sense, the statute will provide “social cover” for homeowners.  In order to protect themselves from criminal liability they will have to protect their guests.

Due to the new law, there are a myriad of issue the courts and the insurance industry will need to address in the coming months.  What is the effect of this criminal statute on the civil liability of homeowners?  Will the Supreme Judicial Court expand its interpretation of social host liability in light of this criminal statute?  Since a violation of a criminal statute is some evidence of negligence in the courts of the Commonwealth can civil litigants bring successful lawsuits against social hosts without waiting for a decision from the State Supreme court?  Can plaintiffs in a civil suit state a claim upon which relief can be granted sufficient to resist a motion to dismiss or a motion for summary judgment?  Will the current homeowner’s liability insurance policies provide coverage if there is civil liability?  Absent specific terms of exclusion relating to the consumption of alcohol in a homeowner’s insurance policy isn’t there already insurance coverage for any judgment against the homeowner?  If a homeowner’s insurance policy contains language that excludes coverage for any “injury caused by a violation of a penal law or ordinance committed by or with the knowledge or consent of any insured” does the violation of this criminal statute preclude coverage?  Does it make any difference that the statute is used to prove only some evidence of negligence on the part of the homeowner as opposed to negligence per se?

In the collegiate rich environment of metropolitan Boston, the consequences of this legislation are also likely to ripple throughout the academic community.  There has always been a problem on college campuses with underage drinking.  This problem has been compounded because of the age differential of college students during the course of their academic careers.  Freshmen typically enter college when they are 18 years old. During the course of their sophomore and junior years they are likely to be 19 and 20 years old respectively.  It is only when students become seniors that they reach the legal drinking age of 21 years old.  Sometimes they turn 21 only at the end of their senior year.

Of course, the fact that under-age students consume alcohol on and off campus is not new to parents, educators or students.  In light of this legislation, the consequences will be new, and perhaps unanticipated.  Imagine a college senior, a member of the football team, who is attending school on an athletic scholarship.  He takes his freshman girlfriend to a neighborhood bar.  The senior who is 21 years old walks to the bar and buys two glasses of beer.  He brings them back to his table in the crowded bar and gives one of the beers to his date.  The senior has just committed a misdemeanor for which he can be fined and imprisoned.  If he is found guilty he could lose his eligibility to play football, be suspended from college, lose his scholarship, go to jail or all of the above.  If the bartender served the same two students at the bar and did not ask for an ID to check their ages he also committed a misdemeanor.  As a result he could lose his job and the bar could have its license suspended or revoked.  If the two students continue to drink at the bar and became intoxicated, the consequences for the bartender and for the owner of the bar could be substantial.  They could include both criminal penalties and civil damages if the students injure themselves or others due to the intoxication.  Adding insult to injury, since the bar’s employees violated a penal statute by serving the underage freshmen the insurance company for the bar may deny coverage under its policy of insurance due to the violation of a penal statute.

If one moves the locus to an on-campus bar, a fraternity party, a college dorm or an off-campus apartment the opportunities for the statute to be violated by students are obvious and almost endless.  Parents would be surprised to receive a telephone call from a police station informing them that their son was being charged with a crime.  They would be further shocked to learn that they needed to get their son a criminal attorney to represent him at a District Court bench trial for a violation of a misdemeanor that could send him to jail.

The criminal responsibility of a university may also become more acute since the mere possession of alcohol by a minor on property owned or controlled by the one charged is a violation of the statute.  Suppose the state police received a credible tip that there is a university reception at which minors are seen “in possession” of alcoholic beverages.   Could the faculty advisors at the reception, the Dean of Students or the University Trustees be charged with a violation of the statute?  After all, the law holds responsible those who “control” the property.  What happens if the students’ intoxication causes injury to innocent third parties?  Can the violation of the penal statute be introduced in the civil proceedings against the university as some evidence of its negligence in “furnishing” alcohol to a minor?

The courts are likely to provide guidance to these questions in the coming years.  At present, one thing is clear.  The Massachusetts legislature has taken a forceful step against adults who are responsible for furnishing alcohol to minors.

A Winning Attitude: Preparation for Trial

December 22, 2011

A Winning Attitude: Preparation for Trial

Based Upon The Book: The Mental Game of  Baseball by Dorfman and Kuehl

Annotations By Arthur F. Licata

1. The success we achieved in the past is more important than the failures we fear in the future.

2. Confidence: an attitude; the feeling a player has that he will perform well.

3. To go in to a competition with a sense of positive anticipation and well-being.

4. The typical athlete goes all out in competition. That’s easy. The exceptional athlete goes all out to prepare for competition.

5. The most prepared are the most dedicated.

6. Timing-knowing when you are ready.

7. The mind needs a warm-up as well as the body.

8. Create a mental state of mind that produces a calm, quiet confidence.

9. develope a mental peacefulness generated from complete preparation and then the time to quietly relax the mind through meditation.

10. Every “game” is prepared in the same way. Consistency and the repitition of successful physical acts and mental images lead to more success.

11. Develope consistency whether it is in practice , a regular game or the “Super Bowl”.

12. Good habits, practiced over and over again, lead to a winning way.

13. Visualization: the process refers to the ability to recall information in physical forms and images instead of words. A person mentally “sees” and experiences a winning sensation.

14. Use your imagination to mentally see all that you do and all that flows through you to create a winning experience mentally even before it physically happens.

15. Visualization: it programs the nervous system, muscles and fibers of the body.The cleaner the image-the more detail-the greater the effect upon the body’s readiness to perform successfully.

16. Imagination can trigger nerve and muscle response.

17. Your heart, breath, nerves and muscle all get their images from the internal pictures you draw and send to your nervous system.

18. To win you first must win in your “mind’s eye”.

19. Perform mental replays of successful performances.

20. See and Feel yourself performing just the way you want.

21. See yourself winning before you even begin to compete.

22. We realize that some conditions and problems are uncontrollable. But, when we control our reactions to problems and adversity we are controlling their effect upon us. How we act and react will illustrate the degree of our self-control and our mental discipline.

23. Pattern of control: control our awareness; control our thoughts; control our self-talk; control our behavior-mind/body connection. Thoughts influence the body and the body influences one’s thoughts.

24. We need balance. The pressure to perform successfully should not be too high and not too low. The goal is to maintain an even strain. A mental state of equilibrium.

25. Emotional trouble begins and stress and anxiety escalate when a person starts to concentrate on what the opponent might do; or what is happening to himself rather than on what he wants to make happen.

26. Control is lost when a person’s feelings and thoughts focus on consequences, e.g. catastrophic thinking.

27. Bad feelings are hard to control. The baseball pitcher, Tom Seaver, admitted: “You feel it is all hopeless. you want to quit. You have to force yourself to forget and start over as if it never happened.

28. Be intense without anxiety.

29. Negative thinking. Man is what he believes. The immune system and the nervous system are connected. What happens to one affects the other.

30. Breathe: a simple calming and awareness technique.

31. Pressure; antidote – preparation for performance.

32. Challenge and not a danger. Those who enjoy the challenge enjoy it because they interpret it as a challenge and not as a threat!

33. Positive self-talk: a calming and refocusing technique.

34. Fear of failure and imagined consequences create pressure.

35. Some sources of fear: the expectations of others.

36. Positive pressure: being “up” for a game.

37. Negative tension: fear of failure; the expectancy of the inability to perform, e.g. “choking”.

38. Resetting your balance.

39. Getting away from the source of the pressure.

40. Moving and stretching.

41. Visualization.

42. Tensing and relaxing.

43. Talking out loud.

44. Controlled breathing.

45. Really concentrate on the task and then let it go.                                                 Become “in the Zone.” Yogi Bera said: “why think?”

46. Loss of performance can be initiated by  a loss of self-confidence.

47. There is the danger of over-thinking a problem.

48. Practice and preparation create in a person a habituated winning behavior.

49. Muscle memory subconsciously wins before the act of doing is ever begun.

50. Anger: It creates a self-fulfilling behavior of failure. Inner intensity is a characteristic of all great athletes if it is applied to their performance in a positive way. These outstanding athletes do not punish themselves or put their emotions on parade. They examine what has happened during their performance in a rational way. They work at improving or fixing it. They know that anger makes it more likely that they will make another mistake. They will be distracted by what they just did and not focus on what must be done.

51. A mistake can be a learning experience to improve one’s performance. A mistake is not a value judgement on the person and it does not make him a failure because he made a mistake-especially if he learns from his mistakes.

52. The golfer, Jack Nicklaus, believed that instead of becoming emotional in a situation that might provoke another golfer to anger, he simply concentrated more on the task at hand. Athletes that learn to do that perform marvelously under pressure.

53. Pain: The yogis in India learned to enable the mind to exert control over the body’s autonomic nervous system.

54. Mental discipline and pain control. Mantra: I am performing pain-free; I am strong and healthy; I am healing more and more each day; My body is healthy and pain-free; I am healing and nurturing my body.

55. Start with relaxation and then move on to visualization. Feel yourself becoming warm, calm, quiet and relaxed. A relaxed person is a confident person. Confidence and a positive attitude result in the lowering of anxiety and thus lessening interference due to antagonistic muscle tension or the loss of one’s ability to direct and control his undivided attention towards the task at hand.

56. The striving for excellence is the enactment of the player’s idea of winning. The right results come from the right approach.

57. When you know the right way, and you know you want to go that way, there is no acceptable reason to make any other choice.

58. One must learn to accept adversity as part of the game of life; do not magnify the adverse conditions and seek sympathy.

59. Ingredients for winning: set the goals; set your goals and not the goals of “others”. Have the determination and committment to do the work necessary to succeed. Accept responsibility: to be responsible for what one does.

60. Attitude: a positive state of mind.

61. Confidence.

62. Learning: they know enough to learn how.

63. Preparation.

64. Mental discipline.

65. Self-esteem: how one thinks about oneself has an impact upon his thoughts and actions.

66. Learn to win or failure becomes a self-fulfilling prophecy.

67. Winners think of problems not as negative factors or obstacles but as challenges to overcome.

68. Failure is part of learning; just do not repeat past mistakes.

69. Winners are exceptional because they meet life’s challenges-they do and act-with positive thinking.

70. The effective integration of one’s mind and body can maximize one’s potential.

.

your recent blog responses

November 17, 2011

Thank you for kind words.
perhaps some of you can suggest specific legaL topics that interest you or that need explanation.

Arthur F. Licata

Punitive Damages (Part 1): Only Punitive Damages Will Deter Insurer’s Unfair Practices

November 8, 2011

The Supreme Judicial Court heard oral arguments on October 6, 2011 in the case of Rhodes, et al v. AIG Domestic Claims, Inc., et al., SJC-1091. The primary issue for the court was: “Upon finding a willful violation of Chapter 93, did the trial court commit legal error in failing to double the underlying judgment when calculating punitive damages?”

Pursuant to G.L.c. 93A and 176D, punitive damages are awarded against insurance companies in order to punish their unfair and deceptive claims settlement practices and bad-faith settlement offers.

Unless there is a clear rule that imposes severe monetary sanctions against bad-faith insurers, there is no incentive for the insurers to change their bad-faith behavior. It is only the sanction of punitive damages that has changed insurer behavior in the past and will likely do so in the future.

However, trial court judges must have “effective” punitive damages – that is, the multiplication of the jury verdict by two or three times. Limiting punitive damages to the interest lost on the use of money will not deter unfair and deceptive claims settlement practices. The award of interest for a violation of 93A is an inconsequential punishment.

Given the economic disparity between plaintiffs and insurers, the insurers will continue to engage in bad faith because it is cost-effective. The removal of multiple punitive damages will negate the public policy purposes of G.L.c. 93A and 176D.

Insurance companies try to frustrate the trial court’s consideration of punitive damages despite their bad-faith behavior. What seems a series of disjointed and random acts by an insurance defendant is, in fact, a very well-planned strategy. Its actions are not unique to any particular case, but a piece in a larger plan to delay accountability and to drag out the case.

An insurance company plans to pay as little as possible for as long as possible; it is the company’s philosophy of doing business. If seen in that context, the decisions of the insurance companies seem coherent and well-executed. It is their attempt to frustrate the trial court’s application of 93A and 176D. All the while, they claim their actions are in response to unreasonable demands by the plaintiffs and their intransigent attorney.

In order to understand an insurance company’s tactics of delay, one must first understand the role that insurance plays in a lawsuit. Is there insurance to pay for a settlement or jury verdict? How much insurance? Who controls the insurance? Is it controlled by the insurance company or the insured?

Even the particular insurance company covering the loss makes a difference. Each insurance company has its own personality and levels of competence or incompetence. The adjuster’s experience and expertise is very important. Can he recognize a serious case and give it the attention it deserves, or are all his cases handled on an assembly line basis with the operative word being “no.”

For that matter, do the trial courts understand the business plan of insurance companies? If the trial judges do not, then they are missing the vital story between the lines.

An adjuster does not get rewarded for giving out money. The claims department is the tail of the insurance dog. The real business acumen and financial expertise are in the underwriting department. The finance part of the company is where the real business of investing premiums and profiting from this investment activity is carried out. Profit is not earned from merely collecting the premiums.

A claims department is a necessary evil in order to have the opportunity to collect premiums invest the money and hold onto the money for as long as it can in order to maximize the return on investment.

That is why most serious cases settle at the courthouse steps. The insurance company would rather keep the money it has set aside for the particular case (underwriting) and invest the money along with the premiums It will usually consider paying out in a settlement, only after earning as much as it can from its investments in stocks and bonds.

A succinct explanation of investment decisions and practices was discussed by Warren Buffett, chairman of Berkshire Hathaway, which is one of the biggest companies in the country and owns some of the largest and most financially successful insurance companies in the world.

This is what Buffett wrote in his 2009 annual letter to shareholders:

“Insurers receive premiums up front and pay claims later. In extreme cases, such as those arising from certain workers’ compensation accidents, payments can stretch over decades. This collect now, pay later model leaves us holding large sums – money we call ‘float’ – that will eventually go to others.

“Meanwhile, we get to invest this float for Berkshire’s benefit. Though individual policies and claims come and go, the amount of float we hold remains remarkably stable in relation to premium volume. Consequently, as our business grows, so does our float.

“If premiums exceed the total of expenses and eventual losses, we register an underwriting profit that adds to the investment income produced by the float. This combination allows us to enjoy the use of free money – and better yet, get paid for holding it.”

No wonder adjusters are encouraged to just say no. The strategy is to keep the money as long as they can, invest it, and simultaneously use time and delay as a bludgeon to wear down the resolve of the plaintiff and his attorney. There is a very clever method to their madness.

Money is the only sanction that gets the attention of an insurance company. Casualty insurance companies and their claims adjusters are not encouraged to fairly, justly and reasonably settle meritorious accident claims. If they did, there would be less float to invest and less investment income to earn.

Punitive damages, comprising two times or three times a jury award, are the only effective way to deter the bad-faith behavior of insurers in personal injury cases.

Arthur F. Licata

Car Insurance; Insurance Coverage; Uninsured,Underinsured

March 16, 2010

Do you assume that if your car is  hit by another car the other driver has insurance?

Don’t. Your assumption may be wrong.  More and more people are driving without insurance or driving with minimum insurance coverage.

If you or your loved-ones get hurt in a car accident and the other driver has no insurance then your healthcare insurance covers the medical costs. Who pays for your lost wages and pain and suffering.  No one and most people do not have sufficient assets for you to attach in order to satisfy a jury award.

You also may be driving without medical insurance .

There is a relatively inexpensive way for you to be adequately insured from the carelessness and fiscal neglect of other drivers.

Uninsurance and Underinsurance.

You can buy from the own insurance company that covers your car an optional coverage that most brokers do not discuss:

a. uninsurance: you pay a little extra premium per year and buy insurance if you are hurt in an accident and the other driver has no insurance.

b. underinsurance: you pay a little extra premium per year and buy insurance if you are hurt in an accident and the other driver does not have sufficient insurance to pay for all your damages.

These premiums are modest and you will no longer be at the mercy of strangers to guarantee there is enough insurance to pay for your medical expenses, lost wages, pain and suffering, and disability and those of your passengers.

Arthur F. Licata