A quarterly summary and brief analysis of significant decisions issued by the Massachusetts Superior Court Business Litigation Session. A service of O’Connor, Carnathan and Mack LLC.		  

December
2005

Volume 2
Number 3
Page 5
 

Summarizing opinions from July 1, 2005 through
Sept. 30, 2005


The Court Slashes an Attorneys’ Fees Application By About Two-Thirds
 

 
 


 


 


 

 






 
     

O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Giuliano v. Piantkowski, 20 Mass. L. Rep. 179, 2005 Mass. Super. LEXIS 455
(Aug. 16, 2005) (Botsford, J.).
     

After six years of litigation relating to a racing facility in Plainville, the Court held in favor of the Defendants on Plaintiff’s breach of lease claims and their counterclaims under Chapter 93A. This decision addressed, among other things, two groups of defendants’ (prevailing counterclaimants) application for attorneys’ fees and costs. One of the fee applications was that of a very large Boston firm, and sought more than $4.6 million in attorneys’ fees and costs. The other application was submitted by a prestigious medium size firm and sought approximately $750,000 in fees and costs.

The Court held that the defendants were entitled to attorneys’ fees, but awarded only about a third of the sum requested
 




 

 

 


 

 
by the large firm. In contrast, the Court awarded about 85% of the fees sought by the medium sized firm. Although finding that the case was complicated, contentious and hard-fought, the Court found that the number of attorneys and hours devoted to the case by the large firm was “overkill.” For example, the Court noted that at least four attorneys, and sometimes more, were present at trial (the Court awarded fees only for the three lead trial attorneys). The Court also appeared to dramatically reduce the hourly rate of the attorneys at the mega-firm. The mega-firm’s application was clearly affected by the more reasonable fee application (in terms of hours and rates) of counsel to the co-defendants.

 


 


 



 

 

 





 
 
     
     


The Court Sends a Message to the SJC in an Auto Insurance Case
 
 

 


 

 

 

 


 


 

Massachusetts Insurers Insolvency Fund v. Premier Insurance Company,
20 Mass. L. Rep. 45, 2005 Mass. Super. LEXIS 447 (Aug. 29, 2005) (van Gestel, J.).
     

The Court was asked to determine whether automobile insurers have an obligation to pay uninsured motorist (“UM”) benefits where the tortfeasor was a municipality and the UM provision in the policy states that “we do not consider an auto owned by a governmental unit to be an uninsured auto.” The municipal-ities were insured by Legion Insurance Company, which is insolvent. Under the standard Massachusetts auto policy, which terms are governed by G.L. c. 175, § 113L, an auto insured by a company that becomes insolvent is an uninsured auto. The policy also contains the above quoted language, which arguably carved out of the definition of uninsured autos an auto owned by a governmental unit.

 

 


 

 

 

 

 

The Court held that that the provision in the policy conflicted with a recent SJC decision – reversing Judge van Gestel’s interpretation of the UM provision – in which the Court instructed that for purposes of determining UM coverage it is the vehicle, not the operator, that is relevant. The Court held that the argument advanced by Premier would require the Court to consider the owner of vehicle, rather than the vehicle itself. Therefore, the Court refused to enforce the exclusionary language in the policy and held that there was UM coverage. The Court plainly viewed the result as illogical, but one that was mandated by the recent SJC precedent (with which he disagreed).

 

 

 

 

 

 

 

 


 
 
     
     
 


 Counsel Must Remove One of His Hats
 
 


 

 


 

SRU Biosystems v. Hobbs, 19 Mass. L. Rep. 610, 2005 Mass. Super. LEXIS 361
(August 2, 2005) (van Gestel, J.).
     

The Court held that an attorney who served as the defendant’s patent counsel in a field similar to the one at issue in the litigation could not simultaneously serve as trial counsel. The Court, therefore, held that the defendant either needed to retain

 

 

 
new trial counsel (from within or outside present counsel’s firm) or present trial counsel had to agree not to prosecute patents in the particular field for a reasonable period (eighteen months) following the trial.
 

 

 



 
 
     
     


The Lineman’s Statute Pre-Empted by OSHA

 
 

 

 


 


 

Massachusetts Electric Company v. Reilly, 19 Mass. L. Rep. 683, 2005 Mass.
Super. LEXIS 483 (Aug. 29, 2005) (Gants, J.).
     
The Court in this case held that G.L. c. 149, § 129C, the so-called Linemen’s Statute, was unconstitutional because the Federal Occupational Safety and Health Act (OSHA) preempted it. The Linemen’s Statute prohibited electric companies from permitting a lineman to work on live wires unless assisted by another lineman.

 


 

 
Relying on U.S. Supreme Court precedent, the Court held that OSHA preempted the state law because the state law directly, substantially and specifically regulated occupational safety and health. The fact that the statute also served a dual purpose – to create additional jobs in the electric industry – did not save the statute from pre-emption.

 

 

 

 


 
 
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