[Massachusetts Law Reporter] January 19, 1998
Volume 7, No. 26
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HIGHLIGHTS OF THE OPINIONS REPORTED IN THIS ISSUE
An index, table of cases and table of statutes for the cases reported this week are presented at the back of this issue. Cumulative indexes and tables for the current volume are presented bimonthly. The latest cumulative indexes and tables for this volume are at the back of Issue No. 24. Cumulative indexes and tables for all opinions reported in Volumes 1 through 6 are at the back of each of those volumes, Issues No. 32.
Constitutional Law  [TOP]
Application of the Anti-SLAPP Suit Statute to Attorneys. In Office One, Inc. v. Lopez (Cowin, J.) the court reconsidered and altered a portion of an opinion reported at 7 MASS. L. RPTR. No. 10, 219 (September 15, 1997), holding here that the protection provided by the Anti-SLAPP Act for claims arising out of first amendment petitioning activity, M.G.L.c. 231, §59H, extends to claims against an attorney for petitioning activity conducted on behalf of a client. The previous opinion had held that the protection afforded by the Act does not apply to an attorney not engaged in petitioning activity for the attorney's own benefit. The new opinion also holds that it is not a violation of Chapter 93A for an attorney to assist a client in concealing from an adverse party notice of a decision by a government agency until after that party's opportunity for taking an appeal had lapsed, because Chapter 93A does not apply to claims based on an attorney's representation of an opposing party. In a separate opinion in the same matter the court made some technical modifications to the order to clarify the parties to whom the order was directed. 585, 588
Attorneys Fees in an Action Dismissed Under the Anti-SLAPP Suit Statute. In another opinion entered in the same case in which the two opinions discussed in the immediately preceding digest were entered, the court awarded attorneys fees under the Anti-SLAPP Act over the plaintiff's objections that (1) charges by an original attorney who referred the matter to litigation counsel were duplicative; (2) time spent by the first litigation counsel and replacement counsel were also duplicative; (3) only one rather than two attorneys should have attended court hearings; (4) hourly rates of $335 per hour for a partner, $230 for an eighth-year associate and $160 for a third-year associate were excessive; (5) charges for preparing a motion that was not filed were inappropriate; and (6) attendance at hearings on motions not related to the attorney's particular client were inappropriate. Office One, Inc. v. Lopez (Cowin, J.). This opinion also holds that attorneys fees may be recovered by a party whose defense was provided by an insurer, even though the defendant did not incur any personal out-of-pocket expenses; and those fees may include charges for reporting on the status of the matter to the defendant's insurer but not charges for asserting the defendant's right to coverage against the insurer. 589
Double Jeopardy. The double jeopardy clause of the Fifth Amendment does not prevent the state from prosecuting a prisoner for conduct for which an administrative sanction has already been imposed unless that punishment was so extreme as to be tantamount to a criminal penalty. Commonwealth v. Dempsey (Connolly, J.). 601
Corporations  [TOP]
Shareholder Derivative Actions. The rule established by the SJC in Houle v. Low—that in a shareholder derivative suit the court must insure that the special committee appointed by the board reached its conclusion to take no action on the plaintiff's demands only after a thorough investigation, before the court applies the business judgment rule to dismiss the action—applies to public as well as closely held corporations. However, the plaintiff's right to have that preliminary determination made only arises if the derivative complaint contains specific allegations which, if proven, would demonstrate that the committee investigation had been inadequate. The court dismissed the derivative action for failure to provide sufficiently specific allegations of impropriety by the investigating committee. Harhen v. Brown (van Gestel, J.). The opinion also holds that the requirement that a demand for action first be presented to the corporation requires demand on the shareholders as well as the board of directors if the board fails to conduct an investigation satisfactory to the plaintiff. 598
Criminal Law and Procedure  [TOP]
Sanctions for Lost or Destroyed Evidence. A proper sanction for negligent failure by the Commonwealth to preserve exculpatory evidence is to allow the defendant to raise the failure to preserve at trial and to limit the Commonwealth's ability to explain or excuse that failure. The sanction of dismissal is reserved for cases of intentional misconduct or irremediable prejudice to the defendant. Commonwealth v. Yeager (Cowin, J.). The opinion also holds that the Commonwealth's failure to disclose exculpatory evidence is not sanctionable if the defendant ultimately learns of the evidence in time to use it. 580
Employment Law  [TOP]
Chapter 151B. A plaintiff suing an employer for discrimination under Chapter 151B cannot name as an additional defendant a co-employee who is not a member of upper management and who was not named as a respondent in the MCAD complaint, even if the MCAD complaint described the co-employee's conduct and that employee was generally aware of the plaintiff's allegations, because all parties to Chapter 151B civil actions must have an opportunity to participate in the MCAD conciliatory process. Albee v. New England Medical Center Hospitals, Inc. (Fabricant, J.). The opinion also holds that in considering a motion for summary judgment the court is not limited to the facts alleged in the MCAD complaint because MCAD complaints require only a statement of the general nature and not the details of the discriminatory conduct alleged; and the $20,000 limit on liability provided to charitable organizations by M.G.L.c. 231, §85K does not apply to damages awarded in Chapter 151B cases. 593
Evidence  [TOP]
Sanctions for Lost or Destroyed Evidence. See the discussion above under "Criminal Law and Procedure" of Commonwealth v. Yeager (Cowin, J.) holding that a proper sanction for negligent failure by the Commonwealth to preserve exculpatory evidence is to allow the defendant to raise the failure to preserve at trial and to limit the Commonwealth's ability to explain or excuse that failure, rather than dismissal of the charges. 580
Insurance  [TOP]
Insurance Coverage of Off-the-road Vehicles. The coverage available under a homeowner's policy for injury arising out of the use of an all-terrain vehicle "on an insured location" applies only if the vehicle is on the insured location at the time of the accident. The insured, seeking coverage for injuries incurred while operating the vehicle on a public road, unsuccessfully argued that there was coverage for injuries for any off-the-road vehicle normally stored on the insured's property regardless of the location of the accident. DaCosta v. Vermont Mutual Insurance Co. (Hely, J.). For an opinion supporting the insured's argument see Commerce Insurance v. Bairos, 1 MASS. L. RPTR. No. 1, 7 (September 13, 1993) (homeowners policy covering a dirt bike "on the insured's location" applies to injuries incurred in an off-premises accident). 579
Law of Lawyering  [TOP]
Application of the Anti-SLAPP Suit Statute to Attorneys. In Office One, Inc. v. Lopez (Cowin, J.), also discussed above under "Constitutional Law," the court reconsidered and altered a portion of an opinion reported at 7 MASS. L. RPTR. No. 10, 219 (September 15, 1997), holding here that the protection provided by the Anti-SLAPP Act for claims arising out of first amendment petitioning activity, M.G.L.c. 231, §59H, extends to claims against an attorney for petitioning activity conducted on behalf of a client. The previous opinion had held that the protection afforded by the Act does not apply to an attorney not engaged in petitioning activity for the attorney's own benefit. The new opinion also holds that it is not a violation of Chapter 93A for an attorney to assist a client in concealing from an adverse party notice of a decision by a government agency until after that party's opportunity for taking an appeal had lapsed, because Chapter 93A does not apply to claims based on an attorney's representation of an opposing party. In a separate opinion in the same matter the court makes some technical modifications to its order to clarify the parties to whom the order was directed. 585, 588
Torts  [TOP]
Mass. Ski Statute. The Mass. Ski Statute, which immunizes ski area operators from liability for injuries from risks inherent to skiing, does not apply to an operator's vicarious liability for negligent acts by an employee. Therefore the Statute does not bar a claim of negligence against a ski instructor for injuries caused by permitting a seven-year-old student to participate in a training session with an older, more skilled group. Sanchez-Souquet v. Jiminy Peak, Inc. (Fremont-Smith, J.). 583