Articles Posted in Personal Injury

The main goal of personal injury lawsuit is to make people whole after an injury caused someone’s negligence. This compensation is usually broken down into three parts: medical expenses, lost earning capacity (lost wages), and pain & suffering. However, many people don’t realize that there’s a lot more to proving a case in front of a jury.

If you suffered harm due to the action, or failure to act, by another person, group of persons, or business, you may have a personal injury lawsuit. In law books, the technical term is commonly known as a “cause of action.” A cause of action is a set of facts under which one person sues another person, business, or organization.

A cause of action can arise in a variety of ways. First, it can occur due to either an act or even a failure to act.  This means that some cases happen because someone didn’t do what they were supposed to do. Others arise because someone did something improperly. A cause of action can also arise on account of a breach of duty, or a violation of the law. This means that there is a law or other regulation that requires someone to act a certain way, and then that person or entity doesn’t meet those requirements. Obviously, the circumstances of the facts of your case will have an impact on your cause of action.

Massachusetts has been called many things throughout history, but at the top of that list should be “consumer friendly.” This is true even about our laws. They try to protect consumers instead of big businesses.

One example is a section of the Massachusetts’ Consumer Protection Act, specifically Section 93a, that affords broad protections to consumers from merchants engaging in “unfair and deceptive” practices. This includes sales and leases, debt collection, many contracts, foreclosure, landlord-tenant law, and even bad faith insurance claims.

If you have been subject to unfair business practices, the easiest course of action would be to simply come to an agreement with the business with which you have a conflict. However, if all disputes were that simple, there would be no need for laws protecting the rights of consumers. If you are unable to resolve a complaint with a merchant, i.e., an individual or business, informally, then you may decide to take legal action. 

We have all become more and more dependent on our cell phones for not only communication or entertainment, but also as an important tool for making our lives easier. Trying to get to Fenway Park from Lowell? Our phones can give us step-by-step directions, giving us the fastest route, even with traffic. We can also use our phones to reserve a parking space for when we get there. Alternatively, we can buy a train ticket on our phone and take public transportation to get there.

For all the positive our phones provide, they can also distract us from what’s going on around us. When someone is looking at their phone at the dinner table, it can be very rude. But, its unlikely that someone can get hurt. Unfortunately, that’s not necessarily true if someone is distracted by their cell phones when they’re behind the wheel.

According to the National Safety Council, cell phone use by drivers causes more than 1.6 million car crashes across the country each year. While many people associate these injuries with texting, there are many ways that people can get distracted by a cell phone. This includes everything from browsing Instagram to trying to make a phone call. However someone is using their phone, when it takes their attention from the road, it makes it more dangerous for everyone else.

The Commonwealth’s top court, the Supreme Judicial Court, gave landlords a bit of a break recently in Goreham v. Martins, 485 Mass. 54, (2020).  The decision involves the “warranty of habitability” and the ways for tenants to recover for injuries sustained on their rented premises, including cases for people who slip and fall on snow and ice.

By way of background, an injured person has a claim “in tort”, that is, that someone’s negligence caused the injury.  There are circumstances, however, when the remedy is contract or semi-contract based.  For example, there is a “warranty of merchantability” attached to products.  They have to be fit for the purpose intended.  A table saw that does not have a guard, for example, can be found not to have met the warranty of merchantability, and resultant injuries can be compensable under a breach of warranty theory.  

Similarly, the warranty of habitability assures that a rented property is fit for human occupation.  If a ceiling falls on your head, you have a claim for breach of the warranty of habitability even though the landlord lacked notice of the hazard thereby making a negligence claim very difficult.

One of the worst situations that happens in our industry is when someone is injured, but the responsible party does not have insurance. Common examples include someone driving a stolen car and a dog owner not having homeowners or renters insurance.

Of course, you can still sue someone without insurance. But if that person does not have money to pay for your injuries, there is sometimes not much you can do.

However, all is not lost. In many circumstances, there are alternative ways to recover for your injuries. Whether it’s uninsured benefits, making claims with state agencies, or finding creative ways to make insurance apply, many times it is possible to get compensation for your injuries.

If someone causes an injury but then dies of unrelated causes, what happens to your personal injury claim? Many people don’t want to have to file a lawsuit against someone who has passed away and add another burden to his/her loved ones.

Luckily in Massachusetts, the law allows you to pursue any available insurance without having to bring a claim directly against the person who caused your injuries. This allows you to not have to deal with the estate of the potential defendant at all, and instead focus on the insurance coverage.

The only downside to this is that you’ll be limited to recovering whatever amount of insurance the person had. So, in a case with catastrophic injuries and limited insurance, this might not be the best option.

Attorney Michael Molloy was recently talking to an 8th grade classroom when one of the students asked an interesting question: what if someone is hurt, but then passes away from unrelated circumstances? The answer turned out to be simple.

A case is treated the same as any other asset someone leaves when they pass away. It’s transferred to the person’s estate for the benefit of his/her heirs. Just as a house, car, or bank account get transferred to beneficiaries, an accident case gets transferred in the same way.

As with anything in life, there are many complicating factors that must be considered. Most importantly, if your loved one who passed away had an injury claim, it’s important to reach out to his/her lawyer as soon as possible. The lawyer will need to discuss the process of moving the case forward, and decisions will have to be made, as almost nothing can be done until the family sets up an estate.

One of the first things people do after being in an accident is to call their insurance company. The company will ask some basic information about how it happened and who was involved. Eventually, the insurance company might ask if you will agree to a recorded statement.

A recorded statement is just what you think it is: you tell the insurance company what happened while it’s being recorded. These are almost always done over the phone. While they may seem like a harmless way to get the insurance company the information it needs to quickly resolve your claim, they can be hidden traps for the unwary.

The first thing to remember is that you aren’t required to give a recorded statement. The insurance company cannot force you to give a recorded statement.

When you’re injured and pursuing a claim, it can come as a surprise that the insurance company is requesting your medical records from before the injury. Why do they need to go through your medical history?

In most cases, they don’t. Often, insurance companies are just fishing for an excuse to say that they don’t have to pay for your injuries. They’ll scour your medical records to look for anything that they call a “preexisting condition,” even if it has nothing to do with your injury.

Sometimes, it is reasonable for an insurer to request prior medical records. For example, if someone has knee surgery a few weeks before a car accident, the accident can re-injure the same knee. In that case, it’s reasonable for an insurance company to get the records of the surgery to make sure that everything went as planned.

Proving a case is like building a house. The foundation is built, and then the walls, and then the roof. If you go in the wrong order, the house is not going to be very sturdy. Proving an injury case has the same complexity. One of the building blocks in many cases are expert witnesses. They’re used to fill in the gaps that prove an element of the case. For example: an engineer can explain what makes a product defective. Similarly, a driving instructors can explain what the rules of the road are. Other times, a doctor is used to explain how someone’s injury is likely to be permanent, and how that will affect him/her on a day to day basis.

Regardless of the type of expert, a lawyer’s job is to make sure that experts are used properly. Experts can be expensive, so its important to pick the right lawyer who knows when to use them, and also when not to use them. At Marcotte Law Firm, we have the experience of having hired hundreds of experts. We know when to hire them, and we know when to deploy them.

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