HARRIS Associates - Westborough, MA
HARRIS Associates - Westborough, MA


General Litigation

Look before you leap

Prompt discovery efforts pay off for defense.

In this case we represented an elderly gentleman who was on his way home from a family gathering.  It was just getting dark when the sky opened up with a torrential down pour.  In a hurry to cross a four lane road way, the middle aged plaintiff decided to cross outside of the available sidewalk in front of a sport utility vehicle that had stopped and waived him to go.  Our client, who was proceeding in the second lane of travel, struck the plaintiff as he emerged from behind the SUV causing serious injury.  The plaintiff testified he stopped and looked for oncoming traffic before entering the second travel lane and determined he had sufficient time and distance to cross.  He alleged the defendant did not see him because he failed to keep a proper lookout.  Several witnesses identified themselves at the scene and confirmed our client’s report that he did not see the plaintiff because he ran out from behind the SUV directly into his path of travel.  With early and aggressive discovery efforts, we were able to obtain statements from each of the eyewitnesses and secure their testimony for trial.  The jury found no negligence on the part of our client.

*In Massachusetts, a comparative negligence state, a plaintiff is barred from recovery where their own negligence is found to exceed that of the defendant.

Liability clear; causation not

Thorough investigation reveals subsequent accident was the cause of the plaintiff’s ongoing complaints.

In this case the plaintiff was a passenger in motor vehicle operated by his high school friend when our client had the misfortune of skidding on sand and striking their car in the rear.  Plaintiff alleged serious and debilitating injury to his neck and low back as a result of the accident.  Our investigation revealed that four months after this accident, the plaintiff was involved in a roll over accident.  He was back boarded by emergency personnel and transported to a local medical facility.  Plaintiff’s orthopedic expert testified he suffered a 15% permanent impairment as a result of this accident.  Following several hours of deliberation, the jury determined the plaintiff suffered no injury in this accident and returned a verdict in favor of the defendant.

*In a negligence action the plaintiff bears the burden of showing a causal connection between his injury and the accident.

Got negligence?

Early assessment of the evidence results in summary judgment for our client.

This case involved a young mother who was driving the family van through a residential neighborhood when the plaintiff shot out from a cross street into her path of travel.
Plaintiff, a middle aged legal secretary, suffered serious and debilitating injury.  Her medical bills alone were in the hundreds of thousands of dollars presenting a risk of excess exposure to this young mother of three.  Plaintiff claimed she stopped and looked for oncoming traffic before proceeding to cross.  She testified she observed the defendant approaching from a considerable distance and determined she had enough time to cross safely.  Plaintiff alleged the accident occurred because the defendant was speeding, but offered no opinion as to the speed of the defendant’s approaching vehicle.  Plaintiff attempted to use the resulting damage to the vehicles, which was significant, as evidence of the defendant’s speed, but failed to offer any expert opinion in support of this conclusion.  A judge of the Superior Court concluded this plaintiff failed to come forward evidence sufficient to allow the case to be presented to a jury and entered summary judgment in favor of our client.

*Summary judgment is not usually allowed in negligence cases because the question of one’s negligence is typically one of fact for the jury to decide.  We were able to bring this case to an early conclusion for our client because our initial assessment of the case showed the claim to be without merit.


When in doubt, get it out

Evidence of an insurer’s prompt effort to settle the claim defeats allegations of bad faith.

Massachusetts law imposes significant obligations on insurers to effectuate prompt, fair and equitable settlements of claims in cases where liability has become reasonably clear. The allegation in this case was that the insurer failed to make a prompt and fair offer of settlement forcing the injured party to bring a lawsuit in order to obtain compensation.  Our bold presentation of the evidence which focused on the insurer’s prompt effort to settle the claim defeated the allegations against our client.

*In Massachusetts insurers have a statutory obligation to effectuate prompt, fair and equitable settlements of claims in cases where liability has become reasonably clear.

No bad faith found here

Insurer not obligated to make its best offer, but a fair and reasonable offer.

This case was tried without a jury to a Judge sitting in the Superior Court.  The claim against the insurer was that they failed to extend their best offer to settle the case.  The Court concluded it was reasonable for the company not to increase its offer in the circumstances.  The court found no legal support for the proposition of the plaintiff that an insurer must offer the highest figure in a range of settlement authorization. On the contrary, the court reasoned, where liability is clear, but there is a good faith dispute as to the extent of the damages, an insurer, while it is obligated to make what it believes to be a reasonable offer, is not obligated to immediately proffer its final or best offer.

Where is your expert?

No bad faith where insurer relies on expert opinion.

In this case we represented an auto insurer who, when presented with a claim for bodily injury, requested an independent medical examination of the alleged injured party.  The examining physician found the plaintiff’s ongoing complaints were not related to the car accident, but rather to his pre existing degenerative disc disease.  The plaintiff, unhappy with the result in the underlying claim, sued the insurer for bad faith settlement practices.  Following several days of trial the court found the insurer had multiple reasons to be skeptical of the plaintiff’s damage claim, that the extent of the plaintiff’s alleged injuries were not reasonably clear, and the insurer’s offers to settle the case were not in bad faith.

Read your policy

Failure to cooperate in the investigation of a claim defeats coverage under the policy.

In this case we represented a property and casualty insurer whose efforts to investigate what appeared to be fraudulent claims were hampered by the plaintiffs’ failure to cooperate.  Following several days of trial, the Court upheld the company’s position that failure to cooperate in the investigation of a claim resulted in a forfeiture of coverage under the policy thereby relieving the insurer of its liability to pay.

* Look for HARRIS Associates best practices to win the war on fraud; coming soon.


Renewal of contracts with key employees is key!

Failure to update employment contract renders provisions unenforceable.

We represent a small technology company who hired a key employee from an alleged competitor.  The prior employer sought to enforce an employment contract which contained a restrictive covenant prohibiting the employee from working for a competing company.  The prior employer failed to update or renew the contract which had been signed when the employee was first hired many years before.  When the court declined to enjoin the key employee from working in his chosen field the prior employer dismissed his lawsuit.

*Each time an employee’s employment relationship with the employer changes materially such that they have entered into a new employment relationship a new restrictive covenant must be signed.  Lycos, Inc. v. Lincoln Jackson, et al, 2004MBAR-431.


Watch out for that counterclaim

Failure to consider the potential for counterclaim results in dismissal of suit.

In this case we represented a residential real estate developer who entered into a contract with a general contractor to renovate a single family residence.  In the course of the construction several disputes arose with regard to the quality and timeliness of the work product.  The developer declined to pay all amounts under the contract.  The general contractor sued the developer and attempted to attach the property.  We drafted a powerful counterclaim which sought offsets for damage incurred by the developer for faulty, incomplete and late performance under the contract.  Subsequently, the general contractor dismissed his claim that he was owed money under the contract.