Full Case Name:

Withheld

Court:

United States District Court, Boston, MA

Case Number:

Judge/Mediator/Arbitrator:

Mediator: Paul Finn, Esq., Commonwealth Mediation

Case Summary:

The plaintiff was a 62 year old divorced woman who lived with and cared for her 91 year old mother. The plaintiff owned and operated a chain of dry cleaning stores. At approximately 10 a.m. on a clear, dry and sunny summer morning the plaintiff was traveling east on a country road. She brought her car to a gradual stop at a four way intersection with her left blinker on to make a left hand turn. The defendant truck driver was operating a 2004 Volvo Tractor Trailer. The Tractor Trailer was owned and operated by a Canadian trucking company. The defendant took his eyes off the road and crashed into the rear of the plaintiff's car at a high rate of speed. He claimed he never saw the brake lights or the blinker.

The plaintiff's injuries included a ten inch laceration on her right ankle with a portion of the fractured leg protruding through the laceration. X-rays confirmed multiple fractures of the tibia and fibula. The plaintiff underwent surgery for her grade three open tibial plafond fracture which required metal plates, screws, wires and an external fixator. After surgery the plaintiff developed a significant infection.

Under Massachusetts Law, the owner of a motor vehicle involved in an accident causing personal injuries is required to disclose the policy limits without the necessity of a lawsuit. The Canadian insurer refused to disclose the policy limits and asserted that "privacy" laws prohibited the disclosure of the policy limits. Plaintiff retained counsel in Canada who determined that there are no past or current privacy laws in Canada prohibiting disclosure of an insured's policy limits.

Significant Legal Issues or Holdings:

•  Trucking company refused to produce key documents from driver’s personnel file based on a claim that documents were “private” and “confidential.”  Plaintiff filed motion to compel documents.  Privacy or confidentially does not equate to privilege.  See Stewart v. Mitchell Transport, 2002 WL 1558210 (D.Kan).  (In action for negligence, a request for driver’s complete personnel file is relevant on its face.)  The company records which were produced revealed that the driver had been hired in July 2003.  In September 2003 employer writes “once again” according to review of logbooks you are in violation of safety code “high speed averages on a regular basis.”  October 2003 – Audit Findings – high speed averages on a fairly regular basis.  April 2004 – Audit Findings – “high speed averages.”  May 2004 – Audit Findings – “high speed averages.”  Finally, according to logbooks, defendant driver had been on the road 11.5 hours the day before crashing into the plaintiff’s car.
• Trucking company also refused to produce statements made by driver in connection with trucking company investigation. Plaintiff filed motion to compel. If in connection with an accident, a business entity in the ordinary course of business conducts an investigation for its own purposes, the resulting investigative report is producible in civil pretrial discovery. Brinks Mfg. v. Nat'l Presto, Inc.., 709 F2d 1109 (7th Cir. 1983). Similarly, an insurance company has a duty, in the ordinary course of business to investigate and evaluate claims. As a result, claim files created in the ordinary course of business are generally not entitled to work product protection. Pete Rinaldi's Fast Foods, Inc. v. Great American Insurance Co., 123 FRD 198, 201 (M.D.N.C. 1988)

The Court did not rule on the motions because the case settled at mediation.

Plaintiff Characteristics:  age, work history, earnings, family, etc.

Plaintiff was 62 years old and she owned a chain of dry cleaning stores.

Liability Facts:

The Plaintiff came to a gradual stop at an intersection. The truck driver was not paying attention and he crashed into the plaintiff's car. Driver could not recall what happened. He simply recalls that he momentarily lost sight of the car. Driver admitted to "operating to endanger by negligence."

Describe Physical Injuries by Plaintiff:

Multiple fractures of the right leg (tibia and fibula) with complications after surgery.

Describe Special Damages by Plaintiff:

Plaintiff Experts & Specialty (Name/Address/Phone)

Gerard D. Murphy, Accident Reconstruction Expert Accident Reconstruction, Inc. 45 Eastern Point Drive, Shrewsbury, MA 01545

(508) 791-2870

Defense Experts & Specialty (Name/Address/Phone)

Comments:  (Please add additional page(s) if necessary)

Plaintiff noticed depositions of Canadian company and Canadian employees to be held in Boston. Defendant maintained that depositions should be held in Canada. See Kasper v. Cooper Canada Limited, 120 FRD 58 (N.D. Ill. 1988). Cooper Canada Limited had its principal place of business in Toronto. Cooper objected to the depositions of two Cooper officers in Chicago, Illinois (the forum state). The Court ruled that the depositions should be held in Chicago. In addition to the fact that Cooper had substantial business interests in the United States, the Court balanced the equities and relied on the facts that (1) both parties had retained Chicago attorneys to litigate the case; (2) the plaintiff was an individual financing the litigation on a contingent fee arrangement and (3) documents for the deposition had already been produced to attorneys in Chicago.

In this case the Court did not rule on the issue because case settled at mediation.

As submitting plaintiff’s attorney, I certify that the facts contained herein are true and accurate and hereby give permission to APITLAmerica® to publish this account of this case in any place they so choose, including, but not limited to, at APITLAmerica® CLEs, in any APITLAmerica® literature, on the APITLAmerica® website, in the APITLAmerica® newsletter, and in any books, articles, Powerpoints, presentations, and in any other means or method of publication or transmission in the total discretion of APITLAmerica®.  Furthermore, by my signature below, I also hereby release and provide to APITLAmerica® any copyrights to the information contained in this case report, and warrant that no other copyrights have been given to any other entity for this material.

Submitted by:

Plaintiff Attorney:

Edward C. Bassett, Jr., Esq., Mirick O'Connell

Phone:                                                   Fax:

(508) 898-1501                                            (508) 983-6233

Address:

1700 West Park Drive

Email Address:

ecbassett@modl.com

City/State/Zip

Westborough, MA 01581-3941

SIGNATURE: