Boston Injury Lawyer Blog

Having practiced law in the courts of Massachusetts since 1985, I feel that I have some perspective on the trends. Unfortunately, it's not good for victims of personal injury in Massachusetts. In a recent Massachusetts Lawyer's Weekly article some statistics were pointed out.

The statistics show a statewide success rate of 26% in the 700 personal injury cases tried to a verdict throughout the Commonwealth. The average masks the wide variances, which include very grim numbers for Norfolk County personal injuries. For example, in 2009, only 5 out of 35 personal injury trials were plaintiff verdicts there. (Only the Cape and Islands had a lower rate.) In Essex County, the golden spot for personal injury cases, the success rate for plaintiffs was 36%.

One Judge, Patrick F. Brady, who was a defense trial attorney prior to being appointed to the bench, does his own calculations. According to Judge Brady, from 1993 to 2010, only 16 out of 151 plaintiffs have "won" more than the insurance company offer prior to trial. Broken down, there were 7 of 69 in Norfolk, where Brady presided, and, in Plymouth County 49 of 52 were defense verdicts.

But what are the reasons? The major academic reason cited by trial lawyers is that Massachusetts does not allow jury voir dire. That is, in selecting a jury a judge asks a series of basic questions and the jury is selected. In other states, and in some courtrooms in Massachusetts, the selection process is vastly more extensive, weeding out jurors with bias.

While I fully support the struggle to get Massachusetts judges to allow full jury voir dire, it's not so clear to me that this would resolve the problem. When I look at a jury, I'm always encouraged by how eager they seem to do their job correctly.

I think it's subtler than that. The media has done a brilliant job exaggerating plaintiff victories. The McDonalds coffee burn case, for example. Further, some politicians have convinced folks that their insurance premiums would go up if they awarded monies in a Massachusetts car accident. The insurance industry has spent fortunes convincing folks that we need tort reform. It's ironic that the capitalists want socialism with respect to the courts!

Then there is the economy. When a juror is struggling to pay for his mortgage, or her school loan, and the plaintiff comes in all dressed up and with a fancy lawyer, it seems they just can't pull the trigger for damages as much as they used to. Besides, they are thinking about their insurance bill going up if they award damages.

We don't try medical malpractice cases, but the numbers are even grimmer for plaintiff victims of medical malpractice at trial; they win less than 10% of the time.

This is not a sad story, however. My experience is that there are only two types of cases that go to trial: bad ones and phenomenal ones where the victim has an opportunity to get a huge verdict. Those cases skew the statistics. Insurance companies tend to make reasonable offers of settlement on good cases. Their reasonableness is in lower dollar figures than a decade ago, however. But if a Massachusetts personal injury case is aggressively pursued, most insurance companies will, eventually, take the case seriously.

There has been longstanding law in Massachusetts that protects victims of drunk drivers who were served alcohol by a Massachusetts homeowner who knew, or should have known, that the driver should not have been allowed out of the home and onto the roads. The law was from the case Worcester Mutual Insurance v. Marnell, which was decided in 1986.

The way it has worked for decades is as follows: if you, or a loved one, is injured or killed by a drunk driver who was served by a homeowner, you can file a claim against two separate and distinct parties: the homeowner, for negligently serving the alcohol and allowing the driver to drive, and the driver, for his or her negligence in driving. The practical consequence is that there have been two insurance policies to help compensate victims for their injuries: homeowners insurance and automobile insurance. For serious injuries in Massachusetts this duel approach has been effective in helping victims to recover damages in Massachusetts.

However, there is a disturbing trend in Massachusetts which does not bode well for victims of such collisions. In the case recently decided by the Massachusetts Court of Appeals, a homeowner hosted a party in Lawrence where alcohol was served to a minor. The homeowner allowed the minor guest to leave the party and drive a motor vehicle. The vehicle struck another vehicle resulting in serious personal injuries to the persons in that other vehicle. However, in this case, Massachusetts Property Insurance Underwriting Association v. Berry, the Court noted that the specific language in the homeowners policy excluded insurance coverage for "motor vehicle liability" arising out of the operation of a vehicle "by any person" notwithstanding the fact that the operator of the vehicle at issue was not owned by the homeowners.

There seems to be a trend with the Massachusetts and federal courts, based on new languages in insurance policies, to limit coverage. In a case called Yerardi v. Pacific Indem Co, the federal court, using Massachusetts law, precluded coverage for a spouse of the insured. In another case, Hingham Mutual Fire Insurance v. Smith, involving sexual assault by the homeowner's son, a family claimed that there was negligent supervision. However, the Massachusetts Court of Appeals held that the Marnell case involved auto insurance and did not apply.

The significance, from the prospective of a Massachusetts personal injury lawyer, http://www.neilburnslaw.com/lawyer-attorney-1393809.html is that there is increasingly less insurance coverage available to victims in Massachusetts. The insurance companies are trying to tighten the drafting of the language in their policies. And, the courts are preventing victims from using all of the traditionally available insurance policies to protect those that are injured.

One way to combat this trend, on a personal level, is to be sure to purchase sufficient Massachusetts underinsurance coverage. This coverage, which you buy on your own policy, would apply to you and your family. It generally provides insurance coverage in addition to the insurance coverage of the drunk driver.

When a Massachusetts personal injury lawyer represents a client, we work diligently for the best result given the circumstances of the collision, the client's injuries, his or her work history, and the permanency of the injuries. However, when we review statistics from Massachusetts and from around the country, we look to seek if there are any patterns that show things are safer year after year. The good news this year is they are!

There were 605 Massachusetts highway fatalities in 1990, 433 in 2000, 441 in 2005 and 334 in 2009. Massachusetts' fatality rate was 1.3 deaths per 100 million miles driven in 1990; in 2009 it was reduced to 0.6. The United States total rate went from 2.1 down to 1.1 in that time period. That is, from 44,599 deaths to 33,808 deaths. In Connecticut, for example, the rate went from 1.5 down to 0.7; in New Hampshire the rate went from 1.6 to 0.9. While the statistics are getting better, there are still too many wrongful deaths in Massachusetts, as well as injuries and permanent losses in Massachusetts.

One statistic that gets better but remains a nagging fact is with respect to drunk driving accidents in Massachusetts. Notwithstanding the fact that drunk driving may be down by 30%, according to the United States Centers for Disease Control and Prevention, drivers in the US drove while impaired 112 million times in 2010. In 2009, the result was 11,000 deaths as a result of alcohol related driving. The statistics include the fact that men are responsible for 81% of the drinking and driving episodes; and, while men aged 21 to 34 represent only 11% of the population, they are responsible for 32% of the alcohol related driving instances. Further, 85% of drinking and driving episodes involved "binge drinking" which is 5 for more drinks for men and 4 or more for women. According to the CDC, having only two beers results in loss of judgment and having trouble doing two tasks at the same time.

An unnerving fact is that a 2011 study of drivers throughout the 50 states undertaken by the GMAC Insurance Company indicates that 80 % of current drivers cannot pass a basic driving written test! What is even scarier is that drivers in the Northeast scored the lowest

With the casino gambling issue rising again in Massachusetts, one argument is that there will be more crime, especially organized crime. We have no sense of the criminal activity following casino growth. However, another area we are concerned with is the rise in more dangerous driving, including alcohol related driving, that may accompany the growth of local casinos. If Native Americans get a license, there is an added concern because Native Americans are significantly more likely to be involved in alcohol related driving fatalities, according to a United Stated Department of Transportation, National Highway Traffic Safety Administration study.

Whether it's a casino or just plain neighborhood drivers, we continue to follow the statistics of senior drivers. In a 2011 Israeli study regarding "hazard detection" of drivers verses pedestrians in the road, it was found that elderly drivers had a slower response time. The study showed that the elderly had limited useful field of view. They also drove 20% slower; perhaps knowing their response time was slower.

On the other hand, children were found to be safer when driving with their grandparents versus their parents! This is from a study in Pediatrics by Fred Henretig.

Finally, with the large number of college students and young people in Massachusetts, we are concerned with their driving. In a 2009 Australian study published in March 2011, psychologically distressed driving was the explanation for 8.5% higher rate of risky driving among drivers aged 17 to 25. The rate was significantly higher for females; 9.5% versus 6.7% for males.

Here is to working with all of you to make 2012 a safer new year!

In the United States, there is often the feeling that once you get your driver's license at age 16 or so, you have a license to drive over state and federal roads until the day you die. Some drivers, young or old, are always safe. Some are reckless at any age. But what about those who were safe drivers for so long, but now may be just old enough that reflexes are too slow?

In a program called "Keys to Independence" Emerson Hospital, in Concord Massachusetts, will utilize objective testing to determine the answers to those questions. The battery of tests, administered by an occupational therapist, is to include visual acuity, strength tests range of motion testing, and cognitive and perceptual abilities.

Emerson Hospital also hosts an AARP driving safety program. However, helpful these programs are, we would note that in a recent case in our Massachusetts accident law office, a 95 year old man who testified that he satisfactorily "passed" that program pulled out from a stop sign and caused a crash, on Route 2A in Acton, Massachusetts, when he misjudged the timing of his turn.

Nevertheless, the program seems to be a good step in informing responsible drivers how they are doing. We wonder, however, how much of an effect this will have considering the number of elder drivers that will take the class, and even if they do, what they will do with the results.

In a study undertaken by professors at the Eastern Virginia Medical School,
published in 2005, elderly drivers were tested to see how their perception of their driving skills was, compared to their actual skills. The conclusion of the study stated that "Cognitive ability was not related to self-rated driving evaluation performance." That is, after self-evaluation, drivers over 65 who considered themselves better drivers than their piers were "over four times more likely to be unsafe drivers."

Massachusetts law does not require driving tests following the initial test, usually taken at age 16 or 17! There is a new law, which requires that all license renewals for Massachusetts's drivers at age 75 or above must undertake the Massachusetts RMV vision test, or produce a "vision screening certificate" from their doctor. That law, which became effective on September 30, 2010, known as the Safe Driving Law, was the law that forbids new drivers from using cell phones, and all drivers from texting while driving in Massachusetts.

Let's try to be fair. As a Boston accident lawyer, I hear a lot from folks who wonder why "that person was driving" at all. Folks that say the elderly shouldn't drive are just as prejudiced as those that say all teenagers are texting. Most folks take driving very seriously and most have impeccable driving records. How can we differentiate those who are dangerous drivers from the rest of us? Most people know when their capacity to drive diminishes, and they stop. Or they stop at night when they can't see as well. The motor vehicle laws, no matter how expansive or restrictive, won't stop negligent drivers and won't stop someone from slipping on ice or following too close. Thus, be careful out there. And evaluate yourself, your neighbors and your loved ones on a regular basis. Recommend the Emerson Hospital class, or a similar one, to folks whose driving you think could use evaluation.

In Hingham, Massachusetts last week, a 41-year-old man with 10 prior license suspensions, was allegedly operating a motor vehicle under influence of alcohol when he crossed over the double yellow line and struck another vehicle, seriously injuring the two people in the other vehicle and himself. Police found open containers of alcohol in the vehicle. The negligent Massachusetts driver allegedly had 16 speeding tickets on his record and was involved in five prior motor vehicle collisions in Massachusetts. Further, the driver had other serious violations including violation of open container, driving to endanger, and defaults. He may be considered a habitual traffic offender in Massachusetts.

What laws protect us from these drivers?

A first offense for operating under the influence conviction will result in up to 90-day loss of license. It can also carry incarceration in the county house of detention for up to 2 ½ years. Usually, however, there is a plea to the alternative disposition, which is 45 days of loss of license, a drug/alcohol class and fines. In the case above, while it was a first offense for driving under the influence, because of the collision and the prior record, the judge may not agree to a plea to the minimum offense policy. Thus, we are not very well protected, but then again, it's his first offense.

The second offense for operating under the influence is 60 days to 2 ½ years in incarceration, fines, suspended license for 2 years (a work hardship license available after 1 year). However, if the driver refuses the Breathalyzer they are not usually able to get a hardship license. Also, there is the new "interlock" device for convicted drivers. However, again, there is the "alternative disposition" which is 2 years of probation, 14 days in a confined alcohol treatment program, license suspension for 2 years, the interlock device. However, if the first offense was more than 10 years from the second defense, the driver may be entitled to only the penalties of the first offense.

Third offense operating under the influence drivers face a mandatory 5-6 months in jail and a license suspension of up to 8 years, with a work license in 4 years. A fourth offense includes jail time of 2 years, which, in Massachusetts means you serve one year.

A conviction for driving to endanger will result in a 60-day loss of license and up to 2 year jail sentence. But not usually; these folks don't serve any significant time in jail unless there are injuries associated with the offense. In a case where we represented the family of a Massachusetts wrongful death victim the negligent driver only got 18 months incarcerated even though he had a significant driving violation history.

Other penalties by the Department of Motor Vehicles include: three speeding tickets within one 12 month period will result in a suspension for 30 days. If a driver has three surchargeable events within a 24 month period, s/he has to comply with the DMV regulations to avoid suspension. Compliance includes taking the Driver Retraining Course. If a driver has five surchargeable events within a 3 year period triggers a suspension, but again, a driver need only take the class and a license can be reinstated. Only when there are 7 surchargable events within a 3 year period is there a mandatory loss of license - for 60 days.

The news, perhaps, for the Hingham driver, is that there is a statute called the Massachusetts Habitual Traffic Offender. Habitual offender violations results in a 4-year revocation of license -- if there is an accumulation of three "major" moving violations, or a combination of 12 major and minor moving violations and includes violations in other states.

Are we protected? No law stops the one time someone makes a mistake that injures or kills a loved one, but perhaps the seriousness with which Massachusetts treats habitual offenders needs to be reevaluated.

According to a new University of Massachusetts, Amherst, study, use of seat belts is decreasing in Massachusetts. Seat belt use is down to 73% in Massachusetts, according to the study, with the national rate at approximately 85%. This is concerning to a Massachusetts injury lawyer because seat belt use is directly correlated with saving lives. Massachusetts is among the lowest use states in the nation. Teenager seat belt use according to the UMass study was down 3.9%, to only 69%; African American seat belt use was down to 65%; and, with Hispanics, the rate was only 54%. Commercial vehicle drivers were even lower, at 47%. Between men and women, the rate is 68% for men and 80% for women. The National Highway Traffic Safety Commission studies conclude that having a primary seat belt law would boost rates by 10%!

Pending in the Massachusetts State house is legislation entitled "Natalie's Bill" which would require seat belts as a "primary " law, meaning it would allow police officers to pull over a vehicle when the primary reason was for failing to wear a seat belt. Studies show that this results in a higher seat belt usage, associated with fewer injuries and deaths.

The name of the proposed law is based on a young woman who died in Massachusetts in 2004. Natalie DeLeon was 21 years old when she went for a short drive with her boyfriend. When her boyfriend swerved to avoid another vehicle, Natalie, not wearing a seat belt, was ejected from the vehicle and died as a result of a brain injury.

Belts Ensure a Safer Tomorrow (BELTS) is a coalition with dozens of members from vast portions of the state including: Children's Hospital, AAA Southern New England, Brain Injury Association of Massachusetts, Massachusetts Fire Chiefs, and the Massachusetts Medical Society

According to Massachusetts Children's Hospital, a primary seat belt law could save the Commonwealth "over $170 million in costs associated with medical care, lost productivity and damage to property" and would save over $55 million on health insurance costs.

What is holding legislators back? One argument is that with a primary law, minorities would get pulled over more. That is, the law could have a disproportionate impact on minorities. However, the National Highway Safety Administration has studied this issue and concludes that there is no correlation. Another argument is freedom to make one's own decision about whether or not to wear a seat belt. However, others argue that when driving on public roads, and using public hospital monies to attend to those that are injured, the state should have the right to make seat belt use primary.

We again point to evidence from around the world. In 1997, Princess Di was killed and the fact that she was not wearing a seat belt was considered a "substantial contributing factor" leading to her death. We represented a young women in town just north of Boston who suffered a broken back and testified, "if I hadn't been wearing my seat belt I would be dead. I know it."

The law now essentially says that anyone in a passenger vehicle shall wear a seat belt. The law specifically says, however, that it can only be enforced "when an operator of a motor vehicle has been stopped for a violation of the motor vehicle laws or some other offense." Massachusetts General Laws, Chapter 90, Section 13A.

Massachusetts State Senator Stephen Brewer, of Barre, the Chairman of the Ways and Means Committee, has introduced a bill before the Massachusetts Senate, removing the current helmet law and allowing all motorcyclists over the age of 21 to have the right to refrain from wearing a helmet. The bill was the subject of hearings in the Senate Transportation Committee this week. The Massachusetts Motorcycle Association sees this as a "freedom" type of law which would promote tourism. Even if they are right, is this the kind of tourism we want to promote? Wouldn't this simply bring in out of state riders who may or may not have health insurance dramatically increasing their odds of serious personal injury while in Massachusetts? Further, the helmetless advocates point to the casino law: the pendulum swung in favor of casinos when tourism dollars fleeing the state was used as the argument.

One senator, Anne Gobi, of Spensor, sponsored a bill that would allow all motorcyclists over the age of 18 to forgo a helmet. Senator Gobi wants those riders to take a safety course. Ms. Gobi, who may or may not practice personal injury law in Massachusetts, should know that all of the injured victims of motorcycle accidents in Massachusetts that we have represented were not responsible for the accidents. So what would a safety course really do?
The current law, Massachusetts General Laws Chapter 90, Section 7, requires that "every person operating a motorcycle or riding as a passenger on a motorcycle...shall wear a protective head gear..." The statute goes on to require "eye glasses, goggles or a protective face shield" if there is no windshield.

Motorcycle accident lawyer Neil Burns points to the facts about motorcycle helmet use. We last wrote about Massachusetts motorcycle accidents noting that the fatality rate went down over the last decade. Part of that decrease is because of the increased use of helmets. In our April 4, 2011 article about motorcycle accidents, we noted that Massachusetts has a 97% helmet use while the national average is 59%.

This is not news to Commonwealth law enforcement officials. According to the National Highway Traffic Safety Commission, motorcyclists are 37 times more likely than car drivers to die in a crash and 9 times more likely to be injured; riders who neglect to use helmets are 3 times more likely to receive traumatic brain injuries in Massachusetts and throughout the country.

Finally, a word about motorcycle and insurance. Most motor vehicle policies in Massachusetts have Personal Injury Protection insurance. This is essentially "no fault medical insurance up to $8,000. With Med Pay insurance, many Massachusetts vehicles have an additional $10,000 in medical coverage. Motorcycles do not have PIP insurance. Wherefore, if you are injured on a motorcycle and you don't have medical insurance, you are subjecting yourself, and possibly your family, to significant medical bills. Further, most insurance agents do not sell sufficient Massachusetts under insurance policies to motorcyclists. If you are seriously injured, and the driver of the vehicle that caused the accident is insufficiently insured, you could help yourself significantly by having a substantial underinsured policy. For information , click on our Massachusetts underinsurance article.

The Massachusetts Clients' Security Board announced that it had awarded over $2,000,000 to clients that had been defrauded out of their money by 33 lawyers committing legal malpractice in Massachusetts. A program run under the Massachusetts Bar Counsel since 1975, the CSB receives 12.49% of attorneys' annual registration fees to fund reimbursements. The Board is made up of seven lawyers appointed by the Massachusetts Supreme Judicial Court; they receive no compensation for their work, however, there are investigators and staff who work full time for the Board.

Three lawyers accounted for payments of $1.07 million, or over 50% of the total payout. Those lawyers are: Raymond J. Paczkowski, a real estate attorney responsible for $509,392 in reimbursed claims; Harley H. Anderson, a trust and estates attorney whose one client was reimbursed in the amount of $253,279.64, the largest award if the fiscal year; and Harold Meizler, another trust and estates attorney with one client being reimbursed for $250,000.

Mr. Paczkowski was disbarred on November 24, 2010 after he converted a $109,953 real estate transaction for his own use. The Board of Bar Overseers found numerous irregularities in his accounting, however, it seems that it was the theft that sparked the investigation and necessitated the sanction.

Mr. Anderson was indicted and subsequently plead guilty for embezzlement by a fiduciary and larceny. He received a two-year jail sentence for his crimes.

Trusts and estate lawyers accounted for 43% with a payout of $891,000. Real estate lawyers accounted for 30.5% or $629,000. Massachusetts's personal injury lawyers accounted for 12.10% of defalcation. In upcoming payouts, according to the CSB Assistant General Counsel Karen O'Toole, is with a Massachusetts bankruptcy lawyer www.neilburnslaw.com , Robert Mangano, who took monies from clients in the Lawrence and Lowell area and failed to file for Massachusetts bankruptcy relief. The victims here are often unable to retain new counsel and may loose their homes as a result of the Massachusetts legal malpractice.

The largest category of claims was "unearned retainer" claims, which accounted for 36 of the 63 awards by the Massachusetts Clients' Security Board, with a value of $125,685. At the end of the year there remained $14,073, 090 in outstanding claims.

The law does not have any statute of limitations, like Massachusetts personal injury law, and Massachusetts negligence law, victims are encouraged to report any suspicious activity to the Massachusetts CSB. Victims need not retain counsel for processing a claim, as the CSB will do all of the work for victims when clients' money is stolen. To get to their website, click on Massachusetts Clients Security Board to go right to the form. Victims should be pleased to note that the CSB has over $5 million in reserves to make up for potential large hits.

We urge the pessimists among our readers to acknowledge that notwithstanding all of the above, the 33 lawyers responsible were out of 55,269 practicing lawyers in Massachusetts.

We also want to distinguish legal malpractice from theft. In Massachusetts legal malpractice there is a statute of limitations, and is not usually theft. Further, there is no CSB to investigate and return moneys.

In our detailed study, Getting In Trouble: The Severe Sanctions; 2008-2010, we review all of the sanctions received by lawyers in those years. That study, published on our website, was geared towards lawyers, to give an in depth view of the types of cases resulting in attorney discipline. We reviewed all 116 such cases.

We also published a study entitled Massachusetts BBO Admonitions Study 2008-2010, which reviewed all of the admonitions, or lessor penalties given out by the Board of Bar Examiners. Both studies are worthy reading for Massachusetts lawyers and Massachusetts clients.

As a Massachusetts consumer attorney, I try to keep clients informed of how to keep safe this holiday season. With rainy weather, and a huge travel day today, we offer the following to avoid Massachusetts motor vehicle accidents: 1. Don't drive in holiday traffic if you don't have to. 2. Texting while driving is illegal. 3. Wear your seat belt - it's the law and the easiest way to stay safe when involved in a motor vehicle accident in Massachsuetts 4. Children must be in child safety seats in Massachusetts 5. The most obvious should be do not drink and drive, but, we should all be aware to assist others who may not know they should not drive. 6. While it may be too late for today, put on your shopping list to check your underinsurance coverage in Massachusetts, which is often too low. We recommend that our clients purchase significantly more than the minimum of $20,000.00 underinsurance to protect them from underinsured vehicles and uninsured Massachusetts vehicles.

For our clients who are shopping for more fun items than insurance, we relate some of the tips offered by the Massachusetts Attorney General's office which include: 1. Know your rights when buying gift certificates. The law says they are good for seven years. However, remember that you don't want to be a creditor if the business files for bankruptcy in Massachusetts, so if you receive a gift certificate, use it promptly. 2. Stores must disclose their return policies, but often have different ones and strict rules. It makes sense to review a return policy if you are likely to return any item. 3. Layaway policies can be helpful for budgeting, but be careful of the policy before you turn over your hard earned money. 4. If you see a print advertisement, bring it with you as model numbers and sizes can be switched without your knowing. 5. Following all purchases with a debit or credit card, check your bank or credit card statement for any suspicious charges.

If you shop online: 1. Use a credit card for on line purchases because this gives you a layer of security. 2. Only use websites you know are legitimate. 3. Be sure to confirm the website's authenticity before giving y our credit card information. You can look for the "s" in the "https://" for security. Also, in the lower right corner on a check out page, look for the "lock" symbol. 4. Beware of emails asking for information about your order. Do not give out information in response to those emails. The Retailers Association of Massachusetts has a website that offers additional information.

Finally as a Massachusetts burn injury lawyer, I remind folks to be safe when using ovens to cook for a holiday meal: Stay in the kitchen when you are cooking, especially if you have food heating on the stovetop. Turkeys should be checked frequently. Keep children away from stovetops and, before opening the oven to check or baste the bird, have all children away from the vicinity and protected from entering the area. Keeping the kitchen floor clean and free of debris helps prevent falls near hot items. Spending the day near the kitchen is a good time to check general safety, including the storage of knives, the security of poisonous cleaning fluids, and smoke alarms.

Have a safe and happy holiday.

This time of year we like to remind our clients to keep Massachusetts children safe, especially when buying holiday gifts. Last year our Boston injury blog posted a story about injuries to Massachusetts children noting unsafe toys on the Massachusetts Public Interest Group products list. It includes good instructions regarding plastic toys, plastic baby bottles and foods wrapped plastic.

Winter is the season when children suffer the most burn injuries. We have had many clients, to many unfortunately, where young children are burned in Massachusetts. Children 2 and under tend to suffer burns to their hands and wrists. Older children suffer from fire injuries. We should remember that 75% of burn injury fatalities in children are from smoke inhalation; only 25% are from actual burns. Of the children that are under 5 who die in home fires, 50% were sleeping at the time. A Children's Hospital of Boston study claims that we could reduce child fatalities by 86% from home fires if we had smoke detectors and sprinkler systems.

Most importantly, however, we need to review motor vehicle accidents. They are the number one cause of fatalities for children. The National Highway Transportation Safety Administration differentiates traffic accidents from non traffic accidents. In 2010 these include accidents off the road, in driveways and parking lots - 262 fatalities and 115,000 injuries. The three most common causes for non traffic accidents are backovers (34%), then frontovers (30%) and heatstroke (16%). In 2010, for example, there were 70 frontover fatalities and 66 backover fatalities. These accidents often occur to the youngest children - 70% of the victims were between one and two years old. Those children are the smallest and hardest to see for the driver. Heatstroke caused 49 deaths for children in 2010; education is needed to prevent heatstroke because it disproportionally effects the smallest children, whose body temperature raises faster than bigger kids.

The other causes of fatalities for children include 7% caused by underage drivers. This includes drivers under the age of 15, often kids who believe that their skills have honed playing video games. 5% of the fatalities were from vehicles in motion, 2% vehicle falls, and 2% from drowning.

Massachusetts drivers can follow the following tips to keep children safe: use child safety seats for small children; use seat belts for bigger children; use booster seats for kids in the middle; check around any vehicle before you get in to drive; keep children under 13 in the back seat, away from air bags; keep if there are children around, check that they are all away from the vehicle before proceeding in the vehicle; teach children that stopped cars be dangerous and that they can start at any time; keep toys, bikes, etc. away from cars and driveways; keep vehicle keys away from any child access; never, ever, leave children alone in a motor vehicle.

Please review our various blog articles and website postings about child injuries. Many, if not most, are preventable. We have represented many many families following injuries to children. If you have questions about how to respond, legally, when children are injured, please call our office as soon as possible - evidence can be lost, and children forget.

Motorcycle fatalities climbed from the late 1990s to 2008, when there were 5,312 deaths. In 2009, that number went down, to 4,462, a 16% decline. This is notwithstanding an increase in usage. While still too high, the significant decline is encouraging.
There is more good news for motorcycle owners in Massachusetts as the season comes to a close. Fifteen Massachusetts motor vehicle insurance companies have agreed to return overcharged premiums to motorcycle owners. The refunds, which include $5 million from Travelers Insurance Company, and $35 million from other companies, are based on overcharges on the collision and comprehensive sections of the insurance policies. In essence, the insurance industry overvalued motorcycles. Motorcycle accident lawyer Neil Burns reported that many motorcycle owners, especially those who own Harley Davidson bikes, should have received their checks already.

The refunds are a culmination of work by Attorney General Martha Coakley. Apparently, one Harley Davidson owner complained that his bike was overvalued: a 1999 Road King. The consumer complained and the Attorney General's office found that the initial complainant was overcharged $1,500 from 2003 to 2008, based on a $20,000 valuation of the motorcycle.

We first reported this on February 19, 2010, when Safety Insurance Group agreed to pay $7.4 million for Massachusetts motorcycle accident insurance overcharges. To date that was the largest settlement. However other companies have given refunds in settling with the Attorney General as well: Arbella Mutual Insurance paid $6.3 million, Plymouth Rock paid $3.99 million, Metropolitan Property and Casualty paid $3.65 million, Liberty Mutual Insurance paid $3.1 million, USAA paid $2.7 million, Hanover paid $2.5 million, OneBeacon paid $2.1 million, and a host of companies paid somewhat less than one million dollars in refunds.

Consumers who want to see if they are entitled to a refund can go to the Attorney General's website, www.motorcycle.ago.state.ma.us
Other motorcycle news includes the top five brands of motorcycles stolen: Honda, Yamaha, Suzuki, Kawasaki and unknowns. The top five states for motorcycle thefts are: California, Texas, Florida, North Carolina and Indiana.

A word of caution: Supersports motorcycles have a death rate of 22.5 driver deaths per 10,000 registered bikes; regular motorcycles are half that rate, at 10.7 deaths per 10,000 registered bikes. Supersports bikes are those that are built on racing platforms but are street modified. They car reach speeds close to 200 miles per hour and are lightweight. They are popular with younger riders.

Of course, no motorcycle new article by a Massachusetts accident lawyer could be complete without an update on helmets. Our friends in New Hampshire enjoy a "live free or die" approach to helmet laws. Along with Illinois and Iowa, there are no helmet laws in New Hampshire. The statistics show that helmet use declines form 99% to 50% when the laws are taken away. But, when used they save lives: 1,483 lives were saved in 2009, according to the National Highway Safety Transportation Authority. 732 lives were lost in 2009 because of failure to wear helmets.

Finally, a few obvious tips. Don't speed: 35% of motorcycle fatalities were as a result of speeding. Get a license: 25% of motorcycle fatalities involved riders who were riding without a valid license. Don't drink: 39% of motorcycle fatalities involved riders who were over the 0.08% acceptable blood alcohol level. All of these numbers are significantly above the same numbers for cars and trucks.

We have worked hard to educate our clients about Massachusetts uninsured motor vehicle accidents and underinsured Massachusetts motor vehicle accidents. Significantly, we have encouraged our Boston car accident clients to consider purchasing insurance beyond the minimal insurance. We regularly represent victims of serious Massachusetts car accidents and they often suffer a second "injury: -- insufficient insurance to cover their losses.

A recent Massachusetts motor vehicle collision is an unfortunate example of this occurred. Apparently a Weymouth driver was driving a vehicle on I-93 south without a valid driver's license. She crashed into two other vehicles, resulting in numerous victims and her own car going up in flames. Assuming the Massachusetts State Trooper was correct regarding her license, the Weymouth vehicle may not have insurance to protect the victims of the collision.

What happens to the victims if the Weymouth driver indeed did not have insurance? The victim, if she had a Massachusetts motor vehicle insurance policy, has uninsurance coverage. The minimal coverage in Massachusetts is $20,000. Thus, if the victim has significant injuries, she would file a claim against her own insurance company, where she has that $20,000 of coverage. What if her injuries are clearly worth more than the $20,000 policy? Unfortunately, if she had a minimal underinsurance polity, that is the maximum claim she could file.

Is there a way around this when the victim has permanent injuries? Yes, buy more than the minimal coverage. In Massachusetts, most motor vehicle insurance companies will sell up to $500,000 in uninsurance and underinsurance coverage. Wherefore, if you were seriously injured in a motor vehicle collision, and the other vehicle had no insurance (or insufficient insurance) you could file a claim and there would be up to $250,000 (or whatever amount of coverage you purchased) in available insurance.

Will my own motor vehicle insurance company simply pay my claim? Of course not. Even when your injuries are clear, insurance companies have lots of tricks to try to reduce the amount they pay out. Insurance companies have extensive experience in denying claims, reducing claims, and fighting against legitimate claims; they use insurance trial lawyers, private investigators, and insurance doctors at their disposal. And they use them in every case.

How does the claim work? The claims process works this way. You give your insurance company official notice that you are filing the claim. You "demand" arbitration to resolve your claim. That is, you cannot file a lawsuit because there is no one to sue and no one at "fault" in your situation. You are simply saying that you want the extent of your injuries to be determined by an impartial arbitrator. If your insurance company refuses to agree to arbitrate, you can file a lawsuit to force the arbitration.

How does Massachusetts motor vehicle arbitration work? You file your claim against your company. Statements are taken which are similar to depositions in civil cases in Massachusetts courts. Documents, including photographs and medical records, are exchanged. Witness lists are exchanged. An arbitration agreement is reached. An arbitrator, or judge, is hired. Finally, the arbitrator conducts an arbitration, which is similar to a civil trial in Massachusetts courts. The rules of evidence can be reduced. There is no jury, but the arbitration hearing is similar to a trial. Both sides present their witnesses and introduce their evidence. The arbitrator typically will take some time and render a written decision soon after the hearing. The process is generally faster than a jury claim in Massachusetts courts.

We have extensive experience in representing victims of underinsured motor vehicle collisions. We highly recommend that anyone injured in a motor vehicle collision retain a lawyer as the arbitrator process described above can be complicated; even the playing field by hiring an experienced Massachusetts injury lawyer.

The Massachusetts Supreme Judicial Court is currently considering an important case under Massachusetts General Laws, Chapter 93A, Consumer Protection statute. The issue before the SJC is how to calculate 93A damages following a finding, by the trial judge, that a motor vehicle accident insurance company violated the law by failing to make a fair settlement offer. We reported on this case last December, in an article called Massachusetts Personal Injury Victims Win Unfair Claims Settlement Against Insurance Companies.

The case currently on appeal stems from a 2002 motor vehicle and truck collision. When Marcia Rhodes stopped her vehicle on Route 109 in Medway, Massachusetts for a police officer, a tractor trailer rear ended her vehicle. Ms. Rhodes was severely injured, resulting in paralysis. The driver of the truck was an employee of Driver Logistic Services, working for GAF Building. GAF had motor vehicle insurance with Zurich American, for $2 million and there was a $50 million policy with National Union, with adjusting company AIGDC. When the truck driver plead out his criminal case in November 2002, the civil case should have been ready to settle.

The Rhodes family, through their Massachusetts personal injury lawyer, made a settlement demand of $15 million, in November, 2002. Unfortunately, notwithstanding the fact that the Zurich Insurance adjuster made an internal assessment of clear liability and gave a value of $5 million to $10 million, no offer was made by the company at that time. The defense attorney, paid for by the insurance companies, recommended that they make a settlement offer or they would be in violation of Massachusetts General Laws, Chapter 93A and Chapter 176D. The insurance companies did not follow the advice of counsel. Four months later, Zurich offered their $2 million policy. As that was the extent of the offers, the Rhodes family rejected the offer. A few weeks before trial, the insurance companies made an offer of $3.5 million. The trial resulted in a $9.5 million jury verdict, which, with interest at 1% per month per Massachusetts Court Rules, there would be a judgment of $11.3 million.

Again, rather than pay, or negotiate, the insurance companies appealed, calling the jury's verdict excessive. The Rhodes family sent a 93A Demand Letter on November 19, 2004, to both insurance companies. Zurich responded by paying the $2 million policy; the adjusting company for National Union finally made an acceptable offer in June 2005, in the amount of $9 million.

Next, the Rhodes family filed a second lawsuit, against the insurance companies, for violations of Massachusetts General Laws, Chapter 93A and Chapter 176D. The Superior Court judge found that AIGDC violated 93A in failing to make a reasonable settlement offer, however, the Court found that the $3.5 million offer at mediation was "reasonable" and at that point stopped all 93A damages. The Court did find, however, that following the trial AIGDC failed to pay promptly, thus ordering "loss of use" damages and doubled those damages for violation of 93A. The Court of Appeals reversed the trial Court on the issue of pre-trial conduct but agreed with the trial Court's on the violation of 93A for post trial conduct.

The Court of Appeals ruling is now under appeal before the Massachusetts Supreme Judicial Court. At issue is how 93A damages should be calculated. Rather than provide all of the possible ways the SJC could rule, we will await their decision and report back at that time. In essence, the SJC will decide whether the measure of damages is the "loss of use" of funds or based on multiplying the judgment amount. The Rhodes family and their Massachusetts personal injury lawyers argue that a finding of unfair settlement practices should be double or treble damages, per the statute. The insurance companies argue that the judgment for the 93A case is not the same "traction or occurrence" as the underlying case and should be a different measure of damages.

Stay tuned. The outcome could determine how the insurance companies treat Massachusetts motor vehicle drivers.

A recent incident in Boxboro, Massachusetts, with an allegedly illegal immigrant charged with a sixth offense for driving under the influence in Massachusetts, sparked much debate about drunk driving accidents in Massachusetts. Motor vehicle accidents in Massachusetts are frequently caused by drunk drivers. According to the Centers for Disease Control, the number of times that Americans drove drunk in 2010 was 112 million! 33% of all motor vehicle deaths are associated with alcohol impaired drivers. In 2009 there were 11,000 alcohol related motor vehicle deaths.

In Massachusetts, alcohol fatalities totaled 334 in 2009. This was down from over 400 alcohol related motor vehicle deaths over several years in the '80s, there is clearly work to be done. While the Massachusetts highway accident rate makes it one of the safest states in the country, there is clearly still work to be done.

Driving under the influence, defined by national standards, is when driving with the blood alcohol level of 0.08% or greater. The CDC found that 81% of drunk driving "episodes" involved men. While men aged 21 to 34, "young men" are only 11% of the adult population, they were responsible for a disproportionally large percentage of drunk driving: 32%. 85% of drinking and driving episodes were associated with folks who are binge drinkers. Binge drinking, that is those men that have five or more drinks, or women who have four or more drinks in a short period of time.

Mothers Against Drunk Driving, an organization dedicated to educating use about the seriousness of the issue of alcohol and driving, claims that one person dies every 50 minutes from a drunk driving crash; 10,839 people per year. In addition, one person every minute is injured from an alcohol related motor vehicle accident.

The good news is that the number of alcohol impaired driving is down by 30% according to the CDC.

Massachusetts drunk driving laws are serious. A first offense can include jail time of up to 30 months, fines up to $5,000, license suspension of one year, and can include a court approved treatment program. A second offense includes jail time from one to 30 months, fines up to $10,000, two years of license suspension, and an ignition interlock device. We represent victims of motor vehicle accidents, and not those accused of violating the driving laws. However, many of our clients who are victims of alcohol induced collisions, note that many perpetrators get the 24D disposition, enabling initial offenders to keep their license and take the rehabilitation class.

In the incident in Boxboro, the problem goes beyond the drunk driving laws. This is because the driver had already been convicted five times; two in Massachusetts, three in California. His breathalyzer test was 0.09%, which is presumed drunk. He had no license, so he was also charged with a suspended license, another criminal offense. He had no registration for the vehicle he was driving, so that charge was added too. He produced false identification to the police officer, which engendered another criminal charge; his identity was made by fingerprints over a national system. Finally, he was charged with operating a motor vehicle with an open container of alcohol.

Our Massachusetts legal malpractice blog, http://www.boston-injury-lawyer-blog.com/legal-malpractice/, tries to give updates to the law. In addition, we have undertaken a study of all of the lawyer disciplinary matters in Massachusetts for 2008-2010 which was published in our website. That study reviews all 57 admonitions and breaks them down into the types of cases, years in practice and discusses the aggravating and mitigating factors. We reported that study on our legal malpractice blog on January 12, 2011.

In our new study, published today, we review the more serious Board of Bar Overseers cases. The cases we review are the ones in which an attorney in Massachusetts loses his or her license to practice law. In the 116 cases of public reprimands, term suspensions, indefinite suspensions, we examine what Massachusetts lawyers did to deserve the severe penalties.

The study examines all 116 severe discipline cases from 2010, analyzing the data using the following criterion: years in practice, fields of practice, severity of punishment, type of violation, severity of punishment, aggravating and mitigating factors, and others. The results are published on our website in the Legal Malpractice News section.
We have divided the investigation into six articles, each of which is, or will be, published on our website today:

1. Getting Disbarredbegins with the "juiciest cases" including those involving serious crimes, crimes that make headlines, and those involved with stealing client monies.
2. You're Suspended! discusses the suspension cases and the reasoning for the terms of suspensions, including why there are so many "year and a day" suspensions.
3. Failing to Learn from Experience reviews the disciplinary cases such as disbarment, suspension and public reprimand and compares the recent incident to the lawyer's history. We review "experienced lawyers" and "highly experienced lawyers" and see if we can differentiate when it comes to punishment.
4. The Punishment Fits the Crime?, to be published in the future, discusses cases where the resulting sanction seems either too harsh or too lenient for the underlying facts.
5. Private or Public Consequences, to be published in the future, discusses the distinctions between private sanctions (such as reprimands and admonitions) and public sanctions (such as public reprimands).
6. Data Mining, to be published in the future, is a statistical analysis of the raw data, with an eye toward spotting trends in bar discipline.

Undertaking studies such as these are the result of long and laborious reviews of hundreds of documents. We want to thank our extraordinary diligent researcher, Boston Attorney Ezra Reinstein, of The Reinstein Firm, for his focus, his attention to detail, and his hard work in this project. In addition to working in the area of corporate organization and litigation, Attorney Reinstein practices in the national and internationally growing field of renewable energy law.