Boston Injury Lawyer Blog

According to a University of Connecticut study, Massachusetts highways are the safest roads in the United States; Connecticut came in second in the study.
The academic study was published in the Connecticut Economy, a scholarly journal of the University of Connecticut, Summer 2011 edition.

The good news nationally is that the rate of fatalities has gone down steadily since 1975; from 3.35 deaths per 100 million vehicle miles driven, to 1.14 deaths per million. That is a reduction of almost two thirds. Boston personal injury lawyers tend to think of the Massachusetts roads as dangerous: we see the bad news every day at work. However, the New England states, along with New York and New Jersey, have fatality rates among the best in the country.

The study, by economics professors Arthur W. Wright and Subhash C. Ray, is a fascinating example of digging deep. They used National Highway Traffic Safety Administration data and reviewed the obvious factors: urban verses rural, safer vehicles, etc. However, the only statistically significant answer was per capita income! According to the United States Bureau of Economic Analysis, a higher state rate of economic wellbeing was positively associated with lower motor vehicle fatalities. Massachusetts and the other states which made progress in increasing per capita incomes over the time period studied had lower traffic fatalities. This was considered a time-variant variable.

Another time-variant was youth. Using FHWA data and determining that drivers under 24 were another variable, the data showed that there was a positive correlation between youth and increased traffic fatalities. Thus, the states with higher number of youth drivers were states with higher fatality rates.

The major time in-variant variables that the study examined were:

1. Snowfall: "greater snowfall is associated with lower fatality rates." Perhaps this is because those in snowy climates learn how to drive in snow, and because they try not to drive in it; further, public safety officials are prepared in those states.

2. Seatbelt laws; the professors compared primary seat belt laws, where a driver can be pulled over for not wearing a seat belt, with secondary seat belt laws, where a driver can not be stopped for not wearing a seat belt, but can be ticketed if it is discovered for an otherwise legal stop. The results were significant, albeit weakly.

3. The 1999 per se 0.08 blood alcohol law is considered the standard for preventing drunk driving. The study looked at early adoption of the law, where states were more serious about drunk driving.

4. The quality of the states' graduated drivers licensing (GDL) programs. These programs require additional steps before someone can get a license. They include supervised driving, restricted driving (after dark, with non-family members in the vehicle). The higher the GLD rate, the lower the fatality rate.

The facts showed that high per capita income was associated with lower fatality rates. This could be a result of higher education rates and ability to purchase safer cars.

In a case of first impression for Boston legal malpractice lawyers, the Superior Court entered summary judgment in favor of estate planning attorneys. Sherman et. al. v. Shub et al., dated June 15, 2011 and written by Peter M. Lauriat, Justice of the Superior Court, is a Massachusetts legal malpractice case regarding damages. Apparently the irrevocable trusts they set up and funded in 1992 were discovered in 2004 to not be tax efficient. Fortunately, there were no damages; or were there?

The plaintiffs, two affluent cardiologists in their 60s, discovered that their trusts could result in a higher estate tax because a negligently worded portion of the trusts. For some reason, they waited until after the statute of limitations on legal malpractice, three years, but within the three year statute of limitations for the Consumer Protection Statute, legal malpractice Chapter 93A,to file suit against their former attorneys.

The Court found the plaintiff's expert witness calculation of potential future damages too speculative: negligence damages are instituted to award "actual losses" and not damages that are "remote, speculative, hypothetical, and not within the realm of reasonable certainty."

While a plaintiff need not calculate damages to a "mathematical certainty," the plaintiffs here fell "well short" of proving any damages at all. As the defendants' experts opined, there are too many current variables to reasonably ascertain damages. When will the plaintiffs die? What will their marital status be at that time? What state will they live in? What will the federal estate tax law be? What will their state's tax law look like? Without knowing the answers, damages, if any, are conjectural and therefore too elusive.

The Court's well reasoned decision is peppered with a philosophical quote from John Lennon and cites a law review article with a title take off from Shakespeare called, "First Let's Sue All the Lawyers." The decision sounds in a too speculative damages case, but can be seen as a causation case as well. According to the Court, proving future damages is too speculative when tax laws are ever changing, additional estate planning can be undertaken, future state residence is unclear and the value of the estate is ever in flux. Any one of these factors could be addressed to reduce the future tax burden, especially since the plaintiffs had over three years from when they discovered the negligence until they filed suit (this is a legal malpractice 93A only case http://www.neilburnslaw.com/lawyer-attorney-1674339.html four), and now have had 7 years. Given that time and a host of variables, it is hard to prove causation: the plaintiffs need to prove a causal connection between the negligence of the estate planning attorney and actual future damages. How can a negligently set up trust cause damage when years have gone by in which to rectify the negligence? Who had the last clear chance to avoid the estate taxes?

On the other hand, do we have enough information to examine the Court's decision? There is no information in the decision as to what percentage of the plaintiffs' $6 million estates went into the trusts. It would be helpful to cross examine the defense expert for opinions on how to set up the trust. While the Court mentions that the plaintiffs' estates fail to provide for charitable gifts parenthetically, in a footnote, what bearing does this have or should this have on the Court's reasoning?

The law on speculative damages is not crystal clear in Massachusetts, so this is a case of first impression. The Court reviews a Kansas case where no liability was found because damages were not calculable -- they are a function of the decedent's tax status, assets, and the law at the time of death; a federal case in the 11th Circuit which stated that damages that are derived from "whatever tax laws may be in effect" at death are too speculative to assess now; and, a New York appellate case where the Court found damages "dependent on future changeable events, and, thus, inherently speculative. Such a loss is not compensable."

It is unfortunate that the estate tax laws have become a political football. This creates uncertainty among the affluent. Nevertheless, estate planning attorneys need to redouble their efforts to review their trusts, and to update clients, including past clients, on the law. That they can become less accountable in tort as a result of the inability to speculate is a consequence of this area of law. The only things that are certain are death and taxes, unless you are a negligent estate planning lawyer where the only things that are too speculative are taxes and death.

Massachusetts drivers pay a premium for automobile insurance. Boston personal injury attorneys focus on victims of collisions. We need to also aid our clients, who are consumers in the purchasing of insurance, from the perspective of a Massachusetts injury lawyer. According to the most recent statistics, from the Massachusetts Office of Consumer Affairs & Business Regulation (OCA) the insurance company with the most complaints was Commerce, located in Webster, Massachusetts. Of course, Commerce also has the largest share of "premiums" in Massachusetts. Thus, a more relevant statistic might be the number of complaints per $10,000 in premiums paid. Commerce had 1.47 complaints per $10,000.00 in premiums paid. The highest number of complaints per premium dollar was Pilgrim Insurance Company, with 4.49 complaints per $10,000 in premiums paid. The statistics are for 2008, the most recent year they are published by OCA.

The following is a list from the Massachusetts OCA:

Insurance Company premium share in 2008 complaints per $10k premiums
Commerce 31.00% 1.47
Safety Group 11.05% 1.65
Arbella Insurance Group 9.25% 1.02
Liberty Mutual Group 8.37% 1.53
Metropolitan Group 6.53% 2.10
Travelers Group 6.28% 2.14
Plymouth Rock Insurance 5.88% 1.37
Hanover Insurance Group 3.84% 1.96
Amica Mutual Group 3.62% 1.56
White Mountain Group 2.49% 1.71
US Automobile Ass. 2.21% 0.63
Allstate 2.11% 1.53
Quincy Mutual Group 1.67% 0.97
Main Street American 1.26% 0.86
Progressive Group 1.24% 4.12
Norfolk & Dedham Group 1.12% 1.44
Allianze Insurance 0.48% 3.91
Pilgrim Insurance 0.48% 4.49
State Farm Group 0.42% 0.64
Electric Insurance Group 0.40% 2.69
13 other groups 0.39% 7.67

From the OCA statistics we can deduce some clear patterns. The 13 "other" groups, which are only .39% of the market, have a very high complaint rate. Wherefore they are not likely to gain a bigger share of the market! Progressive Group, which includes Progressive Direct Insurance Company, seems to have a very high rate of complaints. Pilgrim Insurance, a company we work with frequently, has a similarly high rate of complaints.

The three companies with the lowest rates are United Services Automobile Association Group, which includes the United Services Automobile Association and the USAA Casualty Insurance Company; State Farm Group, which includes State Farm General Insurance Company and State farm Mutual Automobile Insurance Company; and, Quincy Mutual Group, which includes Quincy Mutual Fire Insurance Company. Why? There does not seem to be any clear pattern. However, the companies with the smaller share of the market seem to have a better track record; after all, the 10 companies with the largest market share (Commerce, Safety, Arbella, Liberty, Metropolitan, Travelers, Plymouth Rock, Hanover, Amica and White Mountain) all have high rate of complaints. Those companies, however, represent a mere 4.3% of the motor vehicle insurance market.

There are several things that concern us. First, the complaint rate is too high. What is the Massachusetts Office of Consumer Affairs & Business Regulation doing about it? They are supposed to protect consumers. Second, Commerce commands a huge share of the market. What are the other companies going to do about that? Commerce, founded in 1971 and bought in 2008 for over $2 billion by Mapfre, the largest insurer in Spain and a leading insurance company in Latin America. What are their plans with the 31% premium share?