Publications

Boyle, Shaughnessy & Campo, P.C.’s attorneys have authored publications on diverse subject matters in response to legal precedents, updates and trends in the law, and industry events as they impact our clients.

Publications
Understanding Waiver of Subrogation Clauses

Author: Aaron R. White, Robert W. Stetson
Publication: The Critical Path, DRI, Volume 15, Issue 11

Waiver-of-subrogation clauses are an important risk-allocation tool included in nearly every sophisticated construction contract. Because of the prevailing economic conditions and business interests at stake, all those involved in a construction project have a heightened interest in understanding these clauses. The parties to such a clause agree to "waive" the right of their insurer to file a subrogation claim after paying for a loss. The public policy accepted by many courts acts to prevent divisiveness among parties with ongoing commercial relationships and promote economic efficiency because only one party needs to insure the risk.  However, this risk shifting policy is only realized where the waiver itself prevents litigation.

Palazzolo's One-Two Punch to the Wetlands Takings Doctrine: Are Massachusetts Wetlands at Risk?

Author: David M. Bae
Publication: 37 NEW ENG. L. REV. 781 (2003)

The Palazzolo Court ruled in favor of the property owner on both of these issues. With respect to the investment-backed expectations prong, the Court held that a landowner who purchased land with notice that the use of the land was limited by wetlands restrictions prior to his purchase was not barred from seeking compensation for a regulatory taking. The Court referred to rare situations in which a prior landowner would not be able to fulfill the ripeness requirements for a challenge to an unconstitutional wetlands regulation, and a subsequent owner would be burdened with the regulations that were in place at the time he acquired the land. ... Massachusetts' superior courts could see an influx of wetlands owners seeking compensation under a takings claim where the landowner has not applied for a specific development; yet under Palazzolo, the developer could claim that she knows the amount of development permissible on her land to a "reasonable degree of certainty.
Addressing Venue in Defense of Attorney Malpractice Claims

Author: Michael E. Jusczyk and Christopher G. Betke
Publication: The Voice, DRI (2010)

This article, co-authored with Christopher Betke, Esq., a founding partner of Coughlin Betke LLP, addresses several potential venue-based defense to attorney malpractice claims. The article provides a road-map to determine whether an action’s venue is “improper” or, if it has been filed in a “proper” venue, whether there are alternative venues to which it may be transferred. Procedural requirements for preserving and pressing each type of venue defense are also covered, along with the potential strategic or tactical benefits that may be realized by pursuing these defenses.
The Elimination of Causation in 93A Actions Against Insurers

Author: John D. Boyle
Publication: Boston Bar Journal

Chapter 580 of the Acts of 1989 effected an amendment to sections 9 and 11 of Chapter 93A which significantly alters the calculation of damages recoverable by a plaintiff in a 93A action. This amendment, however, was poorly drafted and raises significant questions as to the issue of causation and the issue of retroactive application.
Insurance Coverage for Punitive Damages and Intentional Conduct in Massachusetts

Author: John D. Boyle
Publication: 25 NEW ENG. L. REV. 827 (1990-1991)

Summary / Lead In: Liability insurance coverage for punitive damages has become the subject of considerable controversy in recent years. Insurers in Massachusetts have traditionally taken the position that intentional conduct and punitive damages are not covered by liability policies. A review of standard form liability policies and the various punitive damage statutes, however, raises questions about the correctness of this position. Insurers are continuing to litigate over the type of conduct that falls within the scope of “intentional act” exclusion of standard form liability policies.
The Reasonable Expectations Doctrine in Massachusetts Insurance Law

Author: John D. Boyle

Several recent Massachusetts appellate cases have signaled that the doctrine of “reasonable expectations” has been adopted as a rule of construction in insurance policy coverage disputes. Under this doctrine a court will construe a policy in accordance with the reasonable expectations of the insured even if those expectations are contrary to the ambiguous language of the policy. Massachusetts court decisions have not yet, however, clarified whether the determination is reasonable expectations is a question of law or a question of fact. A related issue is whether a “subjective” as opposed to an “objective” standard will be used to evaluate reasonable expectations. Finally, the courts have not clarified which party – the insured or the insurer – has the burden of proof on these questions.
Recent Developments in the Calculation of Damages Against Insurers Under Massachusetts General Laws Chapter 93A, the Consumer Protection Act

Author: John D. Boyle
Publication: 32 NESL L. REV. (2007)

Prior to 1989, the case law on the issue of how damages were calculated in so-called “bad faith” cases against insurers was well-developed and in harmony with common law principals of causation. It was also commonly understood that the legislative purposes underlying the Consumer Protection Act, Massachusetts General Laws Chapter 93A, were well-served by the existing method of awarding both compensatory and punitive damages.
Representing a Canadian Truck Driver

Author: Thomas J. Fay and Andrew B. Ranks
Publication: For the Defense, DRI (2010)

Canadian truckers are involved in nearly 5,000 fatal accidents in the United States each year, and more than 12,000 additional accidents involving injuries. The purpose of this article is to assist defense counsel to handle cases involving Canadian truck drivers and trucking firms. Regulations, border concerns, language barriers and cultural issues all inevitably impact a case involving a Canadian trucker or trucking firm. Unless defense counsel is aware of the issues that differentiate a case involving a Canadian trucker or trucking firm from other trucking cases up front, counsel will face legal and practical disadvantages that may be difficult to overcome later in the case.
The Department of Industrial Accidents - Using Technology to Make the Workers' Compensation System More Efficient

Author: Teri A. McHugh
Publication: The Standard

Massachusetts Workers’ Compensation attorneys may recall fifteen years ago, when the Department of Industrial Accidents’ (“DIA”) Forms could only be obtained at the regional offices of the DIA and had to be typed or hand written. In 1995, the DIA developed its website (www.mass.gov/dia). Over the past ten years, the DIA has continually updated its website with technological advances to make the system more user friendly. The DIA’s website provides a wealth of information and resources to attorneys, insurers, employers and employees. All necessary forms and instructions can be obtained and downloaded on this website. The following will detail the current status of the DIA website and future developments.
Sanchez v. Wal-Mart: A Potential Expansion Of Pharmacist Liability

Author: Mark W. Shaughnessy and Robert W. Stetson

The concept of a “duty” as applied in tort law is based largely on societal values. This article discusses the development of duties in general and, specifically, in the area of pharmacist liability
Using Prior Claims and Lawsuits in Aggravation of Injury Cases

Author: Robert W. Stetson and Thomas J. Fay
Publication: The Voice, DRI (2011)

Prior claims and lawsuits can speak volumes about a plaintiff in a personal injury case; however, they are not always admissible at trial. This article explains how to develop a theory of admissibility for prior claims and lawsuits in aggravation of injury cases.
Anonymous Tips Reporting Drunk Driving: Rejecting a Fourth Amendment Exception for Investigatory Traffic Stops, 45 New England Law Review 167
Publication: New England Law Review 167 (2010)
First Circuit Establishes Less Demanding Requirement of Particularized Need to Access Prior Grand Jury Testimony, 43 Suffolk U. L. Rev. 759 (2010)
Criminal Law - Special Needs Test Applies to Fourth Amendment Analysis of DNA Backlog Elimination Act - United States v. Weikert, 421 F. Supp. 2d 259 (D. Mass. 2006)
Constitutional Law - Congress's Authority to Abrogate State's Eleventh Amendment Immunity Under Title II - Toledo v. Sanchez, 454 F.3d 24 (1st Cir. 2006), cert. denied No. 06-779, 2007 WL 789372