COMMONWEALTH OF MASSACHUSETTS COMPENDIUM OF LAW Prepared by John F.X. Lawler William F. Burke Adler Pollock & Sheehan, P.C. 175 Federal Street Boston, MA 02110 617-482-0600 Updated 2012 PRE-SUIT AND INITIAL CONSIDERATIONS Pre-Suit Notice Requirements/Prerequisites to Suit Indicated below are situations where a plaintiff must ordinarily give notice or a written presentment of a claim to the defendant within a certain timeframe as a suit precondition. The referenced statutes indicate the proper party to whom notice must be given. A) Automobile insurance claims. Notice to both the police and the insurer within twenty four hours of the accident is required pursuant to most Massachusetts motor vehicle policies. Failure to comply may result in uninsurance benefits being barred. Harm to the insurer due to lateness of the notice is not required in order for the insurer to disclaim coverage. See Royal-Globe Ins. Co. v. Craven, 411 Mass. 629 (1992). Standard policies require "prompt notice" be given to the insurer for most other claims, including underinsured motorist coverage claims. In an underinsured motorist claim situation, "an insurer must prove that it was prejudiced by an insured delay in notifying it" if the insurer seeks to disclaim coverage for late notice. See Goodman v. Am. Cas. Co., 419 Mass. 138, 141 (1994). B) Consumer Protection Act. "At least thirty days prior to the filing of [an action by a consumer under this Act], a written demand for relief, identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered, shall be mailed or delivered to any prospective respondent.” MASS. GEN. LAWS ch. 93A, § 9 (2009). "An adequate demand letter will define the injury suffered and the relief demanded in a manner that provides the prospective defendant with an opportunity to review the facts and the law involved to see if the requested relief should be granted or denied and enables him to make a reasonable tender of settlement.” Simas v. House of Cabinets, 53 Mass. App. Ct. 131, 139 (2001). The consumer must send the demand letter to the defendant and allow thirty (30) days for response, unless the claim is asserted by way of counterclaim or cross-claim, or if the prospective defendant does not keep assets in the Commonwealth. See Crosby Yacht Yard, Inc. v. Yacht “Chardonnay”, 159 F.R.D. 1, 3 (D. Mass. 1994). C) Legal malpractice insurance coverage. Most legal malpractice insurance policies require prompt written notice be given by the attorney to his insurance carrier once anyone insured under the policy becomes aware of the claim. It should be noted that an insurer can disclaim coverage for late notice without having to prove it was harmed by the delay because such policies are made on a "claims made" basis, as opposed to an "occurrence" basis. See Chas T. Main, Inc. v. Fireman's Fund Ins. Co., 406 Mass. 862, 865-66 (1990). D) Massachusetts Tort Claims Act. Written presentment of a claim must be made within two years time of tort. See MASS. GEN. LAWS ch. 258, § 4 (2009). The purpose of the presentment requirement is to "ensure that the responsible public official receives notice of the claim so that that official can investigate to determine whether or not a claim is valid, preclude payment of inflated or non-meritorious claims, settle 1 valid claims expeditiously, and take steps to ensure that similar claims will not be brought in the future." Rodriguez v. Cambridge Housing Auth., 59 Mass. App. Ct. 127, 134 (2003) (internal citations omitted). Due to the fact the Federal Tort Claims Act and Massachusetts Tort Claims Act provide immunity for the individual government employees involved in a tort, there is the possibility that the notice period will expire before the plaintiff is able to determine that an apparent tortfeasor was actually acting as a government employee. The problematic result would then be that the suit against the employee may be barred by immunity and suit against the government may be barred by lateness of notice. See, e.g., Krasnow v. Allen, 29 Mass. App. Ct. 562, 570 (1990). E) Defective public way. Notice is required to be given in thirty (30) days. See MASS. GEN. LAWS ch. 84, §§ 15, 18 (2009); see also ch. 81, § 18 (for state highways). F) Snow or ice on a public way or private property. Notice must be given in thirty (30) days. See MASS. GEN. LAWS ch. 84, §§ 17, 18, 21 (2009). Defendants should note that failure to give such notice shall not be a defense unless the defendant proves prejudice. MASS. GEN. LAWS ch. 84, §§ 18, 21. G) Ski area operator's negligence. Written notice is required within ninety (90) days. See MASS. GEN. LAWS ch. 143, § 71P (2009). Furthermore, "[a]n action to recover for such injury shall be brought within one year of the date of such injury." Id. H) UCC - Uniform Commercial Code breach of warranty claims (including product liability). Notice should be given within a reasonable time after the defect has been or should have been discovered. MASS. GEN. LAWS ch. 106, § 2-607(3)(a) (2009). "Failure to give notice shall not bar recovery . unless the defendant proves he was prejudiced thereby." MASS. GEN. LAWS ch. 106, § 2-318. Relationship to the Federal Rules of Civil Procedure The Massachusetts Rules of Civil procedure, adopted in 1974, were patterned on the Federal Rules of Civil Procedure. Van Christo Adver. v. M/A-COM/LCS, 426 Mass. 410, 414 (1998). In construing the Massachusetts Rules, the Supreme Judicial Court follows the construction given to the Federal Rules "absent compelling reasons to the contrary or significant differences in content." Id. (citing Rollins Envtl. Servs. v. Superior Court, 368 Mass. 174, 179-180 (1975)). The Massachusetts Rules are not statutory, but were promulgated under statutory authority and in close cooperation with the Legislature. See General Elec. Co. v. Dept. of Envtl. Protection, 429 Mass. 798, 806 (1999). Several portions of the Massachusetts Rules closely track the Federal Rules of Civil Procedure. See Van Christo Adver., 426 Mass. at 414 (construing Massachusetts rule 11 (a) pursuant to the construction given to the federal rule); Casavant v. Norwegian Cruise Line, Ltd., 63 Mass. App. Ct. 785, 790 (2005) (finding motion practice under the Massachusetts Rules of Civil Procedure tracks the federal rules); Frizzell v. Wes Pine Millwork, Inc., 4 Mass. App. Ct. 710, 712 (1976) (finding MASS. R. CIV. P. 32(a) tracks the Fed. R. Civ. P. 32(a)). 2 Description of the Organization of the State Court System A) Judicial appointments. In Massachusetts, Judges are appointed and not elected. "Under [the Massachusetts] Constitution, the Governor has the exclusive power to nominate and appoint "all judicial officers." Lambert v. Exec. Dir. of the Judicial Nominating Council, 425 Mass. 406 (1997) (citing MA CONST. pt II, ch. 2, § 1, art. 9). B) Structure. The Massachusetts court system consists of three court tiers: The Supreme Judicial Court, the Appeals Court, and the Trial Court. 1) Supreme Judicial Court. The Massachusetts Court System website states: The Supreme Judicial Court is the highest court of the Commonwealth. It has general powers of superintendence over all other courts. It sits primarily as an appellate court, and hears all appeals in first degree murder cases and appeals which have been transferred to it from the Appeals Court. It is also a court of original jurisdiction in certain cases. It oversees the Massachusetts bar, through the Board of Bar Examiners, the Board of Bar Overseers, the Office of Bar Counsel, and the Clients' Security Board. Administrative Office of the Trial Court, Commonwealth of Massachusetts, The Massachusetts Court System: Overview of the Judicial Structure, available at http://www.mass.gov/courts/courtsandjudges/courts/overviewofjudicialstructure.h tml (last visited April 6, 2012). 2) Appeals Court. The Appeals Court has jurisdiction over most cases that are appealed from the various Departments of the Trial Court. It also considers appeals from a few State agencies. It is headquartered in Boston and serves all of Massachusetts. Id. 3) Trial Court. The Trial Court has seven departments. They include: the Boston Municipal Court Department, the District Court Department, the Housing Court Department, Juvenile Court Department, Land Court Department, Probate and Family Court Department, and the Superior Court Department. The District Court Department of the Trial Court has its own Appellate Division of the District Court. See id. C) Mandatory Alternative Dispute Resolution. Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution requires that all clients be informed of alternative dispute resolution. S.J.C. Rule 1:18 (2008). The rule indicates that [c]lerks shall make information about court-connected dispute resolution services available to attorneys and unrepresented parties. This information should state that selection of court-connected dispute resolution services can occur at the early intervention event or sooner, and that no court may compel parties to mediate any 3 aspect of an abuse prevention proceeding under G.L. c. 209A, § 3 . Attorneys shall: provide their clients with this information about court-connected dispute resolution services; discuss with their clients the advantages and disadvantages of the various methods of dispute resolution; and certify their compliance with this requirement on the civil cover sheet or its equivalent. SUP. JUD. CT. R. 1:18, § 5 (2008). Service of Summons MASS. R. CIV. P. 4 (2010) indicates the manner in which service of the summons and complaint is made within Massachusetts: A) Individuals. An individual may be served by delivery to the defendant personally, leaving the papers at the defendant's last and usual place of abode, delivery to the defendant's agent.