Recent Wins in 2011

Representing a defendant oil company, Attorney Matthew Lindberg successfully obtained a dismissal of a second lawsuit arising out of an oil spill on a residential property. In their first suit, the homeowner plaintiffs alleged that the defendant oil company negligently caused property damage when 515 gallons of oil were erroneously delivered to a 275 gallon tank. They further alleged that the oil company and other defendants were negligent in their subsequent remediation efforts. After protracted and contentious litigation, the parties agreed to a remediation plan and settlement of all claims. The Settlement Agreement drafted by counsel for the defendants provided that the plaintiff's "sole and exclusive remedy shall be to seek specific performance of this agreement" and not any additional monetary damages. The defendants insisted on this language given the history of the case. When the plaintiffs resisted such a term at the time of settlement, the defendants sought court intervention and secured a court order mandating its incorporation into the agreement. Following settlement of the first claim, the plaintiffs became unhappy with the remediation efforts and filed a second action against the oil company and others for failing to adhere to the agreed remediation plan and for violation of c. 93A. The defendants moved to dismiss the Complaint. In its decision allowing the motions to dismiss, the Court rejected the plaintiffs' argument that a release of future claims for monetary damages was ineffectual and dismissed the plaintiffs' Complaint.

In a U.S. District Court case involving an injured worker who alleged he sustained serious and permanent brain injuries after a fall at work, Attorneys Paul Rainville and Courtney Mayo successfully argued a motion for summary judgment on behalf of the manufacturer of a component part of the fall protection system used by the plaintiff. The plaintiff alleged that his fall protection system initially worked for about ten seconds, leaving him suspended approximately ten feet above a cement floor, but then failed causing him to strike his head on the floor. He filed an action against the manufacturer of the fall arrest equipment who then bought in the manufacturer of a metal swivel jaw assembly used in the device, alleging that a wire ring in the swivel jaw had failed during the plaintiff's fall. Attorneys Paul Rainville and Courtney Mayo filed a Motion for Summary Judgment on behalf of the manufacturer of the swivel jaw assembly, arguing that the wire ring had not failed but appeared to have been cut. The defense further argued that the subject wire ring had been misplaced by the employer sometime after the initial inspection and, as such, no expert could perform a root cause analysis on the alleged failure of the wire ring. The defense further argued that without the use or inspection of the wire ring, the plaintiff would be unable to meet his burden to prove that the defective part caused the plaintiff's accident. The defense asserted a Daubert challenge as to plaintiff's liability expert on the grounds that the expert could not testify to a reasonable degree of certainty what "more probably than not" caused the incident as a result of the spoliation of evidence. Judge Zobel granted the Motion for Summary Judgment in favor of the manufacturer of the wire ring.

In an action arising out of a drainage easement and flooding to a residential property, the plaintiff sought declaratory and injunctive relief and claimed that she had an appurtenant drainage easement across the defendant's property. The plaintiff further sought reimbursement for installation of a new drainage system following flooding to the property. Attorney Danielle Maloney filed a Motion to Dismiss arguing that plaintiff's service was improper pursuant to Rule and 12(b)(5), that the plaintiff failed to state a claim pursuant to Rule 12(b)(6) and the plaintiff failed to join indispensable parties requiring dismissal pursuant to Rule 12(b)(7) and 19. The court dismissed the action for defective service, but also indicated that if the plaintiff attempted to re-file the action, the court would dismiss same based on the merits of the case.

Attorney Matthew Lindberg successfully moved for summary judgment against the proprietor of a laundromat who claimed that he was over-charged by the Town Water and Sewer Commission. Maintaining that a sewer rate based on capacity, rather than actual usage, was unjust and inequitable, the plaintiff brought claims of unjust enrichment, interference with advantageous business relationships and violation of Chapter 93A. In his written decision allowing the defendant's motion, Judge David Ricciardone acknowledged that the plaintiff's sewer bill increased approximately 400% when the Commission changed the formula of its sewer rate to one based on capacity. He also recognized the novelty of the case, noting the lack of appellate caselaw squarely addressing the issue since 1900. Nonetheless, the court found that the plaintiff introduced no evidence to support its claim that the Commission exceeded its authority. The court entered judgment in favor of the defendant on all counts.

In an age discrimination claim filed by a former school principal against a local private school, Courtney Mayo successfully argued that the claimant was not terminated from his position as the result of any discrimination, but rather his contract was not renewed as a result of his continued poor job performance. The 69-year old claimant argued that the defendant school discriminated against him when it attempted to "force" him to retire and replaced him with a younger principal. The EEOC ruled in favor of the respondent and found there was no probable cause for any age discrimination case. Following this decision, the claimant elected not to appeal or pursue this matter in civil court.

Attorney Peter Barrett obtained partial summary judgment in a case involving a severely injured subcontractor who fell from an unstable ladder while constructing an addition to a residential property. As a result of his fall, the injured contractor claimed damages in excess of $2 million dollars and including permanent paraplegia confining him to a wheelchair and necessitating life-long medical care. The plaintiff contractor entered into an agreement with the defendant homeowners to construct an addition to the defendant's property. During inclement weather, the plaintiff contractor decided to stop working for the day, but was advised by the homeowner / general contractor to continue with the exterior work although the weather conditions made it dangerous to do so. Further, the plaintiff contractor attempted to stabilize his ladder with plywood and also placed plywood over an exposed hole, but defendant homeowner removed the plywood and advised the contractor that he could not use the homeowner's plywood. The defendant homeowners filed a counterclaim against the plaintiff contractor, alleging that the contract the parties had entered into provided indemnification to the homeowners and constituted an agreement to hold the homeowners harmless for the negligence of the plaintiff contractor. The defendant homeowners then moved for summary judgment arguing, in part, that provisions of the contract relieved them of responsibility to the injured plaintiff and citing the exclusivity provisions of the worker's compensation statute. Attorney Peter Barrett represented the plaintiff contractor in the counterclaim. Attorney Barrett successfully argued that the hold harmless clause the defendants were relying upon should be deemed void and against public policy (General Statutes § 52-572k(a)) insofar as it attempted to hold the plaintiff contractor individually responsible for injuries arising from his own work without limitation as to whether the plaintiff's or the defendants' negligence actually caused the injury. Judge John Danaher, III, denied the homeowner's motion for summary judgment and allowed, in pertinent part, the plaintiff contractor's motion for summary judgment. The allowance of the motion permitted the contractor to argue that the homeowners had suffered no demonstrable harm as a result of any breach of contract arising from his failure to secure general liability insurance (individually) and, as such, were only entitled to nominal damages. On the eve of trial and with the bulk of the defendant homeowners' defenses now eliminated, the parties reached a settlement consistent with the judge's decision calling for only nominal damages to be paid by the plaintiff contractor / counterclaim defendant. The insurer for Attorney Barrett's client agreed to a contribution to the settlement in the nominal amount of $15,000 and the homeowners / general contractors' insurer agreed to pay $935,000 as the foundation of its counterclaim had crumbled with the allowance of Attorney Barrett's motion for summary judgment.

Attorney Scott Ober successfully defended an insured snow removal contractor to a defense verdict in a Connecticut jury trial. The plaintiff claimed she sustained serious injuries including a fracture of the left ankle requiring ORIF surgery when she fell on snow and ice in a commercial parking lot. She also alleged a 7% permanent impairment of the left foot and ankle as a result of her injuries. The jury trial proceeded in Harford Superior Court before Judge Robaina. Attorney Ober argued that the last snow storm had occurred approximately one week before the plaintiff fell and that the evidence showed the snow removal contractor had treated the area with "lava melt" prior to the plaintiff's fall. He further argued that the property owner had not made any requests to the insured snow removal contractor to perform any additional snow removal work prior to the date of loss. Lastly, Attorney Ober argued that the plaintiff was very familiar with the subject parking lot, parked in the same spot and walked the same route every day, including the days leading up to her fall. After a multi-day trial, the jury returned with a defense verdict.

Representing an insurance company in a declaratory judgment component of a Multi-District Litigation action stemming from the alleged sale and installation of Chinese Drywall, Attorneys David Hassett and Sarah Christie prevailed on a Motion to Dismiss for Lack Of Personal Jurisdiction following oral argument before the U.S. District Court – Eastern District of Louisiana. The plaintiff, The Trustee of the Chinese Drywall Trust, asserted claims for breach of contract and sought a declaration that numerous insurers were obligated to indemnify the Trust for claims that might be brought against it related to the development and sale of homes in Florida by a large property development company and its subsidiaries. The plaintiff alleged that the development company was named as an additional insured under the insurance policies of certain subcontractors that allegedly supplied and/or installed Chinese Drywall in the claimants' homes. Attorneys Hassett and Christie successfully argued that the pending action should be dismissed against the insurer as there were insufficient minimum contacts in Louisiana to maintain personal jurisdiction. Following a lengthy hearing in the U.S. District Court – Eastern District of Louisiana, Judge Eldon Fallon ruled in favor of our client and granted the Defendant's Motion to Dismiss. Thereafter, Attorneys Hassett and Christie again prevailed on a Motion to Dismiss for Lack of Personal Jurisdiction filed in another case pending in the Chinese Drywall Multi-District Litigation in Louisiana.

Sarah B. Christie obtained a defense verdict after an 8-day trial in Worcester Superior Court in a case involving a trip and fall on a sidewalk. The elderly plaintiff alleged she sustained serious injuries including a fractured left shoulder and torn rotator cuff requiring surgery when she tripped and fell on a 1-2 inch lip of pavement left by a contractor on the sidewalk in front of the homeowners' property. Plaintiff also developed an infection which required multiple additional surgeries, a 21-day hospitalization and several months of IV antibiotic treatment. The plaintiff sued the contractor who then brought a Third-Party Complaint against our clients, the homeowners, and the developer of the property. At trial, the contractor claimed that the homeowners should have warned the plaintiff of the condition of the sidewalk. After deliberations, the jury returned a verdict finding no negligence on the part of our clients, the homeowners, but awarded the plaintiff $700,000 based on findings of negligence against the developer and contractor.

David F. Hassett and Sarah B. Christie obtained a defense verdict after a 7-day trial in Essex Superior Court in an action arising from a construction site accident and a claim for contractual indemnity by a general contractor against a subcontractor. The plaintiff, an employee of the subcontractor, claimed injuries after a fall from staging at a construction site. The plaintiff brought an action against the general contractor who then named our client, the subcontractor, as a third-party defendant. The Third-Party Complaint filed against the subcontractor included a claim for contractual indemnity based on an unsigned copy of an AIA Standard Form Agreement which was attached to the pleading. For approximately three years, the general contractor produced only an unsigned copy of this Standard Form Agreement and pursued its claim for contractual indemnity against the subcontractor based on this unsigned document. After being served with a Motion for Summary Judgment by the subcontractor, however, the general contractor inexplicably produced a photocopy of a purportedly executed version of the contract, which the general contractor later maintained was found in his office. Shortly thereafter, the general contractor settled the plaintiff's injury claims against it for $600,000 and sought recovery of the entire $600,000, plus attorney's fees and costs, from the third-party defendant subcontractor. At trial, the parties called competing handwriting experts / forensic document examiners to address the issues surrounding the validity of the signed contract. The general contractor's expert testified that the questioned document contained the subcontractor's signature. The subcontractor's expert testified that while the signature may indeed have been that of the subcontractor, microscopic examination of the document revealed that the signature had been transferred from another document and "cut and pasted" onto the contract. The jury deliberated over two days, returning with a defense verdict in favor of the third-party defendant subcontractor and finding that there was no valid written indemnity agreement.