Gibson Behman PC

2008 News

Disclaimer: Past results do not indicate future results, which are dependent upon the particular facts and circumstances surrounding each client’s case.

Gibson & Behman, P.C. participates in the “Jimmy V. Classic” in the fight against Cancer

Gibson & Behman, P.C. is very proud to announce that for the eighth straight year they participated in the “Jimmy V. Men’s Basketball Classic” at Madison Square Garden, a charity basketball showcase featuring four of the nation’s elite men’s basketball programs. Numerous clients and friends of the firm attended the “Villanova v. Texas” game and all of the proceeds from this event went to fighting cancer in the memory of the great Coach Jimmy Valvano. The night was a big success for a great cause.

From the V Foundation website:

The V Foundation started with the dream of Jim Valvano, the passionate and committed former NC State basketball coach and award-winning broadcaster, as he battled cancer. Wanting to see the battle through to victory, Valvano recruited friends and family to lead The V Foundation in his quest to eradicate the disease that ultimately claimed his life. With a dire need for early developmental, critical-stage grant support, the Foundation was formed to assist the brilliant young researchers that will eventually find cures for cancer.

G&B Prevails on Behalf of Sizzler Restaurant in Bronx County Slip and Fall Case

G&B’s New York City office obtained a defense verdict in a recent trial in the Supreme Court of Bronx County, New York. The case involved a claim based on negligence in the ownership, operation and control of the establishment. Trial lasted for five days and resulted in a defense verdict.

This was a personal injury action arising out of an alleged fall, which occurred at the Sizzler Restaurant located in Bronx, New York, on or about April 10, 2004. The plaintiff claimed that she slipped on a wet substance and fell in the ladies’ bathroom floor at Sizzler. As a result of the fall, plaintiff alleged that she sustained a dislocated shoulder.

The plaintiff alleged that Sizzler Restaurant was negligent in creating a dangerous condition by allowing water and/or liquid to accumulate on the floor of the bathroom, which caused plaintiff to slip and fall and injure herself. Plaintiff further alleged that Sizzler was negligent in failing to warn of this condition and/or cordon off the area.

Plaintiff was seventy-four years old at the time of her alleged fall and was at the Sizzler Restaurant with her church group for brunch. Plaintiff testified that she did not see wetness on the floor before or after her fall and the only reason she believed there was water on the floor was because the tail-end of her dress was wet. During the trial various witnesses from the church testified on behalf of the plaintiff going so far as to say that they saw the wet floor which allegedly caused plaintiff’s fall. However, on cross-examinations, these witnesses were confronted with statements they gave to an investigator which told a completely different story.

As a result of the inconsistencies, the jury did not find these witnesses credible and gave credence to several employees of Sizzler who were called as witnesses. The Sizzler witnesses testified to the policy and procedures regarding mopping the bathroom floor and at least two of these witnesses testified that immediately after plaintiff’s fall they checked the bathroom and found the floor to be dry.

After approximately one hour of deliberation, the jury returned a verdictfinding that Sizzler was not negligent. The jury never reached the issue of damages.

G&B Attorneys present at National Valet Parking Association Conference

Dan Gibson and Christopher Cifra were featured speakers at the National Valet Parking Association Conference held in Boston November 12-14. Due to their experience in the area of transportation law and knowledge of legal developments in the country, they presented a seminar addressing how valet companies in a variety of settings can avoid future liability claims. They also addressed significant legal trends and developments in the country that pose risk to the valet and transportation businesses. The conference was held at the Jury’s Doyle Hotel and extremely well attended with members coming from all over the country. Click here to view the presentation.

DEFENSE VERDICT IN CASE AGAINST RESTAURANT FOR ALLEGED FOOD POISONING

Attorneys Lawrence Lafferty and Candace Moss of G&B’s Florida office recently obtained a defense verdict in a negligence action against a restaurant located in Broward County, Florida. The plaintiff alleged she became violently ill due to food poisoning after eating lunch at the insured’s restaurant.

On September 13, 2006, plaintiff and approximately eight co-workers took another co-worker to lunch at the insured’s restaurant to celebrate her birthday. After consuming lunch and returning to the office, plaintiff claimed she became violently ill. However, the evidence showed plaintiff did not become ill until at least 36 hours after consuming food at the insured’s restaurant. The evidence further showed plaintiff did not seek medical attention until at least 48 hours after consumption. The plaintiff offered the testimony of two co-workers who claimed they also felt ill. The defense called the general manager who testified as to the restaurant’s practices regarding the preparation of its products and its compliance with state and federal law.

The defense argued out of 782 people who consumed food at the insured’s restaurant, the week of this incident and 105 people who consumed food at the insured’s restaurant, on the day of the incident, only the Plaintiff and two of her co-workers reportedly felt ill. The defense focused on the fact that the medical records did not conclusively show plaintiff had food poisoning, particularly a negative stool culture which is used to detect food poisoning. The defense outlined plaintiff’s history of gastro-intestinal problems, including a diagnosis 10 years ago with gastrological problems. Further the defense pointed out plaintiff having similar symptoms approximately one year after the incident at the insured’s restaurant.

After a day and a half of trial in the 17th Judicial Circuit in and for Broward County Florida, the jury found no negligence on the part of the insured restaurant. The plaintiff’s demand was for $45,000.

KEVIN O’NEILL OF G&B’S NEW HAMPSHIRE OFFICE APPOINTED ASSISTANT ATTORNEY GENERAL FOR STATE OF NEW HAMPSHIRE

Gibson & Behman, P.C. is pleased to announce that Kevin O’Neill has been appointed an Assistant Attorney General for the State of New Hampshire. Kevin has served very well in the last seven years helping direct the Florida Practice Group. We wish him and his family all the best in his new position.

LAWRENCE LAFFERTY APPOINTED DIRECTOR OF FLORIDA OFFICE

We are extremely pleased to announce that Lawrence Lafferty has been appointed Director of the Florida operations. Mr. Lafferty comes from an impressive insurance defense background spanning twenty-five years. He attended the University Michigan where he received his undergraduate degree in 1980, and he received his law degree at Vermont Law School in 1983.

Mr. Lafferty has worked for many of the major insurance companies and actually was in-house counsel for CNA for a number of years. For the past ten years, he has been working in the State of Florida for many other insurance companies including Mercury Insurance. He has a distinguished trial record and brings a wealth of experience in all aspects of insurer representation

DEFENSE VERDICT IN CASE AGAINST TAVERN WHERE DESIGNATED DRIVER INVOLVED

Attorneys Scott Behman and Dan Shanahan of G&B’s Burlington office recently obtained a defense verdict in a liquor liability case against a Hospitality Mutual Insurance Company insured, a tavern located in Lowell, Massachusetts. The plaintiff alleged the he was a passenger in a vehicle operated by his companion who was negligently served alcohol by the tavern. The vehicle was later involved in a high speed accident on a highway in Chelmsford.

On May 2, 2005, the plaintiff and two companions arrived at the defendant tavern and were served alcohol. At some point during the evening, the bartender “shut off” the alleged driver and the plaintiff. There was a dispute as to whether the bartender served the alleged driver after shutting him off. There was evidence that the bartender, who was familiar with these individuals, offered them a ride home, or in the alternative, offered to call a taxi. The patrons refused. The bartender then designated a third member of the group, who had only consumed one beer and did not appear intoxicated, to drive the group to his house in Lowell. There was undisputed testimony that the bartender escorted the group outside, and observed the designated driver enter the driver’s seat. There was evidence that after the group arrived at the designated driver’s house, the plaintiff got into the driver’s seat and attempted to find a friend’s house in Chelmsford. While traveling on Route 495, the vehicle swerved off the roadway into the median, struck an embankment, and rolled over several times, coming to a rest on its roof. The plaintiff was ejected, and the other occupant was entrapped in the vehicle. Based on observations made at the accident scene, State Police determined that the entrapped occupant was the operator at the time of the accident.

As a result of the accident, the plaintiff suffered an intracranial hemorrhage, a fractured neck requiring subsequent surgery, loss of vision in one eye, and other injuries. The plaintiff claimed that he was unable to work as a result of the traumatic brain injury, and offered evidence from an economist for loss of earning capacity exceeding two million dollars. The plaintiff incurred approximately $186,000 in medical expenses. The defendant disputed the extent and severity of the plaintiff’s traumatic brain injury and other injuries caused by the accident, and offered expert testimony through a neurologist and neuropsychologist.

The defense argued that for the tavern to be found liable, the plaintiff must prove who was operating the vehicle time of the accident. The plaintiff offered testimony from several witnesses, including State Police troopers, a State Police accident reconstructionist, and a medical expert. The defense called its own accident reconstructionist and medical expert, who testified that the plaintiff was the operator. The defense argued that if the jury found that the plaintiff was a passenger, then the bartender did not continue to serve alcohol to the driver after shutting him off. The defense also argued that it was not foreseeable that the plaintiff and the alleged driver would abandon the plan of staying at the designated driver’s house and attempt to drive to another party.

After eight days of trial in Lowell Superior Court, a Middlesex County jury found that the alleged driver was not the operator of the vehicle at the time of the accident, and judgment entered in favor of the tavern. The plaintiff’s demand was $500,000, the policy limits for the insured. No offer was ever made.

Subrogation Action- Doing Your Homework Counts - View PDF

G&B’S PREVAILS ON MOTION FOR SUMMARY JUDGMENT IN MARYLAND NEGLIGENCE ACTION

Attorneys Theodore Heiser and John Locus recently prevailed on a motion for summary judgment in a personal injury claim. The case arose out of a physical altercation that took place at a Maryland restaurant, which the plaintiff alleged was caused by the restaurant’s negligent training and supervision of its employees and its failure to protect the plaintiff from reasonably foreseeable harm. Roese v. Reckless Ric’s, et al. was pending in the United States District Court in Baltimore, Maryland.

G&B disputed the plaintiff’s assertion that a prior incident between the restaurant and alleged assailant put the restaurant on notice of the alleged assailant’s violent tendencies. The prior incident involved a disagreement between the alleged assailant and the restaurant manager over a discrepancy in the alleged assailant’s bar tab. Believing that he was being overcharged, the alleged assailant called the restaurant manager an “asshole” and was subsequently barred from the restaurant for thirty days.

G&B successfully argued that under Maryland law, coarse language and spirited disagreements fail to put a party on notice that someone has a proclivity toward physical confrontation. The prior incident was neither violent nor physical in nature, and none of the restaurant employees ever felt threatened by the alleged assailant’s behavior. Therefore it did not qualify as prior notice under Maryland law.

The plaintiff argued that he was entitled to an inference in his favor arising out of the restaurant’s alleged breach in its duty to preserve video recordings of the assault on the plaintiff. The plaintiff asserted that his friends’ request to obtain copies of said recordings, coupled with the seriousness of the altercation, put the restaurant on notice that litigation was reasonably foreseeable.

Judge Motz of the United States District Court in Baltimore disagreed, finding the restaurant had no policy at the time of the altercation that recordings must be preserved if requests were made for the same. Rather, it would only preserve the recordings and turn over a copy if requested by an attorney or police officer. When the request finally came from plaintiff’s counsel, the surveillance system had already automatically written over the video recordings of the altercation. Furthermore, the restaurant had not previously been involved in similar lawsuits, which might have put them on notice that litigation might arise from the altercation at issue. Judge Motz therefore granted the defendant restaurant’s motion for summary judgment.

G&B ATTORNEYS PRESENT LIABILITY AND EMPLOYMENT SEMINAR TO PROMINENT BOSTON BASED RESTAURANT GROUP

Attorneys Sharmili P. Das and Matthew E. Mantalos of G&B’s Burlington office recently conducted a seminar/discussion session for one of New England’s finest restaurant groups. Ms. Das and Mr. Mantalos addressed the franchise’s management from all of its restaurants throughout Massachusetts and Connecticut on emerging issues in Massachusetts wage law, sexual harassment/hostile work environment, incident report writing, and premises liability actions arising from alcohol service.
The focus of the discussion was aimed at preventive measures for the management to employ to shield the business from potential liability. The presentation provided simple, inexpensive and effective strategies through which management can best protect the business.

G&B’S CONNECTICUT OFFICE PREVAILS IN WORKERS’ COMPENSATION CASE

Attorneys Elycia Solimene and Dominic Secondo of G&B’s Connecticut office recently obtained a favorable finding for an employer in a workers’ compensation claim that went to formal hearings. The claimant alleged that he was working at a nursery when he tripped and dropped a flower pot onto his left big toe. The injury to his toe became infected and part of his big toe was subsequently amputated. He filed a workers’ compensation claim alleging that his toe amputation arose out of a work-related injury.
During the course of the three formal hearing sessions, Attorneys Solimene and Secondo were able to elicit testimony from the claimant that he was wearing new boots when the alleged incident occurred. Employees of the respondent testified that the claimant was breaking in new boots at the time of the incident, and that dropping the plant on his foot had caused a blister on his left big toe to pop. Through medical records it was shown that the claimant did not seek treatment for two days and also had pre-existing diabetes, which would have contributed to the severity of the infection to his toe and resulted in the need for amputation.
After hearing testimony and considering submitted findings, the Commissioner found that the claimant had not met his burden in proving that his toe injury arose out of and in the scope of his employment. He found reports that his injury was work-related to be “at best, speculative.” The Commissioner dismissed all of the claims related to the big toe injury.

GIBSON & BEHMAN PREVAILS ON MOTION TO INTERVENE AND DEPOSIT POLICY LIMIT WITH THE COURT

Attorney Brian Dougan of G&B’s Providence office recently argued and prevailed on a motion to intervene in order to deposit policy limits on behalf of an insurance company in a personal injury claim stemming from a motor vehicle accident. This motion was the first of its kind in Rhode Island. The plaintiff allegedly sustained injuries in a five car motor vehicle accident on Interstate 295 in Smithfield, Rhode Island. The plaintiff sued the other drivers involved, and the insurance company for the driver G&B represented tendered its policy limits in an effort to resolve the case. The policy limit was not accepted by the plaintiff.

Under Rule 24 of the Rhode Island Rules of Civil Procedure, upon timely application anyone shall be permitted to intervene in an action: (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest, unless the applicant’s interest is adequately represented by existing parties. Attorney Dougan argued that the policy was offered but not been accepted and no release has been signed which would relieve the insurance company from any further obligations.

As evidence of why the company should be allowed to tender the policy limit and be relieved of its duty to defend, Attorney Dougan offered the full insurance policy, which in pertinent part states:

We have the right to defend any lawsuit brought against anyone covered under this policy for damages which might be payable under this policy. We also have a duty to defend any such lawsuit, even if it is without merit, but our duty to defend ends when we tender, or pay to any claimant or to a Court of competent jurisdiction, with the Court permission, the maximum limits of coverage under this policy. We may end out duty to defend at any time during the course of the lawsuit, by tendering, or paying the maximum limits of coverage under the policy, without the need for a judgment or settlement of the lawsuit or a release by the Claimant.

Based on the policy language, Attorney Dougan argued that should the Plaintiff wish to continue its lawsuit against the insured, the company should not be forced to undergo the expense of defending its insured when it has already tendered its full policy.

Counsel for the insured argued that in the State of Rhode Island there is a duty to defend even if the policy limits are tendered and he cited to the case of Employer’s Fire Insurance Company v. Chester Beals, 103 R.R. 623 (1968), which holds that the insurer's duty to defend a suit brought against one of its policyholders is determined by the allegations contained in the complaint. If the allegations in the complaint fall within the risk insured against in the policy, the insurer is said to be duty-bound to provide a defense for the insured, regardless of the actual details of the injury or the ultimate grounds on which the insured's liability to the injured party may be predicated. Beals further holds that the duty to defend is broader in its scope than the duty of an insurer to indemnify, and its existence does not depend on whether the injured party will ultimately prevail against the insured.

Attorney Dougan countered this argument by stating that the duty to defend is contractual in nature between the insured and its insurance company. In this case the insured is a Massachusetts resident, insured by a policy written in Massachusetts through a Massachusetts insurance company. The case law in Massachusetts and the policy itself are clear that the duty to defend ends when the policy has been tendered or delivered to the Court registry.

The judge agreed with Attorney Dougan’s arguments and ruled that the Motion to Intervene to deposit its insurance policy limits into the Court registry was allowed.

GIBSON & BEHMAN, P.C. PROUD TO SPONSOR 18TH ANNUAL SAINT AUGUSTINE SISTER MARY ROSALIE MEMORIAL GOLF TOURNAMENT

Gibson & Behman was once again proud to sponsor the 18th Annual Saint Augustine Sister Mary Rosalie Memorial Golf Tournament, a fundraiser for the St. Augustine School in Andover, Massachusetts. The Tournament was held on May 27, 2008 at Andover Country Club. Christopher Cifra participated on behalf of the firm and his team finished third in the Mixed Division. This is the eighteenth year that Gibson & Behman, P.C. has sponsored this worthwhile event and school.

Gibson & Behman Grows Its Healthcare Practice

Gibson & Behman, P.C., general counsel for the Massachusetts Ambulance Association, met with Lieutenant Governor Tim Murray to discuss industry issues in May. Dan Gibson and Chris Cifra met with Lt. Governor Tim Murray to discuss issues such as ambulance safety and rate issues. The meeting was attended by 80% of the privately owned ambulance companies in Massachusetts.

Connecticut Supreme Court Eases Plaintiffs’ Burden in Self-Service Premise Liability Cases

The Connecticut Supreme Court recently upheld the application of the “mode of operation” rule in the context of a premises liability claim involving a self-service salad bar. This rule, previously adopted by sister state courts, including Massachusetts, relieves a premises liability plaintiff, under certain circumstances, from proving that a defendant business had either actual or constructive notice of the condition that caused the plaintiff’s injury. Rather, in this limited subset of premises liability cases, the plaintiff’s burden is altered such that he or she must show that (1) “the business’ chosen mode of operation creates a foreseeable risk that the condition regularly will occur” and, (2) “the business fails to take reasonable measures to discover and remove it.”

The plaintiff in this particular matter brought a lawsuit against Stop and Shop, Incorporated, after she slipped and fell on piece of lettuce on the floor immediately surrounding a self-service salad bar. The trial court, following a bench trial, entered a defense verdict, finding that the plaintiff failed to meet her burden of proof in establishing that the defendant had either actual or constructive knowledge of the piece of lettuce that had fallen to the floor of the store and allegedly caused the plaintiff’s fall. The plaintiff appealed, arguing that the trial court should have considered her claim pursuant to the mode of operation rule, thereby relieving her of the burden of proving either actual or constructive notice.

The plaintiff relied, in large part, on the physical structure of the salad bar and the adopted store policies in regard to the salad bar to demonstrate that the defendant store was aware of the potential risks associated with its self-service salad bar and that, at the time of the plaintiff’s slip and fall, the defendant store was non-compliant with its own policies intended to protect against such incidents. The Court noted that “[t]he salad bar had no railings and was framed by a four inch ledge that was too narrow to accommodate trays or containers. As a result, patrons customarily would hold their containers aloft, over the floor area, while serving themselves from the salad bar.” The floor below the salad bar was made of tile or linoleum, with only narrow runners, leaving the tile surface exposed. The store manager conceded that the salad bar, as a result of these conditions, was “an area where people used to let . . . salads fall. It was precarious.” Because of these “precarious” conditions, the store adopted specific policies, requiring the stationing of salad bar attendants, the use of sweeping logs to document preventative maintenance and cleaning of the salad bar, and the use of special accident report forms.

Despite these policies and preventative measures in place by virtue of store policy, the plaintiff testified that, at the time of her fall, there were no salad bar attendants present. Further, the plaintiff argued, the fact finder was permitted to infer from the defendant’s failure to produce documentation of cleaning of the area in accordance with its own guidelines, that the area surrounding the salad bar had not been maintained in accordance with store policy. Thus, the Supreme Court of Connecticut held that “[u]nder the circumstances . . . a fact finder reasonably could have concluded that the plaintiff had slipped and fallen due to the defendant’s failure to take adequate precautions in connection with its operation of the salad bar.”

As a policy matter, the Court supported its holding with three observations of the modern self-service practice employed by retailers. First, the Court found that retailers should bear the economic risk resulting from cost-cutting measures, including the employment of self-service operations. Citing Meek v. Walmart Stores, Incorporated, a prior Connecticut Court of Appeals decision, the Court noted that “[t]he measures taken by large, self-service retail merchandising establishments to protect their invitees must be commensurate with the risks inherent in that method of store operation . . .” Second, the Court found that the traditional prima facie case for premises liability claims is incompatible with self-service operations. Rather, “[s]elf-service businesses . . . are aware that some customers will be injured due to the conduct of other customers because such injuries are a likely, and therefore foreseeable, consequence of the self-service method of operation.” Third, the Court found that “the requirement of actual or constructive notice places a difficult-- and frequently insuperable-- burden on injured customers to establish when the unsafe condition arose.” Frequently, the physical condition of the injured party following the incident at issue will prevent him or her from performing any immediate investigation of the scene and the cause of the accident. Finally, the Court reasoned, the application of the mode of operation rule is most likely to promote the use of reasonable care in maintaining self-service operations.

As a practical matter, and contrary to the outcry against the implementation of the mode of operation rule, this analytical paradigm is not tantamount to strict liability for defendants employing a self-service operation. Rather, it is a reminder to business owners that they must take reasonable measures to ensure the safety of their patrons and, further, they must ensure actual implementation of policies intended to protect the safety of their patrons.
In order to avoid the fate of the defendant in Kelly v. Stop and Shop, Incorporated, business owners employing self-service operations must not only adopt sufficient procedures and practices to ensure the safety of their customers, but they must actually employ and document these measures. Thus, Kelly stands as a cautionary tale in which the defendant store adopted arguably sufficient measures to protect the safety of customers, but failed to implement these measures in a manner that was consistent in practice and further failed to document their efforts in a manner designed to rebut the presumption of liability that arises under the mode of operation rule.

Subrogation action – doing your homework counts

By Daniel P. Gibson, President and Managing Director
Jorge Solis, Chairman, National Subrogation Practice

Today, the practice of subrogation law is seeing considerable growth, owing to insurance companies’ desire and need to recover as much financial restitution as possible in the aftermath of paying out a claim – only to discover that a third party was more than 50 percent at fault.

The act of subrogation, which in a nutshell translates into transferring the right to collect from a third party, allows insurance carriers the potential to recover what is rightfully theirs. It is an equitable remedy under the law. Failure to utilize this fundamental action for recovery in effect translates into paying a claim twice.

Naturally, the likelihood of recovery increases significantly if subrogation action is taken against a party who has insurance coverage; however, within the realm of motor vehicle subrogation, an alarming number of uninsured drivers exist. Many reasons exist for the failure of people to obtain insurance, but financial constraints are certainly one of them. Without the proper amount of advance “homework” an insurance company may find itself in an uphill battle trying to recover from one of the uninsured masses with little ability to pay. Therefore it is in both an insurance company’s and a law firm’s best interests to conduct prompt and thorough research upfront to avoid spending valuable time, effort and money on an unrecoverable action.

It is paramount to first determine whether a paid out claim is worth subrogating. Increasingly, insurance companies are becoming more aggressive with subrogation measures, but they should always weigh the cost of hiring an attorney, filing a law suit and incurring costs associated with litigation against the likelihood and amount for recovery. There are obviously times when it is in a company’s best interest to pursue a subrogation claim; as there are also times where an insurance company’s best interests is to simply write off the claim.

The more information an insurance company has before calling in an attorney, the better, as this will no doubt expedite the recovery process. And time is of the essence to guarantee maximum recovery. It is critical that an investigation is initiated as early as possible for a number of reasons. Recollection of the incident will still be fresh in the affected parties’ minds; the chance for availability of all witnesses is increased; and perhaps most importantly, crucial evidence will not yet have been altered or destroyed. Generally speaking, the more time that elapses from an accident, the more time and effort will be required to build a sound case for recovery.

Once a decision has been made to pursue a subrogation action, an initial matter to consider prior to filing suit is venue. In small claims court, the venue of choice for many motor vehicle accidents, recovery is usually much quicker, as there is little or no discovery (presentation of documents, witnesses called). A judgment in small claims court can be delivered in as little as a couple months, but if the suit is lost there is no right to appeal for the Plaintiff. Should the case go to District or Superior court, recovery can take as long as a year or even two, primarily if the suit is contested. The particulars of each case will best determine in which court it should be heard.

The ultimate goal of subrogation is to move the case as quickly as possible, not only for the aforementioned reasons, but also because of applicable statutes of limitations. At times, insurance companies don’t decide to file a subrogation suit until close to the statute in an effort to save costs. But savings are typically not achieved if it’s more difficult for an attorney to perform the proper due diligence. Determinations should be made as early as possible on whether or not a claim is worth subrogating. And insurance companies should not hesitate to engage attorneys with whom they have working relationships with in their assistance with making these determinations early on.

The bottom line is that subrogation can be a profitable venture for both the insurance company and law firms if managed properly. An insurance carrier that aggressively and successfully pursues subrogation can save itself and its clients a significant amount of money annually. Recovery costs for insurance companies translate in lower premiums for clients – and isn’t that the ultimate goal

Daniel Friedman named Co-Director of Gibson & Behman’s New York City office

Daniel Friedman, a highly-respected litigation attorney with extensive insurance industry litigation experience, has been named Co-Director of the New York City office of Gibson & Behman, a leading national law firm known for providing progressive and economical solutions to its clients since 1987.

Friedman joins Gibson & Behman after having served the last 17 years as in-house general litigation counsel at the Madison Avenue-based American European Group. American European Group is the parent company of a group of insurance companies that includes Rutgers Casualty Insurance Company. While there, Attorney Friedman provided defense litigation to the insurance industry with significant, successful jury trial experience in New York and New Jersey.

Friedman made the move as American European Group elected to outsource all its legal work effective June 1. Friedman will bring his case load to Gibson & Behman and will be on a preferred list for future insurance litigation. He said that he plans to continue to maintain a close working relationship with American European Group.

“Gibson & Behman is an excellent match for me,” said Friedman, who added, “I am very happy to be joining this premier firm in this leadership role.”

Friedman earned his Juris Doctor from New York Law School and was Associate Editor of the Law Review. His legal work prior to American European Group included serving as an Associate Attorney for the New York law firms of Rubin Gross Harris Fischl & Roth, and Flower & Plotka. From December 1989 to May 1991 he was Associate Attorney for Blodnick Abramowitz Newman & Bass P.C., Lake Success, NY.

Friedman’s appointment to the Co-Director position was announced by Daniel P. Gibson. In making the announcement he said, “when American European Group made the strategic decision to outsource its legal work rather than continue with in-house counsel, we knew that Daniel could opt to continue to handle his extensive case load independently or join another firm. We feel strongly that he is an excellent fit for our firm and our vision for growth.”

Gibson continued, “Daniel is highly-respected and extremely capable. His track record, and his reputation for excellence, both speak for themselves. We are fortunate to have him as part of our family.”

Harold Graham appointed to Director’s position at Gibson & Behman’s Boca Raton office

Harold Graham of Boynton Beach, FL has been named to the position of Director of the Boca Raton offices of Gibson & Behman. Graham, the first non-attorney selected by this firm to head one of its offices, is a well-renowned veteran of the insurance industry. He will oversee the day-to-day operations of the growing law firm’s newest office, located at 4400 North Federal Highway.

Daniel P. Gibson explained, “our firm has developed a number of niche markets, and working in the insurance industry space is one of them. We believe that Harold’s impressive and extensive insurance industry experience will help us expand our marketshare in this fast-growing region.”

Graham has served in a number of leadership roles with Kemper Insurance Group. He joined the industry giant in 1967 serving as a Claims Adjuster in their Newburgh, NY office. From 1970 to 1971 he was Liability Supervisor for the New York City Claims Department, where he was responsible for the front-line supervision of five adjusters. He later served in Kemper’s home office in Long Grove, IL where he assisted the Vice President in Claim Administration. He also served as the company’s Claims Department Manager at their Houston, Tampa and New York City locations.

In New York, he was responsible for the administrative and technical operation of Kemper’s largest claim office, and ultimately oversaw Kemper’s New York City Division of Kemper Group’s one and five year plans.

He also served two years on the Claim Committee for the New York State Motor Vehicle Accident Indemnification Corporation. In addition to insurance, he has worked with a retail credit company. The New York City native was also a Lieutenant in the Middletown, NY Fire Department.

“We are delighted to welcome Harold to our family,” said Gibson, who added, “With the growing demand for legal representation in the insurance industry, we felt that having someone with Harold’s credentials will serve our clients and our firm very well. Harold is a bright, experienced individual and we are confident that he will be invaluable to our practice and our new location.”

Daniel P. Gibson authors review of “Entertainment Litigation” for Massachusetts Lawyers Weekly

GIBSON & BEHMAN WINS DEFENSE VERDICT IN BRAIN INJURY CASE

Attorneys Dan Shanahan and Charlie Hambelton of Gibson & Behman’s Burlington office recently obtained a defense verdict in a premise liability case involving a serious brain injury. The plaintiff alleged that during the afternoon of “Marathon Monday” in April, 1998, he and his three companions arrived at Copperfield’s, a lounge/bar located next to Fenway Park, after attending a Red Sox game. While attempting to leave Copperfield’s, the plaintiff was stopped by an employee, who directed the group out of a rear emergency exit, where a loading dock type structure was located. As the plaintiff and his group exited the premises, the plaintiff fell from a two foot drop off the loading dock into the alley behind Copperfield’s, striking his head on the pavement. As a result, the plaintiff alleged he suffered a subdural hematoma, which was later discovered and surgically evacuated at a local hospital. The plaintiff claimed he was permanently and totally disabled, and the brain injury exacerbated his pre-existing seizure disorder.

The defense argued that Copperfield’s reasonably maintained the loading dock area, it was not unreasonably dangerous, and the condition was “open and obvious”. The defense also argued that the subdural hematoma, which was discovered three weeks after the alleged fall, was not causally related. The defense presented evidence that the plaintiff had treated at two Boston hospitals between the time of the alleged fall and the discovery of the subdural hematoma, and there was no mention of head trauma in either hospital record. The defense also presented medical expert testimony from a neurologist and neuroradiologist, who testified that the subdural hematoma was, at a maximum, seven days old, and could not have occurred three weeks earlier as alleged by the plaintiff. The case was further complicated by the fact that the plaintiff had a pre-existing seizure disorder as a result of head trauma sustained in the same general area that the subdural hematoma formed.

After seven days of trial and evidence, a Suffolk County jury found that Copperfield’s was not negligent. The case was filed in 2001, and there was approximately eighty-five percent pre-judgment interest that had accrued up to the time of trial. The plaintiff’s original demand was $600,000. At time of trial, the plaintiff lowered his demand to $300,000.

Gibson & Behman, P.C. sponsors team in Pelham Fritz Basketball League

G&B is proud to be a sponsor of The Suns, a Pro-Am basketball team and member of the Pelham Fritz Basketball League.

Named in memory of the former assistant recreation commissioner of New York City, the Pelham Fritz Basketball League is a charitable organization and overseer of a scholarship fund that since 1998 has awarded scholarships to deserving high school seniors who have achieved academic excellence and demonstrated dedication to community service.

The league showcases veteran basketball stars, including ex-NCAA Division 1 standouts, former NBA greats, Rucker Pros and playground legends, all of whom still demonstrate “hoops” prowess during highly attended and regularly scheduled games played at the Harlem Square Garden.

Among team members of The Suns are Ken Bantam, formerly of the New York Knicks; the Atlanta Hawks Steve Berrt; Kevin Williams formerly of the Milwaukee Bucks; and Gibson & Behman’s own Eugene Poston, the firm’s Manager of Office Services and a former College Division 1 star in his own right.

“My NBA dream didn’t come true but I’m proud to say that I have played with some of the best,” said Poston. “But being a member of The Suns is not about individual achievement – it’s about a team effort to give back to the community and assisting deserving youth in getting a helping start in life.”

“We take great pleasure in sponsoring The Suns as members of the highly distinguished and entertaining Pelham Fritz Basketball League,” said Daniel P. Gibson, co-founder and Chairman of Gibson & Behman, P.C. “Through the continuing efforts of League members and their sponsors, young men and women have been granted opportunities to pursue academic goals and achievements.”

GIBSON & BEHMAN, P.C. ONE OF TWO FIRMS RECENTLY ASKED TO GIVE OPINION TO TOWN COMMITTEE

Gibson & Behman, P.C. was one of two firms who were recently hired as special counsel by the Town of Burlington to render an opinion regarding the interpretation and application of zoning bylaws. The Immigration and Customs Enforcement Agency (ICE), part of Homeland Security, has entered into a 10 year lease for a building in Burlington. This ICE office will be the New England headquarters and will employ approximately 120 workers whose jobs are to find and deport illegal aliens.

As part of that job function, ICE would bring illegal aliens to the building and put them in holding cells while they are being processed. The issue was whether this activity was in violation of the zoning bylaw governing the uses that could take place in the building. Significantly, when the permits were initially issued, the building was zoned for office use.

As part of the opinion, Gibson & Behman, P.C. had to review the zoning bylaws for the Town of Burlington, local and national court opinions regarding rescission of a building or occupancy permit, as well as the issue of federal preemption. Gibson & Behman presented its opinion to the Committee on January 17, 2008.

Gibson & Behman Successfully Defends Town By Winning Motion for Summary Judgment

G&B’s Burlington office recently prevailed for the City of New Bedford on a motion for summary judgment, vitiating plaintiff’s claim against the city. This case arose out of a motor vehicle accident, which plaintiff alleged was caused by the City’s negligent maintenance of an allegedly obstructed stop sign.

G&B argued that an obstructed stop sign qualifies as a defect under M.G.L. c. 84 and as such, is subject to strict notice requirements which the Plaintiff failed to meet. M.G.L. c. 84 provides the exclusive remedy for persons who are injured as a result of “a defect or want of repair” on a public way.

Plaintiff argued that the obstructed stop sign properly falls under the Massachusetts Torts Claims Act under G.L. c. 258. Plaintiff additionally argued that whether the defect fell under G.L. c. 84 was a question of fact to be left for the jury. To support said arguments, plaintiff relied on cases such as Mamulski v. Easthampton, where a missing stop sign was the proximate cause of a motor vehicle accident. G&B countered that Mamulski was a wrongful death action, which is distinguishable from the case at hand.

Judge Nickerson agreed with the firm’s assertion that G.L. c. 84 applied to the facts of this case. As such, plaintiff’s failure to give timely notice to the Town, pursuant to the statute, vitiated her cause of action. Co-defendant, owner of the tree obstructing the stop sign, was found to have no right of contribution or indemnification from the Town as the Town was not directly liable to the plaintiff.

GIBSON & BEHMAN OBTAINS SUMMARY JUDGMENT IN LIQUOR LIABILITY CLAIM

Daniel J. Shanahan, Esq., from Gibson & Behman’s Burlington office, successfully argued a summary judgment motion in Essex Superior Court where the question was whether the defendant bar recklessly served alcohol to the plaintiff, who was involved in a one-car motor vehicle accident wherein he seriously injured himself.

On October 18, 2002, the plaintiff and three co-workers patronized the defendant’s bar located in Boston. They arrived at approximately 5:00 p.m., after each had consumed an alcoholic beverage at a nearby establishment. The plaintiff and his friends remained at the defendant’s bar for approximately one and one-half hours, during which time the plaintiff consumed between five and seven drinks containing vodka and cranberry juice. Upon leaving the bar, the plaintiff believed he was capable of driving home without incident. However, as plaintiff was walking to his car, he felt intoxicated. Upon reaching his car, plaintiff began his fifty minute drive home. Approximately forty-five minutes later, while driving, the plaintiff briefly lost consciousness. The vehicle traveled across several lanes, off the road, and rolled several times. No other vehicles were involved in the accident. As a result, the plaintiff suffered serious injuries, including several fractured cervical vertebrae.

In Massachusetts, under General Laws Chapter 231, section 85T, in a situation where an intoxicated person injures himself, the plaintiff must show “willful, wanton, or reckless conduct on the part of” the person who furnished the alcoholic beverages. Willful, wanton or reckless conduct has been described as intentional conduct, by way of either commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. Willful, wanton, or reckless conduct is distinguishable from negligence in that the defendant must knowingly or intentionally disregard an unreasonable risk.

Here, the plaintiff claimed that the defendant failed to observe him properly, failed to track how many drinks he consumed, and that they should have refused to serve him. The plaintiff further alleged that the defendant continued to serve him after he was intoxicated. The defense argued in support of its summary judgment motion that there was no evidence that the defendant served alcohol to the plaintiff when it knew or should have known he was intoxicated. The defense also argued that as a matter of law, the service of five to seven alcoholic drinks in one and one-half hours did not constitute willful, wanton, or reckless conduct.

The Court agreed, ruling that the plaintiff was unable to show that the defendant acted willfully, wantonly, or recklessly. To do so, the Court explained, the plaintiff would have to establish that the defendant knew the plaintiff was intoxicated and made a conscious decision to continue providing him with alcoholic beverages. Since the plaintiff would not be able to prove an essential element of his claim at trial, the Court entered summary judgment in favor of the defendant.

REJECTION OF CERTAIN SPECIAL DEFENSES IN DRAM SHOP CASES INCREASE POTENTIAL LIABILITY FOR BARS IN CONNECTICUT

Wylie v. Trio’s Bar and Grille, LLC, 43 CLR 275

In Wylie v. Trio’s Bar and Grille, LLC, the plaintiff claimed that she suffered injuries while a passenger in a motor vehicle operated by a driver who was intoxicated after the bar served him alcohol while he was in an intoxicated condition. The plaintiff alleged that the bar engaged in reckless conduct in serving alcoholic beverages to a driver. She also sought recovery pursuant to Conn. Gen. Stat. § 30-102, the Dram Shop Act.

One of the bar’s special defenses alleged that the plaintiff’s injuries and losses were a result of her own reckless conduct in that she agreed to get into the motor vehicle of an individual who she believed to be intoxicated, and that said conduct barred her from recovery. Another of the bar’s special defenses alleged that the plaintiff assumed the risk that she would sustain serious injury when she agreed to be a passenger while knowing the driver was intoxicated. The plaintiff thereafter moved to strike the special defenses of participation and assumption of the risk.

Although a split of authority existed on the issue, the court ultimately rejected both special defenses, recognizing that there was no sound policy reason for allowing an establishment that had willingly engaged in conduct potentially injurious to the public and itself, in disregard to the consequences of such conduct, to absolve itself of such responsibility. This decision is significant in that it increases the potential liability of a liquor establishment in actions involving reckless service of alcohol or dram shop actions.

FOUR-PRONGED REASONABLE FORESEEABILITY TEST MANDATORY FOR RECOVERY IN NIED CASES IN CONNECTICUT

Wastel v. Kosloff , 43 CLR 277

In Wastel v. Kosloff, the plaintiff driver alleged that liquor establishments served alcohol to a customer while he was intoxicated. Subsequently, the customer, as a pedestrian, was struck and killed by the plaintiff driver. Although the plaintiff did not have any relationship with the customer, he sued the liquor establishments for mental and emotional pain and suffering as a result of his contemporaneous sensory perception of injury to the customer upon impact.

The driver alleged a claim pursuant to Conn. Gen. Stat. § 30-102, the Dram Shop Act. The defendants moved to strike the claim, contending that “injures the person” under Conn. Gen. Stat. § 30-102 should be limited to only bodily injuries. The court found that the term “personal injury” was broader than “bodily injury” and should effectively encompass damages for emotional distress. The court then went on to acknowledge that the plaintiff failed to meet the four-pronged reasonable foreseeability test that governed bystander recovery for emotional distress in these types of circumstances. The test requires:

The plaintiff must be closely related to the injury victim.
The emotional injury of the bystander is caused by the contemporaneous sensory perception of the event or conduct that causes the injury, or by arriving on the scene soon thereafter, but before substantial change has occurred to the victim’s condition or location.
The injury of the victim must be substantial, resulting in death or serious physical injury.
The bystander’s emotional injury must be serious, beyond that which would be anticipated in a disinterested witness and which is not the result of an abnormal response.

The court recognized that the plaintiff failed to meet the first prong of this test because there was no allegation of any relationship between the plaintiff and the victim. The issue was raised as to whether the first prong of the test could be waived because the plaintiff was not merely a bystander, but rather an “unwitting instrument” or “participant” in the victim’s death. The court ultimately declined to accept unwitting instrument status as a substitute for the existing requirement of close personal relationship for two reasons: first, unwitting instrument status, or mere innocent presence in the causal chain, is a factor so variable that it does not meaningfully distinguish between claims that should be allowed and claims that should not; second, the court recognized the prongs of the reasonable foreseeability test were not mere factors to consider, but mandatory conditions that must be satisfied in order to recover in these types of situations.

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