News
Disclaimer: Past results do not indicate future results, which are dependent upon the particular facts and circumstances surrounding each client’s case.
Joelle Hays, Associate of Gibson & Behman, P.C. Providence office receives 2009 Pro Bono Certificate of Appreciation
BURLINGTON, MA, PROVIDENCE, RI ISSUED JULY 19, 2010…Joelle Hays, an Associate with the Providence office of Gibson & Behman, P.C., a leading law firm well known for providing progressive and economical solutions to its clients since 1987, recently received a Certificate of Appreciation from the Rhode Island Bar Association for her dedication to the Association’s Public Service Programs.
Hays, a Rhode Island native, has a background in advocating for children and families; her work with the Rhode Island Bar Association’s Volunteer Lawyer Program focuses on providing free legal representation to clients who otherwise could not obtain legal services.
She is a cum laude graduate of the University of Maine with a Bachelor of Arts in Psychology; she also achieved cum laude designation from Roger Williams University School of Law where she received her Juris Doctor degree.
She is licensed to practice in Rhode Island and the Commonwealth of Massachusetts.
“We’re proud to announce Joelle’s receipt of this honor from the Rhode Island Bar Association,” said Daniel P. Gibson, managing partner of the national law firm. “In these tough economic times, it’s more important than ever for attorneys to give back to their communities; Joelle’s work with the Volunteer Lawyer Program underscores her commitment to helping those in need.”
MASSACHUSETTS SUPREME JUDICIAL COURT RULES THAT EMPLOYER IS NOT LIABLE FOR EMPLOYEE’S OFF-PREMISES DRINKING’s …
On July 7, the SJC, in the case of Lev v. Beverly Enterprises-Masssachusetts, Inc. concurred with the Appeals Court’s affirmation of a summary judgment in favor of an employer whose employee went to a licensed establishment after work with a co-employee and, over cocktails, conducted a mini-business meeting regarding an upcoming work event. The employee, after leaving the meeting, struck and seriously injured a pedestrian.
The SJC concluded that the employee, who was on his way home when the accident occurred, was not acting in the scope of his employment at that time and thus, the employer was not vicariously liable for his operation under the influence, a charge upon which he was convicted.
The SJC also rejected the plaintiff’s claim that the employer was liable for the employee’s drinking on a social host basis since the licensed establishment where the “meeting” occurred was in control of the alcohol the employee had consumed.
The SJC was similarly unimpressed with the plaintiff’s argument that, because of the “special relationship” an employer has with its employees and because of this employer’s anti-substance, drug and alcohol abuse policy, which extended to all off-premises work activities, it had a concomitant responsibility for this employee’s drinking at the licensed establishment. The SJC found that the employer had no duty of care because it could not have reasonably foreseen that it needed to take affirmative action to protect the plaintiff and because its substance, drug and alcohol abuse policy also did not give rise to a duty of care under the circumstances.
Gibson & Behman has been requested by several of its insurers, and third-party administrators to present on the new Medicare Secondary Payer Recovery Contractor (MSPRC) regulations …
Gibson & Behman has been requested by several of its insurers, and third-party administrators to present on the new Medicare Secondary Payer Recovery Contractor (MSPRC) regulations involving Medicare Liens and Negotiations with CMS. For the benefit of all of our clients, we wanted to attach for their review a copy of the materials that we have presented on. We stand ready to answer any and all questions that you may have concerning this topic. Please do not hesitate to contact Dan Gibson or Chris Cifra at (800) 372-1443.
Massachusetts Adopts Mandatory Liquor Liability Coverage’s …
On June 14, 2010, Massachusetts Governor Deval Patrick signed legislation making it a mandatory requirement that all liquor serving establishments carry liquor liability coverage’s in the State of Massachusetts. The minimum coverage limit is $250,000 per person and $500,000 per occurrence, and takes effect on August 28, 2010. This has been a long fought war by the Massachusetts License Beverage Association who recently joined by the Massachusetts Restaurant Association. The issue has simply been that if one is serving alcohol, they should be properly insured in the event that an unforeseen event happens and innocent parties should not be harmed by failure to have insurance.
Paul Sullivan, Executive Director of the Massachusetts Licensed Beverage Association has recently said, “This is a great win for the industry and citizen’s alike.” The legislation culminates a 10 year battle on bills originally filed by Representative Charles A. Murphy and Barry Finegold.
- Chapter 116 of the Acts of 2010 amends Mass. G.L.
Chapter 138 Sec. 12, the law Massachusetts that governs issuance of liquor
licenses.
GIBSON & BEHMAN, P.C. PREVAILS ON MOTION FOR SUMMARY JUDGMENT IN MASSACHUSETTS PERSONAL INJURY CASE …
Attorney Daniel J. Gibson recently prevailed on a motion for summary judgment on a personal injury claim. The case arose out of a patron’s slip and fall at a Massachusetts restaurant. The plaintiff alleged that she slipped and fell while descending the stairway of the restaurant upon exiting. The elderly Plaintiff sustained a fractured hip--necessitating hip replacement-and gashed her skull. It was raining on the date of the accident. The plaintiff claimed that the restaurant was responsible for her injuries in failing to remove accumulated water on the floor, that the stairs were a dangerous condition due to the tiling, and that the premises was negligently maintained. The Plaintiff was an elderly lady who would prove sympathetic to the jury. Complicating matters for the defense was the fact that the Plaintiff suffered from dementia and was granted a protective order from engaging in discovery.
Attorney Gibson argued that the Defendant had no notice of any alleged accumulation of water, that the hazards associated with water on an entranceway stairs on a heavily rainy day are obvious, and the Plaintiff did not produce any evidence indicating that the stairs themselves represented a dangerous or defective condition. There was no evidence existing to show that the alleged accumulation of water on the floor was due to an act of any employee of the Defendant. Furthermore, the Plaintiff did not know how the long the alleged accumulation of water was on the floor and did not notice any water upon arriving at the restaurant. The Defendant was never made aware of any accumulating water in the stairway by the Plaintiff or any other patron.
The Motion was allowed by the Worcester Superior Court. Judge Curran opined that the Plaintiff was unable to present evidence that the water in the restaurant’s entrance way was anything more than what normally exists from restaurant patron foot traffic on a rainy day. The judge found no negligence on behalf of the Defendant, and the case was dismissed with prejudice and costs.
GIBSON & BEHMAN, P.C. TO PARTICIPATE IN INTERNATIONAL DISABILITY INSURANCE SOCIETY CONFERENCE IN BOSTON…
Gibson & Behman, P.C., in conjunction with International Risk Management Group, will be participating in the annual International Disability Insurance Society Conference in Boston. The Conference will be held at the Long Wharf Marriot from October 11 – 13, 2010. The event is always well attended by Underwriters who travel over from the United Kingdom, as well as insurers from throughout the world.
Daniel P. Gibson and Christopher P. Cifra will be presenting on the emerging trends in disability claims throughout the country.
The International Disability Insurance Society is dedicated to the task of preserving and embracing the Disability Insurance industry. Members come from the four corners of the industry: Regulators; Producers; Educators; and Insurers, who meet, discuss and negotiate change and opportunity.
DANIEL P. GIBSON TO AUTHOR A BOOK CHAPTER ASSISTING MUNICIPALITIES IN NAVIGATING ENVIRONMENTAL LAW ISSUES…
Daniel P. Gibson has been selected to author a chapter of an upcoming book on advising municipalities how to stay on top of environmental law issues. The chapter written by Attorney Gibson explores the common challenges faced by municipalities attempting to facilitate responsible residential and commercial growth while not causing harm to the environment or violating applicable environmental laws. The chapter discusses the interplay between state and federal authorities and how practitioners advising a municipality can best assist their clients during a time of significant change to what it means to be environmentally conscious citizens. The title will be in print nation-wide this summer.
LANDFILL NOT LIABLE IN TRACTOR TRAILER ROLLOVER…
Attorney Dan Shanahan of Gibson & Behman’s Burlington office recently obtained a defense verdict in a premise liability case against a landfill. The plaintiff’s tractor trailer rolled over while backing on the landfill’s perimeter road, causing personal injury.
On August 30, 2005, the landfill owner contracted with an environmental company to service the leachate lines in the landfill. The environmental company dispatched a pick-up truck with a jet-spray trailer and a truck with a 45 foot tank trailer. The tractor trailer was operated by the plaintiff, a 58 year old commercial truck driver with 30 years of trucking experience. After vacuuming excess ground water from a manhole into the tanker, the plaintiff attempted to back the truck along a dirt perimeter road to off-load at a facility located behind him on the landfill. While backing around a bend, the trailer’s tires traveled over the edge of the roadway, resulting in the truck rolling over and down a 30 foot drop off. The plaintiff alleged the landfill was negligent because it closed down a section of the perimeter road located in front of the plaintiff, thereby forcing the plaintiff to back his truck on a narrow and curvy dirt road to off-load.
As a result of the accident, the plaintiff was transported by ambulance to a local hospital and treated for a neck injury and a large laceration on the back of his head requiring 20 staples. The plaintiff alleged that he also sustained a knee injury and torn rotator cuff later requiring surgery. The medical bills totaled approximately $67,000. The Plaintiff also claimed that as a result of his injuries, he was unable to return to work as a truck driver, seeking lost wages of $250,000 and a future loss of earning capacity.
The defense argued that there was no evidence the landfill’s property was unreasonably dangerous or that any of its acts or omissions contributed to the plaintiff’s accident. The landfill denied that any portion of the perimeter road was closed, and offered evidence that its employee provided the plaintiff’s foreman with two options for the truck to travel to off-load at a facility on the landfill. The defense also argued that the plaintiff, as a CDL driver, was ultimately responsible for the operation of his truck, that the plaintiff made the decision to back up and failed to ask either of his two co-workers to assist him while backing.
The defense also disputed the extent and severity of the plaintiff’s injuries. The defense presented evidence that the plaintiff returned to light duty work approximately two weeks after the accident, then returned to full duty approximately two weeks later, until he suffered another work-related injury to his foot. The plaintiff was later cleared to return to work full time but was laid off. It was at this point in time when the plaintiff began to treat with various medical specialists for his injuries.
After four days of trial in Suffolk Superior Court, and one hour of deliberation, a jury found the defendant not negligent. The plaintiff’s demand was $450,000 (including wife’s loss of consortium claim). No offer was ever made.
Attorneys Christie Burnett and Chris Cifra conducted pre-trial discovery in preparing the case for trial.
Harvard Caribbean Law Association Inaugural Conference BRIDGING THE DIVIDE: Forging Solidarity in Uncertain Times Saturday, April 17, 2010 …
The Harvard Caribbean Law Association (HCLA) of Harvard University has invited Kendall A. Minter, Esq., who is “Of Counsel” at Gibson & Behman, P.C. to be a panelist at their Inaugural Conference entitled, “Bridging the Divide: Forging Solidarity in Uncertain Times.”
The Caribbean region has enjoyed much success in the sports and entertainment arenas over the years. From the beloved Jamaican Bobsled team to the worldwide audiences for reggae and calypso music, the Caribbean has become a haven for talented young performers, sprinters and other athletes. However, many Caribbean countries still struggle to find the best methods by which to capitalize on this budding market of local talent. This panel will create a better awareness and exposure to the international opportunities for future lawyers and professionals interested in working in the sports and entertainment field. Panelists will include attorneys representing Caribbean athletes, entertainers, and industry corporations, as well as, Harvard Alumni and professionals who have chosen to capitalize on the Caribbean sports and entertainment market.
The HCLA Conference will take place at Harvard Law School on Saturday, April 17, 2010. The Conference is intended to unite students, alumni, professionals, legal practitioners, and the community at-large to dialogue about relevant issues in the local, national, and international Caribbean communities. Panel topics will include: Establishing a Common Market and Caribbean Court; Rebuilding Haiti; Fostering Unity in a Culturally Diverse Region; Legal and Business Opportunities in the Caribbean; and Law, Sports & Entertainment in the Caribbean. Given his unique and extensive professional experiences in the law, sports & entertainment field in the Caribbean, the HCLA Executive Board invited Kendall to be a panelist because he will add significantly to their Conference.
GIBSON & BEHMAN’S ENTERTAINMENT LAW PRACTICE CONTINUES TO GROW…
On March 15, 2010 Gibson & Behman Associate Mark Preiss participated in a full day of seminar instruction in New York City pertaining to Entertainment Law practice and training on the best practices for representing clients in TV and film contracts as well as book publishing agreements.
Presented by some of the best known and experienced attorneys in Entertainment practice, the seminar provided insight into legal and business issues and emerging trends in the TV, music and film industries, as well as instruction on acquisition of underlying rights to intellectual property, production, financing, and distribution agreements. These industries are the focus of Gibson & Behman’s growing Entertainment Law practice, and this instruction further enables Gibson & Behman to serve a broader range of client legal issues.
Attorney Preiss is currently admitted to practice in Massachusetts and New York, and may be contacted at Gibson & Behman’s Burlington, Massachusetts office.
SJC TO DECIDE WHETHER EMPLOYER THIRD-PARTY LIABILITY COULD WORK IN MASSACHUSETTS FOR DRUNK DRIVING EMPLOYEE…
The Supreme Judicial Court recently heard arguments, for the first time in Massachusetts, in the case of Lev v. Beverly Enterprises-Massachusetts, Inc., to decide whether employers are liable to third parties for permitting employees to consume alcohol during business meetings held at off-site public establishments.
John Ahern worked as a chef at a nursing home owned and operated by the defendant, Beverly Enterprises. After work one evening, Mr. Ahern met with his supervisor, Lynda Pacitti to review an upcoming health inspection. Although there was evidence that Mr. Ahern and Ms. Pacitti had an ongoing social relationship and it was disputed as to whether Mr. Ahern was required to attend, it was undisputed that work matters were discussed. After approximately one hour of consuming alcohol, Mr. Ahern got into his car and left the restaurant ultimately sticking the plaintiff, Charles Lev, fracturing the both of the plaintiff’s legs.
The plaintiff in the matter argued that the company had a policy prohibiting the use of alcohol while conducting company business off premises, which gave the supervisor authority to control an employee acting in the scope of their duty. Several of the justices of the SJC were concerned that the plaintiff’s theory would subject employers to a new kind of liability where companies would be liable for what happens to third parties after an employee goes out for a drink with a supervisor. Defense counsel argued that employers, who do not oversee the serving of alcohol, do not have a legal duty to parties like plaintiff. The case is currently under advisement.
OPEN AND OBVIOUS DANGER’ DEFENSE MELTS IN MASSACHUSETTS…
The Massachusetts Appeals Court, in the case Soderberg v. Concord Greene Condominium Association, Appeals Court No. 2009-P380, has ruled that the open and obvious danger defense, at least in the context of snow and ice cases, is not a complete defense as some have argued on the heels of the recent decisions.
The trial judge had included a threshold liability question on the verdict slip asking whether the accumulation of snow and ice the plaintiff fell on was open and obvious. The jury answered “yes” and also found that he plaintiff had an alternative to traversing the accumulation. Accordingly, the jury’s verdict was for the defendant without the jury actually reaching the questions of the defendant’s negligence or causation.
In reversing the judgment and remanding the case for new trial, the Appeals Court concluded that “the open and obvious danger rule does not operate to negate a landowner’s duty to remedy hazardous conditions resulting from unnatural accumulation of ice and snow, at least where, as here, those hazards lie in a known path of travel. Therefore, the jury should not have been asked to determine, as a threshold liability question, whether the dangers were open and obvious.”
The decision has potentially chilling ramifications for property owners and insurers. The ruling essentially abolishes the open and obvious danger defense to negate an owed duty of care to remedy for snow and ice cases. Under the holding, property owners and insurers will not be, as matter of law, entitled to summary judgment by way of the open and obvious danger defense, but will instead be forced to utilize the defense for the limited of purpose of calculating the plaintiff’s level of comparative negligence. As the Appeals Court stated in the decision, “It remained for the jury to determine whether the defendant was negligent, whether the negligence was a proximate cause of plaintiff’s injuries, whether any negligence of the plaintiff in crossing the snow and ice was substantial contributing factor, and, if so, to determine the parties’ relative percentages of fault.”
Daniel P. Gibson recently became appointed as a Board Member for two new leadership organizations dedicated to improving safety, service and security in the hospitality industry-with an emphasis on establishments selling or serving alcoholic beverages…
IHOST will support the hospitality
industry through creation of safety standards, development of training programs,
and research. Efforts will be focused on helping businesses, their employees,
and the general public by reducing the number of injuries to employees and
patrons, and the related loss costs. The Institute will provide strategic
leadership, and work with the Association of Hospitality Professionals, among
others, in risk management. www.ihost-usa.org
AHP will support the hospitality industry by providing training and certification that meet the highest standards, set by IHOST. The Association will be made up of leaders - individuals and establishments - that take very seriously the principles of safety, service and security for the benefit of their patrons. Certified individuals will have displayed their commitment by undergoing rigorous training and testing of their knowledge. Certified establishments will commit to ensuring safe premises and operations, as well as requiring high standards from their employees. . www.ahp-usa.org
CITY OF PROVIDENCE ENACTS ORDINAINCE REQUIREING BOUNCER TRAINING
On January 1, 2010 the City of Providence began mandating that all security guards including bouncers complete a criminal background check, register with local authorities and undergo six hours of job specific training. The six hour training includes alcohol service regulations, alcohol service liabilities, conflict resolution and force, fake and borrowed identification, communication skills and disaster and evacuation issues. The old ordinance instituted in 1999 required bouncers to merely register with the city and wear ID badges. The City of Providence is the first jurisdiction in the nation to mandate job specific training for bouncers. The reason behind the new City ordinance is to provide bouncers with better training to ease police workloads and to erase the image of bouncers as thugs on a power trip. The City believes that this ordinance will professionalize the industry and make the jobs of police easier by curbing violence that can occur when bar patrons empty into the streets after a night of drinking. According to the Providence Police Department, over 35 bouncers have been implicated in on the job assaults in the past five years and two have been stabbed in the few months. This ordinance is seen a major step in reducing the number of such incidents.
House Ways and Means Chairman Charley Murphy Receives Legislator of the Year Award
Representative Charles A. Murphy who is “of counsel” to Gibson & Behman, P.C. received “The Legislator of the Year Award” from the Massachusetts Ambulance Association on February 23, 2010 at an event held at the Café Escadrille. The event was attended by more than one hundred folks representing 80% of the privately owned ambulance companies in the Commonwealth of Massachusetts. Representative Murphy has championed legislation which is pro-consumer and improves safety for both the industry and citizen’s of Massachusetts. Also, receiving a “Legislator of the Year Award” was Representative James Dwyer from Woburn. Representative Dwyer has also played a critical role in forwarding health care legislation. Attorneys Daniel P. Gibson and Matthew Mantalos of Gibson & Behman, P.C. chaired the annual meeting of the industry prior to the awards ceremony. Brian Connor was re-elected President of the Association. The Association continues to be very active in promoting better healthcare practices throughout the Commonwealth.
Attorney Paul J. Winterstein has joined the firm
Gibson & Behman, P.C. is pleased to announce that Attorney Paul J. Winterstein has joined the firm. Paul’s background comes from having worked several years for other prestigious insurance defense firms. Attorney Winterstein has an extraordinary academic background with strong trial skills. Paul also has extensive experience in and has participated in all forms of alternative dispute resolution and will be a strong addition to our Long Island Office. Paul will join Attorney Sharon Russ in the Great Neck, New York office in representing our insurers and insureds in a variety of matters.
WINE SHIPPING LAW IS UNCONSTITUTIONAL
The First United States Circuit Court of Appeals, in the case of Family Wine Makers of California Jenkins, has ruled that the Massachusetts wine shipping law is unconstitutional. Prior to this ruling, there was a state law in Massachusetts that sharply restricted out of state wine makers from shipping their product directly to consumers in Massachusetts. The First U.S. Circuit Court of Appeals has ruled that this law was unconstitutional.
This decision could open the door for residents of Massachusetts to purchase
more of their favorite wines online or by mail order from domestic producers.
The law which was approved by the legislature in 2006 over the veto of Governor
Mitt Romney, created a multi-tier system in which wineries that produce more
than 30,000 gallons a year had to decide whether to sell retail in Massachusetts
through an instate wholesaler or apply for a license to ship wines directly to
consumers. However, they could not do both. Family Wine Makers of California, a
Sacramento based group representing over 650 producers, argued the law was
“protectionist” and effectively kept 98% of domestic wine out of direct reach of
Bay State consumers.
GIBSON & BEHMAN, P.C. FEATURED SPEAKERS AT NATIONAL SUBROGATION CONFERENCE
Gibson & Behman’s subrogation practice has dramatically increased in recent years. As a result of our growing prominence in this field of law, we were invited to speak at the 5th Annual Automobile Subrogation Strategies ExecuSummit held at Mohegan Sun on January 26th and 27th, 2010. ExecuSummit’s conference was tailored to emerging trends in automobile subrogation. Conference attendees hailed from law firms and the insurance industry. Representatives of Selective Insurance Co., GEICO, Markel, Global Re Corporation of America, MetLife Auto & Home, Affirmative Insurance Services, Cunningham Lindsey, AON Corporation, Preferred Mutual Insurance Company, Travelers & Safe Auto Insurance Company were all in attendance.
Susan Feaster, Gibson & Behman’s Director of Collections and Subrogation traveled to the conference. Daniel J. Gibson, Esq., Director of our Boston and Maine offices, and Jorge Solis, Esq. were feature presenters for the conference on behalf of Gibson & Behman. They spoke for approximately an hour on ‘Dram Shop Liability and Subrogation Potentials’ before talking questions and answers. The program illustrated how subrogation is rapidly evolving relative to automobile claims and how insurers are increasingly embracing this avenue to recovery.
Gibson & Behman subrogates on behalf of insurers throughout New England, New York, and New Jersey. Gibson & Behman is a proud member of the National Association of Subrogation Professionals (NASP) and looks forward to future subrogation conferences. Should you desire any information regarding subrogation or require advice or counseling please give us a call today.
G&B’S CONNECTICUT OFFICE GETS DEFENSE VERDICT IN SLIP AND FALL TRIAL
In a three-week trial, Elycia D. Solimene, Director of G&B’s Connecticut office, obtained a defense verdict in a serious campground matter. On October 21, 2006, the plaintiff fell while exiting an RV, which the defendant campground had opened and displayed to the public.
Plaintiff alleged that while descending down a step from the RV, the step failed to properly and safely support her and caused her to fall to the ground, sustaining injuries. Plaintiff’s attorney claimed the defendants were negligent in that they breached the standard of care in the display and set up of RVs by failing to: provide a brace under the steps from the RV or some other type of apparatus to stabilize the steps; provide additional steps leaving the RV which would have extended the existing steps lower and closer to the ground; provide a handrail alongside the steps from the RV; post any warning to the plaintiff of the dangerous unstable condition of the steps; and inspect the steps to determine if they were safe for the use by persons visiting the RV such as the plaintiff. We disputed liability and disputed that the defendant breached the standard of care. Attorney Solimene argued that the plaintiff herself was negligent and caused her own fall.
The plaintiff had in excess of $120,000 in medical bills and was making a lost wage claim. She was seeking damages in excess of $1,000,000 from the jury for her injuries and claims. The insurer offered $500.00 and filed an offer of compromise for that amount.
The plaintiff had a significant medical history consisting of two neck
fusions before this fall. Subsequent to the fall she had a third cervical
fusion and was in need of a lumbar fusion. We contested, in accordance
with the opinion of our IME, that the third cervical fusion and lumbar fusion
were related to this fall. After approximately three hours of
deliberation, the jury returned a defense verdict.
Bella Pevzner named co-director of G&B's New York Office.
Bella Pevzner was recently named co-director of the New York office to lead
alongside Ron Langman. A newspaper article regarding the same can be found
here.
Secretary of State Galvin Visits Gibson & Behman's Boston Office For Holiday Party
Secretary of State William Galvin visited the Faneuil Hall Boston offices of Gibson & Behman, P.C. on December 16, 2009. He visited with members of the Gibson & Behman staff and many of their medical clients, including several ambulance companies. Brian Connor, President of the Massachusetts Ambulance Association was present, along with Board members, John Chemaly of Trinity Ambulance and Sean Tyler of Fallon Ambulance. It was a festive holiday occasion. Secretary Galvin took time to address both the special election primary and the final election for the late Senator Kennedy's seat. He also addressed the process of computerizing all of the Registries to make on-line filing easier.
ELYCIA SOLIMENE, DIRECTOR OF G&B’S CONNECTICUT OFFICE, FEATURED IN HARTFORD BUSINESS JOURNAL
Elycia Solimene of G&B’s Connecticut office was recently interviewed by the
Hartford Business Journal about her role as one of the few female law firm
directors in the state. Read the entire article on HartfordBusiness.com.
Tackling the Complex Evolution of Music Licensing
Michelle R. Dickson-Fine, Senior Entertainment Paralegal
Behind every great motion picture and television soundtrack and behind every catchy use of your favorite song in an advertisement, there is a sub-culture of attorneys and paralegals that have devoted their careers to the complicated and ever-changing field of music licensing. Whether in major film studios or law firms, attorneys and paralegals negotiate on both sides of the deal – both for the TV & film producers, and for the music composers and record labels.
For many years, music licensed to film and television went unnoticed. “Miami Vice” was the first television show to move away from a composed soundtrack and to license pre-recorded music on a regular basis, and the popularity and freshness of the show shifted the entire landscape of film and television music. Artists began licensing to many more productions, and the music licensing business took off. License fees for uses of songs in TV, Film, and advertisements now range anywhere from $500 to $5,000,000+. Musician’s careers can be revitalized and new musicians can obtain superstar status just because of a single use of their song on screen.
Less than 15 years ago, the rights obtained were as simple as 5 years, United States only, “Free and Basic Television” and maybe an option for “Home Video.” The ever-expanding world of television syndication, media options, distribution methods, marketing plans and new technology has shifted the landscape once more. Today, a request from a producer can look like a complicated Excel spreadsheet with use terms ranging from United States to Worldwide (some have gone so far to expand this to The Universe), one month to perpetuity or life of the copyright, and media uses for soundtracks, internet streaming, non-permanent or permanent downloads, ringtones, in-context trailers and out of context trailers, just to name a few. Music licensing has become an arena of new concepts and ideas both creatively and legally. It is clear, if you want to succeed, you must embrace the demand to adapt quickly or failure is almost certain.
Gibson & Behman currently employs staff with extensive experience in
licensing music and music publishing administration for film and television,
from such shows as “Sopranos”, “Sex and the City”, and “South Park”, to films
such as “Dogtown and Z-Boys” and “O Brother, Where Art Thou?” As a result,
Gibson & Behman is currently handling music licensing for a major Massachusetts
corporation’s advertising.
GIBSON & BEHMAN, P.C. PRESENTS FOR SECOND TIME TO VERMONT
CLAIMS ASSOCIATION
Gibson & Behman, P.C., for the second time, was invited to present before the
Vermont Claims Association so that insurance adjustors could receive continuing
education credits. The title of the seminar was “Saving Through Subrogation and
Identifying Spoliation of Evidence.” Christopher Cifra and Christopher Driscoll
gave the presentation.
The presentation was well attended and there were people in the audience from
Chittendon Insurance Group, Concord Group, Co-Operative Insurance Co., Dinely
Claim Services, Frontier Adjusters, Hickok & Boardman, Union Mutual Insurance
Company, and VT League of Cities & Towns.
The feedback from the seminar was good and the firm looks forward to being asked
back for years to come.
GIBSON & BEHMAN WINS A DIRECTED VERDICT IN AN $800K MASSACHUSETTS BUILDING DAMAGE LIABILITY CASE
Attorney Chris Cifra of the G&B’s Burlington office recently secured a directed verdict in a large building damage liability case brought in Massachusetts state court, assisted by Attorney Chris Driscoll of the Manchester, New Hampshire office.
Attorney Cifra represented a demolition subcontractor who was hired to take down a large building in Boston. There were several buildings closely situated in the neighborhood. A building owner two sites down the street claimed structural damage to his building stemming from the contractor’s demolition efforts that created alleged ground vibrations. An overlapping claim was presented against a foundation subcontractor that installed a foundation at the site for the new building after Attorney Cifra’s client had removed the old building.
The claimant business owner recovered $100K of property insurance proceeds from his insurer, and brought a lawsuit seeking an additional $800K for alleged damage not covered by his own property insurance. Attorneys Cifra and Driscoll undertook a coordinated defense effort that involved extensive case discovery and involvement of various experts, including structural engineers and commercial building appraisers.
The claimant’s insurer brought a $100K subrogation claim in inter-company arbitration against the insurer for Gibson & Behman’s client. The case was thoroughly prepared for arbitration by Attorneys Cifra and Driscoll, who successfully persuaded a 3 person panel of arbitrators to deny the claim.
The lawsuit seeking the claimed balance of building damage was recently
called to trial at Suffolk Superior Court in Boston. Attorneys Cifra and
Driscoll moved to block the claimant’s experts from testifying at the trial
because their opinions, among other things, were disclosed late and were not
based upon discernable and reliable methodologies as required under
Massachusetts law concerning expert witnesses. The issue was extensively
briefed and argued. In a significant defense ruling, the trial judge
agreed and ruled that Plaintiff’s experts could not testify at trial.
Because the claimant could not prove his damages claim absent required expert
testimony, a directed verdict entered in favor of Gibson & Behman’s client.
GLOUCESTER TAVERN NOT LIABLE TO PEDESTRIAN STRUCK BY DRUNK DRIVER
Attorney Dan Shanahan of G&B’s Burlington office recently obtained a defense verdict in a liquor liability case against a Gloucester tavern insured by Hospitality Mutual Insurance Company. The plaintiff was a pedestrian struck by a drunk driver minutes after the driver left the defendant tavern.
On August 13, 2004, the alleged intoxicated patron arrived at the defendant tavern between 3:30 p.m. and 3:45 p.m. There was evidence offered that the patron was served and consumed three to four beers during a time period between forty minutes to over one hour. Within minutes after leaving the tavern, the patron was involved in a motor vehicle accident, striking the plaintiff who was talking to a friend while standing outside the driver’s side window of a parked car. The plaintiff was thrown a distance of forty-two feet, eventually landing on the asphalt road surface. The patron initially drove away, but later returned to the scene to find rescue personnel and police officers. A police officer detected the odor of alcohol, and the patron voluntarily submitted to field sobriety tests. The patron failed several of the tests and was placed under arrest. The patron later pleaded guilty to operating under the influence of alcohol.
As a result of the accident, the plaintiff sustained a fractured collarbone, knee injury, closed head injury, and other internal injuries. The plaintiff was admitted to a local hospital for five days and continued follow up care for her orthopedic injuries. The fractured collarbone failed to properly heal, requiring surgery to remove the distal end of the bone. The plaintiff eventually underwent a total knee replacement. The plaintiff’s medical bills exceeded $150,000.00. The plaintiff also alleged she was unable to work since the accident as a result of her injuries.
The defense argued that there was no evidence the patron was showing any visible or obvious signs of intoxication while at the tavern. The defense argued that based on the most credible evidence, the service of three beers, not four beers, in approximately one hour, was not excessive or a sufficient amount to place the bartender on notice she was serving alcohol to an intoxicated patron. The defense argued that the cause of the accident was the patron’s inattentiveness trying to answer his cell phone while driving, causing his vehicle to veer into the plaintiff. The defense was successful in excluding evidence of a breathalyzer, and limiting the admissibility of the patron’s OUI conviction and observations made by police officers at the scene.
The defense also disputed the extent and severity of the plaintiff’s injuries. The defense offered the testimony from its expert, an orthopedic surgeon, who testified the only orthopedic injuries related to the accident were the fractured collarbone and a tibial plateau fracture in the knee, which resolved within one year after the accident. The expert also testified that a slip and fall event in a bath tub less than a year after the accident caused unrelated damage within the knee, later requiring the total knee replacement.
After four days of trial in Lawrence Superior Court, an Essex County jury found that the defendant tavern was not negligent. The plaintiff’s initial demand was $750,000, which was reduced to $75,000 before trial. No offer was ever made.
ARBITRATOR FINDS TAVERN NOT LIABLE TO SERIOUSLY INJURED MOTORIST
Attorneys Scott Behman and Dan Shanahan of G&B’s Burlington office recently obtained a favorable arbitration decision in a liquor liability case against a tavern that allegedly served alcohol to a patron later involved in a serious motor vehicle accident with another vehicle. The plaintiff suffered catastrophic injuries, including fractured vertebra resulting in permanent paraplegia.
On May 24, 2002, the plaintiff was operating his motor vehicle on the Lowell Connector when his vehicle was hit from behind by a vehicle operated by the alleged intoxicated patron. The impact caused the plaintiff’s vehicle to leave the roadway, causing serious and life-threatening injuries. A police officer at the scene observed the patron was intoxicated and administered field sobriety tests, which the patron failed. The patron initially admitted to police officers that he consumed alcohol at another establishment, but did not mention the defendant tavern. The patron was later treated at a local hospital for his injuries and a blood sample was obtained, yielding a blood alcohol level of 0.17%. Approximately four and one-half years after the accident, the patron pleaded guilty to operating under the influence, and for the first time admitted to consuming alcohol at two establishments, being served last at the defendant tavern.
The patron testified to consuming a total of seven mixed drinks that evening, four being served at the defendant tavern. The defense argued that the patron’s testimony contradicted evidence that he was, in fact, served at the defendant’s tavern. The defense called into question inconsistencies with the patron’s description of where he parked his car, the gender of the bartender, the description of the defendant tavern, and register receipts which failed to corroborate the patron’s description of the rounds of drinks served to the patron’s group that evening. The defense also attacked the credibility of the patron’s account of his objective signs of intoxication while at the defendant tavern.
Both sides presented several fact witnesses and several expert witnesses, including toxicology experts and an accident reconstruction expert. The defense did not dispute the severity of the plaintiff’s injuries. The plaintiff is totally and permanently disabled, confined to a wheelchair and requiring daily assistance.
Despite the tragic circumstances underlying this case, the arbitrator found that based on the evidence, the plaintiff failed to meet his burden of proof against the defendant tavern, and the plaintiff’s unfortunate injuries were directly related to the reckless and irresponsible conduct of the patron, for which the tavern was not responsible.
MASSACHUSETTS COLLEGE HAS NO HOST LIABILITY
In an unpublished opinion, the Massachusetts Appeals Court recently issued a very favorable case for the defense in Brody v. Wheaton College, 2009 Mass. App. Unpub. LEXIS 129 (April 16, 2009). The Appeals Court held that no duty, social host or otherwise, existed for Wheaton College to protect an adult but underage guest of its summer employees.
The facts were tragic. In July of 2004, Benjamin Brody attended a party at the on-campus residence of two Wheaton College students who were working on campus for the summer. Mr. Brody consumed alcohol at the premises and was killed when he drove into a disabled bus on his way home from the party.
Distinguishing Mullins v. Pine Manor College, 389 Mass. 47 (1983), the
Appeals Court found no duty extended to Wheaton as no special relationship was
created simply due to Wheaton’s ownership of the building in which the party
took place. Mr. Brody alone was in the best position to ensure his own
safety. This case further insulates potential defendants from liability
who do not actually provide alcohol to guests. The Appeals Court is
continuing the public policy stance that the imbiber should bear the greater
responsibility for his own voluntary actions.
G&B’S CONNECTICUT OFFICE JUST GOT EASIER TO FIND
G&B’s Connecticut Office, located at 190 Washington Street in Middletown, just became easier to find. With the installation of a new sign, the Connecticut office is easy to spot when driving on Washington Street.
GIBSON & BEHMAN, P.C. SPONSORS THE JIMMY FUND’S 20TH ANNIVERSARY GOLF
& TENNIS CLASSIC
August 2009- Gibson & Behman, P.C. was once again a key sponsor of the Jimmy
Fund’s 20th Anniversary Golf & Tennis Classic. This event is one of the Jimmy
Fund’s most successful events. The golf fundraiser was held on June 15 at Black
Rock Country Club and the tennis fundraiser was held on June 26 at Beverly Golf
& Tennis Club.
The Jimmy Fund is dedicated to fighting cancer. The Gibson & Behman, P.C.
family has been touched by this disease and is very dedicated to this cause.
Gibson & Behman has been involved in this tournament for many years. The Golf &
Tennis Classic has raised over $1,000,000 over the past nine years for the Jimmy
Fund and cancer research.
G&B’S MATTHEW MANTALOS COMPLETES TRIATHLON
On Sunday, August 16, 2009, Matthew Mantalos from G&B’s Burlington office
competed in the Urban Epic Boston sprint triathlon held on the picturesque
shorelines of South Boston. In conjunction with the Massachusetts Department of
Conservation and Recreation and the City of Boston, Urban Epic is the only
triathlon conducted within greater Boston. Boasted as the "Greenest Large-City
Triathlon on the East Coast,” Urban Epic was aimed at promoting environmentally
conscious sustainable efforts within the city. The event was a huge success
with close to 500 athlete participants braving the 95 degree heat in front of
over a thousand fan supporters littered along the course. To his effort, Matt
finished the race in 1 hour 33 minutes for a 185th overall finish in his first
ever triathlon. When not racing, Matt focuses his practice on civil litigation,
employment, and commercial practices out of the corporate headquarters in
Burlington, Massachusetts.
G&B RAISES $100,000 FOR CYSTIC
FIBROSIS FOUNDATION AT JOEY COAKLEY MEMORIAL GOLF TOURNAMENT
August 2009- Gibson & Behman, P.C. was once again a key player in the Cystic
Fibrosis Foundation Joey Coakley Memorial Golf Tournament this year, raising
over $100,000. This is one of the few Pro Am tournaments in New England and
raises money to find a cure for Cystic Fibrosis research. The tournament is held
in the third week of August at both the Charles River and Woodland Country
Clubs.
The tournament was started in 1975 by Gael Coakley after his son, Joey Coakley,
died of the disease. President and Managing Director, Daniel P. Gibson 's,
family has been touched by Cystic Fibrosis. His niece suffers from the disease,
but due to the amazing strides in research, she is a flourishing paralegal in
Boston, Massachusetts.
Gibson & Behman has been involved in the tournament for approximately twenty
years as a platinum sponsor, and remains one of the primary sponsors of the
event. To date, Gibson & Behman has raised over $1,000,000.00 dollars for cystic
fibrosis research. Cystic Fibrosis is a genetic disease affecting approximately
30,000 children and adults in the United States.
DANIEL P. GIBSON AUTHORS CHAPTER IN RECENT PUBLICATION
Daniel P. Gibson, one of G&B's
founding partners, was recently asked to author a chapter in a publication
titled Starting Your Own Business, What you need to know. Attorney
Gibson's chapter, Understanding the Options in a Start-Up, was written based on
his own experiences starting G&B and assisting clients in starting their own
businesses. A copy of the chapter can be found here.
Villanova honors Gibsons
Burlington Union Business Buzz, Aug. 13
By Staff reports
Villanova University School of Law has named an academic classroom in honor of Daniel P. Gibson, Managing Partner of the law firm of Gibson & Behman, based in Burlington, MA in recognition of his generosity and that of his wife Lynn M. Gibson to the Campaign for Villanova Law.
Attorney Gibson has been an active alumnus since earning his Juris Doctor in 1982. He has been a member of numerous boards and committees and was an integral part of the Campaign for Villanova Law Steering Committee, charged with the major fundraising effort to construct the new 175,000 square foot law school building.
“Dan has been very supportive of his alma mater in many ways over the years, not only through his gift of time, but also with monetary contributions,” said Samuel McClure, associate dean for Development and Alumni Relations.
The Daniel P. Gibson Classroom will be located within the new $69 million Villanova School of Law building.
“I credit my career to the education I received at Villanova,” said Gibson,
who went on to start the law firm of Gibson & Behman, a mid-sized law firm
headquartered in Burlington and with offices throughout the United States and
one in the U.S. Virgin Islands. “It is an honor to be acknowledged in this way;
both Lynn and I feel privileged to be able to help see this beautiful building
come to fruition.”
G&B’S BURLINGTON
OFFICE OBTAINS DEFENSE VERDICT IN PREMISEES LIABILITY CASE
Attorney Christopher Cifra of G&B’s Burlington office recently obtained a
defense verdict after a one-day jury trial in Springfield District Court in a
claim for personal injuries stemming from a slip and fall at a campground in
Sturbridge, MA. In Hall v. Yogi Bear Campground, the plaintiff alleged
that the defendant was negligent by allowing a defective or dangerous condition
to exist on its premises, and thus, proximately resulting in her injuries.
The incident that gave rise to the litigation occurred on July 4, 2007 at the
Yogi Bear Campground in Sturbridge, MA. The plaintiff was a visitor at the
defendant’s campground and had walked into the main office to check in. As she
entered the office, she turned to her right and took a step up a single stair to
the registration counter. After spending less than five minutes at the
registration counter, the plaintiff then turned around to walk down the same
stair. As she stepped down, she allegedly landed awkwardly, injuring her right
foot. She was eventually taken to Baystate Medical Center where she was treated
for a sprained right foot. The plaintiff claimed to still be suffering pain to
her right foot at the time of trial.
The case had several interesting issues which were raised with motions in limine
concerning alleged admissions by a party opponent, subsequent remedial measures,
and whether the plaintiff could testify to current pain without a current
diagnosis or doctor’s opinion causally relating her current pain to the accident
at issue. At the trial, the owner of the campground testified that the
campground, as a precautionary measure, had two “watch your step” signs in the
stair area which were clearly visible. The campground owner also testified that
there had been no reported problems with visitors using the stair in question
throughout the entire time he’s worked there – since 1986. The plaintiff argued
that the “watch your step” signs were not appropriately placed and that a
warning strip should have been more prominent.
Due to the strong defenses available, the insurance company made the decision to
try the case and not make any offers. After a one-day trial, the jury returned a
verdict in favor of the defense after approximately seven minutes of
deliberation. It is unknown whether the plaintiff is going to appeal the
judgment.
MASSACHUSETTS LICENSED BEVERAGE ASSOCIATION ADVOCATES AGAINST ALCOHOL TAX
The Massachusetts Licensed Beverage Association, headed by Grant Hecht of G&B’s Boston office, recently responded to tax increases applicable to alcohol sales in the following letters to the editors of the Salem News and the Wakefield Daily Item.
G&B’S NEW YORK OFFICE MOVES TO NEW LOCATION
G&B’s New York office has relocated to 14 Wall Street. Though close to its previous location on Broad Street, the larger space makes way for exciting new growth in the office and the firm’s New York practice.
G&B ATTORNEY JEN SADAKA QUOTED IN CT LAW TRIBUNE ARTICLE
Jen Sadaka of G&B’s Connecticut office was interviewed for an article that appeared in the Connecticut Law Tribune regarding protective orders as they pertain to family law cases. Attorney Sadaka regularly handles divorce matters in Connecticut for the firm. The article is reprinted below.
A Question Of Protection
Connecticut Law Tribune
Monday, July 20, 2009
Copyright 2009, ALM Properties, Inc.
A Question Of Protection
Family law attorneys seek better results from court orders
By CHRISTIAN NOLAN
Hartford lawyer Nancy Tyler had a restraining order against her ex-husband
Richard Shenkman, who had repeatedly threatened her for the past three years
during contentious divorce proceedings.
But the piece of paper that warned Shenkman not to come near his ex-wife didn’t
do her any good earlier this month when he allegedly kidnapped her from her law
firm’s parking lot and held her at gunpoint in their South Windsor home.
Even though Tyler escaped and Shenkman was arrested, the incident has led some
to question whether Connecticut needs to review — and perhaps toughen — laws
designed to protect victims of domestic violence and splintering relationships.
“I think [domestic violence laws] definitely need review,” said Jennifer Sadaka,
of Gibson & Behman in Middletown. “Some of the decisions I’ve seen, it just
amazes me sometimes.”
There are nearly 19,000 active protective orders in place in Connecticut and
more than 1,500 court-ordered restraining orders, according to state Judicial
Branch officials.
Protective orders are issued by a judge typically following the commission of a
crime by the abusive party in a relationship. A restraining order must be
requested by a victim and granted by a civil court judge.
Of those court orders, in the past year, 4,647 were allegedly violated,
resulting in charges of either a class D felony or class A misdemeanor,
depending on the circumstances.
The felony charge could land someone in prison for one to five years. The
misdemeanor for up to one year. But several family law attorneys said the
maximum sanctions are rarely imposed.
Sadaka pointed to a case she was involved with where an estranged husband
disregarded an active protection order six times, as he drove by his wife’s
house and approached her in the courthouse staircase.
Sadaka said the man served 30 days in jail, got out and again immediately
violated the protection order. “It just amazed me; it was as if nothing was done
about it.” She said he is in jail for six months this time.
Sadaka would like to see tougher penalties, especially for repeat offenders.
“A lot of these people need help. A normal person does not go and stalk
someone,” said Sadaka. She said many first-time offenders must take a lengthy
anger management course geared towards domestic violence that lasts about six
months. Often the protective order is dropped upon successful completion of the
program.
'No Foolproof Solution’
Rep. Michael Lawlor, co-chairman of the legislature’s Judiciary Committee, said
he believes that Connecticut’s domestic violence protection laws rank amongst
the toughest in the country. Still, he said there needs to be a thorough study
of the Shenkman case.
“We learn from these tragedies obviously, but there is no foolproof solution to
this,” Lawlor said. “Spotting these cases is like finding a needle in the
haystack. There are literally tens of thousands of these cases where restraining
and protective orders are issued in Connecticut, and maybe there’s a handful
that result in this kind of violence.”
Taking issue with Lawlor, family law attorney Heidi E. Opinsky, who practices in
Connecticut and New York, thinks Connecticut’s laws are not nearly as strict as
those in New York. “They take it much more seriously in New York,” Opinsky said
of domestic violence.
Opinsky explained that verbal threats alone — even without harassment, menacing,
and stalking — can result in a New York judge issuing a restraining order. But
in Connecticut, she said, the statute says that no order can be issued without
evidence of “imminent physical harm, bodily injury or assault” or a threat
causing fear of imminent physical harm, injury or assault.
“That’s a significant difference,” said Opinsky, who has offices in Westport and
Manhattan. “Sometimes, what ultimately becomes the physical aspect started out
with verbal threats. Not to make a statute with verbal threats, I just think
you’re missing the ball… You have to be maimed before you get helped?”
Opinsky also believes the police in New York are quicker to enforce orders of
protection.
“For instance, if you violate an order and a police officer has observed
threatening conduct, they’ll immediately arrest you. I’ve found it’s not as easy
to get that accomplished in Connecticut,” Opinsky said. And when arrests are
made in Connecticut, she said, the charges are nolled more often than they are
in New York.
Multiple Factors
Sue Else, president of the National Network to End Domestic Violence, said no
protective order anywhere is effective unless several factors work in unison.
She said the victim must want implementation. The perpetrator must understand
the law. The judge must fully explain the rules and repercussions. The victim
must have solid legal representation and a safety plan. Police need to be aware
of the order and provide prompt response. And there should be safety nets,
including shelters, hot lines and advocates.
On a national scale, “I would say the laws are very effective,” Else said. “I
think the protection order law is, again, as good as the system is that is
surrounding it.”
The U.S. Department of Justice has also found that, generally, protective orders
are effective, according to a report released last month. “Research consistently
finds that victims largely express satisfaction with civil orders, even if they
are violated by their abusers,” according to the study, called Practical
Implications of Current Domestic Violence Research.
Attorney Thomas Colin, of Schoonmaker, George & Colin in Greenwich, agrees that
the Tyler-Shenkman case should prompt a review of state laws.
“But ultimately I don’t think there’s any way you can absolutely stop” one
person from harassing or harming another, Colin said. “There are always people
out there regardless of the consequences who will do crazy things. If penalties
[for violating orders] were 10 times harder, would this have discouraged
[Shenkman] from doing this? I doubt it.”
For that reason, family law attorneys say they will continue to remind clients
that they need to look out for their own safety. To avoid places where the
ex-spouse or boyfriend might be. To consider staying with friends or family for
awhile instead of alone at home. To not be afraid to call police when the
threatening person appears.
“I always tell my clients, [the court order] is just a piece of paper. You’re
the only ones who can protect yourselves’,” said family lawyer Corrine A.
Boni-Vendola, of Charles & Boni-Vendola LLC in New Haven. “Unfortunately that’s
the reality. If someone’s bound and determined to do something, they’re going to
do it.” •
The Associated Press contributed to this report.
DEFENSE VERDICT IN CASE AGAINST CAMPGROUND
Attorney Christopher Cifra of G&B’s Burlington office recently obtained a defense verdict in a premises liability case for a campground in Mansfield, Massachusetts. The plaintiff alleged that she slipped and fell on a foreign substance on the bottom of the swimming pool and as a result dislocated three toes on her foot, suffered lost wages and a loss of earning capacity.
On July 26, 2005, the plaintiff was residing at the campground with her boyfriend. At approximately 6:00 p.m. that evening, the plaintiff entered the wading pool without holding onto the handrail and slipped and fell on an unidentified substance. The weather that day was hot and sunny, the water in the wading pool was clear, nothing was obstructing the plaintiff’s view, and the plaintiff was clearly able to see to the bottom of the wading pool.
This case had a lot of interesting procedural issues which were all resolved through the aggressive arguing of motions in limine. Through these motions the plaintiff’s testimony was limited to her own observations and she was not allowed to testify as to alleged statements made by unknown people regarding similar accidents or problems.
During the trial, the defense argued that the plaintiff could not prove her prima facie case as there was no evidence that the Campground had notice of the alleged substance or an opportunity to remedy the condition prior to the plaintiff’s accident. Additionally, the plaintiff had testified that she was doing laundry before going into the pool. The defense argued in its closing that the plaintiff could not prove that she was not the one who tracked in the substance on her own feet from the laundry room. Furthermore, the defense argued that the plaintiff did not have any expert testimony that the Campground’s policies and procedures for cleaning the pool were inadequate or not in conformance with industry standards.
After one day of trial in Brockton District Court, the jury of six found that
the Campground was not negligent after deliberating for fifteen minutes.
The plaintiff has not yet decided whether she is going to appeal the verdict.
Another G&B Defense Verdict in New York
Attorney Daniel Friedman of G&B’s New York office recently obtained a defense verdict after a Jury trial in the Supreme Court of Kings County, Brooklyn, New York, which is generally considered to be a venue highly favorable to plaintiffs.
Prior to trial, plaintiff had demanded $350K for injuries, including alleged nerve damage that would require surgery, resulting from a trip and fall on a protruding platform step, made of concrete, leading from a sidewalk into a deli store premises owned by our client. Plaintiff’s expert witness testified that the step was unsafe, in that it visually blended in with the sidewalk because it was the same color, and was thus a visual trap. The respective expert witnesses differed on this point, with plaintiff’s expert opining that a visual cue, such as yellow paint on the step riser, was necessary to make the step safe. However, our client had previously admitted that, when he purchased the property three years prior to the incident, the riser was painted yellow, that the paint faded over time and, further, that, at some point, he painted it again himself. There was no paint on the riser on the date of accident.
Notwithstanding the foregoing, we advocated the position, based upon our expert witness’ testimony, photos, and the witnesses’ description of the area, that the platform step was safe even without the paint, and that it was an “open and obvious” condition which did not require a warning. We further urged that the taking of extra precautions does not necessarily mean that such precautions are necessary to render the step reasonably safe. Our further contention to the Jury was that the accident resulted exclusively from the plaintiff’s own inattentiveness.
The Jury apparently found our arguments persuasive, and rendered a unanimous Verdict for the defense. Specifically, New York Supreme Court Justice David B. Vaughan had instructed the Jury to render its Verdict by answering a series of written questions, the first of which was whether the step was reasonably safe. The Jury answered that first question in the affirmative, which, in accordance with Judge’s instructions, ended their deliberations and resulted in dismissal of the case.
Andrzej Palowski v. The Village Roti Shop Corp., Harnarine Singh and RSF
Deli & Grocery Inc., (Supreme Court of the State of New York, County of
Kings, Index No. 29814/06)
ELYCIA D. SOLIMENE NAMED
DIRECTOR OF G&B’S CONNECTICUT OFFICE
We are extremely pleased to announce that Elycia Solimene has been designated
Director of the Connecticut office. Attorney Solimene is an
extraordinarily talented attorney and will be an excellent leader of our
Connecticut Practice as we continue to grow.
Since joining the firm in 2004, Attorney Solimene has obtained favorable verdicts in civil litigation matters, employment and workers’ compensation cases. Her practice has included the handling of matters involving insurance coverage disputes, workers’ compensation matters, employment disputes, motor vehicle accidents, liquor liability actions, premises liability and declaratory judgment actions.
Attorney Solimene has extensive
experience in civil litigation, employment, and workers’ compensation matters
through the representation of employers and insurers in Connecticut in both
State and Federal Courts. Attorney Solimene is also admitted and actively
practices in the Mohegan Tribal Nation Gaming Disputes Court.
We look forward to the continuing growth our Connecticut office will surely have
under the supervision of Attorney Solimene.
G&B’S Massachusetts Office Continues Success in Defending Discrimination Charges
Attorneys Sharmili P. Das and Matthew E. Mantalos of G&B’s Massachusetts
office recently obtained two exceptional results with the Massachusetts
Commission Against Discrimination on behalf of a major New England restaurant
group. Both cases involved former employees claiming discrimination on the
basis of race for their respective terminations. Attorneys Das and
Mantalos were successful in their written submissions and working with
Commission investigators to unequivocally demonstrate that the employment
actions were solely for the claimants’ failure to adequately perform the
position free from any discriminatory motive. After reviewing the
pleadings, the Commission issued lack of probable cause findings in both
instances after only the initial investigation.
G&B'S RHODE ISLAND OFFICE SUCCESSFUL IN COMMERCIAL REAL ESTATE DISPUTE
Brian Dougan of G&B's Providence office recently prevailed for the Defendant, Feast or Famine, Inc., in a dispute over a commercial real estate lease. The Plaintiff, owner of commercial property in Warren, Rhode Island, filed a lawsuit in 6th Division District Court in Providence, Rhode Island alleging failure to pay rent, abandonment of the property and waste and moved for Feast or Famine to be evicted. The Plaintiff was claiming more than twenty thousand ($20,000.00) dollars in damages.
Instead of obtaining an eviction, the landlord changed the locks to the building and Feast or Famine was unable to enter its premises, causing it lost profits and/or not allowing it to sell its business, which it had been in negotiation to do.
Attorney Dougan argued that the Plaintiff violated the “self-help” provision of Rhode Island property law when he changed the locks on the defendant's restaurant and for that reason the Plaintiff was not entitled to any damages.
Under Rhode Island General Law Section 34-18.1-15 landlords are prohibited from utilizing “self help” behaviors for nonpayment of rent regardless of whether the agreement allowing this behavior was made in writing, orally or under common law. Rhode Island case law includes changing the locks on the premises as “self help” Turks Head Realty Trust v. Shearson Lehman Hutton, Inc., F. Supp. 422 (D.R.I. 1990). As a result of the Plaintiff’s “self help,” a counterclaim was filed against the Plaintiff for violating Rhode Island law. Feast or Famine sustained its own damages in the form of lost profits and interference with Feast or Famine’s ability to sell its business as a result of the Plaintiff’s actions.
At trial Feast or Famine set forth evidence, via witnesses and contract documents, showing that prior to the lockout there was a legitimate offer to buy Feast or Famine for forty thousand dollars ($40,000.00) and that, because of the lockout, the potential buyers did not follow through with the purchase, causing Feast or Famine to loss the sale.
The Judge ruled in favor of the Defense finding that because of the Plaintiff’s “self help” in changing the locks of the premises where Feast or Famine was located the Plaintiff was not entitled to any back rent and that the Plaintiff was precluded from arguing that Feast or Famine abandoned the property or committed waste since Feast or Famine was denied entry to the premises. (Note: Prior to the ruling Feast or Famine voluntarily offered to vacate the premises and therefore the eviction was not at issue).
Regarding Feast or Famine’s counterclaim, the Judge ruled that, because of the statutory limit on damages in the District Court, the Defendant’s counterclaims were not properly before the Court and that the counterclaim could be filed in a separate action in Superior Court.
Therefore, the Judge found for the Defense and awarded the Plaintiff zero as
a result of the Plaintiff violating Rhode Island law. Feast or
Famine may pursue its counterclaim in a separate action in Superior Court.
G&B Featured in Claims Magazine
Daniel P. Gibson and Jorge Solis co-authored an article about subrogation for
a recent edition of Claims magazine. A copy of the article can be
found by clicking here.
DANIEL P. GIBSON TO AUTHOR A BOOK CHAPTER IN “PREP YOUR CLIENT: HOW TO START UP YOUR OWN BUSINESS”
Daniel P. Gibson has been selected to author a chapter of an upcoming book on
how to start your own business. “Helping clients understand their options,” the
chapter written by Attorney Gibson, explores the common challenges faced by
entrepreneurs and investors engaged in the start-up of a new business. Reviewing
choices of entities, business planning and tax implications for the individual
and their entity, the chapter creates a roadmap for readers to identify the
pitfalls and opportunities for new businesses at their formation stage. The
title will be in print nation-wide this summer.
G&B’S BOSTON AND MAINE OFFICES SEE GROWTH IN BUSINESS AND STAFF
G&B’s Maine office recently agreed to act as national counsel for a large insurer for all their subrogation claims in the Northernmost counties of Maine. Previously, G&B acted as national counsel for the same insurer but only in the southern Maine counties. The addition of the Northernmost counties will mean an increased workload for those handling the Main practice.
In Boston, new attorney Grant Hecht has played a key role in the negotiation and handling of many subrogation matters handled there. Mr. Hecht’s practice focuses on civil litigation including premise liability, liquor liability, motor vehicle and insurance coverage. He also practices in the Sports and Entertainment Department.
The Boston office continues to grow
steadily and expand its practice in many areas. In particular, the Boston
office has seen expansion in its workers’ compensation, subrogation and
insurance areas.
CONNECTICUT OFFICE WELCOMES ASSOCIATE JENNIFER SADAKA
Attorney Jennifer Sadaka recently joined our firm as an Associate in our Middletown, Connecticut office. Prior to working at Gibson & Behman, she was a solo practitioner, and an Associate at Novak Witt & Associates prior to that.
Attorney Sadaka focuses her practice on all aspects of family matters, as well as bankruptcy, real estate and general litigation. The firm is excited to have Jen join us and expand our existing practices as well as introduce new areas of practice to offer our clients. She is admitted in both the State and Federal Courts in Connecticut, as well as the state courts of New York.
During her years of practice, Attorney Sadaka has gained extensive experience in family law. She has successfully conducted several trials in the state courts of Connecticut on issues ranging from custody and visitation to dissolutions to post-judgment issues.
She is also well versed in the United States Bankruptcy Code, and has experience in Chapter 7 filings, Chapter 13 filings and Chapter 11 filings. In this time of economic uncertainty, many people are turning to the bankruptcy court to save their homes or manage debt they simply cannot handle. With her experience in Chapter 7 and Chapter 13, she has been able to help people keep their homes and manage debt they cannot pay.
Currently, Attorney Sadaka has a large caseload, including a significant
appeal to the Second Circuit in New York regarding a $2.7 million collections
suit.
G&B’S New York Office Obtains Nuisance Value Result In Slip And Fall Case
Attorneys Daniel Friedman and Bella Pevzner of G&B’s New York office recently obtained an exceptional trial result in the Supreme Court of Kings County, Brooklyn, New York, which is generally considered to be a venue highly favorable to plaintiffs. The plaintiff, who had very challenging fertility problems, was pregnant after a successful in vitro fertilization procedure. In her fifth month of pregnancy, she allegedly slipped and fell on a wet floor in the ladies room of a Wendy’s restaurant, suffering a traumatic miscarriage, and has been unable to conceive ever since.
Plaintiff claimed negligence by the Wendy’s restaurant in creating a dangerous condition by allowing water to accumulate on the floor of the bathroom, and/or in failing to discover the dangerous condition and remedy or warn of same. At the Jury trial, plaintiff and her husband testified as to the alleged condition and cause of the fall, while contrary testimony of Wendy’s current and former managers was presented. Our defense was primarily predicated on the issue of notice, as well as the policies and procedures regarding maintenance and cleanliness of the bathroom floors. The testimony presented by the Wendy’s managers was that the restaurant policies and procedures mandated “walk through” inspections of the entire premises, including the bathrooms, every 15 minutes and that, directly after plaintiff’s alleged fall, they observed that the bathroom floor was dry.
The initial demand by the plaintiff was $500,000, and she remained firm at a
half-million dollars through several days of trial. However, capitalizing on
discrepancies in the deposition and trial testimonies of plaintiff and her
husband, and testimony elicited on cross-examination that plaintiff may have
been coached by her husband to change her testimony after her deposition, we
succeeded in damaging their credibility to the extent that plaintiff
substantially lowered her demand. After extensive settlement negotiations with
plaintiff’s counsel, the case was resolved for $30,000; essentially nuisance
value considering the venue, circumstances and the potential exposure in such a
case involving a traumatic miscarriage.
Boston Business Journal names Gibson & Behman, P.C. to “Area’s Largest Law Firms” list
G&B has been named to the most recent edition of the Boston Business
Journal’s Book of Lists, ranking among the “Area’s Largest Law Firms.”
Considered a valuable source of information, the Boston Business Journal’s Book
of Lists is a compilation of thousands of companies, spanning a number of
industry categories.
Brian T. Dougan interviewed in RI Lawyers Weekly
Brian Dougan of G&B’s Providence office was recently interviewed by Rhode Island Lawyers Weekly regarding his practice in the U.S. Virgin Islands. Below is a link to the interview as published on Monday, February 2, 2009.
Scott Behman and Sharmili Das admitted in New York State
Scott Behman and Sharmili Das from G&B's Burlington office were both recently admitted the New York State Bar. Their admittance comes at a time when the firm is expanding its presence and seeking additional clientele in New York State.
Behman, a founding member of G&B, serves as Managing Partner and Director. He is licensed to practice law in New York, Massachusetts, New Hampshire and the Mohegan Tribal Gaming Disputes Court. His practice areas include entertainment, liquor liability, premises liability, personal injury and products liability.
Das joined G&B in 2000, and serves as one of its Directors. She is licensed
to practice in New York, Massachusetts, U.S. District Court District of
Massachusetts, the First Circuit Court of Appeals and the Mohegan Tribal Gaming
Disputes Court. Her practice areas include entertainment law, premises
liability, motor vehicle accidents, and sexual harassment litigation. She also
advises business clients on all aspects of business development.
Daniel J. Gibson has been named director of G&B’s Maine office
Daniel J. Gibson, director G&B’s Boston office, has been named as director of G&B’s Maine office, located at 161 U.S. Route 1 in Ogunquit, Maine, and will oversee a staff of three. Gibson joined G&B in 2006, after earning his J.D. from Tulane University School of Law. He earned his bachelor’s degree from George Washington University.
G&B’s Maine office has a specialty in premises liability and campground
claims. The office hopes to grow the insurance defense practice and
continue substantial work in complex fire loss subrogation cases.
G&B announces expansions of multiple offices
G&B is proud to announce that it will be expanding its offices in Rhode Island, Connecticut, and the Virgin Islands. With significant success and steady growth in these practices, G&B will add one new attorney in Connecticut and Rhode Island this year and open a new office on St. Croix.
In the Virgin Islands, the St. Croix office will replace the firm’s St. John location, and will allow better access to district courts in both St. Croix and St. Thomas. Brian Dougan, a Director with Gibson & Behman, P. C. and head of the firm’s Rhode Island office, will oversee the new St. Croix office working with a team of attorneys and administrative support staff. The St. Croix practice will focus on civil litigation, personal injury, product liability and workers compensation for businesses and insurance companies throughout St. Croix and St. Thomas.
In Connecticut, steady growth and expansion has led to the decision to add another attorney to the current staff of seven. In particular, the Connecticut office has seen expansion in its workers’ compensation, commercial collections and commercial litigation practice areas.
The Rhode Island office has experienced significant success in several trials
in the past year and hopes to answer the growing demand for legal representation
in the state. Another attorney will be added to the Rhode Island staff
this year.
Barry Semel-Weinstein and Roy Woo join G&B’s New York office
Barry Semel-Weinstein and Roy Woo recently joined G&B’s New York office as the firm expands its presence in the state. Semel-Weinstein received his bachelor’s degree from Pennsylvania State University and his J.D. from Touro Law Center. Prior to joining G&B, he worked as an associate with a Long Island firm representing injured parties in all aspects of tort and no-fault litigation. He is admitted in New York, New Jersey and the U.S. District Court District of New Jersey.
Woo received his bachelor’s degree from New York University and his J.D. from
Touro College Jacob D. Fuchsberg Law Center. Prior to joining G&B, Woo
served as an associate with Levine & Blit, PLLC, handling litigation in its
Brooklyn branch. Woo is admitted in New York and New Jersey.
Mark Preiss and Matthew Mantolos admitted to practice in U.S. District Court, District of Massachusetts
Mark Preiss and Matthew Mantalos from G&B's Burlington office were both admitted to practice in U.S. District Court, District of Massachusetts.
Mantalos, an Associate in Burlington and Boston, joined G&B in 2007. He is licensed to practice in the U.S. District Court for the District of Massachusetts and the Commonwealth of Massachusetts. Mantalos focuses his general civil litigation practice in insurance defense.
Preiss, an Associate in Burlington and Boston, joined G&B in 2008. He is licensed to practice in the U.S. District Court for the District of Massachusetts, the Commonwealth of Massachusetts and New York State. Preiss focuses his practice in liability and liquor liability.
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