Judicial Opinions

FEDERAL DISTRICT AND UNITED STATES FIRST CIRCUIT COURT OF APPEALS

Certain insurance claims and other civil cases cannot be settled and agreements for arbitration or mediation cannot be reached. In such cases a suit or lawsuit must be filed in state or federal court or claims are filed in administrative courts.

When a disability insurance company denies a claim or terminates benefits, the appeal usually must be filed in federal court. Appeals in Social Security Disability cases or SSI cases must be filed in federal court. Other cases involving federal law must be filed in federal court.

The following are some of the cases Attorney Low has tried in federal court or has appealed to the federal courts after administrative hearings. (The names of the cases are in all capital letters, followed by "citations." Citations refer to specific publications by volume and page number where the full case, written by a judge or a summary written by a reporter, can be found.)

FRANK JOHNSON AND PATRICIA JOHNSON VS. TEAMSTERS LOCAL 559 AND ROBERT DUBIAN, 102 F.3d 21 (1st Cir.1996), 36 Fed.R.Serv .3d 1127, 153 L.R.R.M. (BNA) 3031.

This case, which drew national attention, was tried in federal district court by Attorney Low on behalf of an African American former Teamster and his wife against a union, its membership and officers. The so-called “burden of proof” for a plaintiff against a union involves a strict federal standard of “clear evidence” that union officers condoned or actually participated in unlawful acts of the membership. Injury to this family were primarily psychiatric, requiring testimony of a psychiatrist and therapist. The jury returned verdicts against the union and its officers for assault, battery and intentional infliction of emotional distress. The verdict was upheld on appeal to the First Circuit Court of Appeals. The verdict with interest was $874,000.00.

MARILYN BARRY V. WING MEMORIAL HOSPITAL, 142 F.Supp.2d 161 (D.Mass.2001), 7 Wage&HourCas.2d (BNA) 14, 143 Lab.Cas.P.34, 261, 21 NDLR p.23, 80 Empl.Prac.Dec. p.40, 607.

A tragic and unfortunate case was brought by Attorney Low to challenge the termination of an employee, an officer and director of a local hospital, while on family and medical leave due to psychiatric illness. The case was settled on appeal to the First Circuit Court of Appeals.

ANN AND ROBERT KODES V. WARREN CORPORATION AND LIBERTY LIFE ASSURANCE COMPANY, 24 F.Supp.2d 93 (D.Mass.1988).

This ERISA claim for benefits was brought by Attorney Low to recover payments wrongfully withheld by an insurer and to challenge the trend of court rulings which limit state remedies for unfair claim practices by insurers. The case survived the insurer’s aggressive motions for dismissal and summary judgment and a resolution favorable to the Kodes family was reached.

NORMA MASON V. KENNETH APFEL COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, 2 F.Supp.2d 142, 50 Soc.Sec.Rep.Serv. 342 (D.Mass.1998)

This successful appeal to the federal district court overturned an administrative law judge’s denial of a claim for Social Security disability benefits. Attorney Low, representing the claimant in this complex psychiatric case, enforced a regulatory requirement concerning procedures for psychiatric review.

MASSACHUSETTS APPEALS COURT AND SUPREME JUDICIAL COURT

Fortunately, most cases are settled or an agreement can be reached for "alternate dispute resolution," where the facts can be presented informally to a "mediator" or "arbitrator." When the case can’t be settled (usually because not enough money is being offered) and the insurer won’t agree to try an informal resolution, the case must go to court. Sometimes after the trial of a case, appeals are taken. Cases appealed after trial in the Superior Court in Massachusetts or appeals from final decisions in workers’ compensation cases are “heard” by judges at the Appeals Court and, if necessary, at the Supreme Judicial Court of Massachusetts.

The following are two such cases appealed by Attorney Low, one originally filed in Superior Court which was “taken up” on the court’s own initiative to the Supreme Judicial Court and the other from the Department of Industrial Accidents on appeal to the Appeal’s Court:

PHILLIPS V. TOWN OF WEST SPRINGFIELD, 405 Mass. 411, 540 N.E.2d 1331 (1989); Prod.Liab.Rep. (CCH) p.12236; 9 U.C.C.Rep.Serv.2d 535; 2 ALR 5th 990.

This case was tried by Attorney Low in superior court and taken up on appeal to the highest state court. A victory for the consumer, it established a new standard and law in Massachusetts concerning the sale and warranty of food products. The case overturned a well-known 1964 Supreme Judicial Court case. The “reasonable expectations of the consumer” became the new “test” for defective food products.

CORRIVEAU V. HOME INSURANCE COMPANY, 43 Mass.App.Ct. 924, 685 N.E.2d 1208 (1997).

In 1991 the legislature changed the workers’ compensation laws regarding benefits for disfiguring scars received in the course of employment. The intent was thought to be the elimination of surgical scars and regulations were written to affect such a result. This injured worker suffered severe and disfiguring burns to his legs. Since only a short time was lost from work, compensation for the scars was the primary benefit the worker could have expected. Since employers receive immunity from personal injury lawsuits by employees, it is an equitable matter to provide injured workers with benefits and to interpret the laws liberally. Unfortunately the trend was to reduce benefits to injured workers and the Appeals Court rejected this worker’s claim. The court interpreted the language of the statute to mean an elimination of compensation for all scars, except scars on the hands or the face. Sometimes “the law is an ass.”