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Jessica Berk Joins Gardner & Rosenberg

Jessica BerkGardner & Rosenberg is pleased to have Jessica Berk join its litigation team.  Jessica is a seasoned business litigator with a track record of successfully handling a broad range of disputes including business contracts and partnership disputes, real estate and land use issues and employment matters.  Jessica has worked at some of the country’s most prestigious firms and brings her “big firm” skills to Gardner & Rosenberg’s nimble litigation practice.

UPDATE: Win/Lose for “Innocent Spouse” Seeking Insurance Coverage in Arson Case

burning houseIn the wake of a Massachusetts federal court decision this summer allowing coverage where an additional insured intentionally set a fire, a Massachusetts state court this fall ruled that an innocent co-insured can recover where fire was started by the other co-insured (see here for our earlier article on the federal case).

In the recent Massachusetts case, Aquino v. United Property & Casualty Insurance Company, the plaintiff and her fiance were listed as co-insureds under the policy.  The finance caused and perished in the fire.  The insurer denied coverage under the Intentional Loss Exclusion.  The policy defined “Intentional Loss” as “any loss arising out of any act an insured commits … with the intent to cause a loss.”

The court ruled that the policy’s exclusion is broader than the state’s statutorily required language for fire insurance, which refers to acts by “the insured” rather than “an” insured.  This, the court ruled, mandates a several obligation not to cause a loss, rather than a joint obligation.

The court noted that the ruling is in accord with the majority of states, who find coverage for an “innocent spouse.”

However, the court limited the import of its decision by awarding the plaintiff only half of the loss.  The court reasoned that “having determined that the intentional loss provision of the contract must be reformed to treat [the co-insureds] severally for purposes of assessing [their] ability to recover, I will also treat them severally in assessing any forfeiture of coverage by arson under that provision.  Here, the [fiance’s] act of purposefully burning the property will forfeit his share of recovery under the Policy.”

While this case is important insomuch as it provides coverage for innocent co-insureds, the prospect of recovering only half the value of a burned house will be cold comfort.  Recovering only half the cost of the house will likely lead to the innocent spouse defaulting on the mortgage, and owing any deficiency.

Gardner & Rosenberg, P.C. represents policyholders in all types of complex coverage disputes involving many different types of policies, including Director and Officer, Commercial General Liability, Employment Practices Liability, Errors and Omissions, Life, Homeowners, and Long Term Care.

NECCO Candy Shuts Down Without Notice, Gardner & Rosenberg Files WARN Claim on Behalf of Employees

NECCOThis week, local Revere, Mass. company New England Confectionery Company, Inc. (“Necco”), longtime maker of iconic candies, abruptly closed its doors, leaving its employees without jobs and without much in the way of notice.  Gardner & Rosenberg PC today filed a class action complaint on behalf of the terminated employees, under the federal Worker Adjustment Retraining and Notification Act, 29 U.S.C. §2101 et seq. (the “WARN Act”), requiring 60-days notice to terminated employees and entitling the employees to up to 60-days back pay.  The complaint names as defendants Round Hill Investments LLC and its affiliate Sweethearts Candy Co. LLC., which the Complaint alleges took over NECCO’s operations and are responsible for the shutdown.  See a copy of the Complaint here.

SJC Seeks Amicus Briefs in Gardner Rosenberg Wage Case

Gardner & Rosenberg represents a class of over 200 employees terminated without notice when the maternity and parenting education and services company they worker for suddenly shut its doors in 2014.  The company never paid the employees “back pay” required under the federal Worker Adjustment Retraining and Notification Act, 29 U.S.C. § 2101.  Gardner & Rosenberg obtained a judgment on behalf of the employees against the company for the “back pay” owed, but the company claimed insolvency and never paid.  The employees then sought damages against certain individual officers under the Massachusetts Wage Act, M.G.L. c. 149 § 148.  That issue is now before the Supreme Judicial Court, which is requesting amicus briefs on the issue of whether WARN Act back pay constitutes wages under the Massachusetts Wage Act.

For more information go to the SJC website, or contact Nick Rosenberg

Jillian Calixto & another vs. Heather Coughlin & others

Whether “back pay” paid by an employer to displaced workers under the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq., constitutes “wages” for purposes of the Massachusetts wage act, G. L. c. 149, § 148.

Delay in Responding to Lawsuit Not a Waiver of Arbitration Provision

The Massachusetts Appeals Court ruled in favor of Gardner & Rosenberg’s client, reversing the trial court’s denial of his request to compel arbitration of a fee dispute with prior counsel.

After obtaining an award and subsequent settlement in favor of the client in an underlying property dispute, the former counsel sought to recover a disputed fee from the client. Despite the arbitration provision in the fee agreement with the client, counsel brought suit in Superior Court. The Superior Court denied the client’s request to compel arbitration and other efforts to seek arbitration, implicitly based on the client’s delayed response to the lawsuit.

The Appeals Court reversed and remanded the case to be sent to arbitration per the parties’ agreement. The Court held that although a default later entered on the docket, the client did not waive his right to arbitration – the first thing he did when responding to the lawsuit was to demand arbitration and he acted consistently with his desire to resolve the dispute through arbitration. Read the Appeals Court’s decision here.