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Recent Decisions Involving ADR – June 2012

By Brian R. Jerome, Esq.

SJC rules on mediation as practice of law 

“We address whether an attorney (petitioner) whose resignation from the practice of law was accepted as a disciplinary sanction may now work, either for pay or on a volunteer basis, as a mediator. We conclude that, although mediation does not in all circumstances constitute the practice of law, an attorney who has resigned from the practice of law while the subject of disciplinary investigation under S.J.C. Rule 4:01, §15, as appearing in 425 Mass. 1319 (1997), or who has been disbarred or suspended from the practice of law under S.J.C. Rule 4:01, §8, as appearing in 453 Mass. 1310 (2009), may be prohibited from serving as a mediator when to do so would be perceived by the public as an extension of the attorney’s practice of law, or when the conduct of the mediation is so closely related to the practice of law as to constitute legal work within the meaning of S.J.C. Rule 4:01, §17(7), as amended, 453 Mass. 1307 (2009). We remand to the county court for a determination whether it is appropriate, in light of our opinion, that the petitioner engage in mediation, and, if so, to impose any conditions necessary to protect his mediation clients and to ensure the integrity of the legal profession. …

“We conclude that, as a general proposition, a person does not engage in the practice of law when acting as a mediator in a manner consistent with the Uniform Rules. …

“The following considerations are relevant to determining whether mediation or other activities that do not constitute the practice of law when performed by nonlawyers may, in the context of bar discipline cases, nevertheless constitute legal work when performed by a lawyer: (1) whether the type of work is customarily performed by lawyers as part of their legal practice; (2) whether the work was performed by the lawyer prior to suspension, disbarment, or resignation for misconduct; (3) whether, following suspension, disbarment, or resignation for misconduct, the lawyer has performed or seeks leave to perform the work in the same office or community, or for other lawyers; and (4) whether the work as performed by the lawyer invokes the lawyer’s professional judgment in applying legal principles to address the individual needs of clients.”

In the Matter of: Bott, Anthony Raoul (Lawyers Weekly No. 10-096-12) (16 pages) (Duffly, J.) (SJC) Petition reported by Botsford, J., sitting as single justice (June 2012)

Employment – Arbitration Clause Binding

Where a plaintiff brought suit charging the defendant employer with retaliation and discrimination on the basis of age and sex, the complaint should have been referred to an arbitrator as required by two agreements signed by the plaintiff.

“The outcome of this appeal depends on whether a court or an arbitrator should decide a claim that an otherwise applicable arbitration clause is unenforceable. We hold that, in the circumstances of this case, the task is for the arbitrator. …

“Despite the fact that his claims fall within the four corners of the arbitration clause, the appellant originally challenged the enforceability of that clause on a multitude of grounds. In this venue, however, he has narrowed his attack; he argues only that enforcement should be denied because the agreement that contains the arbitration clause imposes a one-year limitations period. To be specific, he posits that the arbitration clause is invalid because the provision for a one-year limitations period (‘I may request an Arbitration hearing within one year of the management decision I wish to appeal’) impermissibly truncates the three-year statutory limitations period applicable to his claims under Laws 80 and 115. …

“When all is said and done, there appears to be no clear answer to the question of whether Puerto Rico law permits or prohibits contractual abbreviation of limitations periods where workers’ statutory rights are implicated. It therefore remains uncertain (and perforce ambiguous) whether the limitations period for the appellant’s Law 80 and Law 115 claims can be validly shortened by an arms-length agreement between employer and employee. The resolution of this ambiguity is for the arbitrator, not the court. …

“For the reasons elucidated above, we vacate the order appealed from and remand to the district court with instructions to enter an order compelling arbitration of the claims sub judice and, as the district court may elect, either staying or dismissing the pending case. Each party shall bear his or its own costs on appeal.”

Escobar-Noble v. Luxury Hotels International of Puerto Rico, Inc. (Lawyers Weekly No. 01-139-12) (18 pages) (Selya, J.) (Lynch, C.J., concurring) (1st Circuit) Appealed from the U.S. District Court for the District of Puerto Rico (Docket No. 11-1506) (May 24, 2012).

Arbitration Of Union grievance

Where the Appeals Court vacated a Superior Court judge’s decision to confirm an arbitration award, the confirmation judgment should instead have been affirmed.

“The American Federation of State, County, and Municipal Employees, Council 93, AFL-CIO (union), commenced arbitration proceedings to resolve a grievance on behalf of an employee of the school department of Burlington (department). The arbitrator issued an award in favor of the department. The union commenced an action in the Superior Court seeking to vacate the arbitrator’s award. On the parties’ cross motions, a judge in that court confirmed the award. The Appeals Court reversed, ruling that ‘the arbitrator exceeded her authority by determining, on the basis of no evidence, that the grievant was a civil service employee’ and thus not subject to the grievance and arbitration procedure under the collective bargaining agreement. American Fed’n of State, County, & Mun. Employees, Council 93, AFL-CIO v. School Dep’t of Burlington, 78 Mass. App. Ct. 511, 513 (2011). We granted the department’s application for further appellate review. We affirm the judgment of the Superior Court.

“… ‘Absent fraud, errors of law or fact are not sufficient grounds to set aside an award.’ … The union’s argument that there was no evidence in the record to support the arbitrator’s finding that the grievant was a civil service employee falls short of this deferential standard. The Superior Court judge properly declined to set aside the award on this basis.

“The union argues also that the arbitrator lacked authority to decide whether the grievance was arbitrable, as arbitrability is ordinarily a question for the court. There was no error. It appears that the question of arbitrability was raised at the outset of the hearing, without objection from the union at that time, and further that the department argued its position before the arbitrator that the grievance was not arbitrable. Nonetheless, the union did not contend in its post hearing brief that the arbitrator could not decide the question of arbitrability, and as far as we are able to discern, the union raised no objection to the arbitrator’s deciding this issue until it challenged the award in the Superior Court. Where there was no objection, we think the arbitrator did nothing wrong by deciding the issue.”

American Federation of State, County, and Municipal Employees, Council 93, AFL-CIO v. School Department of Burlington (Lawyers Weekly No. 10-083-12) (3 pages) (Rescript) (SJC) May 2012

Employment – Arbitration   

Where a defendant has moved to have the plaintiff’s employment dispute submitted to arbitration, a hearing must be held regarding whether the defendant has waived its right to enforce the arbitration agreement.

“The corporate defendant reports that it has just discovered that the parties had, well over four years ago, entered into an arbitration agreement requiring that any dispute between them be submitted to such forum. It is now almost two years after this lawsuit was filed, of which six months have been expended by the parties in briefing, responding to, and hearing the defendant’s motion to dismiss, which, after consideration and memorandum decision, the Court allowed in part and dismissed in part. Now, the corporate defendant seeks to stay this dispute to pursue the matter in arbitration, but insists that the Court continue to supervise discovery, and indeed, extend it. …

“The language ‘any disputes, claim or controversy’ appears clear and unequivocal, and would seem to preclude this Court from entering into any discovery dispute — whether substantive or procedural. It also calls into question whether this court is the appropriate forum for this matter, and whether, the defendant has, by its two-year delay, waived its right to insist upon arbitration. See Home Gas Corporation v. Walter’s of Hadley. 403 Mass. 772, 774 (1989).

“Finally, assuming that this Court retains jurisdiction, this case seeks compensation for personal labor and as such, is entitled to a speedy trial under G.L.c. 231, section 59A. “All of these issues deserve further inquiry.”  Valenca v. The Newport Group (Lawyers Weekly No. 12-095-12) (3 pages) (Curran, J), May 2012

Arbitration Award Vacated – Public policy

Where an arbitrator found that the Massachusetts Department of Correction did not have just cause for discharging a correction officer for domestic violence, the arbitration award must be vacated on public policy grounds.

“As an initial matter, the Court finds that the Arbitrator’s Decision is unfair because the Arbitrator was clearly partisan toward [Paul] Brouillette and the [Massachusetts Correction Officers Federated] Union. The Arbitrator’s partisanship can been seen in his reliance on the later conjured up fabrications of Mr. and Mrs. Brouillette, the refusal of the Arbitrator to admit Officer [Michael] Gill’s testimony concerning Mrs. Brouillette’s 911 emergency call to the Dartmouth Police Department to report that Brouillette had hit her, the Arbitrator’s admission and consideration of a later signed statement by Mrs. Brouillette, and a refusal to acknowledge Mrs. Brouillette’s injuries even though she told Officer Gill about them, showed them to the police, and allowed the police to photograph them. …

“… [T]here is no question in the Court’s mind that Brouillette should never be a correction officer for the DOC again. When the Court takes into consideration (1) his two violations of the DOC’s zero-tolerance domestic violence policy, one involving his former girlfriend and the other involving his wife; and (2) the place (prison) where he wishes to return to work, this Court believes that strong public policy and common sense dictates that he not be allowed to return to the DOC. To allow Brouillette to return to the Massachusetts DOC as a correctional officer would simply not be safe for the prisoners, his co-employee guards, and the DOC. A correctional officer deals with prisoners, some of whom are dangerous, mentally disturbed, violent and just plain hostile and angry to everyone there, including correction officers. It makes absolutely no sense for the DOC to be required to put Brouillette back in a correctional institution as a guard with his record of abusing others. He had his punishment for the first offense ameliorated, and he deserves no more amelioration. Public policy requires that he not be allowed once again to return to a Massachusetts prison as a correctional officer.”

Commonwealth of Massachusetts Department of Correction v. Massachusetts Correction Officers Federated Union, et al. (Lawyers Weekly No. 12-091-12) (47 pages) (Connolly, J.) (Suffolk Superior Court) (Civil Action No. 10-4286F) (April 25, 2012).

Arbitration – Nursing home – Wrongful death

Where (1) a plaintiff, as the administrator of his mother’s estate, brought a wrongful death action alleging that the defendant nursing home’s negligence resulted in personal injuries which caused the mother’s death and (2) the defendant filed a “Motion to Dismiss Complaint and Compel Arbitration” based on an arbitration agreement executed by the plaintiff when his mother was admitted to the nursing home, the motion must be denied because of the plaintiff’s lack of authority to waive his mother’s constitutional right to a jury trial.

“[Defendant] GGNSC argues that [plaintiff Salvatore] Licata was authorized to sign the Agreement under the health care proxy executed by Rita. The proxy states: ‘My Agent’s authority becomes effective if my attending physician determines in writing that I lack the capacity to make or to communicate health care decisions.’ This Court is not persuaded that the proxy was activated on August 22 when Dr. [Helen] Kyomen, in a transfer report, made a written diagnosis of dementia of the Alzheimer’s type, noted Rita’s chronically impaired insight and judgment, and indicated that she was unable to sign the discharge form. It is not clear that Dr. Kyomen intended to make a written determination of incapacity to make health care decisions in accordance with the Health Care Proxy Act, G.L.c. 201, §6. In contrast, two weeks after Rita’s admission to the nursing home, her treating physician executed a document entitled, ‘Documentation of Resident Incapacity Pursuant to Massachusetts Health Care Proxy Act M.G.L.c. 201D’ which clearly states that she is unable to make her own medical decisions due to dementia and Alzheimer’s. In the view of this Court, Dr. Kyomen’s transfer report did not satisfy the statute and did not activate Rita’s health care proxy. Accordingly, the proxy did not authorize Licata to execute the Agreement on August 22.

“… [I]n the view of this Court, a waiver of the principal’s legal right to seek redress in court for improper medical treatment does not fall within the statutory definition of a health care decision. … Thus, the health care proxy, even if effective at the time of Rita’s admission, did not authorize Licata to waive her constitutional right to a jury trial in the event of a dispute with the nursing home. …

“In the alternative, GGNSC argues that it can rely on common law principles of agency to establish the validity of the Agreement. …

“Even if this Court assumes that prior to her admission, Rita gave Licata authority to make medical decisions for her, including the decision to admit her to a nursing home, that does not equate to an agency for the purpose of making purely legal decisions such as the waiver of the constitutional right to a jury trial. … Based on the evidence before this Court, Licata did not have actual authority to bind Rita to the Agreement. …

“… There is no evidence of any conduct by Rita, as principal, that would vest Licata with apparent authority to execute a waiver of her legal rights. … Based on the evidence before this Court, Licata did not have apparent authority to execute the Agreement on Rita’s behalf. …

“Nor can this Court find that Rita, who was suffering from dementia, knowingly ratified Licata’s execution of the Agreement. … In light of Rita’s mental condition and the fact that she was not present when Licata executed the admission documents, her failure to object at the time Licata signed the Agreement cannot be deemed to constitute ratification.

“Because it appears that Rita was simply unaware of the nature and contents of any documents signed by Licata, her failure after admission to repudiate the Agreement cannot be deemed to constitute ratification. For all these reasons, the Agreement is not a valid written agreement to arbitrate under G.L.c. 251, §1 because it was not executed by Rita or one authorized to waive her constitutional right to a jury trial. …

“GGNSC further argues that the Agreement is binding on Rita as a third party beneficiary. …

“… Here, however, the arbitration provision is a separate document and independent contract from the other documents concerning admission and treatment. Moreover, execution of the Agreement was not a condition of admission and thus was not a prerequisite to Rita’s receipt of services from the nursing home. Accordingly, this Court concludes that the Agreement is not enforceable against Rita and her estate under a third party beneficiary theory. …

“Finally, Licata contends that in any event, the Agreement is unenforceable because the [National Arbitration Forum (NAF)] is no longer available to arbitrate consumer claims. …

“… [N]otwithstanding the severance clause in the Agreement, this Court finds the selection of NAF to be integral to the parties’ bargain in light of the emphatic language identifying NAF and incorporating the NAF Code of Procedure. Accordingly, even if the Agreement were validly executed by Licata on Rita’s behalf, it would nonetheless be unenforceable due to NAF’s unavailability to serve as arbitrator.”

Arbitration – Evidence Permissible

Where a plaintiff who was involved in three car accidents has challenged an arbitrator’s decision to award him $60,000 (minus $20,000 he received from another driver’s insurer) for the first of the accidents, the arbitrator’s analysis of the medical evidence was permissible and consequently the award should be confirmed.

“[Plaintiff Adam] Dunton’s counsel passionately and well argues that because Dr. James Lehrich attributes all of his patient’s medical sequelae to the first of three accidents, the arbitrator was without authority to disagree with that medical finding. He argues that an initial MRI performed on July 5, 2007, shows Mr. Dunton’s baseline medical condition of a mild central disc protrusion at L5-S1 without abnormal impingement on the cal sac or S1 nerve roots, and that an MRI performed seven months later showed a disc herniation which should be attributed to the first car accident. However, Mr. Dunton ignores the fact that during those seven months, he was able to run, throw, and catch a football and that his principal condition is an underlying degenerative cervical and lumbar spine disease, an ongoing debilitative condition which could result in the worsening of his medical condition. This degeneration could well have continued, notwithstanding his later 2007 and 2008 accidents.

“This case largely rested on a dispute as to the significance of various medical findings. Mr. Dunton suggested because his physician causally related all of his problems to this particular accident, an arbitrator must be bound by that medical opinion. But an arbitrator is not so bound. … Indeed, the defendant’s own medical records suggest that he suffered significant injury by both the second and third accidents. And finally, Mr. Dunton has filed a lawsuit on each of the two subsequent accidents. In this regard, Mr. Dunton, through counsel, has admitted that most of his medical bills proffered in this case were related to the other two accidents. The arbitrator was free to consider such evidence and weigh it.

“It is the plaintiff who produced these medical records; it is his medical condition that is at issue; and it is his subsequent two accidents (both of which have resulted in ongoing lawsuits) that put these issues in play. The arbitrator heard the evidence, evaluated the witness’ testimony and issued a thoughtful and detailed 14-page opinion. That he chose to accept certain portions of the evidence, to rely upon certain other evidence so that he might make an ultimate determination, are tasks entrusted to that officer. …”

Dunton v. Shabarekh (Lawyers Weekly No. 12-059-12) (4 pages) (Curran, J.) (Middlesex Superior Court) (Civil Action No. 09-CV-0815-F) (Dec. 6, 2011).

Arbitration – University dispute

Where a plaintiff employee of the defendant University of Massachusetts at Lowell has claimed that the defendant’s attempts to transfer him to a different building are in violation of a settlement agreement, the parties’ dispute should be referred to an arbitrator.

“Stephen Moses works at the University of Massachusetts at Lowell. In 2006, he filed internal complaints against the University regarding alleged employment discrimination and work conditions. Somehow, the University agreed to have the matter mediated by one Frank Fallon. A settlement agreement was reached. …

“Last year, another dispute arose between Moses and the University, this time relating to the location where the University has asked him to work. Apparently, the University has relocated all of the employees within Mr. Moses’ work group from Dugan Hall to Wannalanat Hall, save one — Mr. Moses. Last year, the University decided to wholly renovate Dugan Hall where Moses was working, needing additional faculty space. Mr. Moses has been moved to the Wannalanat Hall building, but refuses to accept this move. The University has offered him several other office locations, apparently none of which are to Mr. Moses’ liking.

“Instead, Moses insists — correctly — that this presents an issue for mediation or an arbitrable dispute envisioned by the settlement agreement entered into on January 25, 2008, being a ‘future problem[ ] aris[ing] with this document, case, or between any of these parties.’ The University’s opposition to mediation and/or arbitration is belied by the clear language of the Agreement into which it voluntarily entered.

“Moses, however, further insists that only mediator Frank Fallon should be entrusted with this mediation and/or arbitration, citing the language crafted by Fallon that, ‘Any future problems will be referred solely to [the] Alternative Law Company or [its] designee.’ Therein lies the rub.

“The University has produced four affidavits — from John Giarusso, Louise Griffin, and Joanne Yestramski and Julie Chen — all of which aver that Frank Fallon has, since the settlement agreement several years ago, accused the University of ‘dishonesty’ and exhibited a consistent pattern of bias in all of his dealings with the University. These allegations need not be repeated here, but they are troubling. … Indeed, Fallon has billed the University — and the University has somehow paid in recent years — some $93,883.75 for post-mediation ‘services’ and ‘consultations’. During this billing period, Fallon has produced no work product or report. Instead, the University alleges that he has manufactured for himself a one-man vigilante/mediator position who continually browbeats the University staff and administrators in paying him for his ongoing ‘services.’ Indeed, in a curious turn, Mr. Fallon appeared at the Clerk’s Office yesterday at 9:00 a.m. to review the case papers. Then, more curiously, he reappeared five hours later — uncalled for and unsubpoenaed by either party — for the 2:00 p.m. hearing on the plaintiff’s motion.

“Given his fortuitous presence for the court hearing, and the university’s disquieting allegations of Fallon’s partiality and seeming self-interest in maintaining his income stream, this Court called Fallon to the witness stand to probe his neutrality in this matter. After a series of evasions, untruths, half-truths, I find Mr. Fallon utterly unable to be impartial in this — or indeed any other matter – involving the University of Massachusetts at Lowell. He is so obviously motivated by financial concerns that he has long since lost his objectivity. After his testimony, the Court offered Mr. Fallon the opportunity to withdraw as mediator. To his credit, Mr. Fallon agreed.

“Accordingly, the parties were exhorted to select another mediator or arbitrator from whatever entity they desire. They have agreed to notify the Court within several weeks of their decision. Throughout yesterday’s hearing, the Court appreciates the professionalism of Howard Brown, the plaintiff’s attorney, and Peter Mickelson, the University’s counsel, and their reasonable efforts to resolve this difficult issue.”

Moses v. University of Massachusetts at Lowell (Lawyers Weekly No. 12-057-12) (4 pages) (Curran, J.) (Middlesex Superior Court) (Civil Action No. 11-CV-2875-F) (Sept. 16, 2011).

Suit over ‘adulterous relationship’ at law firm must be arbitrated

A judge has dismissed a lawsuit over an alleged sexual affair between the managing partner of Edwards, Wildman, Palmer and the wife of a lawyer who formerly practiced in the firm’s Boston office.

In a Delaware-filed complaint, ex-Edwards Wildman attorneys Lawrence B. Cohen and Jay D. Rosenbaum claimed that a longstanding relationship between Cohen’s wife and managing partner Walter G.D. Reed led to the constructive discharge of Cohen and Rosenbaum.

On March 13, Judge J. Travis Laster of the Delaware Court of Chancery disposed of the suit because the firm’s partnership agreement required “any” disputes over compensation to be decided by an arbitrator in Boston.

“We took the position, and obviously [Laster] agreed, that Mr. Cohen and Mr. Rosenbaum broke their obligations under the partnership agreement by going to court rather than to arbitration,” said Edwards Wilman’s lawyer, Gregory I. Rasin. “You can’t un-ring the bell they’ve rung. Going forward, if they want to proceed, they have to go to arbitration.”

Arbitration – Collective bargaining agreement

Where the plaintiff hospital brought an action against the defendant healthcare workers union under the Labor Management Relations Act seeking to vacate an arbitration award that stemmed from a grievance brought by the defendant under the terms of its collective bargaining agreement (CBA) with the plaintiff, summary judgment for the defendant must be granted because (1) arbitration was the proper remedy for this dispute and (2) the arbitrator acted within his authority in making the factual determinations at issue.

“… The grievance arose from a dispute over the Hospital’s decision to award electrophysiology (EP) training to a Cardiovascular Department (Department) member-employee with less seniority than other candidates. …

“The Hospital argues that the arbitrator essentially rewrote the CBA to include terms extracted from the [Career Ladders Program Book (CLPB)] that had not been fully adopted by the parties. The Hospital maintains that Section 11.3 and Appendix G of the CBA are simply statements of the parties’ intent to someday implement the Career Ladders protocol. Because the negotiations of the CBA concluded in 2005 without the 1994 edition of the CLPB being revised, or so the Hospital’s argument goes, its terms never became a part of the CBA.

“There is nothing inherently implausible in the Hospital’s argument, just as there is nothing ‘unfounded in reason’ or beyond the ken of any reasonable jurist in the arbitrator’s reading of Appendix G as not mandating the rewriting of the CLPB as a condition precedent for the Career Ladders protocol taking effect.

“… If a party disputes the existence of an agreement to arbitrate, its remedy (not resorted to by the Hospital) is straightforward — it can refuse to participate in the proceedings and raise the nonexistence of the agreement in a confirmation of award hearing.If, as is the case here, the issue is the extent of a conceded to be extant arbitration agreement, the rule is quite the reverse. ‘[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.’ …

“The Hospital argues that in the alternative the case should be remanded to the arbitrator for further determination of whether [Leonard] Borusky is in fact qualified for EP training. The arbitrator, again, was within his authority to determine from the factual record before him that Borusky was qualified for EP training, even if (as the Hospital argues) he misstated the Hospital’s position regarding Borusky’s qualifications. … Even if this court were to disagree with the arbitrator’s factual conclusions, it does not have the jurisdiction to rewrite them (or order them rewritten). ”  Cape Cod Hospital v. 1199 SEIU United Healthcare Workers East (Lawyers Weekly No. 02-087-12) (9 pages) (Stearns, J.) (USDC) (Civil Action No. 11-11431-RGS) (March 9, 2012).

Arbitration – Unfair and deceptive practices

Where (1) a plaintiff’s automobile was damaged in a collision allegedly caused by the defendant and (2) following an arbitration proceeding, a judge entered a judgment against the defendant and her codefendant insurer, the judgment must be vacated in part.

“Liberty Mutual was a party in this case only to the extent that allegations of unfair and deceptive practices in the handling of the claim were made against it. Liberty Mutual was not alleged to have negligently caused [plaintiff Timothy J.] Sheehan’s property damage. Nothing in this case removes it from the general rule that an injured party may not bring a direct action for the damages caused by a tortfeasor against the tortfeasor’s liability insurer until after he has obtained a judgment against the tortfeasor. … It is undisputed that only the tort claim for property damage was referred to arbitration. The remainder of the action, including the claim for unfair and deceptive practices against Liberty Mutual, was dismissed with prejudice. It is of no consequence that there was not a separate order dismissing Liberty Mutual from the case or that the property damages judgment of April 2, 1998 named Liberty Mutual and was not appealed. The claims against Liberty Mutual were ordered dismissed at the time of the scheduled trial of them in May, 1997. There is no claim against Liberty Mutual remaining in the case. …

“In the present case, Sheehan’s arguments to the arbitrators on the subject of the recoverable time of loss of use were largely devoted to assertions about Liberty Mutual’s delay in the adjustment and payment of his property damage claim. [Defendant Helen] Miller’s counsel, on the other hand, objected to consideration of Liberty Mutual’s claims handling in the assessment of damages against her. The arbitrators adopted Sheehan’s position and awarded not just damages against Miller caused by the negligent operation of her motor vehicle, but damages caused by Liberty Mutual’s claims handling. In including that subject in their award, the arbitrators exceeded their authority, and the award must be vacated to the extent that it was outside their authority. …

“The award is not entirely a nullity, however. As we have noted, Sheehan is entitled to recover for the loss of use of his vehicle for the time necessary to perform the repairs. …

“In this case, the monthly valuation of loss of use at $1,500.00 is in that category of decisions within the authority of arbitrators that we have noted are incontestable. … The three-month period for actual repair is not in dispute. So much of the award can be enforced as awards $4,500.00, plus interest, from November 7, 1994 at twelve (12%) percent to date of the judgment. …

“The judgment is vacated. A new judgment is to be entered for Timothy J. Sheehan, partner of Eight Bulls, a partnership, against defendant Helen Miller in the amount of $4,500.00 with interest from November 7, 1994. As to defendant Liberty Mutual Insurance Company, the action is dismissed.”Eight Bulls, a Partnership v. Miller, et al. (Lawyers Weekly No. 13-007-12) (12 pages) (Merrick, J.) (Appellate Division, Southern District)

Attorneys – Litigation privilege – Arbitration

Where plaintiffs, who obtained an arbitration award against an interior designer, have brought suit alleging that the attorney who represented the interior designer committed misrepresentation and violated G.L.c. 93A during the course of the arbitration proceeding, the complaint is barred by the absolute litigation privilege.

“… In this action, the [plaintiff Rose Loltek-Jick and Todd Jick] assert that [defendant Austin] O’Toole is liable to them because of statements that he made in court and before the arbitrator in the course of representing [James] Swan. …

“The intentional misrepresentations on which the Jicks claims against O’Toole rest are: (a) two false statements allegedly made by O’Toole, (i) a statement made to a Superior Court judge at a hearing to dissolve the attachment on trustee process/enter a preliminary injunction, and (ii) a statement made at a pretrial hearing to the arbitrator; and (b) a false statement testified to by Swan during arbitration that O’Toole did not correct. Each of these statements was made to a judge or arbitrator in court or an arbitral setting. …

“In the instant case, there can be no doubt that O’Toole’s statements or silence in response to his client’s testimony occurred in the course of a pending judicial proceeding. Indeed, the statements were made to a judge and an arbitrator. … It would appear, therefore, that the well-established absolute litigation privilege would bar the claims that the Jicks assert against O’Toole. The Jicks, however, argue that a recent decision of the Appeals Court, Nova Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34 (2010), has changed, or at least clarified, the litigation privilege doctrine in a manner that supports their claims. The court disagrees. …

“Because Nova makes no reference to the absolute litigation privilege, does not discuss the case law that defines that privilege, and Kunian’s conduct involves personal promises and conduct not undertaken in connection with litigation, this Court concludes that Nova does not represent a sea change in the absolute litigation privilege doctrine that immunizes an attorney from civil liability for statements made in court on behalf of his client. …

“There is an additional reason that Count III, which asserts a violation of Chapter 93A, must be dismissed. … The Jicks’ relationship with Swan arose out of a consumer transaction, interior design work on their home. When they sued Swan because they were displeased with Swan’s performance, they were not engaged in trade or commerce. … The Jicks have no viable claim against O’Toole under G.L.c. 93A, §11. Therefore, summary judgment shall enter dismissing Count III for this additional reason.” Loltek-Jick, et al. v. O’Toole, et al. (Lawyers Weekly No. 12-302-11) (12 pages) (Kaplan, J.) (Suffolk Superior Court) (Civil Action No. 9-2915-C) (Dec. 9, 2011).