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$4.1 Million Judgment for Insurance Bad Faith Appeal - Scaffold Platform Assembled Negligently by the Construction Company

The plaintiff was badly injured at his construction job in 1986 when he fell from a scaffold platform that had been assembled negligently by the construction company, the general contractor on the project.

At the trial of the personal injury case, the construction company argued that it was not responsible for the scaffold; that the plaintiff was himself contributorily negligent; and that his damages were not large.

Rejecting these arguments, the jury returned a verdict for the plaintiff in the amount of $1 million, and $100,000 for his wife's loss of consortium. With pretrial interest, that verdict was worth more than $2 million when judgment first entered on that case in 1994.

The defendant insurance company, who insured the construction company and controlled the conduct of the litigation, appealed that judgment.

Their only asserted grounds of error vis-a-vis the plaintiffs were two evidentiary/trial conduct rulings, both of which had been held by the trial judge to be harmless in post-trial motions.

The defendant insurance company's appeal also sought indemnity from two subcontractors. In 1997, the Appeals Court affirmed the judgment in all respects in a rescript opinion. The defendant insurance company then paid the plaintiffs the full amount of the verdict plus interest: $2.94 million.

The plaintiffs filed suit against the defendant insurance company and alleged that the defendant's appeal of the judgment in the personal injury case violated Chapter 93A and Chapter 176D. The court agreed for three reasons.

It determined that no reasonable insurance company would believe that the appeal had a likelihood of success on the merits, that is a reversal or new trial, since it involved only minor, harmless rulings, and that the appeal under these circumstances was in objective bad faith.

The court found that the defendant also failed to conduct a proper investigation into the merits of the appeal. It had relied on its trial attorneys to advise it on appeal, which was particularly inappropriate, the court found, because of the personal hostility between the defendant insurance company's trial attorneys and the plaintiff's trial attorney.

The court also found that the defendant's decision to appeal was motivated by subjective bad faith. It determined that "part of the purpose of the appeal was to put the plaintiffs in a position where they would be more likely to settle for much less than the verdict with interest," noting the defendant's "low ball" offers, the first of which was extended after more than two years into the appellate process.

Holding that "[the defendant] used the appellate process in an attempt to extort the plaintiffs into a settlement for far less than they were owed," the judge awarded municipal damages for bad faith in this 93A/176D case in the amount of $4.1 million, double the value of the underlying 1994 verdict plus interest and attorneys' fees.

The case settled following the judgment.

Client Reviews
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We wanted to thank you again so much for all you did for us and your support throughout this ordeal. You did a great job for us and we truly appreciate it. We wish you well always. Dot and Alex
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We are extremely happy that we chose Kathy Jo Cook as our attorney. She brings experience, knowledge and compassion into the complicated legal process. Day or night, Attorney Cook always had time to talk to us and answer any questions we had throughout. We highly recommend her. Christopher & Mary Casella
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KJC Law firm handled my case and I was very pleased with the results. The Team there always returned my calls or emails quickly. They are very direct and upfront on how they feel the case will go and the best ways of handling it. I would definitely call them again should I need their assistance and will recommend them to others highly. J G.
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Law firm represented myself and another individual in a work related age discrimination case and was successful in obtaining a settlement in our favor. Couldn't be happier with the results and the representation. Mike K.
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I have worked with Kathy Jo Cook for over a decade. She has represented me in both personal and professional matters and has given 150% every time. Kathy Jo is hardworking and always has my best interests in mind. She is professional and reliable and has been accessible as needed, even after business hours. Kathy has expertise in many areas of law and is incredibly fair and ethical in her client work. We secured favorable outcomes every time that have enabled me to enjoy more happiness, health and success in my life. Mindy