Articles Posted in UNFAIR BUSINESS PRACTICES

Keith L. Miller is a Boston civil trial attorney licensed to practice in Massachusetts and New York. He has been litigating in state and federal courts in Massachusetts, New York, New Hampshire, Rhode Island and Vermont for nearly thirty years. He graduated from Yale University in 1976 and from University of Virginia Law School in 1980. He began his legal career in Paris, France and is fluent in French. In 1981 he returned to the U.S. and opened his own law practice in Cambridge, Massachusetts. He spent several years in the late 1980’s with a boutique Boston litigation firm, where he handled all the firm’s personal injury work. In 1987, he left the firm to reopen his own practice and has maintained his own law practice ever since.

While Keith L. Miller has trial experience in many practice areas (including criminal, divorce and probate), his primary focus has been civil trial practice, with an emphasis on plaintiffs’ personal injury and products liability claims. Other practice areas include insurance bad faith, legal malpractice, construction law and general commercial litigation, representing both plaintiffs and defendants.

Keith L. Miller brings a unique approach to business litigation. Unlike most firms, which bill hourly fees for services and demand large up front retainers, he is often prepared to represent claimants on a contingent fee basis, receiving payment only upon a successful recovery by trial or settlement.

While not every claim is appropriate for contingent fees, Keith L. Miller is prepared to review and evaluate potential claims at no initial cost to the client, and when appropriate, will enter into fee agreements contingent at least in part on the success of the case. This permits litigants to prosecute or defend claims knowing from the outset what it will cost to proceed with a claim.

The key to success in litigation, and in particular contingent or fixed fee cases, is objective and realistic early evaluation of the merits of a claim. This requires cooperation from the client in providing all the facts and producing all the relevant documents from the outset. There should be no surprises after the commencement of an action.

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GIUFFRIDA vs. HIGH COUNTRY INVESTOR, INC.
No. 07-P-751. November 24, 2008.

The Massachusetts Appeals Court has ruled that a family who had “shopping and dining privileges for life”, as part of the the sale of their Saugus, Massachusetts steak restaurant, could maintain an action for unfair business practices in violation of G.L. c. 93A when a subsequent buyer terminated those rights. This was so, even though the Court also upheld the dismissal of breach of contract and other related claims against the buyer, finding that the termination was justified because the buyer had exercised an option to purchase the real property where the restaurant was located.

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The Plaintiffs were the wife and two daughters of Frank Giuffrida, founder of the Hilltop Steak House restaurant, who died in December, 2003 at the age of 86. Giuffrida had negotiated the privileges as part of the sale of the restaurant in the late 1980s. The defendant, High Country Investor, Inc., acquired Hilltop in 1994 by means of an asset purchase from the original buyer. In September, 2004, High Country ceased to provide the privileges, claiming that the plaintiffs’ rights had terminated. The plaintiffs then filed suit.

The initial sale had not included the land and building where Hilltop operated. Rather, there was a lease, which included provisions also contained in the purchase and sale agreement, in which the new tenant agreed to provide Giuffrida and and his immediate family dining and shopping privileges at Hilltop during their lives. The Lease also contained an option for the tenant to buy the premises after Giuffrida’s death. In 1994, the initial buyer sold certain assets, including Hilltop, to High Country, which also received an assignment of the Lease, and assumed the tenant’s obligations therein. Following Giuffrida’s death, High Country gave written notice of its intent to exercise the option to purchase the property.

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O’CONNOR vs. MERRIMACK MUTUAL FIRE INSURANCE COMPANY
No. 06-P-1750.November 24, 2008

After a fire destroyed a commercial building, a dispute arose between the insurer and the insured concerning the methodology used by the insurer to value the loss. The insured then brought an action against the insurer asserting numerous tort and contract claims as well as violations of G.L. c. 175, § 181, and G.L. c. 93A. After a jury-waived trial, the judge determined, based on the terms of the insurance policy, that the insurer had a choice of methods to calculate the loss and found for the insurer on all claims. The Appeals Court affirmed the lower court decision.

The insured had purchased an $800,000 property and casualty insurance policy. Under the terms of the policy, coverage on the building would be determined on a actual cash value basis up to the amount of the policy limit of $800,000. Although the policy did not define the term “actual cash value,” it expressly provided that the policy contained all the agreements between the parties concerning the insurance afforded and that the terms of the policy could be amended or waived only by endorsement issued by the insurer.

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ZABIN vs.PICCIOTTO
Nos. 06-P-1419, 07-P-842. November 18, 2008.

The Massachusetts Appeals Court has upheld jury verdicts in favor of five attorneys who assisted in the recovery of a $9 million settlement against an insurance company who allegedly engaged in unfair claims settlement practices. The jury found that the five attorneys performed work on the case, were subsequently dismissed by the Plaintiffs, who filed legal malpractice claims against each attorney. The attorneys then brought counterclaims to recover for legal fees arising from their representation. Several of the attorneys worked for hourly fees and several had contingent fee agreements. The Court found that a jury was justified in considering evidence of the contingent fee agreements, which the Plaintiffs signed, and could make an award in reliance on the formulas therein.

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