No. 07-P-1676, December 16, 2008.
In a two car motor vehicle accident where a passenger in a taxi cab sustained injuries, which did not become apparent until after she had returned home, and thereafter, despite reasonable efforts, was not able to identify the operator of either the taxicab or the second car in the accident, The Massachusetts Appeals Court has reversed a lower court judgment denying uninsured motorist coverage from a policy issued to the injured girl’s mother.
The passenger was an eighteen year old girl who was injured while riding in a taxicab in October, 2002. She was unable to identify either the taxi driver or the driver of the other vehicle involved in the accident, and therefore, because she lived at home with her mother, she filed a claim seeking uninsured motorist benefits under her mother’s policy. The insurer declined coverage on the basis that there was no hit and run accident and that it had been prejudiced by girl’s late notice of the claim. It then filed a declaratory judgment action in Superior Court and the girl counterclaimed. The lower court judge granted judgment for the insurer finding that there was a “hit and run accident” as defined under the policy, but that the late notice had prejudiced the insurer. The Appeals Court, however, concluded that genuine issues of material fact precluded entry of judgment for either party. More specifically, it found that a passenger in an at-fault vehicle who, unaware of her injuries or incapacitated by them at the time, leaves the vehicle without obtaining identifying information about the vehicle, may be entitled to recover under the hit-and-run provisions of the policy.
The general contractor was required to take reasonable precautions for safety of and shall provide reasonable protection to prevent damage, injury or loss to persons who may be affected thereby. The general was required to maintain reasonable safeguards for safety and protection. The Court found that these various provisions of the contract indicated that the general contractor was responsible to control the project, including all aspects of safety even though there was evidence that it had little, if any, access to the containment areas or supervision over the asbestos removal work within those areas.
The Appeals Court reversed the lower court ruling that summary judgment was appropriate because the general contractor did not have sufficient control over the asbestos removal work area to have a duty to the abatement contractor’s workers. The evidence was insufficient to satisfy the general contractor’s burden on summary judgment. The Court also found as a matter of law that that the general contractor could not contractually delegate its duties under the contract with the owner to the subcontractors.