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Marston v. Orlando

Appeals Court of Massachusetts, Essex

June 25, 2019

JONATHAN B. MARSTON, conservator, [1]
JOSEPH M. ORLANDO[2] & another.[3]

          Heard: December 7, 2018.

         Civil action commenced in the Superior Court Department on March 6, 2013.

         The case was heard by Timothy Q. Feeley, J., and the entry of judgment was ordered by him.

          Keith L. Miller for the plaintiff.

          Daniel R. Sonneborn for the defendant.

          Present: Blake, Lemire, & Singh, JJ.

          BLAKE, J.

         This legal malpractice action requires an understanding of the requirements for expert testimony under Fishman v. Brooks, 396 Mass. 643 (1986), and the duty of an attorney to properly advise a client when the law governing the client's case is unsettled.

         Norris Marston (Norris)[4] suffered a severe brain injury after an accident at his work site, an offshore light tower. His attorneys secured a $7, 500 lump sum settlement under the Massachusetts Workers' Compensation Act (Act), and then pursued Federal remedies, including a claim under the Jones Act, 46 U.S.C. § 30104 (2012), ultimately negotiating a $200, 000 settlement. The plaintiff, Norris's conservator, believing these settlements were woefully inadequate in light of Norris's injuries, sued the defendant attorneys for malpractice. On the eve of trial, a judge of the Superior Court issued a number of rulings that led to the dismissal of all of Norris's claims against the attorneys. This appeal followed.

         On appeal, the plaintiff principally argues that the judge (1) misapplied Fishman v. Brooks, 396 Mass. 643, as to the requirements for expert testimony in a negligent settlement legal malpractice case; and (2) erred by finding that the lump sum settlement approved by the Department of Industrial Accidents (DIA) was not a final adjudication of Norris's employment status.[5] For the reasons that follow, we reverse.


         We recite the facts in the light most favorable to the plaintiff. See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).[6] After a ship struck the Ambrose light tower (light tower), located approximately eight miles off the New Jersey coast, the United States Coast Guard, the owner of the light tower, became concerned about its structural integrity, and decided to completely disassemble it (project). Costello Dismantling Company, Inc., was the general contractor. Hallum Marine Construction (Hallum), one of the subcontractors, retained Norris to work on the project.[7] On August 24, 2008, as Norris was cutting sections of a steel docking station attached to the light tower, the docking station came loose, striking him on the head and driving him deep into the water, where he remained for a significant period of time. Norris was diagnosed with an anoxic brain injury.

         A resident of Gloucester, Norris retained local attorneys Joseph M. Orlando and Brian S. McCormick, of the firm of Orlando & Associates (collectively, attorneys).[8] The attorneys planned to seek damages exceeding $1, 000, 000 against Hallum and other parties under the Jones Act and related Federal statutes (collectively, Federal claims)[9] in the United States District Court. They decided to first pursue Norris's remedies under the Act in proceedings before the DIA.[10]

          1. DIA proceedings.

         On October 28, 2008, Attorney McCormick filed a claim with the DIA.[11] Although Hallum's workers' compensation carrier, Farm Family Casualty Insurance (Farm Family), opposed the claim, it agreed to commence voluntary wage and medical payments. See G. L. c. 152, § 19. After the contested claim was assigned to an administrative judge (AJ) for a conference, see G. L. c. 152, § 10A (1), Farm Family moved to dismiss the claim, arguing that Norris was a seaman on a vessel engaged in interstate commerce (seaman), and thus ineligible to receive benefits under the Act. In a statement filed with DIA and presented to the AJ, Attorney McCormick made the following representations about why Norris was a land-based employee:

"Here, [Norris] lacked the requisite connection to the Miss Yvette [Hallum's tugboat], necessary to qualify him as a seaman .... The anticipated evidence . . . is as follows:
"[Norris] picked up a truck owned by the principles [sic] of Hallum Marine Construction, and drove to Jersey City, NJ. After waiving [sic] a period of time, the Miss Yvette appeared, and [Norris] boarded her. The vessel steamed 10 miles offshore, taking between 3-4 hours of time before arrival. The vessel was brought alongside the Ambrose Light Tower, where, over the following seventeen days, [Norris] spent virtually all of his work time, working with a blow torch, dismantling the structure. During this time frame, he did absolutely no work upon the Miss Yvette, but carried out all physical work activities on the structure itself. At the conclusion of his stint, the Miss Yvette carried him back to shore."

         Following the conference, the AJ denied the claim for compensation, apparently concluding that Norris was a seaman. Attorney McCormick exercised Norris's right to appeal for a more complete evidentiary hearing. See G. L. c. 152, §§ 10A (3), 11. Before the hearing, Attorney McCormick settled Norris's case by lump sum agreement for $7, 500 (Massachusetts or workers' compensation settlement). See G. L. c. 152, § 48 (1). Norris agreed to the settlement solely on the recommendation of the attorneys, who did not advise him of the potential risk to his Jones Act claims. On February 5, 2010, the AJ approved the agreement, concluding it was in Norris's best interest, and entered it as an administrative order of the DIA.[12]

         2. Jones Act proceedings.

         On March 15, 2010, the attorneys filed an action under the Jones Act and general maritime law in the United States District Court for the District of Massachusetts (Federal court), raising negligence and maintenance and cure claims against Hallum (Jones Act case or claims); in addition, they asserted claims against several other parties (collectively with third-party defendants, Federal court defendants) .[13] As we have noted, the generous remedies provided under the Jones Act are limited to seamen. See 46 U.S.C. § 30104; Morris v. Massachusetts Maritime Academy, 409 Mass. 179, 191 (1991). "Whether under the Jones Act or general maritime law, seamen do not include land-based workers." McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 348 (1991) . Attorney McCormick signed and submitted a sworn "Seaman's Affidavit" to the Federal court, averring that Norris was a "seaman." In his memorandum of law in support of his motion to amend the complaint, Attorney McCormick made the following factual representations about Norris's status:

"In August of 2008, the plaintiff was hired to act as a member of the crew of the Miss Yvette, a tugboat utilized to transport barges to and from the Ambrose Lighthouse . . . . In the course of his work, [Norris] spent the vast majority of his time working on matters relating to the vessel, as well as the transport of materials to and from shore. He did, however, spend a small percentage of time working in actual dismantling operations on the platform itself. . . . [F]actually, the evidence to date supports that a substantial amount of plaintiff's duties were done upon the tender vessel, the Miss Yvette, as opposed to on the platform itself, thereby rendering him, under relevant Maritime law, a Jones Act seaman."[14]

         During the proceedings, Hallum and the two third-party Federal court defendants raised the specter of the possible preclusion of the Jones Act claims due to the actions and positions taken at the DIA. Attorney McCormick addressed this defense in his mediation memorandum.

         A one-day mediation session was held on October 17, 2011. Attorney Orlando advised Norris that if he did not take the final offer, he would lose at trial. Accordingly, Norris accepted $200, 000 plus Farm Family's waiver of its $18, 666.52 workers' compensation lien[15] in full settlement of his claims against all the Federal court defendants (Federal settlement). Within days, Norris retained new counsel. A petition for the appointment of a conservator on behalf of Norris was filed in the Probate and Family Court, and Norris's brother, ...

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