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   State Courts - Massachusetts - May 24 - May 25, 2006

  
Blake v. Friendly Ice Cream Corp., Docket Number: 03-0003, SUPERIOR COURT OF MASSACHUSETTS, AT HAMPDEN, May 24, 2006, Decided , May 24, 2006, Filed
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Overview: The court refused to dismiss a shareholder's derivative action under Mass. Gen. Laws ch. 156D, § 7.44. Even if the fact that a special litigation committee was not properly constituted of independent directors did not require denial of the motion, the committee had failed to analyze the shareholder's claims thoroughly and carefully.

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Commonwealth v. Militello, No. 04-P-829, APPEALS COURT OF MASSACHUSETTS, May 24, 2006, Decided
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Overview: There was insufficient evidence of dissemination of matter harmful to minors because descriptions of magazine's pictures failed to show that material, taken as whole, lacked serious literary, artistic, political, or scientific value for them or appealed predominantly to their prurient interest as required by Mass. Gen. Laws ch. 272, §§ 28, 31.

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DiGiacomo v. Metro. Prop. & Cas. Ins. Co., No. 05-P-525, APPEALS COURT OF MASSACHUSETTS, May 24, 2006, Decided
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Overview: Lower courts properly awarded an insured lost wage benefits, given that the insured had entered the labor force only about 10 weeks before her accident, pursuant to Mass. Gen. Laws ch. 90, § 34A by calculating her average weekly gross wage for the year preceding the accident based upon the number of weeks that she was employed during the year.

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Gianocostas v. RIU Hotels, S.A., CIVIL ACTION NO: MICV2000-02862-C, SUPERIOR COURT OF MASSACHUSETTS, AT MIDDLESEX, May 24, 2006, Decided
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Overview: Administrators whose decedent became ill in the Dominican Republic could not prevail on a negligent misrepresentation claim against a tour operator. Its representative's statements that the decedent would get satisfactory medical care were expressions of opinion, and the administrators, who also spoke to doctors, could not reasonably rely on them.

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Aguilar v. Hernandez-Mendez, No. 04-P-1720., APPEALS COURT OF MASSACHUSETTS, May 25, 2006, Decided
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Overview: Abuse protection order was proper for girlfriend against her boyfriend's son; he lived with them for two years, kept key and received his mail there when he moved, and threatened to kill her. He was "former household member" under Mass. Gen. Laws ch. 209A, § 1 (as inserted by 1990 Mass. Acts 403, § 2); broad interpretation of term was intended.

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Commonwealth v. Herring, No. 05-P-833, APPEALS COURT OF MASSACHUSETTS, May 25, 2006, Decided
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Overview: The alleged unannounced entry by the police into an apartment, pursuant to a search warrant, wherein drugs and paraphernalia were seized was upheld under Mass. Const. Decl. Rights art. 14 under the useless gesture exception since evidence indicated that defendant and the other occupants did not hear the police knocking or announcing their presence.

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Commonwealth v. Stevanovich, Docket Number: 2006-0086, SUPERIOR COURT OF MASSACHUSETTS, AT ESSEX, May 25, 2006, Decided , May 25, 2006, Filed
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Overview: A sentence was corrected, and defendant, pursuant to Mass. Gen. Laws ch. 276, § 92, had to pay restitution of over $117,000 for her thefts; restitution was just punishment in view of Mass. Gen. Laws ch. 211E, § 2(3) and provided strong level of deterrence; incarceration was not a proper sentence as she had three minor children, one of whom was ill.

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Commonwealth v. Zinser, SJC-09516, SUPREME JUDICIAL COURT OF MASSACHUSETTS, May 25, 2006, Decided
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Overview: Defendant's appeal of the effective denial of his motion for a new trial under Mass. R. Crim. P. 30(b) was remanded because the motion judge should have addressed the motion on the merits and applied the standard under which ineffective assistance of counsel claims were ordinarily evaluated.

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Guerrier v. Commerce Ins. Co., No. 05-P-606, APPEALS COURT OF MASSACHUSETTS, May 25, 2006, Decided
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Overview: When the trial court found that fault for the falsity of statements in an insurance application rested with the insurer's agent, not the insured herself, the insurer improperly denied coverage under Mass. Gen. Laws ch. 175, § 186. In such a case, an insurer was not permitted to avoid a policy.

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Warren Pumps, LLC v. Liberty Mut. Ins. Co., Docket Number: 05-02322-C, SUPERIOR COURT OF MASSACHUSETTS, AT WORCESTER, May 25, 2006, Decided , May 25, 2006, Filed
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