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Otis v. Arbella Mutual Insurance Co.3/14/2005
, and that Otis's negligence outweighed that of the driver.
Counsel for Otis countered these theories of comparative negligence by reference to the location on the roadway where the impact occurred. An eyewitness to the accident, one Gregory Gomes, testified that Otis and O'Malley began crossing from the west side of Route 18 to the east side, but then stopped one or two feet shy of the yellow line; the vehicle, traveling in the northbound lane, swerved across the center line into the southbound lane and hit Otis and O'Malley. Based on Gomes's testimony, counsel for Otis argued that Otis had yielded the right of way by stopping in the southbound lane, leaving Cusick free to continue unobstructed in the northbound lane. He also argued, again based on Gomes's testimony, that the issue of Otis's intoxication was irrelevant -- having stopped in the southbound lane, Otis's intoxication had nothing to do with Cusick's vehicle swerving from the northbound lane into that southbound lane and striking him.
During their deliberations, the jury asked the judge two questions concerning Cusick's contention that Otis had failed to yield the right of way: "What constitutes pedestrian yielding right of way? Does standing in opposite lane meet the requirement of yielding right of way?" On September 23, 1998, the jury returned a verdict in favor of Otis, and assessed damages in the amount of $4 million. The jury rejected Cusick's contention that Otis had also been negligent, finding no comparative negligence on Otis's part.
Cusick filed a motion for a new trial, claiming, inter alia, that the judge had erroneously allowed Otis to introduce evidence that, while fleeing the scene, the driver of the vehicle had run over O'Malley's head. He contended that that evidence was irrelevant to Cusick's alleged liability for striking Otis, and that, even if it were relevant, that minimal relevance was outweighed by the prejudicial nature of the evidence. Otis's opposition to that motion for a new trial argued that the evidence had been admitted properly, as the two victims had been struck essentially simultaneously as part of the same incident, making it appropriate for the witness to describe the entire scene. He also argued that the evidence pertaining to O'Malley's being struck and then run over had not been prejudicial -- given the seriousness of the accident and resulting injuries, that one additional detail would not operate to inflame the jury. The motion for a new trial was denied. No appeal was taken, and on November 17, 1998, execution issued in the amount of $6,585,195.30.
One month later, recognizing that Cusick's assets would be insufficient to satisfy the judgment, Otis released Cusick from all liability on that judgment in exchange for an assignment of any claims that Cusick might have against Attorney Moccia, ESCM, or Arbella arising from their defense of Cusick in the underlying action. Based on that assignment, Otis's counsel sent Moccia, ESCM, and Arbella a demand letter under G. L. c. 93A, ยง 9, contending that they had breached their respective duties to Cusick by failing to investigate the claims against him, failing to provide him a competent defense, and failing to pursue an appeal. Specifically, Otis contended that the defendants had overlooked (and therefore failed to introduce at trial) "unassailable physical and forensic evidence" establishing that Otis and O'Malley had been across the middle line and into the northbound lane at the moment of impact, and that Cusick had not swerved into the southbound lane until after the impact with the two pedestrians. Otis now contended, based on that physical and forensic evidence, that he had in fact been "several feet beyond the center
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