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Date Posted: 19:01:02 07/09/04 Fri
Author: DamnRam
Subject: Boston.com - Allen's family sues contractors
http://www.boston.com/sports/colleges/football/articles/2004/07/09/family_of_late_holy_cross_coach_sues_renovation_contractors_over_his_death/
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Boston.com - Allen's family sues contractors -- sader1970, 06:58:37 07/10/04 Sat
Though HC is not mentioned in this article nor the T&G article as a co-defendent, you have to wonder. All you lawyers out there know better than I do that when the lawsuits get filed, plaintiffs attorneys sue everyone that might have the smallest involvement because you just never know who a jury might think is responsible for damages.
HC's refusal to comment may well be that they are respecting the family of Dan Allen at this difficult time but might also be because they might be named as co-defendent, if not already having that status (though, presumably, T&G and/or the AP have seen the legal papers and would have named HC as a defendent if there).
Since the suit has been filed, I assume that the statute has been tolled and can be amended to add defendents later on but I'll leave that conjecture to those with more legal background.
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Re: Boston.com - Allen's family sues contractors -- JoltinJoe, 08:43:38 07/10/04 Sat
This sad story takes an ever sadder turn if Mr. Allen's illness and death were avoidable. Allen's family did not sue Holy Cross, but there is a good chance that the defendant will join Holy Cross to the suit as a third-party defendant.
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Re: Boston.com - Allen's family sues contractors -- NTKHC64, 10:42:47 07/10/04 Sat
I do not know specific Massachusetts law but the general law in many jurisdictions is that absent what amounts to an intent to injure on the part of the employer, workers' compensation provides the exclusive remedy for an injured employee vis a vis the employer. In my experience the WC bar also works as a bar to impleading the employer as a joint tortfeasor for contribution or common law indemnification. I feel it is highly unlikely that HC would've entered a contract that provided for its indemnifying the contractors. There will be no action against the College.
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Re: Boston.com - Allen's family sues contractors -- Sader81, 14:02:54 07/10/04 Sat
HC may become an additional party plaintiff. If they had paid Allen any worker's compensation benefits, they are probably entitled to reimbursement up to the amount they paid, from any party that is found to be liable.
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Re: Boston.com - Allen's family sues contractors -- timholycross, 20:05:39 07/10/04 Sat
Yes, I was thinking the same thing, because HC stands to sustain losses due to the alleged negligence of the contractor.
Plus, it's probably written somewhere in the contract that HC signed with the contractor as to what the contractor's liabilites would be, at least in some general fashion.
It disturbs me that the Allen family did not have an autopsy performed, and it wouldn't surprise me if it were (not) done at the recommendation their attorneys.
The way I look at it is that I'd want to know definitively what killed him because there's the distinct possibility that chemicals were not the only cause. What if it were something that could in some way affect his children?
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Re: Boston.com - Allen's family sues contractors -- NTKHC64, 09:29:27 07/11/04 Sun
WC carrier (or HC if self-insured) normally has lien on proceeds of third party action, i.e., Allen vs. contractors. Also remember that this action was filed before Allen's death and so either it has to be amended or another action filed and possibly consolidated for wrongful death, depending on MA. law. As for recovery against employer in death/serious injury cases I'd have to check MA law.
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Re: Boston.com - Allen's family sues contractors -- Sader98, 19:52:43 07/10/04 Sat
Not sure if it differs from state to state, but if I am not mistaken the employer CAN be sued in cases of death or grave injury (limited to specifically listed injuries such as loss of eye, limb, multiple fingers or toes, etc).
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ProJo -- sader1970, 13:21:02 07/11/04 Sun
The Providence Journal ran the AP story on Coach Allen's family lawsuit against the contractors in today's (Sunday) paper. Interesting that it was not in the sports section. Can't hide anything on these ProJo guys and it's nice that they let the story "age" a couple of days before they published the story.
I see those in the legal profession have now weighed in on the many and varied options and legal ramifications of the suit vis-a-vis Holy Cross. But some specific questions for you legal scholars that have nothing to do with HC per se: 1. How are the chances of the family's suit improved or hindered by the lack of an autopsy? 2. In light of no apparent evidence that anyone else was affected by this new flooring, what might be the standard of care expected of the contractors as it appears that, even if plaintiff's allegations are taken at face value, Dan must have had an extreme sensitivity to the solvents used? 3. What will the families attorneys need to demonstrate to the courts/jury that Dan's illness was a result of the flooring as opposed to some other cause (isn't the burden of proof on the plaintiffs here)?
Now we need some alums with a medical background to explain why they think there was no autopsy and what they think of MCS. And, if necessary, could an autopsy be done sometime in the near future that might still be useful? Though the family might prefer not to think about this aspect, Dan was a family man who obviously wanted to provide as best he could for them and there can be no doubt that if an autopsy would help the suit, he'd want it done.
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Re: ProJo -- NTKHC64, 14:44:32 07/11/04 Sun
I wrote what I did to provide some background info for those interested. I did so with some reluctance. While there is interest, I didn't want this to turn ghoulish, not that it has. Questions about the efficacy of an autopsy are beyond me. All lawyers and first year law students in torts have heard of the "egg shell plaintiff," the person with the thinnest of skulls who would sustain a fractured skull from a blow that wouldn't phase 99.9% of the populace. The rule is "You take them as they come (or as you find them.)" The fact that dozens went unharmed doesn't mean that the claim lacks merit. Coach Allen just might have been the 1/10,000 to pick a ratio that was susceptible to what are claimed to be the MCS activator(s). You must use reasonable care and the failure to do so must be demonstrated by a preponderance of the credible evidence as must the fact that the work/materials was A proximate cause of injury/death. Look for the contractors to implead the manufacturers of the offending products as third-party defendants and then look for them to become direct defendants.
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