Opinion
No. MICV2000-05578
July 19, 2002
MEMORANDUM AND ORDER ON DEFENDANT/PLAINTIFF-IN-COUNTERCLAIM, CHERYL A. MACLEOD'S MOTION FOR SUMMARY JUDGMENT
This is a motion for summary judgment by the defendant/plaintiff-in-counterclaim, Cheryl A. McLeod. Ms. McLeod contends that evidence in the form of expert testimony of the plaintiff's accident reconstructionist does not meet the foundation requirements for admission at trial and should be disregarded in connection with her motion for summary judgment. She further argues that because the plaintiff has offered no evidence to support its claims other than the inadmissible expert evidence, she is entitled to summary judgment as a matter of law. For the following reasons, the motion is DENIED.
Background
Plaintiff Safety Insurance Company ("Safety") issued a Standard Massachusetts Automobile Insurance Policy (Seventh Edition) to Cheryl A. McLeod, with effective coverage from July 23, 1999 to July 23, 2000. The policy provided coverage for Ms. McLeod's 1989 Chevrolet Barretta. Ms. McLeod contends that on February 18, 2000, she was involved in a hit and run accident on the Tobin Bridge in Boston, MA. Ms. McLeod further contends that as a result of this accident, she has sustained injuries which were caused in whole by an unidentified hit and run vehicle. Safety received notice of the incident on or about March 1, 2000. Safety then initiated an investigation into the incident, referring McLeod's claims to its Special Investigations Unit. As part of its investigation, Safety conducted an examination under oath of Cheryl A. McLeod and solicited the opinion from an independent expert in accident reconstruction analysis regarding the physical damage of the vehicle. According to the expert, the damages to the car are inconsistent with Ms. McLeod's description of the accident. In particular, the plaintiff's expert is prepared to testify at trial to the following opinions: (1) the accident did not occur as described by the defendant; (2) the damage was inconsistent with a highway guard rail or the mechanics of the reported loss; (3) the damage pattern contradicted a single continuous event; and (4) damage patterns contradicted an injury producing transfer of energy or an adverse change in velocity.
Based upon its investigation, and based largely on the expert's opinion, Safety determined that the accident could not have occurred in the manner in which Ms. McLeod described. On or about October 19, 2000, Safety notified McLeod that it was denying her claim based on its determination that she misrepresented the facts and circumstances surrounding the accident. In December of 2000, Safety filed the instant action seeking a declaration and order that it has no duty to indemnify Ms. McLeod due to her alleged failure to cooperate under, and breach of, the insurance policy contract. The suit also included claims of fraud, deceit, and bad faith on the part of McLeod. Ms. McLeod filed counterclaims alleging that Safety violated G.L. c. 176D and G.L. c. 93A by its failure to honor the policy and unfair settlement practices.
DISCUSSION
"[A] party seeking to introduce scientific evidence may lay an adequate foundation either by establishing general acceptance in the scientific community or by showing that the evidence is reliable or valid through alternative means." Theresa Canavan's Case, 432 Mass. 304, 310 (2000) discussing Commonwealth v. Lanigan, 419 Mass. 15 (1994). The obligation of the proponent to lay a foundation extends beyond purely scientific evidence to expert opinion testimony in other areas such as engineering science and accident reconstruction. Canavans's Case, supra 432 Mass. at 304, discussing Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). In addition to general acceptance as an expert witness, the court must be satisfied that the particular opinions that the witness offers are within the scope of his or her field of practice based on the witness's "education, training, experience and familiarity with the subject matter of the testimony." Letch v. Daniels, 401 Mass. 65, 68 (1987).
In order to consider expert opinion evidence relating to "scientific, technical, or other specialized knowledge," Proposed Mass.R.Evid. 702, in support of or in opposition to a motion for summary judgment, the "pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any," Mass.R.Civ.P. 56(c), must establish that the opinion meets the standards of admissibility at trial. See Hicks v. Brox Industries, Inc., 47 Mass. App. Ct. 103 (1999). See also West Boylston Cinema Corp. v. Paramount Pictures, 2000 WL1468513 (Mass.Super. 2000).
There is support for the view that in a close case the expert's opinion should be considered if the result is that summary judgment is denied and the trial judge is left in a position to make the decision on the admissibility of the expert's opinion on the basis of a more complete record. See Cortes Irizarry v. Corporacion Insular, 111 F.3d 184, 188 (1st Cir. 1997). Courts normally assume that the trier of fact would credit an expert proffered by the non-moving party at summary judgment. See Den Norske Bank AS v. First National Bank of Boston, 75 F.3d 49, 58 (1st Cir. 1996).
Courts of the Commonwealth have long recognized the usefulness and approved the admissibility of accident reconstruction testimony in numerous circumstances. The expert tendered by Safety has been qualified to offer his expert opinion in various courts throughout the Commonwealth. Dennis Burgess specializes in automotive accident reconstruction, and this specialization forms the basis of his opinion in this case. Mr. Burgess is a former police officer with experience in automobile accident investigation. He is a former investigator for the Registry of Motor Vehicles, and is an accredited and certified forensic examiner and accident reconstruction consultant. Mr. Burgess is amply qualified to make an expert opinion concerning the circumstances of the accident as he perceives them from the original sources he has utilized.
See Tokio Marine Fire Ins. Co. v. Grove MFG, 958 F.2d 1169 (1st Cir. 1992) (court stated trial judge has discretion to gauge competence of expert and extent to which opinion would be helpful to a jury in an accident reconstruction context); Commonwealth v. McIntyre, 36 Mass. App. Ct. 193, 197 (1994) (accident reconstruction used to discredit defendant's statements about how accident occurred); Liebovich v. Antonelli, 410 Mass. 568, 571 (1991) (police officer's experience and training qualified him as expert in accident reconstruction); Commonwealth v. Provost, 12 Mass. App. Ct.479, 484 (1981) (court allowed expert, stating accident reconstruction often necessary to get the facts of certain accidents); Bernier v. Boston Edison Co., 380 Mass. 372 (1980) (expert allowed to testify as to speed of vehicle and cause of outcome from collision); Reardon v. Marston, 310 Mass. 461 (1941) (Registry of Motor Vehicles employee can testify that defendant's brakes were not in working order based on examination of skid mark pictures); Lenehan v. Travers, 288 Mass. 156 (1934) (allowed experienced mechanic with no qualifications as an engineer or with special study of physics to express an opinion as to speed of vehicle before impact); Jackson v. Anthony, 282 Mass. 540 (1933) (auto repairman allowed to give testimony as to circumstances of accident because structural and body damage caused by collision outside the realm of typical juror's knowledge).
Mr. Burgess is ACTAR accredited and DABFE certified, a member of eighteen professional organizations and a former trainer and consultant for the Massachusetts Criminal Justice Training Council.
According to his preliminary report, Mr. Burgess used the accident report of the defendant, the recorded interview of the defendant, a report by Claims Bureau, Inc. dated March 29, 2000, and twenty photographs of the vehicle.
Ms. McLeod argues that the expert cannot testify as to the injuries in which she sustained. It is clear that an expert in accident reconstruction would not be qualified to testify as to the nature or extent of injuries sustained by an accident victim, but rather only as to the nature and circumstances of the accident. Mr. Burgess is trained, experienced, and fully competent to provide such evidence.
ORDER
This court, in the discretion afforded it by Lanigan and its progeny, determines that Safety's expert, Mr. Burgess is qualified to offer testimony as an expert in accident reconstruction. Mr. Burgess' opinion counters the statements made by the defendant concerning the circumstances of the accident. Here, there is a clear dispute of material fact and accordingly, summary judgment should not be granted. For the foregoing reasons, the defendant/plaintiff-in-counterclaim's motion for summary judgment is DENIED .
_____________________________ Hon. Peter W. Agnes, Jr. Justice of the Superior Court
DATE: July 19, 2002