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About PDP
Pierce Davis & Perritano’s attorneys
have defended more than 300 cities,
towns, counties and school districts in
Massachusetts and Rhode Island, as
well as their officers and employees in
actions arising out of the performance
of public duties, including those duties
involving land management, zoning,
planning, public works, police
protection and student discipline.
PIERCE DAVIS & PERRITANO LLP
10 Post Office Square, Suite 1100N
Boston, MA 02109
617.350.0950
www.piercedavis.com
What’s inside this issue? NOTABLE FIRM VICTORIES
Rhode Island Supreme Court Affirms Superior Court Ruling in an Arbitration Award Involving a Providence Water Supply Board Employee: DiSano v. Argonaut Insurance Company
First Circuit Affirms Summary Judgment Motion in Case Involving School Shooting Threats: Skrabec v. Town of North Attleborough
Federal Court Dismisses Plaintiffs’ Civil Rights Claims: Winfield v. Town of Andover
CASE COMMENTS
Supreme Court Probable Cause and Qualified Immunity Ruling Supports Police Officers’ Actions: District of Columbia v. Wesby
PDP NEWS
Please Join us in Welcoming Amanda Chaves to PDP
QUESTIONS-CONTACT US
Developments in Municipal Law
Spring 2018
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DEVELOPMENTS IN MUNICIPAL LAW | www.piercedavis.com 2
Notable PDP Victories
John J. Cloherty successfully defended Argonaut Insurance
Company in an appeal before the Rhode Island Supreme
Court. The insured, Providence Water Supply Board, had paid
significant sums to its employee, David Disano, in worker’s
compensation benefits after his water truck was struck in a low-
speed accident. Despite recovering benefits from the other
driver’s insurer, from his own personal auto insurer, and from the
worker’s compensation insurer, plaintiff brought an Underinsured
Motorist Policy claim against his employer’s auto insurer. Attorney
Cloherty defended the insurer at arbitration held over two days
wherein plaintiff sought an Award of $900,000. After
deliberations, the Abitration panel found in favor of the defendant
insurer, awarding plaintiff no damages at all. On appeal, the
Rhode Island Supreme Court refused to vacate the Arbitration
award.
Background
This arbitration arose from an automobile accident in Cranston,
Rhode Island between a large 2005 GMC pickup truck owned by
the Providence Water Supply Board (“PWSB”) being driven by its
employee David Disano, and a 1996 Jeep owned and driven by
Mr. Justin Lorello. This collision was relatively minor: essentially
a low-impact low-speed collision causing a small scrape on the
side of the PWSB truck, and a small dent and damage to the front
driver’s-side bumper and headlight of the Jeep. Despite the low-
speed, low-impact collision, and despite plaintiff being the belted
driver of a large utility truck having three times the mass of the
Jeep, and despite the plaintiff not reporting any injuries to the
Police or the Water Department Supervisor who responded to the
scene, and despite plaintiff getting discharged after 15 minutes at
the emergency room for complaints of only back pain – somehow
plaintiff asserted this accident caused him to undergo a total left
hip replacement surgery ten months later, never returning to work
and needing a disability retirement. Contending the proceeds
from the other driver’s insurance and his personal auto insurance
were inadequate, plaintiff claimed underinsured-motorist
coverage through PWSB’s insurance policy with Argonaut.
Arbitration Decision
Under the policy’s arbitration provision, a hearing was held in
August 2014. The majority of arbitrators found in favor of
Argonaut.
“The majority found Lorello (the other party involved in the
accident) liable for the April 14, 2010 accident. The majority
also found that: (1) Lorello’s insurer, Liberty Insurance
Company, had paid DiSano $25,000, the policy limit; (2)
DiSano’s insurer, Metropolitan Property and Casualty
Insurance Company, had paid DiSano $25,000, the
underinsured-motorist coverage policy limit; and (3) the
workers’ compensation insurer for PWSB, Liberty Mutual, had
paid DiSano $258,303 in workers’ compensation benefits.
Consequently, the majority determined that Argonaut was
entitled to an offset of $308,303 from any damages awarded
to DiSano in the arbitration, which it calculated by adding the
aforementioned insurance payments and workers’
compensation benefits received by DiSano.”
Superior Court Decision
DiSano filed a petition in the Superior Court to vacate the
arbitration award. He claimed the arbitration miscalculated the
offset amount in its decision. Mr. Cloherty defended the
arbitration decision as properly calculating the offset amount, and
also argued that, “the purported inadequacy of an arbitration
award is not a ground upon which the courts can vacate an
arbitration award.”
DiSano also filed a notice to depose the dissenting arbitrator. Mr.
Cloherty argued that: (1) Superior Court Arbitration Rule 5(f)
prohibits the deposition of an arbitrator; (2) common law provides
arbitrators with quasi-judicial immunity; and (3) there is no factual
or legal basis to depose the dissenting arbitrator.
The Superior Court upheld the arbitration decision and granted
Argonaut’s motion to quash the deposition subpoena.
-continued
Rhode Island Supreme Court Affirms Superior Court Ruling in an Arbitration Award Involving a Providence
Water Supply Board Employee
David DiSano v. Argonaut Insurance Company, 178 A.3d 982, 2018 WL 1076522 (R.I. Feb. 28, 2018)
3 DEVELOPMENTS IN MUNICIPAL LAW | www.piercedavis.com
First Circuit Affirms Summary Judgment Motion in Case Involving School Shooting Threats
Patrick Skrabec v. Town of North Attleborough, United States Court of Appeals, First Circuit, No. 17-1385
PDP obtained a favorable Summary Judgment decision, which
was affirmed on appeal, in a case involving a high school student
who told classmates that he wanted to “shoot up the school.”
After alarmed classmates informed school administrators and
parents about the alleged shooting threat, the police were
contacted. The student was arrested and prosecuted after a
thorough investigation in which he admitted to Detectives that he
made the statement at issue. However, he claimed that he was
“only joking.” The criminal case against the student ultimately
resulted in an acquittal. The student and his parents then brought
a civil action against the Town of North Attleborough and several
of its police officers. PDP attorney Jason W. Crotty represented
the Town and its police officers in the case.
Counsel for the plaintiffs brought suit against the defendants
seeking recovery under theories of: 42 U.S.C 1983 (Count I); 42
U.S.C 1983 (Count II); Conspiracy (Count III); Negligence (Count
IV); Intentional Infliction of Emotional Distress (Count V); Malicious
Prosecution (Count VI) and Loss of Consortium (Count VII). After
vigorously defending the case throughout discovery, the
defendants moved for summary judgment on all counts of
plaintiffs’ Complaint. Plaintiffs inquired about settlement prospects
around the time their Opposition to the Motion for Summary
Judgment was due. Despite the fact that no settlement offer was
ever made, plaintiffs failed to file a timely Opposition to the
Summary Judgment motion. The Court granted the summary
judgment motion as unopposed. Plaintiffs’ counsel then moved to
set aside the judgment on the ground that the settlement
discussions should have stayed their opposition to the pending
Motion for Summary Judgment. PDP successfully argued against
the plaintiffs’ efforts to set aside the judgment, and the plaintiffs’
appealed.
The U.S. Court of Appeals for the First Circuit affirmed the
Summary Judgment decision. In its decision, the Court of
Appeals discussed, at some length, the “excusable neglect”
standard under Rule 60(b), and concluded that the District Judge
did not abuse his discretion in denying plaintiffs’ motion for relief
from judgment based on their attorney’s “understanding” (actually,
“misunderstanding”), that he would have additional time to oppose
defendants’ Motion for Summary Judgment if settlement
discussions proved unsuccessful.
QUESTIONS?
Contact: Jason W. Crotty
[email protected] | 617.350.0950
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Rhode Island Supreme Court Decision
The Supreme Court upheld the Superior Court’s decision citing,
“Further, even if the arbitrators did err by failing to subtract the
amount of workers’ compensation benefits attributable to
DiSano’s hip replacement from the offset amount, ‘[a]n arbitrator’s
award will not be overturned for mere errors of law.’ Atwood
Health Properties, LLC v. Calson Construction Co., 111 A.3d 311,
315 (R.I. 2015). …”This decision demonstrates, once again, that
under the Bell Atlantic and Iqbal pleading standard, a “bare
bones” civil rights complaint will remain vulnerable to an early
dismissal.
QUESTIONS?
Contact: John J. Cloherty III
[email protected] | 617.350.0950
DEVELOPMENTS IN MUNICIPAL LAW | www.piercedavis.com 4
Case Comments
Federal Court Dismisses Plaintiffs’ Civil Rights Claims
Marie Winfield v. Town of Andover, _F. Supp. 3d _, 2018 WL 1627437 (D. Mass. 2018)
United States District Court Judge Young dismissed eleven of
twelve civil right claims brought against the Town of Andover.
PDP attorney Adam Simms defended the Town.
The claims included First Amendment violations, unreasonable
seizure, improper detention, unlawful arrest, false imprisonment,
excessive force, civil conspiracy and violation of the
Massachusetts Civil Rights Act (MCRA).
The District Court initially granted the Town’s motion to dismiss
for failure to state a claim with four counts being dismissed with
prejudice and the remaining counts dismissed without prejudice.
The plaintiffs then filed amended claims which the Court agreed
to review even though they were submitted after the 30-day
submission period.
Attorney Simms argued the amended complaint failed to address
the deficiencies of the original complaint and was therefore futile.
Judge Young agreed dismissing all but one of the civil rights
claims. The plaintiffs’ claim of excessive police force remains
ongoing.
QUESTIONS?
Contact: Adam Simms
[email protected] | 617.350.0950
Supreme Court Probable Cause and Qualified Immunity Ruling Supports Police Officers’ Actions
District of Columbia v. Wesby, 138 S.Ct. 626 (2018) (Jan. 22, 2018)
The Supreme Court of the United States reversed the D.C. Circuit
in a case involving probable cause and qualified immunity.
The civil lawsuit was brought by 16 individuals arrested for holding
a late-night party in a house they did not have permission to enter
against the District of Columbia and five of its police officers. The
District Court and the United States Court of Appeals for the District
of Columbia ruled that there was no probable cause to arrest the
partygoers, and that the officers were not entitled to qualified
immunity. The Supreme Court reversed.
Justice Thomas, in an opinion joined by six other justices, found:
Fourth Amendment Probable Cause: the Circuit Court viewed
each fact “in isolation, rather than as a factor in the totality of
the circumstances” and “viewing these circumstances as a
whole, a reasonable officer could conclude that there was
probable cause.”
Qualified Immunity: the officers were entitled to qualified
immunity because “a reasonable officer, looking at the entire
legal landscape at the time of the arrests, could have
interpreted the law as permitting the arrests here. There was no
controlling case holding that a bona fide belief of a right to enter
defeats probable cause, that officers cannot infer a suspect’s
guilty state of mind based on his conduct alone, or that officers
must accept a suspect’s innocent explanation at face value.
Indeed, several precedents suggested the opposite.”
Justice Sotomayor, in a separate opinion, states that she agrees on
qualified immunity and would not reach the probable-cause
question. Justice Ginsburg also filed a concurrence questioning
whether the Court’s precedent “sets the balance too heavily in favor
of police unaccountability to the detriment of Fourth Amendment
protection.”
You can read excerpts of the opinion below and the full opinion
here: District of Columbia v. Wesby
Summary of the Case:
District of Columbia police officers responded to a complaint about
loud music and illegal activities in a vacant house. Inside, they
found the house nearly barren and in disarray. The officers smelled
marijuana and observed beer bottles and cups of liquor on the
floor. They found a make-shift strip club in the living room, and a
naked woman and several men in an upstairs bedroom.
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5 DEVELOPMENTS IN MUNICIPAL LAW | www.piercedavis.com
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Many partygoers scattered when they saw the uniformed officers,
and some hid. The officers questioned everyone and got
inconsistent stories. Two women identified “Peaches” as the
house’s tenant and said that she had given the partygoers
permission to have the party. But Peaches was not there. When the
officers spoke by phone to Peaches, she was nervous, agitated, and
evasive. At first, she claimed that she was renting the house and
had given the partygoers permission to have the party, but she
eventually admitted that she did not have permission to use the
house. The owner confirmed that he had not given anyone
permission to be there. The officers then arrested the partygoers for
unlawful entry. The charges were eventually dropped.
Several partygoers sued for false arrest under the Fourth
Amendment and District law. The District Court concluded that the
officers lacked probable cause to arrest the partygoers for unlawful
entry and that two of the officers, petitioners here, were not entitled
to qualified immunity.
With liability resolved, the case proceeded to trial on damages. The
jury awarded the partygoers a total of $680,000 in compensatory
damages. After the District Court awarded attorney’s fees, the total
award was nearly $1 million.
D.C. Circuit Affirmed
On appeal, a divided panel of the District of Columbia, Court of
Apeals affirmed. On the question of probable cause, the panel
majority made Peaches’ invitation “central” to its determination that
the officers lacked probable cause to arrest the partygoers for
unlawful entry. 765 F. 3d 13, 21 (2014). The panel majority asserted
that, “in the absence of any conflicting information, Peaches’
invitation vitiates the necessary element of [the partygoers’] intent to
enter against the will of the lawful owner.” Ibid. And the panel
majority determined that “there is simply no evidence in the record
that [the partygoers] had any reason to think the invitation was
invalid.” Ibid.
On the question of qualified immunity, the panel majority determined
that it was “perfectly clear” that a person with “a good purpose and
bona fide belief of her right to enter” lacks the necessary intent for
unlawful entry. Id., at 27. In other words, the
officers needed “some evidence” that the partygoers “knew or
should have known they were entering against the will of the lawful
owner.” Ibid. And here, the panel majority asserted, the officers
must “have known that uncontroverted evidence of an invitation to
enter the premises would vitiate probable cause for unlawful
entry.” Ibid.
Supreme Court Decision
The Supreme Court granted certiorari to resolve two questions:
whether the officers had probable cause to arrest the partygoers,
and whether the officers were entitled to qualified immunity.
At the outset, the Court observed that there is no dispute that the
partygoers entered the house against the will of the owner.
Nonetheless, the partygoers contend that the officers lacked
probable cause to arrest them because the officers had no reason
to believe that they “knew or should have known” their “entry was
unwanted.” The Court found otherwise. Considering “the totality of
the circumstances,” the Court held the officers made an “entirely
reasonable inference” that the partygoers were knowingly taking
advantage of a vacant house as a venue for their late-night party.
Later, the Court turned to the issue of the officers’ qualified
immunity. Here the Court held that,
“Even assuming the officers lacked actual probable cause to arrest
the partygoers, the officers are entitled to qualified immunity
because they reasonably but mistakenly conclude[d] that probable
cause [wa]s present.” Id., at 641. Justice Thomas observed,
“Tellingly, neither the panel majority nor the partygoers have
identified a single precedent—much less a controlling case or robust
consensus of cases—finding a Fourth Amendment violation ‘under
similar circumstances.’ And it should go without saying that this is
not an ‘obvious case’ where ‘a body of relevant case law’ is not
needed.”
Accordingly, the Court held the officers were entitled to qualified
immunity.
QUESTIONS?
Contact: John J. Davis
[email protected] | 617.350.0950
Please Join us in Welcoming Amanda Chaves to PDP
Amanda M. Chaves recently
joined PDP as a litigation asso-
ciate. Her practice primarily fo-
cuses on litigation and trial ad-
vocacy in defense of cities,
towns, and other public employ-
ers in Massachusetts State and
Federal Courts.
Prior to joining PDP, Ms.
Chaves was an Assistant Dis-
trict Attorney in the Cape & Is-
lands District Attorney’s Office.
She gained significant litigation
experience prosecuting criminal
cases in District Court. Ms.
Chaves has managed criminal cases at all stages of litigation
DEVELOPMENTS IN MUNICIPAL LAW | www.piercedavis.com 6
For more information about out practice or the cases discussed in our newsletter,
please contact a member of our Municipal Law Practice Group:
JOHN J. DAVIS
Partner
JOHN J. CLOHERTY III
Partner
ADAM SIMMS
Partner
SETH B. BARNETT
Associate
AMANDA M. CHAVES
Associate
JASON W. CROTTY
Associate
JOHN M. WILUSZ
Associate
PDP offers this newsletter as a free informational service to clients, and others, interested in developments concerning municipal liability.
This newsletter does not provide legal opinions or legal advice.
We have defended over 300 cities, towns, counties, school districts and other governmental entities in Massachusetts and Rhode
Island, as well as their officers (both elected and appointed) and employees in actions arising out of the performance of their public
duties, including those duties involving land management, zoning, planning, public works, police protection, and student discipline.
Our familiarity with local government and with the numerous procedural and substantive defenses available to our clients -- both
statutory and common law -- enables us to protect municipalities, local governments, and schools against the myriad lawsuits and
administrative proceedings currently facing them in the public sector. We have a wealth of expertise in the defense of municipalities,
local governments (including boards, committees and departments), school systems, public utilities, and other governmental entities
in Massachusetts and Rhode Island courts, the federal courts, and before both state and federal administrative agencies.
Visit our website for more information: piercedavis.com.
Government, Municipal and School Liability
