An employer should not be allowed to get credit with its employees for having an ERISA plan that confers solid rights on them and later, when an employee seeks to enforce the right, pull a discretionary judicial review rabbit out of his hat. The employees are entitled to know what they're getting into, and so if the employer is going to reserve a broad, unchanneled discretion to deny claims, the employees should be told about this, and told clearly.
Insurers desperately strive to receive a deferential standard of review because it so dramatically raises the evidentiary bar for plaintiffs who need to prove the insurer’s decision was not just wrong but "downright unreasonable" in order to prevail. Despite Herzberger’s admonition that the reservation of discretion has to be clearly spelled out, insurers are still getting away with convincing courts that the use of policy language requiring submission of "satisfactory proof," or that benefits will be paid when the insurer "determines" that certain enumerated conditions have been met, is sufficient to reserve discretion. Clearer communication is therefore definitely called for.
Further, there is yet another related issue that has evaded careful scrutiny. Insurers are vesting themselves with the discretion to determine claims and are being granted a deferential standard of review despite the absence of any indication that the plan sponsor reserved discretion in the first instance and then delegated it. The careful statutory interplay between 29 U.S.C. §1102 and §1105(c) requires such documentation, yet it is rarely found in practice. Such requirements need to be more clearly spelled out.
Nor should insurers, who serve as the de facto plan administrator, be allowed to evade liability by naming the plan sponsor as the plan administrator. If an insurer is administering benefits, it should be required to name itself as plan administrator and be subject to suit as a party defendant under 29 U.S.C. §1132(d).
Because so many ERISA welfare benefit claims are determined under a deferential standard of review, with a resulting scope of review that limits the evidence the court will consider, claimants need more information when their claim is first denied so they can better appreciate the importance of the claim appeal process. For plans that have only one level of review, it is crucial to notify plan participants of that fact and advise them in unmistakable, easily understood language that they should consult with an attorney. This is important because the failure to either participate in an appeal or to conduct the appeal properly will result in adverse consequences in litigation. Claimants also need to be clearly informed of their right to receive, free of charge, the entire contents of the claim file. Of equal importance, though, is that claimants must be advised that their right to submit any issues, comments, or evidence will likely be cut off once they submit their appeal, making it mandatory that all issues and evidence be presented as part of the appeal.
It is equally important to communicate what the plan can and cannot do during the course of the appeal. A recent district court ruling, Neiheisel v. AK Steel Corporation, 2005 U.S.Dist.LEXIS 4639 (S.D. Ohio 2/17/2005), held that a disability plan may not have a claimant examined after a benefit denial -- the regulations state that plans may consult with experts, but that does not afford an opportunity for the plan to develop evidence to support the claim denial after the fact when such evidence should have obtained prior to the claim determination. Likewise, claimants should be notified and given the right to comment on any evidence received by the plan during the appeal process. In Abram v. Cargill, Inc., 395 F.3d 882 (8th Cir. 2005), the court faulted a disability plan for not allowing the claimant the opportunity to respond to a medical report that ultimately was used as the basis for the claim denial.
Even more needs to be done, though. With restrictions on discovery, claimants are left with no means of trying to prove potential bias or raise questions about the validity of evidence developed by a plan. In Semien v. Life Insur.Co. of North America, 2004 U.S.Dist.LEXIS 6759 (N.D.Ill. 4/20/2004), the court precluded the plaintiff from learning about the financial relationship between the insurer and its consultants. Such basic information should be provided during the claim process – claimants have a right to know if their claim is being decided based on advice rendered by consultants who either lack relevant knowledge or who are financially beholden to the plans for their livelihood. Life and death decisions turn on these factors; and the case of Bedrick v. Travelers Insurance Company, 93 F.3d 149 (4th Cir. 1996) is a prime example of how exposure of bias and incompetence reversed an improper denial of crucial therapies prescribed for a child suffering from cerebral palsy. Other rare cases in which discovery was allowed have revealed such important facts as that consultants have reviewed over one thousand files per year on behalf of a single insurer. These are facts that claimants need to know.
Claimants must also be clearly advised of their right to request claim manuals, protocols, guidelines, training materials and similar documentation. The value of such information was proven in Glista v. Unum Life Insur.Co. of America, 378 F.3d 113 (1st Cir. 2004), where the court of appeals was convinced the insurer acted arbitrarily and capriciously by raising a pre-existing condition exclusion in a manner contrary to its own prior interpretation as documented in a claim manual.
Plan administrators should also be mandated to disclose the date on which it believes the applicable statute of limitations would expire. The case of Mogck v. UNUM Life Insurance Co. of America, 292 F.3d 1025 (9th Cir. 2002) followed such a requirement from California law in holding that contractual limitations periods are not binding if the insurer fails to communicate to the insured when the limitations period expires. When cases such as Skipper v. Claims Services Intl., 2002 U.S.Dist.LEXIS 14200 (D.Mass. 2002) characterize the limitations periods described in insurance contracts as "gobbledegook," the utility of such a requirement is manifest. The problem is more acute, though, with self-funded plans, many of which have unusually short limitation periods; and claimants should not be put in peril of losing their rights to bring suit under 29 U.S.C. §1132 due to ignorance of the deadline by which suit needs to be filed.
There are two other issues relating to communications that occur during the claims process that also need to be explored. Many courts adjudicating benefit disputes have a preference for remanding the case to the plan to reassess the claim. At present, there are no procedures in place to govern that process, which usually leads to the insurer, rather than the claimant, bolstering a claim denial instead of a process of perfecting a claim approval. The propriety of remands, according to the dissent authored by Judge Diane Wood in Perlman v. Swiss Bank Corp., 195 F.3d 975 (7th Cir. 1999), is questionable as a matter of law since ERISA cases are not administrative law claims like social security disability cases. However, so long as courts are remanding cases, claimants need more protection against insurers who seek to use the remand as an opportunity to repair the defect that made the initial decision arbitrary.
The second issue is unique to the UnumProvident Corporation, the largest disability insurer in the world. As a result of a regulatory settlement agreement reached with the insurance commissioners of nearly all fifty states as well as the Department of Insurance, UnumProvident is in the process of re-evaluating over 200,000 previously denied claims, the vast majority of which are ERISA claims. Both claimants and UnumProvident need to be informed whether the re-evaluation process is subject to the claim regulations or is it sui generis where UnumProvident gets to write all the rules? That also raises a subsidiary question: which regulations apply? If the claim arose prior to 2002, do the older regulations apply or do the current regulations apply. This issue has arisen in several rulings which involve situations where a disability claimant may have qualified for benefits prior to 2002 but had payments terminated subsequent to the effective date of the current regulations. The case of Hackett v. Xerox, 315 F.3d 771 (7th Cir. 2003) suggests the current regulations apply based on its ruling that the "claim" arises when it is contested; however, many insurers take a contrary position, and the case of Wade v. Life Insur.Co. of North America, 271 F.Supp.2d 307 (D.Maine 2003) holds that the pre-2002 regulations apply when the claim was initially brought prior to that date even if the claim dispute arose later.
A plan's failure to provide procedures consistent with these standards would effectively deny a claimant access to the administrative review process mandated by the Act. Claimants should not be required to continue to pursue claims through an administrative process that does not comply with the law. At a minimum, claimants denied access to the statutory administrative review process should be entitled to take that claim to a court under section 502(a) of the Act for a full and fair hearing on the merits of the claim (emphasis added).
65 Fed. Reg. 70246, 70256 (Nov. 21, 2000), modifying 29 C.F.R. § 2560.503-1 (Nov. 21, 2000); see also 29 C.F.R. § 2560.503-1(l). Thus, the loss of discretion penalty appears to have been left in the regulations; however, it needs to be stated more clearly. At present, the federal courts have been inconsistent in dealing with tardy claim decisions. Jebian v. Hewlett Packard Co., 310 F.3d 1173 (9th Cir. 2002), withdrawn and replaced by 349 F.3d 1098 (9th Cir. 2003), hinted at a loss of discretion; other cases have allowed "substantial compliance" with the regulations to suffice, although Nichols v. Prudential Insur.Co. of America, 406 F.3d 98 (2d Cir. 2005) rejected the substantial compliance doctrine. Other courts have simply excused the plan’s tardiness, with the most recent example being Gatti v. Reliance Standard Life Insur.Co., 2005 U.S.App.LEXIS 9895 (9th Cir. 5/31/2005), where the court ruled that unless the late appeal determination results in substantive harm to the claimant, the only consequence of a tardy appeal determination is that the claimant can go to court; the standard of review is unaffected.
The consequence of cases such as Gatti, and the absence of penalties for non-compliance with the claims processing regulations, unlike the $110/day penalty available in 29 U.S.C. §1132(c) for failure to provide information upon request, shows that benefit plans have no incentive to meet the Department of Labor’s time limits in deciding appeals. Coupled with the availability of a deferential standard of review being accorded to insurers who clearly put their profits ahead of the claimant, contrary to their fiduciary duty mandated by 29 U.S.C. §1104(a)(1), the ERISA law creates perverse incentives encouraging denial of meritorious claims. The introduction to the statute speaks of protection of employees’ rights to secure benefits by affording remedies and access to courts (29 U.S.C. §1001(b)), but the last 30 years have seen a nearly uninterrupted progression of systematic deprivation of benefits by insurers who administer welfare benefit programs. There is simply no reconciliation of a recognized principle of insurance law known as contra proferentem (i.e., ambiguities in insurance policies are construed against the drafter) with the discretionary authority to construe policy language in a manner that favors the denial of benefits. Nor do insurers in any other context enjoy the privileges conferred on insurers administering welfare benefit programs, who have been allowed to simply vest themselves with discretion to determine claims, a standard of review that insulates their decisions from penetrating judicial review. The suggestions proposed in this testimony would afford claimants greater rights but would impose no expense on the administration of benefit plans. Nonetheless, these suggestions would go a long way toward protecting claimants, particularly those who face off against insurers who have at least the potential to place their profits ahead of their fiduciary obligations. One of ERISA’s sponsors, Senator Jacob Javits, hailed the law as "the greatest development in the life of the American worker since Social Security." It is time to restore that promise.


§ 389-2 Registration with Chief of Police required.
§ 389-3 Required registration information.
§ 389-4 Issuance of a registration certificate.
§ 389-5 Registrant to carry certificate.
§ 389-6 Deposit of certificate with Chief of Police at end of day.
§ 389-7 Denial of certificate of noncompliance.
§ 389-8 Calling on properties posted against same prohibited.
§ 389-9 Revocation of certificate for violations.
§ 389-10 Hours of soliciting.
§ 389-12 Violations and penalties.
§ 389-13 Additional to other ordinances.
§ 389-16 Application for license; approval by Board of Health.
§ 389-17 Issuance of license; general provisions.
§ 389-19 Violations and penalties.
Includes itinerant vendors of merchandise who shall go from door to door or from house to house in this Township, selling, causing to be sold, offering for sale or cause to be offered for sale or taking orders for present or future delivery of merchandise of any description whatsoever, and shall include persons going from door to door for the purpose of obtaining alms, orders, subscriptions, making canvasses or surveys or other solicitations.
No person shall solicit or act as a solicitor from door to door within this Township without first registering with the Chief of Police of the Township of Cinnaminson as provided in this article. The Chief of Police may deny the issuance of a permit, and appeal to the denial may be made to the Township Committee.
Each such registrant shall, at the time of registering, give to the Chief of Police, in writing, his name, address and such other personal data as is required to identify him, together with two recent photographs of his face, approximately 2 1/2 by 2 1/2 inches in size, together with the purpose of his proposed canvassing or solicitation, the route, date and approximate hours of his itinerary in this Township (which shall be between the hours of 9:00 a.m. and 8:00 p.m.), any prior convictions of crime and his fingerprints, together with sufficient information to determine whether or not the business he is to transact is interstate or intrastate commerce.
Each registrant, upon being so registered, shall be issued a registration certificate by the Chief of Police, upon which shall be affixed one photograph of the applicant, signed by the Chief of Police so that part of his signature covers part of the photograph; provided, however, that no person who has been convicted of a crime shall be issued any such certificate.
Each registrant shall carry the registered certificate at all times and shall exhibit it to any person upon request.
Each registrant shall, at the conclusion of each day's canvassing or solicitation, deposit his registration certificate with the Chief of Police.
No such registration certificate shall be issued to any person who has not complied with any law of the State of New Jersey or ordinance of this Township regulating soliciting, canvassing or itinerant vendors of merchandise.
No person, whether registered or not, shall visit or call at any private residence for the purpose of solicitation, as defined in this article, when banned by the householder by a sign bearing words to the effect that solicitors or peddlers are not invited or are prohibited.
Any such registration certificate so issued may be revoked by the Chief of Police for violation of this article or any other ordinance of the Township regulating solicitors, canvassers or itinerant vendors of merchandise, or for any false information given in said application.
No person shall solicit within the meaning of this article before the hour of 9:00 a.m. or after the hour of 8:00 p.m.
A fee as set forth in Chapter 265, Fees, shall be paid by the registrant for a registration certificate to defray the costs of administration of this article. A fee as set forth in Chapter 265 shall be paid for each additional person affiliated with the initial registrant who will canvass or solicit under the initial registrant's certificate. The Township Committee may, upon written application, waive the registration certificate and fee requirement imposed under this article for local nonprofit charitable organizations. Each waiver application shall be filed with the Township Committee no later than 45 days prior to commencement of canvassing and solicitation activities within the Township, and said local nonprofit charitable organization may not commence canvassing and solicitation activities until said waiver application is approved.
Any person or persons violating this article or any of the provisions hereof shall, upon conviction, be subject to a fine not exceeding $200 or imprisonment in the Burlington County Jail not exceeding 30 days, or both, at the discretion of the Judge before whom such conviction is had.
This article is in addition to any other ordinance or ordinances regulating itinerant vendors of merchandise, solicitation or canvassing within the Township of Cinnaminson.
A person who goes from place to place or from house to house by traveling on the public streets by vehicle and carries with him goods, wares and merchandise for the purpose of selling, offering to sell or delivering them to consumers from such vehicle.
An individual, firm, partnership, corporation, voluntary association, incorporated association and principal and agent thereof.
Includes, but is not limited to, ice cream, ice cream products, water ices, frozen confectionery products, pizza pies, sandwiches or other similar food items.
It shall be unlawful to engage in the business of peddling refreshments of any kind or nature from vehicles in the Township of Cinnaminson without first obtaining a license therefor pursuant to the provisions of this article.
It shall be unlawful for anyone engaged in the business of peddling or vending refreshments of any kind or nature, to misrepresent the character of the quality of the merchandise offered for sale, or to importune or otherwise annoy any person or persons for the purpose of effecting a sale.
All refreshments which will be sold or offered for sale from such vehicle shall comply with all laws and local ordinances relating to food and food products.
It shall be unlawful for any person engaged in the business of selling, offering to sell or delivering such refreshments from said vehicle to park said vehicle within the lines of any public street, road or other public place for the purpose of engaging in such business for a period of more than 15 minutes, except by written permission of the Chief of Police of the Township of Cinnaminson. It shall be unlawful for such vehicle to park within 300 feet of any public or private school during school hours or 30 minutes before or after said school hours, or within 300 feet of a retail store selling similar products. Vehicles shall be parked adjacent to the right-hand curbline and dispense said products only from the curb side or rear of the vehicle.
It shall be unlawful for any person engaged in the business of selling or offering to sell refreshments, as defined herein, to deposit or leave, or permit to be deposited or left, any paper wrappings, refuse or other materials upon any street, sidewalk or public place. Each such vehicle used for conducting the business aforesaid shall be equipped with a metal waste container having a self-closing lid into which such paper wrappings, refuse or other materials shall be deposited.
It shall be unlawful for any person or operator of a vehicle engaged in the business of selling or offering to sell refreshments, as defined herein, to sound at any time whatsoever a bell, chime, music or other device for the purpose of announcing his presence.
It shall be unlawful for any person engaged in the business of peddling, vending or selling refreshments as set forth in this article to do so after the hour of 9:00 p.m.
Any person desiring to engage in the business aforementioned shall make an application in writing, in triplicate, with one copy to be delivered to the Chief of Police, one copy to the Board of Health and the third copy to the Township Clerk.
Name and address of the owner of the vehicles registered with the Motor Vehicle Department.
Description of said vehicle to be licensed, giving the name of the manufacturer, serial number, motor number, with any other insignia appearing thereon.
Names and addresses of the person, firm or corporation from whom the ice cream, ice cream products, water ices or such frozen confectionery products will be purchased.
Name and address of the salesman or operator upon said vehicle.
Whether or not the applicant, salesman or operator has been convicted of a crime or misdemeanor or violation of any municipal ordinance, and the nature of the offense, if any, for which convicted, and the date and place.
Whether or not the applicant, owner, operator or salesman is the holder of a license under N.J.S.A. 45:24-9. If so, the license number, date of issue, name of county where issued and whether it is still in force and effect.
A photograph of the salesman or operator to be licensed shall be filed with the application, and after the issuance of the license a photograph of the licensed salesman or operator shall be displayed conspicuously on the vehicle.
Where the applicant is a firm or corporation, all of Subsection A hereof, except Subsection A(8), shall be applicable to each officer of the corporation and member of the partnership.
After obtaining a health certificate approved by the Board of Health of the Township of Cinnaminson, on approval by the Chief of Police of said Township, such applicant shall submit the same to the Township Clerk accompanied by the license fee hereinafter fixed.
The requirements concerning such health certificate approved by the Board of Health shall not be deemed to apply to officers of the corporation or partners in a partnership or to an owner, except to such officers, partner or owner who shall act as a salesman or operator of said vehicle.
If the Chief of Police, after reviewing an application, determines that the applicant is not a bona fide owner or lessor of the vehicle sought to be licensed, such application may be denied.
Upon receipt of an application for a license to engage in the business aforementioned or for a license to act as salesman or operator on or upon said vehicle, the Township Clerk of the Township of Cinnaminson shall transmit the application to the Township Committee after receipt of the aforementioned health certificate, approved by the Chief of Police, and license fee. The Township Committee may then grant the license applied for. The licensee shall appear before the Township Committee in person.
A license for a vehicle shall entitle the person named therein to engage in the business mentioned in § 389-14 hereof. Such license shall not be transferable. A salesman's license shall entitle the person named thereon to sell or offer to sell such products mentioned in § 389-14 hereof from a licensed vehicle and shall not be transferable to any other person. Upon the issuance of a license the Township Clerk shall furnish the licensee with a plate, badge or other evidence corresponding to the number of the license and the year in which it is issued. The plate, badge or other evidence shall be displayed at all times in a conspicuous part of the licensed vehicle or carried upon the person of the salesman, as the case may be. Such evidence shall be exhibited on demand of any citizen or any member of the Police Department or Board of Health of the Township. Licenses issued pursuant to the provisions of this article shall be good only for one year in which issued and shall be effective from the first day of January in each year. Any licensee applying for or obtaining a license after the first of January in any year shall pay the license fee for the full year.
The license fee to be imposed under this article shall be as set forth in Chapter 265, Fees. Said fee shall entitle the licensee of the vehicle to one salesman's license without charge.
The license to be imposed upon each additional salesman or any such vehicle shall be as set forth in Chapter 265, Fees.
Every person holding a validly issued and effective license under the provisions of N.J.S.A. 45:24-9 shall receive the license applied for without fee, provided that all other provisions of this article are complied with.
The license fees herein fixed are imposed for the purpose of licensing and regulating the business hereinabove defined.
Any person, firm or corporation violating any of the provisions of this article shall, upon conviction thereof, be subject to a fine not to exceed the sum of $2,000 or be imprisoned in the county jail for a term not to exceed 90 days, or both, in the discretion of the Judge before whom such conviction is obtained.
In addition to being subject to the penalties provided in Subsection A above, any license to be issued under this article may be revoked by the Township Committee for any misstatement in the application or for any violation of this article, after notice and hearing; provided, however, that a license may be suspended for a period not to exceed 30 days. Should any license be revoked or suspended, no part of the license fee shall be returned.


Synopsis: Petitions for review under Section 19(h) must be filed within 30 months of the original decision issued by the Commission. The limitations period will not be tolled by judicial review unless the court enters an order quashing original award.
Facts: The Arbitrator awarded Permanent Partial Disability benefits of 50% loss of use of the person as a whole on January 22, 2009. The Commission affirmed this award on February 23, 2010. Appeal was taken to the circuit court and on January 13, 2011, the judge found the Commission decision was against the manifest weight of evidence and remanded the matter for further consideration. On June 30, 2011, the Commission issued its Remand Decision wherein it awarded Permanent Total Disability benefits to Petitioner for life. The circuit court subsequently affirmed and the matter was taken before the appellate court.
In its September 25, 2013 order, the Fourth District Appellate Court found the Commission’s original award of 50% loss of the person as a whole was not against the manifest weight of evidence, and the circuit court had erred in setting aside the original determination. Accordingly, the court reinstated the February 23, 2010 decision.
On November 6, 2013, Petitioner filed a petition for review under Sections 19(h) and 8(a) of the Act. The employer moved to dismiss, arguing the §19(h) petition was filed beyond the 30-month window and the judicial review did not toll the time for filing. On April 23, 2014, the Commission granted the motion to dismiss, finding the §19(h) petition was untimely. On January 30, 2015, the circuit court affirmed.
On April 29, 2016, the appellate court affirmed the Commission’s granting of the motion to dismiss the §19(h) petition for timeliness. The court noted resolution of the issue was controlled by Big Muddy Coal & Iron Co. v. Industrial Commission, 289 Ill. 515, 565 (1919), wherein the Illinois Supreme Court held “the right to file application for review of an award accrues as soon as an award is made and is not held in abeyance by appeal or writ of error, nor is that right affected by it.” The only exception to that rule being if there is a final determination from the appellate court quashing the original award. The supreme court had followed Big Muddy Coal in Cuneo Press, Inc. v. Industrial Commission, 51 Ill. 2d at 549, 282 N.E. 2d at 881, again holding the 30-month filing period for a §19(h) petition runs from filing of the Commission’s decision and judicial review does not toll the filing period. Since there was no final court order quashing Petitioner’s original award, the filing period was not tolled.
Impact on Illinois Employers: absent a final appellate court order quashing an award, the parties may only petition to amend awards within 30 months of the original issuance date. This means that 30 months after issuing an award, neither party can re-open the case to establish either a reduction or increase in disability.


Joint Enterprise. Homicide. Felony-Murder Rule. Intent. Robbery. Assault and Battery. Assault and Battery by Means of a Dangerous Weapon. Assault and Battery on Certain Public Officers and Employees. Firearms. Practice, Criminal, Capital case, Dismissal, Instructions to jury. Probable Cause. Evidence, Joint venturer, Intent.
A Superior Court judge erred in granting the criminal defendant's motion to dismiss indictments charging the defendant with assault and battery with a deadly weapon against a person sixty years or older, assault and battery on a public employee, assault by means of a dangerous weapon, and discharge of a firearm within 500 feet of a building (offenses allegedly committed by the defendant's joint venturer outside a department store as the joint venturer attempted to flee the scene of an armed robbery), and to dismiss so much of an indictment charging murder in the first degree (also allegedly committed by the joint venturer) as included any theory of murder other than felony-murder, where the defendant could be liable for the offenses committed by the joint venturer if the Commonwealth proves beyond a reasonable doubt that the defendant participated in, and intended, such crimes [307-310]; and where sufficient evidence was presented to the grand jury to support a finding that the defendant intentionally participated as a joint venturer in the assault and battery crimes on a person sixty years or older, the assault crimes by means of a dangerous weapon, and the discharge of a firearm within 500 feet of a building [310-313], as well as sufficient evidence of the defendant's participation and intent as a joint venturer to support the indictment charging murder on theories of deliberate premeditation and extreme atrocity or cruelty [313-314].
INDICTMENTS found and returned in the Superior Court Department on March 31, 2011.
A motion to dismiss was considered by Thomas P. Billings, J.
Casey E. Silvia, Assistant District Attorney (Marian T. Ryan, District Attorney, with her) for the Commonwealth.
John P. Osler, Committee for Public Counsel Services, for the defendant.
Commonwealth presented no evidence that the defendant either participated in or intended any of the events after Cinelli left the department store following the robbery. See Commonwealth v. McCarthy, supra. The Commonwealth appealed, and we transferred the case to this court on our own motion. We reverse the portion of the motion judge's decision that dismissed the challenged indictments and precluded the Commonwealth from proceeding at trial on all three theories of murder.
1. Facts. We recount the evidence presented to the grand jury in the light most favorable to the Commonwealth. See Commonwealth v. Walczak, 463 Mass. 808 , 812 (2012) (Lenk, J., concurring). The defendant lived with his grandmother and met Cinelli, whom the defendant knew to have been imprisoned for over three decades for robbing jewelry stores, when Cinelli became romantically involved with the defendant's grandmother. The defendant, aged nineteen at the time, did not own an automobile and did not drive, and Cinelli began driving the defendant to work. Approximately one month before the robbery, Cinelli mentioned the idea of robbing the jewelry counter while he and the defendant were out driving. Cinelli told the defendant that the plan was to go into the store with a gun and a mask, approach the jewelry counter, and demand money or jewelry. He also stated that he preferred to commit the robbery during a snow storm. The defendant knew that Cinelli had a gun because Cinelli had showed the defendant a gun when the two were in Cinelli's apartment. On several occasions following the initial conversation about robbing the jewelry counter, Cinelli and the defendant drove possible escape routes. A few days before the robbery, Cinelli told the defendant that he had gone to the store by himself with the intention of robbing it, but changed his mind because police officers were present.
the automobile, but that he "just knew" that Cinelli was armed and was afraid that Cinelli would shoot someone.
Cinelli drove to the store and parked the car on the intended escape route. He left the key in the ignition and told the defendant to leave his door unlocked. Cinelli then gave the defendant a ski mask (which the defendant later told the police he put on his head but did not pull down over his face) and told the defendant that he was to run back to the car after Cinelli completed the robbery. Both Cinelli and the defendant left their cellular telephones in the automobile. The two then walked to the department store, and the defendant waited outside while Cinelli went inside. The defendant later denied that he was asked to, or did, play an active role in the robbery, and specifically denied that he was to serve as a lookout. He claimed that he merely went along because he was afraid of Cinelli, and because he hoped to share in some of the proceeds from the robbery.
Inside the store, Cinelli demanded jewelry from several department store employees, and collected it in a duffle bag. Responding to a telephone call that a robbery was in progress, Officer Grammar arrived on the scene. He observed the defendant standing outside, but then focused his attention on Cinelli, who was coming out of the department store carrying the duffle bag. Cinelli pointed a gun in Grammar's direction, and a chase ensued. Matney, who was driving a snow plow, saw the chase and maneuvered the snow plow to block Cinelli's exit. Although Matney did not observe a gun at that time, Cinelli raised his arm toward Matney as if preparing to shoot, causing Matney to raise the bucket on the snow plow to protect himself. Officer Maguire then arrived on the scene and joined in the chase. Upon seeing Cinelli, Maguire got out of his police vehicle and a gunfight ensued. Both Cinelli and Maguire died from gunshot wounds.
While the police were pursuing Cinelli, the defendant threw his ski mask into the trash and walked away from the scene of crime. As he was walking, he saw an elderly woman sweeping her porch and asked if he could use her telephone. He telephoned his aunt and asked for her boy friend's telephone number, and then telephoned the boy friend and asked to be picked up in front of a nearby store. The defendant was arrested before the boy friend arrived.
2. Joint venture liability for escape-related crimes. The issue in this appeal is whether the defendant may be held liable on a theory of joint venture for the offenses Cinelli committed outside the store while attempting escape on the ground that such crimes were part of the over-all scheme of the underlying armed robbery. We conclude that the defendant may be liable for Cinelli's escape-related crimes, but only if the Commonwealth proves beyond a reasonable doubt that he participated in, and intended, such crimes.
The felony-murder rule "imposes criminal liability for homicide on all participants in a certain common criminal enterprise if a death occurred in the course of that enterprise." [Note 3] Commonwealth v. Matchett, 386 Mass. 492 , 502 (1982), quoting Commonwealth v. Watkins, 375 Mass. 472 , 486 (1978). To establish liability for felony-murder on a theory of joint venture the Commonwealth must prove "that a homicide occurred in the commission or attempted commission of that felony[.] [C]omplicity in the underlying felony is sufficient to establish guilt of murder in the first or second degree . . . if the homicide followed naturally and probably from the carrying out of the joint enterprise" (emphasis added). Commonwealth v. Ambers, 370 Mass. 835 , 839 (1976). "The effect of the felony-murder rule," both for principals and accomplices, "is to substitute the intent to commit the underlying felony for the malice aforethought required for murder" (emphasis added). Commonwealth v. Matchett, supra. See Commonwealth v. Housen, 458 Mass. 702 , 708 (2011); Commonwealth v. Ambers, supra. Consequently, a defendant may be liable for felony-murder on a theory of joint venture not because he or she shared with the principal the requisite mental state for murder, but because he or she shared with the principal the intent to commit the underlying felony, which satisfies the intent requirement for felony-murder. See Commonwealth v. Housen, supra; Commonwealth v. Ambers, supra.
we have held that joint venture liability should not extend to unintended crimes, even if such unintended crimes are the "natural and probable" consequences of a crime in which a defendant participated as a joint venturer. See Commonwealth v. Hogan, 379 Mass. 190 , 193 (1979), and cases cited; Commonwealth v. Richards, 363 Mass. 299 , 306-307 (1973). In Commonwealth v. Richards, supra at 305-308, we considered whether a joint venturer in an armed robbery may be liable for a coventurer's crime of assault with intent to murder a police officer who arrived on the scene where the assault was committed in the course of, as opposed to during escape from, the armed robbery. We "firmly rejected" the argument that a joint venturer should be liable for "any crime committed by any of his partners which follows naturally and probably from the carrying out of the enterprise." Id. at 306. We concluded that "guilt of the accessory is established when it is . . . shown that he intentionally assisted the principal in the commission of the crime and that he did this, sharing with the principal the mental state required for that crime." Id. at 307-308. See Commonwealth v. Fillippini, 1 Mass. App. Ct. 606 , 612-613 (1973), quoting Commonwealth v. Richards, supra at 307-308. See also Commonwealth v. Zanetti, 454 Mass. 449 , 467-468 (2009). "We have not extended the concept of general complicity [of an accomplice] applicable in the area of felony-murder to other crimes," and do not do so here. [Note 4] Commonwealth v. Hogan, supra.
rule; they need not find that the defendant specifically intended the harm to Maguire. [Note 5] See Commonwealth v. Housen, supra; Commonwealth v. Netto, 438 Mass. 686 , 702 (2003). Cinelli also committed multiple other offenses in the course of his escape that did not result in death, including several additional offenses against Maguire, as well as offenses against others who were involved in the chase and survived. The intent to commit armed robbery, although sufficient to support liability for felony-murder on a theory of joint venture, is insufficient to support liability for these additional offenses. See Commonwealth v. Richards, supra at 306-308. Admittedly, our rule of imputed intent depends on whether the victim dies from a crime perpetrated against him (or, more precisely, whether the Commonwealth pursues a murder conviction on a theory of felony-murder, see note 5, supra). To that end, we simply note that the felony-murder rule operates according to a unique set of principles. As we stated in Commonwealth v. Richards, supra at 307, "[a] broad conception of complicity is indeed at work in the special field of so called felony-murder, but there is no basis for importing it . . . where murder did not occur." See 2 W.R. LaFave, Substantive Criminal Law § 13.3(b), at 363 (2d ed. 2003) (LaFave).
"general application of the 'natural and probable consequence' rule of accomplice liability is unwarranted. A's guilt as an accomplice to one crime should not per se be a basis for holding A accountable for a related crime merely because the latter offense was carried out by A's principal, for this as well would result in A's guilt of a crime as to which he did not have the requisite mental state."
LaFave, supra at 362-363. Thus, we do not dispense with the intent requirement for joint venture liability for each of a coventurer's escape-related crimes. Joint venture liability for escape-related crimes is not coextensive with joint venture liability for escape-related felony-murder. [Note 7] See Commonwealth v. Richards, 363 Mass. 299 , 306-307 (1973); Commonwealth v. Fillippini, supra.
the crime with the intent that such crime occur. Commonwealth v. Zanetti, 454 Mass. 449 , 467-468 (2009). Commonwealth v. Richards, supra at 307-308. Thus, we turn to the issue whether the challenged indictments were supported by probable cause. See Commonwealth v. Moran, 453 Mass. 880 , 883-884 (2009); Commonwealth v. McCarthy, 385 Mass. 160 , 163 (1982). The motion judge granted the defendant's motion to dismiss the indictments for crimes Cinelli committed outside the store while attempting escape (assault and battery with a deadly weapon against a person sixty years or older; assault and battery on a public employee; two counts of assault by means of a dangerous weapon; and discharge of a firearm within 500 feet of a building), and so much of the indictment as alleges murder in the first degree on any theory other than felony-murder. He concluded that the evidence is insufficient as to both the defendant's participation in and intent to commit each offense to sustain the indictments. See Commonwealth v. Zanetti, supra; Commonwealth v. Richards, supra. We have reviewed the evidence presented to the grand jury and conclude, contrary to the motion judge, that there is sufficient evidence to support the challenged indictments. Therefore, we reverse the portion of the motion judge's order that grants the defendant's motion to dismiss the challenged indictments and precludes the Commonwealth from proceeding at trial on the theories of murder based on deliberate premeditation and extreme atrocity or cruelty (in addition to felony-murder). Whether the defendant knowingly participated in, and harbored the intent required for, the escape-related crimes is a question appropriately left for trial. [Note 8] Commonwealth v. Zanetti, supra. Commonwealth v. Richards, supra.
cause has been defined as "reasonably trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense." Commonwealth v. Stevens, 362 Mass. 24 , 26 (1972), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964). Of course, "[t]he grand jury must be presented with evidence on each of the . . . elements" of each offense charged in order for an indictment to stand. Commonwealth v. Moran, supra at 884. Where, as here, the liability of a joint venturer is at issue, the Commonwealth must present the grand jury with evidence that the defendant both participated in, and shared the requisite mental state for, each crime charged. Commonwealth v. Zanetti, supra. Commonwealth v. Richards, supra. A joint venturer may share with a principal a willingness to perpetrate other crimes, whether "in the actual commission [of the underlying joint venture] or getting away after the crime was committed." Commonwealth v. Richards, supra at 305. As concerns a joint venturer's requisite intent, "it would suffice if the purpose . . . in the mind of the accessory was a conditional or contingent one, a willingness to see [a crime] take place should it become necessary to effectuate the [underlying joint venture] or make good an escape" (emphases added). Id. at 308. See Commonwealth v. Scanlon, 373 Mass. 11 , 17 (1977) ("conditional or contingent intent"); Commonwealth v. Ferguson, 365 Mass. 1 , 8 (1974) (same). In Commonwealth v. Ferguson, supra, we stated that "if the defendant had knowledge of and thus acquiesced in the carrying of the [weapon], he could be found to have been willing to see the [weapon] used as a means to the desired end."
it, evidence suggests that the defendant was positioned as a lookout during the commission of the armed robbery. See Commonwealth v. DeJesus, 48 Mass. App. Ct. 911 , 911-912 (1999). As such, the grand jury could have inferred that there was probable cause to believe the defendant was "in a position to render aid," both in the armed robbery and in the subsequent escape. Commonwealth v. Casale, 381 Mass. 167 , 173 (1980). Compare Commonwealth v. Mangula, 2 Mass. App. Ct. 785 , 793 (1975) (position ready to aid), with Commonwealth v. Perry, 357 Mass. 149 , 150, 152 (1970) (defendant, who was one block away, was not "in any location or position where he could aid in any way in the commission of the crimes"). Perhaps of greatest significance, the defendant admitted that he knew Cinelli had a gun and that the plan was that Cinelli would use the gun to perpetrate the armed robbery. See Commonwealth v. Ferguson, supra; Commonwealth v. Padgett, 44 Mass. App. Ct. 359 , 363 (1998). In an interview with police following his arrest, the defendant also acknowledged his fear, notwithstanding Cinelli's alleged assurances to the contrary, that Cinelli might hurt someone. Moreover, there was evidence that the defendant knew that Cinelli recently had been paroled following more than three decades of imprisonment for robbing jewelry stores. Thus, the grand jury could infer that the defendant knew that Cinelli was prepared to shoot to effectuate his escape and avoid returning to jail, [Note 9] and that the defendant shared with Cinelli a willingness to see the assault and battery and firearm crimes occur were they to become necessary to effectuate the joint plan, including both the underlying robbery and the subsequent escape. See Commonwealth v. Ferguson, supra; Commonwealth v. Richards, 363 Mass. 299 , 305 (1973); Commonwealth v. Fillippini, 1 Mass. App. Ct. 606 , 612-613 (1973).
a murder indictment on a theory of joint venture (other than for joint venture felony-murder), the Commonwealth must present evidence to the grand jury that the defendant (1) aided, encouraged, planned, participated in, or stood ready to assist Cinelli in killing Maguire, and (2) intended Maguire's death, grievous bodily harm to him, or any act which a reasonable person would know created a plain and strong likelihood of death. [Note 10] See Commonwealth v. Earle, 458 Mass. 341 , 346 (2010); Commonwealth v. Zanetti, 454 Mass. 449 , 467-468 (2009). As stated previously, the Commonwealth presented evidence that the defendant was positioned such that he could render aid in the underlying armed robbery and subsequent escape, and that the defendant participated in the planning of the escape. Moreover, there was sufficient evidence to establish probable cause that the defendant shared the requisite intent, even if conditional or contingent, to see a person die if such were necessary to effectuate Cinelli's escape. The grand jury heard evidence that the defendant acquiesced in Cinelli's carrying of a gun and knew that the consequences of capture would be particularly severe for Cinelli, considering his criminal history. See Commonwealth v. Richards, supra; Commonwealth v. Padgett, supra (defendant knew coventurer "would use all force necessary to escape"). The subsequent question, whether the Commonwealth can sustain its burden of proof beyond a reasonable doubt as to joint venture liability for each of the challenged indictments and for murder on the theories of deliberate premeditation or extreme atrocity or cruelty, is one we leave for trial.
counts of assault by means of a dangerous weapon; and discharge of a firearm within 500 feet of a building), the trial judge should instruct the jury on each crime individually and on the defendant's liability for aiding or abetting with respect to each crime individually. Commonwealth v. Zanetti, supra; Commonwealth v. Richards, supra at 305-306. Similarly, as concerns the murder in the first degree of Maguire based on deliberate premeditation and extreme atrocity or cruelty, the trial judge should instruct the jury on the elements of murder and on the defendant's liability on a theory of aiding or abetting. See Commonwealth v. Zanetti, supra; Commonwealth v. Richards, supra. The trial judge may also instruct the jury on contingent or conditional intent, [Note 11] and should make clear that the intent to commit the underlying armed robbery is not sufficient to establish liability on any of the challenged indictments. See Commonwealth v. Hogan, 379 Mass. 190 (1979); Commonwealth v. Scanlon, 373 Mass. 11 , 17 (1977); Commonwealth v. Richards, supra. As to the charge of murder in the first degree of Maguire on the theory of felony-murder with armed robbery as the predicate felony, the trial judge should instruct the jury on felony-murder liability, including that a joint venturer's shared intent to commit the underlying armed robbery substitutes for the malice required for murder. See Model Jury Instructions on Homicide 13-17, 50 (2013).
4. Conclusion. We reverse the grant of the defendant's motion to dismiss the indictments that charge the defendant with the assault and battery and firearm crimes perpetrated by Cinelli during his flight following the armed robbery. We likewise reverse the grant of the defendant's motion to dismiss that prevents the Commonwealth from proceeding at trial on all three theories of murder.
[Note 1] The defendant also moved to dismiss the charge of murder in the first degree based on a theory of felony-murder on the ground that the felony-murder rule is unconstitutional. The motion judge denied that portion of the defendant's motion, and the defendant does not press his challenge to the constitutionality of the felony-murder rule on appeal. He also concedes that the evidence presented to the grand jury established probable cause to support the felony-murder charge and, therefore, does not challenge that theory of murder.
[Note 2] The defendant does not challenge the sufficiency of the evidence to prosecute him as a joint venturer to the underlying robbery offenses committed by Domenic Cinelli when Cinelli was inside the store.
[Note 3] We have recognized that escape efforts may be attributed to the underlying, predicate felony for the purposes of the application of the felony-murder doctrine. See Commonwealth v. Rogers, 459 Mass. 249 , 252-256, cert. denied, 132 S. Ct. 813 (2011); Commonwealth v. Dellelo, 349 Mass. 525 , 529-530 (1965).
[Note 4] In its brief, the Commonwealth argued that the defendant need not have shared with Cinelli the intent to commit the escape-related crimes to be held liable on a theory of joint venture. At oral argument, however, the Commonwealth appears to have conceded its burden to establish intent as to each of Cinelli's escape-related crimes.
[Note 5] The Commonwealth also wishes to proceed against the defendant for joint venture murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty. To succeed on either theory, unlike under a theory of joint venture felony-murder, the Commonwealth must prove that the defendant intended the harm to Maguire. See Commonwealth v. Earle, 458 Mass. 341 , 346 (2010); Commonwealth v. Richards, 363 Mass. 299 , 306-308 (1973).
[Note 6] For other jurisdictions that follow a similar approach to joint venture liability outside the limited context of felony-murder, see Gonzales v. Duenas-Alvarez, 549 U.S. 183, at 196 Appendix B (2007), and 2 W.R. LaFave, Substantive Criminal Law § 13.3(b), at 363 n.35 (2d ed. 2003) (LaFave), and sources cited.
[Note 7] Nor does the scope of joint venture liability extend, as the Commonwealth argues, to the unintended crimes of a coventurer committed "in furtherance of" a joint venture. We have used the phrase "in furtherance of" to delineate the scope of the joint venture exception to the rule against hearsay, and to determine whether an act of a defendant constitutes participation in a joint venture. See Commonwealth v. Bright, 463 Mass. 421 , 426 (2012); Commonwealth v. Borans, 379 Mass. 117 , 146 (1979); Commonwealth v. Blow, 370 Mass. 401 , 407-408 (1976). Such language is not used to define the scope of the criminal liability of an accomplice. Moreover, in the related conspiracy context, we have rejected the view of that members of a conspiracy are liable for the substance offenses of coconspirators committed "in furtherance of" the conspiracy. Commonwealth v. Richards, supra at 306. "Under the better view, one is not an accomplice to a crime merely because that crime was committed in furtherance of a conspiracy of which he is a member, or because that crime was a natural and probable consequence of another offense as to which he is an accomplice." LaFave, supra at § 13.3, at 356.
[Note 8] We offer no comment concerning whether the evidence is sufficient to defeat a motion for a required finding of not guilty.
[Note 9] After his arrest following the robbery, the defendant told police that he asked Cinelli if Cinelli was worried about violating his parole and going back to jail, and that Cinelli indicated that he knew he would spend the rest of his life in jail if he was caught.
[Note 10] Murder in the first degree (other than on a felony-murder theory) requires proof of these elements and also of deliberate premeditation and either extreme atrocity or cruelty. Commonwealth v. Earle, supra at 346 n.7.
[Note 11] In Commonwealth v. Scanlon, 373 Mass. 11 , 18-19 n.1 (1977), we determined that the following instruction on the requisite intent of an accomplice was proper: "[I]t is not enough if [the defendant] merely thought a crime might or may be committed, that the victim might get killed. Even if that happened . . . it is not enough. He has to know that there is more than a possibility or more than a 'maybe.' He has to know that there is a substantial chance that the victim will be killed."


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The Supreme Court will release orders from the April 12 conference on Monday at 9:30 a.m.; John Elwood’s Relist Watch compiles that petitions that were likely relisted for this conference.
On Monday, the justices hear oral argument in Iancu v. Brunetti and Emulex Corp. v. Varjabedian.
On Tuesday, the justices hear oral argument in Parker Drilling Management Services, Ltd. v. Newton and North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust.
On Wednesday, the justices hear oral argument in United States v. Davis and McDonough v. Smith.
On Thursday, the justices meet for their April 18 conference.

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