Adcox v. Clarkson Bros. Constr. Co.
Thomas F. ADCOX, Employee, Movant, v. CLARKSON BROTHERS CONSTRUCTION COMPANY, Employer, and Utica Mutual Insurance Company, Carrier, Defendants.
R. James Lore, Attorney at Law, Raleigh, by R. James Lore; and Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for plaintiff-appellant.Hedrick, Gardner, Kincheloe & Garofalo, LLP, Wilmington, by Kari L. Schultz and M. Duane Jones, for defendants-appellees.
Appeal by plaintiff from order entered 17 September 2013 by Judge Thomas H. Lock in Johnston County Superior Court. Heard in the Court of Appeals 28 August 2014. R. James Lore, Attorney at Law, Raleigh, by R. James Lore; and Nicholls & Crampton, PA, by Nicholas J. Dombalis, II, for plaintiff-appellant. Hedrick, Gardner, Kincheloe & Garofalo, LLP, Wilmington, by Kari L. Schultz and M. Duane Jones, for defendants-appellees.
In a 27 March 2008 opinion and award, the deputy commissioner approved an attorneys' fee of 25% of the attendant care compensation awarded to plaintiff Thomas F. Adcox for his wife's services. Although defendants Clarkson Brothers Construction Company and Utica Mutual Insurance Company asked the Full Commission to reverse this award, the Commission, in a 25 November 2008 opinion and award, affirmed the deputy commissioner's opinion and award with modifications only as to the amount and rate of pay for the attendant care—the Commission did not specifically address the 25% attorneys' fee award.
Subsequently, plaintiff filed a motion seeking an order requiring that the 25% be paid directly to plaintiff's counsel in order to alleviate the bookkeeping burden on plaintiff's wife. Defendants contended—and the Commission agreed in an order entered 10 December 2012—that the Commission's November 2008 opinion and award, by not specifically mentioning the attorneys' fees, necessarily denied plaintiff's attorneys' request for approval of a fee. Plaintiff appealed to the superior court, and the trial court dismissed his appeal on the grounds that the Commission had not, in its December 2012 order, denied a request for fees.
We cannot agree with the Commission's and defendants' position that the November 2008 opinion and award denied plaintiff's attorneys' request for fees. Defendants' contention that the Commission sub silentio reversed the deputy commissioner's award of fees is not tenable and is inconsistent with controlling authority. The Commission's silence in November 2008 on the issue of the deputy commissioner's award of attorneys' fee can be interpreted in only one of two ways: either the Commission affirmed the deputy commissioner or the Commission did not address the issue.
In either event, defendants bore the burden to appeal that opinion and award to this Court. When they failed to do so, the deputy commissioner's approval of an attorneys' fee became the law of the case, and the Commission had no authority to declare, in December 2012, that the original panel had reversed the deputy commissioner and denied plaintiff's request for approval of an attorneys' fee. Consequently, we reverse and remand to the trial court for further remand to the Commission for reconsideration of plaintiff's motion.
On 28 February 1983, while employed by defendant Clarkson, plaintiff suffered an admittedly compensable head injury that left him permanently and totally disabled. Defendant Clarkson and defendant Utica National Insurance Group agreed to compensate plaintiff for his disability at a weekly rate of $248.00.
In February 2003, the parties filed a settlement agreement pursuant to which defendants agreed to pay plaintiff a lump sum of $250,000.00 in reimbursement for attendant care services provided by plaintiff's family members, including his wife Joyce Adcox, from 28 February 1983 until 3 February 2003. The Commission approved a 25% attorneys' fee for plaintiff's counsel, which was deducted from the sum due plaintiff and paid directly to plaintiff's counsel. Thereafter, defendants authorized and began providing plaintiff with 60 hours of in-home professional attendant care services per week, provided by Kelly Home Health Services.
Both parties appealed to the Full Commission. On 25 November 2008, the Full Commission entered an opinion and award affirming the deputy commissioner's opinion and award “with modifications including the amount of attendant care and rate of pay for said care.” The Full Commission allowed Mrs. Adcox to assume attendant care responsibilities seven days per week for 16 hours per day at a rate of $10.00 per hour. The opinion and award did not mention the 25% attorneys' fee award to plaintiff's counsel. Plaintiff appealed to this Court for reasons unrelated to the 25% attorneys' fee award. Defendants chose not to appeal. On 8 December 2009, this Court affirmed the 25 November 2008 opinion and award. See Adcox v. Clarkson Bros. Constr. Co., 201 N.C.App. 446, ––– S.E.2d ––––, 2009 WL 4576065, 2009 N.C.App. LEXIS 2308 (2009) (unpublished).
A new panel of commissioners heard plaintiff's 2012 motion. Commissioners Linda Cheatham and Tammy R. Nance replaced Commissioners Dianne C. Sellers and Laura Kranifeld Mavretic from the original 2008 panel. Commissioner Danny Lee McDonald served on both panels. On 10 December 2012, the Full Commission entered an order denying plaintiff's motion.
The Full Commission's Opinion and Award filed on November 25, 2008 directs Defendants to pay Mrs. Adcox for attendant care services from the date of the filing of the Opinion and Award at a rate of $10.00 per hour, 7 days per week, 16 hours per day. The Opinion and Award does not include an award of attorneys' fees for Plaintiff's counsel.
Plaintiff appealed the Full Commission's decision to the North Carolina Court of Appeals. Based upon a review of the Court's Opinion, it does not appear that Plaintiff assigned error to the Full Commission's decision in its Opinion and Award not to award an attorneys' fee to Plaintiff's counsel.
As Plaintiff seeks to have the Full Commission direct Defendants to deduct and pay directly to counsel for Plaintiff attorneys' fees which have not been awarded by the Full Commission, Plaintiff's Motion to Direct Payment of Attorneys' Fees to Plaintiff's Counsel is hereby DENIED.
Commissioner McDonald—the one commissioner who had served on the 25 November 2008 panel—dissented without opinion.
On 12 December 2012, plaintiff appealed the order to superior court pursuant to N.C. Gen.Stat. § 97–90. On 19 June 2013, defendants moved to dismiss plaintiff's appeal pursuant to Rules 12(b)(1), (2), and (6) of the Rules of Civil Procedure. On 25 June 2013, plaintiff moved to strike defendants' motion to dismiss for lack of standing.
The trial court, therefore, dismissed plaintiff's appeal with prejudice. Plaintiff timely appealed to this Court.
The Workers' Compensation Act provides that an appeal from an opinion and award of the Industrial Commission is subject to the same terms and conditions as govern appeals from the superior court to the Court of Appeals in ordinary civil actions. Under N.C. Gen.Stat. § 1–271 (2009), “[a]ny party aggrieved” is entitled to appeal in a civil action. A party aggrieved is one whose legal rights have been denied or directly and injuriously affected by the action of the trial tribunal. If the party seeking appeal is not an aggrieved party, the party lacks standing to challenge the lower tribunal's action and any attempted appeal must be dismissed.
Because of our resolution of this appeal, we need not decide whether defendants have standing in this case to challenge an award of attorneys' fees to plaintiff's attorney that does not affect the total amount payable by defendants. We express no opinion whether defendants' contentions are sufficient to make them aggrieved parties for purposes of an appeal.
Plaintiff's primary argument on appeal is that the trial court erred in finding that the Full Commission denied his request for attorneys' fees in its 25 November 2008 opinion and award and, as a result, erred in dismissing his appeal on the grounds of res judicata. Plaintiff argues that the deputy commissioner's award of attorneys' fees became final when defendants did not specifically assign as error the award of attorneys' fees in their Form 44 as required by Rule 701 of the Workers' Compensation Rules of the North Carolina Industrial Commission. Alternatively, plaintiff argues that the Commission affirmed the award of attorneys' fees. We review these questions of law de novo. McAllister v. Wellman, Inc., 162 N.C.App. 146, 148, 590 S.E.2d 311, 312 (2004).
(3) Particular grounds for appeal not set forth in the application for review shall be deemed abandoned, and argument thereon shall not be heard before the Full Commission.
Court has emphasized that “the portion of Rule 701 appellant to state with particularity the grounds for appeal may not be waived by the Full Commission. Without notice of the grounds for appeal, an appellee has no notice of what will be addressed by the Full Commission.” Roberts v. Wal–Mart Stores, Inc., 173 N.C.App. 740, 744, 619 S.E.2d 907, 910 (2005). “Such notice is required for the appellee to prepare a response to an appeal to the Full Commission.” Wade v. Carolina Brush Mfg. Co., 187 N.C.App. 245, 252, 652 S.E.2d 713, 717 (2007). Thus, “the penalty for non-compliance with the particularity requirement is waiver of the grounds, and, where no grounds are stated, the appeal is abandoned.” Id. at 249, 652 S.E.2d at 715.
Deputy Commissioner John B. DeLuca's Award, dated March 27, 2008, on the grounds that it is based upon Findings of Fact and Conclusions of Law which are erroneous, not supported by competent evidence or evidence of record, and are contrary to the competent evidence of record, and are contrary to law: Award Nos. 1–3.
This assignment of error is similar to the appellant's assignment of error in Walker v. Walker, 174 N.C.App. 778, 782, 624 S.E.2d 639, 642 (2005), which asserted generally that several rulings of the trial court were “ ‘erroneous as a matter of law.’ ” In concluding that this assignment of error was insufficient under the 2005 version of Rule 10 of the Rules of Appellate Procedure, this Court held that the “assertion that a given finding, conclusion, or ruling was ‘erroneous as a matter of law’ ” violated Rule 10 because it “completely fail[ed] to identify the issues actually briefed on appeal.” Walker, 174 N.C.App. at 782, 624 S.E.2d at 642. Instead, “ ‘[s]uch an assignment of error is designed to allow counsel to argue anything and everything they desire in their brief on appeal. This assignment—like a hoopskirt—covers everything and touches nothing.’ ” Id. at 783, 624 S.E.2d at 642 (quoting Wetchin v. Ocean Side Corp., 167 N.C.App. 756, 759, 606 S.E.2d 407, 409 (2005)).
Similarly, here, defendant's assignment of error “ ‘covers everything and touches nothing.’ ” Id. (quoting Wetchin, 167 N.C.App. at 759, 606 S.E.2d at 409). Although it states a general objection to each paragraph of the award (without specifically mentioning the attorneys' fee award), it does not state the basis of any objection to the attorneys' fee award with sufficient particularity to give plaintiff notice of the legal issues that would be addressed by the Full Commission such that he could adequately prepare a response. See Roberts, 173 N.C.App. at 744, 619 S.E.2d at 910.
Defendants' third assignment of error also is in stark contrast to defendants' fourth assignment of error: “Deputy Commissioner John B. DeLuca's Award dated March 27, 2008, in that it failed to award attorney fees as requested by Defendants pursuant to § 97–88.1.” In this assignment of error, defendants indicated specifically which particular aspect of the award they challenged. Significantly, defendants did not include a similar assignment of error for the award of attorneys' fees challenged here.
unlike the appealing plaintiff in Roberts, defendants in the present case complied with Rule 701(2)'s requirement to state the grounds for appeal with particularity by timely filing their brief after giving notice of their appeal to the Full Commission. Additionally, plaintiff does not argue that she did not have adequate notice of defendants' grounds for appeal. Plaintiff asserts only that defendants' failure to file a Form 44 should have been deemed an abandonment of defendants' appeal. Since both this Court and the plain language of the Industrial Commission's rules have recognized the Commission's discretion to waive the filing requirement of an appellant's Form 44 where the appealing party has stated its grounds for appeal with particularity in a brief or other document filed with the Full Commission, we overrule these assignments of error.
Id. at 368–69, 672 S.E.2d at 753–54.
In other words, failure to file a Form 44 does not automatically result in a mandatory dismissal of the appeal by the Industrial Commission—it is within the discretion of the Commission whether to deem the grounds for appeal waived. In determining whether the Commission abused its discretion in deciding not to deem an issue on appeal waived, this Court in Cooper considered whether the appellant provided the appellee with adequate notice of the grounds for appeal through other means such as addressing the issue in its brief to the Full Commission.
Here, unlike in Cooper, the Commission did not explicitly address the issue purportedly raised by defendants on appeal in its opinion and award. Under Cooper, it would not have been an abuse of discretion for the Commission to address the attorneys' fee issue, but it is unclear whether the Commission considered the issue or not. Although defendants contend that the “Full Commission Award removed the appealed prior award of attendant care attorney fees and awarded attendant care compensation to be paid directly to Mrs. Adcox[,]” nothing in the Commission's Opinion and Award indicates that it was “remov[ing]” the attorneys' fee award. Defendants have cited no authority—and we have found none—supporting their position that silence by the Commission regarding a determination by the deputy commissioner can amount to reversal.
[I]n this case, the Full Commission's opinion states outright that it “affirms the Opinion and Award of Deputy Commissioner Deluca with modifications.” ... That is, the Full Commission's opinion is not an order meant to stand on its own, but rather a modification of the deputy commissioner's order. As plaintiff herself states, the facts at issue were included in the deputy commissioner's order. We see no reason to require that such an order restate all the findings of fact and conclusions of law from the original order that need no modification. Considering that defendants filed an appeal containing thirty-two alleged errors, it is not surprising that the Full Commission did not address each individually.
Id. This Court assumed with regard to the omitted findings that the Commission wished to affirm the deputy commissioner's opinion and award, nothing else appearing in the opinion and award to the contrary. Id. at 218–19, 664 S.E.2d at 624.
Similarly, here, the Full Commission's opinion and award states that it “affirms the Opinion and Award of Deputy Commissioner DeLuca with modifications including the amount of attendant care and rate of pay for said care.” As such, the Full Commission's opinion “is not an order meant to stand on its own.” Id. at 218, 664 S.E.2d at 624. It is undisputed that the deputy commissioner awarded attorneys' fees to plaintiff's counsel, and there is no indication that the Commission intended to modify that award.
If an attorney has an agreement for fee or compensation under this Article, he shall file a copy or memorandum thereof with the hearing officer or Commission prior to the conclusion of the hearing. If the agreement is not considered unreasonable, the hearing officer or Commission shall approve it at the time of rendering decision. If the agreement is found to be unreasonable by the hearing officer or Commission, the reasons therefor shall be given and what is considered to be reasonable fee allowed.
The lack of findings in the November 2008 opinion and award to justify a denial of attorneys' fees is contrary to defendants' contention and the Commission's assumption that the Commission in 2008 intended to deny the fee request.
In short, based on a review of the November 2008 opinion and award, either the Commission intended to affirm the deputy commissioner's award, or, alternatively, the Full Commission did not consider the issue—whether through inadvertence or because it deemed the matter waived. Nothing in the opinion and award suggests and no authority exists that we can find, which would permit us to conclude that the Commission reversed the deputy commissioner's award and silently denied plaintiff's counsel the 25% attorneys' fee.
Assuming, without deciding, that defendants had standing to challenge the deputy commissioner's award of attorneys' fees, the burden was on defendants to obtain a ruling from the Full Commission. When the Full Commission failed to explicitly reverse the deputy commissioner's award, defendants could have requested reconsideration and, if the Commission did not rule in their favor, appealed to this Court. See Hurley v. Wal–Mart Stores, Inc., –––N.C.App. ––––, ––––, 723 S.E.2d 794, 798 (2012) (holding where Commission failed to address defendants' appeal of deputy commissioner's award of attorneys' fees to plaintiff's counsel in its opinion and award, defendants properly appealed to this Court after Commission denied their motion to reconsider).
This Court has held that “when a party fails to appeal from a tribunal's decision that is not interlocutory, the decision below becomes ‘the law of the case’ and cannot be challenged in subsequent proceedings in the same case.” Boje v. D.W.I.T., L.L.C., 195 N.C.App. 118, 122, 670 S.E.2d 910, 912 (2009). Here, when defendants failed to appeal the Full Commission's 25 November 2008 opinion and award, defendants abandoned any contention that the ruling was erroneous, and the deputy commissioner's award of attorneys' fees became the law of the case.
Under the law of the case doctrine, defendants could not attack and the Commission could not reverse the award of attorneys' fees. See id. (holding that “since [defendant] did not appeal Deputy Commissioner Berger's 2003 opinion and award finding that it did not have workers' compensation insurance coverage on the date of plaintiff's accident,” this finding was the law of the case, and defendant “was barred from relitigating that issue in subsequent proceedings”).
Because the November 2008 opinion and award left the deputy commissioner's award standing, plaintiff's 12 July 2012 motion to direct payment of attorneys' fees to plaintiff's counsel was not, as defendants contend, a motion to re-litigate the substantive issue whether attorneys' fees had been awarded by the Full Commission. Rather, it was simply a procedural motion regarding the way in which the awarded fees would be paid. The Commission's December 2012 order, as a result, had the effect of improperly denying plaintiff's attorneys' fees. Consequently, plaintiff was entitled to appeal the December 2012 order to superior court pursuant to N.C. Gen.Stat. § 97–90, and the superior court erred in dismissing plaintiff's appeal.
Defendants, nevertheless, contend that the Commission and the superior court did not have authority to award plaintiff's counsel fees under the rule set forth in Palmer v. Jackson, 157 N.C.App. 625, 579 S.E.2d 901 (2003). This argument—addressing the merits of plaintiff's request for attorneys' fees—is not properly before this Court because the award of attorneys' fees is the law of the case. See Barrington v. Emp't Sec. Comm'n, 65 N.C.App. 602, 605, 309 S.E.2d 539, 541 (1983) (declining to consider appellant's legal arguments when bound by law of the case). Defendants' arguments should have been raised in the first appeal to this Court. Nothing in this opinion expresses any view regarding defendants' arguments under Palmer.
We, therefore, reverse and remand to the superior court for remand to the Commission. On remand, since the Commission denied plaintiff's motion under a misapprehension of law regarding the effect of its 2008 opinion and award, the Commission must reconsider its ruling on that motion.
Reversed and remanded. Judge STEELMAN concurs.
Judge ROBERT N. HUNTER, JR. concurred in this opinion prior to 6 September 2014.


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Lang, Cross, Ladon, Boldrick & Green, Mark J. Cannan, San Antonio, Tex., for petitioners.
Sidney Powell, Asst. U.S. Atty., San Antonio, Tex., for appellee.
On Petition for Writ of Mandamus to the United States District Court for the Western District of Texas.
Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.
A reporter and the newspaper for which he works, denied leave to interview jurors discharged after serving in a criminal trial, challenge the constitutionality of a district court rule that forbids any person to interview any juror concerning the deliberations or the verdict of the jury, except by leave of court. We hold that the rule and the denial of leave to the petitioners are unconstitutional as applied to the interviews sought to be conducted.
Two defendants, Ruben Medrano-Hiracheta and David Suniga-Salinas, were charged in the Western District of Texas with transporting and conspiracy to transport illegal aliens. A jury found both guilty and was discharged. Local Rule 500-2 of the Western District provides that no person shall "interview ... any juror, relative, friend or associate thereof ... with respect to the deliberations or verdict of the jury in any action, except on leave of court granted upon good cause shown." Two weeks after the verdict, the Express News Corporation, publisher of the San Antonio Express, and Cecil Clift, a reporter for The Express, filed a motion to vacate the restrictions on the press and asked for leave to interview the jurors in connection with the preparation of a news-story. The court denied the motion.
The first amendment's broad shield for freedom of speech and of the press is not limited to the right to talk and to print. The value of these rights would be circumscribed were those who wish to disseminate information denied access to it, for freedom to speak is of little value if there is nothing to say. Therefore, the Supreme Court recognized in Branzburg v. Hayes, 408 U.S. 665, 681, 92 S. Ct. 2646, 2656, 33 L. Ed. 2d 626, 639 (1972), that news-gathering is entitled to first amendment protection, for "without some protection for seeking out the news, freedom of the press could be eviscerated."
"The operation of the ... judicial system itself ... is a matter of public interest, necessarily engaging the attention of the news media," the Supreme Court said, overturning the criminal conviction of a newspaper for publishing information about a confidential judicial misconduct investigation. Landmark Communications v. Virginia, 435 U.S. 829, 839, 98 S. Ct. 1535, 1542, 56 L. Ed. 2d 1, 10 (1978). The publication of such information "clearly served those interests in public scrutiny and discussion of governmental affairs which the First Amendment was adopted to protect." Id. A year later, the Court held that a newspaper could not be punished for publishing lawfully obtained information identifying a juvenile defendant. Smith v. Daily Mail Publishing Co., 443 U.S. 97, 99 S. Ct. 2667, 61 L. Ed. 2d 399 (1979). In Globe Newspaper v. Superior Court, --- U.S. ----, ----, 102 S. Ct. 2613, 2624, 73 L. Ed. 2d 248, 262 (1982), the Court noted that an inhibition of press news-gathering rights must be necessitated "by a compelling governmental interest, and ... narrowly tailored to serve that interest."
The judiciary, like the legislative and judicial branches, is an agency of democratic government. The public has no less a right under the first amendment to receive information about the operation of the nation's courts than it has to know how other governmental agencies work and to receive other ideas and information. Extending these principles to juror interviews, the Ninth Circuit Court of Appeals has held unconstitutional a district court order forbidding any person, including members of the news media, from contacting jurors after the return of their verdict. United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978).
Like other first amendment rights, the right to gather news is not, of course, absolute. Zemel v. Rusk, 381 U.S. 1, 17, 85 S. Ct. 1271, 1281, 14 L. Ed. 2d 179 (1965). Nor does it guarantee journalists access to sources of information not available to the public generally. Branzburg, 408 U.S. at 684, 92 S. Ct. at 2658, 33 L. Ed. 2d at 641; Belo Broadcasting Corp. v. Clark, 654 F.2d 423, 427 (5th Cir. 1981) (press had no constitutional right to access to trial exhibits beyond that enjoyed by public); Garrett v. Estelle, 556 F.2d 1274, 1277 (5th Cir. 1977), cert. denied, 438 U.S. 914, 98 S. Ct. 3142, 57 L. Ed. 2d 1159 (1978) (sustaining state denial of the televising of an execution). As petitioners expressly recognize, there are countervailing considerations that, under the proper circumstances, outweigh their first amendment rights. Thus, the accused's sixth amendment right to a fair trial must be safeguarded. United States v. Gurney, 558 F.2d 1202, 1210 (5th Cir. 1977), cert. denied, Miami Herald Pub. Co. v. Krentzman, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978). To ensure the fairness of a pending trial, the court may restrict the extrajudicial statements and actions of the trial's participants. Gurney, 558 F.2d at 1210; United States v. CBS, Inc., 497 F.2d 102, 106-07 (5th Cir. 1974). The media must respect the decorum of the courtroom. See Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S. Ct. 1507, 1515-16, 16 L. Ed. 2d 600, 613 (1966). And jurors, even after completing their duty, are entitled to privacy and to protection against harassment. See Gurney, 558 F.2d at 1210 & n. 12.
A court rule cannot, however, restrict the journalistic right to gather news unless it is narrowly tailored to prevent a substantial threat to the administration of justice. See United States v. CBS, Inc., 497 F.2d at 104. Neither the district court's rule nor its order applying the rule have been so fashioned. The rule is unlimited in time and in scope, applying equally to jurors willing and anxious to speak and to jurors desiring privacy, forbidding both courteous as well as uncivil communications, and foreclosing questions about a juror's general reactions as well as specific questions about other jurors' votes that might, under at least some circumstances, be inappropriate.
A court may not impose a restraint that sweeps so broadly and then require those who would speak freely to justify special treatment by carrying the burden of showing good cause. The first amendment right to gather news is "good cause" enough. If that right is to be restricted, the government must carry the burden of demonstrating the need for curtailment. See United States v. Sherman, 581 F.2d at 1361. No such demonstration has been made in this case.
Absent good cause for restraint, petit jurors are free to discuss their service if they choose to do so, and the rule indeed implicitly sanctions juror's conversations with their relatives, friends, and associates. While a statute makes it unlawful to record or listen to the proceedings of a grand or petit jury, 18 U.S.C. § 1508 (1976), the statute does not forbid jurors to speak after their deliberations are completed. The Federal Rules of Criminal Procedure forbid grand jurors to "disclose matters occurring before the grand jury," but also provide, "No obligation of secrecy may be imposed on any person except in accordance with this rule." Fed. R. Crim. P. Rule 6(e) (1).
The rule cannot be justified on the thesis that Rule 606(b) of the Federal Rules of Evidence prevents the use of juror testimony to impeach the jury's verdict. Petitioners do not intend to impeach the verdict. In United States v. Riley, 544 F.2d 237, 242 (5th Cir. 1976), cert. denied, 430 U.S. 932, 97 S. Ct. 1554, 51 L. Ed. 2d 777 (1977) and O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1309-1310 (5th Cir. 1977), we affirmed denials of requests for post-verdict juror interviews designed to obtain evidence of improprieties in the deliberations.3 Such interviews would "denigrate jury trials by afterwards ransacking the jurors in search of some ground ... for a new trial." 554 F.2d at 1310. But the interviews in this case are sought for a different purpose.
We invited the United States Attorney for the Western District of Texas, as amicus curiae, to express his views. The brief filed in response to that request supports the validity of the rule and argues that freedom of debate and independence of thought would be stifled if jurors were made to feel "that their arguments and ballots were to be freely published to the world." Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1932). We express no view concerning the validity of a rule narrowly tailored to prevent the disclosure of the ballots of individual jurors or some other paramount value. That unrestrained post-verdict inquiry into every juror's vote and every jury's deliberations in every trial might be harmful cannot validate a categorical denial of all access.
We do not intimate that jurors have any obligation whatever to talk to the news media or to anyone else about their service. The jurors' freedom of speech is also freedom not to speak, and the district court may so instruct the jurors in order to avoid the possible misunderstanding that jury service places them under some obligation to subject themselves to scrutiny or to submit to interview.
Petitioner's right to gather news was restricted in this case without any showing that the restriction was necessary. For this reason Local Rule 500-2 of the United States District Court for the Western District of Texas is declared unconstitutional as applied to the interviews proposed by Express News Corporation and Cecil Clift. The Court having confidence that the district court will vacate the order as applied to them, the writ need not issue.


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701 F.2d 777 (9th Cir. 1983), 81-5116, Le Vick v. Skaggs Companies, Inc.
Party Name: James E. LE VICK, Plaintiff-Appellee, v. SKAGGS COMPANIES, INC., Defendant-Appellant.
Argued and Submitted May 7, 1982.
Michael R. Murphy, Jones, Waldo, Holbrook & McDonough, Salt Lake City, Utah, for defendant-appellant.
William C. Wulfers, Jr., Scottsdale, Ariz., for plaintiff-appellee.
Before ELY and NORRIS, Circuit Judges, and GILLIAM, [*] District Judge.
James E. LeVick (LeVick) brought this action against his former employer, Skaggs Companies, Inc. (Skaggs), alleging that he had been discharged by Skaggs in violation of 15 U.S.C. Sec. 1674(a), which prohibits an employer from discharging an employee because the employee's earnings have been subjected to garnishment. LeVick asked for damages and attorney's fees.
Skaggs moved for judgment on the pleadings, claiming that LeVick's complaint failed to state a claim upon which relief could be granted because there was no express or implied civil remedy for a private litigant under 15 U.S.C. Sec. 1674(a). The district court denied Skaggs' motion, but certified the issue for interlocutory appeal under 28 U.S.C. Sec. 1292(b). 1 This court entered the required order permitting the Sec. 1292(b) appeal to be taken.
In Stewart v. Travelers Corp., 503 F.2d 108 (9th Cir.1974), our court held that an implied private right of action exists under 15 U.S.C. Sec. 1674(a). Skaggs argues that we should reconsider our holding in Stewart in light of subsequent Supreme Court decisions which have significantly changed the standards for determining whether a federal statute gives rise to a private cause of action, citing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979).

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MERCHANTS INSURANCE GROUP vs. KEVIN SPICER & others.
Suffolk. March 4, 2015. – September 9, 2015.
Present: Cohen, Hanlon, & Sullivan, JJ.
Insurance, Workers’ compensation insurance. Workers’ Compensation Act, Coverage, Jurisdiction of court, Jurisdiction of Industrial Accident Board. Jurisdiction, Superior Court, Administrative matter. Administrative Law, Exhaustion of remedies. Practice, Civil, Declaratory proceeding.
Civil action commenced in the Superior Court Department on June 19, 2012.
The case was heard by Elizabeth M. Fahey, J., on a motion for relief from judgment.
Darrel Mook (Patricia B. Gary with him) for the plaintiff.
Douglas S. Martland for the intervener.
COHEN, J. The central question presented in this appeal is whether an insurer may bring an action in Superior Court to retroactively void a workers’ compensation policy while an injured employee’s claim under that policy is pending in the Department of Industrial Accidents (DIA). The plaintiff, Merchants Insurance Group (Merchants), claiming fraud in the inducement, initiated such an action, and, there being no opposition from the insured employer or the injured employee, secured a declaratory judgment in its favor. Subsequently, however, a judge of the Superior Court reopened the case at the request of the employee and the Workers’ Compensation Trust Fund (Fund) and dismissed Merchants’ complaint, without prejudice, for lack of subject matter jurisdiction. Upon review of Merchants’ appeal from the judgment of dismissal, we conclude that the judge correctly ruled that its claim for rescission of the workers’ compensation policy was subject to the doctrine of exhaustion of administrative remedies, and could not be pursued in the Superior Court. For this and other reasons explained below, we affirm the judgment of dismissal.
Background. On December 30, 2011, Joel Estaban Perez was seriously injured while working for Kevin Spicer, doing business as Uptown Landscaping (Spicer). Perez sought workers’ compensation benefits under a policy issued by Merchants to Spicer, and Merchants contested the claim. After an informal conference, a DIA administrative judge ordered Merchants to pay Perez weekly temporary total incapacity benefits, pursuant to G. L. c. 152, § 34, and medical benefits, pursuant to G. L. c. 152, §§ 13, 30, pending an evidentiary hearing on the merits. Both parties appealed the interim conference order and requested a formal hearing pursuant to G. L. c. 152, § 11.
In June, 2012, while Perez’s DIA case was awaiting the formal hearing, Merchants successfully moved to join the Fund as a party to the DIA case. At about the same time, Merchants also filed a complaint in Superior Court naming Spicer and Perez as defendants. In that complaint, Merchants sought rescission of two insurance policies (a workers’ compensation policy and a general liability policy) that it had issued to Spicer, on the ground that Spicer had made material misrepresentations in applying for the policies. Merchants also sought a judgment declaring that the policies were void ab initio and that it had no duty to defend or indemnify Spicer in connection with Perez’s pending claim for workers’ compensation benefits. As against Spicer, Merchants also sought damages in the amount of any payments it had been required to make to Perez under the workers’ compensation policy thus far.
Neither Spicer nor Perez put up any resistance. Spicer never appeared in the action, and on June 28, 2013, a default judgment entered against him along the lines requested by Merchants. Perez answered Merchants’ complaint but did not oppose its motion for summary judgment. On August 23, 2013, a judgment entered against Perez, declaring that both of the policies issued by Merchants to Spicer were void ab initio and rescinded, and that Merchants had no obligation to defend, indemnify, or pay any sums on account of any claims or actions arising out of Perez’s injuries, including the pending DIA case. Because the Superior Court case was never actively litigated, at no time was there any determination that Spicer, in fact, had made misrepresentations to Merchants, or that any such misrepresentations met the criteria necessary to defeat or avoid Merchants’ obligations under the policies. See G. L. c. 175, § 186(a).
With the declaratory judgment in hand, Merchants went before the administrative judge assigned to the Perez matter and moved that it be dismissed from the DIA case. The administrative judge denied the motion and scheduled a G. L. c. 152, § 11, formal hearing for November 4, 2013. Merchants then filed a second Superior Court action, requesting that the DIA and the administrative judge be enjoined from going forward with “any proceedings” against Merchants in Perez’s workers’ compensation case. In response, Perez filed a motion in the first Superior Court action, seeking relief from the declaratory judgment in favor of Merchants, on the ground that the court had been without jurisdiction to entertain Merchants’ complaint. See Mass.R.Civ.P. 60(b)(4), 365 Mass. 827 (1974).
Informed of this development, the judge in the second Superior Court action granted a temporary restraining order halting the DIA proceedings until such time as Perez’s motion for relief from judgment in the first action was determined. Meanwhile, in the first action, the Fund sought and was granted leave to intervene pursuant to Mass.R.Civ.P. 24, 365 Mass. 769 (1974), and proceeded to submit filings in support of Perez’s motion for relief from judgment. Merchants responded with an opposition, essentially arguing that the Superior Court did have jurisdiction and that relief under rule 60(b) would be inappropriate.
At the hearing on the motion for relief from judgment, Perez and the Fund requested that the case be dismissed because Merchants had failed to exhaust its administrative remedies, and, hence, the court lacked subject matter jurisdiction to adjudicate its claims. The motion judge agreed; she vacated prior orders and judgments in the case and ordered the entry of a new, final judgment dismissing Merchants’ complaint without prejudice.
Discussion. We review the question of jurisdiction de novo. See Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of Lenox, 83 Mass. App. Ct. 40, 41 (2012). In the present circumstances, the question can be further narrowed to whether Merchants was required to exhaust its administrative remedies at the DIA.
The exhaustion rule (or doctrine) has long been a part of our system of jurisprudence. See Saint Luke’s Hosp. v. Labor Relations Commn., 320 Mass. 467, 469 (1946); East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 448-452 (1973). Like its closely-related counterpart, the primary jurisdiction doctrine, the exhaustion rule promotes “proper relationships and sensible coordination of work between courts and administrative agencies that are charged with regulatory responsibilities.” Massachusetts Correction Officers Federated Union v. County of Bristol, 64 Mass. App. Ct. 461, 467 n.9 (2005). See Lumbermans Mut. Cas. Co. v. Workers’ Compensation Trust Fund, 88 Mass. App. Ct. ____, ____ (2015); Stavely v. Lowell, 71 Mass. App. Ct. 400, 403 n.7 (2008).
Application of the exhaustion rule to any particular case requires not only an understanding of its purposes, but also “of the particular administrative scheme involved.” McKart v. United States, 395 U.S. 185, 193 (1969). We must therefore take into consideration the objectives of G. L. c. 152, the workers’ compensation act (act), and the manner in which it is administered.
1. General Laws c. 152. The act was passed into law in 1911, as a humanitarian measure designed to provide prompt and adequate compensation and medical benefits to an employee (and the employee’s dependents) in the event of injury or death occasioned by a work-related accident. See Young v. Duncan, 218 Mass. 346, 349 (1914); Neff v. Commissioner of the Dept. of Indus. Accs., 421 Mass. 70, 73 (1995); Spaniol’s Case, 466 Mass. 102, 106-107 (2013). Motivated by public dissatisfaction with “inadequate” common-law remedies, the Legislature attached “new incidents” to the relationship of employer and employee, enforced by a sui generis process analogous to that of equity procedure, to promote the goal of assuring prompt and adequate assistance to injured workers (and their dependents). Opinion of the Justices, 309 Mass. 562, 568 (1941). It also established a scheme of interlinked rights, obligations, and remedies “all its own, not previously known to the common or statutory law.” Ahmed’s Case, 278 Mass. 180, 184 (1932). As a remedial statute, the act is to be afforded a broad interpretation, viewed in light of its purposes and in aid of its “beneficent design.” Neff v. Commissioner of the Dept. of Indus. Accs., supra (quotation omitted).
a. Adjudicatory process. There are four procedural steps in the adjudicatory process of a contested workers’ compensation claim. The first step is an informal conciliation proceeding, see G. L. c. 152, § 10; if the parties cannot reach a voluntary accord, the second step is an informal conference before an administrative judge, id. at §§ 10, 10A. The third step is a formal hearing before an administrative judge, see id. at § 11; and the fourth is an appeal to the reviewing board, see id. at § 11C. See generally Murphy v. Commissioner of the Dept. of Indus. Accs., 415 Mass. 218, 223-225 (1993); Neff v. Commissioner of the Dept. of Indus. Accs., supra at 74; Murphy’s Case, 53 Mass. App. Ct. 708, 712 (2002).
Judicial review of a final decision of the reviewing board is had in this court, not the Superior Court. G. L. c. 152, § 12. The Superior Court is a proper forum only if a party seeks to enforce an order of the reviewing board — a situation not presented here. Ibid. In this case, Perez and Merchants reached only the conference stage at the DIA, which resulted in an order for temporary benefits. Thus, the administrative proceedings were far from exhausted when Merchants elected to file its complaint in court.
b. DIA’s jurisdiction over coverage disputes. If a dispute over a claim is based on issues of insurance coverage, “the DIA has full power to decide such questions of coverage” and the “‘parties have no right to try out the issue in a separate proceeding in court.’” Lee v. International Data Group, 55 Mass. App. Ct. 110, 115-116 (2002), quoting from Locke, Workmen’s Compensation § 131, at 136 (2d ed. 1981). See Nason, Koziol, & Wall, Workers’ Compensation § 7:13, at 154 (3d ed. 2003). Among the coverage issues commonly addressed in the DIA are those relating to the requirements of G. L. c. 152, § 63 (for voluntarily issued policies), and G. L. c. 152, § 65B (for assigned risk policies), which regulate how an insurer may “cancel or otherwise terminate” its policy. See Frost v. David C. Wells Ins. Agency, Inc., 14 Mass. App. Ct. 305, 306-309 (1982); Armstrong’s Case, 47 Mass. App. Ct. 693, 696 (1999); Cummings’s Case, 52 Mass. App. Ct. 444, 447-450 (2001); Pillman’s Case, 69 Mass. App. Ct. 178, 181-185 (2007). As implicitly recognized by this court in Cummings’s Case, supra at 448-450, and explicitly recognized by the reviewing board in Sullivan’s Case, 20 Mass. Workers’ Comp. Rep. 207, 211 (2006), rescission is embraced by the phrase “otherwise terminate,” and, therefore, the propriety and availability of rescission is a matter for the DIA to adjudicate.
Merchants nevertheless contends, based on Century Indem. Co. v. Jameson, 333 Mass. 503 (1956), that the Superior Court had jurisdiction over its request for rescission. In Century, a workers’ compensation insurer sought and obtained a declaration that a workers’ compensation policy was voidable at its option where the insured had applied for the policy without disclosing material facts within his knowledge. Id. at 504-505. Significantly, however, Century predated the amendment of both §§ 63 and 65B, to include within the act specific provisions governing the termination of workers’ compensation policies. For that reason, Century is not controlling.
2. Exhaustion. Massachusetts courts have long adhered to the rule that “[i]n the absence of a statutory directive to the contrary, the administrative remedies should be exhausted before resort to the courts.” East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. at 448, quoting from Gordon v. Hardware Mut. Cas. Co., 361 Mass. 582, 587 (1972). Neither of the statutes cited by Merchants as a basis for Superior Court jurisdiction, G. L. c. 231A and G. L. c. 175, § 186(a), contains any such directive, and it is undisputed that Merchants did not exhaust its administrative remedies before resorting to the courts.
The policies underlying the exhaustion doctrine are “particularly applicable in the case of the administration of the Work[ers’] Compensation Act.” Assuncao’s Case, 372 Mass. 6, 9 (1977). “By permitting an agency to apply its expertise to the statutory scheme which it is charged to enforce, courts preserve the integrity of the administrative process while sparing the judiciary the burden of reviewing administrative proceedings in a piecemeal fashion.” Murphy v. Administrator of Div. of Personnel Admin., 377 Mass. 217, 220 (1979), citing Assuncao’s Case, supra at 8-9. Those policies, as well as the policies generally underlying the workers’ compensation scheme, would be undermined if an insurer were able to circumvent the DIA process by litigating a claim for rescission in court while a claim under the policy is pending in the DIA. As this case well illustrates, bypassing the administrative process has the potential to impair the rights of both the injured employee and the Fund.
Merchants’ contention that the administrative remedies available under the act are not the same as those available in a declaratory judgment action is unavailing. “A proceeding for declaratory relief in itself does not operate to suspend the ordinary requirement that a plaintiff exhaust [its] administrative remedies before seeking judicial relief.” East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, supra at 450. Furthermore, “[t]he question ‘is not whether the alternative [administrative] remedy is in all respects as prompt and as broad’ but whether it is ‘inadequate.’” Gordon v. Hardware Mut. Cas. Co., 361 Mass. at 586, quoting from Jordan Marsh Co. v. Labor Relations Commn., 312 Mass. 597, 601-602 (1942).
Here, the remedies available to Merchants at the DIA were not inadequate. It was entitled to argue in the workers’ compensation case that it had no obligation to pay benefits to Perez because the policy had been obtained by Spicer’s fraud. If the administrative judge ruled otherwise, Merchants would have a right of appeal to the reviewing board, and then, if need be, to this court. It also was entitled to terminate the policy in accordance with the statutory procedures applicable to policies written on a voluntary basis, i.e., G. L. c. 152, § 63, and G. L. c. 175, § 187C. See Pillman’s Case, 69 Mass. App. Ct. at 181 n.6. What it could not do was to file a Superior Court case as a means to avoid the administrative process.
3. Other issues. We comment briefly on the parties’ remaining arguments.
a. Because we rest our decision on the exhaustion rule, we need not decide whether the Superior Court lacked jurisdiction on the alternative ground that the Fund was a necessary party to any action seeking a declaration that Merchants’ workers’ compensation policy was void. See Service Employees Intl. Union, Local 509 v. Department of Mental Health, 469 Mass. 323, 338 (2014).
b. The judge did not abuse her broad discretion in allowing the Fund’s motion to intervene. See Cruz Mgmt. Co. v. Thomas, 417 Mass. 782, 785 (1994). “Although motions to intervene after judgment are seldom ‘timely,’ they may be allowed if the proposed intervener demonstrates a strong justification for intervention after judgment.” McDonnell v. Quirk, 22 Mass. App. Ct. 126, 132 (1986) (citation omitted). Here, the confluence of the jurisdictional defect, Merchants’ efforts to extract itself from the DIA proceedings (going so far as to enjoin the DIA from continuing with the case), and the potential prejudice to Perez and the Fund if the Fund were precluded from being heard constituted ample justification for allowing the Fund to intervene.
c. The judge did not err in concluding that relief pursuant to rule 60(b)(4) was appropriate, as there was no arguable basis on which the Superior Court had jurisdiction in the circumstances. Merchants filed its Superior Court case while Perez’s DIA claim was pending. Because the DIA had exclusive jurisdiction to determine Merchants’ liability under its policy in conjunction with Perez’s pending compensation claim, the Superior Court was without authority to decide whether that policy should be rescinded ab initio as a result of the Spicer’s alleged misrepresentations. In this instance, the Superior Court lacked jurisdiction from the very inception of the case. Accordingly, O’Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449 (1991), relied upon by Merchants, is distinguishable.
d. Merchants contends that the judge erred in failing to preserve the judgments insofar as they related to the general liability insurance policy. So far as the record reveals, however, Merchants did not make this argument in the trial court until it moved for reconsideration of the judge’s order allowing Perez’s motion for relief from judgment, vacating all substantive orders, and dismissing the complaint. Merchants was silent as to what, if any, rulings might be salvaged from the case even when the judge requested at the January 31, 2014, hearing on Perez’s motion for relief from judgment that all parties submit their views as to which orders should be vacated.
A motion for reconsideration is not the “appropriate place to raise new arguments inspired by a loss before the motion judge in the first instance.” Commonwealth v. Gilday, 409 Mass. 45, 46 n.3 (1991). Accordingly, we review the judge’s denial of a motion for reconsideration only for abuse of discretion. See Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312-313 (2009), and cases cited. We discern no abuse of discretion here.
Even assuming for the sake of argument that there was no jurisdictional impediment to the Superior Court judge’s rescission of the general liability policy while the compensation case was pending, the judge did not abuse her discretion in declining to change the scope of the dismissal order. It would not have been a simple ministerial task for the judge to grant Merchants’ belated request. The two policies were not addressed in separate counts of the complaint, and all subsequent pleadings, orders, and forms of judgment submitted by Merchants consistently linked them together without differentiation. Furthermore, the judge could decide in her discretion that she had adequately protected Merchants’ interests by ordering dismissal without prejudice — leaving Merchants free to file another action in Superior Court seeking relief solely as to the general liability policy.
Conclusion. For the foregoing reasons, the judgment dismissing the case for lack of jurisdiction is affirmed.
 Doing business as Uptown Landscaping.
 Joel Estaban Perez; Workers’ Compensation Trust Fund, intervener.
 Established by St. 1985, c. 572, § 55, the Fund “provide[s], among other things, a source of payment for an employee who suffers a work-related injury while working for an employer who does not have workers’ compensation insurance in violation” of G. L. c. 152, § 65(2)(e). Sellers’s Case, 452 Mass. 804, 804 n.2 (2008). All employers in the Commonwealth that are subject to the workers’ compensation act must contribute to the Fund. Id. at 805 & n.5.
 Perez’s right (major) hand was dismembered by a log-splitting machine. Perez represented in the Superior Court, and it is not disputed, that, by November, 2012, his medical bills had exceeded $ 700,000, and his treatment was ongoing.
 The judgment rescinded and declared void ab initio both the general liability and workers’ compensation policies, and awarded Merchants $ 55,549.26 for payments made by it through September 28, 2012, for legal fees, medical payments, and indemnity payments arising from Perez’s workers’ compensation claim.
 General Laws c. 175, § 186(a), as appearing in St. 2008, c. 376, § 1, provides: “No oral or written misrepresentation or warranty made in the negotiation of a policy of insurance by the insured or in his behalf shall be deemed material or defeat or avoid the policy or prevent its attaching unless such misrepresentation or warranty is made with actual intent to deceive, or unless the matter misrepresented or made a warranty increased the risk of loss.” Under this statute, “a misrepresentation in an application for insurance is material, and, thus, will enable the insurer to avoid the policy, if it is made with actual intent or if it increases the risk of loss. A material fact, measured by an objective standard, is one which would ‘naturally influence the judgment of [an] underwriter in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of the premium.’ The [insurer] has the burden of proof on this issue.” A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502, 513 (2005), quoting from Employers’ Liab. Assur. Corp. v. Vella, 366 Mass. 651, 655 (1975) (citations omitted).
G. L. c. 152; and (4) as a matter of public policy, insurers should not be allowed to circumvent DIA proceedings by going to the Superior Court.
 We have consulted the current docket in the second Superior Court case, see Home Depot v. Kardas, 81 Mass. App. Ct. 27, 28 (2011), and it appears that the temporary restraining order is still in place.
 Perez’s counsel candidly told the judge that he had not understood that there was a jurisdictional problem prior to the entry of the judgment against his client, and that he was under the impression that rescission would not harm Perez, because he would receive his benefits from the Fund. However, as the Fund’s attorney explained, the Fund, which had not been a party to the court case, intended to contest its liability in the DIA proceedings, as “it [was] supposed to do.” Thus, if the administrative judge were to determine that the Fund was not liable because Merchants’ policy was valid and in effect at the time of the injury, Perez would be left without recourse, unless the Superior Court judgment were vacated. The general counsel of the DIA also was present at the hearing and answered questions from the judge. His position was that the DIA is vested with the exclusive authority to decide whether a claim is covered under a workers’ compensation policy, including whether the employer obtained the policy by means of misrepresentations, as alleged by Merchants in this case. In the DIA’s view, that question is a “subissue” of the overarching issue of “liability” of the insurer “to pay the compensation due,” and would be for the administrative judge and then the reviewing board to decide.
 Both Cummings’s Case and Sullivan’s Case concerned assigned risk policies, as to which G. L. c. 152, § 65B, regulates cancellation and rescission. Because the present case concerns a voluntary policy, the relevant section is § 63; however, the operative language (“cancel or . . . otherwise terminate“) is identical. “Where the Legislature uses the same words in several sections which concern the same subject matter, the words ‘must be presumed to have been used with the same meaning in each section.’” Commonwealth v. Wynton W., 459 Mass. 745, 747 (2011), quoting from Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 188-189 (1969).
 At the time Century was decided, § 63 had no language pertaining to cancellation or termination. See G. L. c. 152, § 63, as amended by St. 1953, c. 314, § 6. It was not until 1973 that the Legislature added, inter alia, the sentence that reads: ”Such insurance shall not be cancelled or shall not be otherwise terminated” until notification to the proper body (at one time the DIA, and, later, the rating organization) is given. St. 1973, c. 403. While a version of § 65B existed before Century was decided, it referred only to cancellation; it was not until 1991 that this section was amended to include the broader, “cancel or otherwise terminate” language analogous to the language in § 63. See St. 1991, c. 398, § 90A.
 Merchants takes the position that by enacting G. L. c. 175, § 186, the Legislature “expressly authorized the Superior Court to rescind insurance policies for fraud in the inducement.” However, the statute does not confer jurisdiction in any particular forum; it establishes the legal standards that must be met for an insurer to defeat or avoid liability under its policy because of a misrepresentation or warranty made by the insured. See note 7, supra.
 The judge ordered all parties to file these submissions by February 14, 2014. She also stated that, if Merchants wished to file something further in response, it could do so by February 21. Perhaps misunderstanding her order, Merchants did not file anything by February 14, but later filed proposed findings and rulings on the motion for relief from judgment on February 21. Even then, Merchants did not address the judge’s concern. Instead, it reargued its position that the Superior Court had jurisdiction and the judge should not grant any relief to Perez. In the meantime, without benefit of any input from Merchants as to which orders should be vacated, the judge allowed Perez’s motion on February 19.


Justia › US Law › US Case Law › US Supreme Court › Volume 149 › Cadwalader v. Jessup & Moore Paper Co.
Old India rubber shoes, invoiced as "rubber scrap" and entered as "scrap rubber" were exempt from duty under the similitude clause, § 2499, of Title 33 of the Revised Statutes, as enacted by § 6 of the Act of March 3, 1883, 22 Stat. 491, as being substantially crude rubber under § 2503, they laving lost their commercial value as articles composed of India rubber or India rubber fabrics or India rubber shoes.
of Philadelphia, to recover an alleged excess of customs duties, paid by the plaintiff under protest. The case was removed by the defendant by certiorari into the Circuit Court of the United States for the Eastern District of Pennsylvania. The amount claimed was $236.25. The invoice in the case was of twenty-two bales of old "rubber scrap." They were entered as "scrap rubber," and 25 percent ad valorem was charged on the merchandise, under the provision of Schedule N of § 2502 of the Act of March 3, 1883, c. 121, 22 Stat. 513, which imposed a duty of 25 percentum ad valorem on "articles composed of India rubber not specially enumerated or provided for in this act."
"There shall be levied, collected, and paid on each and every nonenumerated article which bears a similitude, either in material, quality, texture, or the use to which it may be applied, to any article enumerated in this title, as chargeable with duty, the same rate of duty which is levied and charged on the enumerated article it most resembles in any of the particulars before mentioned, and if any nonenumerated article equally resembles two or more enumerated articles on which different rates are chargeable, there shall be levied, collected, and paid on such nonenumerated article the same rate of duty as is chargeable on the article which it resembles paying the highest duty, and on all articles manufactured from two or more materials the duty shall be assessed at the highest rates at which the component material of chief value may be chargeable. If two or more rates of duty should be applicable to any imported article, it shall be classified for duty under the highest of such rates, provided that nonenumerated articles similar in material and quality and texture, and the use to which they may be applied, to articles on the free list, and in the manufacture of which no dutiable materials are used, shall be free. "
The articles imported were old India rubber shoes, purchased by manufacturers of India rubber articles, to be ground into a powder, subjected to a blowing process to extract fibers of the lining, or to a high temperature to eliminate as much of the sulphur as possible, and then sheeted out, and manipulated in the same manner and for the same purposes as crude rubber, the material being only equal in value to a medium grade of crude rubber.
It was contended by the importer that these old shoes, invoiced as "rubber scrap," and entered as "scrap rubber," were free, as being substantially crude rubber, on the ground that the evidence showed that they were nonenumerated articles, and were similar in material and quality and texture, and the use to which they were applied, within the meaning of § 2499, to crude rubber, and were therefore exempt from duty. The importer duly filed a protest against the exaction of the duty, and appealed to the Secretary of the Treasury, who affirmed the decision of the collector.
"1. Articles composed of India rubber, within the meaning of the existing tariff laws (sec. 2502, Schedule N) are articles prepared or manufactured from India rubber, of which the preparation or manufacture constitutes some portion of their commercial value. If therefore you find that the commercial value possessed by the old rubber shoes upon which the plaintiffs in this case allege that the duty in this instance was improperly imposed was due solely to the rubber they contained, and not to the preparation or manufacture which they had undergone, they were not 'articles composed of rubber' within the meaning of the tariff laws as at present in force."
The court affirmed that proposition, and the defendant excepted.
shoes' were similar in material, quality, texture, and the use to which they can be applied to crude rubber, your verdict must be for the plaintiffs."
The plaintiff also requested the court to charge the jury as follows: "3. Under all the evidence, your verdict must be for the plaintiffs." The court affirmed that proposition, and the defendant excepted.
"1. If you believe that the importation in suit is composed of India rubber not specially enumerated or provided for in the Act of March 3, 1883, your verdict should be for the defendant."
"2. If you believe that the importation in suit bears a similitude in material, quality, texture, or the use to which it may be applied, to an article composed of India rubber, then your verdict should be for the defendant."
"3. Even if the importation in suit be used for the purpose of reclaiming, by chemical process, the rubber contained therein, yet if the product is inferior in material, quality, and texture to crude rubber, then it is not such a similitude to crude rubber as it is necessary under section 2499 for the plaintiff to prove to entitle him to recover, and your verdict should be for the defendant."
"4. Your verdict in this case should be for the defendant."
The court refused each request, and the defendant excepted to each refusal.
law, as stated in plaintiff's first point, is a correct statement of the law, and in that view, under the facts here, the plaintiff is entitled to a verdict for the amount of duty exacted in excess of what should have been charged. This will be subject to consideration by the court hereafter, and the court reserves the right to enter a verdict for the defendant in case it should be satisfied that the law is not as stated in this point."
The jury rendered a verdict in favor of the plaintiff for $255.72.
Subsequently the defendant moved the court to grant judgment in his favor non obstante veredicto. The case was argued, the motion was denied, and judgment was entered in favor of the plaintiff for the amount of the verdict. The defendant has brought a writ of error, but we are not furnished with any brief in its support.
The uncontradicted testimony is to the effect that the only commercial use or value of the old India rubber shoes, or scrap rubber, or rubber scrap in question is by reason of the India rubber contained therein, as a substitute for crude rubber; that the old shoes were of commercial use and value only by reason of the India rubber they contained, as a substitute for crude rubber and not by reason of any preparation or manufacture which they had undergone; that they could not fairly be called "articles composed of India rubber," and as such dutiable at 25 percentum ad valorem, and that although the shoes may have been originally manufactured articles composed of India rubber, they had lost their commercial value as such articles, and substantially were merely the material called "crude rubber." They were not India rubber fabrics or India rubber shoes, because they had lost substantially their commercial value as such. Meyer v. Arthur, 91 U. S. 570; Worthington v. Robbins, 139 U. S. 337, 139 U. S. 341; American Net & Twine Co. v. Worthington, 141 U. S. 468; Junge v. Hedden, 146 U. S. 233, 237 [argument of counsel -- omitted].
in question in this case is that it is "old scrap or refuse India rubber, which has been worn out by use and is fit only for remanufacture."


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Roach v. T.L. Cannon Corp.
This case presented the question of whether the Supreme Court’s decision in Comcast Corp. v. Behrend, ––– U.S. ––––, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013), overruled the well-established law in the Second Circuit that class certification pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure cannot be denied merely because damages have to be ascertained on an individual basis. The court below had held that Comcast permits certification under Rule 23(b)(3) only when damages are measurable on a classwide basis, and denied the plaintiffs’ motion for class certification. The Second Circuit disagreed, and held that Comcast does not mandate that certification pursuant to Rule 23(b)(3) requires a finding that damages are capable of measurement on a classwide basis, in the context of this wage and hour case.
Prior to the Supreme Court’s decision in Comcast, it was “well-established” in this Circuit that “the fact that damages may have to be ascertained on an individual basis is not sufficient to defeat class certification” under Rule 23(b)(3). Seijas v. Republic of Argentina, 606 F.3d 53, 58 (2d Cir.2010); see McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 231 (2d Cir.2008), abrogated in part on other grounds by Bridge v. Phx. Bond & Indem. Co., 553 U.S. 639, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008); see also Dukes, 131 S.Ct. at 2558 (“[I]ndividualized monetary claims belong in Rule 23(b)(3).”). “[T]he fact that damages may have to be ascertained on an individual basis” was simply one “factor that we [had to] consider in deciding whether issues susceptible to generalized proof ‘outweigh’ individual issues” when certifying the case as a whole. McLaughlin, 522 F.3d at 231.
We do not read Comcast as overruling these decisions.
In Comcast, the plaintiffs filed a class-action antitrust suit claiming that Comcast’s acquisition of competitor cable television providers in sixteen counties clustered around Philadelphia violated the Sherman Act. 133 S.Ct. at 1430. Comcast’s clustering strategy had increased its market share in that geographical area from around twenty to seventy percent. Id. The plaintiffs sought to certify the class of Comcast subscribers in that geographical area under Rule 23(b)(3), claiming that questions of law and fact common to the class predominated over any questions affecting individual members. Id. The district court held, and neither the plaintiffs nor defendants contested on appeal, that in order to meet the predominance requirement, the plaintiffs had to show that: (1) the injury suffered by the class was “capable of proof at trial through evidence that [was] common to the class rather than individual to its members”; and (2) “the damages resulting from [the anticompetitive] injury were measurable on a class-wide basis through use of a common methodology.” Id. (first alteration in original) (quoting Behrend v. Comcast Corp., 264 F.R.D. 150, 154 (E.D.Pa.2010)) (internal quotation marks omitted).
Id. at 1430–31. To prove that the damages resulting from the anticompetitive injury were measurable on a classwide basis, the plaintiffs offered expert testimony that modeled the class damages based on all four theories of antitrust injury; the model did not isolate damages resulting from the “overbuilder” theory. Id. at 1431. Nevertheless, both the district court and the United States Court of Appeals for the Third Circuit concluded that the expert testimony was sufficient to establish that damages resulting from the “overbuilder” theory of injury were measurable on a classwide basis. Id. Rejecting the notion that the plaintiffs were required to offer a model of classwide damages that attributed damages only to the “overbuilder” theory of injury, the Court of Appeals explained that the plaintiffs were required merely to provide assurance that, “if they can prove antitrust impact, the resulting damages are capable of measurement and will not require labyrinthine individual calculations.” Id. at 1431 (quoting Behrend v. Comcast Corp., 655 F.3d 182, 206 (3d Cir.2011)) (internal quotation mark omitted). A more rigorous analysis, the Court of Appeals concluded, would constitute an “attac[k] on the merits of the methodology [that] [had] no place in the class certification inquiry.” Id. (first and third alterations in original) (quoting Behrend, 655 F.3d at 207) (internal quotation marks omitted).
The Supreme Court granted certiorari. After noting that neither party had contested the district court’s holding that Rule 23(b)(3) predominance required a showing that damages resulting from the anticompetitive injury were measurable on a classwide basis, id. at 1430, the Court identified the question presented as whether the plaintiffs “had … establish[ed] that damages could be measured on a classwide basis,” id. at 1431 n. 4. The Court reversed, holding that the plaintiffs’ expert testimony failed to carry that burden. Id. at 1432–33.
The Court began by noting that it had recently held that establishing the Rule 23(a) prerequisites to class certification required a “rigorous analysis,” which would “frequently entail ‘overlap with the merits of the plaintiff’s underlying claim.’ ” Id. at 1432 (quoting Dukes, 131 S.Ct. at 2551). Those “same analytical principles,” the Court explained, govern the Rule 23(b) inquiry. Id.
The Court then held that the plaintiffs’ expert testimony did not withstand the “rigorous analysis” for the Rule 23(b)(3) predominance test. The Court explained that the plaintiffs would be entitled only to damages resulting from their theory of injury. Id . at 1433. Thus, “a model purporting to serve as evidence of damages …. must measure only those damages attributable to that theory.” Id. “If the model does not even attempt to do that,” the Court explained, “it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).” Id. Because there was “no question” that the damages model was not based solely upon the “overbuilder” theory of injury certified by the district court, but also included calculations accounting for the three other theories of injury, id . at 1433–34, the Court concluded that “Rule 23(b)(3) cannot authorize treating [cable] subscribers within the Philadelphia cluster as members of a single class,” id. at 1435.
Comcast, then, did not hold that a class cannot be certified under Rule 23(b)(3) simply because damages cannot be measured on a classwide basis. See id. at 1430 (noting that the requirement of a classwide damages model “is uncontested here”); id. at 1436 (Ginsburg and Breyer, JJ., dissenting) (“[T]he decision should not be read to require, as a prerequisite to certification, that damages attributable to a classwide injury be measurable ‘on a class-wide basis.’ “). Comcast’s holding was narrower. Comcast held that a model for determining classwide damages relied upon to certify a class under Rule 23(b)(3) must actually measure damages that result from the class’s asserted theory of injury; but the Court did not hold that proponents of class certification must rely upon a classwide damages model to demonstrate predominance. See id . at 1433; see also In re Deepwater Horizon, 739 F.3d 790, 817 (5th Cir.2014) (construing the “principal holding of Comcast [as being] that a ‘model purporting to serve as evidence of damages … must measure only those damages attributable to th[e] theory’ of liability on which the class action is premised” (ellipsis and second alteration in original) (quoting Comcast, 133 S.Ct. at 1433)); Butler v. Sears, Roebuck & Co., 727 F.3d 796, 799 (7th Cir.2013) (construing Comcast as holding only “that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges” (emphasis in original)); Leyva v. Medline Indus. Inc., 716 F.3d 510, 514 (9th Cir.2013) (interpreting Comcast to hold that class-action plaintiffs “must be able to show that their damages stemmed from the defendant’s actions that created the legal liability”); accord Catholic Healthcare W. v. U.S. Foodservice Inc. ( In re U.S. Foodservice Inc. Pricing Litig.), 729 F.3d 108, 123 n. 8 (2d Cir.2013) (“Plaintiffs’ proposed measure for damages is thus directly linked with their underlying theory of classwide liability … and is therefore in accord with the Supreme Court’s recent decision in Comcast … . “). Indeed, as the Court explained, if all four types of anticompetitive injury had been approved for certification by the district court, the plaintiff’s damages methodology “might have been sound, and might have produced commonality of damages.” Comcast, 133 S.Ct. at 1434.
To be sure, Comcast reiterated that damages questions should be considered at the certification stage when weighing predominance issues, but this requirement is entirely consistent with our prior holding that “the fact that damages may have to be ascertained on an individual basis is … a factor that we must consider in deciding whether issues susceptible to generalized proof ‘outweigh’ individual issues.” McLaughlin, 522 F.3d at 231. The Supreme Court did not foreclose the possibility of class certification under Rule 23(b)(3) in cases involving individualized damages calculations.
Our reading of Comcast is consistent with the Supreme Court’s statement in Comcast that its decision turned upon “the straightforward application of class-certification principles.” 133 S.Ct. at 1433. Our reading is also consistent with the interpretation of those Circuits that have had the opportunity to apply Comcast. See AstraZeneca AB v. United Food & Commercial Workers Unions & Emp’rs Midwest Health Benefits Fund (In re Nexium Antitrust Litig.), No. 14–1521, 2015 WL 265548, at *8, *10 (1st Cir. Jan.21, 2015) (explaining that Comcast “simply” requires that a damages calculation reflect the associated theory of liability, and discussing the “well-established” principle that individualized damages do not automatically defeat Rule 23(b)(3) certification); Dow Chem. Co. v. Seegott Holdings, Inc. ( In re Urethane Antitrust Litig.), 768 F.3d 1245, 1257–58 (10th Cir.2014) ( “Comcast did not rest on the ability to measure damages on a class-wide basis.”); In re Deepwater Horizon, 739 F.3d at 817 (rejecting, post-Comcast, the argument “that certification under Rule 23(b)(3) requires a reliable, common methodology for measuring classwide damages” (internal quotation marks omitted)); Butler, 727 F.3d at 801 (holding, upon the Supreme Court’s grant of certiorari, vacatur, and remand in light of Comcast, that “the fact that damages are not identical across all class members should not preclude class certification”); Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front–Loading Washer Prods. Liab. Litig .), 722 F.3d 838, 860–61 (6th Cir.2013) (noting that Comcast was “premised on existing class-action jurisprudence” and that “it remains the ‘black letter rule’ that a class may obtain certification under Rule 23(b)(3) when liability questions common to the class predominate over damages questions unique to class members”); Leyva, 716 F.3d at 513 (reiterating Ninth Circuit precedent, post-Comcast, that “damage calculations alone cannot defeat certification” (quoting Yokoyama v. Midland Nat’l Life Ins. Co., 594 F.3d 1087, 1094 (9th Cir.2010)) (internal quotation mark omitted)).
Because the trial court did not complete its full analysis under Rule 23, inasmuch as it held that individualized damages alone precluded class certification, the Second Circuit reversed and remanded the case for further findings regarding plaintiffs’ motion for class certification. Of note, on the same day, in an unreported decision, the Second Circuit affirmed a trial court’s order granting class certification, notwithstanding the defendant-appellant’s argument that individualized damages precluded class certification regarding liability issues.
Click Roach v. T.L. Cannon Corp. to read the entire decision and Jason v. Duane Reade, Inc. to read the unreported decision in that case.
By Andrew Frisch in Class Certification on February 12, 2015 .

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§ 246-2 Standards for operation of food establishments; grease traps required.
§ 246-4 Violations and penalties.
§ 246-5 Other commercial establishments.
§ 246-6 Purpose and policy; applicability; administration.
§ 246-7 Definitions and word usage.
§ 246-9 National categorical limits override.
§ 246-10 Causing LLVSA to violate regulatory limits.
§ 246-13 Municipality's right of revision.
§ 246-15 Rain or cooling water.
§ 246-16 Fees and charges.
§ 246-18 LLVSA approval for pretreatment.
§ 246-20 Permit application process.
§ 246-21 Modification of permit.
§ 246-22 Classification of dischargers.
§ 246-25 Operation and maintenance of pretreatment.
§ 246-28 Self-monitoring and reporting.
§ 246-29 Reporting of hazardous waste discharge.
§ 246-36 Notification of violation.
§ 246-39 Other legal action; civil penalties.
§ 246-40 Revocation of permit.
§ 246-41 Termination of service.
§ 246-42 Violations and penalties.
§ 246-43 Right of appeal.
§ 246-45 Cost of monitoring.
§ 246-49 Water supply severance.
§ 246-50 Cooperation between municipality and LLVSA.
§ 246-51 Removal by unauthorized personnel prohibited.
§ 246-52 Violations and penalties.
§ 246-53 Adoption of standards.
Sewer Authority — See Ch. 59.
Sewer rules and regulations — See Ch. 243.
Subdivision and land development — See Ch. 268.


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As indicated in its name, the FTA considers transfers avoidable when they are “fraudulent.” Though the FTA never intended a finding of fraud to be a requisite for avoidance, many courts did just that after associating the FTA with the common law meaning of words like “fraud” and “fraudulent.” Use of the word “fraud” also has led to courts applying the heightened pleading standard reserved for fraud claims. The VTA dissociates itself from the word fraud. Rather than identifying transfers as fraudulent as does the AL AFTA, the VTA refers to them as being voidable since a finding of fraud is not required to avoid a transfer. As noted by the Commission in its Official Comments to the VTA, “[f]raud is not a necessary element of a claim for relief.” VTA § 4, cmt. 8.
Some courts have applied the heightened “clear and convincing” evidence standards to actions under the FTA. This was not intended by the Commission and likely was the result of the terminology confusion discussed above. The VTA provides that the lesser “preponderance of the evidence” standard applies instead. Ala. Code § 8-9B-5(c) and -6(c).
The VTA also addresses the burden of proving insolvency. Similar to the FTA, a debtor is presumed insolvent under the VTA when it is generally not paying its debts as they become due. However, the VTA provides that the burden to overcome that presumption is proving “the nonexistence of insolvency is more probably than its existence.” Ala. Code § 8-9B-3(b).
The FTA included a special definition of “insolvency” for partnerships that gave a partnership full credit for the net worth of each of its general partners. The VTA deletes the special definition of insolvency for partnerships so that the same definition of insolvency that applies to other debtors also applies to partnerships.
The question of which state’s law applied in an avoidance action can become more complicated than it may seem. Without a choice of law provision, confusion can abound when multiple states are in play or when the location of an asset is not exactly clear. The VTA simplifies this question by applying the law of the state of the debtor’s location at the time of the transfer. For individuals, that means the principal residence. For businesses, it means the debtor’s place of business or the “chief executive office” for businesses with more than one location. Ala. Code § 8-9B-11.
A series LLC is a form of a limited liability company that includes multiple cells or “series” each of which is intended to be viewed as a separate entity for liability and other purposes. A series LLC often is used in complex transactions in which an investor desires to have the benefit of having different assets held by individual entities without incurring the administrative burden and expense of forming individual companies for each group of assets. While the FTA does not speak directly to a series LLC, the VTA makes clear that each series of a series LLC will be treated as a separate entity for voidance purposes despite the fact the series LLC may be treated as a single entity for other purposes (e.g. tax reporting). Ala. Code § 8-9B-12.
The FTA provided a defense to an avoidance action if the transferee took the asset in good faith and for reasonably equivalent value, though the FTA did not specify who must have received this value. The VTA clarifies that the reasonably equivalent value must have been given to the debtor. Ala. Code § 8-9B-9(a). Both the FTA and the VTA provide that a transfer resulting from a secured creditor’s repossession or foreclosure under Article 9 of the Uniform Commercial Code generally is not avoidable. However, the VTA clarifies that a secured creditor’s acceptance of collateral in full or partial satisfaction of the secured obligation remains subject to avoidance. Ala. Code § 8-9B-9(e). The purpose is to protect against a transfer in which an asset with substantial equity is conveyed to satisfy a relatively small amount of debt.

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