Shirley was charged in criminal court in Lowell with driving under the influence of alcohol. Apparently, several months before her arrest, she was at a party. She left the party with a friend, allowing him to drive her home in her car. Thirty minutes after they left the party, the car was involved in a single car accident on Route 3 North, in Chelmsford. They both suffered facial injuries. When the state police arrived, both Shirley and the young man were sitting on the side of the road. Both accused the other of being the driver. After an “investigation” the police charged Shirley, allegedly because she owned the vehicle.

Shirley retained Burns & Jain. We filed extensive discovery motions and went to the Lowell District Court five (5) times to litigate them. On the day of trial, the state trooper admitted that there was a witness that the government had not revealed. Furthermore, he had the address of the witness in his pocket notebook! The trial judge allowed our motion for a mistrial. More importantly, the judge allowed our motion for attorney fees. This is unusual in a criminal trial. We subsequently had the criminal charges dismissed when the Commonwealth failed to pay the attorney’s fee.

Since Shirley had permanent scarring to her face, she wanted to pursue the driver for damages. The young man, however, did not own a car and had no insurance. Shirley’s insurance company, by this time, was insolvent. It was critical to come up with a new strategy, and we did. Shirley’s mother had auto insurance with a separate company and we pursued that company, under the insurance insolvency law. I convinced the insurance adjuster to listen to the audiotape of the criminal trial. After listening to my cross examination of the young man, the insurance adjuster was convinced that he was the driver and paid the full amount of the policy.

Unfortunately, that policy was a minimal policy and Shirley’s facial injuries were extensive. We were determined to find a way to help Shirley. Therefore, we submitted the case to the Massachusetts Insurers Insolvency Fund, pursuant to Chapter 175, which “steps into the shoes” of Shirley’s company when all other insurance is exhausted. The Fund refused to negotiate; in fact, they refused to return my phone calls. Thus, we filed suit in Superior Court requesting a Court Order for them to arbitrate the claim. After litigation, the Fund was ordered to arbitrate.

The arbitrator, a retired judge from the Boston Municipal Court, listened to testimony of a witness who went back to the vehicle with Shirley after the accident. The witness testified that when they put Shirley back into the passenger seat, her facial injuries matched up with the broken windshield. Hospital records I introduced showed that Shirley’s wounds had glass in them.

85% of the second insurance policy was awarded by the judge.