Michael A Kelly's Legal Cases (5)

Insurance fraud

David F. Miller and Miller’s Auto Body, Inc. v. Metropolitan Property and Casualty Insurance, et al, C.A. No.: 06-3336 (RI 2006)

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OUTCOME: Defendants' Motion for Partial Summary Judgment on Counts I, II, III, V, and VI of Plaintiff's Second Amended Complaint is granted.

his action arises out of alleged acts of insurance fraud committed by Plaintiff and the ensuing criminal investigation and prosecution of such. In 2001, the Rhode Island State Police ("RISP") undertook ... an investigation of Plaintiff's auto body shop. According to the police narrative of Detective Kershaw, representatives of "MetLife" requested a meeting to discuss alleged insurance fraud. Apparently, Plaintiff had been inflating costs of repairs and recovering excess money from car insurance claims. Following this and other complaints, RISP initiated an undercover investigation of Plaintiff. Presumably, "MetLife" is the defendant, Metropolitan.See Pl.'s Ex. H ("Metropolitan Property and Casualty Insurance Company (MetLife) provided" a vehicle for the sting operation.) The affidavit of Detective Doucet indicates that an undercover investigation was initiated "based on several complaints which alleged that the business owner was engaged in the practice of committing insurance fraud"). Doucet Aff. 1. During the first leg of the investigation, Defendant Metropolitan provided RISP with a vehicle that was taken into Plaintiff's auto body shop for repairs by an undercover officer. See Doucet Aff. 1. According to the affidavit of Detective Doucet, this initial `sting' resulted in Plaintiff charging for fraudulent repairs in excess of $1,100. Id. at 3. Later, another vehicle was supplied by Defendant Amica for an additional `sting.' Id. Again, this vehicle underwent $1,050 worth of fraudulent repairs by Plaintiff. Id. at 5. Following these investigations, Mr. Miller was arrested by the RISP and charged with Insurance Fraud and Attempting to Obtain Money under False Pretenses. See Pl.'s Ex. G at 7. Thereafter, by March 28, 2005, the case against Miller was dismissed "due to evidentiary and proof issues." See Pl.'s Ex. B. The dismissal was conditioned upon Plaintiff's payment of restitution, relinquishment of or transfer of his Department of Business Regulation auto body license, and execution of a general liability release. Id. The release, signed on March 29, 2005, relinquished all Defendants from any causes of action against them arising from the criminal case against Plaintiff. See Pl.'s Ex. F. Plaintiffs eight-count Second Amended Complaint, alleges Tortious Interference with Contractual Relations (Count I), Tortious Interference with Prospective Contractual Relations (Count II), Malicious Prosecution (Count III), Abuse of Process (Count IV), Continued Tortious Interference with Contractual Relations (Count V), Continued Tortuous Interference with Prospective Contractual Relations (Count VI), Violation of the Rhode Island Deceptive Trade Practices Act (Count VI) [ sic], and Punitive Damages (Count VII). See Pls.'Sec.Am. Compl. The Complaint alleges that presumably because Miller was publicly pushing for change in the Rhode Island legislation regarding auto body dealers — specifically the legislation regarding labor rates used by the auto body repair shops, as well as the methods used and amounts of monies paid by insurance companies with regard to auto body work — Defendants began steering customers away from Plaintiff.Id. at 3-4. Allegedly, Defendants represented to their insured that Plaintiff overcharged for work performed and informed the same that "they did not warranty said work." Id. at 4. The Complaint insists that Defendants initiated audits and investigations that turned up no wrongdoing on the part of Plaintiff. The Second Amended Complaint is mis-numbered. There are two counts which are both marked as "Count VI."

Land use and zoning

North End Realty, LLC v. Matttos, et al, 25 A.3d 527 (R.I. 2011)

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OUTCOME: Court denied Plaintiff's Motion for Summary Judgement and grants Defendants' motion in part.

North End is a developer, and it is the owner of real property in East Greenwich. On March 28, 2006, North End filed with the town's planning board a "pre-application" for the development of a five-lot ... subdivision. Subsequently, on November 6, 2006, the town council of East Greenwich passed three new ordinances, the purpose of which was to promote the development of affordable housing in the town. The ordinances included a requirement that developers either designate 15 percent of the units in any subdivision or major residential land development as affordable housing or pay the sum of $200,000 as a "fee-in-lieu" of constructing the required number of affordable housing units. (Pursuant to the ordinances at issue, the "fee-in-lieu" is to be paid for each affordable unit that should be built so as to meet the 15 percent threshold, but which a developer did not build.) On February 20, 2007, North End filed with the planning board both "master" and "preliminary" plans for its proposed subdivision; in those plans the developer outlined its intentions relative to the building of five residential dwellings. Because North End indicated that it did not intend to include any affordable housing units as part of the subdivision, the town (citing the recently adopted ordinances) mandated that North End pay a $200,000 fee-in-lieu before the developer would be allowed to (1) record any subdivision approval that it might receive from the planning board and (2) begin to develop the property. On September 13, 2007, North End filed a complaint in the Superior Court for Kent County, seeking declaratory and injunctive relief against defendants. In the complaint, North End alleged that the fee-in-lieu requirement contained in the town's ordinances violated its right to substantive due process, and it further alleged that the fee-in-lieu constituted a regulatory taking in violation of article 1, section 16, of the Rhode Island Constitution and an illegal tax in violation of article 13, section 5, of the Rhode Island Constitution. On January 7, 2008, citing Rule 65 of the Superior Court Rules of Civil Procedure, North End filed a motion for injunctive relief, requesting that East Greenwich be "enjoined from mandating a fee-in-lieu of construction of affordable housing units to be assessed and charged upon [North End] and similarly situated property owners seeking to develop and/or subdivide their property * * *." In its motion for injunctive relief, North End made the same allegations with respect to the fee-in-lieu that it had made in its September 2007 complaint, and it additionally alleged that the fee-in-lieu requirement violated its right to procedural due process and to equal protection under the Rhode Island Constitution; North End also contended that, "[m]ore importantly," the town had imposed the " tax/fee without any explicit authority from the General Assembly * * *. " (Emphasis in original.) On February 22, 2008, a hearing was held before a justice of the Superior Court with respect to North End's motion for injunctive relief. The parties stipulated to the facts; and, by agreement, no witnesses testified. On April 22, 2008, the hearing justice issued a written decision denying North End's motion. The hearing justice concluded that the fee-in-lieu was not an illegal tax, but was rather what the hearing justice said was an "acceptable" fee; he further concluded that the fee-in-lieu was not an unconstitutional taking and did not violate North End's right to substantive due process or equal protection. Accordingly, the hearing justice ruled that North End had failed to establish that there was a likelihood of success on the merits of its claim; for that reason, he ruled that it was not entitled to injunctive relief. Final judgment entered in favor of defendants on September 8, 2008, and North End filed a timely notice of appeal.

Land use and zoning

Nunes v. Meadowbrook Development Co., Inc., 24 A.3d 539 (R.I. 2011)

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OUTCOME: Denial of Plaintiff's Appeal

The plaintiffs, Fernando E. Nunes and Nancy A. Nunes, appeal from a judgment of the Superior Court. The plaintiffs' appellate contentions concern an interlocutory order which had entered nearly two yea ... rs prior to the entry of judgment. With respect to that order, the plaintiffs contend that a hearing justice of the Superior Court committed reversible error in ruling that they "were not entitled to recover * * * attorneys fees and expenses" pursuant to "the statute relating to warranty covenants * * *." The plaintiffs also appeal from an order of the Superior Court dismissing their appeal for failure to transmit the record. We decline to address that procedural issue; we vacate the order of the Superior Court and proceed directly to the merits of plaintiffs' appeal. General Laws 1956 § 34-11-15 sets forth the five warranty deed covenants. The plaintiffs' claim for attorneys' fees was, as an initial matter, predicated upon more than one of the covenants. However, since their argument before this Court focuses almost exclusively on the fifth covenant, we shall focus our analysis on same. The fifth covenant is worded as follows in the above-cited statute: "(5) That the grantor will, and his or her heirs, executors, and administrators shall, warrant and defend the granted premises to the grantee and his or her heirs and assigns forever against the lawful claims and demands of all persons." (Emphasis added.) This case came before the Supreme Court for oral argument pursuant to an order directing the parties to appear and show cause why the issues raised in this appeal should not be summarily decided. After considering the record, the memoranda submitted by the parties, and the oral arguments of counsel, we are satisfied that cause has not been shown and that this appeal may be decided without further briefing or argument.

Litigation

Moreau v. Flanders, 15 A.3d 565 (R.I. 2011)

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OUTCOME: Affirmation of the Judgement of the Superior Court and Order to remand the papers in this case to that tribunal.

In an effort to stem the effects of its financial distress, the city council, by resolution, and the mayor authorized the filing of a verified petition for appointment of a receiver with the Providence ... County Superior Court on May 18, 2010. The circumstances preceding this verified petition, which named the City of Central Falls as defendant, included a June 30, 2009, independent audit, which revealed: (1) that the city had total net assets of negative $16,866,819; (2) an annual operating budget for 2010 and a proposed operating budget for 2011 just under $18 million, with anticipated shortfalls of $3 million for 2010 and $5 million for 2011; (3) municipal bond indebtedness of over $10 million; (4) the city's sale of much of its chief pension fund to satisfy current pension obligations; (5) accrued pension fund liability exceeding $35 million, supported by assets of only $4 million; (6) the city's failure to make any contributions to the pension fund in 2009, despite a requirement that it make a contribution in excess of $2.7 million for that year; (7) the fact that increasing the property tax rate by the maximum allowed under the state cap of 4.5 percent would yield additional revenues of less than $500,000; and (8) a request by Central Falls to the General Assembly to grant it the authority to file for Chapter 9 bankruptcy pursuant to Title 11 of the United States Code, providing for the adjustment of debts of a municipality. In their verified petition to the Superior Court seeking the appointment of a judicial receiver, the mayor and the city council represented: Plaintiffs have determined that the City is fiscally insolvent due to revenue shortfalls and state budget cuts, along with collective bargaining agreements and pension obligations it cannot afford. * * * In the opinion of Plaintiffs, the elected leaders of the City, it is urgent and advisable that a Receiver be appointed immediately to oversee the affairs of the City to assist in balancing the City's budget through spending cuts and revenue enhancement * * *. After a hearing on the petition, the Superior Court, on May 19, 2010, entered an order appointing attorney Jonathan Savage as temporary receiver for the City of Central Falls; a permanent receiver was to be appointed "on or before June 8, 2010." In its order, "the [c]ourt determined that [appointment of a receiver] would be in the best interest of the Defendant's taxpayers, employees, creditors, vendors, and pensioners and other interested parties * * *." The order further delineated the terms and conditions of the [15 A.3d 571] temporary receivership as well as the powers conferred on the receiver.

Land use and zoning

Nunes v. Meadowbrook Development Co., Inc., 824 A.2d 421 (R.I. 2003)

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OUTCOME: The appeal was sustained and the judgment appealed from was reversed.

The plaintiffs appeal the trial justice's order denying plaintiffs' request for injunctive relief barring defendants from using a purported easement over their property. The trial court incorrectly rul ... ed that the defendant had a valid easement by deed and by necessity. The easement was extinguished under the merger rule, because unity of title to the dominant and servient estates was once vested in defendant. Moreover, defendants are not entitled to an easement by necessity. For these reasons, the appeal was sustained and the judgment appealed from was reversed.

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