Legislation filed by the Massachusetts Bar Association for 2009-10 session

Issue March 2009

The Massachusetts Bar Association has a vigorous legislative agenda containing reforms in virtually all areas of practice. The MBA bill filings for the 2009-10 legislative session reflect the high interest and activity levels of our volunteer membership.

All of the filings are reflective of the association’s desire to benefit consumers and citizens across the commonwealth. The measures contain fixed strategic legislative cures along with broad measures to ensure access to the courts and the effective administration of justice.

An Act Relative to Immunity

Provides for qualified immunity for health care providers who administer public health vaccinations.

An Act Granting Discretion to the Superior Court to Allocate Certain Settlement Proceeds

Grants to the Superior Court the power to apportion liens in third party workers compensation actions in response to Rhode v. Beacon Sales.

An Act Relative to the Liability of Certain Non-Profit Corporations

Raises the present $20,000 charitable immunity cap provided to hospitals to the sum of $500,000.

An Act Providing for the Equitable Apportionment of Certain Liens

Apportions the expense of attorney’s fees and costs incurred in personal injury actions among all medical provider lien holders in response to Pierce v. Christmas Tree Shops

An Act Improving the Workers’ Compensation System

Addresses the inequity caused by a recent decision by the Division of Industrial Accident’s which held that an injured worker who returned to work on a part-time basis following an industrial accident, and then was subsequently re-injured, would only receive benefits based on the average weekly wage of the part-time employment. The legislation would also allow for attorney’s fees and costs in instances when insurers withdraw motions to discontinue workers benefits.

An Act Relative to Impartial Medical Examiners

Eliminates mandatory impartial examinations in workers’ compensation cases and allow parties to enter into evidence their own doctor’s report and records by removing the current barriers on the introduction of evidence.

An Act Relative to Workers’ Compensation Benefits

Clarifies statutory conflicts regarding attorney’s fees in workers’ compensation cases. The legislation would also allow parties to agree to matters, short of lump summing a case, without the need for litigation. In addition, the legislation would provide for a minimum compensation rate for workers.

An Act Relative to Injured Workers

Eliminates in workers’ compensation cases the utilization review mandate and streamlines workers’ benefits. The legislation would also eliminate the current cap on partial benefits and remove the arbitrary caps on the number of weeks an employee may collect partial benefits.

An Act Relative to Divorce Procedure and Judgment of Divorce NISI*

Significantly shortens and streamlines the procedural time periods in divorce actions under G.L. c. 208 s. 1A and s. 1B.

An Act Relative to the Removal Statute

Provides that a child could only be removed from the state with the consent of both parents or by court order. Also, it would amend the removal statute to apply the statute to divorcing parents; currently it only applies to divorced parents.

An Act Relative to the Durable Power of Attorney Act

Updates the statute regarding the durable power of attorney.

An Act Relative to Establishing Paternity

Codifies the SJC decision in Paternity of Cheryl establishing paternity guidelines.

An Act Allowing a Court to Appoint Counsel before Imposition of a Jail Sentence

Provides that counsel be provided to indigent persons before the probate and family court in a contempt proceeding before the court imposes a jail sentence.

An Act Relative to the Uniform Child-Custody Jurisdiction and Enforcement Act

Creates uniform guidelines for child custody jurisdiction and enforcement.

An Act Improving the Spousal Elective Share

Rewrites the existing statutory law on forced elective share by significantly increasing the size of the elective estate and clarifying procedures necessary to the election of the spousal share.

An Act to Prohibit the Use of Certain Liability Waivers As Against Public Policy

Under this amendment, employers would not be required or permitted to require employees to sign third party waivers, releasing third parties from liability for claims which might be brought as workers compensation claims.

An Act Establishing a Parent Child Testimonial Privilege

Establishes a parent-child privilege stating that a parent cannot be compelled to testify against an unemanicipated, minor child unless the crime is against a family member or the parent possesses exculpatory information.

An Act Calling for the Accountability of the Commissioner of Insurance by Converting the Position to an Elected Office

Requires that the Commissioner of Insurance be an elected position that would come up for re-election every four years.

An Act to Clarify the Terms of Motor Vehicle Liability Bonds and Policies (duty to defend bill)

Restores coverage protection for motor vehicle insurance policy holders that was removed in a Jan. 1, 1993 “policy change” by the commissioner of insurance, this requiring insurers to continue to defend their insureds even after the policy limits have been paid.

An Act Relative to Uninsured Motorist Coverage Benefits (Alguilla/Pascar bill)

Corrects Massachusetts automobile insurance law where there are multiple parties injured in an accident where there is only a single bodily injury policy available to compensate them.

An Act Relative to Uninsured Motorist Coverage (trigger bill)

Removes the so-called “trigger” from underinsured motorist coverage.

An Act to Protect Consumers in the Issuance of Automobile Insurance Policies and Bonds (policy changes bill)

Benefits all purchasers of automobile insurance by providing consumer input into the process by which the Commissioner of Insurance approves changes to the terms and conditions of the automobile insurance policy.

An Act Relative to the Antenuptial Statute

Removes antiquated language requiring a party from doing a recording if they want to record a notice of an agreement relative to land.

An Act Relative to Long Term Care Insurance

Requires long-term care insurers to include at home care and limited “waiting periods” provisions in all long-term care policies.

An Act Relative to Allocation of State Pension Benefits Upon Divorce

The proposed amendments to M.G.L. chapter 32, section 12, cure present problems in allocating state pension benefits upon a divorce.

An Act to Increase Flexibility in Alimony Orders

Recent appellate decisions imply that trial courts have the authority to determine the amount of alimony, but not the duration contrary to the intent of the statute. This legislation would clarify the statute granting discretion to judges in determining the duration of alimony.

* Filed in conjunction with the Boston Bar Association.