No. 93-4282-BCommonwealth of Massachusetts Superior Court CIVIL ACTION SUFFOLK, ss.
December 13, 1995
MEMORANDUM OF DECISION AWARDING ATTORNEY’S FEES and COSTS PURSUANT TO G.L.c. 231, § 6F
KING, JUSTICE.
BACKGROUND
On July 19, 1993, the plaintiff, Eli M. Sayah, commenced this action to recover damages for back injuries he allegedly sustained from a September 27, 1992 slip and fall in a Burger King restaurant men’s room. On January 17, 1995, after a three day trial, the jury returned a verdict in favor of the defendant. Subsequently, the defendant filed a motion for costs and attorney’s fees under G.L.c. 231, § 6F. A hearing on this motion was held on March 3, 1995. For the following reasons, the defendant’s motion for costs and attorney’s fees is allowed.
FINDINGS OF FACT
The plaintiff has had at least 8 personal injury claims since he arrived in the United States from Lebanon in 1986. The plaintiff alleges that when he entered the men’s room at the Burger King restaurant on September 20, 1992, it appeared small and dirty. Water was on the floor in front of the sink and paper towels clogged the sink’s drain. In addition, the door to the washroom, which opened inward, was old and broken and required a hard push or pull to open. The plaintiff testified that as he tried to exit the washroom he pulled on the door, slipped in the water, fell to the ground hitting his head on the sink injuring his back. As a result of this accident, the plaintiff claims he could not work for three months and could only work part time thereafter. There were no eye witnesses to the alleged accident. Ms. Meastas, a friend of the plaintiff, testified that she was outside the men’s room when the accident allegedly occurred and she attempted to corroborate portions of the plaintiff’s testimony. This witness, however, was not credible, in part, due to impeachment with her extensive criminal record. Although the door to the men’s room probably did stick to some degree, the court did not find the plaintiff’s testimony that he fell credible. Five to ten minutes prior to the plaintiff’s claimed accident, the Burger King manager on duty had inspected the men’s room as part of his usual duties. The mens room was found clean and dry at that time. The men’s room is in fact quite small, and it would be extremely difficult to slip and fall on the floor, particularly when a person is holding on to the door handle. There is no dispute that the plaintiff does have a problem with his lower back but it is evident from the evidence that he had that problem for many years prior to the alleged accident at the Burger King restaurant.
After the alleged accident, the plaintiff sought treatment from Dr. Michael Biber a neurologist. Dr. Biber gave the plaintiff a detailed eight page questionnaire to fill out concerning his prior medical history. The plaintiff failed to disclose to Dr. Biber any information relating to any of his prior back problems. The court did not find credible the plaintiff’s explanation that he didn’t tell his physician about his prior medical history because he would be embarrassed if his parents in Lebanon learned from Dr. Biber that he was driving a cab for a living. Although the plaintiff did have a herniated disc in his lower back, diagnosed as early as 1986, he did not disclose that to Dr. Biber. The court infers that he did not disclose his medical history to Dr. Biber because he was hoping to prove that the herniated disc was caused by the alleged slip and fall at Burger King. Specifically, the plaintiff failed to disclose to Dr. Biber the following history of six previous alleged accidents in a six year period resulting in injuries to either his neck or back:
1. 1986 — Plaintiff claims he injured back after slipping on a wet floor while working as a waiter in California. He received workers compensation benefits for that alleged injury.
2. September 1987 — Plaintiff claims he fell down stairs and twisted his lower back while working for Domino’s Pizza in Massachusetts. He received worker’s compensation and a lump settlement of approximately $4,000.
3. June 1988 — Plaintiff claims he received a back sprain from a motor vehicle accident. He later settled the claim arising out of that alleged injury.
4. March 1989 — Plaintiff claims he herniated his back when a U-Haul truck hit him. He received over $17,000 in insurance settlements.
5. December 1990 — Plaintiff was treated for a sprained lower back after he claims he fell in an uncovered manhole. He received an $8,000 settlement.
6. 1991 — Plaintiff claims he received injuries after he claims he was jumped by a man while driving is cab through the airport tunnel. There was no evidence that he received any money from this incident.
The plaintiff was aware that medical records are organized by either name or social security number and he gave different names and social security numbers in order to conceal his past medical and accident history. In his claim against Burger King, he used the social security number: 453-65-2470. In his other claims he used the social security number: 450-75-0116. In addition, the plaintiff used various name spellings in his accident claims.[1] The plaintiff also used two different birth dates when applying for medical treatment.[2]
In his answers to interrogatories in this case and sworn deposition testimony, the plaintiff denied any accidents prior to 1988 and had described very insignificant injuries in two minor auto accidents after 1988. In fact, the plaintiff had been involved in prior alleged accidents injuring his lower back which he claimed rendered him unable to work for lengthy periods of time. Those prior alleged accidents generated claims and settlements. By the time of trial, the defendant’s attorney had learned of six prior accident claims and one accident claim subsequent to the Burger King claim. For this reason, the plaintiff had no choice but to concede on direct examination that he had been involved in those other accident claims. On cross-examination the plaintiff was then confronted with his deposition testimony in which he failed to disclose most of the other accidents. In response, the plaintiff testified that he did not tell the defendant’s attorney about those other accidents even though he had been asked about them because he knew that the defendant’s insurance company had all the information about his prior accidents and, therefore, there was no need to tell the attorney what he already knew. The court did not find this explanation credible.[3] The court infers that the plaintiff did not disclose his prior medical and accident history because he was hoping to prove that his back injuries arose from the alleged Burger King accident.
The evidence at trial also establishes that the plaintiff lied about the income he lost as a result of the alleged Burger King accident. The plaintiff testified he was out of work for three months after the Burger King accident and then could only work part time, earning $375 per week. However, in the case arising out of an August 1993 auto accident claim, he answered interrogatories stating that between January 1993 and the accident in August 1993, he had been working full time driving a taxi earning between $1,200 and $1,400 a week.
In conclusion, this case is one of the most blatant cases of fraud I have ever heard.[4] In all probability the Burger King accident never took place. Beyond any doubt the injuries the plaintiff claimed were caused by that accident had existed for many years before the alleged Burger King accident. The jury shared this view. Shortly after receiving the case, the jury sent the court a note asking whether it could award costs against the plaintiff. This was the first time in nineteen years of presiding over jury trials where a jury has asked me such a question.
RULINGS OF LAW
General Laws chapter 231, § 6F, allows a party in a civil action to recover its “reasonable counsel fees and other costs and expenses incurred” where “all or substantially all the claims, defenses . . . whether of a factual, legal or mixed nature, made by any party . . . were wholly insubstantial, frivolous and not advanced in good faith.” See Data Comm Interface, Inc. v. Computer World, Inc., 396 Mass. 760, 781 (1986). In this case, where plaintiff filed a false accident claim and then furnished false information about his medical condition and earnings in order to buttress his damage claim, his claim was “wholly insubstantial, frivolous and not advanced in good faith within the meaning of G.L.c. 231, § 6F. See Katz v. Savitsky, 10 Mass. App. Ct. 792, 797 (1980). The defendant is entitled to a reasonable award of attorney’s fees and costs. The court has considered the affidavit and itemized bills, records and receipts indicating out of pocket expenses and fees totaling $45,393.91. The reasonableness of these fees and costs are not contested and the court finds them reasonable.
Accordingly, it is hereby ordered that:
1. Judgment enter in favor of the defendant on the plaintiff’s negligence claim.
2. Judgment enter in favor of the defendant against the plaintiff pursuant to G.L.c. 231, § 6F in the sum of $45,393.91.
Patrick J. King Justice of the Superior Court
DATED: December 13, 1995