Colon v. Flomeh, 0100889

Decision Date30 March 2004
Docket Number0100889
Citation2004 MBAR 219
PartiesJuana G. Colon v. Livingston M. Flomeh et al.[1]
CourtMassachusetts Superior Court
As-is Docket Number: 01-00889

Venue Worcester

File Date: April 27, 2004

Judge (with first initial, no space for Sullivan, Dorsey, and Walsh):McCann, J.


On April 28, 1995, the plaintiff, Juana G. Colon, and defendant Livingston M. Flomeh, were involved in an automobile collision. The plaintiff filed a claim in the Fitchburg District Court against the defendants alleging negligence and seeking damages for medical injuries and loss of work. The district court judge found both parties fifty percent negligent and awarded the plaintiff damages. The defendant transferred this case to the Superior Court for jury trail pursuant to G.L.c. 231, §102C. Presently before this court is the defendants' motion for involuntary dismissal. For the following reasons, the defendants' motion is DENIED,


The defendants seek dismissal pursuant to Massachusetts Rules of Civil Procedure, Rule 41(b)(2), arguing that "on the close of the plaintiff's evidence and upon the facts, the plaintiff is collaterally estopped from relitigating the issue of the plaintiff's negligence." On motion of a defendant, pursuant to Rule 41(b)(2), "the court may, in its discretions dismiss any action for failure of the plaintiff to prosecute or to comply with.á.á. [the Massachusetts Rules of Civil Procedure] or any order of the court." Mass.Civ.P. 41(b)(2), Further, after the plaintiff has completed the presentation of his evidence "in an action tried by the court without a jury," the defendant may move for dismissal, "it upon the facts and the law, the plaintiff has shown no right to relief." Mass.R.Civ.P. 41(b)(2) & Reporters Notes (emphasis added), As the plaintiff has not failed to prosecute or comply with a court order or procedural rule and as this action is scheduled for jury trial, the defendants' motion is improper. In the interest of judicial economy, however, this court will briefly discuss the applicability of the doctrine of collateral estoppel.

The defendants seek to bar the plaintiffs from litigating the issue of negligence on the ground that the plaintiff's greater fault was previously established by the fact that she received a surcharge on her insurance, which was upheld on appeal to the "Merit Ratings Board." However, the same issue was subsequently heard by a district court judge who found the plaintiff and defendant equally at fault awarding damages to the plaintiff.[2] "A nonparty may use collateral estoppel defensively against a party to the original action who had a full and fair opportunity to litigate the issues in question." Martin v. Ring, 401 Mass. 59, 61 (1987). Significantly, this doctrine "is premised upon an underlying confidence that the result achieved in the initial litigation was substantially correct." Standefer v. United States, 447 U.S. 19, 23 n.18 (1980). Where, as here, two inconsistent determinations have been made on the same issue, application of the estoppel doctrine would be inappropriate. See Standefer, 447 U.S. at 23 n.17; Joslyn Manufacturing Co. v. Liberty Mutual Insurance Co., 939 F.Supp. 603 (ND. Ill. 1996) ("The doctrine of collateral estoppel does not apply when the determination relied on as preclusive is...

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