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The Personal Injury Plaintiff as Consumer

A weapon in Massachusetts personal injury cases is our Consumer Protection Statute, 93A. Passed in the late 1970’s, this is a tool that may have originally been designed to aid the consumer in his/her fight against the retailer for unfair and deceptive acts or practices in commerce. Over the years, it has also been used against insurance companies for unfair claims handling practices. That is through resort to another statute. 176D, which is used in concert with 93A.

93A affords the aggrieved party an opportunity to recover treble damage and attorneys fees. It certainly has great potential and will cause the offending party to take notice once the 93A demand letter has been sent. It requires a response within 30 days so before you know it the battle will have been joined.

A lesser known use of 93A comes about from the Attorney General regulations. Pursuant to section 2(c) of 93A, the Attorney General is empowered to issue regulations. Some regulations are made applicable to nursing homes, to landlords, still others to private employment agencies and so forth.

To me, one of the most intriguing uses of 93A comes from Attorney 940 CMR 3.08(2): “It shall be an unfair and deceptive act or practice to fail to perform or fulfill any promises or obligations arising under a warranty.” This opens the possibility in products liability cases where warranty is always pleaded. But it is also useful in the landlord-tenant context. The landlord, by our law, warrants the unit is habitable and meets all codes, including Sanitary and Building codes. If that isn’t met and that violation was a proximate cause of the tenant’s injury, you have a 93A claim. Yes, consumers of all types have rights too.

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