Although in the case of a fraudulent misrepresentation, comparative negligence is inapplicable, seeField v. Mans, 516 U.S. at 72; Flood v. Southland Corp., 33 Mass. App. Ct. 287, 296 (1992) ("[T]he comparative negligence statute, G.L.c. 231, § 85, does not allow for the comparison of negligent and intentional conduct."), the application of comparative negligence to negligent misrepresentations is somewhat unsettled in Massachusetts. SeeDhanda v. Tri M. Ltd., 24 Mass. App. Ct. 700, 703-03 (1987). Recent cases, however, apply principles of comparative negligence, and this Court predicts the Supreme Judicial Court would apply them to the case at hand.
Moreover, cases have suggested that pecuniary loss is not injury or damage to property. See Rockwell v. Furness, 215 Mass. 557, 558 (1913); Dhanda v. Tri M, Ltd., 24 Mass. App. Ct. 700, 703 (1987) ("[t]hat language [in § 85] suggests physical harm, rather than economic loss from negligent misrepresentation"). General Laws c. 231, § 85, as relevant here, states: "Contributory negligence shall not bar recovery in any action by any person or legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not greater than the total amount of negligence attributable to the person or persons against whom recovery is sought, but any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made" (emphasis supplied).
Further, many of the legal issues pertaining to accountant liability are not yet resolved in Massachusetts. Some of the unresolved issues include whether auditors' representations are best characterized as opinions or as statements of fact; whether privity and reliance standards specific to auditors should be required by Massachusetts courts as they have been by New York and California courts; see Bily v. Arthur Young Co., 3 Cal.4th 370, 381 (1992); Security Pac. Business Credit, Inc. v. Peat Marwick Main Co., 79 N.Y.2d 695, 703 (1992); whether compliance with generally accepted auditing standards satisfies an accountant's duty of care; and whether contributory or comparative negligence defenses are applicable, see Dhanda v. Tri M, Ltd., 24 Mass. App. Ct. 700, 703-704 (1987). These requirements do not differ greatly from the receiver's own view.
Although we have found no California or Texas decision interpreting this specific phrase, our conclusion is in accord with other jurisdictions that have considered the issue. (See Northwest General Hosp. v. Yee (Wis. 1983) 339 N.W.2d 583, 586 ["Since the words 'injury' and 'death' are used together, we conclude that the legislature intended injury to refer to those injuries involving actual bodily harm, and not simply to any legally recognized injury"]; Dhanda v. Tri M, Ltd. (Mass.App.Ct. 1987) 512 N.E.2d 1141, 1143 [statutory "language" permitting "damages" for "'negligence resulting in death or in injury to person' . . . suggests physical harm, rather than economic loss"].) Second, interpreting the term "injury" to encompass every conceivable form of legal injury, as opposed to merely bodily injury, would effectively render meaningless other portions of the indemnity provision.
Tzitzon Realty Co. v. Mustonen, 352 Mass. 648, 654, 227 N.E.2d 493 (1967). Dhanda v. Tri M, Ltd., 24 Mass.App.Ct. 700, 706–707, 512 N.E.2d 1141 (1987). Those circumstances exist here.
This relationship of implied mutual agency arises if the spouses participate in a business matter together and have knowledge of one another's conduct even though one spouse may perform a relatively passive role.Tzitzon Realty Co. v. Mustonen, 352 Mass. 648, 654 (1967). Dhanda v. Tri M, Ltd., 24 Mass.App.Ct. 700, 706-707 (1987). Those circumstances exist here.
Indeed, the judge specifically found, based on Trudi's own testimony, that she never asked the trustees to start talking with her directly because she was "not unhappy" with having Murray act as intermediary with the trustees. Compare Fennell v. Wyzik, 12 Mass. App. Ct. 909, 910 (1981); Dhanda v. Tri M, Ltd., 24 Mass. App. Ct. 700, 706-707 (1987); Philip Morris, Inc. v. Litel, 30 Mass. App. Ct. 936, 937-938 (1991). E.g., "Nothing came to me directly"; "I have never received any information from the trustees, personally, at all"; "My trustees never told me anything."
In such a case, the plaintiff's untimely appeal must be dismissed. See generally, Kellerman v. Kellerman, 390 Mass. 1007, 1008 (1984); Dhanda v. Tri M. Ltd., 24 Mass. App. Ct. 700, 707 (1987). The defendant did not move to dismiss the plaintiff's late notice of appeal, but instead proceeded to file objections to the plaintiff's subsequent expedited appeal. The defendant's objections were themselves filed after the time prescribed by Rule 8A(b). If the plaintiff mistakenly believed that the defendant's untimely objections automatically terminated his expedited appeal, he should have then proceeded under either Rule 8B or 8C within thirty days of the defendant's objections.
" Giacobbe v. FirstCoolidge Corp., 367 Mass. 309, 315-316 (1975). The first "escape hatch" for the party who has run afoul of the Dist./Mun. Cts. R. A. D. A., Rule 4(a) ten day time mandate for filing a notice of appeal is Dist./Mun. Cts. R. A. D. A, Rule 4 (c). Dhanda v. Tri M Ltd., 24 Mass. App. Ct. 700, 707 (1987). Rule 4(c) authorizes the trial court to extend the time for filing a notice of appeal for an additional ten days. See, e.g., Commonwealth v. Correira, 5 Mass. App. Ct. 772, 773 (1977).