Rhode Island Civil Law Developments 2013-2014

689103.v1
RECENT DEVELOPMENTS IN RHODE ISLAND LAW:
CIVIL
Nicole J. Benjamin1
Adler Pollock & Sheehan P.C.
One Citizens Plaza, 8th Floor
Providence, RI 02903
401-427-6212
nbenjamin@apslaw.com
www.RIAppeals.com
Coverage includes opinions and reported memorandum orders of significance issued by the
Rhode Island Supreme Court during the 2013-2014 term and published in the
Atlantic Third Reporter from 79 A.3d 846 through 94 A.3d 467.
1 A substantial number of the annotations that follow are derived, in whole or in part, from
entries on my blog, The Fast Five on Rhode Island Appellate Practice (www.RIAppeals.com).
Some of the annotations that follow quote directly from relevant passages of the Court’s
decision. Pinpoint citations have not been provided. As with any annotations, the Court’s
opinions should be consulted, quoted and cited, not these materials. A special thanks is extended
to Lauren Jones, Esq. whose materials from past years provided the framework within which
these annotations are written.

689103.v1
TABLE OF CONTENTS
Page
RECENT DECISIONS
I. Admiralty ................................................................................................................. 1
A. Jurisdiction......................................................................................................... 2
B. Maintenance and Cure ....................................................................................... 2
C. The Jones Act..................................................................................................... 4
D. Warranty of Seaworthiness ................................................................................ 4
E. Federal Maritime Prejudgment Interest ............................................................. 5
II. Appeal and Error...................................................................................................... 6
A. Amicus Curiae ................................................................................................... 6
B. Bonds ................................................................................................................. 6
C. Briefs.................................................................................................................. 7
1. Default for Failure to File ............................................................................ 7
2. Failure to Adequately Brief ......................................................................... 7
3. Writing ......................................................................................................... 7
D. Certiorari ............................................................................................................ 8
1. Grant of Certiorari........................................................................................ 8
2. Standard of Review...................................................................................... 8
E. Cross-Appeals .................................................................................................... 8
F. Final Judgment Rule .......................................................................................... 8
1. Appeal from Grant of Summary Judgment in Favor of One Defendant
Without Rule 54(b) Judgment...................................................................... 8
2. Appeal from Interlocutory Order ................................................................. 9
3. Appeal from Denial of Summary Judgment ................................................ 10
4. Appeal from Denial of Motion for Leave to Amend ................................... 10
5. The McAuslan Doctrine............................................................................... 11
6. The McAuslan Doctrine – Doctrine Applied............................................... 12
7. Issues Concerning Finality Raised at Prebriefing Conference .................... 13
8. Standard of Review for Interlocutory Orders .............................................. 14
G. Motion to Dismiss Appeal ................................................................................. 14
H. Notice of Appeal ................................................................................................ 14
I. Perfecting Appeal............................................................................................... 15
1. Transcripts.................................................................................................... 15
2. Sanctions...................................................................................................... 17
J. Pre-Briefing Conference .................................................................................... 17
1. Issues Raised During Pre-briefing Conference............................................ 17
2. Waiver.......................................................................................................... 17
K. Premature Appeal............................................................................................... 18
L. Raise or Waive Rule .......................................................................................... 18
1. Jury Instructions........................................................................................... 19
2. Motions in Limine........................................................................................ 19
M. Show Cause Calendar ........................................................................................ 20

Recent Developments in the Law 2014 - Civil
N. Standards of Review.......................................................................................... 21
1. Arbitration.................................................................................................... 21
2. Certiorari ...................................................................................................... 23
3. Interlocutory Orders..................................................................................... 23
4. Motion to Strike ........................................................................................... 23
5. Motion for New Trial................................................................................... 24
6. Motion for New Trial – Damages ............................................................... 25
7. Motion for New trial – The Appellate Rule................................................. 25
8. Sanctions...................................................................................................... 25
O. Timeliness of Appeal ......................................................................................... 26
P. Writing and Citations......................................................................................... 29
III. Arbitration................................................................................................................ 29
A. Standard of Review............................................................................................ 29
IV. Attorneys.................................................................................................................. 29
A. Character and Fitness......................................................................................... 29
B. Sanctions............................................................................................................ 30
V. Causes of Action/Defenses ...................................................................................... 31
A. Class Actions ..................................................................................................... 31
1. Class Certification........................................................................................ 31
2. Pre-Certification Motion for Summary Judgment ....................................... 32
B. Commercial Law................................................................................................ 32
1. Usury............................................................................................................ 32
C. Contracts ............................................................................................................ 35
D. Declaratory Judgment Act ................................................................................. 35
E. Deceptive Trade Practices Act........................................................................... 37
F. Employment Law............................................................................................... 37
1. Employment Discrimination........................................................................ 37
2. Independent Contractors .............................................................................. 39
3. Whistleblowers’ Protection Act................................................................... 40
G. Injunctions.......................................................................................................... 41
H. Insurance ............................................................................................................ 42
I. Intentional Interference...................................................................................... 43
J. Massachusetts Chapter 93A............................................................................... 44
K. Medical Malpractice .......................................................................................... 44
1. Statute of Limitations................................................................................... 44
L. Negligence ......................................................................................................... 45
1. Automobile Accidents ................................................................................. 45
a. Public-Safety Officer’s Rule.................................................................. 45
b. Motorist Who Crosses Into Oncoming Lane of Traffic......................... 46
c. Rental Cars............................................................................................. 46
2. Dog Bites ..................................................................................................... 47
3. Independent Medical Records Review ........................................................ 48
4. Premises Liability ....................................................................................... 51
ii

a. Attractive Nuisance Doctrine................................................................. 51
b. Dangerous Conditions Outside the Property.......................................... 54
i. Sidewalks ......................................................................................... 56
c. The Storm Rule...................................................................................... 57
M. Quasi Contract (Quantum Meruit and Unjust Enrichment)............................... 59
VI. Civil Procedure ........................................................................................................ 61
A. Experts ............................................................................................................... 61
B. Judgment on the Pleadings................................................................................. 62
1. Conversion to Motion for Summary Judgment ........................................... 62
C. Judicial Estoppel ................................................................................................ 63
D. Judicial Restraint................................................................................................ 64
E. Jurisdiction......................................................................................................... 64
1. Tax Matters .................................................................................................. 64
F. Prejudgment Interest .......................................................................................... 64
G. Punitive Damages .............................................................................................. 65
H. Res Judicata ....................................................................................................... 66
I. Scope of Remand ............................................................................................... 67
J. Standing ............................................................................................................. 68
K. Stare Decisis....................................................................................................... 69
L. Summary Judgment ........................................................................................... 70
1. Opposition Must Be Supported by Competent Evidence ............................ 70
2. Unauthenticated Documents ........................................................................ 71
3. Reply Letter Doctrine .................................................................................. 72
4. Duty to Care May Be Resolved on Summary Judgment ............................. 72
M. Writ of Mandamus ............................................................................................. 72
VII. Constitutional Law................................................................................................... 74
VIII. Real Estate ............................................................................................................... 74
A. Boundary Disputes............................................................................................. 74
1. The Doctrine of Acquiescence..................................................................... 74
B. Easements .......................................................................................................... 75
1. Prescriptive Easements ................................................................................ 75
2. Enlargement of Express Easements by Prescription.................................... 77
3. Hostility........................................................................................................ 77
C. Trespass.............................................................................................................. 79
XI. Statutes/Statutory Construction ........................................................................................... 80
A. Construction of Rules of Civil Procedure.................................................... 80
ELECTRONIC FILING
I. Electronic filing in civil cases in the Superior Court........................................................... 80
iii

689103.v1
RECENT DECISIONS
I. Admiralty
King v. Huntress, 94 A.3d 467 (R.I. 2014).
It comes as a surprise that the Ocean State with its 384 miles of tidal shoreline has a
dearth of admiralty jurisprudence. Nevertheless, a federal maritime action that came before the
Rhode Island Supreme Court this term left the high court wading through salty waters as it
analyzed claims for maintenance and cure, negligence under the federal Jones Act and breach of
the warranty of seaworthiness. The decision, which marks the rare occasion when the Supreme
Court is called upon to address maritime claims, is noteworthy not only for its holdings but also
its extensive articulation and interpretation of three bodies of maritime law.
In its wake, the following points are clear:
(1) Rhode Island state courts have jurisdiction over federal maritime actions pursuant to
the “savings to suitors” clause set forth in 28 U.S.C. § 1331(1);
(2) unearned wages are available on a maintenance claim only from the time seaman
becomes unfit for his or her duties until the balance of the voyage, unless the seaman
has a employment contract providing him or her with the right to employment for a
fixed period of time;
(3) The Jones Act creates a statutory negligence cause of action which enables a seaman
injured during the course of his or her employment to elect to bring a civil action at
law, with the right of trial by jury, against the employer;
(4) Proof of negligence is not necessary to prevail on a claim for breach of the warranty
of seaworthiness but the breach must be the proximate cause of the injuries sustained;
and

(5) in a federal maritime action pending in state court, prejudgment interest must be
applied in accordance with federal maritime law.
In King, the plaintiff, a deckhand on a commercial fishing vessel, fell from a ladder while
painting an area on the ceiling of the ship’s fish hold deck. As a result of the fall, the plaintiff
sustained a large rotator cuff tear. The plaintiff brought suit against the vessel’s owner and
asserted claims for maintenance and cure, negligence under the federal Jones Act and breach of
the warranty of seaworthiness. After a seven day trial, the jury returned a verdict in favor of the
plaintiff for $257,500 on plaintiff’s maintenance and cure claim and found in favor of the
defendant on plaintiff’s Jones Act and breach of the warranty of seaworthiness claims. After the
trial court denied the defendant’s motion for a new trial on the maintenance and cure claim and
granted the plaintiff’s motion for a new trial on plaintiff’s Jones Act and breach of the warranty
of seaworthiness claims, both parties appealed.
2
A. Jurisdiction
“Although the law of the sea is essential federal in nature, the Rhode Island state courts
have jurisdiction over . . . federal maritime action[s] pursuant to the ‘savings to suitors’ clause
set forth in 28 U.S.C. § 1331(1).”
B. Maintenance and Cure
As the United States Court of Appeals for the First Circuit has recognized, “‘[f]rom time
immemorial, the law of the sea has required shipowners to ensure the maintenance and cure of
seamen who fall ill or become injured while in service of the ship.’” (quoting Ferrara v. A. & V.
Fishing, Inc., 99 F.3d 449, 454 (1st Cir. 1996)). Maintenance and cure, which are akin to

workers’ compensation benefits, are provided to a seaman, without regard to the negligence of
the employer or the unseaworthiness of the ship.
Maintenance and cure are curative remedies. Maintenance is the “provision of, or
payment for, food and lodging,” while cure is the payment of “any necessary health-care
expenses . . . incurred during the period of recovery from an injury or malady.” Unearned wages
may also be recovered on a maintenance and cure claim.2
A seaman will only forfeit his entitlement to maintenance and cure if he engages in gross
misconduct. Seamen have a right to receive maintenance and cure until such time as he reaches
“maximum medical recovery.” “[M]aximum medical recover occurs when the seaman is ‘so far
cured as possible’ – meaning that the seaman is either fit to work or his or her ‘condition has
stabilized and further progress ended short of a full recovery.’”
In King, the trial justice instructed the jury that if the jury awarded the plaintiff
maintenance and cure, it should also award the plaintiff unearned wages when the plaintiff was
serving the ship. The defendant claimed the instruction was in error because the trial justice did
not explain that the plaintiff was serving the ship only if he was on a voyage or had an
employment contract for a specified duration. On appeal, the Supreme Court agreed.
After a review of federal case law, the Supreme Court held that unearned wages are
available on a maintenance claim only from the time seaman becomes unfit for his or her duties
until the balance of the voyage, unless the seaman has a employment contract providing him or
her with the right to employment for a fixed period of time.
2 Unearned wages recoverable on a maintenance and cure claim are markedly different from lost
wages that are recoverable under a Jones Act or breach of the duty of seaworthiness claim.
Indeed, “[w]hile unearned wages are awardable only to the end of the voyage on which the
seaman is injured or for the duration of his or her employment contract (if there is one), future
lost wages could conceivably be recovered under a negligence or breach of the duty of
seaworthiness claim for the duration of a seaman’s work life expectancy.”
3

The trial justice’s jury instructions, which did not make that limitation clear, where
therefore erroneous. Consequently, the Supreme Court remanded the case to the trial court for a
new trial on the plaintiff’s claim for maintenance and cure.
4
C. The Jones Act
The Jones Act creates a statutory negligence cause of action which enables a seaman
injured during the course of his or her employment to “elect to bring a civil action at law, with
the right of trial by jury, against the employer.” (quoting 46 U.S.C. § 30104(a)). To prevail on a
negligence claim under the Jones Act, the injured seaman must demonstrate that the employer
failed to exercise reasonable care, which contributed even in the slightest way to his or her
injury. Under the Jones Act, the employer’s negligence does not need to render the ship
unseaworthy.
D. Warranty of Seaworthiness
The United States Supreme Court has “‘undeviatingly reflected an understanding that
the owner’s duty to furnish a seaworthy ship is absolute and completely independent of his duty
under the Jones Act to exercise reasonable care.’” (quoting Mitchell v. Trawler Racer, Inc., 362
U.S. 539, 549 (1960)). Unlike a claim under the Jones Act, claims for breach of the warranty of
seaworthiness do not involve an analysis of negligence. See Mitchell, 362 U.S. at 549
(recognizing that the question of seaworthiness of a vessel has been “complete[ly] divorce[d] . . .
from the concepts of negligence.”). Nevertheless, as the United States Supreme Court has
recognized:
[I]t is a duty only to furnish a vessel and appurtenances reasonably
fit for their intended use. The standard is not perfection, but

reasonable fitness; not a ship that will weather every conceivable
storm or withstand every imaginable peril of the sea, but a vessel
reasonably suitable for her intended service.
Id. at 550. Thus, a seaman must prove that the unseaworthy condition is the proximate cause of
his or her injuries.
E. Federal Maritime Prejudgment Interest
5
In King, the trial justice applied Rhode Island’s prejudgment interest statute, R.I. Gen.
Laws § 9-21-10(a), which requires that the clerk of the court add to the damages interest at the
rate of 12 percent per year from the date the cause of action accrued. The defendant argued that
the trial court erred in doing so because prejudgment interest is substantive in nature, therefore, it
must be awarded in accordance with federal maritime law. The Supreme Court agreed.
Unlike Rhode Island’s prejudgment interest statute, under federal maritime law, the
decision to award prejudgment interest is left to the discretion of the jury. Thus, the law
applicable to an award of such interest can have a significant impact on the defendant’s liability.
In treading these new waters, the Supreme Court began by recognizing that the “‘savings
to suitors clause,’ which gives state court jurisdiction (albeit not exclusive jurisdiction) over a
federal maritime claim, ‘allows state courts to entertain in personam maritime causes of action,
but in such cases the extent to which state law may be used to remedy maritime injuries is
constrained by a so-called reverse-Erie doctrine which requires that the substantive remedies
afforded by the States conform to governing federal maritime standards.’” (quoting Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207, 222-23 (1986)). Thus, issues that are substantive in
nature will be governed by federal maritime law.

In evaluating whether prejudgment interest is substantive in nature, the Court looked to
non-maritime decisions, including its decision in L.A. Ray Realty v. Town Council of
Cumberland, 698 A.2d 202, 213-14 (R.I. 1997), in which it recognized that when application of
the state’s law would result in a different outcome, the issue is likely substantive in nature.
Having already observed that Rhode Island’s prejudgment interest statute differed dramatically
from federal maritime law, which leaves the decision to award prejudgment interest to the
discretion of the jury, the Court concluded that prejudgment interest is necessarily substantive in
nature. Consequently, the trial justice erred in applying Rhode Island’s prejudgment interest
statute.
6
II. Appeal and Error
A. Amicus Curiae
Bucci v. Hurd Buick Pontiac GMC Truck, LLC, 85 A.3d 1160 (R.I. 2014).
In Bucci, the Supreme Court refused to consider an argument made only by amicus
curiae. In doing so, the Supreme Court made clear that it “will not consider arguments that have
made by an amicus curiae but that were not advanced by a party.” (citing Lane v. First Nat’l
Bank of Boston, 871 F.2d 166, 175 (1st Cir. 1989) (“We know of no authority which allows an
amicus to interject into a case issues which the litigants, whatever their reasons, might be, have
chosen to ignore.”).
B. Bonds
Rose v. Cariello, 85 A.3d 618 (R.I. 2014).
In Rose, after the Superior Court granted the plaintiff’s motion for additur or,
alternatively, a new trial on damages in a personal injury case, the defendant filed a motion in the

Supreme Court to stay the judgment. The Supreme Court granted the stay but conditioned it upon
the filing of a supersedeas bond in the Superior Court.
Banville v. Brennan, 84 A.3d 421 (R.I. 2014).
In Banville, the Rhode Island Supreme Court granted the defendants’ motion to stay an
injunction requiring them to remove a building from the plaintiff’s land during the pendency of
the defendants’ appeal on the condition that the defendants post a $50,000 bond.
7
C. Briefs
1. Default for Failure to File
National Refrigeration, Inc. v. Capital Properties, Inc., 88 A.3d 1150 (R.I. 2014).
In National Refrigeration, Inc., a defendant/appellee was defaulted for failure to file a
brief on appeal.
2. Failure to Adequately Brief
In Bucci, the Supreme Court declined to review a claim made by the appellant on appeal
because, apart from identifying the issue, the appellant did not develop the argument. The
Supreme Court reminded practitioners that it “will consider an issue to be waived when a party
‘[s]imply stat[es] an issue for appellate review, without a meaningful discussion thereof or legal
briefing of the issues.’” (quoting State v. Chase, 9 A.3d 1248, 1256 (R.I. 2010)).
3. Writing
See Writing and Citations.

8
D. Certiorari
1. Grant of Certiorari
Woodruff v. Gitlow, 91 A.3d 805 (R.I. 2014).
In a rare case, the Rhode Island Supreme Court granted a petition for writ of certiorari to
review the trial justice’s denial of a defendant’s motion for summary judgment. The Court did
not provide any rationale for its decision to grant the defendant’s petition for writ of certiorari,
however, the case presented two discrete issues of first impression, which likely factored into the
Court’s decision to grant the petition for writ of certiorari.
2. Standard of Review
See Standards of Review, Certiorari
E. Cross-Appeals
Miller v. Metropolitan Property and Casualty Ins. Co., 88 A.3d 1157 (R.I. 2014).
A party that has prevailed in the trial court must file a cross-appeal if he or she intends to
ask the Supreme Court to overturn one of the trial court’s rulings. (citing David A. Wollin,
Rhode Island Appellate Procedure § 4:5, 4-11 (West 2004)). However, “‘[a] cross appeal is not
necessary when the [party that has prevailed in the trial court] simply wants to defend the
judgment obtained below, even if it was on grounds different from those on which the judgment
was based.’” (quoting Wollin § 4:5, 4-11).
F. Final Judgment Rule
1. Appeal from Grant of Summary Judgment in Favor of One Defendant
Without Rule 54(b) Judgment
Maciel v. Davey, 76 A.3d 149 (R.I. 2014).
In Maciel, the Rhode Island Supreme Court made clear that an appeal from a grant of
summary judgment in favor of only one of multiple defendants is interlocutory in nature unless

judgment has entered in favor of that defendant pursuant to Superior Court Rule of Civil
Procedure 54(b). In Maciel, the Superior Court granted one defendant’s motion for summary
judgment but denied that defendant’s motion for entry of judgment pursuant to Rule 54(b).
Although final judgment never entered, the plaintiff filed an appeal.
After a Rule 12A conference, the Supreme Court dismissed plaintiff’s appeal. In doing
so, the Court noted that “[a]n appeal from an order that grants a motion for summary judgment is
considered interlocutory and not final for purposes of appeal.” (citing Furtado, 839 A.2d at
536).
While the Court “may hear an appeal from an interlocutory order if public policy
considerations warrant or if immediate action is necessary in order to avoid imminent and
irreparable harm,” none of those exceptions were implicated in Maciel. Consequently, the Court
dismissed the plaintiff’s appeal.
2. Appeal from Interlocutory Order
9
Baker v. Mitchell, 79 A.3d 844 (R.I. 2013).
In Baker, the Supreme Court denied and dismissed the defendant’s appeal and remanded
the record to the Superior Court after concluding that the final judgment rule was not satisfied.
In the underlying partition action, the Superior Court entered an order continuing a hearing on a
motion to sell the property at issue and, in doing so, stated that no further continuances would be
allowed without the potential for sanctions. One of the defendants appealed from that order,
maintaining that the conditions set forth in the Superior Court’s order were unwarranted and
prejudicial.
On appeal, the Supreme Court held that the defendant’s appeal was interlocutory and,
therefore, not reviewable at this time. In doing so, the Court emphasized that it “has steadfastly

maintained that, with very few exceptions, ‘it will entertain a direct appeal only from a final
judgment,’” that completely terminates the litigation between the parties. (quoting Martino v.
Ronci, 667 A.2d 287, 288 (R.I. 1995)).
While there is an exception for orders of the sale of real or personal property, such
exception was inapplicable because the Superior Court’s order merely continued the date for the
sale of real property and, consequently, an order directing that the property be sold had not
entered. Therefore, defendant’s interlocutory appeal was improper.
3. Appeal from Denial of Summary Judgment
In National Refrigeration, the Supreme Court held that the plaintiff’s appeal from the
denial of its motion for summary judgment was not properly before the Court. In so holding, the
Supreme Court reminded that “[b]ecause an order denying a motion for summary judgment is an
interlocutory determination and is not entitled to an appeal of right, [the Court does] not
generally review such a denial.” (quoting McKinnon v. Rhode Island Hospital Trust Nat’l Bank,
713 A.2d 245, 247 (R.I. 1998)). The plaintiff argued that because the denial of the motion for
summary judgment was coupled with a cross-appeal, the appeal of the denial was properly
before the Court. The Court disagreed, concluding that the denial of the plaintiff’s motion for
summary judgment was not a final judgment and, therefore, it was not properly before the Court.
4. Appeal from Denial of Motion for Leave to Amend
Cayer v. Cox Rhode Island Telecom, LLC, 85 A.3d 1140 (R.I. 2014).
In Cayer, after the trial court granted summary judgment in favor of one of the
defendants, it granted that defendant’s motion for a Rule 54(b) judgment. The plaintiff, in turn,
10

plaintiff moved for leave to amend her complaint to include a claim against another party. The
trial court denied that motion and the plaintiff appealed.
On appeal, the Supreme Court held that the plaintiff’s appeal was interlocutory and,
therefore, not properly before the Court. In so holding, the Court recognized that generally,
interlocutory orders are not subject to review unless (1) “the order or decree falls within one of
the exceptions set forth in G.L. 1956 § 9-24-7” or (2) the “order [falls] within the ambit of [the
McAuslan Doctrine, a] judicially created rule that permits review of an interlocutory order that
has such an element of finality as to require immediate review by [the Supreme Court] to avoid
possible injurious consequences.” For purposes of the McAuslan Doctrine, consequences are
injurious “when their occurrence is imminent and the damage they will work irreparable.”
Against this backdrop, the Supreme Court concluded that the denial of the plaintiff’s
motion for leave to amend did not fall within either exception and, accordingly, the Court
declined to entertain it.
11
5. The McAuslan Doctrine
Coit v. Tillinghast, 91 A.3d 838 (R.I. 2014).
Interlocutory orders “‘are those that are provisional or temporary, or that decide some
immediate point or matter but are not a final decision on the whole matter.’” (quoting Simpson
v. Vose, 702 A.2d 1176, 1177 (R.I. 1997)). It has long been settled that interlocutory orders,
generally are not subject to immediate appellate review unless the order or decree falls within
one of the statutory exceptions to the final judgment rule. (citing R.I. Gen. Laws § 9-24-7)).
In Coit, the Rhode Island Supreme Court addressed a second, long established judicial
exception to the general rule that interlocutory orders are not subject to appellate review. First
recognized by the Supreme Court in McAuslan v. McAuslan, 83 A. 837, 841 (R.I. 1912), the

McAuslan Doctrine provides that an interlocutory order may be reviewed before a case has
concluded when the order “‘has such an element of finality as to require immediate review by
[the Supreme] Court to avoid possible injurious consequences.’” (quoting Chiaradio v. Falck,
794 A.2d 494, 496 (R.I. 2002)). Such a judicially crafted exception is designed to prevent
clearly imminent and irreparable harm that would otherwise result if judicial review was not
available. Town of Lincoln v. Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977).
6. The McAuslan Doctrine – Doctrine Applied
12
DePina v. State, 79 A.3d 1284 (R.I. 2013).
In DePina, the Supreme Court concluded that an order denying a motion to quash a
subpoena, although interlocutory in nature, fell within the judicially crafted exception known as
the McAuslan Doctrine. Although recognizing its long-standing practice of declining to address
on appeal an interlocutory order that lacks finality, the Supreme Court held that application of
the McAuslan Doctrine was not only proper but necessary in the context of that case.
In that case, in connection with his application for postconviction relief, the plaintiff had
filed a subpoena seeking discovery of the mental health records of an eyewitness in his 1998
murder trial. The eyewitness moved to quash the subpoena and after the motion was denied,
appealed to the Supreme Court. On appeal, the eyewitness argued that the consequences of the
trial court’s order were imminent and irreparable because once her medical records are released,
the confidential nature of those documents would be irremediably breached.
Agreeing with the eyewitness, the Supreme Court concluded that the trial court’s order
“possesse[d] the requisite element of finality and potential for irreparable harm to warrant . . .
immediate review.”

Weeks v. 735 Putnam Pike Operations, LLC, 85 A.3d 1147 (R.I. 2014).
There has long been confusion over whether the McAuslan Doctrine should be invoked
in the context of a direct appeal or a petition for writ of certiorari. While the Rhode Island
Supreme Court did not directly address that issue in Weeks, its decision strongly suggests that the
doctrine may be invoked in the context of a direct appeal.
In Weeks, the defendant argued that the plaintiff’s appeal was interlocutory in nature and
should be dismissed because the plaintiff chose to file a direct appeal instead of filing a petition
for writ of certiorari. Although recognizing that as a general rule, appeals from interlocutory
orders are not permitted, the Supreme Court noted that interlocutory appeals are permitted if they
all within the McAuslan Doctrine. Under the McAuslan Doctrine, the Court will permit
appellate review of “an order or decree which, although in a strict sense interlocutory, does
possess such an element of finality that action is called for before the case is finally terminated in
order to prevent clearly imminent and irreparable harm.” (quoting Town of Lincoln v.
Cournoyer, 375 A.2d 410, 412-13 (R.I. 1977). If the Court deems the appeal appropriate under
McAuslan, it will treat it as a final order.
Applying the McAuslan Doctrine, the Court held that although the trial justice’s order
directing the parties to resolve their dispute through binding arbitration was interlocutory in
nature, the plaintiff’s appeal was proper under McAuslan.
7. Issues Concerning Finality Raised at Prebriefing Conference
13
Coit v. Tillinghast, 91 A.3d 838 (R.I. 2014).
The Rhode Island Supreme Court often will raise issues related to the permissibility of an
appeal during the required prebriefing conference. In Coit, the Court raised issue concerning the
interlocutory nature of the appeal during the prebriefing conference and directed the parties to

file supplemental memoranda addressing whether the order from which the appeal was taken was
interlocutory.
8. Standard of Review for Interlocutory Orders
14
See Standards of Review, Interlocutory Orders
G. Motion to Dismiss Appeal
When a party maintains that a notice of appeal is untimely and the Supreme Court has not
yet docketed the appeal, the trial court has jurisdiction to dismiss the appeal for failure to comply
with the Supreme Court’s Rules of Appellate Procedure. See R.I. Sup. Ct. R. App. P. 11. In
Miller, Metropolitan filed its motion to dismiss Miller’s cross-appeal as untimely with the
Superior Court. When the Superior Court denied Metropolitan’s motion to dismiss, Metropolitan
filed an appeal to the Supreme Court from that order.
H. Notice of Appeal
As a general matter, a notice of appeal must be filed within 20 days of “the date of the
entry of the judgment, order, or decree appealed from.” R.I. Sup. Ct. R. App. P. 4(a). The notice
must be filed with the trial court’s clerk’s office, not the Supreme Court’s clerk’s office. Id. The
form for filing a notice of appeal may be found in the trial court’s clerk’s office. If there is
information that does not fit within the allocated space on the form, it is common practice to
attach an addendum to the notice form. In Miller, the appellant attached an exhibit to its notice
of appeal identifying additional parties.

In National Refrigeration, after judgment had entered and after the plaintiff had filed its
notice of appeal, the plaintiff filed a motion to increase the amount of a bond. On appeal, the
plaintiff argued that the Superior Court erred in denying its motion to increase the bond. On
appeal, the Supreme Court concluded that the issue of the amount of the bond was not properly
before it. In so holding, the Supreme Court noted that while “a notice of appeal that designates
the final judgment encompasses not only the judgment, but also all earlier interlocutory orders
that merge in the judgment,” there is no basis for the Court to review an order entered subsequent
to the judgment on appeal.
15
I. Perfecting Appeal
1. Transcripts
In re Kyla C., 79 A.3d 846 (R.I. 2013).
In In re Kyla C., although the Court held that the appeal was not properly before it, it
proceeded to address the propriety of the Family Court’s dismissal of the respondent’s appeal. In
that case, after the Family Court had vacated and re-entered its decree to allow the respondent to
file a timely appeal, the respondent failed to timely transmit the record and had not requested an
extension of time to do so. Accordingly, the guardian ad litem moved the Family Court to
dismiss the respondent’s appeal. An order entered dismissing the respondent’s appeal.
On appeal, the Supreme Court recognized that the Family Court’s dismissal of the
respondent’s appeal was proper. “‘Article I, Rule 3(a) of the Supreme Court Rules of Appellate
Procedure empowers [a] trial justice to dismiss an appeal for failure to comply with [Rules
10(b)(1) and 11].’” (quoting Pelosi v. Pelosi, 50 A.3d 795, 798 (R.I. 2012)). To determine
whether a trial justice has abused his or her discretion in dismissing an appeal, the Supreme

Court applies the same standard used when considering extensions of time for transmission of
the record as set forth in Supreme Court Rule of Appellate Procedure 11(c). (citing Daniel v.
Cross, 749 A.2d 6, 9 (R.I. 2000)).
Pursuant to Rule 11(c), an extension of time may be granted when “the inability of the
appellate to cause timely transmission of the record is due to causes beyond his or her control or
to circumstances which may be deemed excusable neglect.” R.I. R. App. P. 11(c). The Supreme
Court has consistently defined “excusable neglect” as:
neglect occasioned by some extenuating circumstances of
sufficient significance to render it excusable, . . . as a failure to
take the proper steps at the proper time, not in consequence of the
party’s own carelessness, inattention, or willful disregard of the
process of the court, but in consequence of some unexpected or
unavoidable hindrance or accident, or reliance on the care and
vigilance of his counsel or on promises made by the adverse party,
. . . and as that course of conduct that a reasonably prudent person
would take under similar circumstances[.]
Id. (quoting Business Loan Fund Corp v. Gallant., 795 A.2d 531, 533 (R.I. 2002)). In In re Kyla
C., the respondent had not offered any reason for his neglect other than that he did not
understand he was required to order the transcript. Such neglect is not excusable, even for a pro
se litigant. Consequently, the Family Court properly exercised its discretion in dismissing the
respondent’s appeal.
Process Engineers & Constructors, Inc. v. DiGregorio, Inc., 93 A.3d 1047 (R.I. 2014).
In Process Engineers, the Rhode Island Supreme Court again reminded litigants that it is
the responsibility of the parties to ensure that all proper transcripts are ultimately filed with the
Court. To that end, “Article I, Rule 10(b)(1) of the Supreme Court Rules of Appellate Procedure
leaves it to the appellant to ‘order from the reporter a transcript of such parts of the proceedings
16

not already on file as the appellant deems necessary for inclusion in the record.’” Thereafter,
“[t]he appellee may . . . request additional transcripts if he or she thinks they are necessary.”
17
2. Sanctions
Fiorenzano v. Lima, 84 A.3d 811 (R.I. 2014).
Although it is well settled that an appeal may be dismissed when it has not been
perfected, the Rhode Island Supreme Court has made clear that sanctions should not be imposed
for mere failure to perfect an appeal.
In Fiorenzano, when the plaintiff failed to perfect his appeal, the trial justice granted the
defendant’s motion to dismiss plaintiff’s appeal and, in addition, ordered that plaintiff pay
defendant $1,500 as compensation for defendant’s attorney obtaining dismissal of the appeal.
On appeal, the Supreme Court held that the imposition of a sanction for the plaintiff’s
failure to perfect his appeal was in error. According to the Court, “[n]o statute or rule calls for
any further sanctions for the failure to perfect an appeal.”
J. Pre-briefing Conference
1. Issues Raised During Pre-briefing Conference
See Final Judgment Rule, Issues Concerning Finality Raised at Pre-briefing Conference.
2. Waiver
Carrozza v. Voccola, 90 A.3d 142 (R.I. 2014).
Arguments raised in a pre-briefing statement but not reiterated in the full brief are
waived. (citing State v. Rolon, 45 A.3d 518, 519 n.1 (R.I. 2012); Bowen Court Associates v.
Ernst & Young LLP, 818 A.2d 721, 728-29 (R.I. 2003)). However, the failure to raise an issue in
a pre-briefing statement does not waive that issue for full briefing. Id. Moreover, a concession

of a point by a party in his or her pre-briefing statement does not preclude that party from raising
the issue at the time of full briefing.
18
K. Premature Appeal
Miller v. Saunders, 80 A.3d 44 (R.I. 2013).
Under Rule 4 of the Rhode Island Rules of Appellate Procedure, an appeal to the Rhode
Island Supreme Court is timely if it is filed within 20 days of the date of the entry of the
judgment, order, or decree appealed from. In Miller, the plaintiff filed a notice of appeal
prematurely, before the entry of final judgment, however, the Rhode Island Supreme Court
treated the appeal as timely. The Supreme Court’s treatment of the premature appeal as timely
was consistent with the result reached in prior decisions. See The Law Firm of Thomas A. Tarro,
III v. Checrallah, 60 A.3d 598, 601 (R.I. 2013); State v. Cipriano, 21 A.3d 408, 419 n.10 (R.I.
2011); Otero v. State, 996 A.2d 667, 670 n.3 (R.I. 2010).
L. Raise or Waive Rule
Johnson v. QBAR Associates, 78 A.3d 48 (R.I. 2014).
The raise or waive rule, arguably one of the most important rules of appellate practice, is
strictly adhered to by the Rhode Island Supreme Court. Pursuant to the raise or waive rule,
which is applicable in both civil and criminal cases, an issue that has not been raised or
articulated previously at trial is not properly preserved for appellate review. The purpose behind
the rule is to prevent appellate review of issues that were not presented to the trial court in such a
posture as to alert the trial justice to the question being raised. In Johnson, the Supreme Court
declined to address arguments raised by the plaintiff because they had not been first argued in the
Superior Court.

19
1. Jury Instructions
Pursuant to Rule 51(b) of the Rhode Island Superior Court Rule of Civil Procedure, “[n]o
party may assign as error the giving or the failure to give an instruction unless the party objects
thereto before the jury retires to consider its verdict, stating distinctly the matter to which the
party objects and the grounds for the party’s objection.” As the Rhode Island Supreme Court has
from time to time explained, “[t]he rationale underlying this rule is that it is necessary to ‘allow
the trial justice an opportunity to make any necessary corrections to his or her instructions before
the jury begins its deliberations.’” (quoting DiFranco v. Klein, 657 A.2d 145, 147 (R.I. 1995)).
The Supreme Court has been “‘especially rigorous in the application of the raise-or-waive rule
when considering objections to jury instructions.’” (quoting Botelho v. Caster’s Inc., 970 A.2d
541, 548 (R.I. 2009)). Nevertheless, it “‘will not apply Rule 51(b) in an overly stringent
manner.’” (quoting DiFranco, 657 A.2d at 147). At a minimum, “the objection must be
‘specific enough to alert the trial justice as to the nature of [the trial justice’s alleged error.’”
(quoting Botehlo, 970 A.2d at 548).
2. Motions in Limine
Martin v. Lawrence, 79 A.3d 1275 (R.I. 2013).
The Rhode Island Supreme Court strictly adheres to the raise or waive rule, pursuant to
which “an issue that has not been raised or articulated previously at trial is not properly
preserved for appellate review.” (citing State v. Gomez, 848 A.2d 221, 237 (R.I. 2004)); State v.
Figuereo, 31 A.3d 1283, 1289 (R.I. 2011)).
In Martin, the Supreme Court cautioned litigants that a preliminary ruling on a motion in
limine generally is insufficient to preserve an issue for appellate review. In Martin, the

defendant moved in limine to exclude a document from evidence. After considering the
defendant’s motion, the trial justice stated that he was “rul[ing] preliminarily that the objection
of the defendant is sustained on the grounds that the statement sought to be presented by the
plaintiff . . . is hearsary [ ] that does not fall within any exception to the hearsay rule.”
In addressing whether the trial court’s preliminary ruling was sufficient to preserve the issue for
appellate review, the Supreme Court noted that “‘a ruling on a motion in limine, unless
unequivocally definitive, will not alone suffice to preserve an evidentiary issue for appellate
review; a proper objection on the record at the trial itself is necessary.’” (quoting State v.
Andujar, 899 A.2d 1209, 1222 (R.I. 2006)). Nevertheless, the Supreme Court concluded that
under the circumstances, where the trial justice’s decision on the motion in limine was made on
the same day that trial was to commence, defendant may have been reluctant to attempt to
introduce the evidence. Thus, the Supreme Court proceeded to address the appropriateness of
the trial justice’s ruling.
20
M. Show Cause Calendar
Ho-Rath v. Rhode Island Hospital, 89 A.3d 806 (R.I. 2014).
Cases that come before the Rhode Island Supreme Court typically are assigned to either
the Court’s full argument or show cause calendar. In full cases, each side is permitted 30
minutes for oral argument and the appellant may reserve 10 minutes for rebuttal. Unless
otherwise specified by the Court, parties in full cases may submit briefs 50 pages in length and
reply briefs 25 pages in length. See R.I. R. App. P. 16(f). In show cause cases, each side is
permitted 10 minutes for oral argument and the appellant may reserve two minutes for rebuttal.
Unless otherwise specified by the Court, parties in show cause cases by submit supplemental
papers no longer than 10 pages in length. See R.I. R. App. P. 12A(4).

Most often, when cases are assigned to the show cause calendar, the Supreme Court
concludes that cause has not been shown and decides the case on the basis of the papers and
arguments before it. Occasionally, however, the Court will conclude that cause has been show
and will order that the case be assigned to the Court’s full argument calendar and that the parties
be permitted full briefing and argument.
That was the case this term in Ho-Rath, a decision in which the Supreme Court concluded
that two issues of first impression warranted full briefing and argument. Accordingly, the Court
assigned the following two questions to the Court’s full argument calendar: (1) whether, in
accordance with R.I. Gen. Laws § 9-1-14.1(1), medical malpractice claims may be brought on a
child’s behalf at any time before the minor reaches the age of majority, and thereafter by the
child within three years after attaining the age of majority and (2) whether parents may bring
their derivative claims at whatever time the minor’s medical negligence claims are pursued. It is
anticipated that these important and novel issues will be the subject of a decision next term.
21
N. Standards of Review
1. Arbitration
Berkshire Wilton Partners, LLC v. Bilray Demolition Co., Inc., 91 A.3d 830 (R.I. 2014).
“Rhode Island has a strong public policy in favor of the finality of arbitration awards. See
North Providence School Committee v. North Providence Federation of Teachers, Local 920,
American Federation of Teachers, 945 A.2d 339, 344 (R.I. 2008). ‘Parties voluntarily contract to
use arbitration as an expeditious and informal means of private dispute resolution, thereby
avoiding litigation in the courts.’ Aetna Casualty & Surety Co. v. Grabbert, 590 A.2d 88, 92 (R.I.
1991). To preserve the integrity and efficacy of arbitration proceedings, judicial review of
arbitration awards is extremely limited. Aponik v. Lauricella, 844 A.2d 698, 704 (R.I. 2004).

‘[P]arties who have contractually agreed to accept arbitration as binding are not allowed to
circumvent an award by coming to the courts and arguing that the arbitrators misconstrued the
contract or misapplied the law.’ Prudential Property and Casualty Insurance Co. v. Flynn, 687
A.2d 440, 441 (R.I. 1996).”
“The ‘policy of finality is reflected in the limited grounds that the Legislature has
delineated for vacating an arbitration award.’ Prudential Property and Casualty Insurance Co.,
687 A.2d at 441. In reviewing an arbitrator’s award, this Court, like the Superior Court, follows
§ 10-3-12. See City of Cranston v. Rhode Island Laborers’ District Council Local 1033, 960
A.2d 529, 532 (R.I. 2008). That statute provides in pertinent part, ‘the court must make an order
vacating the award upon the application of any party to the arbitration * * * [w]here the
arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and
definite award upon the subject matter submitted was not made.’ Section 10-3-12(4). An
arbitrator may exceed his or her authority by giving an interpretation that fails to draw its essence
from the parties’ agreement, is not passably plausible, reaches an irrational result, or manifestly
disregards a provision of the agreement. See, e.g., City of Newport v. Lama, 797 A.2d 470, 472
(R.I. 2002); Woonsocket Teachers’ Guild, Local 951, AFT v. Woonsocket School Committee, 770
A.2d 834, 837 (R.I. 2001); Department of Children, Youth and Families v. Rhode Island Council
94, AFSME, 713 A.2d 1250, 1253 (R.I. 1998). A court may also vacate an arbitrator’s award
when the arbitrator has manifestly disregarded the law. Prudential Property and Casualty
Insurance Co., 687 A.2d at 442. ‘[E]very reasonable presumption in favor of the award will be
made.’ Feibelman v. F.O., Inc., 604 A.2d 344, 345 (R.I. 1992) (quoting Coventry Teachers’
Alliance v. Coventry School Committee, 417 A.2d 886, 888 (R.I. 1980)). A party claiming that an
22

arbitrator exceeded his or her authority bears the burden of proving that contention. See Coventry
Teachers’ Alliance, 417 A.2d at 888.”
23
2. Certiorari
State v. Simmons, 87 A.3d 412 (R.I. 2014).
“‘Our review of a case on certiorari is limited to an examination of the record to
determine if an error of law has been committed.’” State v. Poulin, 66 A.3d 419, 423 (R.I. 2013)
(quoting State v. Greenberg, 951 A.2d 481, 489 (R.I. 2008)). ‘In addition to examining the
record for judicial error, we inspect the record to discern if there is any legally competent
evidence to support the findings of the hearing justice below.’ Id. (quoting Brown v. State, 841
A.2d 1116, 1121 (R.I. 2004)). The Court does ‘not weigh the evidence on certiorari, but only
conduct[s a] review to examine questions of law raised in the petition.’ WMS Gaming, Inc. v.
Sullivan, 6 A.3d 1104, 1111 (R.I. 2010) (quoting Greenberg, 951 A.2d at 489). We review
questions of law de novo. Id. (citing Lynch v. Rhode Island Department of Environmental
Management, 994 A.2d 64, 70 (R.I. 2010)).”
3. Interlocutory Orders
Weeks v. 735 Putnam Pike Operations, LLC, 85 A.3d 1147 (R.I. 2014).
The Rhode Island Supreme Court’s review of interlocutory orders “is controlled by the
subject matter of the order [that is subject of review] and not by its interlocutory nature.”
4. Motion to Strike
Long v. Dell, 93 A.3d 988 (R.I. 2014).
Addressing an issue of first impression, the Rhode Island Supreme Court held this term
that a trial justice’s decision on a motion to strike brought pursuant to Rule 12(f) of the Rhode
Island Superior Court Rules of Civil Procedure is reviewed for abuse of discretion. In so holding,

the Court reviewed case law interpreting the substantially similar Rule 12(f) of the Federal Rules
of Civil Procedure and concluded that because a the trial court enjoys liberal discretion when
ruling on a motion to strike, the trial justice’s decision should be reviewed only for an abuse of
discretion. Id.
24
5. Motion for New Trial
“Our standard for reviewing a trial justice’s decision in a motion for a new trial is well
settled. ‘A trial justice’s role in considering a motion for a new trial is that of a superjuror, who
must weigh the evidence and assess the credibility of the witnesses.’ Gomes v. Rosario, 79 A.3d
1262, 1265 (R.I. 2013) (quoting McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012)). He or she
must exercise his or her independent judgment in considering all the material evidence in the
case, pass on the weight of the evidence and the credibility of the witnesses, and decide whether
the jury verdict responds to the evidence presented and does justice between the parties. See id.
‘If the trial justice is persuaded that the verdict is wrong because it fails to respond truly to the
merits and to administer substantial justice between the parties or is against the fair
preponderance of the evidence, he [or she] should set aside the verdict and order a new trial.’
McGarry, 47 A.3d at 280. ‘If the trial justice has carried out the duties required by Rule 59 of the
Superior Court Rules of Civil Procedure and our decided cases, his or her decision is accorded
great weight by this Court and will not be disturbed unless the plaintiff can show that the trial
justice overlooked or misconceived material and relevant evidence or was otherwise clearly
wrong.’ Gomes, 79 A.3d at 1265.”

6. Motion for New Trial - Damages
25
“‘Although the fixing of damages is normally a function of the jury, it may be rejected by
a trial justice on a motion for a new trial.’ Bonn v. Pepin, 11 A.3d 76, 78 (R.I. 2011) (quoting
Reccko v. Criss Cadillac Co., 610 A.2d 542, 545-46 (R.I. 1992)). ‘A trial justice may disregard
an award of damages * * * only if the award shocks the conscience or indicates that the jury was
influenced by passion or prejudice or if the award demonstrates that the jury proceeded from a
clearly erroneous basis in assessing the fair amount of compensation to which a party is entitled.’
Murray v. Bromley, 945 A.2d 330, 333-34 (R.I. 2008).”
7. Motion for New Trial – The Appellate Rule
When reviewing a trial justice’s ruling on a motion for a new trial, “[i]f a trial justice fails
to make a specific appraisal of the evidence, then [the Supreme Court] will apply the appellate
rule, in which case the evidence is examined in the light most favorable to the prevailing party to
determine if there is any competent evidence that, if believed, would support the jury’s verdict.”
(quoting Hefner v. Distel, 813 A.2d 66, 70 (R.I. 2003)).
8. Sanctions
Burns v. Moorland Farm Condominium Association, 86 A.3d 392 (R.I. 2014).
“We review a trial justice’s awarding of sanctions under an abuse-of-discretion standard.
In re Briggs, 62 A.3d 1090, 1097 (R.I. 2013) (citing Pleasant Management, LLC v. Carrasco,
918 A.2d 213, 217 (R.I. 2007)). Therefore, we will reverse a sanction ‘only if the trial court
based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the
evidence.’ Michalopoulos v. C & D Restaurant, Inc., 847 A.2d 294, 300 (R.I. 2004).”

26
O. Timeliness of Appeal
In addition to the initial 20 day period for filing an appeal, Rule 4(a) of the Rhode Island
Supreme Court Rules of Appellate Procedure provides in relevant part: “If a timely notice of
appeal is filed by a party, any other party may file a notice of appeal within twenty (20) days of
the date on which the first notice of appeal was filed, or within the time otherwise prescribed by
this subdivision, whichever period last expires.” R.I. Sup. Ct. R. App. P. 4(a).
In Miller, the Supreme Court held that pursuant to Rule 4(a), when a party files a notice
of appeal, any party adverse to that appeal may file a notice of appeal within 20 days of the filing
of that notice of appeal. This is true even if the party seeking to invoke the rule has already filed
a notice of appeal in the case.
In Miller, judgment had entered in favor of the plaintiff, David Miller (“Miller”), and
against Defendants Metropolitan Property and Casualty Insurance Co. (“Metropolitan”) and
Amica Mutual Insurance Co. (“Amica”) on May 31, 2012. Thereafter, Metropolitan and Amica
filed renewed motions for judgment as a matter of law and motions for a new trial. The trial
justice denied Metropolitan’s motions but granted Amica’s motion for judgment as a matter of
law. The trial justice also conditionally granted Amica’s motion for a new trial. An order
reflecting the decision as to Metropolitan’s motions and a separate order reflecting the decision
as to Amica’s motions entered on August 20, 2012.
On August 27, 2012, Miller filed a timely notice of appeal, listing Amica as the only
defendant and citing the August 20, 2012 order in favor of Amica as the subject of his appeal.
On August 31, 2012, Metropolitan filed a timely notice of appeal from the May 31, 2012
judgment and the August 20, 2012 order denying its motions. Metropolitan identified itself,

Amica and a third defendant, Allstate Insurance Company, on its notice of appeal. Thereafter,
on September 18, 2012, Miller filed a cross-appeal from the May 31, 2012 judgment.
Metropolitan moved to dismiss Miller’s cross-appeal as untimely on the basis that it was not
filed within the initial 20-day appeal period that began to run after entry of the August 20, 2012
orders. However, the trial justice denied Metropolitan’s motion, reasoning that Miller’s cross-appeal
was timely because it was filed within 20 days of Metropolitan’s August 31, 2012 notice
of appeal. Metropolitan appealed that ruling to the Supreme Court.
On appeal, Metropolitan argued that Miller could not invoke Rule 4(a) to file an appeal
within 20 days of another party’s filing of an appeal because Miller had already filed his own
appeal. The Supreme Court disagreed.
Instead, the Supreme Court held that Rule 4(a) “should be interpreted to provide a
twenty-day appeal period after the first timely notice of appeal from an adverse party.”
According to the Court, Rule 4 was designed to “‘allow all parties an opportunity to see and
respond to the actions of their adversaries.’” (quoting Lee v. Coahoma County Mississippi, 937
F.2d 220, 223 (5th Cir. 1991)).
At the time Miller filed his initial appeal, he did not know that Metropolitan would file an
appeal. It was not until Metropolitan filed its appeal on August 31, 2012 that Miller had notice
of an appeal from an adverse party. Thus, Miller could invoke Rule 4(a) and file his cross-appeal
within 20 days of Metropolitan’s notice of appeal. Miller’s cross-appeal was therefore
27
timely.

28
In re Kyla C., 79 A.3d 846 (R.I. 2013).
In In re Kyla C. the Rhode Island Supreme Court held that the Family Court exceeded its
authority when it vacated and reissued an order for the sole purpose of permitting a party
sufficient time to file an appeal.
Over a year after the Family Court had issued a decree terminating the respondent’s
parental rights to his daughter, Kyla C., and after the respondent missed the deadline for filing an
appeal, the Family Court vacated the termination of parental rights decree and issued a new
termination decree to afford the respondent an opportunity to file a timely appeal. When the case
came before the Supreme Court, the Court issued an order declining to entertain the appeal on
the grounds that it was not properly before it. In doing so, the Court recognized that “‘courts of
this state lack jurisdiction to vacate and then to re-enter a judgment as a means of extending the
time allowed under the applicable statutory limitation for the claiming of an appeal.’” (quoting
Ferranti v. M.A. Gammino Construction Co., 289 A.2d 56, 57 (R.I. 1972)).
In the Court’s opinion, to hold otherwise and “permit a lower court justice to vacate and
reenter an order to render an untimely appeal timely ‘would have the effect of enabling a . . .
judge to modify and enlarge the applicable statute by judicial fiat. That is clearly beyond his
power.’” (quoting Ferranti, 289 A.2d at 57).
Brown v. Stanley, 86 A.3d 387 (R.I. 2014).
In Brown, after the Superior Court entered a separate and final judgment in favor of one
defendant in accordance with Rule 54(b) of the Superior Court Rules of Civil Procedure, the
defendant filed a timely notice of appeal. However, while that case was pending on appeal, the
defendant requested that the Supreme Court stay the appeal pending resolution of the remaining

claims. Accordingly, the Supreme Court granted the stay and remanded the case to the Superior
Court.
29
P. Writing and Citations
Process Engineers & Constructors, Inc. v. DiGregorio, Inc., 93 A.3d 1047 (R.I. 2014).
In a rare passage, the Rhode Island Supreme Court provided valuable advice to appellate
practitioners on drafting appellate briefs. In Process Engineers, the Court noted that it “greatly
appreciates clear and concise writing. However, it is also essential that the parties support their
factual representations to this Court with citation to the record.”
It is sometimes difficult, and especially so in complex matters with multiple grounds for
appeal, to fully brief an argument within the page limits set by the Court. Nevertheless, the
Process Engineers & Constructors, Inc. decision reminds practitioners that citations to the record
are just as important as the substance of the arguments made.
III. Arbitration
A. Standard of Review
See Standards of Review, Arbitration.
IV. Attorneys
A. Character and Fitness
In re Application of Carlton Vose, 93 A.3d 33 (R.I. 2014).
In Vose, the Supreme Court addressed a petition in opposition to the recommendation of
the Supreme Court’s Committee on Character and Fitness (the “Committee”) that the petitioner
be denied admission to the Rhode Island bar. After numerous meetings with the Committee –
during some of which petitioner was represented by counsel – the Committee submitted a
Recommendation of Denial of Admission to the Rhode Island Bar supported by ten specific

findings of fact. Among those many findings was reference the Florida Board of Bar Examiners’
denial of the petitioner’s application for admission to that state’s bar. In his petition in
opposition to that recommendation, the petitioner claimed that the Committee failed to meet its
burden of inquiring into the findings concerning his previous denial of admission to the Florida
bar.
The Supreme Court disagreed, noting that the petitioner “appears to fundamentally
misunderstand the nature of the application process laid out in Rule 3 [of the Supreme Court
Rules of Admission of Attorneys and Others to Practice Law],” which makes clear that “the onus
was on [the petitioner], not the committee, to present clear and convincing evidence of his good
moral character.”
Additionally, in passing on an issue of first impression, the Supreme Court concluded
that it was proper for the Committee to consider the findings of the Florida board in determining
whether the petitioner possessed the requisite character and fitness to be admitted to the Rhode
Island bar. The Supreme Court’s conclusion is consistent with that of other jurisdictions that
recognize “the propriety of considering an applicant’s denial from the bar of another state.”
(citing Hawai’I Board of Bar Examiners Rules of Procedure Pt. 2, § 2.6(c)(10); Minnesota Rules
for Admission to the Bar 5(B)(3)(1); New Mexico Rules Governing Admission to the Bar 15-
103(C)(3)(k); In re Bar Admission of Vanderperren, 661 N.W.2d 27, 41 (Wisc. 2003)).
30
B. Sanctions
“Rule 11 requires attorneys to ‘make [a] reasonable inquiry to assure that all pleadings,
motions and papers filed with the court are factually well-grounded, legally tenable and not
interposed for any improper purpose.’ Pleasant Management, LLC v. Carrasco, 918 A.2d 123, 218
(R.I. 2007) (quoting Mariani v. Doctors Associates, Inc., 983 F.2d 5, 7 (1st Cir. 1993)). According to

Rule 11, such improper purposes may include efforts ‘to harass or to cause unnecessary delay or
needless increase in the cost of litigation.’ The rule allows a trial justice ‘to formulate what he or she
considers to be an appropriate sanction, but he or she must do so in accordance with the articulated
purpose of the rule: “to deter repetition of the harm, and to remedy the harm caused.’” In re Briggs,
62 A.3d at 1098 (quoting Pleasant Management, LLC, 918 A.2d at 217).”
31
V. Causes of Action/Defenses
A. Class Actions
1. Class Certification
Long v. Dell, 93 A.3d 988 (R.I. 2014).
Rule 23(c)(1) of the Rhode Island Superior Court Rules of Civil Procedure governs the
timeliness of a motion for class certification in a class action case. The rule provides that “[a]s
soon as practicable after the commencement of an action brought as a class action, the court shall
determine by order whether it is to be so maintained.” R.I. Super. Ct. R. 23(c)(1). Looking to
federal cases on the issue of timeliness of requests for class certification, the Rhode Island
Supreme Court has long recognized that each motion for certification must be reviewed on the
facts and circumstances of the particular case and there is no set deadline by which the court
must act. Zarrella v. Minnesota Mutual Life Insurance, Co., 824 A.2d 1249, 1263 n.16 (R.I.
2003).
In Long, the Rhode Island Supreme Court reminded litigants that it has not adopted the
2003 amendments to Federal Rule 23 or its more liberal timeliness requirement. Compare R.I.
Super. R. Civ. P. 23(c)(1) (“As soon as practicable after the commencement of an action brought
as a class action, the court shall determine by order whether it is to be so maintained.”) with Fed.
R. Civ. P. 23(c)(1)(A) (“At an early practicable time after a person sues or is sued as a class

representative, the court must determine by order whether to certify the action as a class
action.”).
2. Pre-Certification Motion for Summary Judgment
32
Long v. Dell, 93 A.3d 988 (R.I. 2014).
The Rhode Island Supreme Court held that when a defendant files a motion for summary
judgment before the plaintiff class is certified, the court must treat the case as though it were
certified as a class action. Such a rule is consistent with the Court’s summary judgment
jurisprudence, which requires the court to view the evidence in the light most favorable to the
non-moving party. By treating a case as a certified class action at the motion for summary
judgment stage, the court may consider the injury or damages sustained by the class, and is not
restricted to considering only the injury or damages of the named plaintiff. “[I]f the class is
treated as certified, for purposes of viewing the evidence in the light most favorable to the
nonmoving party on summary judgment, an inference of class-wide injury should be drawn when
competent evidence permits.”
B. Commercial Law
1. Usury
NV One, LLC v. Potomac Realty Capital, LLC, 84 A.3d 800 (R.I. 2014).
In a case of first impression that has important implications for lenders in Rhode Island,
in NV One, LLC the Rhode Island Supreme Court held that a usury savings clause in a
commercial loan document does not validate an otherwise usurious contract.
As a result of the Court’s decision, loan documents that impose an interest rate in excess
of 21 percent per annum and do not fall within a statutory exception are usurious and void as a
matter of law, regardless of whether they contain a usury savings clause. When a usurious loan

document is declared void, the borrower is entitled to recover all amounts paid on the loan.3 A
lender has no right to collect either principal or interest on a usurious loan. See Colonial Plan
Co. v. Tartaglione, 50 R.I. 342, 147 A. 880, 881 (1929).
Pursuant to Rhode Island statutory law, the maximum allowable interest rate for most
loans is 21 percent per annum. (citing R.I. Gen. Laws § 6-26-2(a)).4 Contracts that purport to
impose an interest rate in excess of 21 percent per annum are usurious and void. Id. (citing R.I.
Gen. Laws § 6-26-4). The lender’s subjective intent to comply with the usury laws is irrelevant.
Id. However, if the lender willfully and knowingly violates § 6-26-2, it can be found guilty of
criminal usury, punishable by up to five years’ imprisonment. R.I. Gen. Laws § 6-26-3.
Through the passage of such statutes, the Rhode Island General Assembly has manifested
an intention to protect borrowers by ensuring that lenders do not charge interest in excess of the
maximum rate. As the Supreme Court recognized, “the Legislature intended an inflexible,
hardline approach to usury that is tantamount to strict liability.”
Since their enactment, Rhode Island has strictly enforced its usury laws, but until the
Supreme Court’s decision in NV One, LLC, it had not addressed whether a usury savings clause
could save an otherwise usurious loan.
In concluding that usury savings clauses violate public policy, the Supreme Court
reasoned that “enforcement of usury savings clauses would entirely obviate any responsibility on
3 By statute, the remedy available when a regulated financial institution knowingly contracts or
charges a usurious interest rate is different. In that scenario, the regulated financial institution
must forfeit the entire interest on the debt. R.I. Gen. Laws § 6-26-4(d). If the debtor has already
paid the usurious interest rate, he or she may recover from the regulated financial institution
twice the amount of the interest paid. Id. There is a two year statute of limitations for such
actions, which runs from the date of the usurious transaction. Id.
4 There are some exceptions, such as for a loan in excess of $1,000,000 to a commercial entity
when the loan is not secured by a mortgage against the principal residence of any borrower and
the commercial entity obtained a pro forma methods analysis performed by a licensed certified
public accountant. R.I. Gen. Laws § 6-26-2(e).
33

the part of the lender to abide by the usury statute, and would, in essence, swallow the rule.” The
Court expressed concern that “the inclusion of usury savings clauses in loan contracts would lead
to results that are injurious to the money-borrowing public, as well as potentially unconscionable
or tending towards injustice or oppression.” Indeed, “[i]f lenders could circumvent the
maximum interest rate by including a boilerplate usury savings clause, lenders could charge
excessive rates without recourse.”
In the wake of the Supreme Court’s decision, lenders should carefully scrutinize their
loan documents to ensure full compliance with Rhode Island’s usury laws, bearing in mind that a
usury savings clause will not save an otherwise usurious loan agreement.
Labonte v. New England Development R.I., LLC, 93 A.3d 537 (R.I. 2014).
Months after the Supreme Court decided NV One, LLC, it held in LaBonte that a
commercial loan commitment fee could be included in the calculation of interest. The loan at
issue was for $275,000. Pursuant to its terms, the borrower was required to repay the loan in the
amount of $325,000, plus interest within 30 days. The $325,000 repayment amount included a
$50,000 loan commitment fee.
The parties did not dispute that if the loan commitment fee was considered interest, it
would render the loan usurious. However, the lender argued that under Rhode Island law, a
commercial loan commitment fee shall not constitute interest. See R.I. Gen. Laws § 6-26-2.
In considering the lender’s argument, the Supreme Court recognized that the statute
defines a commercial loan commitment fee as a charge imposed by lenders “to assure the
availability of a specified amount of credit for a specified period of time or, at the borrower’s
option, compensating balances in lieu of the fees.” Id. However, because the $50,000 fee did
not provide any assurance as to the availability of the $275,000 principal loan, the Court
34

concluded that the loan commitment fee did not fall within the statutory exemption and,
therefore, must be treated as interest.
Based on that conclusion, the Supreme Court held that the loan was usurious and void
35
pursuant to R.I. Gen. Laws § 6-26-2(a).
C. Contracts
JPL Livery Services v. R.I. Dep’t of Admin., 88 A.3d 1134 (R.I. 2014).
As the Rhode Island Supreme Court recognized this term, “it is a fundamental principle
of contract law that a bilateral contract requires mutuality of obligation.” JPL Livery Services v.
R.I. Dep’t of Admin., 88 A.3d 1134, 1143-44 (R.I. 2014) (citing Centerville Builders, Inc. v.
Wynne, 683 A.2d 1340, 1341 (R.I. 1996)). A mutuality of obligation exists when “both parties
are ‘legally bound through the making of reciprocal promises.’” Id. (quoting Centerville
Builders, Inc., 683 A.2d at 1341). Conversely, “[t]he words of a promise ‘are illusory if they are
conditional on some fact or event that is wholly under the promisor’s control and bringing it
about is left wholly to the promisor’s own will and discretion,’ such that ‘the words used do not
in fact purport to limit future action in any way.’” Id. (quoting 2 Corbin on Contracts, § 5.32 at
175, 176 (1995)). If a termination clause allows a party to terminate at any time at will without
more, the promise is illusory. Id. (citing Holliston Mills, Inc. v. Citizens Trust Co., 604 A.2d
331, 335 (R.I. 1992)).
D. Declaratory Judgment Act
In Burns, the Rhode Island Supreme Court reaffirmed its prior holdings and held that the
failure to join indispensable parties pursuant to the Declaratory Judgment Act rendered the
Superior Court’s judgment “null and void.”

Under Rhode Island’s Declaratory Judgment Act, “all persons shall be made parties who
have or claim any interest which would be affected by the declaration, and no declaration shall
prejudice the rights of persons not parties to the proceeding.” R.I. Gen. Laws § 9-30-11.
Persons who have or claim any interest that would be affected by the declaration are
indispensable parties. This provision is mandatory. Abbatematteo v. State, 694 A.2d 738, 740
(R.I. 1997). Thus, “the Superior Court should not assert jurisdiction” unless all persons who
have a direct interest in the dispute are made parties. Id.; see also Sullivan v. Chafee, 703 A.2d
748, 751 (R.I. 1997) (“A court may not assume subject-matter jurisdiction over a declaratory-judgment
action when a plaintiff fails to join all those necessary and indispensable parties who
have an actual and essential interest that would be affected by the declaration.”). “‘Failure to
join all persons who have an interest that would be affected by the declaration’ is fatal.” Id.
(quoting Thompson v. Town Council of Westerly, 487 A.2d 498, 499 (R.I. 1985)).
In accordance with this case law, in Burns the Supreme Court held that condominium
unit owners who must share in the cost of a judgment should have been joined in the action
because they were parties whose interests could be affected by the judgment. Consequently, the
plaintiffs’ failure to join the condominium owners was fatal and made the judgment null and
void.
Rosano v. Mortgage Electronic Registration Systems, 91 A.3d 336 (R.I. 2014).
Relying on its decision in Burns v. Moorland Farm Condominium Association, 87 A.3d
392 (R.I. 2014), the Supreme Court again emphasized in Rosano that ordinarily, in an action
brought under Rhode Island’s Declaratory Judgment Act, “failure to join all persons who have an
interest that would be affected by the declaration is fatal.” Consistent with that authority, the
Court held that in a foreclosure action, the plaintiff’s failure to name the current title holder of
36

the property was fatal to the plaintiff’s action. The plaintiff argued that the current title holder of
the property was sufficiently on notice of the action because it had an “incestuous relationship”
with one of the defendants named in the action. The Supreme Court disagreed, concluding that
such notice was insufficient under the Declaratory Judgment Act, which requires that all parties
who have an interest that would be affected by the declaration be joined in the action.
37
E. Deceptive Trade Practices Act
Long v. Dell, 93 A.3d 988 (R.I. 2014).
To prove that a trade practice is deceptive under the Deceptive Trade Practices Act, R.I.
Gen. Laws § 6-13.1-1 et seq., a plaintiff must demonstrate three elements “[1] a representation,
omission, or practice, that [2] is likely to mislead consumers acting reasonably under the
circumstances, and [3], the representation, omission, or practice is material.” (adopting the
FTC’s interpretation of § 5(a) of the Federal Trade Commission Act). To be actionable,
deceptive act does not need to be made with intent to deceive, “it is enough that the
representations or practices were likely to mislead consumers acting reasonably.”
F. Employment Law
1. Employment Discrimination
“The Fair Employment Practices Act prohibits an employer from discharging an employee on
the basis of age and disability. See § 28-5-7(1)(i). ‘This Court has adopted the federal legal
framework to provide structure to our state employment discrimination statutes.’ Neri v. Ross-
Simons, Inc., 897 A.2d 42, 48 (R.I. 2006) (citing Newport Shipyard, Inc. v. Rhode Island Commission
for Human Rights, 484 A.2d 893, 898 (R.I. 1984)). Because plaintiff claims employment
discrimination, we will employ the now familiar three-part burden shifting framework as outlined by
the United States Supreme Court in McDonnell-Douglas Corp., 411 U.S. at 802-04. See McGarry v.

Pielech, 47 A.3d 271, 280 (R.I. 2012) (citing Center For Behavioral Health, Rhode Island, Inc. v.
Barros, 710 A.2d 680, 685 (R.I. 1998)).
“In the first step of the McDonnell-Douglas paradigm, plaintiff must make out a prima facie
case of age discrimination. Neri, 897 A.2d at 48-49. To meet this burden in cases of age
discrimination, plaintiff must demonstrate that
‘(1) she was at least forty years of age; (2) her job performance met
the employer’s legitimate expectations; (3) the employer subjected
her to an adverse employment action (e.g., an actual or constructive
discharge); and (4) the employer had a continuing need for the
services provided by the position from which the claimant was
discharged.’ Id. at 49 (quoting Ramírez Rodríguez v. Boehringer
Ingelheim Pharmac[eu]ticals, Inc., 425 F.3d 67, 78 n.11 (1st Cir.
2005)).
If a plaintiff is able to establish these elements, a presumption arises that the employer engaged in
unlawful discrimination. Barros, 710 A.2d at 685 (citing Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 254 (1981)).”
“Under the McDonnell-Douglas framework, after plaintiff establishes her prima facie case,
the burden shifts to defendant to come forward with legitimate nondiscriminatory reasons for the
employee’s termination. Neri, 897 A.2d at 49 (citing Barros, 710 A.2d at 685). The defendant’s
burden is one of production, not persuasion. Id. (citing Casey v. Town of Portsmouth, 861 A.2d 1032,
1037 (R.I. 2004)). When a defendant offers such a reason, it “eliminates the presumption of
discrimination created by the prima facie case.” Id. (citing Wellborn v. Spurwink/Rhode Island, 873
A.2d 884, 889 (R.I. 2005)). To satisfy this burden of production, a defendant need only offer
affidavits supporting the nondiscriminatory reason. Id. at 50.”
“The final step articulated in McDonnell-Douglas Corp. shifts the burden back to the plaintiff
to focus on “the ultimate question of ‘discrimination vel non.’” Neri, 897 A.2d at 50 (quoting Casey,
861 A.2d at 1037). To prove discrimination, a plaintiff need not provide a “smoking gun,” but rather
must prove that “[the] defendants’ legitimate, nondiscriminatory reason for not hiring [her] was
38

merely pretext (which would mean that the real reason for not hiring [the] plaintiff was unlawful
animus).” Casey, 861 A.2d at 1038 (citing Barros, 710 A.2d at 685). The plaintiff may demonstrate
pretext “either directly by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Barros, 710 A.2d at 685 (quoting Burdine, 450 U.S. at 256). Further, “a plaintiff’s prima
facie case, combined with sufficient evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Casey,
861 A.2d at 1038 (quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)).
The inference of discrimination is stronger if there is a “suspicion of mendacity” surrounding the
reason for terminating the employee. Neri, 897 A.2d at 50 (quoting Barros, 710 A.2d at 685).
However, the plaintiff has the burden of demonstrating not only that the offered reasons are false, but
“that discrimination was the real reason.” McGarry, 47 A.3d at 281.”
39
2. Independent Contractors
Cayer v. Cox Rhode Island Telecom, LLC, 85 A.3d 1140 (R.I. 2014).
The Supreme Court’s decision in Cayer serves as an important reminder for businesses
operating in Rhode Island of the demarcation between those who are employees and those who
are independent contractors.
As a general matter, “‘one who employs an independent contractor is not liable for the
negligent acts of that contractor.’” (quoting Bromaghim v. Furney, 808 A.2d 615, 617 (R.I.
2002)). For this rule to apply, the independent contractor truly must be independent. “‘The test
[as to] whether a person is an independent contractor is based on the employer’s right or power
to exercise control over the method and means of performing the work and not merely the
exercise of actual control.’” (quoting Absi v. State Dep’t of Administration, 785 A.2d 554, 556

(R.I. 2001)). The power or the actual exercise of too much control over an independent
contractor may transform the contractor into an employee.
In Cayer, the relationship between the company and the contractor was governed by an
agreement that specified that (1) the company was interested only in the results obtained as a
result of the work performed and (2) the manner and means of conducting the work was within
the contractor’s control. Consistent with the agreement, the company did not oversee the work
of the contractor as it was being performed. The company’s only oversight of the contractor’s
work consisted of spot inspections, conducted one to three days after the work had been
performed.
A variety of other factors also confirmed that the contractor was properly classified as an
independent contractor, including that the company paid the contractor by the job and did not
supply the contractor with a vehicle, uniform, boots, tools, rain gear or snow gear. All of these
factors contributed to the Supreme Court’s conclusion that the company did not have the
requisite power to control the contractor’s work and, therefore, the contractor was properly
classified as an independent contractor. Consequently, the company could not be held
vicariously liable for the independent contractor’s negligence.
3. Whistleblowers’ Protection Act
40
Russo v. State, 87 A.3d 399 (R.I. 2014).
In Russo, the Rhode Island Supreme Court addressed an issue of first impression
concerning the interpretation of Rhode Island’s Whistleblowers’ Protection Act (the “WPA”).
The WPA provides, in relevant part:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employees’
compensation, terms, conditions, location, or privileges of
employment:

a. Because the employee, or person acting on behalf of the
employee, reports or is about to report to a public body,
verbally or in writing, a violation which the employee knows
or reasonably believes has occurred or is about to occur, of a
law or regulation or rule promulgated under the law of this
state, a political subdivision of this state, or the United States,
unless the employee knows or has reason to know that the
report is false . . . .”
41
R.I. Gen. Laws § 28-50-3(1).
In Russo, the Supreme Court held that an employer’s placement of an employee on paid
administrative leave does not constitute an adverse employment decision akin to discharging,
threatening or otherwise discriminating against the employee. Indeed, administrative leave with
pay is not considered a suspension and it has been deemed to be “a reasonable means of coping
with a problematic workplace situation while only ‘minimally affecting’ the employee.”
Consequently, an employee placed on paid administrative leave cannot claim a violation of the
WPA.
G. Injunctions
Long v. Dell, 93 A.3d 988 (R.I. 2014).
In Long, the Rhode Island Supreme Court for the first time made clear that “[a]n
injunction is a remedy, not a cause of action” and held that the trial justice properly dismissed the
plaintiff’s request for injunctive relief. In so holding, the Court recognized authority from other
jurisdictions holding that injunctive relief is not a cause of action. See Thompson v. JPMorgan
Chase Bank, N.A., No. 13-2230, 2014 WL 1586992, at *1 n.1 (6th Cir. Apr. 22, 2014); Koufos v.
U.S. Bank, N.A., 939 F. Supp. 2d 40, 46 (D. Mass. 2013)). The Supreme Court’s ruling is
consistent with the Superior Court’s recognition in State v. Lead Ind. Assn., Inc. that injunctive
relief is not a standalone cause of action. See State v. Lead Ind. Assn., Inc., C.A. No. 99-5226,

2001 R.I. Super. LEXIS 37 (R.I. Super. Ct. Apr. 2, 2001) (concluding that “absent
controlling case law establishing that a request for injunctive relief constitutes an independent
cause of action, injunctive relief is a remedy and, can not, in itself, be recognized as a substantive
claim.”).
42
H. Insurance
Nunez v. Merrimack Mutual Fire Ins. Co., 88 A.3d 1146 (R.I. 2014).
In Nunez, an insurance coverage decision, the Rhode Island Supreme Court held that the
property damage at issue, which was caused by corrosion, was not covered by the plaintiffs’
insurance policy.
In that case, the homeowner plaintiffs initiated a claim under their homeowners’
insurance policy when the oil heating system in their basement began to leak. The insurance
company’s investigator concluded that the leak may have occurred over time and noted that the
feed line was severely corroded in several areas. He further indicated that the feed line had a
very slow, weeping, corrosion leak. After receiving a report of the investigator’s conclusions,
the insurance company denied the plaintiffs’ claim, relying on a provision in the insurance policy
that excluded coverage for losses caused by “[s]mog, rust or other corrosion.”
The plaintiffs, however, maintained that the loss was covered, relying on a provision that
provided coverage for “[s]udden and accidental tearing apart, cracking, burning or bulging of a
steam or hot water heating system, an air conditioning or automatic fire protective sprinkler
system, or an appliance for heating water.” The plaintiffs argued that the release of oil from the
feed line was unexpected or unforeseen from their standpoint and, therefore, a “sudden” loss
under the policy.

On appeal, the Supreme Court rejected the plaintiffs’ argument, concluding that the
exclusion was unambiguous and made it clear that the policy did not cover losses caused by
corrosion. In doing so, the Court refused to “wedge the loss resulting from the gradually
corroded oil feed line into the category of ‘sudden and accidental tearing apart, cracking, burning
or bulging of a steam or hot water heating system.’”
Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Education,
93 A.3d 949 (R.I. 2014)
In a fact-intensive analysis premised on the specific language in a general liability
insurance policy, the Rhode Island Supreme Court affirmed the Superior Court’s grant of
summary judgment in favor of the defendant insurer, concluding that the plaintiff was not
covered as an insured under the policy. Given the fact-intensive nature of the Court’s analysis,
the decision itself should be consulted on this issue.
43
I. Intentional Interference
Siemens Financial Services, Inc. v. Stonebridge Equipment Leasing, LLC,
91 A.3d 817 (R.I. 2014).
Under Massachusetts law, “[a] party claiming intentional misrepresentation must show
that the other party ‘made a false representation of a material fact with knowledge of its falsity
for the purpose of inducing the [claimant] to act thereon, and that the [claimant] reasonably
relied upon the representation as true and acted upon it to his damage.’ Russell v. Cooley
Dickinson Hospital, Inc., 772 N.E.2d 1054, 1066 (Mass. 2002) (quoting Danca v. Taunton
Savings Bank, 429 N.E.2d 1129, 1133 (Mass. 1982)). ‘The speaker need not know that the
statement is false if the truth is reasonably susceptible of actual knowledge, or otherwise
expressed, if, through a modicum of diligence, accurate facts are available to the speaker.’
Zimmerman v. Kent, 575 N.E.2d 70, 74 (Mass. App. Ct. 1991) (quoting Acushnet Federal Credit

Union v. Roderick, 530 N.E.2d 1243, 1244 (Mass. App. Ct. 1988)). Additionally, the statement
must be ‘susceptible of actual knowledge.’ Russell, 772 N.E.2d at 1066. Thus, ‘matter[s] of
opinion, estimate, or judgment’ may not be the subject of misrepresentation claims. Id. (quoting
Powell v. Rasmussen, 243 N.E.2d 167, 168 (Mass. 1969)).”
44
J. Massachusetts Chapter 93A
Siemens Financial Services, Inc. v. Stonebridge Equipment Leasing, LLC,
91 A.3d 817 (R.I. 2014).
“One seeking relief under Mass. Gen. Laws ch. 93A must prove that the opposing party’s
conduct is ‘(1) within “at least the penumbra of some common-law, statutory, or other
established concept of unfairness; or (2) * * * is immoral, unethical, oppressive, or
unscrupulous.’” Eastern Motor Inns, Inc. v. Ricci, 565 A.2d 1265, 1274 (R.I. 1989) (quoting
Levings v. Forbes & Wallace, Inc., 396 N.E.2d 149, 153 (Mass. App. Ct. 1979)). Furthermore,
the action must ‘at the very least, “attain a level of rascality that would raise an eyebrow of
someone inured to the rough and tumble world of commerce.’” Id. (quoting Levings, 396 N.E.2d
at 153).”
K. Medical Malpractice
1. Statute of Limitations
Ho-Rath v. Rhode Island Hospital, 89 A.3d 806 (R.I. 2014).
Ho-Rath presented the following issues of first impression:
1. “Whether, in accordance with § 9-1-14.1(1), medical malpractice claims may be
brought on a child’s behalf at any time before the minor reaches the age of majority,
and thereafter by the child within three years after attaining the age of majority, or
medical malpractice claims must be brought on behalf of a minor child within three
years of the incident giving rise to the cause of action, or within three years after
attaining the age of majority – but at no time in between.”
2. “Whether parents may bring their derivative claims at whatever time the minor’s
medical negligence claims are pursued, or whether parents must file all derivative

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