Melick & Porter attorneys Jim Scamby and Natasha Winter secured a victory in the Appeals Court in a case involving the removal of trees in Worcester during the Asian Longhorned Beetle (ALB) crisis in 2009. Federal, state, and local authorities joined forces in an effort to eradicate the ALB due to its destructive nature. Our client was a subcontractor hired to remove trees specifically designated by the government. In February of 2009, an official with the USDA instructed our client to remove certain trees from the Plaintiff’s property. The Plaintiff filed suit against our client and the general contractor in state court, seeking recovery pursuant to M.G.L. c. 242, § 7 and M.G.L. c. 93A. The Plaintiff also sued the Commonwealth of Massachusetts, but voluntarily dismissed that claim.
We successfully moved for summary judgment on the grounds that our client had a license to remove the trees and thus could face no liability under the statute. Holding that the record was insufficiently developed on this issue, the Appeals Court reversed. We conducted further discovery, including taking the deposition of the lead USDA official for the ALB eradication project. Meanwhile, the Plaintiff sued the USDA and certain officials in federal court. The government was awarded summary judgment and the First Circuit affirmed, holding that the officials were authorized to order the removal of the Plaintiff’s trees and that they were protected from liability by the discretionary function immunity in the Federal Tort Claims Act.
Given the First Circuit’s decision, we brought a second motion for summary judgment, arguing that our client was entitled to derivative immunity. The trial court agreed and upon the parties’ joint motion, reported the question to the Appeals Court under Mass. R. Civ. P. 64. On November 23, 2020, the Appeals Court affirmed the trial court’s decision. Plaintiff did not file an Application for Further Appellate Review with the SJC.