Comments on "Letter to Judge Meyer" by MAST defendents....


Defendents wrote:  "What did they (the McGuires) do wrong?"


a)  MCGUIRES purchased and provided GAGNON a chainsaw without following the directions and heeding the warnings clearly printed in the operator's manual's that accompanied the chainsaw.  Chainsaw was purchased on 5-22-2011 and was first used on 6-28-2011, the day DULBERG was injured.


b)  The operator's manual clearly states in large, bold font:  "WARNING - To ensure safe and correct operation of the chainsaw, ths operator's manual should always be kept with or near the machine.  Do not lend or rent your chainsaw without the operator's instruction manual."


c)  Just under this warning on the same page the operator's manual clearly states in large, bold font:  "WARNING - Allow only persons who understand this manual to operate your chainsaw."


d)  The manual has a list clearly labeled as "SAFETY RULES".  The first listed rule is:  "Read this manual carefully until you completely understand and can follow all safety rules, precautions, and operatng instructions before attempting to use the unit."


e)  The second listed safety rule is:  "Restrict the use of your saw to adult users who understand and can follow safety rules, precautions, and operating instructions found in this manual."  


f)  The fourth listed safety rule is:  "Keep children, bystanders, and animals a minimum of 35 feet (10 meters) away from the work area.  Do not allow other people or animals to be near the chainsaw when starting or operating the chainsaw (Fig.2)."  There is a large picture next to this rule of people standing at least 35 feet away from a person operating a chainsaw.


g)  The MCGUIRES asked DULBERG to help GAGNON.  DULBERG did not go to the MCGUIRES property to help cut down a tree.  He went to see if he wanted the wood.  Only after he was on the property for more than two hour was he asked by the MCGUIRES if he could help GAGNON.


i)  Had the MCGUIRES read and followed the warnings and safety rules in the operators manual, the injury to DULBERG could not have occurred.


j)  The MCGUIRES were in possession of the owners manual and looked at it while DULBERG was present, however they asked DULBERG to help GAGNON anyway.  They had the manual and DULBERG did not.  They had access to knowledge about the warnings clearly stated in the manual that DULBERG did not have.  "A duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant, possessed of such knowledge, knows or should know that harm might or could occur if no warning is given." (many citations available)



Defendents wrote:  "There is no factual allegation as to why such an expert mattered."

The expert on chainsaw use later retained by DULBERG stated that the owners of the chainsaw are liable for not heeding the clear warnings written in bold font on the operator's manual. 



Defendents wrote:  "DULBERG fails to specify how he was misled.  Even if MAST made a mistake about the MCGUIRES' insurance coverage, it made no difference, and there was no damage.  DULBERG cannot explain why $300,000 versus $100,000 in coverage made any difference, when he settled for $5,000.  Had he settled for $99,999.99, his argument for damages may be colorable.  In any event, he alleges no facts in support of the allegation that facts were "concealed.""


MAST never claimed the McGuires insurance policy limit was $100,000.  He claimed the GAGNON insurance policy limit was $100,000 when it was actually $300,000.  DULBERG never knew what GAGNONs actual coverage was until he retained new counsel.

DULBERG still does not know what the MCGUIRES' policy limit was because MAST never informed him despite repeated requests to MAST by DULBERG for that information.  In fact, there is no evidence at all within the case documents later given by MAST to DULBERG that MAST was ever in possession of the MCGUIRES' policy terms or limits.

DULBERG explicitly asked for documents related to the MCGUIRES' insurance policy and was refused by MAST.