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Insurance companies don't have to pay for South End property owner's decade-long battle against neighboring condo building, judge rules

A federal judge today ruled against the owner of a large industrial building in the South End who was seeking to have insurance companies cover his legal costs and potential damages in a suit brought by the developer of a Harrison Avenue condo building his property wraps around.

Arthur Leon was seeking protection from the millions of dollars he might be forced to pay should the developer of the now completed 18-unit Jordan Lofts building win his suit against Leon for doing everything he could to stop construction. That included trying to bring a criminal charge against the developer, John Holland, for allegedly trespassing on Leon's property - a charge a Boston Municipal Court clerk magistrate dismissed as unfounded.

A final pre-trial conference for the suit Holland filed in 2015 was supposed to be held this week with a Suffolk Superior Court judge.

Leon and Holland have been battling, first before the Boston zoning board, then in court, since 2012. In 2019, the state Supreme Judicial Court ruled against Leon in a pair of dueling complaints over which side was unconstitutionally trying to keep the other from "petitioning" government by filing either for or against the condos.

In her ruling today, US District Court Judge Indira Talwani ruled that Leon will have to stand alone when it comes to paying for lawyers and for any settlements of the 2015 lawsuit should he lose.

She sided with the four insurance companies Leon has used over the years and which he sued, agreeing that while their policies would indemnify Leon against a "malicious prosecution" lawsuit, what Holland actually filed was an "abuse of process" lawsuit, which their policies do not. cover.

Although the two sound similar to the non-lawyer - and even some lawyers and judges - Talwani concluded that the insurance companies were correct, that the two terms in fact mean different things and that Holland was not alleging that Leon was maliciously prosecuting him.

Talwani said Massachusetts courts have long maintained that "malicious prosecution" and "abuse of process" are not the same, that "malicious prosecution" involves "the commencement or continuation" of criminal charges. While there was one attempted criminal charge in the case, the case overall more readily fell into the category of "abuse of process," which involved attempting to use some administrative "process" for "an ulterior or illegitimate purpose," she concluded.

In essence, Holland contended that he had repeatedly won during the administrative process for starting construction - through the zoning-board approval, a 2013 court ruling that Holland could begin work, the 2014 ruling dismissing Leon's criminal trespassing complaint and another zoning-board ruling in 2015 approving penthouses Holland wanted to add - and that all this proved that Leon was engaged in an "abuse of process."

In their request to dismiss the case, the four insurers said, without taking a stance on the claims, that Holland was, in fact, alleging "abuse of process," or, as they put it, "intentional actions undertaken [by Leon and his company] to hinder and violate 477 Harrison Ave. LLC's asserted right to develop the property."

Talwani also cited rulings by the federal appeals court that covers Massachusetts that insurance companies would be expected to write their policies in conformance with state law, in this case that there is a difference between the two phrases and that insurers should not be expected to conflate the two when writing their policies.

Complete ruling (1.9M PDF).

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Comments

What actually goes on inside those completely nondescript one-story industrial buildings.

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Plus all the businesses along Washington St., including a nail salon, a couple of restaurants, and two fitness centers.

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around the corner from my local) and saw though the open doors enough to assume it was a garage for utility trucks. That's only a small part of the business, as it turns out.

My August 2007 review of said local is still available online, my last review for Dig Boston before I left for the Phoenix, and the only one of dozens I'd written for them published after a botched migration to a new web server that vaporized all the others. A shame I couldn't convince my later perches to let me invent a unique star rating system for each review as the Dig did:
http://web.archive.org/web/20131122223700/http://digboston.com/boston-fo...

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Dang Slim, Foley’s was a “suspiciously popular shoe store” during Prohibition? I never knew that.

Will you keep writing? I miss getting the low down on new places with a good splash of local history. Since last year’s hand-wringing about the Problem with Giving Restaurant Stars I sensed a total collapse of collective interest.

I for one love that scoring system in the Dig. Might be just what our Twitter-addled brains need. Can’t remember the last time I even saw a restaurant review in the Dig…like 5+ years ago?

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professional reviews for Boston.com, but it's not certain they will ever run such pieces again. I'm not even sure the Globe will, either. I took Devra's recent poll of her readers ("What kind of food writing do you want?") as a possible trial balloon for ditching traditional reviews there as well.

That leaves Jolyon Helterman reviewing for BoMag, and, um... not much else. Eater Boston, Hidden Boston and a few other great local professional sites and amateur bloggers are still turning out great food coverage, but they don't really run long-form, single-restaurant reviews. Marc Hurwitz of Hidden Boston does occasionally publish reviews in The Dig.

I've been saying that pro food critics are dinosaurs in a tar pit for ten years, and covid might have been the final knell. We'll see. I'm still exploring restaurants on my own dime as much as ever, resumed posting pics on IG once the lockdown ended (I went quiet on social media while most restaurants were closed to onsite dining).

Maybe some other local publication will come calling, but those perches are steadily dwindling, and with a serious non-food-journo day job, I can't afford the time to write reviews for free. Fingers crossed, but I'm not holding my breath. It's a role whose time, maybe, has largely passed.

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...but I hear ya, though. Especially about food critics circling the drain, 8+ years ago(!). The state of Yelp reviews has not moved in a positive direction since then.

I too filled out Devra First's poll; even the positioning of the answers seemed to highlight the idea of1) not giving out ratings, and 2) maybe not giving out reviews, either. I am an avid reader of Eater Boston, etc. but it bothers me that they don't even try a long-ish review of a restaurant. Is it too expensive, because the reviewer should go back more than once? Or maybe it really is off-brand to concentrate so hard?

Like you said, maybe the concept of reading 1,000 words about a place where you can eat is past its prime. Time for this old soul to learn how to communicate via food selfie...

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Holland is a good company and did not deserve the BS this asswipe put them through for years.
And no, I don't work for Holland so this is not a subjective statement.

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