Nelson G. Apjohn

Nelson Apjohn represented The Commerce Insurance Company, the largest vehicle insurer in Massachusetts, in a putative class action contending that Commerce was obligated to cover third-party claims for diminished value damages under its motor vehicle policy and seeking compensation for Commerce’s alleged breach of contract for failing to pay those damages. In the Massachusetts Superior Court, he argued the motion to dismiss. The trial court judge dismissed the claim, concluding that the 2016 standard policy excluded coverage for diminished value damages for third-party claimants. Nelson then argued the appeal before the Supreme Judicial Court. That Court first addressed standing, which had not been addressed by the trial court given its decision on the policy interpretation. The Court held that because the plaintiffs failed to obtain final judgments against the insureds as a statutory prerequisite to assert a breach of contract action against Commerce, the plaintiffs lacked standing to pursue the breach of contract claims. Second, although the Court ordinarily lacks jurisdiction of the subject matter when the plaintiff lacks standing, the Court exercised its discretion to address the substantive question because, among other reasons, public policy would benefit from eliminating any uncertainty regarding the policy language and coverage for alleged diminished value damages. Turning to that substantive issue, the Court agreed with Commerce’s position and held that the 2016 standard policy specifically excludes diminished value damages. Cubberley v. The Commerce Insurance Company, 495 Mass. 289 (2025).

Nelson Apjohn represented Thomas P. Jalkut, as Trustee of the Adams Temple and School Fund, in the Massachusetts Superior Court and Appeals Court in a dispute with the City of Quincy over the ownership of an acre and half parcel located in the City. The City contended that President John Adams had conveyed the land in 1822 outright to the City and not in trust for the Fund, while the City served as a predecessor Trustee of the Fund. The City took the parcel in 2021 by eminent domain, clearing title to the parcel going forward, but leaving the dispute as to ownership and the right to compensation at the time of the taking. The Fund contended it was entitled to just compensation as owner the parcel, which the City disputed. The issue was resolved by litigation, with the Superior Court entering judgment on the pleadings in favor of Trustee Jalkut on the issue of ownership, allowing the Fund to be compensated for the taking. The Appeals Court affirmed the judgment on appeal. Thomas P. Jalkut, Trustee v. City of Quincy, 104 Mass. App. Ct. 138 (2024).

In November 2019, a Nutter trial team received a jury verdict in their favor for Nutter’s client, a Big Four accounting firm. Nutter’s client was alleged to have committed accounting malpractice for not detecting a fraud during the course of its annual audits. The plaintiff was seeking approximately $30 million in alleged actual and punitive damages. After a three-week trial in the Business Litigation Session of the Massachusetts Superior Court, the jury returned a verdict in favor of Nutter’s client and the judge dismissed all remaining claims. Nutter’s trial team included Ian Roffman, Nelson Apjohn, and Melanie Woodward, and they tried the case with co-counsel George Salter of Hogan Lovells (NY).

Nelson Apjohn represented Hyundai Motor America in an automotive products liability trial that involved a claim that the brake and accelerator pedal configuration of an automobile was conducive to simultaneous depression of the pedals and unintended acceleration, resulting in serious personal injuries. After a seven-day trial, the jury returned a defense verdict in favor of Hyundai Motor America.

Nelson Apjohn represented The Commerce Insurance Company in a putative class action claiming that its policy and Massachusetts regulations required Commerce to pay sales tax when settling a total-loss claim made by a third-party claimant, who fails to show that he or she incurred a sales tax purchasing a replacement vehicle. He argued the summary judgment motion before the Superior Court, which granted the motion and entered judgment in favor of Commerce.  Nelson also successfully argued on behalf of Commerce the plaintiff’s appeal before the Massachusetts Court of Appeals, which affirmed the judgment. Ramirez v. Commerce Ins. Co., 91 Mass. App. Ct. 144 (2017).

After an approximately two-week trial in April 2011, a Barnstable Superior Court jury awarded damages of $2,100,000 to the plaintiff landowners in an eminent domain trial resulting from various takings at the former Sagamore Rotary. Nelson Apjohn and Robyn Maguire represented the plaintiffs. According to Lawyers Weekly, the verdict was among the top ten verdicts in Massachusetts in 2011.

The takings were made in October 2004 in connection with the Commonwealth’s construction of the Sagamore Flyover Highway Project. The plaintiffs’ land consisted of approximately seventeen acres just west of the former Sagamore Rotary, which had historically been used in part for residential housing. The plaintiffs presented evidence at trial that the highest and best use of the land was a residential housing development pursuant to G.L. c. 40B, along with a commercial development on the commercially-zoned eastern portion of the property. The Commonwealth contended that the highest and best use of the property was for a nine-lot residential subdivision.

Nelson Apjohn defended The Commerce Insurance Company in a putative class action in which the plaintiff claimed that Commerce violated policy provisions for collision coverage by deducting for so-called betterments when paying collision claims. After briefing and a hearing, Nelson obtained summary judgment on behalf of Commerce from the Massachusetts Superior Court (Business Litigation Session).

Nelson Apjohn and Eric Magnuson represented a bank that commenced suit as a secured creditor in the Business Litigation Session of the Massachusetts Superior Court against a construction company, claiming that the company had misdirected payments to a subcontractor in violation of contract and Article 9 of the UCC. In connection with a credit agreement with the bank, the subcontractor had assigned its payment rights to the bank, which the construction company acknowledged and agreed to. After an approximately 10-day trial, the jury returned a special verdict, finding that the construction company had misdirected payments—totaling $3,015,000.49—to the subcontractor.  On June 15, 2010, based on the special verdict, the Superior Court ordered entry of judgment for the bank in the amount of $3,015,000.49, plus prejudgment interest at a rate of 12% per annum from May 25, 2006, for distribution pursuant to the UCC provisions.

After an approximately two-week trial in October 2010, a Barnstable Superior Court jury awarded damages of $4,150,000 to the plaintiff landowner in an eminent domain trial resulting from various takings at the former Sagamore Rotary. Nelson Apjohn represented the plaintiff. According to Lawyers Weekly, that verdict was among the top ten verdicts in Massachusetts in 2010.

This case involved the Commonwealth of Massachusetts’ takings of commercial property near the former Sagamore Rotary in Bourne, Massachusetts. The takings were made in connection with construction of the Sagamore Flyover Highway. The property consisted of approximately eleven acres of commercial property, a portion of which had been used as a gas station since the 1960s. The Commonwealth took approximately 2.5 acres in fee and approximately an additional 7.5 acres of property as a five-year easement, for use as a commuter parking lot during construction.

Nelson Apjohn successfully argued an appeal before the Supreme Judicial Court, reversing summary judgment against Commerce and an Appeals Court affirmance of that decision. The lower court decisions held that an insurer could not terminate personal injury protection benefits under the applicable statute based on an independent medical examination by a practioner licensed under a medical specialty different from the specialty of the treating or billing practioner. Boone v. Commerce Insurance Company, 451 Mass. 192 (2008). Massachusetts Lawyer’s Weekly ranked the Supreme Judicial Court opinion as one of the most important insurance opinions of 2008.

Nelson Apjohn successfully argued an appeal before the Supreme Judicial Court on behalf of The Commerce Insurance Company in a putative class action, overturning a lower court summary judgment holding that the Massachusetts standard motor vehicle policy provided collision coverage for so-called "inherent diminished value." Given v. Commerce Insurance Company, 440 Mass. 207 (2003). Massachusetts Lawyers Weekly ranked the decision as one of the ten most important decisions of 2003.