Passatempo, et al. v. McMenimen, et al. (Lawyers Weekly No. 11-160-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13-P-1678 Appeals Court RONALD P. PASSATEMPO, trustee,[1] & others[2] vs. FREDERICK V. McMENIMEN, THIRD, & others.[3] No. 13-P-1678. Suffolk. September 16, 2014. – December 11, 2014. Present: Kantrowitz, Grainger, & Hanlon, JJ. Insurance, Agent, Life insurance, Fraud and concealment, Misrepresentation. Fraud. Consumer Protection Act, Insurance, Unfair or deceptive act, Attorney’s fees. Practice, Civil, Attorney’s fees, Judgment notwithstanding verdict, New trial. Damages, Attorney’s fees. Civil action commenced in the Superior Court Department on July 1, 2004. Following review by the Supreme Judicial Court, 461 Mass. 279 (2012), the case was tried before Thomas P. Billings, J.; a motion for judgment notwithstanding the verdict or, alternatively, for a new trial was heard by him; and a motion for attorney’s fees and costs was heard by him. Douglas Hallward-Driemeier for Nationwide Life Insurance Company of America & others. Charles M. Waters for the plaintiffs. GRAINGER, J. This case, boasting a lineage of more than a decade in numerous courts,[4] is now before us on appeal from a judgment holding the Nationwide defendants (collectively, Nationwide) liable to the plaintiffs on their G. L. c. 93A (c. 93A) claim. Nationwide argues error in the denial of its posttrial motion seeking to set aside the verdict or obtain a new trial and in the judge’s award of attorney’s fees and costs to the plaintiffs. G. L. c. 93A, § 9(4).[5] Background. The underlying dispute involves misrepresentations and fraud by which Frederick V. McMenimen, III, induced Samuel Pietropaolo, Sr. (Pietropaolo), to relinquish certain life insurance policies and purchase others, and is recounted in detail in Passatempo v. McMenimen, 461 Mass. 279, 281-285 (2012) (Passatempo I). At the beginning of the narrative, McMenimen was employed by the insurance brokerage firm New England Advisory Group, LLC, a business owned and managed by Barry G. Armstrong. McMenimen thereafter worked as an in-house broker for Provident Mutual Life Insurance Company (Provident) and, after losing that position, became self-employed. Provident was acquired by Nationwide after McMenimen was discharged from his Provident in-house position. Past trials and appellate decisions have resolved claims of liability on the part of McMenimen, New England Advisory Group, LLC, and Armstrong. We are now asked to consider an appeal from the judgment finding Nationwide liable to the plaintiffs. We refer to additional undisputed factual history insofar as it bears on Nationwide’s liability under theories of […]