Clayman, et al. v. McLaughlin, et al. (Lawyers Weekly No. 12-125-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 1684CV2373 DEBORAH A. CLAYMAN, individually and as trustee, and RICHARD E. MASTROCOLA, trustee1 Plaintiffs vs. JOHN T. McLAUGHLIN, et al. Defendants MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS The widow of a real estate entreprenuer sues several individuals and entities following the death of her husband. The Second Amended Complaint (“SAC”) alleges breach of fiduciary duty, aiding and abetting tortious acts, tortious interference with a contractual relationship and conversion. To briefly summarize the SAC, the widow alleges at least three wrongful acts or series of acts. First, she claims that the individual selected by her husband to be his executor (personal representative) and trustee of his revocable trust, upon the husband’s death, breached fiduciary duties to her as a beneficiary and co-trustee. Second, she alleges that the brother/business partner of her husband schemed with the executor to diminish what she was to receive under her husband’s estate planning documents. Third, she alleges that defendants are, to this day, refusing to pay to her trust amounts owed after the sale of a property and are, thus, converting those proceeds. Defendants’ move to dismiss arguing that the SAC fails to state a claim upon which relief can be granted. To address the arguments, the stage must be set from the 1 Deborah A. Clayman and Richard E. Mastrocola are the trustees of Deborah’s Trust, described herein. facts as alleged in the SAC, including the documents attached or referenced in the SAC. BACKGROUND Deborah A. Clayman married Richard I. Clayman in 2005.2 In connection with their marriage, Deborah and Richard entered into a Prenuptial Agreement dated October 13, 2005. Subsequently, Richard executed a Will and a Revocable Trust on January 25, 2006. Richard’s Will names defendant, John T. McLaughlin, as his executor (personal representative). Under the Revocable Trust, McLaughlin is named as trustee. These instruments, read together, detail Richard’s intent with respect to what Deborah should receive after Richard’s death.3 McLaughlin was a trusted friend of Richard’s. He is a lawyer and a partner in the defendant law firm, Berluti McLaughlin & Kutchin, LLP. A. Estate Plan Instruments The relevant terms of the Prenuptial Agreement are the following. Richard’s interests in nine real estate investments are defined as “Separate Property.” Richard’s interest in the real estate project known as Revere Beach at Oak Island is defined as “Marital Property.” One of the properties listed as Separate Property is Richard’s residence at 615 Revere Beach Boulevard, Revere. With respect to that property, Richard expressly agrees that upon his death Deborah shall be entitled to receive the Revere residence outright and free of encumbrances. The Prenuptial Agreement also contains the following provision for the […]
McLaughlin, et al. v. American States Insurance Company (Lawyers Weekly No. 11-099-16)
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 15-P-729 Appeals Court DANIEL McLAUGHLIN & another[1] vs. AMERICAN STATES INSURANCE COMPANY. No. 15-P-729. Middlesex. May 19, 2016. – August 12, 2016. Present: Kafker, C.J., Cohen, & Green, JJ. Consumer Protection Act, Insurance, Offer of settlement, Unfair act or practice, Attorney’s fees, Damages. Insurance, Settlement of claim, Unfair act or practice. Damages, Attorney’s fees. Practice, Civil, Attorney’s fees. Civil action commenced in the Superior Court Department on February 21, 2008. The case was heard by Paul D. Wilson, J. John F. Brosnan (James E. Harvey, Jr. with him) for the defendant. Matthew N. Kane for the plaintiffs. GREEN, J. After the well installed by Shaun Harrington began pumping salt water through the plaintiffs’ (McLaughlins) irrigation system, causing extensive damage to their landscaping, the McLaughlins sought recovery from Harrington and his insurer, the defendant, American States Insurance Company (ASIC). Both denied liability, and the McLaughlins eventually filed an action against Harrington and two others.[2] After the McLaughlins obtained a judgment in their favor against Harrington, they commenced this action against ASIC, claiming unfair insurance settlement practices. A judge of the Superior Court entered judgment against ASIC, and awarded the McLaughlins damages based on the legal expenses they incurred in prosecuting their suit against Harrington, but declined to award multiple damages as permitted by the statute. See G. L. c. 93A, § 9(3). On the parties’ cross appeals, we conclude that the judge correctly determined that ASIC failed to conduct a reasonable investigation of the McLaughlins’ claim, and that it failed to make a reasonable offer of settlement after liability of its insured became reasonably clear. We also discern no error of law or abuse of discretion by the judge in his refusal to award the McLaughlins multiple damages. However, we conclude that the judge erred in his failure to award the McLaughlins damages based on the loss of use of the funds ASIC should have offered in settlement once Harrington’s liability became reasonably clear. Background. We summarize the written findings of fact entered by the judge in his detailed and thorough memoranda of decision.[3] In 2003, Assurance was nearing completion of construction of a home for the McLaughlins in Osterville. The home is on a peninsula, surrounded on three sides by salt water bodies connected to Nantucket […]
McLaughlin v. City of Lowell (Lawyers Weekly No. 11-093-13)
NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Web site once the advance sheets of the Official Reports are published. 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 James McLAUGHLIN vs. CITY OF LOWELL. No. 11-P-2072. Middlesex. February 7, 2013. – July 25, 2013. Fire Fighter, Retirement, Incapacity. Municipal Corporations, Fire department, Retirement board. Public Employment, Accidental disability retirement, Reinstatement of personnel. Public Employee Retirement Administration Commission. Division of Administrative Law Appeals. Contributory Retirement Appeal Board. Administrative Law, Judicial review. Collateral Estoppel. Practice, Civil, Summary judgment, Judgment notwithstanding verdict. Employment, Discrimination. Anti-Discrimination Law, Employment, Handicap. CIVIL ACTION commenced in the Superior Court Department on May 24, 2004. Motions for summary judgment were heard by Joseph M. Walker, III, J., and the case was tried before him. Betsy L. Ehrenberg (Alfred Gordon with her) for the plaintiff. Kimberley A. McMahon, Assistant City Solicitor, for the defendant. Present: Cypher, Kantrowitz, & Fecteau, JJ. FECTEAU, J. The plaintiff, James McLaughlin, and the defendant, city of Lowell (city), each appeal from orders and judgments of a judge of the Superior Court. McLaughlin, a former fire department captain retired on a disability pension, sought restoration to service. He appeals the entry of summary judgment in favor of the city with respect to his reinstatement claim under G.L. c. 32, § 8(2). Having successfully brought handicap discrimination and interference claims, however, which resulted in jury verdicts in his favor, McLaughlin avers that the trial judge improperly eviscerated the remedial scheme of G.L. c. 151B and arbitrarily reduced the amount of his attorney’s fees and costs. [FN1] On the other hand, the city contends that the Superior Court lacked jurisdiction over McLaughlin’s discrimination claims and erroneously allowed McLaughlin to relitigate matters already decided before the Division of Administrative Law Appeals (DALA) and the Contributory Retirement Appeal Board (CRAB). The city additionally argues that McLaughlin did not prove a prima facie case of handicap discrimination or interference, and further, that the judge erred in giving certain jury instructions. [FN2] We affirm in part and reverse in part. 1. Background. McLaughlin began working as a firefighter with the Lowell fire department (LFD) in 1974, ultimately attaining the rank of captain. On July 8, 1996, McLaughlin suffered an asthma attack after responding to a small outdoor mulch fire without wearing protective gear. Thereafter, McLaughlin applied for and was granted accidental disability retirement under […]