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Maslow v. O’Connor (Lawyers Weekly No. 11-040-18)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-1674 Appeals Court JAMES MASLOW & others.[1] vs. CAROLYN O’CONNOR[2] & others.[3] No. 16-P-1674. Essex. January 3, 2018. – April 6, 2018. Present: Wolohojian, Milkey, & Englander, JJ. Real Property, Littoral property, License, Harbors. Way, Private. Trust, Public trust. Real Property, Harbors. Civil action commenced in the Superior Court Department on March 29, 2011. Motions for summary judgment were heard by Robert A. Cornetta, J. Robert S. Wolfe for the plaintiffs. John A. Christopher (Glenn A. Wood also present) for the defendants. ENGLANDER, J. In this case we examine whether the filling of an area of tidelands pursuant to a G. L. c. 91 license extinguished rights held by upland owners to cross that area to access the remaining tidelands and the sea. A Superior Court judge determined that the filling of certain tidelands extinguished the plaintiffs’ rights to access remaining tidelands through the end of a private way to which they were abutters. We reverse, because the c. 91 license by its terms preserved those rights. Background. a. The dispute.[4] This case involves Rackliffe Street, a private way on Rocky Neck, a peninsula that juts into Gloucester Harbor. Rackliffe Street runs north-south, and it is not disputed that at least prior to 1925, the southern end of Rackliffe terminated at the mean high water mark of Wonson’s Cove, in Gloucester Harbor, such that Rackliffe Street abutters could walk down Rackliffe and access the tidelands from the end of the street. Currently, the black-topped Rackliffe Street does not extend all the way to Wonson’s Cove. Rather, it terminates approximately ten feet short of the high water mark, after which one must pass over a “grassy strip.” At the southerly end of this ten-foot grassy strip there is a ramp, which descends into the tidelands and can be used for access. The basic dispute is as follows: The plaintiffs are Rackliffe Street abutters whose homes are not at the southerly end of the street but who seek access to the tidelands across the grassy strip and ramp. The defendants are the most southerly abutters, on opposite sides of Rackliffe Street where the street ends at Wonson’s Cove. They seek to prevent such access. The O’Connor defendants live at number 18, on the east side of Rackliffe; defendant […]

O’Connor Constructors, Inc. v. HVAC Compensation Corporation, et al. (Lawyers Weekly No. 12-099-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-0205-BLS1 O’CONNOR CONSTRUCTORS, INC. vs. HVAC COMPENSATION CORPORATION and others1 MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT In this action, the plaintiff, O’Connor Constructors, Inc. (O’Connor), seeks to recover sums paid by the defendant HVAC Compensation Corporation (HVAC), a non-profit corporation established as a workers compensation self-insurance group or SIG, to purchase a loss portfolio transfer (LPT) insurance policy. O’Connor withdrew from HVAC at the end of 2009. It asserts that a substantial portion of the surplus that HVAC used to purchase the LPT policy should have been distributed to it as dividend. O’Connor also seeks to set aside an assessment that HVAC issued against O’Connor for additional funds to cover a liquidity deficit created by the purchase of the LPT policy. The additional defendants are the trustee/directors of HVAC (hereafter referred to as the Directors), each of whom are representatives of the companies that comprise the SIG, as well as the member companies themselves. While O’Connor’s complaint initially pled seven counts, four were previously dismissed. Three counts remain: breach of contract (Count I), breach of fiduciary duty (Count VI), and violation of G.L. c. 93A (Count VII). The 1 (i) Richardd Donohoe, William J. Lynch, Kevin R. Gill, James Morgan, Paul M. Level, Jr., and Shane B. Hamel, each sued individually and as Trustee/Director of HVAC, and (ii) Harrington Bros. Corporation, William V. Lynch Co., Inc., McCusker-Gill co., Inc., Worcester Air Conditioning, LLC, Le Bel, Inc., and Hamel & McAlister, Inc. 2 case is now before the court on the defendants’ motion for summary judgment. For the following reasons, the motion is DENIED as to Counts I and VI and ALLOWED as to Count VII. FACTS The following facts are either undisputed or viewed in the light most favorable to O’Connor, the non-moving party. In 1992, HVAC was organized to operate as a workers’ compensation SIG pursuant to G.L. c. 152, §§25E – 25U. Its members were companies principally engaged in the heating, ventilation, and air conditioning trades in Massachusetts. While a SIG is permitted to organize itself in various forms, HVAC was organized as a not-for-profit corporation under G.L. c. 180, § 4(n). Each HVAC member is required to enter into an Application and Indemnity Agreement (Indemnity Agreement) and is bound by HVAC’s by laws. Material to this case is a provision in G.L. c. 180, § 3 which provides that not-for-profit corporations, like HVAC, may not through their articles of organization or bylaws eliminate the personal liability of its directors “ (i) for any breach of the . . . director’s duty of loyalty to the corporation or its members, (ii) for […]