Wallace v. PNC Bank, N.A. (Lawyers Weekly No. 10-010-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12261 DAVID C. WALLACE vs. PNC BANK, N.A. January 16, 2018. Supreme Judicial Court, Superintendence of inferior courts. David C. Wallace (petitioner) filed a petition in the county court pursuant to G. L. c. 211, § 3 (general superintendence); G. L. c. 249, § 4 (relief in the nature of certiorari); and G. L. c. 249, § 5 (relief in the nature of mandamus), seeking relief from a judgment of the District Court in a summary process proceeding.[1] He also challenged a decision of the Appellate Division of the District Court affirming the appeal bond ordered by the trial judge in the same summary process proceeding. The single justice denied the petition without a hearing. We affirm. Regardless of whether relief is requested in the nature of certiorari or mandamus, or by means of the court’s extraordinary power of general superintendence, relief is available only where the petitioner demonstrates the absence of an adequate and effective alternative remedy. See Picciotto v. Appeals Court (No. 2), 457 Mass. 1002, 1002 (2010), cert. denied, 562 U.S. 1044 (2010) (certiorari review unavailable where other paths for review available); Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 82-83 (1968) (purpose of certiorari is to provide a remedy in absence of reasonably adequate alternative). See also Murray v. Commonwealth, 447 Mass. 1010, 1010 (2006) (relief in nature of mandamus is extraordinary, and granted in court’s discretion only where other relief unavailable); Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019 (1996) (relief properly denied under G. L. c. 211, § 3, “where there are [other] adequate and effective routes . . . by which the petitioning party may seek relief”). The petitioner failed to carry his burden of showing that adequate alternative remedies were not available here. To the extent he challenged the Appellate Division’s decision affirming the District Court judge’s order declining to waive an appeal bond, “[t]he proper course for [him] to have followed, if [h]e wished further to challenge the bond, was to refuse to pay the bond, suffer the dismissal of [his] summary process appeal, and then appeal to the Appeals Court (on the limited bond issue) from the order of dismissal.”[2] Matter of an Appeal Bond (No. 1), 428 Mass. 1013, 1013 (1998) (collecting cases). See Erickson v. Somers, 446 Mass. 1015, 1015 (2006). To […]
U.S. Bank, National Association, v. Milan, et al. (Lawyers Weekly No. 11-149-17)
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-1011 Appeals Court U.S. BANK, NATIONAL ASSOCIATION, trustee,[1] vs. STEVEN L. MILAN & another.[2] No. 16-P-1011. Essex. March 1, 2017. – December 4, 2017. Present: Green, Wolohojian, & Sullivan, JJ. Mortgage, Foreclosure, Real estate. Summary Process. Real Property, Mortgage, Sale. Notice, Foreclosure of mortgage. Sale, Real estate. Practice, Civil, Summary process, Retroactivity of judicial holding. Retroactivity of Judicial Holding. Summary process. Complaint filed in the Northeast Division of the Housing Court Department on July 23, 2012. The case was heard by David D. Kerman, J., on motions for summary judgment. Michael R. Murphy (Michael R. Stanley also present) for the plaintiff. Carl D. Goodman for the defendants. GREEN, J. The plaintiff (U.S. Bank) appeals from a judgment of a Housing Court judge, dismissing its complaint for summary process. The Housing Court judge based his order of dismissal on the failure of U.S. Bank’s notice of default to comply strictly with the requirements of paragraph 22 of the mortgage it foreclosed against the defendants, Steven and Karen Milan (Milans), incident to U.S. Bank’s acquisition of title to the property. In so doing, the judge applied the holding of Pinti v. Emigrant Mort. Co., 472 Mass. 226, 241-242 (2015) (Pinti), to invalidate U.S. Bank’s claim of title. We conclude that was error, and reverse. Background. The Milans are the former owners and current occupants of residential property located at 56 Jasper Road in Saugus. On May 16, 2005, incident to a loan refinance, the Milans granted to Mortgage Electronic Registration Systems, Inc. (MERS), a mortgage on the property to secure a note made to Saugus Federal Credit Union.[3] In 2007, the Milans defaulted on the mortgage loan, and on June 18, 2007, U.S. Bank’s servicing agent (which had succeeded MERS as mortgagee by assignment) sent to the Milans the first of several notices of default.[4] The Milans assert, and the Housing Court judge concluded, that the notices did not comply strictly with the requirements specified for such notices in paragraph 22 of the mortgage.[5] Thereafter, U.S. Bank conducted a foreclosure auction, pursuant to the statutory power of sale contained in the mortgage, and (as U.S. Bank was the successful bidder at the auction) a foreclosure deed in favor of U.S. Bank was recorded on June 21, 2012. The Milans […]
Ressler v. Deutsche Bank Trust Company Americas, et al. (Lawyers Weekly No. 11-148-17)
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-1711 Appeals Court MONIKA M. RESSLER vs. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & others.[2] No. 16-P-1711. Dukes. October 4, 2017. – December 1, 2017. Present: Agnes, Sacks, & Lemire, JJ. Mortgage, Foreclosure, Assignment. Real Property, Mortgage. Assignment. Trust, Trustee’s authority. Practice, Civil, Motion to dismiss, Attorney’s fees, Frivolous action. Civil action commenced in the Superior Court Department on July 7, 2016. A motion to dismiss was heard by Mitchell H. Kaplan, J. Glenn F. Russell, Jr., for the plaintiff. Robert M. Mendillo for Deutsche Bank Trust Company Americas & another. Grace C. Ross, pro se, amicus curiae, submitted a brief. SACKS, J. The plaintiff Monika M. Ressler (the borrower) appeals a Superior Court judgment dismissing her complaint for declaratory and other relief based on her claim that the defendant Deutsche Bank Trust Company Americas, trustee of Residential Accredit Loans Inc. Mortgage Asset-Backed Pass-Through Certificates, Series 2006-QS18 (Deutsche Bank) had acquired her mortgage in violation of a governing pooling and service agreement, making its foreclosure on her mortgage invalid. Because the borrower’s various arguments are either squarely barred by precedent or border on the frivolous, we affirm. Although we deny Deutsche Bank’s request that, as a sanction for a frivolous appeal, we award attorney’s fees and costs against the borrower and her counsel jointly and severally, we caution counsel here that such a sanction is within an appellate court’s authority and is more likely to be imposed if counsel fails to heed warnings against repetitive pursuit of unmeritorious appeals.[3] Background. We review the sufficiency of the borrower’s complaint de novo, taking as true its factual allegations and drawing all reasonable inferences in her favor. Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). “[W]e look beyond the conclusory allegations in the complaint and focus on whether the factual allegations plausibly suggest an entitlement to relief.” Ibid., citing Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008). In doing so, we consider, among other things, exhibits attached to the complaint. Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). In 2006 the borrower took a $ 500,000 mortgage loan from Lendia, Inc. (the lender), giving the lender a promissory note for that amount and a mortgage on her property in West Tisbury to secure […]
Wells Fargo Bank, N.A. v. Comeau (Lawyers Weekly No. 11-143-17)
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-335 Appeals Court WELLS FARGO BANK, N.A., trustee,[1] vs. NANCY P. COMEAU. No. 16-P-335. Essex. November 3, 2016. – November 15, 2017. Present: Agnes, Blake, & Desmond, JJ. Subrogation. Mortgage, Priority. Real Property, Mortgage. Civil action commenced in the Superior Court Department on June 17, 2013. The case was heard by Timothy Q. Feeley, J., on motions for summary judgment. Andrew S. Lee for the plaintiff. Gregory N. Eaton for the defendant. AGNES, J. Where, as in this case, the doctrine of equitable subrogation is invoked by a mortgagee, it usually refers to a situation in which that party claims that because it has paid the obligation of another person or entity, it is entitled to be put into the shoes of the party it has paid in order to recover from the person or entity that had the obligation.[2] In the present case, on the other hand, the plaintiff, Wells Fargo Bank, N.A., as trustee for WAMU Mortgage Pass Through Certificates Series 2005-PR2 Trust (Wells Fargo), asks us to employ the doctrine of equitable subrogation to impose on a surviving spouse an obligation to pay the balance of a note that her deceased husband was obligated to pay when he refinanced their home in circumstances in which the surviving spouse was a party to neither the note nor the accompanying mortgage. For the reasons that follow, we reject this novel argument as fundamentally at odds with the framework established by the Supreme Judicial Court in East Boston Sav. Bank v. Ogan, 428 Mass. 327 (1998). Background. Nancy P. Comeau (Nancy) and her husband, William L. Comeau (William),[3] owned a residence as tenants by the entirety in Groveland (locus), which, as of September 22, 2003, was encumbered by a mortgage to the Haverhill Co-Operative Bank (Haverhill) in the amount of $ 150,000. Both William and Nancy were mortgagors-grantors on that mortgage to Haverhill, but Nancy was not a signatory to the note. There is no evidence that Nancy represented, directly or indirectly, that she was bound by the terms of the note. Two years later, in 2005, William refinanced the 2003 loan by executing a note in his name only to Washington Mutual Bank, F.A. (Washington Mutual), in the amount of $ 300,000 secured […]
Valente v. TB Bank, N.A. (Lawyers Weekly No. 11-117-17)
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-1119 Appeals Court GERALD VALENTE, executor,[1] and trustee,[2] vs. TD BANK, N.A.[3] No. 16-P-1119. Worcester. March 3, 2017. – August 30, 2017. Present: Agnes, Kinder, & Shin, JJ. Bank. Negligence, Bank. Notice, Timeliness. Uniform Commercial Code, Bank, Notice, Payment on negotiable instrument. Negotiable Instruments, Payment. Civil action commenced in the Superior Court Department on October 25, 2011. The case was heard by Daniel M. Wrenn, J., on a motion for summary judgment. Barry A. Bachrach for the plaintiff. Catherine R. Connors for the defendant. AGNES, J. Before a bank customer may sue his bank for honoring a check drawn on his account that bears an “unauthorized signature or alteration,” Massachusetts law requires that the customer notify the bank of the matter within one year after a statement of the account showing the item that was paid is made available to him. G. L. c. 106, § 4-406(f), as appearing in St. 1998, c. 24, § 8.[4] In the present case, the plaintiff, Gerald Valente, in his capacity as the executor of the estate of Mauro Valente (decedent or Mauro) and as trustee of the Valente Family Trust, brought suit against the decedent’s widow, Donna Valente,[5] and her daughter, Lillianna Saari, alleging that they wrongfully misappropriated substantial sums of money from the decedent’s estate and a family trust that were on deposit in TD Bank, N.A. (bank). In the same action, in the only count in the complaint against the bank, the plaintiff alleged that the bank was negligent and thereby liable for damages because it was aware of the wrongful conduct by the decedent’s widow. For substantially the same reasons given by the Superior Court judge below, who allowed the bank’s motion for summary judgment in a thoughtful and comprehensive memorandum of decision, we hold that the one-year notice requirement set forth in G. L. c. 106, § 4-406(f), bars a customer’s lawsuit against his bank for honoring a check with a forgery of the customer’s signature despite an allegation that the bank had actual knowledge of the forgery.[6] Background. The essential facts material to the outcome in this case are not in dispute. The following account is drawn from the materials submitted by the plaintiff and the bank in connection with the bank’s motion for summary judgment. Mauro and Donna […]
Strawbridge v. The Bank of New York Mellon (Lawyers Weekly No. 11-093-17)
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-1244 Appeals Court SANDRA M. STRAWBRIDGE vs. THE BANK OF NEW YORK MELLON.[1] No. 16-P-1244. Norfolk. May 1, 2017. – July 20, 2017. Present: Agnes, Massing, & Lemire, JJ. Mortgage, Foreclosure, Assignment. Real Property, Mortgage. Notice, Foreclosure of mortgage. Assignment. Practice, Civil, Motion to dismiss. Civil action commenced in the Superior Court Department on August 11, 2015. A motion to dismiss was heard by Jeffrey A. Locke, J., and a motion for reconsideration was considered by him. Glenn F. Russell, Jr., for the plaintiff. Anthony J. Coletti for the defendant. AGNES, J. The plaintiff, Sandra M. Strawbridge, appeals from a judgment of the Superior Court dismissing her verified complaint for declaratory and injunctive relief, which challenges the action of the defendant, Bank of New York Mellon (Bank), as trustee for the Certificateholders CWABS, Inc., Asset Backed Certificates Series 2007-10 (CWABS trust), to foreclose on her property. She maintains that the judge erred in applying G. L. c. 244, § 14, and some of our recent case law. As Strawbridge has failed to state a plausible claim that the Bank, at the time of foreclosure, did not hold both the mortgage and the note, see Eaton v. Federal Natl. Mort. Assn., 462 Mass. 569, 583-589 (2012), and based on the sound reasoning in the judge’s thorough memorandum of decision, we affirm. Background. The verified complaint, viewed in a light most favorable to Strawbridge, contains the following facts. In 2007, Strawbridge received a $ 370,000 loan as part of a home refinancing arrangement with Countrywide Home Loans, Inc. (Countrywide). In exchange for the loan, Strawbridge executed a promissory note payable to Countrywide, and granted a mortgage on the subject property to secure payment for the note. The mortgage identified Countrywide as the “Lender” and Strawbridge as the “Borrower.” The mortgage also designated Mortgage Electronic Registration Systems, Inc. (MERS)[2] as the mortgagee, “acting solely as a nominee for Lender and Lender’s successors and assigns.” Although MERS held the mortgage solely as a nominee for Countrywide, the mortgage contained a provision authorizing MERS to act on behalf of Countrywide in the event of a default.[3] In 2009, Strawbridge defaulted on her note by failing to keep up with her mortgage payments. In February, 2010, MERS assigned Strawbridge’s mortgage to the Bank. A MERS […]
McEvoy v. Savings Bank Life Insurance Co. of Massachusetts (Lawyers Weekly No. 12-084-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2017-1961 BLS1 LESLIE V. McEVOY, individually and on behalf of a class of similarly situated persons, vs. SAVINGS BANK LIFE INSUARNCE CO. OF MASSACHUSETTS MEMORANDUM OF DECISION AND ORDER PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION The plaintiff Leslie V. McEvoy alleges that she holds a participating whole life insurance policy issued by the defendant Savings Bank Life Insurance Co. (SBLI).1 In this action, she seeks to enjoin all SBLI’s policyholders from voting on a proposed conversion of SBLI from a stock life insurance company to a mutual life insurance company. The case came before the court on June 27, 2017 on the plaintiff’s motion for a preliminary injunction enjoining the vote until additional disclosures concerning the plan of conversion demanded by her were made to SBLI’s other 480,000 policyholders. In her complaint, the plaintiff alleges that the vote on the plan of conversion is to occur at a Special Meeting of policyholders scheduled for that purpose on June 28, 2017. It appears, however, that voting has actually been underway for weeks. While the meeting was scheduled for 11:00 AM on June 28, 2017, and policyholders present at the meeting who had not previously voted could vote at that time, voting opened on May 19, 2017 and could be accomplished by mail, phone call, or on the internet, so long as the votes were 1 It appears that the plaintiff owns two policies, each in the face amount of $ 1,000, although was is pledged to a division of the State of New Hampshire. 2 received in time to be counted by the time of the meeting. As a result, the majority of votes cast in this election may well have been received by SBLI management before the annual meeting. In consequence, from a practical perspective a motion brought before the court on the afternoon of June 27th to preliminarily enjoin the vote that was to be completed and tallied the following morning was not timely. The proposed conversion of SBLI into a mutual insurance company calls for the SBLI shareholders, 30 Massachusetts banks or banks that had acquired Massachusetts banks, to receive $ 57.3 million in return for their shares in SBLI. This sum is to be financed through the issuance of Surplus Notes. While SBLI and its financial advisers have been working for some time on the sale of these Surplus Note to certain financial institutions, at oral argument the court was informed that the closing on that transaction was still two or three weeks away. In theory, therefore, the court could still issue a mandatory preliminary injunction voiding the vote, which would of course preclude any possibility […]
Brady, et al. v. Citizens Union Savings Bank, et al. (Lawyers Weekly No. 11-025-17)
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-308 Appeals Court NANCY BRADY, executrix,[1] & another[2] vs. CITIZENS UNION SAVINGS BANK[3] & another.[4] No. 16-P-308. Bristol. December 6, 2016. – March 9, 2017. Present: Green, Agnes, & Desmond, JJ. Probate Court, Attorney’s fees, Trust. Trust, Attorney’s fees. Executor and Administrator, Attorney’s fees. Practice, Civil, Attorney’s fees. Complaint in equity filed in the Bristol Division of the Probate and Family Court Department on July 13, 2011. Following review by this court, 88 Mass. App. Ct. 416 (2015), an award of attorney’s fees, costs, and compensation for professional services was entered by Virginia M. Ward, J. Carol L. Ricker for Dale Eggers. Edwin F. Landers, Jr., for W. Nancy Brady. Ben N. Dunlap for Edwin J. Haznar, Jr. GREEN, J. On remand following our decision in a previous appeal in this case, see Brady v. Citizens Union Sav. Bank, 88 Mass. App. Ct. 416 (2015) (Brady I), the Probate and Family Court judge entered a thorough and detailed written memorandum of decision, in which she reduced from $ 457,902.09 to $ 350,680.80[5] the amount the plaintiffs could recover as reimbursement for fees and costs their decedents incurred in defense of a lawsuit brought against them by the defendant Dale Eggers and her daughter. Eggers has again appealed, contending that (1) the amount of fees is unreasonable in light of the nature and complexity of the underlying litigation; (2) the amount of fees represents an unreasonable proportion of the value of assets held by the Wilson O. Smith Trust (trust); and (3) the judge failed adequately to consider the availability of insurance proceeds as an alternative source of reimbursement. We affirm, addressing Eggers’s arguments in turn.[6] Lodestar method.[7] In determining the amount of a reasonable fee, we consider “the nature of the case and the issues presented, the time and labor required, the amount of damages involved, the result obtained, the experience, reputation and ability of the attorney, the usual price charged for similar services by other attorneys in the same area, and the amount of awards in similar cases.” Linthicum v. Archambault, 379 Mass. 381, 388-389 (1979). Determination of a reasonable fee is in the first instance largely committed to the sound discretion of the trial judge, who is in the best position to evaluate the […]
Turra v. Deutsche Bank Trust Company Americas, trustee, et al. (Lawyers Weekly No. 10-020-17)
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 SJC-12075 SANDRO TURRA vs. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & another.[2] January 30, 2017. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage. The plaintiff, Sandro Turra, commenced this action against Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC (Deutsche Bank), seeking a declaration that Deutsche Bank’s foreclosure of the mortgage on his home was invalid and seeking to quiet title to the property. A judge in the Superior Court allowed Deutsche Bank’s motion to dismiss the complaint, and Turra appealed.[3] The appeal raises a single issue: whether a foreclosing mortgagee’s failure to comply with G. L. c. 244, § 15A, by failing to send the postforeclosure notices required by the statute, renders the foreclosure void. We conclude, as did the trial court judge, that it does not, and we therefore affirm. Background. On April 3, 2007, Turra executed a mortgage on the property in question to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee.[4] The lender was Homecomings Financial, LLC. On August 12, 2010, MERS assigned the mortgage to Deutsche Bank. Then, on November 8, 2010, Deutsche Bank, through its servicing agent GMAC Mortgage, LLC, notified Turra that he was in default under the terms of the mortgage. Deutsche Bank subsequently foreclosed on the home on January 15, 2013. In April, 2013, Deutsche Bank commenced a summary process action against Turra in the District Court. Turra then commenced this action in the Superior Court, where his motion to transfer the summary process action and consolidate it with this case was allowed. In response to Deutsche Bank’s motion to dismiss his complaint, Turra argued, among other things, that the foreclosure was void because Deutsche Bank failed to strictly comply with the power of sale as set forth in G. L. c. 183, § 21, and further regulated by G. L. c. 244, §§ 11-17C. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011) (Ibanez). In particular, Turra argued that Deutsche Bank failed to comply with G. L. c. 244, § 15A, which provides that “a mortgagee conveying title to mortgaged premises pursuant to the provisions of this chapter shall, within thirty days of taking possession or conveying title, notify . . . the office of the assessor or collector of taxes of the municipality in which the premises are located and […]
Massachusetts Insurers Insolvency Fund v. Berkshire Bank (Lawyers Weekly No. 10-174-16)
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 SJC-12019 MASSACHUSETTS INSURERS INSOLVENCY FUND vs. BERKSHIRE BANK. Suffolk. September 8, 2016. – November 3, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Massachusetts Insurers Insolvency Fund. Insurance, Workers’ compensation insurance, Insolvency of insurer. Workers’ Compensation Act, Insurer, Reimbursement of insurer. Statute, Construction. Words, “On behalf of.” Civil action commenced in the Superior Court Department on July 14, 2014. The case was heard by Mitchell H. Kaplan, J., on motions for summary judgment. The Supreme Judicial Court granted applications for direct appellate review. Gregory P. Deschenes (Kurt Mullen with him) for the plaintiff. Owen Gallagher (Gordon Prescott with him) for the defendant. BOTSFORD, J. General Laws c. 175D, § 17 (§ 17), authorizes the Massachusetts Insurers Insolvency Fund (Fund) to recover from “high net worth insureds” certain amounts paid by the Fund “on behalf of” such insureds. G. L. c. 175D, § 17 (3). The Fund brought this action in the Superior Court pursuant to § 17, seeking to recover from the defendant Berkshire Bank (Berkshire) an entity that meets the definition of “high net worth insured,” workers’ compensation benefits it has paid to a Berkshire employee. Ruling on cross motions for summary judgment, a judge of that court interpreted § 17 (3) to preclude the Fund’s recovery. We conclude that the Fund is authorized to recoup the amounts in question because they were paid by the Fund “on behalf of” Berkshire within the meaning of § 17 (3). Accordingly, we reverse the judgment of the Superior Court. Background. Both parties agree that there are no material facts in dispute. The memorandum of decision of the Superior Court judge sets out the background facts succinctly, which we quote here: “In May 2003, [Donna] Poli, an assistant branch manager for Woronoco Savings Bank (Woronoco), injured her back while lifting coin-filled bags. Woronoco was then the named insured under a workers’ compensation/employer’s liability policy issued by Centennial [Insurance Company]. Woronoco notified Centennial of the injury and Centennial began paying Poli weekly workers’ compensation benefits pursuant to G. L. c. 152, § 34 [providing temporary total incapacity benefits for up to three years]. On June 16, 2005, Woronoco merged with and into Berkshire. “In August 2006, Poli exhausted her entitlement to benefits under […]
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