Posts tagged "United"

United Salvage Corp. of America v. Kradin (Lawyers Weekly No. 12-159-16)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 16-03131 BLS 2 UNITED SALVAGE CORP. OF AMERICA d/b/a FRAMINGHAM SALVAGE CO., Plaintiff vs. RICHARD KRADIN, Defendant MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Plaintiffs United Salvage Corporation, doing business as Framingham Salvage Company (Framingham Salvage), instituted this action against the defendant Richard Kradin seeking enforcement of noncompetition and nonsolicitation agreements negotiated when Kradin sold his salvage business to plaintiff. A hearing on plaintiff’s request for a preliminary injunction was held on November 3, 2016. Ruling from the bench, this Court allowed that Motion and entered the Order proposed by plaintiff. Although this Court did articulate the reasons for its ruling in open court, this memorandum is issued by way of further explanation. Framingham Salvage is in the scrap metal and metal recycling business. In January 2015, it purchased all the assets of a competitor, Industrial Metal Recycling Inc. (IMR), owned by the defendant Kradin. In connection with that transaction, the parties executed a series of agreements, all of which are attached to the Verified Complaint. Kradin was represented by 2 counsel in negotiating these agreements, which reference each other and therefore are construed as a whole. Pursuant to an Asset Purchase Agreement, Framingham Salvage obtained all the assets of IMR, including its goodwill, in return for assuming liabilities totaling over $ 500,000 and forgiving IMR’s own $ 152,607 debt to plaintiff. Pursuant to an Employment Agreement, Framingham Salvage agreed to employ Kradin for a term of 60 months at a $ 250,000 annual salary. The parties executed a third agreement, entitled Proprietary Information and Inventions Agreement (the PII Agreement), which contains the restrictive covenants at issue in this case. Those covenants prohibit Kradin from competing with Framingham Salvage or soliciting the business of any customer with whom he has had personal contact or learned about during the course of his employment with the plaintiff. The covenants applied not only during the period of Kradin’s employment but continue for a period of five years from the date of the termination of his employment, regardless of the reason for the termination. Section 4(i ) if the PII Agreement further stated: Each of my obligations to be performed under this Agreement shall be interpreted independent of any other provisions of this Agreement, the Asset Purchase Agreement or my Employment Agreement and any other obligation the Company [Framingham Salvage] may have toward me. The existence of any claims by me against the Company, whether based on this Agreement or otherwise, shall not be a defense to the enforcement by the Company of any of my obligations under this Agreement.” On July 25, 2016, Framingham Salvage terminated Kradin, alleging that […]


Posted by Massachusetts Legal Resources - December 6, 2016 at 6:29 pm

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Winbrook Communications Services, Inc., et al. v. United States Liability Insurance Company (Lawyers Weekly No. 11-068-16)

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;   15-P-401                                        Appeals Court   WINBROOK COMMUNICATION SERVICES, INC., & others[1]  vs.  UNITED STATES LIABILITY INSURANCE COMPANY. No. 15-P-401. Suffolk.     March 8, 2016. – June 14, 2016.   Present:  Hanlon, Sullivan, & Massing, JJ. Practice, Civil, Default, Summary judgment.  Insurance, Coverage, Insurer’s obligation to defend, Construction of policy.  Contract, Insurance, Performance and breach.  Damages, Negligent misrepresentation.     Civil action commenced in the Superior Court Department on December 20, 2011.   The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion for reconsideration and a second motion for summary judgment were heard by Bonnie H. MacLeod, J.     Eric F. Eisenberg for the plaintiffs. John B. DiSciullo for the defendant.      SULLIVAN, J.  In this insurance coverage dispute we consider whether the factual record on cross motions for summary judgment is adequate to permit either party to establish entitlement to judgment as matter of law.  Plaintiff Winbrook Communication Services, Inc. (Winbrook[2]), appeals from a summary judgment declaring that the defendant, United States Liability Insurance Company (USLIC), had no obligation under a directors and officers liability policy to pay a judgment obtained by Winbrook against USLIC’s insureds, DeSales Group, LLC (DSG), and William York (collectively, DSG).  We conclude that it was error to grant USLIC’s motion for summary judgment because there remain genuine issues of material fact as to the applicability of the policy’s personal profit exclusion.  More precisely, there is a genuine dispute of material fact whether DSG received any profit, benefit, remuneration, or advantage to which DSG was not legally entitled.  Accordingly, we vacate and remand for further proceedings. Background.  The procedural history of the litigation is both material and undisputed.  Winbrook filed suit against DSG and York on August 24, 2010, alleging that York had made a series of negligent misrepresentations concerning DSG the entity’s financial condition that induced Winbrook to continue to work on the development of a children’s storybook series and associated promotional items.  The series never went to market and Winbrook sued, seeking compensation for work performed. DSG gave notice to USLIC of Winbrook’s claims in advance of suit.  USLIC replied that the policy would not cover the claims.  After suit was filed, Winbrook notified USLIC of the suit and of a pending motion for entry of default.  DSG reportedly told USLIC that it did not intend to […]


Posted by Massachusetts Legal Resources - June 15, 2016 at 1:20 am

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City of Springfield v. United Public Service Employees Union (Lawyers Weekly No. 11-035-16)

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;   15-P-742                                        Appeals Court   CITY OF SPRINGFIELD  vs.  UNITED PUBLIC SERVICE EMPLOYEES UNION. No. 15-P-742. Hampden.     February 11, 2016. – March 25, 2016.   Present:  Kafker, C.J., Rubin, & Agnes, JJ. Arbitration, Collective bargaining, Authority of arbitrator, Judicial review.  Employment, Sexual harassment, Termination.  Public Policy.  Public Employment, Collective bargaining, Termination, Reinstatement of personnel.  Civil Service, Termination of employment, Reinstatement of personnel.       Civil action commenced in the Superior Court Department on January 2, 2014.   The case was heard by John S. Ferrara, J.     Gordon D. Quinn for the plaintiff. Lan T. Kantany for the defendant.     KAFKER, C.J.  The issue presented is whether an arbitrator exceeded her authority when she ordered a terminated employee reinstated without loss of pay or other rights, even though she found that he had engaged in conduct amounting to sexual harassment.  Because the mitigating circumstances the arbitrator identified supported her determination that the employer lacked just cause for termination, and her order does not preclude appropriate remedial action to address the employee’s sexual harassment, we conclude that her award does not offend public policy or require a result prohibited by statute.  We therefore affirm the Superior Court judge’s decision confirming the validity of the award. 1.  Background.  The city of Springfield (city) discharged Gregory Ashe, a long-time employee, following an investigation and hearing after a coworker complained of sexually inappropriate conduct.  Ashe, through his union, grieved the city’s decision to terminate his employment.  Pursuant to the parties’ collective bargaining agreement (CBA), the case was submitted to an arbitrator.  The parties presented the following question:  ”Was the termination of the Grievant Gregory Ashe supported by just cause?  If not, what shall be the remedy?”  After two days of hearings, the arbitrator issued her award.  She determined that much of the alleged harassing conduct did occur, but found that mitigating circumstances meant there was not just cause for termination.  She concluded:  ”As a remedy, the Grievant is entitled to be reinstated to his position without loss of compensation or other rights.” The city sought to vacate the award in the Superior Court under G. L. c. 150C, § 11.  In its appeal, the city argued that the arbitrator exceeded her authority under the CBA by reinstating the employee in direct violation of the public policy and statutory requirements governing sexual harassment.  The judge, in […]


Posted by Massachusetts Legal Resources - March 25, 2016 at 3:52 pm

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