Superior Court of Massachusetts, Suffolk, Business Litigation Session
Elisha ERB, as Trustee of the Marc A. DiGeronimo Irrevocable Trust, and Marc A. DiGeronimo
James D. JAVARAS et al.
Date: June 15, 2018
MEMORANDUM AND ORDER ON DEFENDANTSâ MOTION FOR
Kenneth W. Salinger, Justice of the Superior Court
Plaintiffs claim that James Javaras and his insurance
agencies ("Defendants") engaged in a
"churning" scheme by misleading Marc A. DiGeronimo
and the Marc A. DiGeronimo Irrevocable Trust into repeatedly
buying unnecessary, unsuitable, and expensive life insurance
policies in order to increase Defendantsâ commissions.
DiGeronimo formed the Trust in 2002 to own life insurance
policies that would be used to satisfy his anticipated future
estate tax liability. Javaras served as a co-trustee of the
Trust from the time it was formed until March 2013.
Plaintiffs assert claims for breach of fiduciary duty, fraud,
negligence, and violation of G.L.c. 93A.
have moved for summary judgment. They argue that all the
claims are time barred, that Plaintiffs released these claims
or are estopped from asserting them by the same document, and
that DiGeronimo has no viable claim as to the so-called
"Collateral Policy" because he got exactly what he
Court is not convinced that Defendants are entitled to
judgment in their favor as a matter of law. It will therefore
DENY the summary judgment motion.
Statutes of Limitations
argument that most of the claims against them are barred by
the applicable statute of limitations turns on disputed
issues of fact that cannot be resolved on a motion for
filed suit on October 13, 2014. The applicable statutes of
limitations therefore bar any tort claims that accrued before
October 13, 2011 (see G.L.c. 260, § 2A) and any claim
under G.L.c. 93A that accrued before October 13, 2010 (see
G.L.c. 260, § 5A). Cf. Passatempo v. McMenimen,
461 Mass. 279, 296-97 (2012) (mere fact that allegations
supporting 93A claim would also support common-law tort claim
does not make 93A claim subject to shorter, three-year
limitations period is tolled so long as a defendant
fraudulently conceals its wrongdoing. See generally Hays
v. Ellrich, 471 Mass. 592, 601-02 (2015); G.L.c. 260,
§ 12. "Where a fiduciary relationship exists, the
failure adequately to disclose the facts that would give rise
to knowledge of a cause of action constitutes fraudulent
conduct and is equivalent to fraudulent concealment."
Id. at 602, quoting Demoulas v. Demoulas Super
Mkts., Inc., 424 Mass. 501, 519 (1997).
where the defendant is accused of breaching a fiduciary duty,
the statute of limitations is tolled until the plaintiff
"has âactual knowledgeâ that she has been injured by the
fiduciaryâs conduct." Id., quoting Doe v.
Harbor Schools, Inc., 446 Mass. 245, 254-55 (2006).
"Mere suspicion or mere knowledge that the fiduciary has
acted improperly does not amount to actual knowledge that the
plaintiff has suffered harm" as a result of the
fiduciaryâs breach of duty. Harbor Schools, 446
Mass. at 255.
does not mean that the limitations clock begins only when the
plaintiff has a legal claim, that is, when she realizes that
the defendant has violated a law that entitles her to sue to
recover damages." Hays, 471 Mass. at 602.
"Rather, the clock begins when the plaintiff has âactual
knowledge of the wrong committed by the fiduciary."
circumstances of this case, if a jury were to find that
Javaras was acting in a fiduciary capacity when he urged
DiGeronimo or the Trust to buy the disputed policies, then
the limitations clock would have begun to run only when
DiGeronimo or the trustee had "actual knowledge of the
unsuitability of the" insurance policies and annuities.
Hays, 471 Mass. at 606. That is because a fiduciary
would have a legal duty to disclose that these financial
products were unsuitable, and under Massachusetts law the
failure to make that disclosure would constitute fraudulent
has presented evidence that neither he nor the Trust had
actual knowledge that Javaras had advised them to purchase
unsuitable policies until sometime after March 25, 2013, when
Javaras resigned as trustee of the Trust and was replaced by
Elisha Erb. Thereafter Attorney Erb reviewed the various
policies that Plaintiffs had purchased on Javarasâ
recommendation, and concluded for the first time that the
policies were unsuitable.
jury were to credit that evidence, then it would find that
the statutory limitations period did not start to run until
sometime in 2013, which would mean that all the claims
asserted in this case are timely. Summary judgment is not
appropriate where, as here, "a reasonable jury could
return a verdict for the nonmoving party." Dennis v.