Superior Court of Massachusetts, Suffolk, Business Litigation Session
COMMONWEALTH INSURANCE PARTNERS, LLC et al.
ESTATE OF Mark BOUCHER et al.
Date: June 18, 2018
MEMORANDUM AND ORDER ON DEFENDANTSâ MOTIONS TO
Kenneth W. Salinger, Justice of the Superior Court
Plaintiffs claim that Mark Boucher violated contractual and
fiduciary obligations by usurping business opportunities.
Plaintiffs allege that they went into business with Mr.
Boucher to acquire and then operate small retail insurance
agencies, that Mr. Boucher usurped the opportunity to acquire
several agencies, and that Boucher essentially stole from
Plaintiffs the future commissions earned on policies sold or
renewed by the acquired agencies.
have moved to dismiss the claims against the Estate of Mark
Boucher on the ground that they were not brought within one
year of Boucherâs death, and thus are time-barred. They have
also moved to dismiss on the alternative ground that the
operating agreements among Boucher and Plaintiffs contain
mandatory mediation and arbitration provisions. (Defendants
initially filed both motions to dismiss on behalf of all
Defendants. At oral argument, however, Defendants stated that
they were withdrawing both motions with respect to the claims
against Patricia Boucher individually and against DDM
Insurance Alliance, LLC.)
Court will ALLOW the motion to dismiss the claims against the
Estate because they are barred by the one-year statute of
limitations. The alternative motion to dismiss on grounds
that there is a mandatory arbitration clause is therefore
claims against the Estate are time-barred. By statute, no
claim may be brought against the personal representative of
an estate unless the claim is filed and process is served
"within 1 year after the date of the death of the
deceased." G.L.c. 190B, § 3-803(a). Mark Boucher
died on November 10, 2015. This action was filed almost two
years later, on November 2, 2017. It is therefore untimely.
assertion that each renewal of an insurance policy sold by
one of the agencies acquired by Boucher gives rise to a new
claim is without merit. Where an Estate engages in a pattern
of continuing violations, for example by failing to make
weekly alimony payments to the decedentâs ex-spouse, the
one-year limitations period for claims against the estate
does not apply to claims that did not arise until after that
one-year period. See Flannery v. Flannery, 429 Mass.
55, 58 (1999). But Plaintiffs allege something very different
than the claims at issue in Flannery. They claim
that Boucher breached his obligations to Plaintiffs before he
died, and that the harm or injury caused by that prior
misconduct continued to accumulate after his death. In other
words, plaintiffs assert a "continuing harm
theory," not a claim based on continuing violations of a
legal duty. Cf. Luger v. McCarthy, No. 16-P-632,
2017 WL 26064 (Mass.App.Ct. Jan. 3, 2017) (unpublished rule
allegedly unlawful conduct has occurred and not been
repeated, the mere fact that resulting injury or harm
continues to accrue does not restart the statute of
limitations. Lambert v. Fleet Nat. Bank, 449 Mass.
119, 126 n.10 (2007). "If knowledge of the extent of
injury were to control the accrual of a cause of action, the
fixed time period of statutes of limitations effectively
would be destroyed." Id., quoting Olsen v.
Bell Tel. Labs., Inc., 388 Mass. 171, 175 (1983).
Plaintiffs ask the Court to exercise its discretion to allow
their claims against the Estate to proceed even though they
were filed more than one year after Boucher died. By statute,
a creditor that fails to file a timely claim against an
estate may nonetheless obtain a judgment against the estate
if a court determines that "equity and justice require
it" and the "creditor is not chargeable with
culpable neglect in not prosecuting his claim" within
one year after the decedentâs death. See G.L.c. 190B,
§ 3-803(e). "In other words, a creditor must
show âboth that justice and equity require recognition of a
meritorious claim and that failure to bring the claim was not
due to carelessness or lack of diligence.â" Gates v.
Reilly, 453 Mass. 460, 467 (2009), quoting Matter of
the Estate of Grabowski, 444 Mass. 715, 719 (2005).
attempt to invoke this safety valve is unavailing because
they have not met their burden of showing that their failure
to bring a timely claim against the Estate "was not due
to carelessness or lack of diligence." Id.
Plaintiffs concede they were aware of their claims against
Boucher before he died, and that they knew Boucher had died,
but assert that they held off on suing his Estate because
they were "engaged in efforts to resolve the outstanding
dispute." But settlement talks do not justify failing to
file a timely claim against the Estate. See City of
Haverhill v. Porter, 333 Mass. 594, 597 (1956) (City was
chargeable with culpable neglect where it knew of claim
against estate and delayed filing suit because it was
negotiating possible compromise with estate). The fact that
Plaintiffs were "seeking to gain relief in a more
efficient manner than litigation and by doing so" put
the Estate "on notice of [their] claim is not sufficient
to toll the statute of limitations." See Shafnacker
v. Raymond James Assocs., Inc., 425 Mass. 724, 728
(1997) (submission of claims to arbitration does not toll
statutes of limitations).
motion to dismiss the complaint pursuant to Mass.R.Civ.P.
12(b)(6) on statute of limitations grounds is ALLOWED IN PART
as to the claims against the Estate of Mark Boucher and
against Patricia Boucher in her capacity as personal
representative of the Estate of Mark Boucher. It is DENIED IN
PART as to the claims against Patricia Boucher individually
and DDM Insurance Alliance, LLC.
final judgment enters the claims against the Estate shall be
dismissed with prejudice.
motion to dismiss the complaint pursuant to Mass.R.Civ.P.
12(b)(1) on mandatory ...