Heard: May 8, 2018.
action commenced in the Superior Court Department on January
case was heard by Karen F. Green, J., on motions for summary
L. Miller for the plaintiff.
Geoffrey M. Raux (Noah G. Brown also present) for the
Present: Sullivan, Neyman, & Englander, JJ.
an action against an insurance broker that arises out of an
attorney malpractice claim. The plaintiff, Kenneth Perreault,
sued his former attorney, Simon Mann, for legal malpractice.
Mann settled with Perreault and, as part of the settlement,
assigned his rights against his malpractice insurance
provider, Liberty Insurance Underwriters, Inc. (Liberty), and
its broker, AIS Affinity Insurance Agency of New England,
Inc. (AON), to Perreault. Perreault then brought a claim against
AON for negligence, breach of contract, and violation of G.
L. c. 93A. Perreault now appeals from the grant of summary
judgment in favor of AON. At issue is whether Perreault
presented sufficient evidence from which a finder of fact
could conclude that a special relationship existed between
Mann and AON, such that AON had a duty to make certain that
Mann had adequate malpractice liability insurance to cover
all of Mann's work as an attorney. Perreault also claims
AON breached a contract with Mann to procure coverage. We
summarize the evidence in the summary judgment record in the
light most favorable to the plaintiff, the nonmoving party.
See Augat, Inc. v. Liberty Mut. Ins.
Co., 410 Mass. 117, 120 (1991).
Legal malpractice claim.
September, 2008, Perreault retained Mann to represent him in
a wrongful death action. Perreault wanted Mann to advise him
regarding an action against tobacco companies for the death
of his wife due to cancer. Perreault's wife died in
March, 2006. The statute of limitations on a wrongful death
action is three years. See G. L. c. 229, § 2.
2009, Mann obtained a medical opinion regarding the
likelihood of success of an action by Perreault. Mann
retained a registered nurse, who opined that the case had
merit but questioned whether the statute of limitations had
run. Mann withheld this report from Perreault and in July,
2009, sent a letter to Perreault stating that there was no
likelihood of success on the wrongful death claim and
terminating his representation. Perreault sought the opinion
of another attorney, who requested Mann's file and
determined that there was a viable claim of attorney
malpractice. Thereafter, Perreault sent Mann a G. L. c. 93A
demand letter and filed suit against Mann.
Legal malpractice insurance policies.
are three relevant insurance policies, covering three firms
with which Mann was involved during the relevant time period.
All of these policies were "claims made and
reported" policies. The parties agree that coverage was
available only when both the alleged misconduct and resulting
claim arose during a policy period. That is, if the alleged
malpractice arose before the policy period, coverage would
only be available if the malpractice arose on or after a
policy's "prior acts" date, or fell within an
"automatic extended reporting period" of sixty days
after the policy terminated. a. A&G policy. In
2006, Mann was an associate at the law firm of Arnowitz &
Goldberg (A&G). The law firm consisted of Mann, Jerrold
Arnowitz, and Henry Goldberg. Mann had no involvement in
acquiring or purchasing the A&G professional liability