Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gowen v. Benchmark Senior Living, LLC

Superior Court of Massachusetts, Suffolk, Business Litigation Session

January 2, 2019

Adrien GOWEN, THROUGH Her Legal Guardian Scott GOWEN on Behalf of Herself and Others Similarly Situated

          File Date: January 3, 2019


          Janet L. Sanders, Justice of the Superior Court

          The defendant Benchmark Senior Living, LLC (Benchmark) operates assisted living facilities within the Commonwealth. This putative class action challenges Benchmark’s practice of charging its residents a "community fee" which plaintiff alleges is a fee not authorized by G.L.c. 186, § 15B. In addition to that statute, plaintiff also alleges a violation of G.L.c. 93A, § 2. Now before the Court is plaintiff’s Motion to Amend the Complaint. Specifically, the motion seeks to: a) substitute Scott Gowen as the named plaintiff in light of Adrien Gowen’s death; and b) add John L. Forbes as a co-plaintiff. In opposing the motion, Benchmark argues that the proposed amendments are futile. This Court concludes that the motion must be ALLOWED .

          A. Survival of Claim

          This action was instituted in December 2016 by Adrien Gowen, individually and on behalf of others similarly situated. At the time, Gowen resided at Forge Hill, an assisted living facility in Franklin, Massachusetts now managed by Benchmark. The terms of her residency were set forth in a residential rental agreement/lease which among other things, required her to pay the community fee which at issue in this case. On March 6, 2018, Gowen passed away and Scott Gowen (who had been acting as Adrien Gowen’s legal guardian) was appointed as the legal representative of her estate.

         In opposing the amendment to make Scott Gowen the named plaintiff, defendant argues that Adrien Gowen’s claims are not within the scope of the Massachusetts Survival Statute, G.L.c. 228, § 1 and cannot be pursued by the representative of her estate. The Survival Statute states that "[i]n addition to the actions which survive by common law," certain other tort claims specifically enumerated therein also survive. The purpose of the statute was to abrogate the common-law rule that tort actions, because they were personal, did not survive the death of either the injured party or the wrongdoer. Sheldone v. Marino, 398 Mass. 817, 818 (1986). It was intended not to restrict the type of actions which survive but to actually expand them. Id. at 819. The Supreme Judicial Court has interpreted the statute with that purpose on mind, concluding in Sheldone, for example, that a will contest, although not an action specifically cited in the Survival Statute, did survive the claimant’s death. The Court reasoned that a will contest is fundamentally based upon the loss of property rights which, under the common law, did survive. In contrast, an action seeking to redress personal rights does not, unless the Survival Statute specifically identifies it.

         Benchmark concedes that contract claims do survive at common law, but contends that the claims asserted here are purely statutory. Because they are not specifically identified by G.L.c. 228, § 1, it argues that they do not survive. This Court disagrees. For purposes of the Survival Statute, "what constitutes a contract claim has not been rigidly defined." Render v. Sheriff of Bristol County, 440 Mass. 1017 (2013) and cases cited therein (quasi-contractual statute-based claims survive). This Court is to look at the substance of the claim to determine if it is "analogous to a claim of contract that would survive under common law or a tort that would fit within the framework of G.L.c. 228, § 1." Klairmont v. Gainesboro Rest., Inc., 465 Mass. 165, 178-79 (2013). Thus, in Gasior v. Massachusetts General Hospital, 446 Mass. 645, 649 (2006), the SJC concluded that a claim alleging wrongful termination in violation of G.L.c. 151B survived the employee’s death. It reasoned that G.L.c. 151B, § 4 contained a critical term of the employment— namely, permissible grounds for termination— so that, even though the action was not strictly one alleging a breach of contract, it was nevertheless contract-based. The same reasoning applies here.

          Plaintiff alleges a violation of G.L.c. 186, § 15B, which regulates the contractual relationship between landlord and tenant. Certain terms are, by virtue of that statute, mandatory regardless of what the lease itself says. In alleging that payment of a community fee violates that statute (and by implication Chapter 93A), plaintiff asserts a claim that is essentially quasi contractual in nature. At least for purposes of the Survival Statute, that is enough.

          B. Addition of Forbes as Plaintiff

          In opposing this proposed amendment, Benchmark makes arguments which are all fact-based. Relying on an affidavit submitted with its opposition, Benchmark asserts that, contrary to the allegations in the proposed Amended Complaint, Forbes did not pay a community fee associated with his residency at the Atrium at Faxon Woods. To the extent that the Complaint alleges statutory violations in connection with the payment of a security deposit, Benchmark contends that this claim too is not supported by the facts. This is not a proper basis to oppose a proposed amendment, however. In considering whether a request to amend should be denied based on a claim of futility, this Court applies essentially the same standard it would apply in determining a motion to dismiss under ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.