Passatempo v. McMenimen, 461 Mass. 279

Sam Sr. established an irrevocable trust for his wife and funded it with a life policy arranged via his nephew McMenimen, an insurance agent.
McMenimen allegedly told the Pietropaolos the policy would pay $500,000 but it actually paid $200,000.
Policy statements from Provident Mutual/Nationwide repeatedly showed $200,000 death benefit, which the plaintiffs misattributed to a $500,000 policy.
McMenimen’s fiduciary role and relationships with NEAG and Nationwide created potential fiduciary duties to the plaintiffs.
The plaintiffs filed suit July 1, 2004, asserting fraud, negligence, and G. L. c. 93A claims; issues included timeliness and tolling under various statutes.
The trial court judge ruled on several issues, including tolling under G. L. c. 260 and the scope of c. 93A, with mixed outcomes for different defendants.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 181 is exclusive remedy for misrepresentation in life insurance sales	§ 181 does not bar common-law claims	§ 181 preempts other civil remedies	§ 181 not exclusive; common-law claims survive
What statute of limitations applies to plaintiffs' common-law claims	Claims fall under general tort limitations, tollable	Claims barred by § 181 two-year repose period	Common-law claims governed by c. 260, § 2A; tolling applicable to McMenimen only; not to all defendants
Whether fraudulent concealment tolls against all defendants	Fiduciary concealment tolls for all defendants	Tolling limited to fiduciary who concealed; not all defendants	Tolling applicable to McMenimen; not to Armstrong or Nationwide
Whether plaintiffs can pursue G. L. c. 93A claims against McMenimen and others	3 A private right of action under § 9(1) for deceptive practices	43 A/§ 9(1) limitations; 93A claims barred	Private right of action under c. 93A survives against McMenimen and Nationwide; Armstrong dismissed on demand-letter grounds
Appropriate damages for c. 93A violation and treble damages	Damages should reflect misrepresentation value; treble permissible	Damages miscalculated; trebling improper	Damages calculated as benefit-of-the-bargain; treble damages upheld for c. 93A against McMenimen

Global NAPs, Inc. v. Awiszus, 457 Mass. 489 (Mass. 2010) (statutory interpretation requires looking to legislative intent when language ambiguous)
Rita v. Carella, 394 Mass. 822 (Mass. 1985) (specific statute supersedes general limitation when applicable)
Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501 (Mass. 1997) (fiduciary tolling under G. L. c. 260, § 12 applies for fraudulent concealment by a fiduciary)
Hedden v. Griffin, 136 Mass. 229 (Mass. 1884) (longstanding right to sue an agent for misrepresentation in insurance sales)
Harwood v. Security Mut. Life Ins. Co., 263 Mass. 341 (Mass. 1928) (extending rescission remedy to misrepresentations by insurance agents against insurers)
Wilkinson v. Citation Ins. Co., 447 Mass. 663 (Mass. 2006) (context of regulatory framework for insurance and contract fairness)