Berish v. Bornstein, 437 Mass. 252 (2002)

Citation: Berish v. Bornstein, 437 Mass. 252 (2002)
Parent Document: Berish v. Bornstein, 437 Mass. 252 (2002)
Jurisdiction: Massachusetts (state)
Effective Date: 2002-06-28
Original Source: https://www.courtlistener.com/opinion/6578538/berish-v-bornstein/ ↗

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That does not lead us to conclude in this case, however, that the measure of damages found by the master and approved by the trial judge, on a correct reading of the law, was erroneous. The master found that Bomstein not only breached his fiduciary duty, but that such breach was a “willful default,” arising from a motive of personal financial gain. See New England Trust Co. v. Paine, 317 Mass. 542, 549 (1945). Accordingly, he concluded that the exculpatory clause in the declaration of trust did not relieve Bomstein of personal liability to the unit owners’ association.32 A finding of wilful default has consequences not only as to whether personal liability attaches, but also as to the proper measure of damages. Those consequences support the master’s ultimate conclusion that Bomstein was liable for the full cost of repairing and replacing the defects of which he had knowledge when he was a trustee of the unit owners’ association.

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