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January 20, 1998


The opinion of the court was delivered by: HECKMAN

 This matter was referred to the undersigned by the Hon. Richard J. Arcara to hear and report on dispositive motions in accordance with 28 U.S.C. ยง 636(b). Currently pending for decision are plaintiffs' motion for summary judgment on their third cause of action (Item 27) and defendant Lalime's motion for summary judgment on his affirmative defense of indemnification against co-defendant Miller (Item 29). For the reasons that follow, it is recommended that plaintiffs' motion be denied, and that defendant's motion be denied.


 Plaintiffs commenced this action on March 20, 1996, alleging that defendant Lalime disbursed $ 1,300,000 of plaintiff Dr. Lucas' funds out of trust contrary to an escrow agreement. The complaint advances numerous grounds for relief including breach of contract, breach of fiduciary duty, legal malpractice, conspiracy to defraud, fraudulent misrepresentation, conversion, obligation under constructive trust, and unjust enrichment.

 It is uncontested that the events giving rise to plaintiffs' claims began on January 26, 1996, when Dr. Lucas met with Isidore Grossman [Grossman] of Page & Associates, Inc., *fn1" Wayne Hawk [Hawk] of Hale Associates, Inc., *fn2" and Mark Fried [Fried], a financial planner, to discuss investing in viaticals. *fn3" At the meeting, plaintiff was told of an opportunity to purchase viaticals and then roll them over in a short time through the JADA Trust [JADA] and American Express Financial Advisors, Inc.

 In sum, plaintiff was told that he could participate in a program whereby he would purchase a viatical, but rather than hold the policy until the death of the viator, he would immediately assign his interest to JADA in return for 105 percent of the acquisition price. The proceeds from the sale to JADA would then be used to purchase a further viatical, with the process to continue until plaintiff chose to terminate his investment. Defendant Lalime and codefendant Miller are the grantors and trustees of JADA Trust. *fn4"

 As to the transaction itself, it was explained that plaintiffs' investment funds were to be forwarded to American Express. American Express would then issue a negotiable bill of exchange, maturing in 21 days in the amount of $ 1,365,000. That instrument would be sent to Northern Trust, the escrow agent for Page & Associates, Inc. Upon completion of the viatical transaction with Page, JADA was to acquire the life insurance policy rights by paying plaintiff 105 percent of his acquisition cost through an American Express account. The entire process would then recommence.

 Although the parties disagree as to the circumstances surrounding the returned check, they do agree that Fried subsequently proposed that defendant Lalime be used as an escrow agent. Fried had obtained Lalime's name from co-defendant Miller, a trustee of JADA. All parties agreed to the use of Lalime, and on February 14, 1996, plaintiff Dr. Lucas signed an escrow agreement. The agreement was also signed by Miller, as representative of the JADA Trust, Wayne Hawk, on behalf of Hale Associates, defendant Lalime, as the trust escrow agent, and plaintiffs' attorney, Alex Murland, Esq., as the participant escrow agent. The agreement provides that Lalime would receive plaintiff's funds by wire transfer from Murland. Lalime was to provide a written receipt of funds and simultaneously cause the trust to have issued a negotiable bill of exchange maturing in 21 days (Lalime Exhibit Book, Ex. N).

 The following day, on February 15, 1997, Murland wired $ 1,300,000 of Dr. Lucas's funds to an account in defendant Lalime's name at a Marine Midland Bank in Buffalo, New York, using bank coordinates supplied by Lalime. Those moneys were received by the James L. Lalime Esq. Attorneys Escrow Account # 741-78018-6 on February 15, 1996 (Item 27, Berrigan Affidavit, Ex. C). There was $ 7,241.04 on deposit in Lalime's escrow account prior to receipt of the Lucas funds (Id.).

 On February 16, 1996, one day after receiving the funds, Lalime wire transferred $ 42,500 to a Merrill Lynch trust account established in Pennsylvania for the benefit of Bobbie Packard, defendant Miller's fiancee (Id.).

 On February 20, 1996, Lalime wired $ 1,235,000 to the Western Corporate Federal Credit Union in San Dimas, California, to a Smith Barney account in his own name. These funds were then transferred to the South Bay Credit Union in Redondo Beach, California, to account # 130420 in the name of defendant Judith A. Kadow (Id. at Ex. D, p. 2).

 On February 21, 1996, Lalime wire transferred $ 10,000 to First Union National Bank in Virginia, which was deposited to the credit of Bobbie Packard (Id. at Ex. C). On this same date. $ 850,000 of the California funds were wire transferred to the trust account of the House Law Firm in North Carolina (Id. at Ex. D, p. 3). The funds were used by Don R. House, attorney for David Miller, to purchase real property in the name of The Obbie'B - R.E. Trust in a transaction which closed on February 21, 1996.

 A facsimile of a document purporting to be an American Express Bill of Exchange was received by Grossman or Hawk on or about February 22, 1996 (Lalime Exhibit Book, Ex. G). The document, dated February 22, 1996 and showing a maturity date of March 14, 1996, was later determined to be fraudulent. On the date the bill of exchange was purportedly issued, only $ 8,781 remained on deposit in Lalime's attorney escrow account.

 On March 4, 1996, $ 25,000 was transferred from the South Bay Credit Union back to Lalime's account at Marine Midland Bank in Buffalo.

 On April 18, 1997, plaintiffs moved for partial summary judgment with respect to their third cause of action as alleged against defendant Lalime. Their complaint states in pertinent part as follows:

61. For good and valuable consideration, Lalime, acting as an attorney and counsellor at law for and on behalf of plaintiffs, entered into the Escrow Agreement, . . . as the Trust Escrow Agent, and thereby assumed the obligation of rendering professional services to plaintiffs and received from plaintiffs the sum of $ 1,300,000 [Dr. Lucas' funds].
63. Lalime, by reason of his lacking the requisite learning, skill or experience reasonably expected to be possessed by an attorney assuming the obligations of an escrow agent or because he failed to use reasonable care in the exercise of his duties as escrow agent, carelessly and negligently, by an act of legal malpractice, caused the escrowed funds to be forwarded to the ...

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