Benoit v. Landry, Lyons & Whyte Co., 580 N.E.2d 1053 (Mass. App. Ct. 1991). · Go Syfert
Benoit v. Landry, Lyons & Whyte Co., 580 N.E.2d 1053 (Mass. App. Ct. 1991). Cases Citing This Book View Copy Cite
28 citation events (24 in the last 25 years) across 7 distinct courts.
Strongest positive: Allstate Insurance Company v. Fougere (ca1, 2023-08-29) · Strongest negative: Speakman v. Allmerica Financial Life Ins. & Annuity Co. (mad, 2005-04-21)
Treatment trajectory · 1994 → 2026 · click a year to view as-of
1994 2010 2026
Top citers, strongest first. 4 distinct citers. How cited ↗
examined Cited "but see" Speakman v. Allmerica Financial Life Ins. & Annuity Co. (3×) also: Cited "see"
D. Mass. · 2005 · signal: but see · confidence high
Rep. at *16, *22 (denying motion to dismiss Chapter 93A claim of independent contractors terminable at-will); but see Benoit v. Landry, Lyons & Whyte, Co., Inc., 31 Mass.App.Ct. 948, 949 , 580 N.E.2d 1053 *140 (1991) (licensed real estate salesman could not sue licensed real estate broker under Chapter 93A, based on Mass. Gen.
discussed Cited as authority (rule) Allstate Insurance Company v. Fougere (2×)
1st Cir. · 2023 · confidence medium
See Debnam, 766 F.3d at 98 (no 93A application when plaintiff's business was devoted entirely to serving one company); Benoit v. Landry, Lyons, & Whyte Co., 31 Mass. App. Ct. 948, 948 (1991) (no 93A application when salesperson provided services for only one broker).
discussed Cited as authority (rule) McAdams v. Massachusetts Mutual Life Insurance
1st Cir. · 2004 · confidence medium
See Linkage Corp. v. Trs. of Boston Univ., 425 Mass. 1 , 679 N.E.2d 191, 207 (1997) (corporation that worked for a university as, according to the contract, independent contractor rather than employee or agent, could maintain 93A action against university); Benoit v. Landry, Lyons & Whyte Co., 31 Mass.App.Ct. 948 , *304 580 N.E.2d 1053, 1053 (1991) (real estate salesman could not use 93A even if he was an independent contractor).
discussed Cited "see, e.g." Allstate Insurance Company v. Fougere (2×)
D. Mass. · 2020 · signal: see also · confidence low
See also Benoit, 31 Mass. App. Ct. at 949 , 580 N.E.2d at 1054 (93A does not apply to a salesman who is prohibited from “operating his own real estate business and from receiving payment for his services except the single broker with whom he or she is affiliated.”).
Retrieving the full opinion text from the archive…
Donald P. Benoit
v.
Landry, Lyons & Whyte Company, Inc.
No. 90-P-560.
Massachusetts Appeals Court.
Nov 15, 1991.
580 N.E.2d 1053
Gary A. Ensor for the plaintiff., John F. Soja for the defendant.
Cited by 11 opinions  |  Published

Manning v. Zuckerman, 388 Mass. 8, 10-13 (1983), held that “the remedies of G. L. c. 93A, § 11, are not available to employees in disputes against their employers, which arise from the employment relationship.” Weeks v. Harbor Natl. Bank, 388 Mass. 141 144 (1983). The rationale was that the employment relationship precluded the “conduct of any trade or commerce” by the employee. See Riseman v. Orion Research, Inc., 394 Mass. 311, 313 (1985). More particularly, where services are involved, § 1(6) of c. 93A, as appearing in St. 1972, c. 123, requires an “offering for sale” of such services. The effect of this definition is to require that the services covered by c. 93A be those which are “offered generally by a person for sale to the public in a business transaction, not those services sold by an employee to an employer within the same organization.” Manning v. Zuckerman, supra at 13.

In this case, the written agreement between the plaintiff, a licensed real estate salesman, and the defendant, a licensed'real estate broker, see G. L. c. 112, § 87RR, provided that the plaintiff “is an Independent Contractor and not the Company’s employee . . . [and that] the parties hereto are and shall remain independent contractors bound by the provisions hereof.” The dispute between them has to do with the deliberate and wilful failure (so the judge found) of the defendant to pay the plaintiff amounts due him for commissions earned. After a bench trial, the judge ruled that even if the plaintiff is an independent contractor, he is not entitled to the remedies provided by c. 93A. We affirm.

General Laws, c. 112, § 87RR, as amended by St. 1978, c: 357, § 1, provides that “/n]o salesman may conduct or operate his own real estate business nor act except as the representative of a real estate broker who shall be responsible for the salesman and who must approve the negotiation and completion by the salesman of any transaction or agreement . ... No salesman shall be affiliated with more than one broker at the same time nor shall any salesman be entitled to any fee, commission or other valuable consideration or solicit or accept the same from any person except his licensed broker. . .” (emphasis added).

Whatever may be the consequences of independent contractor status elsewhere in the law, see, e.g., Walsh, A Judicial Guide to Labor and Employment Law 221 (1990) (discussing independent contractor status under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.), the rationale of Manning requires the conclusion that a real estate salesman licensed under[*949] § 87RR is not engaged in the conduct of any trade or commerce even if the salesman is not the broker’s"employee. Section 87RR prohibits a salesman from operating his own real estate business and from receiving payment for his services from anyone except the single broker with whom he or she is affiliated. Chapter 93A is unavailable to the plaintiff.

Gary A. Ensor for the plaintiff. John F. Soja for the defendant.

Judgment affirmed.