May a vindicated trustee be reimbursed personally from the trust estate even for those defense costs that were covered by his liability-insurance carrier?

Charles E. Rounds, Jr.
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As to whether the vindicated trustee’s claim against the trust estate for defense counsel’s fees should be offset by payments made to defense counsel by the trustee’s personal liability insurance carrier, at least one court has answered that it depends: “On remand, …the judge should take the trustees’ insurance coverage into account, giving it as much or as little weight as the judge deems appropriate, in arriving at a just and equitable award.” See Brady v. Citizens Union Savings Bank, 38 N.E.3d 301, 88 Mass. App. Ct. 416 (2015); see also Brady v. Citizens Union Savings Bank, Case No. 16-P-308, 2017 Mass. App. LEXIS 26 (Mar. 9, 2017). One policy argument against setoff is that one who contracts for insurance with personal funds, not some third party, should receive the “benefit of the bargain.” Id. But does this not effectively constitute an equitable double-dipping by (or windfall for) the vindicated trustee? Arguably it would not. The trustee already personally paid for the legal services in advance as a “component” of the insurance premiums. Id. Also, the nexus between the liability-insurance contract (law) and the trust’s administration (equity) is not so close as to warrant setoff. Id. The vindicated trustee’s right in equity to be reimbursed from the trust estate for his legal-defense costs is taken up generally in §3.5.2.3 of Loring and Rounds: A Trustee’s Handbook [pages 159-168 of the 2017 Edition], which section is reproduced in its entirety in the appendix to this posting immediately below.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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