Wheatley v. Massachusetts Insurers Insolvency Fund (Lawyers Weekly No. 10-094-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11211   KIRSTEN M. WHEATLEY  vs.  MASSACHUSETTS INSURERS INSOLVENCY FUND.     Plymouth.     February 4, 2013.  ‑  May 31, 2013. Present:  Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.       Massachusetts Insurers Insolvency Fund.  Consumer Protection Act, Insurance, Unfair or deceptive act, Attorney’s fees.  Insurance, Insolvency of insurer, Unfair act or practice, Settlement of claim.       Civil action commenced in the Superior Court Department on August 31, 2006.   Following review by this court, 456 Mass. 594 (2010), motions for summary judgment on the issue of attorney’s fees and costs were heard by Richard J. Chin, J.   The Supreme Judicial Court granted an application for direct appellate review.     Kurt M. Mullen (Gregory P. Deschenes with him) for the defendant. Stanley W. Wheatley for the plaintiff.       BOTSFORD, J.  This is the second time the court has considered the present case, which concerns the application of the consumer protection act, G. L. c. 93A (c. 93A), to the Massachusetts Insurers Insolvency Fund (insolvency fund, or fund).  In Wheatley v. Massachusetts Insurers Insolvency Fund, 456 Mass. 594, 596 (2010) (Wheatley I), we held that the insolvency fund was subject “to consumer actions brought pursuant to G. L. c. 93A, § 9 (1).”  We conclude in the present case that where, as here, a plaintiff prevails in a consumer action against the insolvency fund under c. 93A, § 9 (1), the insolvency fund is liable for reasonable attorney’s fees under c. 93A, § 9 (4).  We accordingly affirm the judgment of the Superior Court. Background.  The facts of this ongoing dispute are described in detail in Wheatley I, 456 Mass. at 596-598.  We summarize briefly those facts and proceedings relevant to this decision, primarily taken from the parties’ joint statement of agreed facts.   The insolvency fund is an unincorporated association, created by the Legislature, for the purpose of settling unpaid claims covered by an insurance policy issued by an insurer that later becomes insolvent.  G. L. c. 175D, §§ 1 (5), 2, 3.  See Commissioner of Ins. v. Massachusetts Insurers Insolvency Fund, 373 Mass. 798, 799 (1977).  In October, 2001, the plaintiff, Kirsten M. Wheatley, then a special education student at a public elementary school in the town of Duxbury (town), fell and sustained injuries while unsupervised at school.  At the time of the plaintiff’s injuries, the […]

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