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Martinez Rivera et al. v. Commerce Insurance Company, et al. (Lawyers Weekly No. 11-101-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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       12‑P‑483                                        Appeals Court   EFRAIN MARTINEZ RIVERA[1] & another[2]  vs.  COMMERCE INSURANCE COMPANY & others.[3]     No. 12‑P‑483. Hampden.     March 19, 2013.  ‑  August 16, 2013. Present:  Cypher, Brown, & Cohen, JJ.   Consumer Protection Act, Damages, Offer of settlement, Unfair or deceptive act.  Damages, Consumer protection case, Loss of chance, Interest.  Insurance, Settlement of claim, Unfair act or practice, Interest.  Interest.       Civil action commenced in the Superior Court Department on August 7, 2006.   The case was heard by Cornelius J. Moriarty, II, J., and a motion to amend the judgment was also heard by him.     Robert A. DiTusa for the plaintiffs. John F. Hurley, Jr., for Commerce Insurance Company.     BROWN, J. This appeal concerns the proper measure of damages for loss of use in an unfair claim settlement practices case.  The litigation began as a tort action that settled on the eve of trial in May, 2008, for the full policy limits of $ 1 million.  After a bench trial of the G. L. c. 93A and c. 176D claims in March, 2010, a judge found that Commerce Insurance Company (Commerce) had failed to conduct a reasonable investigation and to effect a prompt, fair, and equitable settlement once liability was reasonably clear.  Based on these violations, the judge, on amended findings, awarded the claimants, Efrain Martinez Rivera, his wife, and his three minor children (collectively, plaintiffs) actual damages in the amount of $ 55,000 (which, given the extent of Commerce’s bad faith, the judge trebled), plus attorney’s fees and costs.  See G. L. c. 93A, § 9(3) and (4). On appeal, the plaintiffs challenge two aspects of the damages award.  First, they argue that the judge erred by categorically denying their request for certain expenses from the tort phase of the case.  Second, they claim that the judge erred by using a six percent interest rate in the damages calculus.  We conclude that any reasonable tort-related litigation expenses incurred as a foreseeable result of Commerce’s c. 93A violations were compensable as actual damages.  We find no abuse of discretion in the judge’s choice of interest rate.  Accordingly, we affirm in part, vacate in part, and remand the case to the Superior Court for further proceedings consistent with this opinion. The underlying facts derived from the judge’s findings are no longer […]

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Posted by Massachusetts Legal Resources - August 17, 2013 at 2:55 am

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