The Gillette Company v. Provost, et al. (Lawyers Weekly No. 11-023-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 16-P-42 Appeals Court THE GILLETTE COMPANY vs. CRAIG PROVOST & others.[1] No. 16-P-42. Suffolk. October 13, 2016. – March 7, 2017. Present: Wolohojian, Carhart, & Shin, JJ. “Anti-SLAPP” Statute. Privileged Communication. Practice, Civil, Motion to dismiss, Interlocutory appeal. Civil action commenced in the Superior Court Department on January 16, 2015. A special motion to dismiss was heard by Janet L. Sanders, J. Christopher Morrison for the plaintiff. Brian C. Swanson, of Illinois, for the defendants. SHIN, J. The Gillette Company sued four of its former employees (the individual defendants), claiming that they misappropriated Gillette’s trade secrets and other confidential information to develop a wet-shaving razor for the benefit of their new employer, the defendant ShaveLogic, Inc. After ShaveLogic counterclaimed, alleging that Gillette brought its lawsuit in bad faith, Gillette moved to dismiss the counterclaims on grounds that the filing of the lawsuit was petitioning activity protected by G. L. c. 231, § 59H (commonly known as the anti-SLAPP[2] statute), and was protected by the litigation privilege. A judge of the Superior Court denied the motion, and Gillette filed this interlocutory appeal. We conclude that, based on the record before her, the judge could have found that ShaveLogic met its burden of showing that Gillette’s petitioning activity was “devoid of any reasonable factual support” and caused ShaveLogic “actual injury.” Under the anti-SLAPP statute, that showing was sufficient to allow the counterclaims to go forward. We further conclude that the litigation privilege does not bar the counterclaims because they seek to hold Gillette liable not for speech, but for conduct (its act of filing an allegedly groundless lawsuit), to which the privilege does not apply. We therefore affirm that part of the judge’s order resolving these two issues in ShaveLogic’s favor.[3] Background. We summarize the allegations made by each party, reserving other facts as they become relevant to our analysis of the issues raised. Gillette’s claims. The complaint alleges the following facts: Gillette is in the business of “designing, manufacturing, and marketing razors and other shaving products.” As a leader in this field, Gillette holds “thousands of patents covering razors and other shaving technology.” It is also “constantly researching and designing new technology and advancing current technology” and “has taken affirmative steps to protect the confidentiality of” information related to […]
Roger v. Centerline Holding Company, et al. (Lawyers Weekly No. 12-020-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 2015-01120 BLS1 STEPHEN D. ROGER vs. CENTERLINE HOLDING COMPANY and CENTERLINE GP HOLDINGS LLC, CENTERLINE GP DISPOSTIONS LLC, CCL ACQUISTIONS II LLC, and CCL DISPOSITIONS II LLC, Nominal Defendants MEMORANDUM OF DECISION AND ORDER ON THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT In this action, the plaintiff, Stephen D. Roger, seeks a declaratory judgment concerning his rights under two limited liability company agreements (the Agreement[s]) governing two Delaware limited liability companies: nominal defendants Centerline GP Holdings LLC and Centerline GP Dispositions LLC ( respectively, GP Holdings and GP Dispositions, or, collectively, the GP companies). The GP companies each have two members: Roger and defendant Centerline Holding Company (CHC); Roger and CHC each hold a 50% interest in each of the companies.1 As relevant to this litigation, the Agreements are identical. Roger seeks a declaration that, under the Agreements, (i) management decisions require the vote of both members and (ii) he has a right to access to all of the GP companies’ records necessary to exercise his management rights. 1It is not apparent why CCL Acquisitions II LLC and CCL Dispositions II LLC are parties to this action and no relief is ordered with respect to them. 2 PROCEDURAL ISSUES AND RELATED LITIGATION This case is before the court on Roger’s motion for summary judgment. CHC has filed an opposition to that motion and also a motion under Mass.R.Civ.P. 56(f) in which it asserts that: “this case remains in its early stages, and much work remains to be done before summary adjudication is remotely appropriate . . . the parties have not yet deposed any of the more than 12 witnesses that they have collectively identified as having knowledge material to the dispute. . . .” The court disagrees. First, it may be noted that this case was filed on April 16, 2015; on August 15, 2016, the court entered a scheduling order (jointly proposed by the parties) which called for fact discovery to be completed by March 31, 2017; to date, neither party has taken any depositions; and, notably, CHC elected not to take any discovery in the three months and one half months that passed between the date the summary judgment motion was served on it and the date of the hearing on that motion. The Rule 56(f) motion might have been more convincing if it had been supported by discovery demonstrating that material, disputed facts existed. The court finds that, as the case has developed, the issues presented by the Amended Complaint (the Complaint) can be resolved based upon a few clearly undisputed facts and a review of the Agreements. The controlling question raised by the Complaint is […]
Anderson, et al. v. National Union Fire Insurance Company of Pittsburgh PA, et al. (Lawyers Weekly No. 10-022-17)
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-12108 ODIN ANDERSON & others[1] vs. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH PA & others.[2] Middlesex. October 6, 2016. – February 2, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Lowy, Budd, JJ. Consumer Protection Act, Insurance, Unfair or deceptive act, Offer of settlement, Damages. Insurance, Settlement of claim. Damages, Consumer protection case, Interest, Punitive. Interest. Judgment, Interest. Practice, Civil, Judgment, Damages, Interest. Civil action commenced in the Superior Court Department on March 13, 2003. The case was heard by Brian A. Davis, J., and motions to alter or amend the judgment were also heard by him. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Kathleen M. Sullivan for National Union Fire Insurance Company of Pittsburgh PA. Leonard H. Kesten (Richard E. Brody also present) for the plaintiffs. GAZIANO, J. In this appeal, we consider the proper measure of punitive damages to be assessed against defendants who engage in unfair or deceptive insurance settlement practices in violation of G. L. c. 176D, § 3, and G. L. c. 93A, § 9 (3). The plaintiffs — Odin Anderson, his wife, and his daughter — filed a personal injury action in the Superior Court for serious injuries Odin[3] suffered after being struck by a bus owned by Partners Healthcare Systems, Inc. (Partners), that was being driven by one of its employees. The plaintiffs filed a separate action, under G. L. c. 176D, and G. L. c. 93A, against Partner’s insurers and claims representatives; proceedings in that action were stayed pending resolution of the underlying tort claims. After a trial, a Superior Court jury awarded Anderson $ 2,961,000[4] in damages in the personal injury action, and awarded his wife and daughter $ 110,000 each. At a subsequent, jury-waived trial, a different Superior Court judge found that the insurers and claims representatives violated G. L. c. 93A and G. L. c. 176D by their “egregious,” “deliberate or callously indifferent” actions, “designed to conceal the truth, improperly skew the legal system and deprive the Andersons of fair compensation for their injuries for almost a decade.” Based on these findings, the judge concluded that the insurers’ and claims representatives’ “misconduct warrants the maximum available sanction . . . , both as punishment for what transpired and as a deterrent to similar conduct in the future.” He awarded the plaintiffs treble […]
Turra v. Deutsche Bank Trust Company Americas, trustee, et al. (Lawyers Weekly No. 10-020-17)
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-12075 SANDRO TURRA vs. DEUTSCHE BANK TRUST COMPANY AMERICAS, trustee,[1] & another.[2] January 30, 2017. Mortgage, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage. The plaintiff, Sandro Turra, commenced this action against Deutsche Bank Trust Company Americas, as trustee for RALI 2007QS7, care of GMAC Mortgage, LLC (Deutsche Bank), seeking a declaration that Deutsche Bank’s foreclosure of the mortgage on his home was invalid and seeking to quiet title to the property. A judge in the Superior Court allowed Deutsche Bank’s motion to dismiss the complaint, and Turra appealed.[3] The appeal raises a single issue: whether a foreclosing mortgagee’s failure to comply with G. L. c. 244, § 15A, by failing to send the postforeclosure notices required by the statute, renders the foreclosure void. We conclude, as did the trial court judge, that it does not, and we therefore affirm. Background. On April 3, 2007, Turra executed a mortgage on the property in question to Mortgage Electronic Registration Systems, Inc. (MERS), as mortgagee.[4] The lender was Homecomings Financial, LLC. On August 12, 2010, MERS assigned the mortgage to Deutsche Bank. Then, on November 8, 2010, Deutsche Bank, through its servicing agent GMAC Mortgage, LLC, notified Turra that he was in default under the terms of the mortgage. Deutsche Bank subsequently foreclosed on the home on January 15, 2013. In April, 2013, Deutsche Bank commenced a summary process action against Turra in the District Court. Turra then commenced this action in the Superior Court, where his motion to transfer the summary process action and consolidate it with this case was allowed. In response to Deutsche Bank’s motion to dismiss his complaint, Turra argued, among other things, that the foreclosure was void because Deutsche Bank failed to strictly comply with the power of sale as set forth in G. L. c. 183, § 21, and further regulated by G. L. c. 244, §§ 11-17C. See U.S. Bank Nat’l Ass’n v. Ibanez, 458 Mass. 637, 646 (2011) (Ibanez). In particular, Turra argued that Deutsche Bank failed to comply with G. L. c. 244, § 15A, which provides that “a mortgagee conveying title to mortgaged premises pursuant to the provisions of this chapter shall, within thirty days of taking possession or conveying title, notify . . . the office of the assessor or collector of taxes of the municipality in which the premises are located and […]
Morgan v. Massachusetts Homeland Insurance Company (Lawyers Weekly No. 11-005-17)
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 16-P-216 Appeals Court ANTHONY G. MORGAN vs. MASSACHUSETTS HOMELAND INSURANCE COMPANY. No. 16-P-216. Hampden. November 9, 2016. – January 20, 2017. Present: Kafker, C.J., Kinder, & Lemire, JJ. Consumer Protection Act, Class action, Insurance. Practice, Civil, Class action, Consumer protection case. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Settlement of claim, Regulation, Amount of recovery for loss. Words, “Actual cash value,” “Retail book value.” Civil action commenced in the Superior Court Department on March 8, 2012. Motions for class certification and for summary judgment were heard by Edward J. McDonough, Jr., J.; and the case was heard by Bertha D. Josephson, J. Brett J. Vottero (Eric D. Applebaum also present) for the plaintiff. Michael S. Batson (Michael C. Kinton also present) for the defendant. KAFKER, C.J. The plaintiff, Anthony G. Morgan, brought this civil action against the defendant, Massachusetts Homeland Insurance Company (Homeland or insurer), alleging that Homeland engaged in unfair or deceptive claim settlement practices in violation of G. L. c. 176D, § 3(9), and G. L. c. 93A, in the course of settling his total loss auto insurance claim.[1] See G. L. c. 93A, §§ 2, 9. Even though the claim was settled within two months of the accident, with the plaintiff’s acceptance of the insurer’s offer, the plaintiff claimed that the insurer violated c. 176D and c. 93A because it did not take into account the “retail book value” of his vehicle, as required by 211 Code Mass. Regs. § 133.05(1)(a) (2003). The plaintiff also filed a motion to certify a class action pursuant to G. L. c. 93A, § 9(2). A judge of the Superior Court (motion judge) denied class certification and entered a summary judgment on that count of the complaint. After a jury-waived trial on the plaintiff’s individual c. 93A claim, the trial judge (who was not the motion judge) found that, although Homeland had violated c. 93A, the plaintiff was not injured by the violation, and entered judgment for Homeland on that count of the complaint. On appeal, the plaintiff argues that the judges erred by (1) denying his motion for class certification; and (2) concluding that he was not injured by Homeland’s c. 93A violation. Homeland cross-appeals, challenging the trial judge’s ruling that it violated c. 93A. We conclude that the motion for class certification was properly denied, and […]
Kiribati Seafood Company, LLC v. Crovo (Lawyers Weekly No. 12-162-16)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT SUCV2014-02851-BLS2 KIRIBATI SEAFOOD COMPANY, LLC, Plaintiff vs. M. DELACY CROVO, Defendant MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff Kiribati Seafood Company, LLC (Kiribati) filed this legal malpractice action against defendant M. Delacy Crovo (Delacy) seeking to recover damages flowing from Delacy’s alleged role in violating a Washington state court order against Kiribati. Kiribati’s Amended Complaint asserts both contract-based and negligence-based claims as well a violation of 93A. The case is now before this Court on the defendant’s motion for summary judgment. Specifically, the defendant contends that Kiribati’s claims are barred by the applicable statutes of limitations. This Court agrees, and therefore concludes that the Motion must be ALLOWED. BACKGROUND The relevant facts in the summary judgment record, viewed in the light most favorable to Kiribati, are as follows. Kiribati is a Washington state limited liability company formed in 2000 to own and operate a commercial fishing vessel. Currently, Kiribati is owned by Nicholas Coscia, who holds the majority interest, and a second individual with a minority interest named Steven Ross. 2 In 2000 and 2001, Kiribati refurbished a boat, the MADEE, with the expectation that it would be used in South Pacific commercial fishing operations. In 2001, the MADEE sustained damage due to a rudder failure. It was repaired in Tahiti, but suffered additional damage after a dry dock collapsed. Lawsuits ensued. Moran Windes & Wong, PLLC (MWW), a Seattle based law firm, represented Kiribati in an action brought in Hawaii related to the rudder failure. A French law firm, later acquired by the Paris office of Dechert, LLC (Dechert), represented Kiribati on its claim for damages to the MADEE sustained in the dry dock collapse. Sometime in May 2010, Dechert on behalf of Kiribati, settled the dry dock collapse case, and the proceeds of the settlement (the Settlement Funds) were sent to Dechert. At the time of the settlement, Delacy’s brother Charles Crovo (Charles) was the majority owner of Kiribati, with Coscia holding a minority interest. Delacy is a Massachusetts attorney who has acted as (or held herself out to be) counsel for Kiribati at various times commencing in 2000. At the heart of this lawsuit is the role she played in the transfer of the Settlement Funds from Dechert to other entities. In a letter dated April 29, 2010 to Dechert’s Paris office (the April 2010 Letter), Delacy stated that she was Kiribati’s corporate attorney and that Charles Crovo was authorized to make all monetary decisions on Kiribati’s behalf. This letter was sent under Delacy’s married name, Marie D. Carlson, with a letterhead that read, “Law Offices of Marie Carlson.” Delacy sent a second letter, […]
Everest National Insurance Company v. Berkeley Place Restaurant Limited Partnership (Lawyers Weekly No. 12-155-16)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 2011-1470 EVEREST NATIONAL INSURANCE COMPANY vs. BERKELEY PLACE RESTAURANT LIMITED PARTNERSHIP ORDER ON POST-VERDICT ISSUES AND FOR JUDGMENT This action was commenced by Everest National Insurance Company as subrogee of three persons: Timothy J. Barletta (“Timothy”), Barletta Engineering Corporation (“Barletta Corp.”) and Osprey Equipment Corporation (“Osprey”). The action is one for contribution under G.L. c. 231B, § 1(d ). Everest, as insurer for all three persons, paid a settlement amount to a state trooper who was seriously injured in a car accident when he was struck from behind by a car driven by Timothy. Everest asserted in this case that defendant, Berkeley Place Restaurant Limited Partnership, d/b/a Grill 23 (“Grill 23″), is jointly liable to the state trooper as a result of negligently serving Timothy alcohol in the hours before the accident. Following a jury verdict in favor of Everest that determined that Grill 23 is liable as a joint tortfeasor and that the settlement reached by Everest with the state trooper and his wife was reasonable, the parties address two issues: (1) how many tortfeasors bear responsibility for a pro rata share of the settlement, and (2) what amount is Everest entitled to receive as contribution from Grill 23? Both questions involve application of the contribution statute. For the first question, the court must determine whether “if equity requires, the collective liability of some as a group shall constitute a single share.” G.L. 1 c. 231B, § 2(b). The second question is whether, under G.L. c. 231B, §1, Everest may obtain contribution for more than a pro rata share of what it paid in settlement? FACTS On Saturday night, September 27, 2008, Timothy attended a private birthday party at the Grill 23 restaurant in Boston. The person being celebrated was Timothy’s sister-in-law, Laura Barletta, and the person throwing the party was her husband, Timothy’s brother, Vincent Barletta. Approximately 40 people attended the party and the guests were, generally, friends and family of Laura Barletta. The party was held in a function room, separate from the rest of the restaurant. There was evidence before the jury sufficient to show that at the party Timothy was served alcohol after it had been recognized by the Grill 23 manager on duty that Timothy was visibly intoxicated. Timothy left the party with his girlfriend, got into a motor vehicle, and drove west on the Mass Pike. Several minutes later, Timothy, while operating under the influence of alcohol, smashed into the rear of a state police vehicle parked on the edge of the Pike to assist a stopped car. State Trooper Christopher Martin was inside the state police vehicle. As a result of the […]
ZVI Construction Company, LLC v. Levy, et al. (Lawyers Weekly No. 11-141-16)
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 15-P-359 Appeals Court ZVI CONSTRUCTION COMPANY, LLC vs. FRANKLIN LEVY & another.[1] No. 15-P-359. Suffolk. January 12, 2016. – October 6, 2016. Present: Kafker, C.J., Cohen, & Blake, JJ. Notice, Timeliness. Conversion. Evidence, Privileged communication. Privileged Communication. Waiver. Attorney at Law, Attorney-client relationship. Practice, Civil, Notice of appeal, Appeal, Complaint, Waiver. Fraud. Civil action commenced in the Superior Court Department on January 28, 2013. A motion to dismiss, a motion to strike, and a motion to compel discovery were heard by Christine M. Roach, J.; the remaining issues were heard by Janet L. Sanders, J., on motions for summary judgment; and entry of separate and final judgment was ordered by Kenneth W. Salinger, J. Richard E. Briansky for the plaintiff. Christopher R. O’Hara (Ian J. Pinta with him) for the defendants. COHEN, J. The plaintiff, ZVI Construction Company, LLC (ZVI), brought suit against the defendants, Attorney Franklin Levy and the law firm of Lawson & Weitzen, LLP (L & W), claiming that they had engaged in misrepresentation and other wrongdoing in connection with a mediated settlement between ZVI and the defendants’ clients: The Upper Crust, LLC, and its affiliated entities (collectively, The Upper Crust), and two of its principals, Brendan Higgins and Joshua Huggard. As a result of orders entered by two different Superior Court judges, all of ZVI’s claims against the defendants were dismissed, and ZVI filed a notice of appeal. Despite the fact that ZVI’s notice of appeal was filed before the entry of a separate and final judgment and, hence, was premature, we exercise our discretion to decide this matter. After consideration of the arguments presented, we affirm. Background.[2] Except where indicated, the following facts are not in dispute. Brendan Higgins, Joshua Huggard, and Jordan Tobins were members and managers of numerous limited liability companies operating a small chain of pizzerias known as The Upper Crust. On April 5, 2012, Higgins, Huggard, and The Upper Crust, all of whom were represented by Levy and his firm, L & W, filed a civil lawsuit against Tobins. In or around July, 2012, a settlement was reached in that action and documented in a memorandum of understanding (Tobins MOU). The Tobins MOU provided, inter alia, as follows: “Tobins will pay or cause to be paid, by cash, bank check or […]
OneBeacon America Insurance Company v. Narragansett Electric Company v. American Home Assurance Company, et al. (Lawyers Weekly No. 11-112-16)
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 13-P-1240 Appeals Court ONEBEACON AMERICA INSURANCE COMPANY vs. NARRAGANSETT ELECTRIC COMPANY; AMERICAN HOME ASSURANCE COMPANY & others,[1] third-party defendants. No. 13-P-1240. Suffolk. June 3, 2014. – August 31, 2016. Present: Kantrowitz, Hanlon, & Carhart, JJ.[2] Conflict of Laws. Insurance, Comprehensive liability insurance, Excess Liability Insurance, Pollution exclusion clause. Contract, Insurance, Choice of law clause. Real Property, Environmental damage. Civil action commenced in the Superior Court Department on July 25, 2005. Motions for summary judgment regarding choice of law issues were heard by Allan van Gestel, J., and a motion for reconsideration was considered by him; motions for summary judgment were heard by Margaret R. Hinkle, J., and Peter M. Lauriat, J.; the remaining issues were tried in two phases before them; and entry of final judgment was ordered by Lauriat, J. Jay T. Smith, of the District of Columbia (A. Hether Cahill with him) for Narragansett Electric Company. Kevin J. O’Connor for OneBeacon America Insurance Company. David B. Chaffin for Century Indemnity Company. Eileen T. McCabe, of New York, & John T. Harding, for Certain Underwriters at Lloyd’s, London, & others, were present but did not argue. Michael F. Aylward, for American Home Assurance Company & others, was present but did not argue. CARHART, J. This matter is before us pursuant to the December 28, 2015, order of the Supreme Judicial Court, remanding to this court for express consideration the substantive law to be applied to the interpretation of the insurance contracts at issue in OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 2), 87 Mass. App. Ct. 1126 (2015) (OneBeacon No. 2). The plaintiff, OneBeacon America Insurance Company (OneBeacon), along with third-party defendants Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies (collectively, London), American Home Assurance Company (American Home), and Century Indemnity Company (Century) argued in their respective appeals that a Superior Court judge erred in determining that Rhode Island law would apply both in deciding whether the insured, Narragansett Electric Company (NEC), was entitled to coverage for environmental contamination at several Rhode Island sites, and in the allocation of damages on the jury’s verdicts as to one of the sites. For background, we refer to OneBeacon America Ins. Co. v. Narragansett Elec. Co. (No. 1), 87 Mass. App. Ct. 417 […]
McLaughlin, et al. v. American States Insurance Company (Lawyers Weekly No. 11-099-16)
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 15-P-729 Appeals Court DANIEL McLAUGHLIN & another[1] vs. AMERICAN STATES INSURANCE COMPANY. No. 15-P-729. Middlesex. May 19, 2016. – August 12, 2016. Present: Kafker, C.J., Cohen, & Green, JJ. Consumer Protection Act, Insurance, Offer of settlement, Unfair act or practice, Attorney’s fees, Damages. Insurance, Settlement of claim, Unfair act or practice. Damages, Attorney’s fees. Practice, Civil, Attorney’s fees. Civil action commenced in the Superior Court Department on February 21, 2008. The case was heard by Paul D. Wilson, J. John F. Brosnan (James E. Harvey, Jr. with him) for the defendant. Matthew N. Kane for the plaintiffs. GREEN, J. After the well installed by Shaun Harrington began pumping salt water through the plaintiffs’ (McLaughlins) irrigation system, causing extensive damage to their landscaping, the McLaughlins sought recovery from Harrington and his insurer, the defendant, American States Insurance Company (ASIC). Both denied liability, and the McLaughlins eventually filed an action against Harrington and two others.[2] After the McLaughlins obtained a judgment in their favor against Harrington, they commenced this action against ASIC, claiming unfair insurance settlement practices. A judge of the Superior Court entered judgment against ASIC, and awarded the McLaughlins damages based on the legal expenses they incurred in prosecuting their suit against Harrington, but declined to award multiple damages as permitted by the statute. See G. L. c. 93A, § 9(3). On the parties’ cross appeals, we conclude that the judge correctly determined that ASIC failed to conduct a reasonable investigation of the McLaughlins’ claim, and that it failed to make a reasonable offer of settlement after liability of its insured became reasonably clear. We also discern no error of law or abuse of discretion by the judge in his refusal to award the McLaughlins multiple damages. However, we conclude that the judge erred in his failure to award the McLaughlins damages based on the loss of use of the funds ASIC should have offered in settlement once Harrington’s liability became reasonably clear. Background. We summarize the written findings of fact entered by the judge in his detailed and thorough memoranda of decision.[3] In 2003, Assurance was nearing completion of construction of a home for the McLaughlins in Osterville. The home is on a peninsula, surrounded on three sides by salt water bodies connected to Nantucket […]