Auto Flat Car Crushers, Inc. v. Hanover Insurance Company (Lawyers Weekly No. 10-170-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-11477 AUTO FLAT CAR CRUSHERS, INC. vs. HANOVER INSURANCE COMPANY. Norfolk. May 5, 2014. – October 15, 2014. Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, JJ.[1] Insurance, Insurer’s obligation to defend, Coverage. Consumer Protection Act, Insurance, Availability of remedy, Damages, Unfair or deceptive act. Contract, Insurance, Performance and breach, Damages, Indemnity. Damages, Consumer protection case, Breach of contract. Indemnity. Declaratory Relief. Environment, Environmental cleanup costs. Civil action commenced in the Superior Court Department on May 20, 2009. A motion for partial summary judgment was heard by E. Susan Garsh, J.; motions for partial summary judgment were heard by Elizabeth B. Donovan, J.; a motion for summary judgment on the remaining issue was heard by Raymond P. Veary, Jr., J.; and the case was reported to the Appeals Court by Kenneth J. Fishman, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Donald V. Jernberg (John J. McMaster with him) for the plaintiff. Aaron R. White for the defendant. The following submitted briefs for amici curiae: John P. Ryan & Harry A. Pierce for Massachusetts Insurance Federation, Inc. Jonathan M. Feigenbaum for United Policyholders. J. Michael Conley, Hans R. Hailey, Thomas R. Murphy, & Danielle M. Spang for Massachusetts Academy of Trial Attorneys. LENK, J. The plaintiff’s insurer refused to defend or to indemnify the plaintiff in connection with an environmental dispute involving the Department of Environmental Protection (DEP). Several years later, the plaintiff, having by then funded both its own defense and the environmental remediation ordered, brought suit against the insurer, alleging breach of contract and seeking declaratory relief; on a motion for partial summary judgment, the plaintiff obtained declaratory relief establishing the insurer’s duty to defend. The plaintiff then amended its complaint to assert a claim under G. L. c. 93A, § 11 (§ 11), arising out of the insurer’s failure to defend; the insurer did not avail itself of the statutory mechanism permitting a defendant to limit its liability to single damages by tendering with its answer a written offer of settlement. See G. L. c. 93A, § 11, fifth par. Thereafter, and while reserving its rights as to its pending claims, the plaintiff accepted reimbursement from the insurer, with interest, for its expenses in litigating and resolving the DEP matter. It […]