Kantzelis v. The Commerce Insurance Company (Lawyers Weekly No. 09-045-17)
1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CA No. 16-3144-BLS1 ALEX KANTZELIS, on behalf of himself and all others similarly situated, vs. THE COMMERCE INSURANCE COMPANY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO STRIKE CLASS ALLEGATIONS In this action, the plaintiff, Alex Kantzelis, asserts claims arising out of the defendant, The Commerce Insurance Company’s (Commerce), failure to make payments directly to a secured lender that financed the plaintiff’s purchase of his automobile after Commerce denied coverage for the plaintiff’s collision claim because of misrepresentations in the plaintiff’s application for insurance. He brings this action on his own behalf as well as on behalf of a putative class of similarly situated Commerce insureds. The operative complaint governing the plaintiff’s claims is his Third Amended Class Action Complaint (the Complaint). The original complaint was filed on October 13, 2016. It was amended once as a matter of right and once with Commerce’s assent. Commerce answered this second amended complaint, and also moved to dismiss on the grounds that the plaintiff lacked standing to bring the claims he asserted because he had suffered no damages. At a hearing on that motion, the court noted that the plaintiff’s contention that his debt to the finance firm that financed his purchase of the car would have been extinguished if Commerce had paid 2 the secured lender, as it was allegedly required to do under the insurance policy, was not supported by the policy language—if Commerce paid the loss to the lender it would be substituted as the creditor for the amount of the loss so paid.1 The court went on to comment that it was conceivable that a person in the plaintiff’s position might have suffered some other loss because Commerce did not pay the lender, for example if the car was repossessed and this caused consequential damages to the insured. Plaintiff’s counsel suggested that he could allege these kinds of special damages. The court gave the plaintiff an opportunity to file the third amended complaint, which, as noted above, is now the operative complaint in this case. The case is now before the court on Commerce’s “Motion to Strike Class Allegations.” Commerce contends that because the plaintiff’s claims rest on his allegations of special consequential damages unique to him, they cannot be the predicate for class-based claims. Whether such a motion to strike may be brought under Massachusetts jurisprudence is a question of first impression and discussed below. Of course, a denial of this motion would not be tantamount to the certification of a class, the plaintiff would still have to move for class certification under Mass.R.Civ.P. 23 and provide evidentiary support for class treatment. Rather, the practical issue raised by […]
Ramirez v. Commerce Insurance Company (Lawyers Weekly No. 11-022-17)
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 16-P-59 Appeals Court WRBASY RAMIREZ[1] vs. COMMERCE INSURANCE COMPANY. No. 16-P-59. Suffolk. November 7, 2016. – March 7, 2017. Present: Cypher, Massing, & Sacks, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Replacement, Construction of policy. Contract, Insurance, Construction of contract. Evidence, Replacement cost. Civil action commenced in the Superior Court Department on February 21, 2014. The case was heard by Janet L. Sanders, J., on motions for summary judgment. Thomas G. Shapiro for the plaintiff. Nelson G. Apjohn (Eric P. Magnuson also present) for the defendant. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. CYPHER, J. The plaintiff, Wrbasy Ramirez, appeals from a Superior Court judgment entered on a motion for summary judgment filed by Commerce Insurance Company (Commerce). The plaintiff argues that under the standard Massachusetts automobile insurance policy, Commerce must pay, as damages on his third-party claim for the total loss of his automobile, not only the actual cash value of a replacement vehicle, but also the applicable sales tax — even where he has not purchased a replacement vehicle and incurred the sales tax. We affirm.[2] Background. The following undisputed facts are taken from the summary judgment record. In January, 2014, the plaintiff was involved in a motor vehicle collision in Danvers with a vehicle driven by Edith McGuinness. Commerce insured McGuiness through a 2008 edition of the standard Massachusetts automobile insurance policy (the policy), which contains language approved by the Commissioner of Insurance. The policy included benefits for third-party property damage claims where Commerce determined that its insured was legally responsible for the collision. Specifically, part 4 of the policy provided: “[W]e will pay damages to someone else whose auto or other property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement. . . . Damages include any applicable sales tax and the costs resulting from loss of use of the damaged property.” Under the policy and the regulations at issue here, damages are calculated as follows: “Whenever the appraised cost of repair plus the probable salvage value may be reasonably expected to exceed the actual cash value of the vehicle, the insurer shall determine the vehicle’s actual cash value.” […]
Ramirez v. Commerce Insurance Company (Lawyers Weekly No. 11-022-17)
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 16-P-59 Appeals Court WRBASY RAMIREZ[1] vs. COMMERCE INSURANCE COMPANY. No. 16-P-59. Suffolk. November 7, 2016. – March 7, 2017. Present: Cypher, Massing, & Sacks, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Replacement, Construction of policy. Contract, Insurance, Construction of contract. Evidence, Replacement cost. Civil action commenced in the Superior Court Department on February 21, 2014. The case was heard by Janet L. Sanders, J., on motions for summary judgment. Thomas G. Shapiro for the plaintiff. Nelson G. Apjohn (Eric P. Magnuson also present) for the defendant. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. CYPHER, J. The plaintiff, Wrbasy Ramirez, appeals from a Superior Court judgment entered on a motion for summary judgment filed by Commerce Insurance Company (Commerce). The plaintiff argues that under the standard Massachusetts automobile insurance policy, Commerce must pay, as damages on his third-party claim for the total loss of his automobile, not only the actual cash value of a replacement vehicle, but also the applicable sales tax — even where he has not purchased a replacement vehicle and incurred the sales tax. We affirm.[2] Background. The following undisputed facts are taken from the summary judgment record. In January, 2014, the plaintiff was involved in a motor vehicle collision in Danvers with a vehicle driven by Edith McGuinness. Commerce insured McGuiness through a 2008 edition of the standard Massachusetts automobile insurance policy (the policy), which contains language approved by the Commissioner of Insurance. The policy included benefits for third-party property damage claims where Commerce determined that its insured was legally responsible for the collision. Specifically, part 4 of the policy provided: “[W]e will pay damages to someone else whose auto or other property is damaged in an accident. The damages we will pay are the amounts that person is legally entitled to collect for property damage through a court judgment or settlement. . . . Damages include any applicable sales tax and the costs resulting from loss of use of the damaged property.” Under the policy and the regulations at issue here, damages are calculated as follows: “Whenever the appraised cost of repair plus the probable salvage value may be reasonably expected to exceed the actual cash value of the vehicle, the insurer shall determine the vehicle’s actual cash value.” […]
Commerce Insurance Co., Inc. v. Gentile, et al. (Lawyers Weekly No. 10-156-15)
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-11706 COMMERCE INSURANCE CO., INC. vs. VITTORIO GENTILE & others.[1] September 16, 2015. Insurance, Motor vehicle insurance, Coverage, Misrepresentation. Motor Vehicle, Insurance, Permission to operate. Contract, Insurance. Practice, Civil, Summary judgment. This case concerns the obligation of Commerce Insurance Company (Commerce) to pay optional bodily injury benefits under a standard Massachusetts automobile insurance policy. The defendants Vittorio and Lydia Gentile (Gentiles) were the policyholders, and their grandson Vittorio Gentile, Jr. (Junior), was an “excluded operator” under the policy. While operating one of the Gentiles’ vehicles covered by the policy, Junior caused an accident that seriously injured Douglas and Joseph Homsi (Homsis).[2],[3] Commerce sought a judgment declaring that the Gentiles’ violation of the operator exclusion form relieved it of any duty to pay the Homsis under the optional bodily injury provisions of the insurance contract.[4] A Superior Court judge ruled that the Gentiles had violated their duty of “continuing representation” (as to whether Junior was in fact operating their vehicles), and therefore, Commerce was relieved of its duty to pay the optional coverage for the Homsis’ injuries. The Appeals Court affirmed the judgment on that basis and on the basis that the Gentiles had committed a breach of the insurance contract. Commerce Ins. Co. v. Gentile, 85 Mass. App. Ct. 67 (2014). We granted further appellate review. Facts. The Gentiles purchased through Commerce the standard Massachusetts automobile insurance policy, seventh edition, which was approved by the Commissioner of Insurance (commissioner). The policy insured both the Gentiles and their vehicles. A section of the policy titled “Our Agreement” provided that “[t]his policy is a legal contract under Massachusetts law.” It stated further that “[o]ur contract consists of this policy, the Coverage Selections Page, any endorsements agreed upon, and your application for insurance.” The policy included a separate operator exclusion form, which also was approved by the commissioner. In 2004, after receiving advice from the insurance agent that their premium would be significantly higher if Junior operated their vehicles, Lydia, as the “[p]olicyholder”, and Junior as the “[e]xcluded [o]perator” both executed the operator exclusion form. The form stated that Junior would not operate the Gentiles’ insured vehicles: “It is agreed that the person named below [i.e., Junior] will not operate the vehicle(s) described below, or any replacement thereof, under any circumstances whatsoever.” Another provision of the form allowed […]
Commerce Insurance Co., Inc. v. Gentile, et al. (Lawyers Weekly No. 11-025-14)
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 12‑P‑1169 Appeals Court COMMERCE INSURANCE CO., INC. vs. VITTORIO GENTILE & others.[1] No. 12‑P‑1169. Norfolk. September 11, 2013. ‑ March 13, 2014. Present: Kantrowitz, Sikora, & Hines, JJ. Insurance, Motor vehicle insurance, Coverage, Misrepresentation. Motor Vehicle, Insurance, Permission to operate. Contract, Insurance. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on November 7, 2007. A motion for summary judgment was heard by E. Susan Garsh, J., and the entry of final judgment was ordered by Patrick F. Brady, J. Brian P. Burke for Janice Silverio & another. Richard R. Eurich (John F. Hurley, Jr., with him) for the plaintiff. SIKORA, J. Commerce Insurance Company (Commerce) brought this action in Superior Court for a declaratory judgment of its obligation to pay substantial damages under the optional bodily injury provision of a standard Massachusetts motor vehicle policy. Defendants Vittorio and Lydia Gentile are the policyholders. The defendant Vittorio Gentile, Jr. (Junior), is their grandson. Defendants Joseph Homsi and Janice Silverio, as guardian of Douglas Homsi, by separate suit have achieved verdicts and resulting judgments of substantial compensatory damages for severe personal injuries against Vittorio, Lydia, and Junior, by reason of Junior’s negligent operation of his grandparents’ vehicle and by reason, inter alia, of the negligent failure of Lydia and Vittorio to prevent Junior’s use of that vehicle. At the time of the accident on December 10, 2006, an operator exclusion form, drafted by Commerce and signed by Lydia and Junior on December 7, 2004, provided that Junior would not drive any vehicle covered by the Gentiles’ policy. Junior did operate his grandparents’ vehicle and, according to the verdicts in the separate personal injury litigation, negligently caused devastating injuries to the Homsi brothers. In this litigation Commerce sought a judgment declaring that the Gentiles’ violation of the operator exclusion form relieved the insurer of any duty of indemnification of them under the policy clause for optional bodily injury coverage of $ 500,000. A judge of the Superior Court concluded that Junior had violated the operator exclusion form as a material representation underlying the issuance of the policy and that Commerce therefore was relieved of its duty of optional coverage for bodily injury caused by their vehicle. The Homsi parties have appealed. For the following reasons, […]
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 […]
Commerce Insurance Company, Inc. v. Alvarado, et al. (Lawyers Weekly No. 11-060-13)
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‑1063 Appeals Court COMMERCE INSURANCE COMPANY, INC. vs. JULIO ALVARADO & another.[1] No. 12‑P‑1063. Hampden. February 4, 2013. ‑ May 14, 2013. Present: Cypher, Kantrowitz, & Fecteau, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Motor vehicle personal injury protection benefits, No‑fault insurance. Civil action commenced in the Superior Court Department on February 8, 2010. The case was heard by C. Jeffrey Kinder, J., on motions for summary judgment. Robert A. DiTusa for the defendant. John F. Hurley, Jr., for the plaintiff. KANTROWITZ, J. In this appeal, concerning personal injury protection (PIP) benefits, we are faced with the issue whether motorists insured by out-of-State policies are entitled to rights that are superior to those of motorists insured by policies issued in the Commonwealth. We hold that they are not. Background. On January 17, 2009, David Allen, whose automobile was insured by the plaintiff Commerce Insurance Company, Inc. (Commerce), was involved in a collision in Holyoke with an automobile driven by Julio Alvarado (Julio) and in which Maria Alvarado (Maria) was a passenger. Maria owned the automobile, which was registered in New York and insured under a New York policy through Peerless Insurance Co. (Peerless). The Alvarados suffered injuries and received PIP no-fault benefits from Peerless, which provided coverage of up to $ 50,000 per person for medical bills and lost wages for occupants of vehicles insured in New York. In settlement discussions, a dispute arose between the parties as to whether Commerce was entitled to an offset, pursuant to G. L. c. 90, § 34M, for the PIP no-fault benefits that the Alvarados received under the New York policy. Commerce filed an action in Superior Court against the Alvarados seeking a declaratory judgment to ascertain the answer. Both Commerce and the Alvarados filed motions for summary judgment. Commerce prevailed, with the motion judge concluding: “The Alvarados received no-fault benefits under the New York [automobile] policy that compensated them for the same type of expenses that Massachusetts PIP benefits would have covered. It would therefore run contrary to the legislative purpose of § 34M to conclude that Allen’s exemption from tort liability is unavailable merely because Maria Alvarado’s policy was issued in New York” (footnote omitted). On appeal, the Alvarados argue that the judge erred […]