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Massachusetts Insurers Insolvency Fund v. Berkshire Bank (Lawyers Weekly No. 10-174-16)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-12019 MASSACHUSETTS INSURERS INSOLVENCY FUND vs. BERKSHIRE BANK. Suffolk. September 8, 2016. – November 3, 2016. Present: Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ. Massachusetts Insurers Insolvency Fund. Insurance, Workers’ compensation insurance, Insolvency of insurer. Workers’ Compensation Act, Insurer, Reimbursement of insurer. Statute, Construction. Words, “On behalf of.” Civil action commenced in the Superior Court Department on July 14, 2014. The case was heard by Mitchell H. Kaplan, J., on motions for summary judgment. The Supreme Judicial Court granted applications for direct appellate review. Gregory P. Deschenes (Kurt Mullen with him) for the plaintiff. Owen Gallagher (Gordon Prescott with him) for the defendant. BOTSFORD, J. General Laws c. 175D, § 17 (§ 17), authorizes the Massachusetts Insurers Insolvency Fund (Fund) to recover from “high net worth insureds” certain amounts paid by the Fund “on behalf of” such insureds. G. L. c. 175D, § 17 (3). The Fund brought this action in the Superior Court pursuant to § 17, seeking to recover from the defendant Berkshire Bank (Berkshire) an entity that meets the definition of “high net worth insured,” workers’ compensation benefits it has paid to a Berkshire employee. Ruling on cross motions for summary judgment, a judge of that court interpreted § 17 (3) to preclude the Fund’s recovery. We conclude that the Fund is authorized to recoup the amounts in question because they were paid by the Fund “on behalf of” Berkshire within the meaning of § 17 (3). Accordingly, we reverse the judgment of the Superior Court. Background. Both parties agree that there are no material facts in dispute. The memorandum of decision of the Superior Court judge sets out the background facts succinctly, which we quote here: “In May 2003, [Donna] Poli, an assistant branch manager for Woronoco Savings Bank (Woronoco), injured her back while lifting coin-filled bags. Woronoco was then the named insured under a workers’ compensation/employer’s liability policy issued by Centennial [Insurance Company]. Woronoco notified Centennial of the injury and Centennial began paying Poli weekly workers’ compensation benefits pursuant to G. L. c. 152, § 34 [providing temporary total incapacity benefits for up to three years]. On June 16, 2005, Woronoco merged with and into Berkshire. “In August 2006, Poli exhausted her entitlement to benefits under […]

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 […]