Opinion
11-P-217
12-02-2011
F. MICHAEL BECKWITH v. ALLEN HASSETT & others.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Passing the questions whether the plaintiff's notice of appeal encompasses the judgment dismissing his complaint (and not merely the September 27, 2010, order to which it refers) and whether the plaintiff's postjudgment motion for relief was timely insofar as it invoked Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), we discern no cause to disturb the judgment.
The motion stated that it sought 'relief from judgment; to alter and amend judgment and for reconsideration,' and invoked Mass.R.Civ.P. 59(e) and 60(b) without specifying a particular subsection of rule 60(b).
The rule requires such a motion to be served within ten days following entry of judgment. The motion included in the record appendix contains no certificate of service, and the record otherwise furnishes no indication when the motion was served. The docket reflects that the motion was received by the court on September 22, 2010, twenty-two days after judgment entered.
The plaintiff has not appealed from the entry of judgment against any defendant other than Vanliner.
To the extent that the plaintiff's claim of error on appeal arises from a claim for first party coverage, under the policy the defendant Vanliner Insurance Company (Vanliner) issued to him as compared to the policy Vanliner issued to the codefendant Humboldt Storage & Moving Co. (Humboldt), it is waived, as the plaintiff raised no such claim in his opposition to Vanliner's motion to dismiss in the trial court. To the extent the question is before us, the plaintiff accordingly can claim no error on that basis in the judgment dismissing his complaint.
In any event, even if we assume (favorably to the plaintiff) that paragraphs 4 and 16 of the complaint, read together, assert a claim for first party coverage under the plaintiff's policy with Vanliner, the complaint fails to include allegations adequate to support a colorable claim for violation of either c. 176D or c. 93A of the General Laws. Paragraph 16 of the complaint asserts simply, and conclusorily, that Vanliner required the plaintiff to initiate litigation to obtain a fair settlement, and that it refused to settle with the plaintiff despite liability being reasonably clear. However, nothing in the complaint describes any provision of the insurance policy Vanliner issued to the plaintiff that furnished an entitlement to coverage for the losses claimed by the plaintiff. There accordingly was no error, and no abuse of discretion, in the denial of the plaintiff's postjudgment motion for relief from the judgment.
From the plaintiff's brief on appeal, it appears that he is seeking damages for loss of use, occasioned by damage to his truck caused when the codefendant Allen Hassett ran into it. However, the plaintiff's complaint does not allege that his policy with Vanliner included loss of use coverage.
The judgment dismissing the complaint, and the order denying the plaintiff's postjudgment motion for relief from judgment, are affirmed.
So ordered.
By the Court (Green, Sikora & Wolohojian, JJ.),