Opinion
No. 12–P–399.
2013-02-25
David GIACALONE v. COMMERCE INSURANCE COMPANY, INC.
By the Court (KAFKER, MILKEY & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff suffered various injuries when his car was struck from behind by one driven by Lynn Alderman–Boyer. The plaintiff's separate action against Alderman–Boyer eventually settled. In the current action, the plaintiff alleges that Alderman–Boyer's insurer, Commerce Insurance Company, Inc. (Commerce), committed unfair settlement claim practices in violation of G.L. c. 93A, § 2, and G.L. c. 176D, § 3(9). In a detailed and thoughtful opinion, a Superior Court judge granted Commerce's motion for summary judgment. We affirm, essentially for the same reasons relied upon by the motion judge.
Commerce's motion for summary judgment was properly accompanied by a statement of undisputed facts, which itself was supported by affidavit (and various documents attached to the affidavit). The plaintiff did not address the statement of undisputed facts in the manner required by Superior Court Rule 9A(b)(5)(ii), and the judge therefore deemed the statement admitted. Nor did the plaintiff submit any affidavit. The plaintiff did supply Commerce's answers to interrogatories and various documents related to some of the plaintiff's medical expenses (as well as some of the same documents that Commerce submitted). Putting aside the failure of the plaintiff to submit his documents through an affidavit, the plaintiff's submissions do not contradict Commerce's statement of undisputed facts, but at most provide some supplementation of that statement. The judge correctly determined that this case could be resolved on the undisputed facts established by the summary judgment record.
The plaintiff alleges that various remarks that the motion judge made show that she was biased against his claim or was relying on material outside the record. Without suggesting that such arguments have any weight, we note that they are beside the point for purposes of this appeal because our review is de novo. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n. 1 (1997).
The plaintiff did not make any demand pursuant to G.L. c. 93A, § 9(3), until March 17, 2009. Two days later, Commerce orally offered the plaintiff the policy limit ($20,000), with that offer confirmed in writing well within the thirty-day statutory period. Commerce's offer was conditioned on the plaintiff's waiving liability against the insured parties, but the plaintiff does not, and cannot, argue that this condition rendered the offer unreasonable. See Lazaris v. Metropolitan Property & Cas. Ins. Co., 428 Mass. 502, 504–505 (1998). Indeed, the plaintiff eventually accepted the offer, as conditioned, to settle the underlying tort action.
Commerce argues that its prompt and reasonable response to the only settlement demand that the plaintiff ever formally made by itself dooms the plaintiff's case. We need not, and do not, rest on that ground. Assuming arguendo that there might be cases where an insurer had a duty to put a reasonable settlement offer on the table even in the absence of a formal demand from a claimant, the plaintiff has not demonstrated that this is one of them. An insurer's duty to settle arises only when liability has become reasonably clear, including as to both fault and damages. See O'Leary–Alison v. Metropolitan Property & Cas. Ins. Co., 52 Mass.App.Ct. 214, 217 (2001). See also Clegg v. Butler, 424 Mass. 413, 421 (1997). Viewed in the most favorable light, the plaintiff's argument appears to be that Commerce had a duty to offer the policy limit long before it did—even in the absence of a formal demand—because Commerce knew, or should have known, that the plaintiff's legitimate damages dwarfed the policy limit. As discussed below, this argument is inconsistent with the uncontested facts established by the summary judgment record.
While not contesting fault, Commerce raised facially reasonable concerns about what damages could be attributed to the accident, and it requested information to address those concerns. The plaintiff declined to make himself available for a voluntary statement while the claim was pending, and he significantly delayed providing Commerce his medical records. For example, although the plaintiff provided Commerce some of his medical records by April 15, 2008, he still had not by that date—over two years after the accident—provided the key reports from Massachusetts General Hospital for the plaintiff's treatment on the date of the accident. Then, when Commerce by letter dated July 9, 2008, requested medical records for five years prior to the accident (in order to address Commerce's concerns regarding potential preexisting conditions), the plaintiff declined to provide such records and instead signed release forms only for medical records that postdated the accident. Commerce ended up subpoenaing the plaintiff's preaccident medical records in discovery, with that process lasting into March of 2009 (the month that the plaintiff finally made his formal demand).
Once Commerce marshalled its evidence that it acted reasonably and was delayed by the plaintiff's lack of cooperation, it was incumbent on the plaintiff to put forth facts demonstrating a triable issue. See generally, Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). The plaintiff failed to engage that burden, and summary judgment was therefore appropriately entered in Commerce's favor. See Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 659–662 (2003) (in unfair settlement action, summary judgment in favor of insurer proper where undisputed facts establish that insurer acted reasonably).
According to documents that the plaintiff included in the record appendix, the plaintiff provided Commerce some of his pre-accident medical history in October of 2008. However, those records were never submitted to the motion judge, and therefore are not properly before us. Similarly, the transcript of the plaintiff's deposition in the underlying tort case was never made part of the summary judgment record, and we therefore decline to address an argument that the plaintiff makes based on that transcript.
Judgment affirmed.