The judge made no such findings, nor could he, because USFG introduced no evidence and made no argument to that effect. Cf. Yeagle v. Aetna Cas. Sur. Co., 42 Mass. App. Ct. 650, 652 (1997). In any event, whatever merit there may be to that position, see, e.g., Forcucci v. United States Fid. Guar. Co., 11 F.3d 1 (1st Cir. 1993), we do not consider the argument because USFG raised the point for the first time in its posttrial motion to amend the judgment, and it is therefore waived.

The statutory multiplier serves as a deterrent to just that. See, e.g., Yeagle v. Aetna Cas. Sur. Co., 42 Mass. App. Ct. 650, 655 (1997) ("Hence the 1989 amendment [to c. 93A], which threatened a bad faith defendant with multiplication of the amount of the judgment secured by the plaintiff on his basic claim — a total that might be many times over the interest factor").

But see, e.g., Noyes v. Quincy Mut. Fire Ins. Co., 7 Mass. App. Ct. 723, 726 (1979). Most recently, however, the Supreme Judicial Court in Clegg v. Butler, 424 Mass. 413 (1997), and the Appeals Court in Yeagle v. Aetna Cas. Sur. Co., 42 Mass. App. Ct. 650 (1997), discussed at some length the standards for determining liability under § 3(9)(f) without mentioning any issues regarding whether the statute applied to a single violation and not simply a pattern. See also Demeo v. State Farm Mut. Auto. Ins. Co., 38 Mass. App. Ct. 955, 956 n. 3 (1995) (rescript).While it usually is unwise to assume that an appellate opinion was intended to dispose of an undiscussed subject, the extended discussions those opinions contained would appear to be almost entirely pointless if a pattern had to be found before the principles contained in the discussions even applied.

There is general consensus among courts and commentators that the 1989 amendment was intended to increase the potential penalties for insurers who engaged in unfair claim settlement practices, in response to the Bertassi- Wallace- Trempe line of cases. See Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683, 685–686, 689 N.E.2d 1347 (1998); Clegg v. Butler, 424 Mass. 413, 424, 676 N.E.2d 1134 (1997); Yeagle v. Aetna Cas. & Sur. Co., 42 Mass.App.Ct. 650, 653–655, 679 N.E.2d 248 (1997); Cohen v. Liberty Mut. Ins. Co., 41 Mass.App.Ct. 748, 755, 673 N.E.2d 84 (1996). See also Billings, The Massachusetts Law of Unfair Insurance Claim Settlement Practices, 76 Mass. L.Rev. 55, 71 (1991); Hailey, New Incentive for Insurers to Settle Claims Reasonably and Promptly, 34 Boston B.J. 16, 17 (1990).

See Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395 (1951) (Jackson, J. concurring); Danner, "Justice Jackson's Lament: Historical and Comparative Perspectives on the Availability of Legislative History," 13 DUKE J. OF COMP. INTL. LAW 151 (2003). See, as representative of this line of cases, Wallace v. American Mfrs. Mut. Ins. Co., 22 Mass. App. Ct. 938, 939-940 (1986);Trempe v. Aetna Cas. Sur. Co., 20 Mass. App. Ct. 448, 457 (1985); and Shapiro v. Public Serv. Mut. Ins. Co., 19 Mass. App. Ct. 648, 657 (1985); and the discussion in Yeagle v. Aetna Cas. Sur. Co., 42 Mass. App. Ct. 650, 654 (1997). Such intent is not, at least to this reader, obvious from the legislative language.

The Supreme Judicial Court and the Appeals Court have interpreted this amendment to mean that, if the plaintiff went to trial in the underlying case and obtained a judgment, and if the plaintiff proves some actual damages arising from the insurer's violation of Chapter 176D and establishes that the violation was willful or knowing, the amount of damages to be doubled or trebled is not the actual damages but the amount of the underlying judgment. See, e.g., Clegg v. Butler, 424 Mass, at 424; Kapp v. ArbeUa Mut Ins. Co., 426 Mass. 683, 685-86 (1998); Yeagle v. Aetna Cos. Sur. Co., 42 Mass.App.Ct. 650, 655 (1997) (the 1989 amendment "threatened a bad faith defendant with multiplication of the amount of the judgment secured by the plaintiff on his basic claim — a total that might be many times over the interest factor" and that "exceeded the injury caused by the c. 93A violation"). As the Supreme Court declared in Clegg:

The Supreme Judicial Court and the Appeals Court have interpreted this amendment to mean that, if the plaintiff went to trial in the underlying case and obtained a judgment, and if the plaintiff proves some actual damages arising from the insurer's violation of Chapter 176D and establishes that the violation was willful or knowing, the amount of damages to be doubled or trebled is not the actual damages but the amount of the underlying judgment. See, e.g.,Clegg v. Butler, 424 Mass. at 424; Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683, 685-686 (1998); Yeagle v. Aetna Cas. Sur. Co., 42 Mass. App. Ct. 650, 655 (1997) (the 1989 amendment "threatened a bad faith defendant with multiplication of the amount of the judgment secured by the plaintiff on his basic claim — a total that might be many times over the interest factor" and that "exceeded the injury caused by the c. 93A violation"). As the Supreme Court declared in Clegg:

There exists, therefore, the potential that the $21,000,000 judgment obtained by plaintiffs against Leitrum will be utilized as the measure of actual damages to be awarded against LLJUA. If bad faith on the part of LLJUA is found, the $21,000,000 judgment will constitute "the amount of actual damages to be multiplied." Id. See Yeagle v. Aetna Casualty Surety Co., 42 Mass. App. Ct. 650, 653-654 (1997), rev. denied 425 Mass. 1105 (actual damages shall be the amount of the judgment on the underlying claim for the purpose of bad faith multiplication (and for that purpose only); if bad faith is not found, the judgment will not be utilized as the measure of single damages). LLJUA's concern is thus well founded, but its potential liability to plaintiffs is not sufficient to trigger, on these facts, the right to intervene.

See Wallace v. Am. Mfrs. Mut. Ins. Co., 494 N.E.2d 35, 38 (Mass. App. Ct. 1986) (“The cost (in the form of interest) of such borrowing was a predictable result of the failure to settle.”); see also Yeagle v. Aetna Cas. & Sur. Co., 679 N.E.2d 248, 251 (Mass. App. Ct. 1997) (“It was long understood that damages under c. 93A, § 9(3), were those ‘caused' by the unfair practice, as distinct and different from any recovery on the underlying claim.”).

Multiple damages under Chapter 93A are punitive in nature. See Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683, 686 (1998) (quoting Yeagle v. Aetna Cas. Sur. Co., 42 Mass. App. Ct. 650, 655 (1997)) (Chapter 93A double and treble damages are "avowedly punitive"). This Court does not, however, need to reach that issue, because plaintiff cannot establish that the conduct of defendant constituted an unfair or deceptive act within the meaning of Chapter 93A.