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Rivera v. Commerce Ins. Co.

Appeals Court of Massachusetts, Hampden

August 16, 2013

Efrain Martinez RIVERA[1] & another [2]
v.
COMMERCE INSURANCE COMPANY & others.[3]

Argued March 19, 2013.

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.

[993 N.E.2d 1209] Robert A. DiTusa, Springfield, for the plaintiffs.

John F. Hurley, Jr., Worcester, for Commerce Insurance Company.

Present: CYPHER, BROWN, & COHEN, JJ.

BROWN, J.

This appeal concerns the proper measure of damages for loss of use in an unfair claim settlement practices case.

Page 147

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.[4] 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.[5] See G.L. c. 93A, ยง 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.[6]

[993 N.E.2d 1210] The underlying facts derived from the judge's findings are no longer in dispute. On August 13, 2003, a dump truck operated

Page 148

by Commerce's insured struck Rivera's vehicle head-on. At the time, Rivera was returning from his job as a laborer. Within nine days, Commerce had concluded that the accident was solely the fault of its insured.

A long medical course followed for Rivera involving multiple surgeries, medical procedures, and therapy. During this time period, the plaintiffs' attorney provided Commerce with updated information about Rivera's status, his inability to work, and copies of his mounting medical bills. On August 7, 2006, the plaintiffs filed this action in order to avoid any statute of limitations issues. In December, 2006, the ...


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