Argued October 1, 2014.
Civil action commenced in the Superior Court Department on March 18, 2013.
A special motion to dismiss was heard by Frances A. McIntyre, J.
Myles W. McDonough for the defendant.
Andrew M. Abraham ( Thomas C. Thorpe with him) for the plaintiff.
Present: Rapoza, C.J., Katzmann, & Wolohojian, JJ.
[28 N.E.3d 485] Katzmann, J.
The defendant, Liberty Mutual Insurance, Inc. (Liberty), appeals fro the denial by a Superior Court judge of a
special motion to dismiss pursuant to G. L. c. 231, § 59H, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, enacted to protect the constitutional rights of ordinary citizens to petition the government to redress their grievances. The plaintiff, Robert Chiulli, having secured a large jury verdict against Liberty's insured, filed the instant lawsuit alleging that the defendant had violated G. L. c. 93A and G. L. c. 176D by engaging in unfair and deceptive settlement practices, chiefly by refusing to provide Chiulli with a reasonable settlement offer once the insured's liability became reasonably clear. Liberty argues that its pursuit of a jury trial on behalf of its insured is protected petitioning activity such that Chiulli's complaint should be dismissed as " a retaliatory and punitive attack upon Liberty's petitioning conduct." Liberty urges that its actions are protected by petitioning immunity where " genuine issues of material fact existed in the underlying action against the insured." Finally, it argues that application of c. 93A and c. 176D against it is an unconstitutional infringement of its State and Federal rights to a jury trial. It contends that c. 176D's requirement that an insurer make a reasonable offer of settlement when liability is reasonably clear is the equivalent of a requirement that it forgo a jury trial and settle a tort action when there are disputes about its insured's liability. We conclude that Liberty is not entitled here to the protections of the anti-SLAPP statute and that Liberty's deployment of that statute would eviscerate the consumer protections embodied in c. 176D. We thus affirm the denial of its special motion to dismiss.
Background. For background, we look first to Chiulli's underlying complaint that triggered the lawsuit Liberty claims should be dismissed under the anti-SLAPP statute, while also noting other certain [28 N.E.3d 486] events relevant to Liberty's special motion to dismiss. In the underlying complaint, Chiulli alleged that on June 20,
2008, he was severely injured following an altercation at Sonsie Restaurant (Sonsie) on Newbury Street in Boston. As a result of the altercation, Chiulli fractured his skull and was in a coma for approximately three months. He suffered a traumatic brain injury. The altercation had developed between two groups of men at the bar in Sonsie. The bartenders witnessed heated exchanges between the two groups but did not remove the parties from the bar. The employees of Sonsie contended that Chiulli started the fight, and provided depositions in which they stated that they were not trained on the safety rules related to liquor licenses, and that they suspected a fight would occur between the two parties but took no action to prevent it. Surveillance footage also suggested that Sonsie ignored safety procedures aimed at preventing fights.
Chiulli filed suit in the Superior Court against Sonsie and three individuals involved in the altercation, and the case was removed to the United States District Court for the District of Massachusetts. On June 21, 2010, Chiulli sent a formal demand letter to Liberty, complete with pertinent medical bills and reports. He alleged that damages became reasonably clear upon receipt of the medical bills. Liberty did not make any settlement offer before the trial in October of 2012. In addition to Chiulli's medical expenses, his traumatic brain injury has resulted in permanent disability, thereby causing significant reduction to his future earning capacity. The undisputed medical expenses were $661,928, and both parties had experts determine lost future earnings, arriving at the differing amounts of $413,532 and $1,589,949. In short, it was undisputed that Chiulli suffered at least $1,075,460 in medical expenses and lost earning capacity. During trial, Liberty offered to settle for $150,000. On November 19, 2012, the Federal jury found Sonsie to be ninety percent liable; Chiulli (and another ...