MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR JUDGMENT ON THE PLEADINGS
Douglas H. Wilkins, Justice of the Superior Court.
plaintiff, Connell McCall (" Plaintiff" or "
McCall") brought this action on a surety bond against
the defendant, Aegis Surety Bonds and Insurance Services, LLC
a/k/a Aegis Security Insurance Company ("
Defendant" or " Aegis"). Before the court is
Plaintiff's Motion for Partial Judgment on the Pleadings
(" Motion"), which the defendant opposed. The
Motion seeks judgment on Count 1 (Declaratory Judgment) and
Count 2 (Breach of Contract-Bond). After hearing, the Motion
April 27, 2013, McCall purchased a vehicle from Edd's
Auto Exchange, Inc. (" Edd's"). Aegis issued a
$25, 000 bond to Edds (Exhibit A to the Complaint), covering
Edd's from December 6, 2012 through December 5, 2013. The
bond is payable to " a person who obtains a
final judgment in a court of competent jurisdiction
against the Principal for an act or omission on which the
bond is conditioned if the act or omission occurred during
the term of the bond." [emphasis added]. The bond
incorporated by reference G. L. c. 140, § 58(c)(1)(iv),
which reads in relevant part:
The bond or its equivalent shall be for the benefit of a
person who purchases a vehicle from a Class 2 [used car
dealer] licensee, and who suffers loss on account of . . .
the dealer's unfair and deceptive acts or practices,
misrepresentations, failure to disclose material facts or
failure to honor a warranty claim or arbitration
order in a retail transaction. [emphasis added].
August 31, 2013, McCall filed for arbitration against
Edd's under the Massachusetts Lemon Law, G. L. c. 90,
§ 7N1/4. On October 11, 2013, an arbitrator issued a
final decision in favor of McCall. Edd's appealed the
final arbitration award to the Lynn District Court in an
action under G. L. c. 90, § 7N1/4, entitled
Edd's Auto Exchange v. Connell McCall, Lynn
District Court No. 1313 cv 1103. Edd's never posted the
required bond for that suit. On March 30, 2015, final
judgment entered in favor of McCall, who filed a claim
against the bond on or before July 2, 2015. Aegis denied
McCall's claim in a letter response dated August 14,
2015. McCall commenced this action on November 16, 2015.
Rule 12(c) of the Massachusetts Rules of Civil Procedure
provides that, '[a]fter the pleadings are closed but
within such time as not to delay the trial, any party may
move for judgment on the pleadings . . .'"
Ritchie v. Department of State Police, 60
Mass.App.Ct. 655, 659, 805 N.E.2d 54 (2004), quoting Mass. R.
Civ. P. 12(c), 365 Mass. 754 (1974). The test for Rule
12(b)(6) motions govern a motion brought under Mass. R. Civ.
P. 12(c). See Welch v. Sudbury Youth Soccer
Association, 453 Mass. 352, 353, 901 N.E.2d 1222 (2009).
Accordingly, " the Court may consider documents
referenced in the plaintiff's complaint without
converting the motion to dismiss into a motion for summary
judgment." Johnston v. Box, 453 Mass. 569,
581-582 n. 19, 903 N.E.2d 1115 (2009) (brackets and quoted
citation omitted), quoting Shaw v. Digital Equip.
Corp., 82 F.3d 1194, 1220 (1st Cir. 1996) (material must
be " integral to or explicitly relied upon in the
of the Motion turns upon the relevant portion of G. L. c.
140, § 58(c)(2), which sets forth the statute of
limitations for claims against the surety bond. The statute
(2) Recovery against the bond or its equivalent may be made
by any person who obtains a final judgment
in a court of competent jurisdiction against the dealer for
an act or omission on which the bond is condition if the act
or omission occurred during the term of the bond. Every bond
shall also provide that no suit may be maintained to enforce
any liability on the bond unless brought within 1 year after
the event giving rise to the cause of
action. [emphasis added].
question is whether McCall's " cause of action"
arose when McCall discovered the problems with the car or
when McCall obtained a judgment. Resolution of that question
is not difficult.
only " cause of action" addressed by §
58(c)(2) is the " suit . . . to enforce any liability on
the bond", i.e. an action for " [r]ecovery against
the bond or its equivalent." Under the first sentence,
that suit must await entry of " a final judgment."
Where the plaintiff cannot sue until entry of judgment, no
sensible reading would lead to a conclusion that he had a
cause of action before that time. The language " event
giving rise to the cause of action" therefore can only
be referring to the entry of judgment mentioned in the
previous sentence. " Where " the language of a
statute is clear and unambiguous, it is conclusive as to the
intent of the Legislature.' Global NAPs, Inc. v.
Awiszus, [457 Mass. 489, 496, 930 N.E.2d 1262
(2010)]." Passatempo v. McMenimen, 461 Mass.
279, 287, 960 N.E.2d 275 (2012).
argues that the phrase " event giving rise to the cause
of action" refers to the six events enumerated in G. L.
c. 140, § 58(c)(1)(i)-(vi), including five kinds of
wrongs committed at the time the used car was purchased,
failure to honor a warranty claim or arbitration order or
failure to pay off a lien on a trade-in if the dealer assumed
the lien. None of these actions gives rise to a cause of
action on the bond, however. The bond itself is payable only
to " a person who obtains a final judgment in a
court of competent jurisdiction against the
Principal ...." Moreover, Aegis' interpretation
makes no sense. By the time the consumer receives a judgment
against the dealer, one year is very likely to have passed,
as it did here. The one year period for suit, clearly
intended by the Legislature, would be illusory. Even if the
language were ambiguous, the Court would reject Aegis'
interpretation which would defeat the statute's overall
consumer protection purpose. Shepard v. Finance
Associates of Auburn, Inc., 366 Mass. 182, 191, 316
N.E.2d 597 (1974) (consumer protection statute should be
" liberally construed to effectuate its remedial
purpose"). See generally Passatempo, 461 Mass. at 287
(construing statute " to effectuate the intent of the
Legislature in enacting it"), quoting Global NAPS, 457
Mass. at 496.
from the statute of limitations, there is no question about
liability on the bond. The pleadings establish that the
plaintiff has recovered a judgment against Edd's, has
made demand on Aegis, and that Aegis has failed to honor ...