ANTHONY G. MORGAN
MASSACHUSETTS HOMELAND INSURANCE COMPANY.
Heard: November 9, 2016
action commenced in the Superior Court Department on March 8,
for class certification and for summary judgment were heard
by Edward J. McDonough, Jr., J.; and the case was heard by
Bertha D. Josephson, J.
J. Vottero (Eric D. Applebaum also present) for the
Michael S. Batson (Michael C. Kinton also present) for the
Present: Kafker, C.J., Kinder, & Lemire, JJ.
plaintiff, Anthony G. Morgan, brought this civil action
against the defendant, Massachusetts Homeland Insurance
Company (Homeland or insurer), alleging that Homeland engaged
in unfair or deceptive claim settlement practices in
violation of G. L. c. 176D, § 3(9), and G. L. c. 93A, in
the course of settling his total loss auto insurance
claim. See G. L. c. 93A, §§ 2, 9. Even
though the claim was settled within two months of the
accident, with the plaintiff's acceptance of the
insurer's offer, the plaintiff claimed that the insurer
violated c. 176D and c. 93A because it did not take into
account the "retail book value" of his vehicle, as
required by 211 Code Mass. Regs. § 133.05(1)(a) (2003).
The plaintiff also filed a motion to certify a class action
pursuant to G. L. c. 93A, § 9(2). A judge of the
Superior Court (motion judge) denied class certification and
entered a summary judgment on that count of the complaint.
After a jury-waived trial on the plaintiff's individual
c. 93A claim, the trial judge (who was not the motion judge)
found that, although Homeland had violated c. 93A, the
plaintiff was not injured by the violation, and entered
judgment for Homeland on that count of the complaint. On
appeal, the plaintiff argues that the judges erred by (1)
denying his motion for class certification; and (2)
concluding that he was not injured by Homeland's c. 93A
violation. Homeland cross-appeals, challenging the trial
judge's ruling that it violated c. 93A. We conclude that
the motion for class certification was properly denied, and
that there was no c. 93A violation.
January 9, 2011, the plaintiff's 2005 Chevrolet Colorado
was significantly damaged in an accident. Homeland, the
plaintiff's auto insurer, determined the vehicle to be a
total loss. Homeland was therefore required to offer the
plaintiff an amount for the actual cash value of the vehicle.
See 211 Code Mass. Regs. § 133.05. When calculating
the actual cash value of a total loss vehicle, an insurer
must consider four factors, one of which is the "retail
book value" of a vehicle "of like kind and quality,
but for the damage incurred." 211 Code Mass. Regs. §
133.05(1) (a) .
January 12, 2011, Homeland determined the actual cash value
of the plaintiff's vehicle to be $11, 891. Homeland used
a software program generated by a third party, Certified
Collateral Corporation (CCC), which maintains a database of
vehicles for sale from dealers and private parties in various
markets. The motion judge found that the CCC report
"incorporated a significant amount of information,
including, but not limited to, vehicle description, vehicle
options, vehicle history, the local market, the vehicle's
pre-accident condition, the value of comparable vehicles, and
vehicle mileage." The record provides more particularly
that CCC's database "include[s] vehicles for sale at
dealerships that CCC has physically inspected and dealer and
private party advertised vehicle information from more than
1, 700 publications." Using the vehicle's
identification number and the plaintiff's zip code, CCC
compiled a list from its database of twelve comparable
vehicles available for sale in the local market. Three of the
vehicles were listed for sale at local dealerships that CCC
had physically inspected; nine were listed for sale on
Autotrader, a publicly accessible online database of vehicles
for sale from dealers and private parties listed by age,
make, model, mileage, and city and State. See, e.g.,
Kesling v. Hubler Nissan, Inc.,
997 N.E.2d 327, 330 (Ind. 2013). CCC then adjusted those
values for the condition of the plaintiff's vehicle, and,
using a weighted average formula, arrived at an actual cash
value of $11, 891.
informed of this valuation on January 20, 2011, the plaintiff
insisted that his vehicle was worth more than $14, 000,
citing a report by the National Automobile Dealers
Association (NADA) that showed a "clean retail"
value of $14, 500. NADA maintains a publicly accessible
online database of used car values in each region of the
country, from which reports on particular vehicles may be
generated. NADA, an industry trade association, also
periodically publishes "books" containing these
values in regional editions. See Braucher, Rash and
Ride-Through Redux: The Terms for Holding on to Cars, Homes
and Other Collateral Under the 2005 Act, 13 Am. Bankr. Inst.
L. Rev. 457, 466 n.37 (2005) (Braucher). See also
FTC v. CCC Holdings Inc., 605
F.Supp.2d 26, 33 (D.D.C. 2009).
receiving the plaintiff's c. 93A demand letter on
February 11, 2011, and the NADA report, Homeland increased
its valuation of the vehicle to $13, 024.66, which was found
by the motion judge to reflect "an average of the NADA,
Auto[t]rader, and CCC valuations." Homeland subsequently
increased its valuation to $13, 650, which resulted in a
settlement offer of $14, 003.12. The plaintiff accepted a
check in that amount.
plaintiff claims that the judge erred in denying his motion
to certify a class of all Homeland auto insureds who received
payment for a total loss claim. He apparently claims a class
should be certified based on Homeland's alleged use of
the CCC software to determine its original offers, which,
according to the plaintiff, did not account for the higher
"retail book value, " in violation of 211 Code
Mass. Regs. § 133.05(1) (a) . We disagree.
bring a class action under c. 93A, the plaintiff must show
that he seeks relief for an unfair or deceptive act or
practice, that the act or practice "caused similar
injury to numerous other persons similarly situated, "
and that he would "adequately and fairly
represent" such persons. G. L. c. 93A, § 9(2),
inserted by St. 1969, § 690. The plaintiff must
"provide 'information sufficient to enable the
motion judge to form a reasonable judgment' that the
class meets the relevant requirements."
Bellermann v. Fitchburg Gas & Elec.
Light Co., 470 Mass. 43, 52 (2014), quoting from
Weld v. Glaxo Wellcome Inc., 434
Mass. 81, 87 (2001). In deciding on a motion for class
certification under c. 93A, a judge must bear in mind the
"pressing need for an effective private
remedy." Aspinall v. Philip
Morris Cos., 442 Mass. 381, 391-392 (2004), quoting from
Fletcher v. Cape Cod Gas Co., 394
Mass. 595, 605-606 (1985) . We review a denial of class
certification under c. 93A for an abuse of discretion.
Bellermann, 470 Mass. at 51. We conclude that the
motion judge did not abuse his discretion in declining to
certify the plaintiff's class action, as the plaintiff
failed to provide sufficient information to support a
reasonable judgment that others were similarly situated and
similarly injured. See id. at 54.
begin with the specifics of the plaintiff's case.
Homeland based its original offer on the CCC report, which
included information from Autotrader; the insurer later made
upward adjustments after considering the NADA report
presented by the plaintiff. The record, however, provides
little to no information regarding how other putative class
members' total loss claims were calculated, negotiated,
and settled. As the motion judge explained, "Morgan has
failed to adduce any evidence of injury to any other
party." There is also insufficient information in the
record to support a reasonable judgment that Homeland
employed a uniform approach in handling total loss claims.
Homeland's nationwide policy provides only that CCC
reports "may" be used to calculate the actual cash
value of a total loss vehicle and that "sources [such]
as Auto[t]rader, NADA, Edmunds, Redbook and KBB [Kelly Blue
Book]" may be consulted. Additionally, the record does
not support a reasonable judgment that reliance on the CCC
software, rather than NADA or other retail book values,
similarly affected other members of the putative class. The
plaintiff did not dispute that "CCC valuations are
sometimes higher than other commercially available book
valuations." Thus, the beneficial or detrimental effect
of the use of the CCC reports in determining even the
original offer would depend on each putative class
member's particular circumstances. This determination
would further depend on each class member's zip code and
vehicle condition, based on CCC's methodology. Thus,
there is insufficient evidence to support a reasonable
judgment that the plaintiff and the putative class members
were similarly situated.
we cannot discern how the plaintiff here was actually harmed
by the use of the CCC report, or how his alleged harm
compared to that of the other putative class members. After
basing its original offer on the lower CCC number, which
included Autotrader listings, Homeland did consider the NADA
report in upwardly adjusting the value of the plaintiff's
vehicle. The plaintiff then ultimately received a check close
to the amount of his original demand, approximately $14, 000.
The end result was very nearly what he requested and included