Heard: January 5, 2017.
action commenced in the Superior Court Department on January
case was heard by Robert C. Rufo, J.
Richard T. Corbett for the plaintiff.
M. Truland (Ralph C. Sullivan also present) for the
Present: Carhart, Massing, & Lemire, JJ.
jury-waived trial in the Superior Court on claims of unfair
settlement practices under G. L. c. 93A and G. L. c. 176D,
the judge found that the defendant, Norfolk & Dedham
Mutual Fire Insurance Company (Norfolk & Dedham), did not
engage in unfair practices in its handling of the
plaintiff's, Mark Silva's, personal injury claim
against Norfolk & Dedham's insured. The judge also
found, however, that after Silva obtained a substantial jury
verdict on his personal injury claim and while the appeal
from that judgment was pending in this court,  Norfolk &
Dedham violated c. 93A when it offered to settle the claim
for the policy limit without also offering postjudgment
appeals, arguing that the judge erred by (1) finding that
Norfolk & Dedham did not engage in unfair settlement
practices, (2) precluding Silva's expert from testifying
that Norfolk & Dedham engaged in unfair practices, and
(3) finding that Norfolk & Dedham's failure to
include postjudgment interest in its settlement offer,
although a violation of c. 93A, was not wilful and knowing.
Norfolk & Dedham cross appeals, arguing that its failure
to offer postjudgment interest did not violate c. 93A
whatsoever. We reverse the award of damages, prejudgment
interest, costs, and attorney's fees with respect to its
failure to offer postjudgment interest, and affirm the
amended judgment in all other respects.
summarize the judge's comprehensive findings concerning
Norfolk & Dedham's investigation and handling of
Silva's personal injury claim, reserving other facts for
later discussion. On March 9, 2005, Silva, a tow truck
operator, was assisting a vehicle stuck in a snow drift on
Route 6 in Provincetown. Silva had pulled his truck to the
side of the road and hooked up a tow line to the disabled
car. The road conditions were "snowy, slushy, and
icy." Dorothy McQuinn was driving on Route 6 with her
windshield fogged up, obstructing her view of the road, when
she rear-ended Silva, who "was tossed inside the
truck." The next day, Norfolk & Dedham,
McQuinn's insurer, was informed of the collision and
opened a claim. McQuinn had bodily injury coverage of $250,
000 per person, $500, 000 per accident.
& Dedham's initial efforts to obtain information
regarding Silva and his injuries were mostly fruitless.
Silva's automobile insurance carrier and his worker's
compensation carrier were initially reluctant to disclose to
Norfolk & Dedham any information from their own
investigations. (Norfolk & Dedham did not obtain access
to Silva's medical records until more than three years
after the accident, after Silva filed his personal injury
suit against McQuinn.) However, Norfolk & Dedham slowly
gathered information casting doubt on the genuineness of
Silva's claimed injuries. The judge found that
"[t]his series of events occurring between 2006 and 2008
gave Norfolk & Dedham reason to doubt Silva's general
veracity and be suspicious of not only his wage claim but
also his claims of bodily injury."
on the communications and miscommunications between
Silva's attorney (White) and the attorney that Norfolk
& Dedham assigned to represent McQuinn (Feeney), prior to
trial "Attorney Feeney did not have an understanding of
what Attorney White's position was relative to
settlement." On the first day of trial of the personal
injury suit, January 19, 2010, the presiding judge held a
lobby conference to discuss the possibility of settlement.
White said that no offer had been made, and Feeney responded
that he had never received a demand. Feeney made two
settlement offers during the personal injury trial -- $25,
000 and $60, 000 -- both of which were rejected. The jury
returned a verdict for Silva and awarded damages of $818,