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Silva v. Norfolk & Dedham Mutual Fire Insurance Co.

Appeals Court of Massachusetts, Barnstable

April 26, 2017

MARK SILVA
v.
NORFOLK & DEDHAM MUTUAL FIRE INSURANCE COMPANY.

          Heard: January 5, 2017.

         Civil action commenced in the Superior Court Department on January 13, 2011.

         The case was heard by Robert C. Rufo, J.

          Richard T. Corbett for the plaintiff.

          Kevin M. Truland (Ralph C. Sullivan also present) for the defendant.

          Present: Carhart, Massing, & Lemire, JJ.

          MASSING, J.

         After a 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, [1] Norfolk & Dedham violated c. 93A when it offered to settle the claim for the policy limit without also offering postjudgment interest.

         Silva 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.

         Background.

         We 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.

         Norfolk & 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."

         Based on the communications and miscommunications[2] 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, 000.

         Discussion.

         1. Pret ...


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