Heard: October 14, 2016.
actions commenced in the Superior Court Department on
September 6, 2011, and April 29, 2013.
consolidation, the case was tried before Christopher J. Muse,
J., and a motion for attorney's fees and costs was heard
Stephen Soule & Clyde K. Hanyen, Jr., for Hyannis Anglers
Club, Inc., & another.
J. Lang for Harris Warren Commercial Kitchens, LLC.
Present: Vuono, Massing, & Sacks, JJ.
after 5:00 A.M. on August 27, 2010, a fire erupted in the
kitchen of a restaurant in Hyannis owned by Oceans Harbors,
LLC (Harbors). The blaze originated in a "Pitco
Frialator" (fryer),  a cooking appliance, which, some twelve
hours earlier, had purportedly been repaired by a technician
employed by Harris Warren Commercial Kitchens, LLC (Harris),
a firm engaged in repairing commercial kitchen equipment. The
restaurant operated on the first floor of a two-story
building owned by Hyannis Anglers Club, Inc. (Anglers Club).
The Anglers Club, Harbors, and their insurer, Certain
Underwriters at Lloyd's London (Underwriters), brought
this action against Harris seeking damages for the losses
caused by the fire and for violations of G. L. c. 93A,
§§ 2 and ll.
a trial in the Superior Court, a jury found that Harris was
negligent, and the plaintiffs were awarded $686, 496.44,
exclusive of costs and statutory interest.Thereafter, the
trial judge, who had reserved for himself the plaintiffs'
claim under c. 93A, entered findings, rulings, and an order
in which he concluded that Harris had violated c. 93A when
its employee, for whom Harris was vicariously liable,
disabled a safety switch on the fryer, concealed this fact
from Harbors, and falsified the associated work documentation
in violation of the Attorney General's rules and
regulations regarding repairs and services, 940 Code Mass.
Regs. § 3.08(1)(e) (1993). The judge ruled that this
deceptive conduct "caused the fire that damaged
plaintiffs' businesses and property." However, the
judge declined to find, as the plaintiffs alleged, that
Harris had wilfully or knowingly violated c. 93A, a ruling
that foreclosed an award of multiple damages. Because the
plaintiffs prevailed on their c. 93A claim, the judge awarded
attorney's fees and costs. The award for one
attorney's services was substantially less than the
amount sought by the plaintiffs, as the judge computed that
award using a contingency fee agreement, rather than the
parties filed cross appeals from the judgment on the c. 93A
claim. The plaintiffs contend that the judge erred in
declining to award multiple damages and abused his discretion
by declining to award the full amount of attorney's fees
they requested. Harris contends that the plaintiffs'
complaint did not provide adequate notice of the alleged c.
93A violation and the judge erred by concluding that the
conduct of Harris's employee was the proximate cause of
the plaintiffs' injuries. For the reasons that follow, we
affirm the judgment in part, reverse it in part, and remand
the case for further proceedings.
trial judge accepted the jury's finding of negligence and
the award of damages. Based on the evidence presented at
trial and the reasonable inferences therefrom, he found the
following subsidiary facts. On August 25, 2010, Harris
dispatched its employee, James White, to repair a convection
oven at Harbors's restaurant. While White was on site,
Harbors's day chef asked him to take a look at the fryer.
The fryer had been shutting down while in operation, which
caused the cooking oil in the fryer to cool and required the
pilot light to be relit. White concluded that the fryer needed a
new high limit switch. He ordered that part and an igniter
for the convection oven to be delivered overnight to
Harris's office. The next day (August 26), White returned
to the restaurant with the parts that he had ordered. White
installed an igniter in the convection oven, but he did not
install the new high limit switch in the fryer. Instead, as
the judge found, White left the restaurant without finishing
his work "for his own convenience and personal
benefit." Before he left the kitchen, White informed
the day chef that repairs had been made to both the oven and
the fryer, and White handed the chef a work order.
White's work order provided in pertinent part:
"Install Hi-Limit re-wire to unit -- check operating
that evening, at approximately 9:30 £.M., the fryer
overheated and belched smoke. By turning the fryer's
control knobs back and forth, Harbors's night chef was
able to stop the overheating. The fryer promptly cooled down
and remained so until at least 1:30 A.M., when Harbors's
manager closed the restaurant and building for the night. The
manager checked the fryer before he left the
the early morning of August 27, a fire alarm system in the
building triggered an alert to the Hyannis Fire Department,
which promptly responded. The fire was ultimately suppressed.
Investigators determined that the fryer had malfunctioned and
sparked a blaze. Further testing by experts confirmed that
the high limit switch on the fryer was not new, and that the
fryer's thermostat had been "hanging up"
intermittently in a setting that called for more heat to the
burners even though the thermostat had reached the set
temperature needed to heat the cooking oil. This condition is
called a "runaway thermostat." The purpose of the
high limit switch is to shut off the fryer if this condition
judge expressly found that White had disabled the fryer's
high limit switch. That switch had been working before he
arrived at the restaurant on August 25, but did not work
after White finished his work on the afternoon of August 26.
He further found that White failed to disclose that he had
disabled the switch, and that he submitted a work order and
invoice that he knew falsely stated that he had fixed the
fryer by replacing the high limit switch when he had not done
judge concluded White's unfair and deceptive acts
violated c. 93A and "led directly to the fire and
consequent damages." As the judge explained, White, by
his own admissions regarding his failures and untruthfulness,
was negligent and "arguably . . . indifferent"
toward the consequences of his conduct when he left the job
site without finishing his work. The judge further ruled
that White violated 940 Code Mass. Regs. § 3.08(1)(e) by
representing that he had made repairs that were not made.
However, the judge rejected the plaintiffs' contention
that, in the circumstances, White's conduct amounted to a
wilful or knowing violation of c. 93A. Consequently,
he did not award multiple damages.