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Matckie v. Great Divide Insurance Co.

Superior Court of Massachusetts, Suffolk

May 24, 2017

Pamela Matckie
v.
Great Divide Insurance Company

          Filed May 24, 2017

          MEMORANDUM OF DECISION AND ORDER ON MOTION TO AMEND COMPLAINT AND MOTION FOR SUMMARY JUDGMENT DISMISSAL

          Robert L. Ullmann, Justice.

         The plaintiff, Pamela Matckie (" Matckie"), moved to file a Fifth Amended Complaint that would (1) add Endurance American Specialty Insurance Company (" Endurance American") as a defendant; (2) substitute Paul Matckie, personal representative of the estate of Pamela Matckie, as plaintiff; and (3) add claims of infliction of emotional distress based on the alleged bad-faith settlement practices of the defendant, Great Divide Insurance Company (" Great Divide"), and Endurance American. (Docket #102; #111.) Great Divide cross moved for summary judgment dismissal of the G.L.c. 93A claim against it (part of Docket #104). The Court heard oral argument on May 15, 2017. For the below reasons, plaintiff's motion to amend the complaint is ALLOWED in part and DENIED in part. Plaintiff can substitute Paul Matckie, personal representative of the estate of Pamela Matckie, as plaintiff, so that the c. 93A claim against Great Divide can proceed as currently alleged. However, plaintiff cannot add Endurance American as a defendant or bring a new claim against Great Divide for infliction of emotional distress. Great Divide's cross motion for summary judgment dismissal is DENIED .

         RELEVANT FACTS AND PROCEDURAL HISTORY

         This case has a long and contentious history, but the facts needed to decide the pending motions are limited and undisputed.

         Matckie filed her initial complaint in April 2012, alleging that she had been injured when she tripped on plywood boards that had been placed on the field at Gillette Stadium for an event called the American Food Festival. SOF 1, 3; [1] Docket #1. In 2013, plaintiff filed a Third Amended Complaint, suing, among others, NPS, LLC (" NPS"); the owner of Gillette Stadium, which was insured by Great Divide; Great Divide; Team Ops, LLC (" Team Ops"), and Uncle Al's Production Services, Inc. (" Uncle Al's"), which was insured by Endurance American. SOF 2, 4. Plaintiff's claim against Great Divide was preceded by two demand letters, in accordance with G.L.c. 93A. J.A. Ex. 1 at GD026-035; SOF 5, 7. Neither letter describes a claim for infliction of emotional distress based on Great Divide's conduct. Id. The claim against Great Divide was stayed. SOF 6.

         Throughout the pretrial proceedings, and even at trial, the critical issue of who had put down the plywood boards on which Matckie fell was unclear. NPS admitted in its June 2012 Answer that it had put down the boards (Docket #8), but later asserted that another entity had put down the boards and sought to withdraw its admission. Docket #69. This Court ruled that NPS would be allowed to amend its admission, but without prejudice to any party's right to seek to offer the original admission at trial as evidence that NPS had put down the boards. Docket #75.

         On November 23, 2015, plaintiff's counsel informed defendants' counsel that Matckie was experiencing liver and kidney failure that might be fatal. SOF 9. Matckie died on December 8, 2015. SOF 10. The cause of death was determined to be alcoholism. Id.

         Trial against NPS, Team Ops, Uncle Al's, and two other defendants began on May 9, 2016. SOF 13. In his opening statement, plaintiff's counsel stated that Gillette Stadium's owners " have the most clear and obvious incentive to protect that field . . . The stadium has offered some testimony and suggestions that it was Mr. Fay's client's [Uncle Al's] fault in those regards . . . I suggest that it is nobody's fault but their own in those regards ." End. Am. Opp. Ex. 3 at 15-16 (emphasis added), his closing statement, however, plaintiff's counsel argued, as the sole basis of Uncle Al's liability, that Uncle Al's had put down the boards. See End. Am. Opp. Ex. 17.

         On May 18, 2016, the jury returned a verdict, finding liability on the part of NPS (20%), Team Ops (40%), and Uncle Al's (40%). End. Am. Opp. Ex. 22. The jury awarded $450, 000 for Matckie's medical expenses, lost earnings and pain and suffering. Id. Judgment in the amount of $670, 298.40 including interest was entered on May 27, 2016. SOF 15. Great Divide promptly paid $447, 089.03, two-thirds of the Judgment amount. SOF 16.

         Endurance American had at least some participation in settlement negotiations before trial, but it did not receive a G.L.c. 93A demand letter until June 23, 2016. See Plt. Ex. 12; End. Am. Opp. Ex. 23, 27. On July 15, 2016, Endurance American issued a check for $223, 209.37, the unpaid one-third amount of the Judgment, which was cashed on July 20, 2016. End. Am. Opp. Ex. 26.

         DISCUSSION

         A. Endurance American Cannot Be Sued in this Action

         Under the highly unusual facts of this case, Endurance American cannot be sued because (1) its liability was not reasonably clear until the jury returned its verdict (2) it paid the full unpaid amount of the Judgment within 30 days of receiving its first G.L.c. 93A demand letter, and (3) adding Endurance ...


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