May 24, 2017
MEMORANDUM OF DECISION AND ORDER ON MOTION TO AMEND
COMPLAINT AND MOTION FOR SUMMARY JUDGMENT DISMISSAL
L. Ullmann, Justice.
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
FACTS AND PROCEDURAL HISTORY
case has a long and contentious history, but the facts needed
to decide the pending motions are limited and undisputed.
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;  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.
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.
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.
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.
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.
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.
Endurance American Cannot Be Sued in this Action
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