Heard November 9, 2017.
Vehicle, Insurance. Insurance, Motor vehicle insurance,
Construction of policy, Coverage, Settlement of claim, Amount
of recovery for loss.
action commenced in the Superior Court Department on January
25, 2016. A motion to dismiss was heard by Constance M.
Matthew T. LaMothe for the plaintiff.
P. Tighe for the defendant.
Present: Meade, Shin, & Ditkoff, JJ.
a motor vehicle accident, the plaintiff, a third-party
claimant, received reimbursement from Liberty Mutual
Insurance Company (Liberty Mutual) for the loss of her
vehicle. She then sought additional payment for (1) costs
arising from loss of use of her vehicle, even though she was
unable to produce any documentation to Liberty Mutual that
she had paid for substitute transportation, and (2) her title
and registration fees and the residual value of her
inspection sticker. When Liberty Mutual denied liability for
these claims, the plaintiff brought this putative class
action, seeking declaratory relief under G. L. c. 231A and
damages for unfair claim settlement practices under G. L. c.
93A, § 9, and G. L. c. 176D, § 3(9). On Liberty
Mutual's motion, a Superior Court judge dismissed the
complaint in its entirety under Mass.R.Civ.P. 12(b)(6), 365
Mass. 754 (1974), and the plaintiff appeals. As we conclude
that the plaintiff has failed to allege compensable damages,
we affirm, modifying the judgment to declare the rights of
accept the allegations of the amended complaint as true for
purposes of this appeal. See Goodwin v.
Lee Pub. Schs., 475 Mass. 280, 284 (2016). In
October of 2015, the plaintiff's 2005 Nissan Altima was
struck by a driver whose vehicle was insured by Liberty
Mutual under a standard Massachusetts automobile
policy. The plaintiff's vehicle was declared
to be a total loss. After determining that its insured was
responsible for the accident, Liberty Mutual reimbursed the
plaintiff for the loss of her vehicle.
plaintiff then sent Liberty Mutual a demand letter under G.
L. c. 93A, claiming that she was also entitled to payment for
loss of use, title and registration fees, and the residual
value of her inspection sticker. Liberty Mutual sent a letter
in response detailing its rationale for denying the claims.
Liberty Mutual also requested, on at least two occasions,
that the plaintiff provide "documentary or other proof
indicating that she actually incurred" costs relating to
loss of use -- such as receipts showing she rented a
replacement vehicle or took public transportation. It is
uncontested that the plaintiff never provided any such
review de novo the judge's allowance of Liberty
Mutual's motion to dismiss under Mass.R.Civ.P. 12(b)(6).
See Goodwin, 475 Mass. at 284. In conducting our
review, we "accept as true the facts alleged in the
plaintiff['s] complaint and exhibits attached thereto,
and favorable inferences that reasonably can be drawn from
them." Ibid. ...