United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE.
a case alleging unfair settlement practices brought against
an insurer under Mass. Gen. Laws ch. 93A, § 9 asserting
unfair and deceptive practices in the business of insurance
under Mass. Gen. Laws ch. 176D, § 3(9). The Complaint
alleges that shortly before a trial in which it received an
adverse verdict, the insurer withdrew its (unduly modest)
outstanding settlement offer altogether. The instant case was
filed in Massachusetts Superior Court on November 26, 2017
before being removed to this court. The alleged settlement
misconduct was completed on September 24, 2013 when the final
offer was rescinded. No. further settlement activity is
alleged. The verdict adverse to the insurer was rendered
November 26, 2013. The applicable statute of limitations for
filing a lawsuit based on unfair settlement practices by an
insurer, Mass. Gen. Laws ch. 260, § 5A, is four years.
If the limitations period begins no later than the date of
the last alleged settlement misconduct, the statute of
limitations bars the plaintiff's claim. I conclude that
it did and will grant the defendant insurer's motion to
dismiss this case.
of a claim under Chapter 93A of Massachusetts General Laws
“typically occurs at the time injury results from the
assertedly unfair or deceptive acts.” Cambridge
Plating Co. v. Napco, Inc., 991 F.2d 21, 25
(1st Cir. 1993). The Massachusetts Appeals Court has held
that a claim accrues “when the plaintiff knew or should
have known of appreciable harm” caused by the alleged
conduct. Int'l Mobiles Corp. v. Corroon &
Black/Fairfield & Ellis, Inc., 560 N.E.2d 122,
125-26 (Mass. App. Ct. 1990). The rule in International
Mobiles has not been modified in the last quarter
century since it was enunciated. This is a settled matter of
state law reflected in more recent brevis decisions applying
it. See, e.g., D.A.C. v. Eastguard Ins. Co., 888
N.E.2d 386 (Mass. App. Ct. 2008) (unpublished); Santiago
v. The Premier Ins. Co., 2017 Mass.App. Div. 134 (2017).
effort to create a silk purse from otherwise unpromising
material in which to carry his argument, the plaintiff in a
belated post-hearing submission, contends that
International Mobiles actually supports his
position. This argument is misplaced. To be sure,
the court's reasoning of International Mobiles
focused on when International Mobiles could allege damages it
suffered as a result of the defendant insurance broker's
negligence. 560 N.E.2d at 125. The court noted that in 1981,
International Mobiles “could not have maintained a
cause of action against [the defendant insurance broker]
because it could allege no damage.” Id.
Rather, the court continued, “[a]lthough Mobiles had
reason to think that [the defendant insurance broker] had
bungled when [the excess coverage fleet policy provider]
responded in 1981 that its policy did not cover vehicles in
Rhode Island, Mobiles incurred no expense nor . . . suffered
any discernible detriment as a result of [the defendant
insurance broker's] negligence.” Id.
Moreover, “[t]he expense of Mobiles' defense . . .
was borne entirely by [its primary liability insurer].”
Id. In these circumstances, “[t]he date of
accrual for Mobiles' c. 93A action . . . [was] the date
of settlement in June, 1986, ” id. at 126,
because that was the date that the plaintiff suffered harm.
Id. at 123. Wrenching International Mobiles
out of context, the plaintiff suggests the date the
settlement that started the running of the statute of
limitations in International Mobiles is for
conceptual purposes the same as the date of entry of judgment
in the underlying tort action here. However, the plaintiff
fails to recognize that the injury or harm alleged here was
appreciable no later than when the defendant insurer
rescinded its settlement offer altogether.
injury alleged here is the failure to offer a reasonable
settlement under the circumstances. This was fully known as
of September 24, 2013 when the defendant insurer rescinded
its $4, 000 offer. This was an offer, it bears noting, that
itself was some $10, 000 less than the plaintiff's
claimed medical bills as of that date. The plaintiff
prevailed at trial two months later and obtained a verdict
resulting in a judgment of $59, 713.60. It is not alleged
that the resulting judgment was unpaid, but rather that the
improvident settlement conduct by the insurer before the
verdict upon which that judgment was based was the injury or
plaintiff's earlier effort in his prehearing submissions
to rely upon Kerlinsky v. Fidelity & Deposit Co. of
Maryland, 690 F.Supp. 1112 (D. Mass. 1987), as support
for his belated filing of this lawsuit, illustrates the
difference between crystallization of money
damages and accrual of a ch. 93A, § 9/ch.
176D, § 3(9) claim as a result of appreciable harm or
injury from settlement conduct. Kerlinsky offers
plaintiff no support. Rather, it explains why the plaintiff
here cannot avoid the statute of limitations bar to his case.
In Kerlinsky, an unfair settlement practices lawsuit
was dismissed when filed more than four years after the
verdict was rendered, giving rise to an unexecuted judgment.
In the course of explaining why dismissal was appropriate, my
current colleague Judge Ponsor - then sitting as a Magistrate
Judge providing a report and recommendation adopted by Judge
Freedman - observed that any “duty reasonably to
'settle' the underlying . . . claim [could only have
been triggered] prior to a verdict being returned for
plaintiff.” Id. at 1117-18. So too here. Any
actionable injury or harm for unfair settlement practices
here was appreciable some two months before the verdict was
rendered for the plaintiff. This was the point at which the
statute of limitations accrued and that accrual was more than
four years prior to the filing of this case. Accordingly,
this case must be dismissed.
hereby GRANT defendant's [Dkt. No. 6] motion to dismiss
and direct the Clerk to terminate this case.
 It bears noting that following the
July 1979 amendment of Chapter 93A, consumers proceeding
under ch. 176D, § 3(9) were not obligated to demonstrate
that they suffered a loss of money or property. Rather, it is
sufficient for such ...