Heard: May 10, 2017.
action commenced in the Superior Court Department on
March 20, 2015.
case was heard by Dennis J. Curran, J., on motions
for summary judgment, and a motion for leave to file an
amended and supplemental complaint was considered by him.
Madan (Marc Redlich also present) for the plaintiff.
C. Deluhery (Edward Kelley Kimball also present) for the
Present: Trainor, Vuono, & Sullivan, JJ.
plaintiff, Michelle Brown (Michelle), appeals from a judgment
entered in favor of the defendant, Savings Bank Life
Insurance Company of Massachusetts (SBLI or insurer), on the
parties' cross motions for summary judgment. The
plaintiff's claims brought against the insurer arose from
the loss of life insurance coverage for her deceased husband,
Daniel Brown (Daniel),  On appeal Michelle concedes that her
contract and contract-related claims were properly dismissed
because they were time barred under the insurance policy, but
maintains that the judge erred when he dismissed her tort and
tort-related G. L. c. 93A claims on the merits. The insurer
asserts that the judge's ruling was correct not only for
the substantive reasons stated by the motion judge, but
because all of Michelle's contract, tort, and statutory
claims are barred by the limitations period in the policy
requiring that claims "on or in respect to this
policy" be filed no later than two years after her cause
of action accrued. Michelle also appeals from the judge's
order denying her motion to amend her complaint, and from the
order denying her motion for partial summary judgment. We
affirm in part and reverse in part.
in the light most favorable to the plaintiff, see Augat,
Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117,
120 (1991), the material facts are as follows. Michelle and
her husband, Daniel, purchased three life insurance policies
from SBLI in 2001 and 2002. Daniel's policy, in the
amount of one million dollars, named Michelle as the
beneficiary. All three policies contained terms that
stated the annual premium for the initial ten-year term would
be a level premium. At the end of the ten-year term, the
premium on each policy increased significantly. In
Daniel's case, the premium increased from $440 to $5, 340
policy and one of Michelle's policies reached the end of
the ten-year term on November 28, 2011. Before the end of the
term, employees of the insurer called the Browns' home in
Hopedale regarding the increase in the policy premium
applicable to each policy. The insurer, as a matter of
business practice, recorded telephone calls by way of a
voice-call recording system. Transcripts of several calls
were included in the summary judgment record, and the content
of the recorded calls is undisputed.
August 2, 2011, SBLI sales agent Terry Melville called and
left a message at the Hopedale house stating "that
[Michelle's] policy is going into its eleventh year in
November and the premium goes through the roof when that
happens and I'm sure you won't keep that policy. . .
. [T]here may be some options available with us so that you
could continue coverage ongoing. And I'd like to speak
with you about those." Michelle testified to a similar
telephone call from SBLI employee David Wood during August or
September (the 2011 conversation), in which they discussed
the options available under both spouses' policies,
although this call was not recorded. According to Michelle, Wood
recommended that both Michelle and Daniel purchase new
policies. Melville made a third call on the date the policy
term ended, November 28, 2011. In this call he left a message
using substantially the same language, and made reference to
both Michelle's and Daniel's policies.
deposition testimony, Wood acknowledged that it was SBLI
company policy to tell an insured to keep a policy in place
until a new policy issues if the new policy is a replacement
policy -- that is, a policy issued before the old policy
lapses. In this situation, SBLI requires the
agent to fill out a disclosure form approved by
the Commissioner of Insurance. See generally G. L. c. 175,
§ 204; 211 Code Mass. Regs. §§ 34.00, et seq.
(1995). Wood, who had been both a sales manager and a sales
agent, said that it was "the practice of the sales
division to make sure that everybody keeps their insurance in
force while they are going through underwriting" because
they could be refused, and "no insurance agent would
write a new contract on any client and tell them to cancel
their old policy first and then apply with us. You always
want to keep the old policy, whether it's ours or
somebody else's, in force while you are going through the
underwriting process." He considered the failure to do
so to be grounds for termination.
did not pay any portion of the $5, 340 premium as of November
28, 2011, nor did he apply for a new policy before the policy
lapsed. The policy contained a thirty-day grace period, but
this too passed without payment. On January 6, 2012, the
insurer sent a notice of policy lapse to Daniel at the
parties' home in Hopedale. The letter notified Daniel
that he could seek to revive the policy by filling out an
application for reinstatement of coverage and returning it
with the overdue premium.
January 11, 2012, Wood called the Brown home in Hopedale
regarding the policies. At that juncture, Daniel and Michelle
were separated (although not legally so) and Daniel had moved
to their summer home in Sandwich. Wood spoke with Michelle
and reiterated that the original policy premiums jumped
dramatically and that is "why you didn't pay
them," further stating: "I think when you saw the
bill you probably said, 'This is crazy.'" When
Michelle asked, "What are our options [for coverage] at
this point?" Wood stated, "If you still need
coverage you need to reapply for new contracts."
was concerned that Daniel's policy had already lapsed and
she was "nervous that Dan is not covered at all at this
point." Wood's response was that if she wanted to
"try to cover him now we'd have to do a
reinstatement. You'd have to pay $5, 340 . . . [t]o
reinstate that contract. But I don't think you want to do
that. . . . Because it'd be far cheaper for him to maybe
apply for a new [ten]-year plan." At no time during this
conversation did Wood offer reinstatement of Daniel's
policy as an option pending approval of the new policy.
Although the policy provided for installment payments, Wood
did not discuss with Michelle whether she could make an
installment payment to maintain coverage while the new
application was pending, or whether any portion of the
premium (in whatever amount paid) could be refunded in the
event that a new policy was issued.
again expressed concern, telling Wood, "[L]ike I said
I'm nervous that now we have nothing." In response,
Wood explained the application process and stated that Daniel
is "probably going to be without insurance probably for
about [thirty] days." Michelle told Wood to send an
application for a new one million dollar policy for Daniel.
application called for a release of medical records, and
contained several questions regarding medical status. Acting
on Wood's instructions, Michelle told Daniel via
electronic mail message (e-mail) about the application and an
impending visit from a paramedic for a blood
draw. Daniel complied with all requests for
medical information. On March 14, 2012, Wood spoke directly
to Daniel, requesting that he sign and send certain forms,
and Daniel complied. Reinstatement pending approval of the
new policy was not mentioned.
Wood's deposition, he acknowledged that the "only
way" he could earn a commission was if Daniel purchased
a new policy. Wood would not have received a commission if
Daniel had continued his old policy.
2, 2012, SBLI notified Daniel that his application for a new
term life insurance policy was denied. Although Wood had
promised Michelle that all correspondence would be sent to
her as well, the letter was addressed only to Daniel at the
Sandwich address. As a result, Michelle was unaware of the
denial until after Daniel died on June 6, 2012. Under the
policy, Daniel was permitted to seek reinstatement of the
policy for up to five years after the end of the grace period
for the unpaid premium, but there was no right to
reinstatement of the lapsed policy once Daniel had died.
December 4, 2012, Michelle wrote to the insurer asking for a
claim form for Daniel's death benefits, stating that she
did not timely receive the notice denying Daniel's
application for a term life insurance policy. The insurer
responded on December 10, 2012, stating that Daniel's
original policy had lapsed and no new policy had issued.
an exchange of G. L. c. 93A demand letters and responses, the
complaint in this action was filed on March 20, 2015,
claiming: breach of contract for failure to automatically
renew the original ten-year term life insurance policy (count
I); deceit (count II); negligent supervision of employee Wood
(count III); and breach of G. L. c. 93A (count IV). In its
motion for summary judgment, the insurer argued that
Michelle's complaint was time barred because it was
brought more than two years after the policy at issue had
lapsed and/or the application for a new policy had been
denied. The argument was based in part on the following
language in the policy.
"Section 1. Policy Fundamentals.
"Time Limit for Filing Suit
"Any suit brought on or in respect to this policy shall
be brought against us no later than two years after the date
the alleged cause of action accrues, or three years if the
policy was issued in Maine or Rhode Island."
memorandum of decision, the motion judge ruled that the
contract claims were barred by the two-year statute of
limitations contained in the policy, and that there was no
deceit, negligence, or violation of the consumer protection
statute as a matter of law. The judge also denied
Michelle's motion to file an amended complaint, which
attempted to incorporate facts learned during discovery, to
refine the legal theories in light of discovery, and to state
that Michelle was suing both in her individual capacity and
as personal representative of her husband's estate.
Lastly, the judge denied Michelle's cross motion for
partial summary judgment, which she had premised on the
proposed amended complaint. This appeal ensued.
The original complaint.
review a grant of summary judgment de novo, "to
determine 'whether, viewing the evidence in the light
most favorable to the nonmoving party, all material facts
have been established and the moving party is entitled to
judgment as a matter of law.'" District Attorney
for the N. Dist. v. School Comm. of Wayland,
455 Mass. 561, 566 (2009), quoting from Augat, Inc.
v. Liberty Mut. Ins. Co., 410 Mass. at 120.
"Material facts are those that might affect the outcome
of the suit under governing law." Genesis Technical
& Financial, Inc. v. Cast Nav., LLC, 74
Mass.App.Ct. 203, 207 (2009) .
have noted, the policy contained a clause which stated that
"[a]ny suit brought on or in respect to this
policy" must be brought within two years of accrual of
the claim. Michelle acknowledged before the motion judge and
on appeal that her breach of contract claim for failure to
automatically renew the policy was properly dismissed.
Michelle agrees that the two-year time period in the policy
had already lapsed by the time suit was filed on March 20,
2015,  and makes no argument that the limitations
period is unenforceable as to the contract claim. See G. L.
c. 175, § 22; Creative Playthings Franchising
Corp. v. Reiser, 463 Mass. 758, 760-761 (2012)
Tort and consumer protection claims.
remaining claims were threefold: (1) SBLI agent Wood deceived
and misled her and Daniel by telling her, in the 2011
conversation, to have Daniel buy a new policy without telling
her to continue to pay the premium on the old policy, and by
failing in January, 2012, to offer the option of reinstating
the old policy, once lapsed, while the application for a new
policy was pending; (2) SBLI was negligent in its supervision
of Wood; and (3) SBLI violated G. L. c. 93A by failing to
provide mandated ...