United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CROSS MOTIONS FOR SUMMARY
ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE
Mark Tiede claims that, in March 2010, he was assaulted by
two bouncers working at James Joyce, Inc. d/b/a Kitty
O'Shea's (“Kitty O'Shea's”), an
Irish tavern in Boston. [ECF No. 7 (“Amended
Complaint” or “Am. Compl.”) ¶ 4]. He
sued Kitty O'Shea's for the assault, and on December
6, 2011, obtained a default judgment for $160, 000, plus
interest. On January 17, 2017, having been unable to collect
from Kitty O'Shea's, Tiede filed this action against
Kitty O'Shea's insurer, Seneca Specialty Insurance
Company (“Seneca”). Tiede brings claims against
Seneca for unfair and deceptive practices in violation of
Massachusetts Chapters 93A and 176D (Count I), as a
third-party beneficiary and injured claimant pursuant to the
insurance policy (Count II), and to “reach and
apply” the insurance policy to his default judgment
pursuant to Massachusetts Chapter 175, Sections 112 and 113,
and Chapter 214, Section 3(9) (Count III). See
generally Am. Compl. Seneca brings one counterclaim for
declaratory relief and requests a declaration that Seneca is
not liable under the insurance policy issued to Kitty
O'Shea's. [ECF No. 10 at 21]. Before the Court are
Seneca's Motion for Summary Judgment, [ECF No. 26], and
Tiede's Cross Motion for Summary Judgment, [ECF No. 36].
For the reasons discussed below, Seneca's motion is
GRANTED and Tiede's motion is DENIED.
issued an insurance policy to Kitty O'Shea's that was
effective from February 11, 2010 to February 11, 2011. Seneca
Facts ¶ 1. The policy covered inter alia sums
that Kitty O'Shea's became obligated to pay for
“bodily injury.” Id. ¶ 2. The
policy also provided:
If a claim is made or “suit” is brought against
any insured, you must:
(1) Immediately record the specifics of the claim or
“suit” and the date received; and
(2) Notify us as soon as practicable.
You must see to it that we receive written notice of the
claim or “suit” as soon as practicable.
You and any other involved insured must:
(1) Immediately send us copies of any demands, notices,
summonses or legal papers received in connection with the
claim or “suit.” Id. The policy defined
“you” and “your” as “the Named
Insured shown in the Declarations, and any other person or
organization qualifying as a Named Insured under this
policy.” Tiede Facts ¶¶ 29-31; [see
also ECF No. 37-1].
claims that on the evening of March 20, 2010, for no apparent
reason, two bouncers employed by Kitty O'Shea's
dragged him out of the tavern and repeatedly punched him in
the face and head. Seneca Facts ¶ 3. On December 29,
2010, Tiede's attorney, Charles Pappas, asked Kitty
O'Shea's to put its insurance carrier on notice of
Tiede's claim. Id. ¶ 4. Kitty
O'Shea's notified its insurance broker, which in turn
notified Seneca about the incident involving Mr. Tiede.
Id. ¶¶ 5-6. On February 8, 2011, Seneca
acknowledged the claim and informed Kitty O'Shea's
that it was undertaking an investigation under a reservation
of rights. Id. ¶¶ 8, 17. On February 17,
2011, Seneca also wrote to Attorney Pappas and informed him
that Seneca had received his December 29, 2010 letter of
representation and was investigating the claim. Id.
¶ 10. Seneca contracted Mark Adjustment Service, Inc.
(“Mark Adjustment”) to conduct the investigation.
Id. ¶¶ 19-21. Mark Adjustment interviewed
witnesses, spoke to Tiede's attorneys about his version
of events, and then produced a 12-page initial report.
Id. ¶¶ 21, 29. The report indicates that
Kitty O'Shea's management denied that any of their
employees had assaulted Tiede and found weaknesses in the
facts asserted by a friend of Tiede's who was present on
the night in question. Id. ¶ 21; [see
generally ECF No. 28-15]. The report concluded that a
lawsuit “may be the only way the true facts will come
out.” [ECF No. 28-15 at 10].
February 14, 2011, Tiede filed a lawsuit against Kitty
O'Shea's in Worcester Superior Court (“Superior
Court”). Seneca Facts ¶ 9. Tiede's attorneys
claim that they informed Seneca that they had filed suit in
February 2011, and that they also informed Karen Downing of
Mark Adjustment that they had filed the lawsuit. ECF No. 37
at 6; Tiede Facts ¶ 16. Additionally, the report
prepared by Mark Adjustment shows that as of March 1, 2011,
Kitty O'Shea's believed that Tiede was planning to or
had filed suit, but that it had not been served with the
complaint or summons. Seneca Facts ¶ 22.
April 23, 2011, Tiede served Kitty O'Shea's
registered agent, Thomas Medaglia, Jr., with the complaint
and summons. Id. ¶ 32. Mr. Medaglia did not
pass the complaint and summons along to Kitty
O'Shea's management or to Seneca, and Tiede did not
inform Seneca that it had served Kitty O'Shea's or
send Seneca a copy of the complaint. Id.
¶¶ 27-28, 33-34. On June 16, 2011, the Superior
Court entered a default against Kitty O'Shea's.
Id. ¶ 36. Tiede did not notify Seneca that he
had obtained the default against Kitty O'Shea's.
Id. ¶¶ 37-38. On October 5, 2011, Tiede
filed a Motion for an Assessment of Damages Hearing and entry
of a Final Judgment against Kitty O'Shea's.
Id. ¶ 39. On November 17, 2011, Tiede served
Kitty O'Shea's registered agent and Kitty
O'Shea's officers with his Motion for an Assessment
of Damages Hearing and informed them of the assessment of
damages hearing scheduled for November 29, 2011 before the
Worcester Superior Court. Id. ¶ 40. Tiede did
not notify Seneca of the hearing. Id. ¶ 41.
Mahaney appeared at the hearing for Tiede and was asked by
Judge McCann if an insurer was involved in the matter.
Id. ¶¶ 42-43. Mahaney replied-despite the
February and March 2011 communications between Tiede's
attorneys and Seneca-that he “had not heard and was
surprised.” Id. ¶ 44. On Friday, December
2, 2011, Seneca received notice of the assessment of damages
hearing from Kitty O'Shea's insurance agent, and
responded by retaining counsel “to attempt to vacate
the default judgment and the assessment.” Tiede Facts
¶ 39. On December 6, 2011, the Superior Court assessed
damages against Kitty O'Shea's in the amount of $160,
000. Seneca Facts ¶ 46.
December 12, 2011, Seneca informed Kitty O'Shea's
that it had received its first notice about service of the
complaint, had retained counsel, and would proceed under a
continuing reservation of its rights. Id. ¶ 48.
On April 13, 2012, an attorney for Seneca filed a motion to
vacate the default judgment on behalf of Kitty
O'Shea's. Id. ¶ 52. Seneca determined
in May 2012 that it would deny coverage if Kitty
O'Shea's was unable to vacate the default, and
recognized that further litigation had little to no chance of
success. Tiede Facts ¶¶ 61-64. Tiede successfully
opposed the motion to vacate, and an execution on the
judgment was issued on July 11, 2012. Seneca Facts
August 27, 2012, Kitty O'Shea's filed a motion for
reconsideration, which the Superior Court denied on October
2, 2012. See Tiede v. James Joyce, Inc., No.
13-P-136, 2013 WL 6633811, at *1, 999 N.E.2d 503 (Table)
(Mass App. Ct. 2013). Kitty O'Shea's then filed an
appeal, and on December 18, 2013, the Appeals Court found
that the Superior Court judge had not abused her discretion
in declining to vacate the default. Id. On February
3, 2014, the Supreme Judicial Court (“SJC”)
denied further appellate review. Tiede v. James Joyce,
Inc., 3 N.E.3d 81 (Table) (Mass. 2014); see
also Seneca Facts ¶¶ 57-65. The day after the
SJC denied further review, Seneca notified Kitty
O'Shea's and Tiede that it was denying coverage.
Seneca Facts ¶¶ 66-67.
3, 2013, during the pendency of Seneca's appeal attempts,
Kitty O'Shea's assets were sold. Tiede Facts ¶
81. Tiede's attorneys attest that, if Seneca had provided
Tiede with a statement that coverage was being denied
earlier, they would have pursued attachment of Kitty
O'Shea's assets. Id. ¶ 83. Although the
default judgment currently has a nominal value in excess of
$350, 000, Seneca has not offered more than $20, 000 to Tiede
to settle his claims. Tiede Facts ¶ 92.
STANDARD OF REVIEW
judgment is appropriate where the movant can show that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “A fact is material if
its resolution might affect the outcome of the case under the
controlling law.” Cochran v. Quest Software,
Inc., 328 F.3d 1, 6 (1st Cir. 2003) (citation omitted).
“A genuine issue exists as to such a fact if there is
evidence from which a reasonable trier could decide the fact
either way.” Id. (citation omitted).
succeed in showing that there is no genuine dispute of
material fact, ” the moving party must point to
“specific evidence in the record that would be
admissible at trial.” Ocasio-Hernandez v.
Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015).
“That is, it must ‘affirmatively produce evidence
that negates an essential element of the non-moving
party's claim,' or, using ‘evidentiary
materials already on file . . . demonstrate that the
non-moving party will be unable to carry its burden of
persuasion at trial.'” Id. (quoting
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000)). “One of the principal purposes of the summary
judgment rule is to isolate and dispose of factually
unsupported claims or defenses . . . .” Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Once the
movant takes the position that the record fails to make out
any trialworthy question of material fact, “it is the
burden of the nonmoving party to proffer facts sufficient to
rebut the movant's assertions.” Nansamba v. No.
Shore Med. Ctr., Inc., 727 F.3d 33, 40 (1st Cir. 2013).
reviewing the record, the Court “must take the evidence
in the light most flattering to the party opposing summary
judgment, indulging all reasonable inferences in that
party's favor.” Cochran, 328 F.3d at 6
(citation omitted). The First Circuit has noted that this
standard “is favorable to the nonmoving party, but it
does not give him a free pass to trial.” Hannon v.
Beard, 645 F.3d 45, 48 (1st Cir. 2011). “The
factual conflicts upon which he relies must be both genuine
and material, ” Gomez v. Stop & Shop
Supermarket Co., 670 F.3d 395, 397 (1st Cir. 2012), and
the Court may discount “conclusory allegations,
improbable inferences, and unsupported speculation, ”
Cochran, 328 F.3d at 6 (quoting Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.