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Citizens Insurance Company of America v. 290 Auto Body, Inc.

Appeals Court of Massachusetts, Worcester

June 21, 2019

CITIZENS INSURANCE COMPANY OF AMERICA
v.
290 AUTO BODY, INC.

          Heard: April 10, 2019.

         Civil action commenced in the Worcester Division of the District Court Department on February 10, 2017. A special motion to dismiss was heard by Paul F. LoConto, J.

          Robert E. Amorello for the defendant.

          Owen Gallagher (Kara Larzelere also present) for the plaintiff.

          Present: Rubin, Henry, & Wendlandt, JJ.

          HENRY, J.

         This case requires us to apply the "anti-SLAPP"[1]statute, G. L. c. 231, § 59H, to a permissive counterclaim. The defendant, 290 Auto Body, Inc. (290 Auto Body), appeals from an order of the District Court allowing the special motion of the plaintiff Citizens Insurance Company of America (Citizens) to dismiss 290 Auto Body's amended counterclaim under the anti-SLAPP statute. We conclude that Citizens failed to meet its threshold burden required to support a special motion and therefore, we reverse.

         Background.

         We summarize the facts from the pleadings in the record. See G. L. c. 231, § 59H, inserted by St. 1994, c. 283, § 1 ("the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based"); Duracraft Corp. v. Holmes Prods. Corp., 427 Mass. 156, 167 (1998) (Duracraft), [2]

         On October 29, 2016, the operator of a car insured by Citizens, a licensed foreign insurer, was involved in an accident. The inoperable car was towed to 290 Auto Body, a licensed auto body repair shop. An appraiser inspected the car and declared it a total loss. 290 Auto Body subsequently issued a "Total Loss Bill" to Citizens in the amount of $3, 055.02. Although Citizens disputed some of the charges, to avoid accrual of additional charges it paid the bill in full and removed the car from 290 Auto Body. On February 10, 2017, Citizens filed a complaint alleging three counts against 290 Auto Body: (1) fraud, (2) declaratory judgment, and (3) violation of G. L. c. 93A.

         290 Auto Body timely filed an answer and a counterclaim not related to the transaction that formed the basis for Citizens' complaint. Rather, 290 Auto Body alleged that Citizens' representatives appeared at 290 Auto Body one week after Citizens filed its complaint, and that those representatives engaged in aggressive behavior in front of employees and customers, including an alleged assault upon 290 Auto Body's president, that "disrupted the ordinary business operation" of 290 Auto Body and caused it damages. The claim was not captioned, which left some ambiguity as to whether it was a claim for tortious interference with 290 Auto Body's contractual relations or for assault (although the president was not added as a party), or both. See Guzman v. Pring-Wilson, 81 Mass.App.Ct. 430, 434 (2012), quoting Restatement (Second) of Torts § 21(1) (1965) (assault "is an act done with the intention of causing 'a harmful or offensive contact with the person of the other . . ., or an imminent apprehension of such a contact'") . Citizens filed a motion to dismiss 290 Auto Body's counterclaim for failure to state a claim. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). 290 Auto Body then filed an answer and amended counterclaim making slight alterations but again failing to unambiguously identify its cause(s) of action.

         On June 8, 2017, Citizens filed a motion to dismiss 290 Auto Body's amended counterclaim for failure to state a claim and a special motion to dismiss the amended counterclaim pursuant to G. L. c. 231, § 59H. At the hearing on the motions, 290 Auto Body clarified that the alleged assault on its president damaged the corporation's business (so the counterclaim is for tortious interference). The judge allowed the special motion to dismiss and did not rule on the motion based on failure to state a claim. 290 Auto Body appealed from the (corrected) judgment dismissing the amended counterclaim.[3]

         Discussion.

         General Laws c. 231, § 59H, was enacted "to counteract 'SLAPP' suits, defined broadly as 'lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.'" Blanchardv. Steward Carney Hosp., Inc., 477 Mass. 141, 147 (2017), quoting Duracraft, 427 Mass. at 161. Under the statute, a party may file a special motion to dismiss if "the civil claims, counterclaims, or cross claims against said party are based on said party's exercise of its right of petition under the constitution of the United States or of the commonwealth." G. L. c. 231, § 59H. The Duracraft ...


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