Bertassi v. Allstate Insurance

522 N.E.2d 949, 402 Mass. 366, 1988 Mass. LEXIS 141
CourtMassachusetts Supreme Judicial Court
DecidedMay 13, 1988
StatusPublished
Cited by45 cases

This text of 522 N.E.2d 949 (Bertassi v. Allstate Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bertassi v. Allstate Insurance, 522 N.E.2d 949, 402 Mass. 366, 1988 Mass. LEXIS 141 (Mass. 1988).

Opinions

O’Connor, J.

The plaintiff seeks contract damages and damages under G. L. c. 93A, § 9 (1986 ed.), claiming that the defendant, Allstate Insurance Company (Allstate), unfairly and in bad faith refused to make payments to the plaintiff as required by the underinsured motorist provisions of two policies of automobile insurance issued by Allstate to the plaintiff. The case was tried before a judge without a jury on a statement of agreed facts. The judge concluded that Allstate had violated both the plaintiff’s contract rights and G. L. c. 93A (1986 ed.), by insisting that the plaintiff execute a trust agreement protecting Allstate’s alleged subrogation rights as a condition precedent to Allstate’s paying underinsurance benefits to the plaintiff. The judge awarded treble damages, attorney’s fees, and costs. Allstate appealed, and we transferred the case to [368]*368this court on our own motion. We agree with the judge that Allstate violated the plaintiff’s contract rights and c. 93A. However, we conclude that the judge’s assessment of damages was erroneous. Accordingly, we affirm the judgment in part, we reverse in part, and we remand the case for further proceedings.

The plaintiff sustained serious bodily injury when he was struck by an automobile driven by John Ryan on April 18, 1982. At the time of the accident, the plaintiff had just left the VIP Lounge at 821 Boston Road in Springfield and was walking across Boston Road to a shopping center parking lot where he had parked his automobile. Ryan was driving home on Boston Road from the Harmony Lodge of Elks no. 140, where he was employed as a bartender, and he was intoxicated. As a result of the accident, the plaintiff incurred approximately $100,000 in medical expenses, was permanently disabled, and suffered a substantial loss of income. He brought separate tort actions against Ryan, SMM, Inc., which operated the VIP Lounge, and the Harmony Lodge of Elks no. 140. Ryan carried only $10,000 automobile liability insurance.

The plaintiff also submitted claims to Allstate, his own automobile insurer, under two policies providing coverage for bodily injury caused by an underinsured motorist. The limit of underinsurance coverage on one policy was $25,000, and the limit was $10,000 on the other. The relevant language in the two policies is identical. Each policy, under the heading, “Optional Insurance . . . Part 7. Bodily Injury Caused by an Underinsured Auto,” provides as follows: “Sometimes an owner or operator of an auto legally responsible for an accident is underinsured. Under this Part, we will pay damages for bodily injury to people injured or killed as a result of certain accidents caused by someone who does not have enough insurance.

“We will only pay if the injured person is legally entitled to recover from the owner or operator of the underinsured auto. We consider an auto to be underinsured if the insurance covering the auto or operator is not sufficient to pay for the damages sustained by the injured person. . . .

[369]*369“Under this Part, we will only pay if the limits of the responsible person’s auto insurance policies, bonds or self insurance are less than the amount of the damages due the injured person. In that case, we will pay the balance of the damages up to the limits shown for this Part on your Coverage Selections page. ”

Each policy, in a section entitled “General Provisions and Exclusions ... 5. Our Right To Be Repaid,” also provides: “Sometimes we may make a payment under this policy to you or to someone else who has a separate legal right to recover damages from others. In that case, those legal rights may be exercised by us. Anyone receiving payment under those circumstances must do nothing to interfere with those rights. He or she must also do whatever is necessary to help us recover for ourselves up to the amount we have paid. If we then recover more than we paid, we will pay that person the excess, less his or her proportionate share of the costs of recovery, including reasonable attorneys’ fees.

“Sometimes you or someone else may recover money from the person legally responsible for an accident and also receive money from us for the same accident. If so, the amount we paid must be repaid to us to the extent that you or someone else recovers. We do not have to be repaid for any money we have paid under Medical Payments (Part 6). Whenever we are entitled to repayment from anyone, the amount owed us can be reduced by our proportionate share of the costs of recovering the money, including reasonable attorneys’ fees.” (Emphasis in original.)

Allstate has never contended that Ryan’s automobile was not underinsured by at least $35,000. Nevertheless, Allstate agreed to pay the underinsurance benefits to the plaintiff only if the plaintiff would agree in writing to pay back to Allstate “whatever monies are recovered by [the plaintiff] less reasonable attorney’s fees and cost from the actions [that were] pending against VIP Lounge and Elks Harmony Lodge.” Being unpersuaded that the policies required such reimbursement, the plaintiff refused to execute the proposed agreement. Ultimately, the plaintiff sent Allstate a demand letter relative to each policy pursuant to G. L. c. 93A, § 9 (3). Allstate responded [370]*370by reiterating that the aforementioned agreement was a precondition to payment of the plaintiff’s claims.

While the matter was under discussion between the plaintiff and Allstate, the plaintiff pursued his tort actions against Ryan, SMM, Inc., and the lodge. The case against Ryan was settled for Ryan’s automobile policy limit of $10,000. Also, in October, 1984, the plaintiff and SMM, Inc. (VIP Lounge), settled for $10,000, and in June, 1985, the case against the lodge was settled for another $10,000.

The parties were not in accord with respect to whether Allstate was entitled to be subrogated to the plaintiff’s rights against the VIP Lounge and the lodge. However, soon after the accident, it had become apparent that the tort damages due the plaintiff from Ryan were far in excess of Ryan’s,$10,000 liability coverage plus $35,000. Thus, the policies’ provision that Allstate would pay the balance of the damages up to the limits shown, required Allstate at that time to pay the full coverage of $35,000 to the plaintiff. Nothing in the policies excused Allstate’s performance if the plaintiff were to decline to provide Allstate with a written agreement relative to subrogation rights. This is true even though, as we declare below, the policies entitled Allstate to subsequent reimbursement from the plaintiff’s settlements with the VIP Lounge and the lodge.

The fact that Allstate was entitled under the policies to subrogation rights does not suggest that Allstate was entitled to a separate agreement to that effect. The judge was correct, therefore, in concluding that Allstate violated the plaintiff’s contract rights.

General Laws c. 93A, § 9 (1), provides, with immaterial exceptions, that any person “who has been injured by another person’s use ... of any method, act or practice declared to be unlawful by section two . . . may bring an action in the superior court ... for damages . . . .” Chapter 93A, § 2 (a), makes “fujnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” unlawful. We have no doubt that Allstate’s coercive insistence on the plaintiff’s signing the proposed agreement, thus capitulating to Allstate’s claim of subrogation rights, as a pre[371]

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Bluebook (online)
522 N.E.2d 949, 402 Mass. 366, 1988 Mass. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bertassi-v-allstate-insurance-mass-1988.