Bruning v. Welch

7 Mass. L. Rptr. 229
CourtMassachusetts Superior Court
DecidedJuly 25, 1997
DocketNo. 955780B
StatusPublished

This text of 7 Mass. L. Rptr. 229 (Bruning v. Welch) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bruning v. Welch, 7 Mass. L. Rptr. 229 (Mass. Ct. App. 1997).

Opinion

King, J.

Plaintiff Stephen Bruning (Bruning) brought this action to recover for damages sustained in a motor vehicle accident which occurred on February 3, 1993. On December 27, 1996, the court allowed Bruning’s motion for partial summary judgment as to liability on his G.L.c. 93A, §9 claim against defendant Safety Insurance Company (Safety). Bruning now moves for an assessment of damages on his chapter 93A claim. Safety moves for reconsideration with respect to multiple damages.2 After hearing and considering the arguments of counsel, the court will allow Bruning’s motion and deny Safety’s motion for the reasons set forth below.

BACKGROUND

On February 3, 1993, Stephen Bruning was operating a vehicle in West Roxbury, Massachusetts, when he was struck by a taxi cab operated by defendant Allen Welch (Welch), traveling on the wrong side of the road. The taxi operated by Welch was owned by defendant Thomas White (White) and was insured by Safety. Safety’s policy has a maximum per person liability coverage of $15,000. As a result of the injuries sustained by Bruning, he has incurred over $15,000 in medical bills. Safety concedes that Welch is an “insured” under White’s auto insurance policy. There are material issues of fact as to White’s liability to Bruning.

On September 14, 1993, Bruning sent a formal demand letter to Safety, pursuant to G.L.c. 93A, §9. Bruning sent a second demand letter to Safety on September 12, 1995, in order to be certain that the basis of Safety’s liability was clear. On October 20, 1995, Bruning filed suit against Safety, Welch, and White individually and doing business under the name Mew, Inc. or Forest Hills Independent Taxi Service, alleging, among other things, that Safety failed to effectuate a prompt settlement under White’s automobile insurance policy in violation of G.L.c. 93A. In a letter dated October 8, 1993, Safety offered to pay Bruning the policy limit of $15,000, on the condition that he execute a release of all claims against White. Safety did not ask for a release of all claims against Welch. This action was filed after Safety refused to pay the policy limits to Bruning unless he released White. Six months after the case was filed, Safety filed a motion to deposit the policy limits ($15,000) with the court. That motion was allowed.

On December 27, 1996, the court denied Safety’s motion for summary judgment and allowed plaintiffs cross-motion for partial summary judgment [6 Mass. L. Rptr. No. 14, 290 (March 3, 1997)]. The court found that Safety had failed to provide a prompt payment of insurance proceeds in violation of G.L.c. 176D and G.L.c. 93A, §§2 and 9, and that “Safety’s refusal to grant relief in response to the plaintiffs demand letter was made in bad faith with knowledge or reason to know that its complained of conduct violated . . . chapter 93A.”

Safety has moved for reconsideration of the court’s decision that multiple damages should be awarded. Plaintiff has moved for an assessment of damages, including interest and attorneys fees.

MOTION FOR RECONSIDERATION

Defendant Safety asks the court to reconsider its award of multiple damages and attorney’s fees on the ground that the record does not support the court’s conclusion that Safety acted in bad faith. In support of its motion for reconsideration, Safety directs the court’s attention to several recent Superior Court decisions, in which other Justices of the Superior Court have found that refusal to pay the limits of a policy, in circumstances somewhat similar to those presented here, has been found not to be a “willful or knowing violation” of G.L.c. 93A. See Quillard v. Safety Insurance Co., C.A. No. 95-2526, 6 Mass. L. Rptr. 73 (Norfolk Superior Court Oct. 29, 1996), Lentini v. Peart, C.A. No. 94-1284, 6 Mass. L. Rptr. 214 (Norfolk Superior Court Nov. 25, 1996).

In the other Superior Court cases, the court found that there was no bad faith involved in the insurers’ decisions to require a release before they paid out the amount of the policies because the insurers had a genuine uncertainty about their liability to their insureds if they paid out the policy limits. See Lentini, supra, at 7-8; Quillard, supra, at 9-10. The court found that the insurers were not liable for a willful and knowing violation of c. 93A because their actions arose [231]*231from a good faith, albeit faulty, reading of the rule articulated in Thaler v. American Ins. Co., 34 Mass.App.Ct. 639 (1993). The court further found, in each of the cases cited by Safety, that the defendant insurers did not act out of any self-interest or motive to deny a legitimate claim, because only the insureds could benefit from the position taken by the insurers. See Lentini, supra, at 7-8; Quillard, supra, at 9-10.

Even assuming that the cases cited by Safety were correctly decided, the instant case is distinguishable from those cases. The policy issued to White was a commercial policy, which imposed upon Safety the duty to defend White even after the limits of the policy had been paid out. Safety would thus realize a benefit from requiring Bruning to execute a release in favor of White before it paid out the limits of the policy, as it would no longer be required to defend White if he obtained a release from Bruning. As previously noted by this court, Safety continued to require a release of White even in the face of Bruning’s two demand letters which set forth Safety’s clear liability under Thaler. Moreover, after learning of the court’s decisions in Quillard and Lentini, Safety continued to refuse to pay unless Bruning relented to Safety’s release demand. See Clegg v. Butler, 424 Mass. 413, 420-23 (1997). Indeed, as recently as the hearing on Safety’s motion to reconsider, Safety refused to pay to Bruning the $15,000 deposited with the court. On the facts of this case; the court’s finding that Safely acted in bad faith knowing that its conduct violated chapter 93A was warranted. The court will award treble damages in order to discourage Safety from continuing its policy of refusing to make payment on its policies where liability and damages are reasonably clear.

ASSESSMENT OF DAMAGES

Plaintiff has filed a motion for assessment of damages including interest and attorneys fees. Plaintiff shall be awarded three times the full amount of the policy plus appropriate interest and attorneys fees.

Interest

Interest is calculated upon that portion of the plaintiff s damages for which the defendant is responsible, here, the full amount of the policy, $15,000. Interest upon that amount is calculated from the time the defendant knew or had reason to know that it was liable under the insurance policy. Cohen v. Liberty Mutual Insurance Co., 41 Mass.App.Ct. 748, 750, 751 and 756 (1996).3 An award of multiple damages includes not only a multiplication of the actual award, but also of the interest on that award. Id.

Safety argues that even if Bruning is entitled to interest, that interest should be calculated at twelve percent only from the date of the institution of the lawsuit (October 20, 1995); Safety argues that the interest from the date of the first response to plaintiffs initial demand letter (October 8, 1993) until the commencement of the lawsuit should be only six percent, pursuant to G.L.c. 107, §3, which provides for interest at six percent where no other amount is specified by law.

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Related

Thaler v. THE AMERICAN INSURANCE CO.
614 N.E.2d 1021 (Massachusetts Appeals Court, 1993)
Linthicum v. Archambault
398 N.E.2d 482 (Massachusetts Supreme Judicial Court, 1979)
Darmetko v. Boston Housing Authority
393 N.E.2d 395 (Massachusetts Supreme Judicial Court, 1979)
Clegg v. Butler
424 Mass. 413 (Massachusetts Supreme Judicial Court, 1997)
Cohen v. Liberty Mutual Insurance
673 N.E.2d 84 (Massachusetts Appeals Court, 1996)
Quillard v. Safety Insurance
6 Mass. L. Rptr. 73 (Massachusetts Superior Court, 1996)
Lentini v. Peart
6 Mass. L. Rptr. 214 (Massachusetts Superior Court, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
7 Mass. L. Rptr. 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruning-v-welch-masssuperct-1997.