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16-P-927 Appeals Court
MICHAEL CAIRA vs. ZURICH AMERICAN INSURANCE CO.
No. 16-P-927.
Essex. February 2, 2017. - April 21, 2017.
Present: Grainger, Sullivan, & Lemire, JJ.
Motor Vehicle, Insurance. Insurance, Unfair act or practice, Settlement of claim. Consumer Protection Act, Unfair act or practice, Insurance. Practice, Civil, Consumer protection case, Summary judgment, Continuance, Discovery.
Civil action commenced in the Superior Court Department on April 9, 2015.
A motion for a continuance was heard by Timothy Q. Feeley, J., and the case was heard by him on a motion for summary judgment.
Mark T. Rumson (Paul F.X. Yasi also present) for the plaintiff. Jane A. Horne (Allen N. David also present) for the defendant.
LEMIRE, J. In this case, we consider whether a judge in
the Superior Court erred in granting summary judgment to Zurich
American Insurance Co. (Zurich) on a complaint alleging that 2
Zurich committed unfair claim settlement practices in violation
of G. L. c. 176D, § 3(9)(f), and G. L. c. 93A, § 2. We conclude
that Zurich did not violate these statutory provisions when it
conditioned the payment of its primary insurance policy limit on
a release of all claims against its insureds, notwithstanding
the availability of excess insurance. Accordingly, we affirm.
Background. Shortly after midnight on September 14, 2013,
Daniel Madigan-Fried was driving a rental car in Swampscott when
he was involved in a one-vehicle accident. The plaintiff,
Michael Caira, who was a passenger in the front seat, suffered
life-threatening injuries, and the two passengers in the back
seat sustained serious injuries. A few weeks before the
accident, Madigan-Fried had rented the vehicle in his capacity
as an employee of Groom Construction Co., Inc. (Groom). Zurich
had issued to Groom the primary commercial automobile insurance
policy that was in place at the time of the accident. The
bodily injury coverage under the policy was $1 million. In
addition, Groom had two excess insurance policies issued by
Starr Indemnity & Liability Company (Starr Indemnity) and
Navigators Insurance Company (collectively, excess insurers)
that provided coverage of $5 million each.1
1 "An insurance program involving a primary policy and one or more excess policies divides risk into distinct units and insures each unit individually. The individual insurers do not (absent a specific provision) act as coinsurers of the entirety 3
On October 29, 2013, Caira filed a complaint in the
Superior Court against Madigan-Fried and Groom, alleging
negligence.2 Caira claimed that excessive speed caused Madigan-
Fried to lose control of the vehicle and to crash into a granite
wall. Zurich undertook the defense of Madigan-Fried and Groom.
Between December 23, 2014, and July 15, 2015, thirteen
letters were exchanged between Caira and Zurich regarding the
settlement of Caira's negligence claims against Madigan-Fried
and Groom. In his initial demand letter dated December 23,
2014, written pursuant to G. L. c. 176D, § 3(9)(f) and (n),
Caira asserted that it was reasonably clear that Madigan-Fried
was liable for both the accident and the resulting damages
(which purportedly exceeded $1 million),3 and that Zurich had an
of the risk. Rather, each insurer contracts with the insured individually to cover a particular portion of the risk. . . . The layer of risk each insurer covers is defined and distinct." Allmerica Financial Corp. v. Certain Underwriters at Lloyd's, London, 449 Mass. 621, 629-630 (2007). 2 Caira's complaint was later consolidated with a complaint that had been filed by the two back seat passengers against Madigan-Fried and Groom. In May, 2015, Zurich settled the claims of the back seat passengers for a total of $230,000, thereby reducing Zurich's $1 million policy limit to $770,000. The back seat passengers executed general releases of Madigan- Fried and Groom. 3 On September 26, 2014, Madigan-Fried had pleaded guilty to one count of negligent operation of a motor vehicle in a related criminal proceeding. 4
obligation to tender a settlement to Caira.4 The letter stated
that in exchange for the $1 million insurance policy limit,
Caira would release Zurich from further claims of any kind.
This proposed settlement, however, did not include an offer to
release either Madigan-Fried or Groom because Caira intended to
continue litigating his claims for additional damages. Caira
stated, however, that if Zurich met his demand for the $1
million policy limit, he would enter into an agreement with
Madigan-Fried and Groom to seek recovery of any future judgments
only from one or both of the excess insurers. Caira demanded a
response within sixty days.
Zurich responded by electronic mail message (e-mail) dated
February 4, 2015, declining Caira's offer to release Zurich, but
not Madigan-Fried and Groom, from any additional claims in
exchange for the $1 million policy limit. Zurich stated that,
because discovery had just begun and because there had not yet
been any independent medical examinations, the matters of
liability and damages remained substantially unresolved. In
addition, Zurich stated that paying the policy limit without
receiving a release could expose Zurich to a claim of bad faith
by its insureds (Madigan-Fried and Groom), and could jeopardize
4 In his letter, Caira stated that the demands made pursuant to G. L. c. 176D, § 3(9)(f) and (n), were in no way intended to suggest that Zurich had already violated either of these statutory provisions. 5
any excess insurance coverage to which Madigan-Fried and Groom
might be entitled in the event that Zurich's policy was
exhausted.
In a subsequent demand letter dated February 10, 2015,
written pursuant to G. L. c. 93A, § 9(3), Caira asserted that
Zurich's failure to conduct a reasonable investigation and to
make an equitable offer of settlement constituted wilful and
knowing violations of G. L. c. 176D, § 3(9)(c), (d), and (f),
and per se violations of G. L. c. 93A, § 2. The letter
reiterated Caira's demand for Zurich's $1 million policy limit
in exchange for the partial resolution of Caira's claims against
Madigan-Fried and Groom. Caira stated that an untimely response
or an unreasonable offer of settlement would result in the
amendment of his complaint to include a claim for unfair claim
settlement practices against Zurich.
By letter dated February 13, 2015, Zurich responded that,
in reliance on Lazaris v. Metropolitan Property & Cas. Ins. Co.,
428 Mass. 502 (1998), it properly could condition the payment of
its policy limit on the receipt of a release of its insureds.
In Zurich's view, nothing in Lazaris or its progeny turned on
the existence or nonexistence of excess insurance. Assuming for
purposes of its response that liability was reasonably clear and
that Caira's damages exceeded the $1 million policy limit, 6
Zurich stated that it would only entertain settlement proposals
that provided for a release of Madigan-Fried and Groom.
On March 19, 2015, Caira moved to amend his complaint to
add a claim against Zurich for unfair claim settlement practices
in violation of G. L. c. 176D, § 3(9)(f), and G. L. c. 93A, § 2.
A judge allowed the motion, and he stayed the claim against
Zurich pending the resolution of the underlying negligence
claims.
Meanwhile, by letter dated April 8, 2015, Caira demanded a
settlement from Zurich and the two excess insurers in the amount
of $3.9 million. Caira asserted that Madigan-Fried's liability
for the motor vehicle accident was clear. Zurich responded by
letter dated May 7, 2015, reiterating its position that, absent
a release of Madigan-Fried and Groom, Zurich was not in a
position to make a settlement offer.
In an e-mail dated May 12, 2015, Caira challenged Zurich's
reliance on Lazaris and stated that the excess insurance
protected, and effectively released, Madigan-Fried and Groom
from any future personal liability for damages arising from the
motor vehicle accident. Caira again demanded a settlement in
the amount of $3.9 million, and he agreed that the tender of
such amount by Zurich and the excess insurers would result in 7
the release of all claims against Madigan-Fried and Groom.5
Zurich responded by letter dated June 9, 2015, pointing out
that, for the first time, Caira was offering a release of
Madigan-Fried and Groom in exchange for the demanded settlement
payment of $3.9 million. Zurich stated that it was willing to
offer Caira its remaining policy limit of $770,000 in settlement
of his claims and in exchange for a general release of its
insureds. See note 2, supra.
By e-mail dated June 12, 2015, Caira indicated his
willingness to accept payment of $770,000 from Zurich,
conditioned not on a release of Madigan-Fried or Groom, but on
an agreement with each of them that any judgment subsequently
entered against either or both, in excess of $770,000, would be
collected only from the excess insurers. Caira stated that he
would continue to pursue additional claims for damages and would
endeavor to settle such claims with Starr Indemnity. Caira also
stated that nothing in his settlement proposal should be
construed as an offer to release his unfair claim settlement
practices claim against Zurich. The offer was to remain open
for five days. When there was no response within this time
frame, Caira sent Zurich another e-mail, dated June 19, 2015,
asking for an explanation for the denial of his settlement
5 Caira's letter dated May 12, 2015, was sent only to Zurich, and not to the excess insurers. 8
proposal. Zurich responded the same day by clarifying that it
had not denied Caira's claim, and that its offer of the $770,000
policy limit in exchange for a release of Madigan-Fried and
Groom remained open.6
In another demand letter dated June 29, 2015, written
pursuant to G. L. c. 93A, § 9(3), and G. L. c. 176D, § 3(9)(f)
and (n), Caira asserted, among other things, that Zurich's
imposition of an inequitable condition on its settlement offer,
namely, the general release of its insureds, violated G. L.
c. 176D, § 3(9)(f), and G. L. c. 93A, § 2. In Caira's view,
Zurich unreasonably sought a release not only of its insureds,
but also of the excess insurers because once Caira released his
claims against Madigan-Fried and Groom, there could never be any
additional judgment beyond the $770,000 tendered by Zurich, and
the excess insurers would not have a duty of indemnification.
Caira reiterated his demand for the settlement he had proposed
in his e-mail dated June 12, 2015.
Zurich responded by letter dated July 15, 2015, stating
that if Caira was interested in settling with Zurich, then he
could accept Zurich's offer of its $770,000 policy limit and
provide a release of Madigan-Fried and Groom. What Caira could
6 On June 19, 2015, Caira moved for partial summary judgment with respect to his claim of negligence against Madigan-Fried. The motion was denied on the ground that there were genuine issues of material fact regarding Caira's comparative negligence in the causation of his injuries. 9
not do, in its view, was "settle" with Zurich for $770,000,
refuse to proffer a release, and continue to litigate his
claims. Zurich reiterated that its settlement position was
consistent with Lazaris.7
On November 11, 2015, Starr Indemnity settled Caira's
claims against Madigan-Fried for $900,000.8 The settlement was
funded by Zurich's remaining policy limit of $770,000, and by
$130,000 from Starr Indemnity.9 Caira executed a general release
of Madigan-Fried, Groom, and the excess insurers. The release
explicitly excluded Caira's claim against Zurich for unfair
claim settlement practices. On December 21, 2015, the parties
filed a stipulation, with prejudice and without costs or
attorney's fees, dismissing all of Caira's claims except his
claim against Zurich under G. L. c. 176D and G. L. c. 93A.
On February 18, 2016, Zurich moved for summary judgment,
arguing that Caira could not satisfy his burden of proof under
G. L. c. 176D, § 3(9)(f), where Zurich had offered its policy
7 On August 21, 2015, Groom moved for summary judgment, arguing that because Madigan-Fried was not acting in the scope of his employment at the time of the motor vehicle accident, Groom was not vicariously liable for his actions. A judge agreed and dismissed Caira's negligence claim against Groom. 8 In addition to his negligence claim, Caira had amended his complaint to add a claim against Madigan-Fried for wanton and reckless conduct. 9 In September, 2015, Zurich had tendered its remaining policy limit of $770,000 to Starr Indemnity. 10
limit on multiple occasions, conditioned only on Caira's release
of his claims against Madigan-Fried and Groom. Caira opposed
and also requested, in the alternative, a continuance pursuant
to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), so he could
conduct additional discovery. Following a hearing, a judge10
denied Caira's motion for a continuance, allowed Zurich's motion
for summary judgment, and dismissed Caira's claim against Zurich
for unfair claim settlement practices.
With respect to Caira's request for a continuance, the
judge stated that Caira had not been precluded from ascertaining
facts that were essential to his opposition to Zurich's motion
for summary judgment. Given that Zurich's settlement position
was based on a question of law, namely, the interpretation of
Lazaris, the judge concluded that additional discovery would
have no bearing on the adjudication of Zurich's motion.
As to the merits, the judge stated that, for purposes of
G. L. c. 176D, liability for the accident, including damages up
to if not exceeding the policy limit, was reasonably clear by
the time the parties started settlement discussions in December,
2014. Zurich's settlement position consistently was based on
its reading of Lazaris, to the effect that Zurich was not
obligated to pay its available policy limit without a
concomitant release of its insureds by Caira. The judge stated
10 The same judge to whom we referred in note 7, supra. 11
that there was no evidence suggesting an absence of good faith
or the presence of extortionate tactics by Zurich. Zurich had
responded to Caira's various demands in a timely manner, Zurich
did not drag out settlement discussions, and Caira had made
strategic choices that largely determined the pace of the
litigation. The judge stated that, based on his reading of
Lazaris, it was reasonable for Zurich to condition its payment
of the available policy limit on the receipt of a general
release of Madigan-Fried and Groom, irrespective of the
availability of excess insurance. Accordingly, the judge
concluded that Zurich did not engage in unfair claim settlement
practices in violation of G. L. c. 176D, § 3(9)(f), and,
therefore, was entitled to judgment as a matter of law.11 The
present appeal ensued.
11 In his second amended complaint, Caira also had alleged that Zurich failed to conduct a reasonable investigation as to liability and damages in violation of G. L. c. 176D, § 3(9)(c) and (d). The judge concluded that this was not a claims investigation case and, that therefore, Zurich was entitled to summary judgment with respect to these purported statutory violations. Because Caira has not challenged this ruling on appeal, we do not consider it further. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). In a similar vein, Caira asserted in correspondence between the parties that Zurich violated G. L. c. 176D, § 3(9)(n), by failing to provide a reasonable explanation for denying Caira's claim or for offering a compromise settlement. The judge concluded that § 3(9)(n) was not applicable in this case where Zurich had never denied coverage of Caira's claim or offered a compromise settlement, and where Caira was well aware of the legal basis for Zurich's unwillingness to pay its policy limit absent a release of its insureds. Because Caira also has not challenged this ruling on 12
Discussion. 1. Standard of review. Summary judgment is
appropriate where there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law.
See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). See
also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
(1991). "[A] party moving for summary judgment in a case in
which the opposing party will have the burden of proof at trial
is entitled to summary judgment if [it] demonstrates, by
reference to material described in Mass.R.Civ.P. 56(c), unmet by
countervailing materials, that the party opposing the motion has
no reasonable expectation of proving an essential element of
that party's case." Ibid. See Flesner v. Technical
Communications Corp., 410 Mass. 805, 809 (1991) (moving party's
burden "need not be met by affirmative evidence negating an
essential element of the plaintiff's case, but may be satisfied
by demonstrating that proof of that element is unlikely to be
forthcoming at trial"). See also Bobick v. United States Fid. &
Guar. Co., 439 Mass. 652, 659 (2003) (question whether insurer
has fulfilled obligations under G. L. c. 176D may be resolved by
summary judgment). We review a decision to grant summary
judgment de novo, construing all facts in favor of the nonmoving
party. See Miller v. Cotter, 448 Mass. 671, 676 (2007).
appeal, we do not consider it further. See Mass.R.A.P. 16(a)(4). 13
2. Unfair claim settlement practices. General Laws
c. 93A, § 2(a), inserted by St. 1967, c. 813, § 1, provides that
"unfair or deceptive acts or practices in the conduct of any
trade or commerce" are unlawful. General Laws c. 176D, § 2,
sets forth a similar prohibition against such conduct in the
insurance business. That prohibition encompasses "[u]nfair
claim settlement practices," including the "[f]ail[ure] to
effectuate prompt, fair and equitable settlements of claims in
which liability has become reasonably clear." G. L. c. 176D,
§ 3(9), inserted by St. 1972, c. 543, § 1. Any person whose
rights have been affected by an insurance practice that violates
G. L. c. 176D, § 3(9), may sue under G. L. c. 93A. See Van Dyke
v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675 (1983).
General Laws c. 176D and c. 93A "were enacted to encourage the
settlement of insurance claims . . . and discourage insurers
from forcing claimants into unnecessary litigation to obtain
relief." Clegg v. Butler, 424 Mass. 413, 419 (1997). See
Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 562 (2001).
Taken together, G. L. c. 176D, § 3(9)(f), and c. 93A, § 9,
"require an insurer such as [Zurich] promptly to put a fair and
reasonable offer on the table when liability and damages become
clear, either within the thirty-day period set forth in G. L.
c. 93A, § 9(3), or as soon thereafter as liability and damages
make themselves apparent." Hopkins v. Liberty Mut. Ins. Co., 14
supra at 566. "Our standard for examining the adequacy of an
insurer's response to a demand for relief under G. L. c. 93A,
§ 9(3), is 'whether, in the circumstances, and in light of the
complainant's demands, the offer is reasonable.'" Clegg v.
Butler, supra at 420, quoting from Calimlim v. Foreign Car
Center, Inc., 392 Mass. 228, 234 (1984). "[T]he reasonableness
of an insurer's response is to be considered in the light of the
situation as a whole," bearing in mind that the negotiation of a
settlement is "a legitimate bargaining process." Bobick v.
United States Fid. & Guar. Co., 439 Mass. at 661-662.
Liability under G. L. c. 176D and c. 93A based on unfair
claim settlement practices is generally characterized by "[a]n
absence of good faith and the presence of extortionate tactics."
Guity v. Commerce Ins. Co., 36 Mass. App. Ct. 339, 344 (1994).
In contrast, "[a] plausible, reasoned legal position that may
ultimately turn out to be mistaken [or unsuccessful] is outside
the scope of the punitive aspects of the combined application of
c. 93A and c. 176D." Id. at 343.
As an initial matter, there is no real dispute in this case
regarding liability. Notwithstanding that Caira's motion for
summary judgment as to Madigan-Fried's negligence was denied,
see note 6, supra, Zurich nonetheless assumed, for purposes of
responding to Caira's demand under G. L. c. 176D, that Madigan-
Fried's liability was reasonably clear, and that Caira's damages 15
exceeded the $1 million limit of Zurich's insurance policy.
Zurich did not raise comparative negligence as a basis for
challenging Caira's settlement demands. Instead, Zurich's
willingness to tender its available policy limit was conditioned
on receipt of a release of its insureds. We conclude that the
judge properly found that liability was reasonably clear when
the parties started settlement negotiations.
Given that liability was reasonably clear, Caira argues on
appeal that Zurich failed to effectuate a prompt, fair, and
equitable settlement of his claim as required by G. L. c. 176D,
§ 3(9)(f). In Caira's view, Zurich erroneously relied on
Lazaris v. Metropolitan Property & Cas. Ins. Co., 428 Mass. at
504-506, to support its contention that Zurich need not pay its
policy limit absent a release of its insureds, and the judge
erroneously relied on Lazaris in allowing summary judgment. We
disagree.
In Lazaris, the court clarified an insurer's obligation
under § 3(9)(f) in situations where liability is reasonably
clear and the claimant's damages unquestionably exceed the
coverage set forth in the insured's policy. 428 Mass. at 504.
The court concluded that, in such circumstances, an insurer does
not violate § 3(9)(f) by insisting on a release of its insured 16
as a condition of the payment of its policy limit.12 Lazaris,
supra at 504-505. Contrast Davis v. Allstate Ins. Co., 434
Mass. 174, 179 (2001).
In reaching this conclusion, the court stated that "a claim
is settled within the meaning of § 3(9)(f) only when it is fully
disposed of, which means that the claimant has released all
claims against the insured." 428 Mass. at 504. See MacInnis v.
Aetna Life & Cas. Co., 403 Mass. 220, 226 (1988) (settlement
typically involves "release or termination of further claims
against the tortfeasor"). The court acknowledged that where
liability is reasonably clear and in an amount that is
substantially more than the policy limit, an insurer cannot
effectuate a fair and equitable settlement because payment of
the policy limit in exchange for a release will not fully
compensate the claimant for the damages sustained. Lazaris,
supra at 505-506. The best that the insurer can do to
effectuate a settlement is to offer the policy limit in exchange
for a release, given that payment without a release is not a
12 In Lazaris v. Metropolitan Property & Cas. Ins. Co., supra at 504-505, the court overruled Thaler v. American Ins. Co., 34 Mass. App. Ct. 639 (1993), which held that an insurance company violates G. L. c. 176D, § 3(9)(f), if it insists on a release as a condition of payment of the policy limit where the liability of the insured "is undisputed and damages clearly exceed the policy limits." 34 Mass. App. Ct. at 643. By demanding the limit of Zurich's insurance policy without offering a release of Madigan-Fried and Groom, Caira seeks to resurrect Thaler. 17
settlement. Id. at 506. The claimant then can decide whether
to accept the offer or to decline the offer and proceed to
trial. Ibid.
"While [an] insurer has a duty to respond promptly to
demands by a claimant and to effectuate prompt settlement, it
also has an obligation to protect the interests of its insured,
and to guard against bad faith claims." Gore v. Arbella Mut.
Ins. Co., 77 Mass. App. Ct. 518, 525-526 (2010). See Flattery
v. Gregory, 397 Mass. 143, 150 (1986) (third-party claimants are
intended beneficiaries under optional automobile liability
insurance policies). The court in Lazaris did not construe
G. L. c. 176D, § 3(9)(f), as placing an insurer in the position
of either being sued for unfair claim settlement practices by a
claimant who is disgruntled by the insurer's failure to pay, or
being sued by an insured who is disgruntled by the insurer's
payment of the policy limit without obtaining a release of the
insured. 428 Mass. at 506. Rather, the court concluded that,
even where the claimant's damages exceed the policy limit, an
insurer can insist on a release of all claims against its
insured before tendering the policy limit, without running afoul
of G. L. c. 176D, § 3(9)(f), and c. 93A. Lazaris, supra.
Contrast Davis v. Allstate Ins. Co., 434 Mass. at 179. An
insurer who acts in good faith to protect the interests of its
insured from additional liability will not be deemed to have 18
committed an unfair settlement practice. Lazaris, supra. An
insurer need not forsake its demand for a release in order to
enable a claimant to collect additional damages, either from the
insureds themselves or from an excess insurance policy. If the
court in Lazaris had wanted to carve out an exception to its
ruling for cases where excess insurance is available, it could
have done so.
From the commencement of settlement negotiations on
December 23, 2014, it was clear that Caira wanted to receive the
insurance policy limit but was unwilling to provide a release of
Madigan-Fried and Groom. Zurich responded in a timely manner by
conditioning the payment of the available policy limit on the
release of all claims against its insureds. During their
ensuing negotiations over several months, neither party wavered
from its essential demand. In our view, Zurich's settlement
position was reasonably and correctly based on its
interpretation of Lazaris, 428 Mass. at 504-506. Simply put,
"to pay without a release is not a settlement." Id. at 506.
The availability of excess insurance did not change the
applicability of Lazaris to the facts in the present case, and
was not material to Zurich's legally sound settlement position.
Accordingly, we conclude that Zurich did not engage in unfair
claim settlement practices in violation of G. L. c. 176D, 19
§ 3(9)(f), and c. 93A, § 2. The judge properly granted summary
judgment in its favor.
3. Request for continuance. Caira contends that the judge
erred in denying Caira's motion for a continuance of the summary
judgment hearing. Rule 56(f) of the Massachusetts Rules of
Civil Procedure permits a judge to grant a continuance where a
nonmoving party needs to conduct discovery or to take
depositions for the purpose of presenting facts in opposition to
the summary judgment motion. Caira argues that more extensive
discovery, including depositions of employees of Zurich, was
necessary to produce additional evidence of unfair claim
settlement practices. We disagree.
A judge's refusal to grant a continuance is "a
discretionary ruling which will be set aside only upon a clear
showing of an abuse of discretion." Commonwealth v. Fall River
Motor Sales, Inc., 409 Mass. 302, 307 (1991). "One common
reason for the denial of a continuance . . . is the irrelevance
of further discovery to the issue being adjudicated in summary
judgment." Id. at 308. Here, the judge's decision was
predicated on whether, pursuant to Lazaris, it was proper for
Zurich to condition the offer of its policy limit on a release
of its insureds. As the judgment was based on the determination
that Zurich acted in good faith to protect its insureds, which,
as a matter of law, is not an unfair or deceptive act, 20
additional discovery purporting to show bad faith on other
grounds would have been immaterial. Accordingly, we conclude
that the judge did not abuse his discretion in denying Caira's
motion for a continuance.
Judgment affirmed.