Kimball v. Liberty Mutual Insurance

1999 Mass. App. Div. 298, 1999 Mass. App. Div. LEXIS 122
CourtMassachusetts District Court, Appellate Division
DecidedDecember 22, 1999
StatusPublished
Cited by7 cases

This text of 1999 Mass. App. Div. 298 (Kimball v. Liberty Mutual Insurance) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kimball v. Liberty Mutual Insurance, 1999 Mass. App. Div. 298, 1999 Mass. App. Div. LEXIS 122 (Mass. Ct. App. 1999).

Opinion

Coven, J.

Plaintiff-insured Mark F. Kimball brought this action to recover damages for the alleged breach of contract and G.L.c. 93A violations by defendant-insurer Liberty Mutual Insurance Co. in denying his claim for insurance proceeds for the theft of his automobile. Judgment was entered for the defendant, and the plaintiff has appealed pursuant to Dist./Mun. Cts. R. A D. A., Rule 8C.

The record indicates that on January 8,1997, the plaintiff filed reports with the Beverly Police Department and the defendant insurance company that his 1994 Chevrolet Cavalier had been stolen from his home in Beverly at some point prior to his return from Florida on January 4,1997. The vehicle was recovered in Lynn on January 16,1997 with substantial body, engine and transmission damage and was declared a total loss.

While the plaintiff testified at trial that there was damage to the vehicle’s passenger side door lock, other physical evidence testified to by the defendants investigators indicated that the vehicle had not been stolen. The vehicle’s ignition had not been defeated as the ignition lock was fully functional and the ignition cylinder was intact, with no sign of damage. The passive alarm system had not been activated, and the vehicle was found with the steering wheel in the “locked” position. From their examination of the vehicle, the defendant’s investigators and a locksmith concluded that the plaintiff’s vehicle could not have been started, steered or driven without the use of the correct key. When questioned by the defendant, the plaintiff maintained that he had possession at all times of both sets of keys to the vehicle. Based on the physical evidence as well as statements by the plaintiff and his parents, the defendant denied the plaintiff’s theft claim.

On November 4, 1997, the plaintiff commenced this action in two counts for breach of contract and for a violation of G.L.c. 93A in failing to reach a prompt and reasonable settlement as required by G.L.c. 176D. The court denied the plaintiffs motions to bifurcate the trial of his contract and consumer protection claims. At the close of the plaintiff’s evidence at trial, the court allowed the defendant’s Mass. R. Civ. E, Rule 41(b) (2), motion for involuntary dismissal of the plaintiff’s G.L.c. 93A count. After trial, the court entered judgment for the defendant on the remaining count for breach of contract. The court also denied the plaintiff’s motion for a new trial on the ground that the judgment was against the weight of the evidence.

1. A motion to bifurcate a civil trial rests solely within the discretion of the trial judge. Dobos v. Driscoll, 404 Mass. 634, 645 (1989). Rule 42(d), which governs bifurcation in District Court civil trials, states:

[299]*299The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross-claim, counterclaim or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims or issues.

The Rule confers the necessary discretion on the trial judge "to deal with the exigencies of litigation by separating parties, claims and issues in order ‘to secure the just, speedy and inexpensive determination of every action.’ Mass. R. Civ. P. 1, 365 Mass. 730 (1974).” Roddy & McNulty Ins. Agency, Inc. v. A.A. Proctor & Co., 16 Mass. App. Ct. 525, 529 (1983). Separate trials are obviously necessary, for example, where a plaintiff claims a jury trial on his first common law count, and there is no right to trial by jury on his second G.L.c. 93A count. See Id. at 528. Bifurcation may be justified where separate counts are brought against separate defendants, as in an action in tort where the plaintiff sues the tortfeasor for negligence and the tortfeasor’s insurer for G.L.C. 93A unfair and deceptive practices in failing to settle the claim on behalf of the insured. A Rule 42 motion may also be allowed to reduce the chance of jury confusion by preventing evidence probative of one claim from being heard on a separate claim as to which the evidence would be inadmissible.

None of these considerations are present in the instant case. Both counts of the plaintiff’s complaint were against a single defendant and were tried without a jury. The plaintiff’s sole argument for bifurcation was the possibly prejudicial effect of the introduction of evidence relevant only on his G.L.C. 93A claim, and inadmissible on the breach of contract count. It was, however, certainly within the capabilities of the trial judge to compartmentalize the evidence on the separate counts, a task which judges perform on a daily basis. It is commonplace that

a judge, sitting without a jury, in ruling upon the admissibility of evidence, will at times hear or see matters that would be excluded from a jury’s consideration. The judge’s review of ultimately inadmissible evidence would not be prejudicial error where the judge stated that he or she either was not affected by the evidence or did not consider it.

Commonwealth v. Darby, 37 Mass. App. Ct. 650, 655 (1994). See also Kendall v. Kendall, 426 Mass. 238, 243 n.11 (1997); Berlandi v. Commonwealth, 314 Mass. 424, 452 (1943). In this case, the judge granted the plaintiff’s request to limit certain "state of mind” evidence to the G.L.c. 93A claim. Further, the judge sustained the plaintiff’s objection to references to such evidence made by defendant’s counsel during closing arguments on the contract claim. It may be reasonably inferred from these rulings that the judge did not consider the G.L.c. 93A evidence in question on the contract count. There was no abuse of discretion in the trial judge’s denial of the plaintiff’s motion for a bifurcated trial.

2. The plaintiff contends that the trial court’s judgment for the defendant on his breach of contract claim was "clearly erroneous” and against the weight of the evidence. The “clearly erroneous” standard of review is applicable, however, only where a trial judge makes subsidiary findings of fact. See G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996); Macone Bros., Inc. v. Strauss, 1997 Mass. App. Div. 95, 96. The trial judge did not issue any findings of fact in this case, and was not required to do so. Mass. R. Civ. R, Rule 52(c). See Huikari v. Eastman, 362 Mass. 867 (1972); Sunder Ltd. v. Antifonario, 1997 Mass. App. Div. 187. Nor did the trial judge make any specific ruling which could be reviewed on this appeal as to the sufficiency of the evidence to warrant or require a finding for the plaintiff. The reason is that the plaintiff failed to file a proper Mass. R Civ. R, Rule 64A(b), request for such a ruling of law on the sufficiency of the evidence, and has thus waived any appellate review of that specific issue. Worcester County Nat’l Bank v. Brogna, 386 Mass. 1002, 1002-1003 [300]*300(1982); Lindquist v. Garrett Auctioneers, Inc., 1999 Mass. App. Div. 107, 108; Murphy’s Express, Inc. v. EBP], Inc., 1995 Mass. App. Div. 146, 148.

The weight and credibility of the evidence are matters for the trial court’s determination. Demoulas v. Demoulas Super Markets, Inc., 424 Mass. 501, 509-510 (1997); Chester v. Medford, 1994 Mass. App. Div. 69, 70.

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Cite This Page — Counsel Stack

Bluebook (online)
1999 Mass. App. Div. 298, 1999 Mass. App. Div. LEXIS 122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kimball-v-liberty-mutual-insurance-massdistctapp-1999.