NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-643
MARK R. VENTO
vs.
VERMONT MUTUAL INSURANCE COMPANY; J. BRIAN DAY, INC., third- party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Mark R. Vento, brought an action against
Vermont Mutual Insurance Company (Vermont Mutual) alleging in
his amended complaint claims of breach of contract, violation of
G. L. c. 176D and G. L. c. 93A, negligence, and negligent
infliction of emotional distress. Before trial, Vermont Mutual
moved to dismiss the negligence claim. At the hearing on this
motion, the judge dismissed the negligence claim and sua sponte
dismissed the breach of contract claim. The G. L. c. 93A claim
and negligent infliction of emotional distress claims were tried
before a jury, which rendered a verdict in favor of Vermont
Mutual. The judge then entered a separate and final judgment
dismissing Vento's complaint against Vermont Mutual. Vento has appealed, arguing that the judge erred in dismissing his breach
of contract and negligence claims. We affirm.
Background. In his amended complaint, Vento alleged the
following facts. Vento owns real property in Holbrook, which he
insured through a policy issued by Vermont Mutual. In
September, 2012, the property was severely damaged by a fire.
Vento reported this loss to Vermont Mutual, and it opened a
claim regarding this damage.
Vermont Mutual hired Samuel F. McCormack Company to assist
it in adjusting the loss. McCormack, in turn, hired Peter Venie
to adjust Vento's loss.
Vento, McCormack, and Venie disagreed on the extent of the
loss and the costs of repairing the property. These
disagreements led to delays in repairing the property. Vento
hired contractors to repair the property, but they were delayed
by Vermont Mutual's refusal to make payments sufficient to cover
the costs of labor and materials for the repairs.
According to the amended complaint, Vermont Mutual refused
to pay amounts it was required to without good cause,
justification, or explanation, and Vermont Mutual refused to
make a reasonable offer to resolve Vento's claims.
While not fully addressed by the allegations, before Vento
filed his amended complaint, the parties submitted their dispute
2 about the amount of Vento's loss to three referees pursuant to
the insurance policy. The referees issued an award settling the
amount owed to Vento, and Vermont Mutual paid Vento that amount
minus the payments it had already made to him.
Vermont Mutual moved to dismiss the negligence claim in
Vento's amended complaint, arguing that it owed Vento no duty of
care beyond the requirements of G. L. c. 176D. At the hearing
on this motion, the judge indicated that, in light of the
binding referees' award, he did not think that Vento could
maintain a breach of contract claim. Vento's counsel argued
that while Vento was bound by the referees' award as to the
amount of damage to the property, Vento suffered other losses
due to Vermont Mutual's "lowball[ing]" the loss amount and
delaying the resolution of Vento's claim. The judge then noted
that these sounded like allegations supporting a G. L. c. 93A
claim, rather than a contract claim. Vento's counsel argued
that these allegations also supported a breach of contract
claim, noting that Vermont Mutual had an obligation under the
contract of good faith and fair dealing. The judge ultimately
dismissed the contract claim, stating that it was "wholly and
entirely duplicative of the 93A/176D claim." The judge also
dismissed the negligence claim because he agreed with Vermont
3 Mutual that the alleged negligence claim "comes out of a
contractual relationship."
Discussion. "We review the allowance of a motion to
dismiss de novo." Mackie v. Rouse-Weir, 495 Mass. 252, 259
(2025).
1. The contract claim. Vento argues that the judge
erroneously concluded that his breach of contract claim was
subsumed within his G. L. c. "93A/176D" claim.
Generally, "[a] party may . . . state as many separate
claims or defenses as he has regardless of consistency and
whether based on legal or equitable grounds." Mass. R. Civ. P.
8 (e) (2), 365 Mass. 749 (1974). While "[a] plaintiff may seek
recovery under multiple counts," he "may not recover cumulative,
duplicative damages from those counts." Fox v. F & J Gattozzi
Corp., 41 Mass. App. Ct. 581, 588 (1996). Where two claims are
duplicative, though, meaning that "the elements of proof for
both are the same," the judge is not required to submit both
claims to the jury. See Calderon v. Royal Park, LLC, 96 Mass.
App. Ct. 49, 56 & n.9 (2019).
Here, at least as the plaintiff has framed his allegations,
to recover on his breach of contract claim, he would need to
prove facts that, if established, would necessarily also make
out a successful G. L. c. 93A claim. A consumer may recover
4 under G. L. c. 93A, § 9, against an insurer who engages in
unfair claims settlement practices as defined in G. L. c. 176D,
§ 3 (9). Such unfair settlement practices include, as relevant
here, "[f]ailing to effectuate prompt, fair and equitable
settlements of claims in which liability has become reasonably
clear" and "[c]ompelling insureds to institute litigation to
recover amounts due under an insurance policy by offering
substantially less than the amounts ultimately recovered in
actions brought by such insureds." G. L. c. 176D, § 3 (9) (f)-
(g).
The amended complaint alleged that Vermont Mutual breached
the parties' contract "by failing to make payments anticipated
and required by the contract," but at the hearing on the motion
to dismiss, Vento's counsel conceded that Vento was bound by the
referees' award as to the amount Vento was owed for damage to
the property and was not questioning that award. Vento's
counsel suggested that, instead, Vermont Mutual may have
violated the covenant of good faith and fair dealing by delaying
the process of settling this claim and lowballing their offers
thereby forcing Vento to hire lawyers to go through the referee
process. In other words, to establish a breach of contract on
the theory counsel articulated at the hearing, Vento would need
to establish that Vermont Mutual "[f]ail[ed] to effectuate
5 prompt, fair and equitable settlement[] of [a] claim[] in which
liability ha[d] become reasonably clear" or forced him to
litigate to obtain an amount due under the policy "by offering
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-643
MARK R. VENTO
vs.
VERMONT MUTUAL INSURANCE COMPANY; J. BRIAN DAY, INC., third- party defendant.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Mark R. Vento, brought an action against
Vermont Mutual Insurance Company (Vermont Mutual) alleging in
his amended complaint claims of breach of contract, violation of
G. L. c. 176D and G. L. c. 93A, negligence, and negligent
infliction of emotional distress. Before trial, Vermont Mutual
moved to dismiss the negligence claim. At the hearing on this
motion, the judge dismissed the negligence claim and sua sponte
dismissed the breach of contract claim. The G. L. c. 93A claim
and negligent infliction of emotional distress claims were tried
before a jury, which rendered a verdict in favor of Vermont
Mutual. The judge then entered a separate and final judgment
dismissing Vento's complaint against Vermont Mutual. Vento has appealed, arguing that the judge erred in dismissing his breach
of contract and negligence claims. We affirm.
Background. In his amended complaint, Vento alleged the
following facts. Vento owns real property in Holbrook, which he
insured through a policy issued by Vermont Mutual. In
September, 2012, the property was severely damaged by a fire.
Vento reported this loss to Vermont Mutual, and it opened a
claim regarding this damage.
Vermont Mutual hired Samuel F. McCormack Company to assist
it in adjusting the loss. McCormack, in turn, hired Peter Venie
to adjust Vento's loss.
Vento, McCormack, and Venie disagreed on the extent of the
loss and the costs of repairing the property. These
disagreements led to delays in repairing the property. Vento
hired contractors to repair the property, but they were delayed
by Vermont Mutual's refusal to make payments sufficient to cover
the costs of labor and materials for the repairs.
According to the amended complaint, Vermont Mutual refused
to pay amounts it was required to without good cause,
justification, or explanation, and Vermont Mutual refused to
make a reasonable offer to resolve Vento's claims.
While not fully addressed by the allegations, before Vento
filed his amended complaint, the parties submitted their dispute
2 about the amount of Vento's loss to three referees pursuant to
the insurance policy. The referees issued an award settling the
amount owed to Vento, and Vermont Mutual paid Vento that amount
minus the payments it had already made to him.
Vermont Mutual moved to dismiss the negligence claim in
Vento's amended complaint, arguing that it owed Vento no duty of
care beyond the requirements of G. L. c. 176D. At the hearing
on this motion, the judge indicated that, in light of the
binding referees' award, he did not think that Vento could
maintain a breach of contract claim. Vento's counsel argued
that while Vento was bound by the referees' award as to the
amount of damage to the property, Vento suffered other losses
due to Vermont Mutual's "lowball[ing]" the loss amount and
delaying the resolution of Vento's claim. The judge then noted
that these sounded like allegations supporting a G. L. c. 93A
claim, rather than a contract claim. Vento's counsel argued
that these allegations also supported a breach of contract
claim, noting that Vermont Mutual had an obligation under the
contract of good faith and fair dealing. The judge ultimately
dismissed the contract claim, stating that it was "wholly and
entirely duplicative of the 93A/176D claim." The judge also
dismissed the negligence claim because he agreed with Vermont
3 Mutual that the alleged negligence claim "comes out of a
contractual relationship."
Discussion. "We review the allowance of a motion to
dismiss de novo." Mackie v. Rouse-Weir, 495 Mass. 252, 259
(2025).
1. The contract claim. Vento argues that the judge
erroneously concluded that his breach of contract claim was
subsumed within his G. L. c. "93A/176D" claim.
Generally, "[a] party may . . . state as many separate
claims or defenses as he has regardless of consistency and
whether based on legal or equitable grounds." Mass. R. Civ. P.
8 (e) (2), 365 Mass. 749 (1974). While "[a] plaintiff may seek
recovery under multiple counts," he "may not recover cumulative,
duplicative damages from those counts." Fox v. F & J Gattozzi
Corp., 41 Mass. App. Ct. 581, 588 (1996). Where two claims are
duplicative, though, meaning that "the elements of proof for
both are the same," the judge is not required to submit both
claims to the jury. See Calderon v. Royal Park, LLC, 96 Mass.
App. Ct. 49, 56 & n.9 (2019).
Here, at least as the plaintiff has framed his allegations,
to recover on his breach of contract claim, he would need to
prove facts that, if established, would necessarily also make
out a successful G. L. c. 93A claim. A consumer may recover
4 under G. L. c. 93A, § 9, against an insurer who engages in
unfair claims settlement practices as defined in G. L. c. 176D,
§ 3 (9). Such unfair settlement practices include, as relevant
here, "[f]ailing to effectuate prompt, fair and equitable
settlements of claims in which liability has become reasonably
clear" and "[c]ompelling insureds to institute litigation to
recover amounts due under an insurance policy by offering
substantially less than the amounts ultimately recovered in
actions brought by such insureds." G. L. c. 176D, § 3 (9) (f)-
(g).
The amended complaint alleged that Vermont Mutual breached
the parties' contract "by failing to make payments anticipated
and required by the contract," but at the hearing on the motion
to dismiss, Vento's counsel conceded that Vento was bound by the
referees' award as to the amount Vento was owed for damage to
the property and was not questioning that award. Vento's
counsel suggested that, instead, Vermont Mutual may have
violated the covenant of good faith and fair dealing by delaying
the process of settling this claim and lowballing their offers
thereby forcing Vento to hire lawyers to go through the referee
process. In other words, to establish a breach of contract on
the theory counsel articulated at the hearing, Vento would need
to establish that Vermont Mutual "[f]ail[ed] to effectuate
5 prompt, fair and equitable settlement[] of [a] claim[] in which
liability ha[d] become reasonably clear" or forced him to
litigate to obtain an amount due under the policy "by offering
substantially less than the amount[] ultimately recovered" by
Vento -- the very things Vento was required to establish to
succeed on at least some of his theories supporting the G. L.
c. 93A and G. L. c. 176D claim. See G. L. c. 176D, § 3 (9) (f)-
The complaint also alleges facts beyond the conduct that
allegedly amounted to a breach of the contract that might
independently support a finding of violations of G. L. c. 176D.
But if the jury found that Vermont Mutual committed the conduct
Vento alleged violated the contract, they would have also been
required to find that Vermont Mutual violated G. L. c. 176D.1
Consequently, as these two claims were presented here, the
contract claim is duplicative of the G. L. c. 176D and G. L.
c. 93A claim, and the judge was not required to submit both
claims to the jury.
While Vento argues that a violation of G. L. c. 93A 1
requires an additional showing that the defendant's conduct was unfair or deceptive not required to prevail in a contract action, G. L. c. 93A, § 9, provides for recovery for violations of G. L. c. 176D, without regard to whether the defendant's actions would constitute unfair or deceptive acts as defined in G. L. c. 93A, § 2. See Silva v. Steadfast Ins. Co., 87 Mass. App. Ct. 800, 803-804 (2015).
6 2. Negligence claim. The negligence claim stands on
different ground. To begin with, we disagree with the motion
judge's conclusion that Vento could not bring a negligence
action because of the contractual nature of the parties'
relationship. See Abrams v. Factory Mut. Liab. Ins. Co., 298
Mass. 141, 144 (1937) ("Although the duty arises out of the
contract and is measured by its terms, negligence in the manner
of performing that duty as distinguished from mere failure to
perform it, causing damage, is a tort"). Further, the
negligence claim, unlike the contract claim, is not duplicative
of the G. L. c. 93A claim, as Vermont Mutual may have acted
negligently in ways that go beyond the strictures of the unfair
settlement practices listed in G. L. c. 176D.
For the first time, however, Vermont Mutual raises in its
brief what it puts forward as an alternative ground for
affirmance with respect to the negligence claim, the economic
loss doctrine, arguing that it bars Vento from recovering for
his alleged damages. "Massachusetts generally follows the
traditional rule 'that purely economic losses are unrecoverable
in tort . . . actions in the absence of personal injury or
property damage.'" R.L. Whipple Co. v. Pondview Excavation
Corp., 71 Mass. App. Ct. 871, 873 (2008), quoting FMR Corp. v.
Boston Edison Co., 415 Mass. 393, 395 (1993). The plaintiff has
7 not filed a reply brief to address this argument. It is true
that in his amended complaint, he alleged that the delays caused
by Vermont Mutual's negligence "resulted in further damage to
Vento's property." And, at the time it was made, the motion to
dismiss might well have been denied on that ground, pending
further development of the record. This case, however, is in an
unusual posture. The plaintiff has had a trial arising out of
the relevant set of operative circumstances in which he provided
evidence of his damages. Yet at trial, he provided no evidence
that the delay caused additional property damage. Given the
trial record, then, we think the economic loss doctrine argument
is well taken.
Judgment dated September 19, 2023, affirmed.
By the Court (Rubin, Neyman & Tan, JJ.2),
Clerk
Entered: August 19, 2025.
2 The panelists are listed in order of seniority.