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-1059
NATASHA FRODEL & another1
vs.
LIBERTY MUTUAL FIRE INSURANCE COMPANY & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On July 16, 2019, the plaintiffs, Natasha and Dean Frodel,
filed a complaint in Suffolk Superior Court against the
defendant, Liberty Mutual Fire Insurance Company (Liberty
Mutual), alleging various claims arising out of an insurance
contract. On April 10, 2023, a judge of the Suffolk Superior
Court issued a decision granting summary judgment to Liberty
Mutual and dismissing the action with prejudice.3 The plaintiffs
1 Dean Frodel.
2RebuildEx, LLC (RebuildEx). The plaintiffs' claims against RebuildEx were dismissed by agreement prior to summary judgment, and RebuildEx is not a party to this appeal.
3The plaintiffs' breach of contract claim against Liberty Mutual was dismissed prior to summary judgment and is not an issue on appeal. appeal, specifically arguing that Liberty Mutual pressured the
plaintiffs into accepting work from RebuildEx, LLC (RebuildEx),
and separately, that Liberty Mutual orally warranted RebuildEx's
work and then breached that warranty, all in violation of G. L.
c. 93A.4 We affirm.
We review the grant of a motion for summary judgment de
novo. See Barbetti v. Stempniewicz, 490 Mass. 98, 107 (2022).
"The standard of review of a grant of summary judgment is
whether, viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to a judgment as a matter of law"
(citation omitted). Nunez v. A&M Rentals, Inc., 63 Mass. App.
Ct. 20, 22 (2005). If the moving party satisfies the burden of
showing no genuine issue of material fact and entitlement as a
matter of law to a judgment, the nonmoving party, to survive
summary judgment, must "set[] forth specific facts showing that
there is a genuine issue for trial." (citation omitted).
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
4 The judge also held that, as a matter of law, the plaintiffs' claims against Liberty Mutual were not resolved by a purported settlement and release agreement between the parties, as Liberty Mutual argued below and contends here. Given our resolution of this appeal on other grounds, we need not consider this argument. Likewise, the judge ruled that the plaintiffs' other allegation, that Liberty Mutual did not handle the plaintiffs' insurance claims fairly and promptly, also failed as a matter of law. The plaintiffs do not appeal the judge's decision on that ground, and as such we do not address it.
2 (1991). "In deciding a motion for summary judgment[,] the court
may consider the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits." Niles v.
Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18 (2017).
Actions alleging a violation of G. L. c. 93A can be
appropriate for summary judgment. See Noyes v. Quincy Mut. Fire
Ins. Co., 7 Mass. App. Ct. 723, 725 (1979). Here, the
plaintiffs' G. L. c. 93A claim alleges improper insurance claims
practices, specifically unfair or deceptive acts, in violation
of G. L. c. 176D.5 For a plaintiff to recover under a G. L.
c. 93A claim, a plaintiff must show an unfair or deceptive act
or practice and a causal connection between the act or practice
and the plaintiff's injury. See Siegel v. Berkshire Life Ins.
Co., 64 Mass. App. Ct. 698, 702 n.3 (2005). "Whether a given
practice is unfair or deceptive under G. L. c. 93A must be
determined from the circumstances of each case." Noyes, supra
at 726. "Although whether a particular set of acts, in their
factual setting, is unfair or deceptive is a question of fact
. . . the boundaries of what may qualify for consideration as a
c. 93A violation is a question of law" (citation omitted).
5 Although the plaintiffs do not reference G. L. c. 176D in their amended complaint, the judge held that it was "clear that this is a c. 93A action based upon allegations of improper insurance claims practices in violation of c. 176D." Neither party argues otherwise on appeal.
3 Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 563 (2008).
Viewing the evidence in the light most favorable to the
plaintiffs, the motion judge properly determined that Liberty
Mutual was entitled to summary judgment where the plaintiffs
have no reasonable expectation of proving a G. L. c. 93A claim
at trial.
The plaintiffs first contend that Liberty Mutual's unfair
or deceptive behavior included advising the plaintiffs of the
twelve-month limit for coverage of additional living expenses
(ALE), advising the plaintiffs that Liberty Mutual would cover
only damages "actually sustained," advocating for Liberty
Mutual's preferred contractor, and retaining a third-party
contractor to conduct a reinspection of the property and
complete a comparative estimate. As a matter of law, these
allegations do not amount to a G. L. c. 93A violation.
Informing the plaintiffs of the terms of their contract,
that the maximum ALE coverage was twelve months, and that
Liberty Mutual would only cover damages "actually sustained,"
was not an unfair or deceptive practice, but rather good
practice of an insurance company in reminding their client of
the terms of their insurance contract. Furthermore, retaining a
third-party contractor to conduct a reinspection of the property
and complete a comparative estimate was allowed under the
plaintiffs' insurance policy with Liberty Mutual. Also, there
4 is nothing in the record to suggest that the comparative
estimate was requested in bad faith.
Although Liberty Mutual did repeatedly state that their
preferred contractor was RebuildEx, Liberty Mutual never made
contingent any of their services on the plaintiffs' using the
preferred contractor. Absent anywhere in the record is any
statement by Liberty Mutual that their terms were contingent on
the plaintiffs' agreeing to use RebuildEx. In fact, Natasha
Frodel acknowledged in her deposition that Liberty Mutual's
agreement to pay the maximum ALE coverage was not contingent on
the plaintiffs' accepting any other term from Liberty Mutual.
The plaintiffs failed to put forth specific facts from the
record from which a factfinder could conclude that Liberty
Mutual used unlawful tactics to compel the plaintiffs to use
RebuildEx.6
Additionally, the plaintiffs did not establish the
causation element of a G. L. c. 93A violation, as in conjunction
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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-1059
NATASHA FRODEL & another1
vs.
LIBERTY MUTUAL FIRE INSURANCE COMPANY & another.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On July 16, 2019, the plaintiffs, Natasha and Dean Frodel,
filed a complaint in Suffolk Superior Court against the
defendant, Liberty Mutual Fire Insurance Company (Liberty
Mutual), alleging various claims arising out of an insurance
contract. On April 10, 2023, a judge of the Suffolk Superior
Court issued a decision granting summary judgment to Liberty
Mutual and dismissing the action with prejudice.3 The plaintiffs
1 Dean Frodel.
2RebuildEx, LLC (RebuildEx). The plaintiffs' claims against RebuildEx were dismissed by agreement prior to summary judgment, and RebuildEx is not a party to this appeal.
3The plaintiffs' breach of contract claim against Liberty Mutual was dismissed prior to summary judgment and is not an issue on appeal. appeal, specifically arguing that Liberty Mutual pressured the
plaintiffs into accepting work from RebuildEx, LLC (RebuildEx),
and separately, that Liberty Mutual orally warranted RebuildEx's
work and then breached that warranty, all in violation of G. L.
c. 93A.4 We affirm.
We review the grant of a motion for summary judgment de
novo. See Barbetti v. Stempniewicz, 490 Mass. 98, 107 (2022).
"The standard of review of a grant of summary judgment is
whether, viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to a judgment as a matter of law"
(citation omitted). Nunez v. A&M Rentals, Inc., 63 Mass. App.
Ct. 20, 22 (2005). If the moving party satisfies the burden of
showing no genuine issue of material fact and entitlement as a
matter of law to a judgment, the nonmoving party, to survive
summary judgment, must "set[] forth specific facts showing that
there is a genuine issue for trial." (citation omitted).
Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716
4 The judge also held that, as a matter of law, the plaintiffs' claims against Liberty Mutual were not resolved by a purported settlement and release agreement between the parties, as Liberty Mutual argued below and contends here. Given our resolution of this appeal on other grounds, we need not consider this argument. Likewise, the judge ruled that the plaintiffs' other allegation, that Liberty Mutual did not handle the plaintiffs' insurance claims fairly and promptly, also failed as a matter of law. The plaintiffs do not appeal the judge's decision on that ground, and as such we do not address it.
2 (1991). "In deciding a motion for summary judgment[,] the court
may consider the pleadings, depositions, answers to
interrogatories, admissions on file, and affidavits." Niles v.
Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18 (2017).
Actions alleging a violation of G. L. c. 93A can be
appropriate for summary judgment. See Noyes v. Quincy Mut. Fire
Ins. Co., 7 Mass. App. Ct. 723, 725 (1979). Here, the
plaintiffs' G. L. c. 93A claim alleges improper insurance claims
practices, specifically unfair or deceptive acts, in violation
of G. L. c. 176D.5 For a plaintiff to recover under a G. L.
c. 93A claim, a plaintiff must show an unfair or deceptive act
or practice and a causal connection between the act or practice
and the plaintiff's injury. See Siegel v. Berkshire Life Ins.
Co., 64 Mass. App. Ct. 698, 702 n.3 (2005). "Whether a given
practice is unfair or deceptive under G. L. c. 93A must be
determined from the circumstances of each case." Noyes, supra
at 726. "Although whether a particular set of acts, in their
factual setting, is unfair or deceptive is a question of fact
. . . the boundaries of what may qualify for consideration as a
c. 93A violation is a question of law" (citation omitted).
5 Although the plaintiffs do not reference G. L. c. 176D in their amended complaint, the judge held that it was "clear that this is a c. 93A action based upon allegations of improper insurance claims practices in violation of c. 176D." Neither party argues otherwise on appeal.
3 Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 563 (2008).
Viewing the evidence in the light most favorable to the
plaintiffs, the motion judge properly determined that Liberty
Mutual was entitled to summary judgment where the plaintiffs
have no reasonable expectation of proving a G. L. c. 93A claim
at trial.
The plaintiffs first contend that Liberty Mutual's unfair
or deceptive behavior included advising the plaintiffs of the
twelve-month limit for coverage of additional living expenses
(ALE), advising the plaintiffs that Liberty Mutual would cover
only damages "actually sustained," advocating for Liberty
Mutual's preferred contractor, and retaining a third-party
contractor to conduct a reinspection of the property and
complete a comparative estimate. As a matter of law, these
allegations do not amount to a G. L. c. 93A violation.
Informing the plaintiffs of the terms of their contract,
that the maximum ALE coverage was twelve months, and that
Liberty Mutual would only cover damages "actually sustained,"
was not an unfair or deceptive practice, but rather good
practice of an insurance company in reminding their client of
the terms of their insurance contract. Furthermore, retaining a
third-party contractor to conduct a reinspection of the property
and complete a comparative estimate was allowed under the
plaintiffs' insurance policy with Liberty Mutual. Also, there
4 is nothing in the record to suggest that the comparative
estimate was requested in bad faith.
Although Liberty Mutual did repeatedly state that their
preferred contractor was RebuildEx, Liberty Mutual never made
contingent any of their services on the plaintiffs' using the
preferred contractor. Absent anywhere in the record is any
statement by Liberty Mutual that their terms were contingent on
the plaintiffs' agreeing to use RebuildEx. In fact, Natasha
Frodel acknowledged in her deposition that Liberty Mutual's
agreement to pay the maximum ALE coverage was not contingent on
the plaintiffs' accepting any other term from Liberty Mutual.
The plaintiffs failed to put forth specific facts from the
record from which a factfinder could conclude that Liberty
Mutual used unlawful tactics to compel the plaintiffs to use
RebuildEx.6
Additionally, the plaintiffs did not establish the
causation element of a G. L. c. 93A violation, as in conjunction
with the previously mentioned facts, it is also undisputed that
Liberty Mutual committed to paying the maximum coverage for ALE
over two months before the plaintiffs selected RebuildEx to
repair their home.
6 In fact, the record also reflects that Liberty Mutual issued multiple payments to the plaintiffs to help compensate for their losses.
5 With regard to the plaintiffs' second argument, that
Liberty Mutual violated G. L. c. 93A by orally warranting
RebuildEx's work and then breaching that warranty, this argument
also fails as a matter of law.7 This claim rests on
conversations the plaintiffs had with various Liberty Mutual
agents, in which the agent described that they would "stand by"
the work of RebuildEx, and also where an agent, in describing
RebuildEx, stated that "this is someone we trust and someone
that will do a good job for you." These statements, when
considered in light of the full record before the judge, are not
sufficient as a matter of law to constitute an oral warranty,
nor a G. L. c. 93A violation.
An express warranty amounts to language that suggests the
"defendant promised a specific result." Anthony's Pier Four,
Inc., v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 823
(1986). The language alleged here does not suggest that Liberty
Mutual promised that RebuildEx would not make any mistakes, or
that Liberty Mutual promised to pay to correct those mistakes.
The plaintiffs fail to mention in their brief that Dean Frodel
7 The judge did not address this argument in his summary judgment order, although the plaintiffs did argue this point in their opposition to the defendant's motion for summary judgment. We address this argument, as "it is well-established that, on appeal, we may consider any ground apparent in the record that supports the result reached in the lower court." Gabbidon v. King, 414 Mass. 685, 686 (1993).
6 also testified that, in his conversations with an agent of
Liberty Mutual, the agent "did not get into [the] point [of]
saying '[w]e'll pay to fix it' [if RebuildEx fails to adequately
perform]." Merely describing that RebuildEx generally does good
work and that Liberty Mutual stands by their work, but not
stating that they would pay for RebuildEx's mistakes, if any,
does not amount to a warranty. Rather, it is permissible
language for an insurance company to use when describing their
preferred contractor.
The plaintiffs also cite no supporting authority in their
brief to suggest that the facts alleged may amount to an oral
warranty. Rather, our case law demonstrates that the facts
alleged, in totality, do not amount to an oral warranty.
Contrast Raymond Syndicate, Inc., v. American Radio & Research
Corp. 263 Mass. 147, 152 (1928) (guaranty of "full satisfaction
or money refunded" constitutes warranty).
In addition, these conversations between Liberty Mutual
agents and the plaintiffs do not by themselves amount to a
violation of G. L. c. 93A. If anything, there may be "a good
faith dispute as to whether money is owed, or performance of
some kind is due, [which] is not the stuff of which a c. 93A
7 claim is made." Duclersaint v. Federal Nat'l Mtge. Ass'n., 427
Mass. 809, 814 (1998).
Judgment affirmed.
By the Court (Meade, Ditkoff & Toone, JJ.8),
Clerk
Entered: December 15, 2025.
8 The panelists are listed in order of seniority.