Siegel v. Berkshire Life Insurance

835 N.E.2d 288, 64 Mass. App. Ct. 698, 2005 Mass. App. LEXIS 934
CourtMassachusetts Appeals Court
DecidedOctober 6, 2005
DocketNo. 04-P-651
StatusPublished
Cited by35 cases

This text of 835 N.E.2d 288 (Siegel v. Berkshire Life Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Siegel v. Berkshire Life Insurance, 835 N.E.2d 288, 64 Mass. App. Ct. 698, 2005 Mass. App. LEXIS 934 (Mass. Ct. App. 2005).

Opinion

Cohen, J.

This case, which comes before us for the second time, arises out of a dispute concerning the ownership of a term life insurance policy with a $1.5 million death benefit, issued by Berkshire Life Insurance Company (Berkshire) to Leon Sie[699]*699gel (Leon), the former husband of Carole Siegel (Carole). Carole, who was the beneficiary of the policy, was designated to become its owner under the terms of her divorce with Leon,1 but Berkshire refused to recognize Leon’s assignment of the policy to her, insisting upon the execution of releases by two collateral assignees as a condition of the transfer. In Siegel v. Berkshire Life Ins. Co., 51 Mass. App. Ct. 744 (2001), which provides additional factual background, we held that Berkshire had no right to demand such releases and was required to recognize the transfer of ownership from Leon to Carole as long as the collateral assignees signified their consent.

Relevant to the appeal before us, Berkshire also had issued other life insurance policies to Leon, which it later sought to rescind because of alleged misrepresentations in Leon’s policy applications. Two of these policies were owned by Michael Eisenbud and Patricia Smith, creditors of Leon. When Berkshire sought to rescind the policies owned by them, Eisenbud and Smith (the creditors) sued Berkshire and Leon seeking to obtain an assignment of rights under the policy at issue here. In order to protect her interest in the policy, Carole intervened as a party defendant in the creditors’ lawsuit. She also filed a cross claim against Berkshire for declaratory judgment (count I) and for relief under G. L. c. 93A, § 9 (count II), on account of its refusal to effectuate Leon’s assignment to her of the policy ownership and related conduct that put her interest in the policy at risk.

After our earlier decision on count I of her cross claim, Car-ale’s c. 93A claim was tried without jury to a judge of the Superior Court. Following a three-day trial, the judge issued comprehensive findings of fact and conclusions of law. The judge found that Berkshire acted unfairly and deceptively in its dealings with Carole in several respects: by taking an unreasonable position with respect to the method by which the policy could be assigned; by concealing from her its rejection of the [700]*700assignment Leon and Carole had submitted; by refusing to send Carole copies of premium notices; and by conceding in the creditors’ lawsuit that Leon was the owner of the policy, thus encouraging them to pursue their claims that the policy should be available to them as substitute security. The judge found further that, as a result of this unfair and deceptive conduct, Carole’s interest in the policy was placed in jeopardy, she was required to obtain legal representation, and it became necessary for her to engage in litigation to protect her rights.

Although the judge found that Carole did not prove that she suffered any monetary damages or out-of-pocket losses as a result of Berkshire’s c. 93A violations, he ruled that she was entitled to an award of nominal damages and reasonable attomey’s fees, which he assessed at $125,000. The judge rejected Berkshire’s contention that Carole’s claim was barred because she did not send Berkshire a demand letter pursuant to c. 93A, § 9, before filing her cross claim. He also rejected Carole’s contention that in the circumstances her legal fees constituted actual damages subject to doubling or trebling.

The parties have filed cross appeals from the judgment on the c. 93A claim. Berkshire argues that Carole was subject to the demand letter requirement; that Carole was not entitled to c. 93A relief because she failed to prove any injury resulting from Berkshire’s conduct; that Berkshire’s actions could not constitute c. 93A violations; and that the attorney’s fee award to Carole was excessive. Carole argues that on the facts presented, her legal fees constituted actual damages subject to multiplication. She also asks for an award of additional legal fees associated with this appeal.

Demand letter. The judge correctly ruled that Carole was not required to send Berkshire a demand letter before filing her cross claim, because G. L. c. 93A, § 9(3), explicitly exempts cross claims from the demand letter requirement. Contrary to Berkshire’s argument, we think it makes no difference whether Berkshire “forced” Carole into court. Indeed, the cross claim exception assumes a situation where both the c. 93A claimant and the c. 93A defendant have been brought into court by another party with interests adverse to theirs. See, e.g., Mass.R. Civ.R 13(g), 365 Mass. 759 (1974). In any event, as the judge [701]*701found, Berkshire’s unfair and deceptive acts made it necessary for Carole to protect her rights in the policy by intervening in the creditors’ lawsuit and, in that sense, Berkshire compelled her entry into the litigation.

Even if Carole voluntarily intervened in the creditors’ lawsuit, she was not required to precede her cross claim with a demand letter. The cross claim exception contains no limitation pertaining to interveners, and we see no reason to depart from the plain language of the statute. See Buddy’s Inc. v. Saugus, 62 Mass. App. Ct. 256, 260-263 (2004) (analyzing prelitigation demand procedures contained in G. L. c. 21E, § 4A). Berkshire’s position that a proper demand letter might have facilitated discussion between the parties or otherwise enhanced its position is disingenuous: nothing prevented Berkshire from discussing the claim with Carole after the cross claim was filed, or from taking advantage of the statute’s provisions to limit its exposure.2

Injury to Carole. As we later explain, there remains an issue whether and to what extent Carole suffered actual damages in the form of attorney’s fees incurred in protecting her rights in the policy against the claims of the creditors. But even if we assume that she incurred no such damages, there is no merit to Berkshire’s argument that Carole may not recover because she “never suffered any adverse effect” as a result of its conduct.

As Berkshire acknowledges in its reply brief, the right to obtain relief under c. 93A, § 9, does not require financial harm. Section 9(1) was amended by St. 1979, c. 406, § 1, to expand the class of individuals who may obtain relief beyond those who suffer a “loss of money or property” and to include, among others, persons who have been “injured by another person’s use or employment of any method, act or practice declared to be unlawful by section two ...” (emphasis supplied). Injury is established and relief may be had if the claimant shows the “invasion of a legally protected interest.” Aspinall v. Philip [702]*702Morris Cos., 442 Mass. 381, 400 (2004), quoting from Leardi v. Brown, 394 Mass. 151, 160 (1985).

Here, the judge found that Berkshire’s unfair and deceptive acts placed Carole’s interest in the policy in jeopardy and required her to take legal action to protect her rights. These consequences of Berkshire’s c. 93A violations satisfied the injury requirement of the statute.3

Chapter 93A violations. In arguing that the facts were insufficient to establish any c. 93A violation, Berkshire misinteiprets our previous opinion in this case.

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Cite This Page — Counsel Stack

Bluebook (online)
835 N.E.2d 288, 64 Mass. App. Ct. 698, 2005 Mass. App. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siegel-v-berkshire-life-insurance-massappct-2005.