DONALD A SMITH, JR. vs. ARBELLA MUTUAL INSURANCE COMPANY

DREBEN, J. This appeal raises the propriety of an order granting relief from judgment because of a change or, rather, a clarification in decisional law. A recounting of the procedural history of the action is in order.

The plaintiff was involved in a collision with an uninsured motor vehicle on November 29, 1989, a time when he was insured by the defendant under a policy including uninsured motorist coverage. No notice of his uninsured motorist claim was received by the defendant until May 15, 1992, when the plaintiff filed this action to compel coverage and to proceed to arbitration. The defendant filed an answer denying coverage on

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various grounds, including the plaintiff's failure to give the defendant prompt notice. It subsequently filed a motion for summary judgment. There was no dispute as to the date of the accident or the date of the first notice to the defendant. A judge of the Superior Court allowed the motion, ruling that, as matter of law, the notice was not prompt and that prejudice on account of late notice need not be shown by the defendant. Judgment entered for the defendant on April 29, 1994, declaring that it was not obligated to pay uninsured motorist benefits to the plaintiff. No appeal was taken by the plaintiff.

On January 5, 1995, after the decision in Goodman v. American Cas. Co., 419 Mass. 138 , 142 (December 13, 1994), extended to uninsured motorist coverage the requirement that an insurer must prove that it was prejudiced by any delay in giving notice of the claim, the plaintiff moved for relief from judgment. His motion was allowed and the defendant's subsequent motion for reconsideration was denied. After a jury-waived trial, the judge found, inter alia, that the defendant "has more than sufficient ammunition to deflate if not defeat the plaintiff's claim of injuries in the 1989 accident and . . . [it] is not prejudiced by the late notice." After ruling against the defendant on its other claims, the judge declared that the defendant's uninsured motorist provisions apply to the 1989 accident and ordered the claim to proceed to arbitration. Judgment to this effect entered on November 21, 1996. The defendant appealed on numerous grounds, including a claim that the allowance of the plaintiff's motion for relief from judgment was error.

The plaintiff seeks to dismiss the appeal on the ground that the judgment is interlocutory. Although the order may not be an appealable final judgment, we have on occasion in such cases expressed our views by way of dictum, and in some rare cases, where further proceedings would be extremely wasteful, have exercised "discretion to entertain an appeal even if it is not one that is here of right." McCarthy v. Civil Service Commn., 32 Mass. App. Ct. 166 , 169 n.5 (1992). Cabral's Case, 18 Mass. App. Ct. 141 , 143-144 (1984). Graizzaro v. Graizzaro, 36 Mass. App. Ct. 911 , 912 (1994). See Commonwealth v. Chatfield-Taylor, 399 Mass. 1 , 3 (1987); Pena v. Commonwealth, 426 Mass. 1015 , 1016 (1998). Because the issues have been briefed and our disposition will resolve the controversy without unnecessary and useless additional proceedings, see McCarthy v. Civil Service Commn., 32 Mass. App. Ct. at 169 n.5, we proceed to the merits.

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We turn to the question whether relief from judgment was improperly granted under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), which, in relevant part, is set forth in the margin [Note 1]. Although the judge did not indicate under which clause of the rule he was acting, it appears that only clause (6) is applicable [Note 2]. Under both the Massachusetts rule and the parallel Federal rule "subsection (6) relief is to be granted only in extraordinary circumstances." Bromfield v. Commonwealth, 400 Mass. 254 , 257 (1987), and cases cited. See 12 Moore's Federal Practice s. 60.48[3][a]-[f] (3d ed. 1999); 11 Wright & Miller, Federal Practice & Procedure s. 2864, at 357 (2d ed. 1995). Moreover, it is "generally held improper to grant relief under Rule 60(b)(6) if the aggrieved party could have reasonably sought the same relief by means of appeal." Bromfield v. Commonwealth, 400 Mass. at 257, quoting from Martinez-McBean v. Government of V.I., 562 F.2d 908, 911 (3d Cir. 1977).

In Bromfield v. Commonwealth, the plaintiffs sought to reopen a judgment awarding them prejudgment interest at six percent in order to obtain the benefit of a subsequent decision (Verrochi v. Commonwealth, 394 Mass. 633 [1985]) under which they would be entitled to ten percent prejudgment interest. See id. at 255. In affirming the denial of relief, the Supreme Judicial Court, at 257, pointed to Ackermann v. United States, 340 U.S. 193, 198 (1950), where "the Supreme Court noted that Rule 60(b)(6) is not a substitute for appeal and that there 'must be an end to litigation someday, and free, calculated, deliberate choices [e.g. not to appeal] are not to be relieved from.' "

Changes in decisional law alone are held not to be extraordinary

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nary circumstances and do not justify the reopening of a final judgment. This is particularly true where the moving party has not appealed. Thus, appellate decisions not only generally uphold the denial of relief based on a later change in State law, see, e.g., Dowell v. State Farm Fire & Cas. Auto Ins. Co., 993 F.2d 46, 48 (4th Cir. 1993); Biggins v. Hazen Paper Co., 111 F.3d 205, 211-212 (1st Cir.), cert. denied, 522 U.S. 952 (1997). Cincinnati Ins. Co. v. Flanders Elec. Motor Serv. Inc., 131 F.3d 625, 628, 631 (7th Cir. 1997), but they reverse for an abuse of discretion if relief has been granted because of a change in decisional law alone. See, e.g., Picco v. Global Marine Drilling Co., 900 F.2d 846, 851 (5th Cir. 1990); DeWeerth v. Baldinger [Note 3], 38 F.3d 1266, 1274-1275 (2d Cir.), cert. denied, 513 U.S. 1001 (1994); Batts v. Tow-Motor Forklift Co., 66 R 3d 743, 748-751 (5th Cir. 1995), cert. denied, 517 U.S. 1221 (1996). See also Agostini v. Felton, 521 U.S. 203, 239 (1997); Bromfield v. Commonwealth, 400 Mass. at 257. Compare Pierce v. Cook & Co., 518 F.2d 720, 722-724 (10th Cir. 1975) (relief granted when case involving different plaintiff in same automobile accident reversed); Pielech v. Massasoit Greyhound, Inc., 47 Mass. App. Ct. 322 , 326 (1999) (statutory retroactivity provision coupled with legislative intent to give the plaintiffs their day in court constitute the "compelling or extraordinary circumstances" required for relief under 60[b][6]); United States v. Wyle, 889 F.2d 242, 250 (9th Cir. 1989) (change in statutory law imposing cap on fees an extraordinary circumstance warranting reconsideration of agreed payment). See generally 12 Moore's Federal Practice s. 60.48[5][b],[c], at 60-181-184 & (d) (3d ed. 1999) (criticizing some Tenth Circuit cases upholding the granting of relief)..

Because of the importance of the principles of finality, rule 60(b)(6), as interpreted by both the Supreme Judicial Court and most Federal courts, does not afford relief from judgment based solely on a subsequent clarification in decisional law, particularly in those cases where the plaintiff has failed to appeal from that judgment.

The judgment of November 21, 1996, is reversed and the

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judgment of May 2, 1994, is reinstated [Note 4].

So ordered.