2016 Mass. App. Div. 83

September 25, 2015 - July 27, 2016

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Despotopulos & McGill, JJ.

Charles E. Berg for the plaintiff.

Renee L. Whitenett for the defendant.

HADLEY, P.J. In September, 2007, Elaine Brown (“Brown”) was injured in a motor vehicle accident allegedly caused by the negligence of Kathryn Erdmann (“Erdmann”), an insured of defendant Commerce Insurance Company (“Commerce”). Brown subsequently entered into a written contingent fee agreement with the plaintiff, James N. Ellis (“Ellis”), a lawyer admitted to practice law in the Commonwealth of Massachusetts. In October, 2007, Ellis notified Commerce that he was representing Brown with regard to a personal injury claim arising from the September accident.

In October, 2008, Ellis filed a civil action against Erdmann and Commerce on behalf of Brown in the Barnstable District Court. An attorney filed an answer on behalf of Commerce and Erdmann, and various written communications were exchanged between counsel through the end of 2008.

Sometime in early 2009, Ellis withdrew from the action he had commenced in Barnstable District Court. He then filed a notice of an attorney’s lien pursuant to G.L. c. 221, § 50. Commerce and Brown both received written notice of the lien. No other attorney filed an appearance for Brown in the case, and Commerce dealt directly with Brown after Ellis withdrew.

In September, 2009, Commerce offered Brown $30,000 to settle her claims, and she accepted the offer. Brown executed a release that Commerce provided discharging Commerce and Erdmann from any and all claims arising from the subject motor vehicle accident. In conjunction with the settlement, Commerce issued a check in the amount of $1,070.08 to satisfy a Medicare lien. Commerce also issued two checks totaling $1,261.25 payable to both Brown and Ellis purporting to satisfy Ellis’s attorney’s lien. In addition, Commerce issued a check payable to Brown alone in the amount of $27,678.67. Brown’s lawsuit against Commerce and Erdmann was dismissed

Page 84

by agreement, without the express written assent of Ellis. The checks purportedly representing payment in satisfaction of Ellis’s attorney’s lien were never cashed.

In August, 2010, Ellis filed a civil action against Brown in the East Brookfield District Court seeking compensation for her failure to compensate him for the efforts he expended and the expenses he incurred on her behalf before he withdrew from her case. In 2013, Ellis obtained a judgment against Brown for $7,206, plus interest and costs.

In November, 2013, Ellis brought the instant civil action against Commerce. In a one-count complaint, Ellis asserts that Commerce failed to honor his attorney’s lien and that by failing to honor his lien, Commerce committed an unfair claim settlement practice in violation of G.L. c. 176D, and violated G.L. c. 93A, entitling Ellis to compensation, an award of treble damages, and attorney’s fees.

Commerce moved for summary judgment. Affidavits and discovery materials that were filed in relation to the motion demonstrate the existence of a factual dispute regarding the events leading up to the payments that were made jointly to Brown and Ellis. In short, Ellis alleges that Commerce had no direct communication with him regarding the amount of his attorney’s lien and that Commerce obtained and relied on incorrect information from Brown on this subject. Commerce asserts that the information it relied upon to determine the amount due Ellis in satisfaction of his lien came directly from an employee of Ellis.

In a detailed written decision, the motion judge provided three reasons for awarding summary judgment in favor of Commerce on this claim. First, citing Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 717 n.11 (1989), he determined that Ellis is a person engaged in the conduct of a trade or business, not a consumer, and that, as a matter of law, he cannot prevail on a claim based on an alleged violation of G.L. c. 176D. Second, he determined that, as a matter of law, the actions allegedly taken by Commerce did not constitute unfair or deceptive practices under the business-to-business provisions of G.L. c. 93A, § 11. Third, the judge noted that Ellis had already recovered a judgment against Brown for his attorney’s fees and expenses, and held that he is not entitled to collect double for the same claim.

In this appeal, [Note 2] Ellis does not contend that the motion judge erred by allowing summary judgment as to his claim for relief under G.L. c. 176D and c. 93A. Despite the fact that he filed a one-count complaint, Ellis asserts that his complaint states not only a claim under G.L. c. 176D and c. 93A, but also a claim for relief for a violation of G.L. c. 221, § 50. With regard to that claim, he takes issue with the judge’s third stated reason for allowing Commerce’s motion for summary judgment. Although Ellis recognizes that he is entitled to be paid only once, he asserts that Brown has not satisfied the judgment that was entered against her and that he can lawfully pursue judgments against both Brown and Commerce.

The rules of civil procedure and basic fairness require reasonable clarity in a complaint. “[I]t is not enough that, reading between the lines, there may be lurking

Page 85

by implication in the pleading some semblance of a cause of action.” J.R. Nolan & B. Henry, Civil Practice § 10.6, at 295 (3d ed. 2004). At the same time, Mass. R. Civ. P. 8(e)(1) states, “No technical forms of pleading . . . are required.” Rule 8(e)(2) states, “A party may set forth two or more statements of a claim . . . alternatively or hypothetically, either in one count . . . or in separate counts . . . .” Rule 8(f) states, “All pleadings shall be so construed as to do substantial justice.” Finally, Rule 10(b) provides that “[e]ach claim founded upon a separate transaction or occurrence . . . shall be stated in a separate count whenever a separation facilitates the clear presentation of the matters set forth.”

After carefully reviewing Ellis’s complaint, and considering the rules of pleading set out above, we find that, here, there is only one transaction or occurrence, and even a complaint whose counts conflate multiple causes of action is to be construed in favor of the pleader, rather than against him. Druker v. Roland Wm. Jutras Assocs., Inc., 370 Mass. 383, 385 (1976). Although the document is not a model of precision, in addition to asserting an unfair business practice, the complaint must be read to include a claim that Ellis was damaged as a result of Commerce’s alleged failure to honor his attorney’s lien.

We also find that while it is true that a plaintiff is not to be paid twice for the same exact loss, he or she may secure judgments against each of two wrongdoers, and is barred only by satisfaction of his or her claim. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 219 (1909). Commerce in fact appears to concede this point in its appellate brief.

In light of the above, we affirm so much of the motion judge’s decision allowing summary judgment with regard to Ellis’s pursuit of relief under G.L. c. 176D and c. 93A, but we reverse the decision insofar as it orders that judgment enter for Commerce on the entire case. We return the matter to the Worcester District Court for further proceedings with regard to Ellis’s claim under G.L. c. 221, § 50 and Commerce’s counterclaim.


[Note 1] Doing business as Ellis & Associates.

[Note 2] In the absence of an adjudication of Commerce’s counterclaim against Ellis, no final judgment has been entered in this case. Both parties have, however, fully briefed and argued the merits of the trial court’s summary judgment ruling on Ellis’s complaint. We therefore elect to exercise our discretion to entertain this appeal. See Doyle v. Baltaks, 2007 Mass. App. Div. 43.