ALTENISE DESTIMA v. COMMERCE INSURANCE COMPANY and another. [Note 1] JESSIE J. PEARSON v. COMMERCE INSURANCE COMPANY and another. [Note 2]

HAND, P.J. These cases arise out of a motor vehicle collision on April 26, 2009. At the time of the collision, appellees Altenise Destima ("Destima") and Jessie J. Pearson ("Pearson") were passengers in a car owned by Destima and operated by a third person. That vehicle was rear-ended by a motorcycle operated by Gary Foster ("Foster"). Both Destima and Foster were insured by appellant Commerce Insurance Company ("Commerce"). Immediately following the collision, Commerce investigated the accident in order to determine which driver or drivers were responsible for the collision. By June 18, 2009, after interviewing the witnesses to the collision, Commerce was aware that Foster's negligence was the cause of the accident, although it continued to entertain the possibility that the driver of the Destima vehicle had also been partially responsible. Commerce's file notes, and the trial testimony, established that within days of the collision, Commerce had preliminarily assigned one hundred per cent liability for the collision to Foster.

As a result of the collision, Destima, Pearson, and Foster all sought medical treatment Both Destima and Pearson were transported from the accident scene by ambulance to the Brockton Hospital. In the emergency department, Destima was diagnosed with a lumbar strain. She was next treated on April 29, 2009, for low back pain, and again on May 13, 2009, for the same complaint. Destima was prescribed physical therapy; she participated in that therapy on fifteen occasions between July 5, 2009, and September 11, 2009. According to the records, on discharge, Destima had "met all goals." Destima's medical bills totaled approximately $5,000.

In the emergency department, Pearson was diagnosed with back and neck strains. Pearson treated again on April 30, 2009, for low back pain. The next medical treatment Pearson attributed to the collision was on October 4, 2011, when he went to the emergency department with complaints of low back pain and, since the accident, "anxiety about traveling in motor vehicles." The record reflects that Pearson reported that

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he had only been in a car approximately five times since the accident at issue here, and that "he has had an anxiety about traveling in motor vehicles since that time." Pearson was diagnosed with "anxiety," and the examining physician recommended counseling. According to a letter Pearson's attorney provided to Commerce in April, 2013, Pearson had enrolled in counseling as of January, 2013, for treatment of "anxiety related to transition and past experiences." The record does not include any more specific information about the connection, if any, between the collision at issue here and Pearson's 2013 therapy. Pearson's medical bills through April 30, 2009, totaled $2,247.37.

Destima and Pearson made claims against Foster's 20/40 insurance coverage. Negotiations between plaintiffs' counsel [Note 3] and Commerce's adjusters followed. Both plaintiffs submitted requests for payment of medical bills under Commerce's personal injury protection ("PIP") coverage and authorized Commerce to obtain their medical bills and records. [Note 4] Both plaintiffs had also claimed for periods of accident-related disability.

On January 10, 2012, counsel for each plaintiff sent Commerce a demand letter under G.L.c. 93A, alleging unfair insurance settlement practices. Each letter included a short summary of the subject plaintiffs medical treatment, the amount of his or her current medical bills, and a demand. Each letter referred Commerce to the provisions of G.L.c. 93A, §9, and G.L.c. 176D, §3(9)(d), (f), and (g). [Note 5]

Destima's letter identified accident-related medical bills of $5,025.00 and recited Commerce's most recent offer of $2,400.00. Destima stated that Foster's liability had been clear since 2009 in light of the statements of three percipient witnesses to the collision, and expressed the view that Commerce "has not been prompt," "should have long ago offered its Bodily Injury policy on this claim," and that its offer of "anything under $10,000 in light of the length of treatment and multiple injuries is unfair." Destima's settlement demand was $20,000.00.

Pearson's letter listed $2,247.37 in related medical bills from April, 2009, warned that Pearson was still treating, and noted Commerce's most recent offer of $750.00. Pearson's letter included his view that Foster's liability had been clear for nearly

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three years, and set out Pearson's $15,000.00 settlement demand. The letters did not include any more detail about the factual bases for the plaintiffs' G.L.c. 93A claims. Pearson's letter did not include any documentation connecting his later treatment for anxiety to the accident.

Commerce made a timely response to both demand letters, increasing its offer in Destima's case to $3,300.00, but raising questions in Pearson's case about the causal relationship between the collision and the recent treatment for anxiety that Pearson's demand letter identified. Commerce responded to Pearson's letter with a reference to the $750.00 offer "remain[ing] on the table."

The cases, which had been consolidated pursuant to Mass. R Civ. P., Rule 42(c), were called for trial on April 17, 2013. [Note 6] Destima's claims against Foster had settled by that date, but Pearson's bodily injury claims were unresolved. The parties discussed settlement of the remaining claims, but were unable to reach an agreement. Both Commerce and Foster moved successfully to bifurcate the bodily injury claims from the G.L.c. 93A claims. In moving to bifurcate, the defendants plainly assumed that the plaintiffs' bodily injury claims would be tried first, with the G.L.c. 93A claim to be tried after those claims had been resolved; in fact, the trial judge initially told counsel that he would empanel on Pearson's claims against Foster, and then address the plaintiffs' G.L.c. 93A claims. After further argument, however, plaintiffs' counsel persuaded the court to try the G.L. c. 93A claims first, on the erroneous premise that, in doing so, the court could streamline the case by potentially eliminating the need to try Pearson's bodily injury claim. [Note 7]

The trial continued over several nonconsecutive days. In the course of the trial, the judge tried repeatedly, but unsuccessfully, to facilitate settlement of all remaining claims. The court found for both Destima and Pearson against Commerce, awarding Destima $15,000.00 and Pearson $20,000.00 in single damages, then trebling those damages and awarding attorney's fees. The record before us does not indicate that the parties presented any specific evidence on attorney's fees. Commerce filed a timely motion for new trial, and the plaintiffs each filed motions to amend the judgments in their cases. The court denied Commerce's motion, allowed the plaintiffs' motions, and this appeal followed. The plaintiffs filed limited cross appeals concerning the awards of attorney's fees, interest, and further damages, although, as discussed below, those appeals were not timely. Because, in our view, Commerce's motion for new trial should have been allowed, we focus on that issue.

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Commerce's motion for new trial raised several issues, including arguments that the trial court erred in denying Commerce's motion to sever the G.L.c. 93A and G.L.c. 176D claims in each case, and to stay discovery on those claims; in its damages awards; in its failure to consider the applicable PIP offsets in each case in assessing the reasonableness of the settlement offers; in impermissibly trebling damages; [Note 8] in trying Pearson's G.L.c. 93A claim before Pearson's bodily injury claim was resolved; on the ground that Commerce's right to a fair trial was violated "where substantial portions of [the] trial dates consisted of colloquies among counsel and the [t]rial [j]udge"; and in awarding excessive damages. Pursuant to Mass. R. Civ. P., Rule 59(a)(2), a court may grant a new trial in a jury-waived case "for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the Commonwealth. A new trial shall not be granted solely on the ground that the damages are excessive until the prevailing party has first been given an opportunity to remit so much thereof as the court adjudges is excessive." Id. See Bartley v. Phillips, 317 Mass. 35, 39 (1944) (motion for new trial in nonjury trials may be filed as of right only when sought for mistake of law or for newly discovered evidence). We review the court's ruling on a motion for new trial for abuse of discretion. Tinory v. DePierre, 2015 Mass. App. Div. 23, 26.

We begin with Commerce's argument that the trial court erred in its determination that Commerce's "liability was reasonably clear" for G.L. c. 93A purposes in each plaintiff's case by June 18, 2009. General Laws c. 93A, §2(a) prohibits "unfair or deceptive acts or practices in the conduct of any trade or commerce." General Laws c. 176D, §3, in turn, defines "unfair or deceptive acts or practices in the business of insurance," including, at §3(9)(f), the failure "to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear." Our courts have held that G.L.c. 93A incorporates G.L.c. 176D, meaning where an insurer fails "to effectuate prompt, fair and equitable settlement of claims in which liability has become reasonably clear," the insurer, "by definition, has violated the prohibition in [Chapter 93A] against the commission of unfair or deceptive acts or practices." Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 659 (2003), quoting Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 564 (2001).

Significant to the issues on appeal in this case, "[l]iability, as that word is used in the statute [c.176D], 'encompasses both fault and damages'" (emphasis added). Metropolitan Prop. & Cas. Ins. Co. v. Choukas, 47 Mass. App. Ct. 196, 199 (1999), overruled on other grounds, Murphy v. National Union Fire Ins. Co., 438 Mass. 529, 533 n.7 (2003), quoting Clegg v. Butler, 424 Mass. 413, 421 (1997). Whether liability is "reasonably clear" is an objective test that "calls upon the fact finder to determine whether a reasonable person, with knowledge of the relevant facts and law, would probably have concluded, for good reason, that the insurer was liable to the plaintiff." Demeo v. State Farm Mut. Auto. Ins. Co., 38 Mass. App. Ct. 955, 956-957 (1995). "Taken together, G.L. c. 93A, §2(a), and G.L.c. 1760, §3 (9) (t), 'require an insurer ... "promptly to put a fair and reasonable offer on the table when liability and damages become clear, either within the thirty-day period set forth in G.L.c. 93A, §9(3), or as soon thereafter as liability and damages make themselves apparent"' Bobick v. United

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States Fid. & Guar. Co., 439 Mass. 652, 659 (2003), quoting from Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 566 (2001)." McLaughlin v. American States Ins. Co., 90 Mass. App. Ct. 22, 29 (2016). Whether insurance company actions constitute an unfair claims settlement practice in violation of G.L. c. 93A and G.L. c. 176D is a fact specific determination ordinarily left to the trier of fact See Doe v. Liberty Mut. Ins. Co., 423 Mass. 366,371-372 (1996). "We review a judge's findings of fact under the clearly erroneous standard and his conclusions of law de novo." Casavant v. Norwegian Cruise Line, Ltd., 460 Mass. 500, 503 (2011), citing Anastos v. Sable, 443 Mass. 146, 149 (2004). "We accept a judge's findings of fact and legal conclusions unless they are clearly erroneous or tainted by error of law." Boulanger v. Dunkin' Donuts, Inc., 442 Mass. 635, 639 (2004).

Here, although it was clear by June 18, 2009, that Foster's negligence was the cause of the collision involving Destima and Pearson, neither plaintiff had finished treating by that date; the amount of the plaintiffs' damages was not known at that point. Accordingly, the judge erred, as a matter of law, in finding that "liability" for G.L. c. 176D purposes had been established by June 18, 2009. Because this finding is essential to the determination of the unfair insurance settlement practices claims, Commerce is entitled to a new trial in order to determine whether and when both "fault and damages" (emphasis added), Choukas, supra at 199, quoting Clegg, supra at 421, were reasonably clear in each plaintiff's case. Bartley, supra at 39 (party entitled to new trial where court makes error of law). See Tinory, supra at 26 (where verdict is unreasonable based on misapprehension of law, new trial should be allowed). We reverse the denial of that motion and return the cases to the trial court for a new trial on the plaintiffs' claims against Commerce.

Given our determination that Commerce is entitled to a new trial on this issue, we address Commerce's remaining arguments on appeal selectively, and both those remaining arguments, and the plaintiffs' cross appeals, briefly, in the event these issues are raised when the case is retried.

Commerce argues that the trial court abused its discretion in electing to try Pearson's G.L.c. 93A and G.L.c. 176D claim against the insurer before the resolution of Pearson's personal injury claim against Foster. For the following reasons, we agree.

First, Pearson's G.L. c. 93A and G.L. c. 176D damages against Commerce could not be assessed without a judgment or settlement in Pearson's case against Foster. The measure of damages for violations of G.L. c. 93A and G.Lc. 176D in a case in which there has been no judgment on the underlying tort claims is the "loss of the use of such funds from the time when the claim should have been paid to the time that a settlement or judgment was paid." Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 827 (2014). See Clegg, supra at 425, citing Bertassi v. Allstate Ins. Co., 402 Mass. 366, 372-373 (1988). In the absence of a judgment or settlement, the court had no basis on which to make a proper assessment, and its assessment of damages on some other basis was error. [Note 9]

Second, trying Pearson's G.L. c. 93A claim before the resolution of his tort claim left the court without a proper basis on which to determine whether any offer made by the

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insurer was "fair and reasonable." As described above, an insurer's liability for unfair settlement practices depends on the plaintiff's ability to show that the insurer failed "promptly to put a fair and reasonable offer on the table when liability and damages [had] become clear." McLaughlin, supra at 29, quoting Bobick, supra at 659. Whether an offer is "fair and reasonable" obviously depends on the value of the underlying tort claim. The value of that claim might be established in a number of ways, for example, through expert testimony, see, e.g., Rhodes v. AIG Domestic Claims, Inc., 78 Mass. App. Ct. 299 (2010) (discussing use of expert testimony to establish reasonable settlement range), or by a judgment. See, e.g., Clegg, supra at 423-424, quoting G.L.c. 93A, § 9 ("actual damages" for purpose of G.L. c. 93A determined by amount of judgment on underlying claims). Any determination of value must, however, be based on evidence relating to the underlying claims themselves. While we recognize that a judge may reserve the G.L. c. 93A claims in a given case to himself or herself, making "independent and, therefore, different, findings on the c. 93A aspect of a case that arises from the same facts which gave rise to parallel common law claim," Klairmont v. Gainsboro Rest., Inc., 465 Mass. 165, 186-187 (2013), quoting Wyler v. Bonnell Motors, Inc., 35 Mass. App. Ct. 563, 567 (1993), the parties must have an opportunity to establish the value of the case; Commerce did not have that opportunity here.

With these considerations in mind, we find that the trial judge exceeded his discretion in trying Pearson's G.L. c. 93A claim before the resolution of Pearson's bodily injury claim against Foster. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ("When an appellate court concludes that a judge abused his or her discretion, the court is not, in fact, finding that the judge was not conscientious or, for that matter, not intelligent or honest. ... [A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, ... such that the decision falls outside the range of reasonable alternatives" [citation omitted]).

Commerce also challenges the court's award of attorney's fees in each plaintiff's case. A judge has broad discretion in determining an appropriate award of attorney's fees. Brady v. Citizens Union Say. Bank, 88 Mass. App. Ct. 416, 420 (2015), citing Chase v. Pevear, 383 Mass. 350, 371 (1981), Matter of the Estate of King, 455 Mass. 796, 809 (2010), and WHTR Real Estate Ltd. Partnership v. Venture Distrib., Inc., 63 Mass. App. Ct. 229, 235 (2005). In making that determination, however, the trial court must have some evidentiary basis for calculating the award. See id. We appreciate that the trial judge was in a position to have made a reasoned assessment of the factors on which he could properly have made the award here. The record before us, however, does not include any findings on which we can determine the basis on which the trial court calculated its award of attorney's fees. Accordingly, the award of attorney's fees is vacated. [Note 10]

We consider briefly the issue of the plaintiffs' cross appeals. While Destima and Pearson filed limited notices of appeal before separate and final judgment entered in

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their cases, those notices were premature, and so were of no effect. See, e.g., BNE Vehicle Leasing v. Rothman, 1997 Mass. App. Div. 23, 23-24, citing Anthony v. Anthony, 21 Mass. App. Ct. 299, 302 (1985) (under Dist/Mun. Cts. R. A. D. A., Rule 4(a), premature notice of appeal "is a nullity and shall be dismissed"). As neither plaintiff filed new notices of appeal, as required by Rule 4(a), their cross appeals are dismissed.

Based on the reasoning above, we reverse the trial court's denial of Commerce's motion for new trial, dismiss the plaintiffs' cross appeals, and return the case to the trial court for further proceedings consistent with these determinations.

So ordered.