2018 Mass. App. Div. 207

November 9, 2018 - December 20, 2018

Appellate Division Northern District

Court Below: District Court, Framingham Division

Present: Coven, P.J., Crane & Nestor, JJ.

Pavel Lifchits, pro se.

Walter A. Galas, Jr. for the defendant.

NESTOR, J. The plaintiff, Pavel Lifchits ("Lifchits"), brought this expedited appeal under Dist./Mun. Cts. R. A. D. A. 8A from the trial court's allowance of the motion to dismiss his complaint under Mass. R. Civ. P. 12(b)(6) by the defendant, The Progressive Corporation ("Progressive").

In reviewing the allowance of a motion to dismiss under Mass. R. Civ. P. 12(b)(6), we proceed de novo and consider the same pleadings as the motion judge. Baker v. Wilmer Cutler Pickering Hale & Dorr LLP, 91 Mass. App. Ct. 835, 842 (2017). "The ultimate inquiry is whether the plaintiff[] alleged such facts, adequately detailed, so as to plausibly suggest an entitlement to relief." Id., quoting Greenleaf Arms Realty Trust I, LLC v. New Boston Fund, Inc., 81 Mass. App. Ct. 282, 288 (2012).

In answering that question, we observe that Lifchits has failed to include his complaint in the expedited appeal. Because the propriety of allowing or denying the defendant's motion to dismiss turns on the contents of the complaint and because Lifchits has the burden of showing that the allowance of the motion was error, we are faced with a record that appears to prevent us from doing anything save affirm. Cruz v. Attorney Gen., No. 06-P-1437 (Mass. App. Ct. Sept. 28, 2007) (unpublished Rule 1:28 decision), citing Walter v. Placontrol, Inc., 65 Mass. App. Ct. 298, 303 (2005), and Cameron v. Carelli, 39 Mass. App. Ct. 81, 83 (1995). In that regard, Lifchits's status as a pro se litigant "does not excuse his noncompliance with procedural rules." Id., quoting Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994).

Nevertheless, from our review of the record before us, which includes the defendant's motion to dismiss, we note that United Financial Casualty Company is a company engaged in the business of insurance. Lifchits incorrectly sued United Financial Casualty Company as Progressive.

Lifchits claims that his automobile was damaged because of the negligence of a Progressive insured, Edward Kunath ("Kunath"), a New York resident, in an accident that occurred on January 9, 2018 on Route 95 in Connecticut. Progressive appraised the vehicle and attempted to negotiate a resolution to the property damage claim. The parties, however, were unable to reach an agreement.

Lifchits filed a complaint against Progressive in Framingham District Court. Progressive's motion to dismiss was allowed because the motion judge concluded

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that Lifchits had no right to bring a direct action against a third-party liability insurer. Lifchits appealed that ruling. [Note 1]

It is established law in Massachusetts that an injured party may not maintain a cause of action against a liability insurer for the actions of its insured. See Tessier v. State Farm Mut. Ins. Co., 334 F. Supp. 807, 809 (1971), which was affirmed by the U.S. Court of Appeals in 458 F.2d 1299 (1st Cir. 1972). An injured party's right to proceed against the insurer is a two-step process. First, a judgment must be obtained against the insured. Then, if the judgment is not satisfied, the insurer may be pursued by a bill to reach and apply. Id. at 1300.

In the instant case, Lifchits does not have a judgment against the insured of Progressive. In short, Lifchits sued the wrong entity. He needed to file suit against Kunath, not Progressive.

The order dismissing the complaint is affirmed.


[Note 1] While no judgment of dismissal appears to have been entered, the parties have treated the judge's order as being final. We shall address the merits. See GTE Prod. Corp. v. Stewart, 421 Mass. 22, 24 n.3 (1995); Tech Plus, Inc. v. Ansel, 59 Mass. App. Ct. 12, 14 n.5 (2003).