CLARA SAFI v. HECTOR J. MORAN and another [Note 1]

FABBRI, J. This case involves the plaintiff's appeal from the allowance of the defendant's motion for summary judgment. The plaintiff's complaint was initially filed on June 18, 2019, alleging negligence by the defendant when the defendant struck the plaintiff's car from behind on July 3, 2018, in Boston. The complaint was later amended to add Progressive Direct Insurance Company as a party and to add a count under G.L. c. 176D and G.L. c. 93A. [Note 2] The defendant's summary judgment motion was heard on March 11, 2021, and decided on August 30, 2021.

1. Relevant facts. The nub of the plaintiff's underlying claim is that her car was struck from behind by the defendant while she was driving on Storrow Drive in Boston. As a result, she asserts that her car suffered $6,526.21 in damages. She states that her insurance company, Geico, paid her $5,526.21 for the damages but not for her policy-based deductible of $1,000. When the defendant's insurance company, Progressive Direct Insurance Company, refused to pay the plaintiff's deductible, she filed suit, seeking the full amount of her damages as well as the loss of a "good driver credit" from her insurance company.

2. Discussion. Timeliness of plaintiff's appeal. The defendant first argues that the plaintiff's appeal should be dismissed because she filed her notice of appeal late. The defendant uses August 30, 2021, the date of the allowance of his motion for summary judgment, as the starting point of the appellate clock. That would have given the plaintiff only until September 9, 2021, to file her notice of appeal. See Dist./Mun. Cts. R. A. D. A. 4(a) (notice of appeal must be filed within ten days of judgment being appealed). [Note 3] The argument is without merit.

A judgment is not entered until the clerk enters the judgment on the case docket. Mass. R. Civ. P. 58(a). Although the allowance of the summary judgment motion appears on the docket, no entry of final judgment appears there. Rather, the docket shows that judgment entered only as to count 1 of the complaint, and the parties

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were so notified by the court on August 30, 2021. Thereafter, the defendant filed a motion for judgment of dismissal with prejudice on September 22, 2021. That motion was heard and allowed as to count 1 only on October 12, 2021. That date, and not August 30, 2021, became the effective date of the judgment against the plaintiff and started the appellate clock. Thus, the plaintiff's notice of appeal, filed on October 15, 2021, was timely.

Notwithstanding that conclusion, this Division could conclude that final judgment has yet to enter in this case and return the case for further action by the trial court. Mass. R. Civ. P. 54(b) provides that where more than one claim of relief is sought in an action or more than one party is involved, the court may direct the entry of judgment as to fewer than all the claims or parties "only upon an express determination that there is no just reason for delay and upon express direction for entry of judgment." Id. Although the judge acting upon the motion for entry of judgment did expressly direct entry of judgment for the defendant (by endorsing the motion, "Allowed as to Count 1 only"), the judge did not enter a finding, as specified by the rule, that there was no just reason for delaying the entry. Regardless, the lack of reason was obvious from the record -- so that the plaintiff could pursue an appeal of the summary judgment decision. In fact, the parties agreed to that at the hearing on the motion for entry of judgment, and do not dispute that now. For that reason, and because the parties have briefed the substantive issues in this case, this Division will address and decide them.

Allowance of defendant's summary judgment motion. The plaintiff claims that the motion judge improperly allowed the defendant's motion for summary judgment because the judge concluded that the plaintiff would be unable to prove the essential element of damages at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). She asserts that, as to the unpaid deductible, it remained unpaid as of the hearing on the motion for summary judgment. Regarding the loss of the good driver credit, she maintains that the motion judge was wrong to conclude that evidence showed that that loss was speculative at best.

"Summary judgment is appropriate where there is no genuine issue of material fact, and where viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law." Opara v. Massachusetts Mut. Life Ins. Co., 441 Mass. 539, 544 (2004).

See Mass. R. Civ. P. 56(c). As a general rule, the burden of proof is on the moving party to show that there are no genuine issues of material fact in the case. Smith v. Massimiano, 414 Mass. 81, 87 (1993). The motion judge must draw all reasonable inferences in the light most favorable to the party opposing the motion, and all doubts must be resolved against the movant. Attorney Gen. v. Bailey, 386 Mass. 367, 371 (1982). Where the nonmoving party fails to rebut material factual assertions made by the moving party and those assertions establish that no genuine issue of material fact remains, the moving party is entitled to summary judgment. Baldwin v. Mortimer, 403 Mass. 142 , 143-144 (1988); Mass. R. Civ. P. 56(e).

This Division reviews decisions allowing summary judgment de novo. Dorchester Mut. Ins. Co. v. Milville, 491 Mass. 489, 492 (2023). Importantly, no summary judgment motion should be granted or denied because it would save time or expense. Hub Assocs., Inc. v. Goode, 357 Mass. 449, 452 (1970).

The parties agree that the question of who bears liability for the automobile accident

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in this case remains a live issue. There is also no dispute that the plaintiff was not paid the full measure of damages to her automobile by her insurer. Thus, the focus of the dispute here is whether the plaintiff can prove damages at trial. A review of the pleadings and filings in this case shows that the issue of damages remains in dispute. Simply put, the plaintiff has produced evidence that shows she has yet to be made whole. [Note 4] The fact that the defendant offered the plaintiff to pay her deductible (and even tendered the disputed amount to her attorney) did not resolve the issue of damages. The defendant cites no law, and this Division is aware of no case law, that requires a party to accept an offer of settlement. See Mass. R. Civ. P. 68. Cf. Duffy v. McKay, 89 Mass. App. Ct. 538, 543-544 (2016) (settlement agreement will not be enforced where "significant, material terms were still to be negotiated"). Thus, a genuine issue of material fact remains present. Hub Assocs., Inc., supra at 451-452.

Because the motion judge here allowed the defendant's motion for summary judgment conditionally, [Note 5] this Division must go on to consider the viability of that as a legal alternative. The defendant has not provided, and we are unaware of, any case in this or any other jurisdiction either permitting or prohibiting a "conditional" summary judgment. The only case potentially relevant to that issue is Morgan v. Evans, 39 Mass. App. Ct. 465 (1995). There, in connection with a property line dispute, the trial court judge had ordered the case be dismissed on report from the parties that they had reached a settlement. The judge specified that the dismissal would be vacated upon filing by the parties of an agreement for judgment within sixty days. No agreement was ever filed. Id. at 467-468. On a subsequent appeal, the defendant argued that the earlier dismissal was with prejudice. However, the Appeals Court ruled that because there was never an adjudication on the merits of the case, the dismissal was without prejudice. Id. at 469-470. By its nature, a summary judgment decision is one on the merits. Thus, Morgan does not support the proposition that a summary judgment motion may be allowed conditionally.

Finally, as to the motion judge's decision to allow summary judgment on the plaintiff's claim of damages for the loss of her good driver credit, the judge was correct. The plaintiff's deposition showed that damages flowing from the claim of loss of a good driver credit was speculative at best. Her testimony (that the amount of the credit and stated reason for the loss of it were due to the July, 2018 accident) was admittedly an assumption on her part and based upon hearsay. Such evidence is insufficient to show that she was damaged by the defendant (as opposed to something else) and the extent of the damages, if any. See Abdulky v. Lubin & Meyer, P.C., 102 Mass. App. Ct. 441, 451-452 (2023) (plaintiff must set forth facts on issue of damages that would be admissible at trial to defeat summary judgment motion by defendant).

Conclusion. Based upon the foregoing, the conditional summary judgment as to the damages to the plaintiff's vehicle is vacated. Summary judgment as to the issue of the good driver credit is affirmed. This matter is returned to the trial court for further action consistent with this opinion.

So ordered.