Home THE BERKSHIRE GAS COMPANY vs. BOARD OF ASSESSORS OF WILLIAMSTOWN.

361 Mass. 873

April 3, 1972

The Appellate Tax Board (the board) allowed the assessors' motion to dismiss the company's appeal from the refusal of the assessors to abate a 1970 tax on the company's personal property. The company, which has now appealed to this court (from the board's denial of a motion to expunge the order of dismissal), applied for an abatement on September 28, 1970. The assessors on October 5, 1970, gave the company notice (G. L. c. 59, Section 63, as appearing in St. 1943, c. 79), of their refusal of an abatement. The company received the notice on October 6. It filed its appeal with the board on January 7, 1971. General Laws c. 59, Section 64 (as amended through St. 1965, c. 597, Section 2) permits an appeal to the county commissioners by a taxpayer "within three months after receiving the notice provided in" Section 63, "or within three months after the time when the application for abatement is deemed to be denied," viz. upon "the expiration of three months from the date of filing of such application" for abatement. Section 65 (as amended through St. 1945, c. 621, Section 6) provides for an appeal to the board within the same periods specified, and "subject to the same conditions provided for an appeal under" Section 64. Three months means three calendar months (see C. & W. Dyeing & Cleaning Co. Inc. v. DeQuattro, 344 Mass. 739 , 742, fn. 2), measured from (but excluding) the date of receipt of the notice. The three calendar months began at midnight following October 6, 1970, the date of receipt of the notice, and expired at midnight before January 7, 1971, three complete calendar months. The case is governed by Boston Penny Sav. Bank v. Assessors of Boston, 314 Mass. 599 , 600-601, where time (then ninety days under Sections 64 and 65, as appearing in St. 1939, c. 31, Sections 6 and 7; but see St. 1945, c. 621, Sections 5, 6) was computed from the expiration at midnight of the last day on which the assessors could act on the abatement application without being deemed to have denied it. See G. L. c. 4, Section 7, Nineteenth. The legislative history of the pertinent present statutory provisions suggests no different result. See 1945 House Doc. Nos. 8 (pp. 7-8), 13, 1806, 1843; 1945 Senate Doc. Nos. 552, 582; 1945 House Journal, p. 836; 30 Mass. L. Q. (No. 2) 5.

Decision of Appellate Tax Board affirmed.

Home MARY J. COLSCH & another vs. THE TRAVELERS INSURANCE COMPANY.

361 Mass. 873

April 3, 1972

This is an appeal by the plaintiffs (husband and wife) from an order of the judge sustaining a demurrer to the plaintiffs' declaration in four counts. The plaintiffs alleged that an action was brought against them following a motor vehicle accident and that the defendant insurer acting "arbitrarily and in bad faith, breached its obligation . . . to exercise good faith and diligence in protecting the . . . [plaintiffs'] interests by disregarding" an offer to settle the claim within the policy limits and thus subjecting the plaintiffs to a judgment in excess of the policy limits. The plaintiffs also alleged that the defendant failed to "exercise good faith and diligence" by not seasonably filing a bill of exceptions in the action against the plaintiffs after promising to do so. The defendant demurred on the ground that the allegations in the declaration were insufficient in law to maintain the action. There was no error. (1) The averment of bad faith without allegation of other substantive facts is a bare, general conclusion of

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law and is insufficient to constitute a cause of action. "A demurrer does not admit general conclusions of law or conclusions of law from facts averred. . . . The demurrer did not admit that the insurer acted other than in good faith." Chicoine v. State Farm Mut. Auto Ins. Co. 351 Mass. 664 , 666. At most, the plaintiffs have alleged a failure to make a settlement "which a reasonably prudent person exercising due care `from the standpoint of the assured' would have made." Abrams v. Factory Mut. Liab. Ins. Co. 298 Mass. 141 , 145. Murach v. Massachusetts Bonding & Ins. Co. 339 Mass. 184 , 187. See Martin and Hennessey, Automobile Law and Practice (2d ed.) Section 709. "The declaration . . . mentions `bad faith,' but the context shows that nothing more is meant by this than the refusal to make a prudent settlement." Abrams v. Factory Mut. Liab. Ins. Co., supra, at 145. (2) "[O]ne who seeks to hold another responsible for neglect in the conduct of litigation must show that the action which has been neglected would probably have been successful and, therefore, that its neglect has directly resulted in damages measured by the value or amount of the rights which were lost by the default." McAleenan v. Massachusetts Bonding & Ins. Co. 232 N. Y. 199, 204-205. See Sterios v. Southern Sur. Co. 122 Wash. 36. The plaintiffs failed to allege any facts indicating that the result of the action against them would have been different if a bill of exceptions had been seasonably filed. McAleenan v. Massachusetts Bonding & Ins. Co., supra.

Order sustaining demurrer affirmed.