Home ROBERTA SCHULTZ vs. SUBARU OF AMERICA, INC., & another. [Note 1]

407 Mass. 1004

May 9, 1990

Osler L. Peterson for the plaintiff.

Brian A. Davis for the defendants.

The plaintiff purchased a new automobile from the defendants' authorized dealer. After experiencing problems with the vehicle, which the dealer failed to correct, the plaintiff tendered the vehicle to the defendants. The defendants did not accept the tender, and the plaintiff requested State certified "new car" arbitration pursuant to G. L. c. 90, Section 7N 1/2 (6) (1988 ed.). After a hearing, an arbitrator directed the defendants to refund the plaintiff $11,165.78 and to accept the return of her vehicle. The defendants promptly complied with the arbitrator's decision. The plaintiff then filed in the District Court an action under G. L. c. 93A, Section 9 (4) (1988 ed.), to recover her attorney's fees incurred in connection with the arbitration proceeding. A judge ruled that "[t]he damages that the Plaintiff seeks are not recoverable under Massachusetts Law." The plaintiff requested a report to the Appellate Division of the District Court. The Appellate Division dismissed the report. The plaintiff appealed, and we transferred the case here on our own initiative.

Generally, attorney's fees are not recoverable in this Commonwealth without statutory authorization. Kohl v. Silver Lake Motors, Inc., 369 Mass. 795 , 801 (1976). The plaintiff's sole argument is that the arbitrator found that the defendants had violated G. L. c. 90, Section 7N 1/2, that Section 7N 1/2 (7) provides that such violations are per se unfair or deceptive acts under

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G. L. c. 93A, Section 2, and that, therefore, c. 93A, Section 9 (4), entitles her to attorney's fees.

Chapter 93A, Section 9 (4), provides in relevant part: "If the court finds in any action commenced hereunder that there has been a violation of section two, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action" (emphasis added). By the unambiguous language of the statute, attorney's fees may be recoverable if they were incurred in connection with an action commenced under c. 93A, Section 9. The attorney's fees that the plaintiff seeks to recover were incurred in connection with the arbitration pursuant to G. L. c. 90, Section 7N 1/2, not in connection with an action under c. 93A, Section 9. Therefore, Section 9 (4) does not authorize an award of attorney's fees in this case. Since the plaintiff points to no other statute authorizing such an award, and we are aware of none, we affirm the judgment below.

Judgment affirmed.


[Note 1] Subaru of New England, Inc.