LINDA HOPKINS vs. LIBERTY MUTUAL INSURANCE COMPANY

GREANEY, J. After a jury-waived trial, a judge in the Superior

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Court concluded that the defendant, Liberty Mutual Insurance Company, had committed knowing and wilful violations of G. L. c. 176D, s. 3 (9) (f), and G. L. c. 93A, s.s. 2 and 9, by acting unfairly and deceptively in settling a claim for personal injuries brought by the plaintiff, Linda Hopkins. The plaintiff's claim was eventually settled by the defendant on October 15, 1996, in a structured settlement with a value of $400,000. To compensate the plaintiff for the defendant's violations of G. L. c. 93A, the judge awarded the plaintiff damages of $251,199 (actual damages of $83,733 and punitive damages of $167,466), together with attorney's fees ($7,035) and costs ($455.34). The defendant appealed, and we transferred the appeal to this court on our own motion. We reject the defendant's claims that G. L. c. 176D, s. 3 (9) (f) (making it an unfair claim settlement practice if an insurer "fail[s] to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear"): (1) does not permit a recovery for a single act or claim that constitutes an actionable violation; and (2) cannot be the basis for an award of multiple damages and attorney's fees and costs under G. L. c. 93A, s. 9. We also conclude that the judge was warranted in finding that the defendant's violation of G. L. c. 176D, s. 3 (9) (f), injured the plaintiff, and that the judge's assessment of damages should stand. We, therefore, affirm the judgment and grant the plaintiff's request that she recover her attorney's fees and costs on this appeal.

The judge's memorandum of decision provides the following background. On February 7, 1992, the plaintiff was seriously injured in a five-vehicle accident in Pittsfield. The plaintiff was operating her automobile behind a vehicle driven by Arthur A. Peterson. Behind the plaintiff was an automobile driven by Robert A Whipple. The first impact occurred when the Whipple vehicle struck the rear of the plaintiff's vehicle, pushing her automobile into the rear of the Peterson vehicle. The second impact occurred when a truck behind the Whipple vehicle, owned by Tire Centers, Inc. (TCI), and driven by its employee, Robert Jones, struck the Whipple vehicle, which then collided, a second time, with the plaintiffs vehicle. The TCI truck was in turn struck by a vehicle operated by Cohlin Drake, causing a

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third impact between the Whipple vehicle and the plaintiff's automobile. Because the accident occurred on a straight road and on a sunny and dry day, it was readily apparent to the police officer who investigated the accident, and to the various insurers' representatives, that the accident was caused by the failure of Whipple, Jones, and Drake to allow sufficient distance between their own vehicles and the vehicles preceding them.

TCl's truck was insured by the defendant under a commercial automobile liability policy, in the amount of $1,000,000, and under a separate excess liability policy, for an additional $5,000,000 [Note 1].

At the time of the accident, the plaintiff, age thirty-five, was a licensed master plumber, earning approximately $32,000 a year. After the accident, the plaintiff experienced pain and numbness in her neck and inner scapular, and pain in her left buttock and lower back. The plaintiff was eventually diagnosed as suffering from a herniated cervical disc with a corresponding radiculopathy, causing a loss of function in her upper right arm. Her physician also determined that the spinal injury she suffered in the accident aggravated a preexisting medical condition [Note 2]. Despite undergoing corrective surgery in January, 1994, and despite her attempts at physical rehabilitation and job retraining, the plaintiff remains unable to work and will never be able to work as a plumber.

Shortly after the accident, the defendant, who was aware that the plaintiff was represented by counsel, began an investigation into the accident and the extent of the plaintiffs injuries. The defendant's own records from February, 1992, until October, 1994, reveal that it was fully aware of TCl's and Jones's legal responsibility in causing the accident as early as August 1992. During this time, the plaintiff's medical situation remained unresolved, but the defendant was continuously provided with

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her medical and surgical bills and reports, and was aware of the extent of her injuries. In October, 1994, the defendant's reserve on the plaintiff's claim was set at $75,000. Later that month, the defendant's adjuster responsible for the plaintiffs claim recommended that the reserve be raised to $250,000.

On October 14, 1994, the plaintiff sent the defendant a settlement demand letter, requesting the amount of $700,000 [Note 3]. When an offer was not forthcoming, on December 29, 1994, the plaintiff sent a G. L. c. 93A demand letter to the defendant. On January 28, 1995, the defendant responded to the plaintiff's G. L. c. 93A demand letter. In that response, the defendant made no offer of settlement, but indicated that, in its opinion, liability was not clear because of the chain reaction nature of the collision, and that more medical and employment records were required before the plaintiff's claim could be evaluated properly.

Five days later, the plaintiff filed a complaint in the Superior Court alleging negligence against TCI and Jones, seeking damages for the injuries she sustained in the accident [Note 4]. Her complaint also alleged that the defendant had violated both G. L. c. 176D, s. 3 (9), and G. L. c. 93A, s.s. 2 and 9, and sought damages and attorney's fees and costs under G. L. c. 93A.

The attorney hired by the defendant to represent TCI and Jones pursued an aggressive inquiry into their potential defenses, which included deposing the various parties, reviewing police reports, obtaining the plaintiffs medical and employment records, and arranging for surveillance to be conducted on the plaintiff to determine the extent of her claimed incapacity. The attorney's efforts confirmed that the liability of TCI and Jones was clear and that the plaintiff's damages were reasonably established. By June, 1995, the defendant had raised its reserves to $400,000.

On April 24, 1996, the defendant extended to the plaintiff its first settlement offer, on behalf of TCI and Jones, for a combined

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settlement of $400,000. The offer was contingent on the parties arriving at a structured settlement based on the $400,000 and executing releases to TCI and Jones for the plaintiff's negligence claims and to the defendant for the G. L. c. 176D and G. L. c. 93A claims. The plaintiff rejected the defendant's offer.

On August 21, 1996, TCI and Jones made the plaintiff an offer, pursuant to Mass. R. Civ. P. 68, 365 Mass. 835 (1974), in the amount of $400,000 [Note 5]. The offer was conditioned on the plaintiff's executing a full release of her claims against TCI and Jones, but provided that her claims against the defendant would survive the settlement. A tentative agreement was reached in September, and, after the details of the structured settlement were negotiated, an appropriate judgment was entered on October 15, 1996.

Following a jury-waived trial on the plaintiff's allegations of an unfair settlement practice on the part of the defendant, the judge determined that, by late 1994, TCI's and Jones's liability was clear and the plaintiff's damages were reasonably established. The judge concluded that the defendant had violated G. L. c. 176D, s. 3 (9) (f), by failing to tender a fair offer of settlement to the plaintiff within a reasonable time after receiving the plaintiff's October, 1994, settlement demand of $700,000.

The judge determined the plaintiff's damages to be the loss incurred as a result of the defendant's unfair and deceptive settlement practice, and calculated the amount of damages as the interest on the settlement amount of $400,000, from the date at which the defendant was required under G. L. c. 93A, s. 9, to make a reasonable settlement offer (January 26, 1995, or thirty days after receiving the plaintiffs c. 93A demand letter) [Note 6] until the date the settlement was actually consummated (October 15, 1996). She then awarded the plaintiff reasonable attorney's fees

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and costs incurred in pursuing her G. L. c. 93A action against the defendant. The judge also found that the defendant deliberately refused to make any offer of settlement until April 1996, despite knowing in 1992 that its insureds were at fault, and knowing in late 1994 the extent of the plaintiffs damages. Based on that finding, the judge concluded that the defendant's conduct required multiplication of actual damages.

On appeal, the defendant claims that it is entitled to judgment because (1) a single act may not be an actionable violation of G. L. c. 176D, s. 3(9) (f); (2) a violation of G. L. c. 176D, s. 3 (9) (f), cannot constitute the basis for an award of multiple damages and attorney's fees and costs; and (3) the plaintiff failed to satisfy her burden of proving that the defendant's conduct caused her to sustain actual damages or, alternatively, that the defendant's conduct caused the plaintiff actual damages up until October 15, 1996 [Note 7]. We consider each of these claims in turn.

1. General Laws c. 176D, s. 3 (9) (f), prohibits an insurer from "[f]ailing to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear." The defendant focuses on the plural words in the statute ("settlements of claims"), and the fact that this court and the Appeals Court have reserved the question whether a single act or claim can constitute a violation of the statute, [Note 8] to argue that the plaintiff cannot recover because her claim did not involve a pattern of wrongful conduct on its part. The defendant refers to other portions of G. L. c. 176D, s. 3, where, in describing a

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statutory violation, a claim is defined in the singular [Note 9], and draws the conclusion that the Legislature did not intend a recovery in a case such as this where the plaintiff's claim arises from a single act.

We do not consider that G. L. c. 176D, s. 3 (statute), is within that class of statutes where the Legislature's choice of the singular or plural in various subsections is meant to differentiate between a single act and multiple acts. The statute, which is consumer oriented, was designed to remedy a host of possible violations in the insurance industry and to subject insurers committing violations to the remedies available to an injured party under G. L. c. 93A. Section 3 (9) (f) of the statute, in particular, is meant to deal with the conduct of some insurers that stymied those with bona fide claims from obtaining fair settlements in a reasonably prompt time. It makes no sense, for example, to interpret s. 3 (9) (n) (which uses the word "claim") to hold that a plaintiff would have a valid basis for recovery if an insurer failed to provide a reasonable explanation for denying a single claim, but to hold that the same plaintiff could not recover under s. 3 (9) (f), if the insurer, after reconsidering its denial, and concluding that the claim had merit, persisted in refusing to effectuate a fair and equitable settlement. See G. L. c. 4, s. 6, Fourth ("Words importing the singular number may extend and be applied to several persons or things, words importing the plural number may include the singular . . .").

Further considerations support this impression. If the defendant's view of the statute is accepted, a plaintiff, such as the plaintiff here, must either attempt to divide her single claim into a series of discrete acts in order to recover or bring a G. L. c. 93A action against a defendant, alleging that its acts and practices in the handling of her claim might be replicated in the defendant's handling of other claims, so that a pattern of action-

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able misconduct exists. The former approach (division of the claim into allegedly separate parts) would produce unnecessary litigation, and, perhaps, transgress the general rule that a continuing breach of a statutory duty is usually considered a single violation of the statute and not a series of separate violations. See, e.g., Darmetko v. Boston Hous. Auth., 378 Mass. 758, 761-762 (1979). The latter approach (searching for a pattern of violations contained in the claim files of other insureds) would trigger, in many instances, lawsuits likely to lead to contentious discovery requests, resort to class action motions under Mass. R. Civ. P. 23, 365 Mass. 767 (1974), and G. L. c. 93A, s. 9 (2), and other litigation procedures that often occur in so-called complex cases.

The Legislature could not have intended these consequences when it attempted to bring a semblance of fairness and order to an area that needed regulation. We conclude that a claim such as the plaintiff's, comprising an ongoing, but single, violation, can be actionable under G. L. c. 176D, s. 3 (9) (f), and G. L. c. 93A, s.s. 2 and 9 [Note 10].

2. We reject the defendant's argument that a violation of G.L. c. 176D, s. 3 (9) (f), cannot be the basis under G. L. c. 93A, s. 9 (3) and (4), for an award of multiple damages and attorney's fees and costs. The defendant asserts that the plain language of G. L. c. 93A, s. 9 (3) and (4), allowing for multiple damages "if the court finds that the use or employment of the act or practice was a willful or knowing violation of said section two or that the refusal to grant relief upon demand was made in bad faith with knowledge or reason to know that the act or practice complained of violated section two," limits recovery of multiple damages and attorney's fees and costs to violations of G. L. c. 93A, s. 2, but omits mention of violations

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of G. L. c. 176D, s. 3. The defendant, apparently, would have us conclude that, because the plaintiff's claim is premised on the defendant's violation of G. L. c. 176D, s. 3 (9) (f), there has been no violation of G. L. c. 93A, s. 2, and so multiple damages and attorney's fees and costs cannot be awarded [Note 11].

The defendant's argument mischaracterizes the relationship between the two statutes. The key provision of G. L. c. 93A, found in s. 2 (a) of the statute, states that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful." General Laws c. 176D, s. 3, prohibits "unfair or deceptive acts or practices in the business of insurance," and s. 3 (9) enumerates acts and omissions that constitute unfair claim settlement practices. The former statute incorporates the latter, and an insurer that has violated G. L. c. 176D, s. 3 (9) (f), by failing "to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear," by definition, has violated the prohibition in G. L. c. 93A, s. 2, against the commission of unfair or deceptive acts or practices. See Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 77-79 (1977); Noyes v. Quincy Mut. Fire Ins. Co., 7 Mass. App. Ct. 723, 726-727 (1979). See also Lazaris v. Metropolitan Prop. & Cas. Ins. Co., 428 Mass. 502, 502 (1998). A private consumer (and other legal entities that do not qualify as business plaintiffs under s. 11), who has been "injured by another person's use or employment of any method, act or practice declared to be unlawful by section two . . . or . . . whose rights are affected by another person violating the provisions of [G. L. c. 176D, s. 3 (9),]" may recover damages under G. L. c. 93A, s. 9, for injuries arising out of the unlawful conduct. Such has been the application of G. L. c. 93A, s.s. 2 and 9, and G. L. c. 1761), s. 3

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(9), in numerous appellate decisions. See Kapp v. Arbella Mut. Ins. Co., 426 Mass. 683 (1998); Clegg v. Butler, 424 Mass. 413 (1997); Bonofiglio v. Commercial Union Ins. Co., 411 Mass. 31 (1991), S.C., 412 Mass. 612 (1992); Bertassi v. Allstate Ins. Co., 402 Mass. 366 (1988); Yeagle v. Aetna Cas. & Sur Co., 42 Mass. App. Ct. 650 (1997); Cohen v. Liberty Mut. Ins. Co., 41 Mass. App. Ct. 748 (1996); Wallace v. American Mfrs. Mut. Ins. Co., 22 Mass. App. Ct. 938 (1986); Equitable Life Assur Socy v. Porter-Englehart, 867 F.2d 79 (1st Cir. 1989). See also Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 754 (1993) (" [a] consumer asserting a claim under G. L. c. 93A, s. 9, may recover for violations of G. L. c. 176D, s. 3 [9], without regard to whether the violation was unlawful under G. L. c. 93A, s. 2, because of the explicit statement to that effect in s. 9"); M.C. Gilleran, The Law of Chapter 93A s. 9:28, at 296 (1989 & Supp. 1999) ("A violation of [G. L.] c. 176D . . . is also expressly a violation of [G. L. c. 93AJ s. 9") [Note 12].

3. The defendant argues that the judge effed in concluding that the plaintiff met her burden of proving that its unlawful conduct caused her to sustain any damages. The defendant points to the absence of any testimony or evidence from the plaintiff that she would have accepted an offer of $400,000 in January, 1995, combined with her rejection of subsequent offers

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in the same amount. These events, the defendant argues, demonstrate that there is "no causal nexus between [the defendant's] failure to make the $400,000 offer in January of 1995 and any interest which may have been lost as a result of that failure." The defendant concludes that, "[w]ithout such a nexus, [the plaintiff] may only recover (at most) nominal damages [Note 13]." We disagree.

General Laws c. 176D, s. 3 (9) (f), and G. L. c. 93A, s. 9, together require an insurer such as the defendant 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, s. 9 (3), or as soon thereafter as liability and damages make themselves apparent. The defendant concedes on appeal that its failure to effectuate a prompt and fair settlement of the plaintiff's claim violated G. L. c. 176D, s. 3 (9) (f) [Note 14]. The defendant's violation caused injury to the plaintiff, see Leardi v. Brown, 394 Mass. 151, 159 (1985), quoting Restatement (Second) of Torts s. 7 (1965) (injury in context of consumer protection legislation, such as G. L. c. 93A, is the "invasion of any legally protected interest of another"), and, under G. L. c. 93A, s. 9, the plaintiff is "entitled to recover for all losses which were the foreseeable consequences of the

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defendant's unfair or deceptive act or practice." DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 101 (1983).

We reject the defendant's contention that the plaintiff has not shown that she was adversely affected or injured by its conduct. The defendant's deliberate failure to take steps, as required by law, to effectuate a prompt and fair settlement in January, 1995, when the liability of its insureds was clear, forced the plaintiff to institute litigation, and, in so doing, to incur the inevitable "costs and frustrations that are encountered when litigation must be instituted and no settlement is reached." Clegg v. Butler, 424 Mass. 413, 419 (1997). An insurer's statutory duty to make a prompt and fair settlement offer does not depend on the willingness of a claimant to accept such an offer. See Metropolitan Prop. & Cas. Ins. Co. v. Choukas, 47 Mass. App. Ct. 196, 200 (1999). Accordingly, quantifying the damages for the injury incurred by the plaintiff as a result of the defendant's failure under G. L. c. 176D, s. 3 (9) (f), does not turn on whether the plaintiff can show that she would have taken advantage of an earlier settlement opportunity [Note 15]. The so-called causation factor entitles a plaintiff, like the plaintiff here, to recover interest on the loss of use of money that should have been, but was not, offered in accordance with G. L. c. 176D, s. 3 (9) (f), if that sum is in fact included in the sum finally paid to the plaintiff by the insurer [Note 16]. It is this amount of money that has been wrongfully withheld from the plaintiff, and it is this sum on which the defendant must pay interest to remedy its wrongdoing. "This is precisely the type of damage we have described as appropriate [ ] . . . in an action . . . under [G. L.1 c. 93A." Clegg v. Butler, supra, quoting Schwartz v. Rose, 418 Mass. 41, 48 (1994) [Note 17].

"The statutes at issue were enacted to encourage settlement

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of insurance claims . . . and discourage insurers from forcing claimants into unnecessary litigation to obtain relief" (citation omitted). Clegg v. Butler, supra. An insurer should not be permitted to benefit from its own bad faith, where, as occurred here, it violated G. L. c. 176D, s. 3 (9) (f), by intentionally failing to make a prompt, fair offer of settlement. The defendant could have avoided the imposition of damages by making a prompt and fair offer of settlement that complied with G. L. c. 176D, s. 3 (9) (f) [Note 18], within thirty days of receiving the plaintiff's G. L. c. 93A demand letter, as provided by G. L. c. 93A, s. 9 (3) ("[a]ny person receiving [a written demand for relief] who, within thirty days . . . makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner"). Had such an offer been made, and rejected by the plaintiff, the burden would have been on the defendant to prove

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that the offer was reasonable. See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 799 (1976). In circumstances such as this, when the defendant failed to make any offer at all, the plaintiff should not be required to show that she would have accepted a hypothetical settlement offer, had one been forthcoming. See Metropolitan Prop. & Cas. Ins. Co. v. Choukas, supra at 200. We considered a similar argument when deciding the Clegg case and rejected it. See Clegg v. Butler, supra at 428-429 (O'Connor, J., dissenting) (arguing that actual damages had not been proved, because, even though primary insurer [defendant] had unlawfully failed to offer prompt and fair settlement, plaintiffs had not shown that excess insurer subsequently would have made offer that was acceptable to them). Finally, the judge's decision to multiply the actual damages because of the defendant's wrongdoing is fully supported.

4. The plaintiff may apply to a single justice of this court for an award of appropriate attorney's fees and costs in connection with this appeal. See Bonofiglio v. Commercial Union Ins. Co., 412 Mass. 612, 613 (1992).

Judgment affirmed.