Plaintiff: Peter J. Comerford, Esq.
Defendant: Ronald P. Langlois, Esq.
matter arises out of an automobile accident that occurred in
2003. The parties came before the Court for a bench trial on
the issue of whether Travelers of Massachusetts a/k/a Premier
Insurance Company (Travelers) violated Massachusetts General
Laws (M.G.L.) Chapter 93A in its handling of a
passenger's injury claim from that accident. Jurisdiction
is pursuant to G.L. 1956 § 8-2-14 and findings of fact
and conclusions of law are made pursuant to Superior Court
Rules of Civil Procedure 52. For the reasons set forth below,
the Court finds that Travelers did not violate M.G.L. ch.93A.
March 13, 2003, Gilmar DaSilva (DaSilva) lost control of his
vehicle, causing him to strike the median barrier while
traveling westbound through snow and slush on Interstate 195
in East Providence, Rhode Island. Joint Statement of Facts
(Joint Statement) Ex. 1. George Mathews, Jr., who had been
traveling behind DaSilva, was unable to stop his vehicle when
DaSilva's vehicle collided with the barrier, and the left
front end of his vehicle struck the right rear end of
DaSilva's vehicle. Id. The police report
indicates that DaSilva had no injuries, and George Mathews,
Jr. had no visible injury or complaints of pain. Joint
Statement Ex. 1. The police report makes no mention of any
passengers. See id.
time of this accident, DaSilva insured his vehicle with
Travelers, and his policy required any insureds to
"cooperate with [Travelers] in the investigation,
settlement and defense of any claim or lawsuit." Joint
Statement Exs. 2, 3 § 32. Travelers first received
notice of this accident from DaSilva's insurance agent on
or about March 20, 2003, and a Travelers representative
called DaSilva the same day, but he could not give
information on the accident at that time. Joint Statement
¶ 7, Ex. 3 at 37. Thereafter, on or about March 25,
2003, Travelers received notice of an injury claim for George
Mathews, Sr. (Mathews), who had been a passenger in the
vehicle driven by his son, George Mathews, Jr. Joint
Statement Ex. 4; see Joint Statement ¶¶ 3,
9. Travelers spoke with a translator for DaSilva on March 26,
2003, to make arrangements regarding DaSilva's vehicle.
Joint Statement Ex. 3.
having no contact with DaSilva since March 26, 2003,
Travelers reassigned its file to Claims Representative Karen
Tavares (Tavares) on May 31, 2005. Joint Statement ¶ 12.
Seven months later on December 1, 2005, Tavares prepared a
Liability Serious Injury Record indicating that Travelers was
willing to settle Mathews' injury claim and seek
contribution from Liberty Mutual Insurance Co. (George
Mathews, Jr.'s insurer), and also noted that intercompany
arbitration was decided at "50/50" liability. Joint
Statement Ex. 6. On December 6, 2005, Tavares sent letters to
DaSilva at two different addresses,  one of which was returned as
undeliverable. Joint Statement Ex 12. The letters notified
DaSilva that suit may be filed against him in relation to the
automobile accident (referred to as "potential
suit" letters in the Joint Statement) and asked him to
contact Travelers should he receive any legal documents.
Id.; Joint Statement ¶ 14.
filed the first suit related to this accident on December 23,
2005, and attempted to serve DaSilva for the first time on
December 30, 2005. Joint Statement ¶ 16, Ex. 8;
George Mathews v. Gilmar DaSilva et al., C.A. No.
PC-2005-6610. Thereafter, on February 9, 2006,
Plaintiff's counsel did a "post office check"
that revealed that DaSilva had moved, but left no forwarding
address. Joint Statement ¶ 17, Ex. 8. Plaintiff was not
able to serve DaSilva, and on April 27, 2006, Plaintiff was
granted an extension of time for service of process. Joint
Statement ¶¶ 19-20, Ex. 7 at 2. Plaintiff faxed a
courtesy copy of the summons and complaint to Tavares at
Travelers on May 4, 2006. Joint Statement ¶¶ 21-22.
receiving the courtesy copy of the summons and complaint,
Travelers made diligent, although ultimately unsuccessful,
efforts to locate its insured. Joint Statement ¶¶
69, 71. On May 9 or 10, 2006, Tavares attempted to reach
DaSilva at two different telephone numbers, one of which was
disconnected and the other, believed to belong to
DaSilva's interpreter, on which Tavares was able to leave
a voicemail. Joint Statement ¶¶ 23-24, Ex. 13.
Travelers also hired an investigator, and on May 11, 2006,
the investigator went to DaSilva's last known address,
where he was told no one named "DaSilva" lived
there. Joint Statement ¶¶ 28-29, Ex. 11. The
investigator checked the VIN of a car similar to
DaSilva's that was parked at the address and verified it
was not DaSilva's vehicle. Id. The investigator
also ran traces on two phone listings, credit checks,
database checks, and registry checks, all of which were
unfruitful. Joint Statement ¶¶ 28-30, Exs. 11, 16.
However, Travelers' efforts, if any, to locate DaSilva
between March 26, 2003, and receipt of the courtesy copy of
the summons and complaint on May 5, 2006, are not in the
record. See Joint Statement ¶¶ 22, 73.
addition to the above efforts to locate DaSilva, on May 10,
2006, Travelers conducted a "Suit Committee Review"
of Mathews' injury claim and issued a report (Suit
Report) that indicates the applicable policy limit for the
injury claim was $25, 000 and a demand had been made to
settle the claim in that amount. Joint Statement ¶¶
25-27, Ex. 9. The Suit Report also notes that Travelers did
not have Mathews' medical records and/or bills at that
time. Joint Statement Ex. 9.
counsel also undertook efforts to locate DaSilva and hired an
investigator, but by September 2006, the investigator had
"exhausted all avenues in an attempt to locate"
him. Joint Statement ¶ 31, Ex. 14. Additionally, the
investigator informed Plaintiff's counsel that the owner
of the property where DaSilva last lived did not have a
forwarding address for him. Id. On October 5, 2006,
Plaintiff made motion for alternative service on DaSilva,
which was denied on October 18, 2006. Joint Statement
¶¶ 32-33, Exs. 7, 8.
three years later, in June 2009, Plaintiff attempted to serve
DaSilva at a different address, but was unable to do so.
Joint Statement ¶ 34, Ex. 21. That same month, Plaintiff
hired another investigator after his constables failed to
serve DaSilva at addresses in Plymouth and Worcester. Joint
Statement ¶ 35. The Plymouth constable received
information that DaSilva stayed at the Plymouth address and
had been seen that year (2009), but he was not a tenant on
the lease. Id. After a comprehensive search, the
investigator could not locate DaSilva and indicated that he
believed that DaSilva moved to Brazil. Id.; Ex. 21.
Court, Stern, J., dismissed the case against DaSilva on July
28, 2010 pursuant to Super. R. Civ. P. 4(1), and Plaintiff
filed a second complaint against DaSilva two days
later.George Mathews v. Gilmar DaSilva,
C.A. No. PC-2010-4480; Joint Statement ¶¶ 36-37,
Exs. 10, 17. On August 4, 2010, Plaintiff attempted service
on DaSilva through the Rhode Island Registry of Motor
Vehicles at various addresses, even though prior attempts to
serve DaSilva at those addresses had failed. Joint Statement
¶¶ 38-39. Travelers then sent another investigator
to locate DaSilva in September 2010, and after conducting
another address visit and registry search, also found that
DaSilva may have returned to Brazil. Joint Statement
¶¶ 40, 42-45, Ex. 15.
January 19, 2011, Plaintiff's motions for entry of
default or in the alternative an order of notice to serve
DaSilva via publication were heard. Joint Statement
¶¶ 46, 48-49, Ex. 17. The motion for an order of
notice was granted, and on February 8, 2011, a summons was
published in the Herald News. Joint Statement
¶¶ 48, 50, Exs. 17, 22. Plaintiff's Motion for
Entry of Default was granted on March 30, 2011, over
Travelers' objection through a limited appearance of
counsel. Joint Statement ¶¶ 47, 51, Exs. 17, 18.
Almost two years later, on February 20, 2013, Plaintiff filed
an Amended Complaint to add Liberty Mutual Insurance Co.
(Liberty) as a defendant. Joint Statement ¶ 52, Ex. 17.
Liberty then filed a Third-Party Complaint against Travelers
on April 17, 2014. Joint Statement ¶ 53, Ex. 17.
January 14, 2015, Plaintiff offered to settle his claim
against DaSilva with Travelers for $25, 000. Joint Statement
¶ 55, Ex. 23. In February 2015, Plaintiff's
investigator again tried to locate DaSilva, but to no avail.
Joint Statement ¶ 57, Ex. 19. On June 25, 2015, the
Court granted Plaintiff's motion for default judgment,
and judgment entered on March 18, 2016 in the amount of $72,
000 plus interest and costs. See Joint Statement
¶¶ 58-59, Exs. 17, 24. Plaintiff was unable to
execute on his judgment, but on June 30, 2016, Plaintiff was
granted the right to reach and apply any bad faith claims or
93A claims that DaSilva may have against Travelers. Joint
Statement ¶¶ 61, 67, Ex. 20. Plaintiff's
counsel sent a letter to Travelers on July 25, 2016, (93A
Letter or Letter), and Travelers responded on August 25,
2016. Joint Statement ¶¶ 63, 65, Exs. 25, 26. When
Travelers did not put forth a settlement offer in response to
Plaintiff's 93A Letter, Plaintiff filed the instant suit
Plaintiff and Travelers filed Cross Motions for Summary
Judgment. This Court, Keough, J., determined that Rhode
Island law is inapplicable to the issue of whether Travelers
breached its duty to its insured under its Massachusetts
automobile policy, and therefore granted summary judgment for
Travelers with regard to Count I of the Complaint, which was
a claim based on Asermely v. Allstate Ins. Co., 728
A.2d 461 (1999) under Rhode Island law, and denied
Plaintiff's Motion for Summary Judgment with regard to
the same. Count II of the Complaint for Mathews' claim
under M.G.L. ch.93A remains. See Compl. ¶¶
9-22. In Count II, Mathews asks the Court to enter judgment
against Travelers in the amount of $72, 000 plus interest
from March 13, 2003 (the date of the motor vehicle accident),
double or triple damages, punitive damages, and
attorney's fees and costs. Compl. 3.
February 5, 2019, the Court conducted a bench trial based
upon a Joint Statement of Facts and joint exhibits. The
parties ask the Court to determine whether Travelers violated
M.G.L. ch.93A either by failing to settle Mathews' injury
claim after liability had become reasonably clear (as
required under M.G.L. ch.176D § 3(9)(f)) or by failing
to offer an explanation of as to a settlement offer or denial
(under M.G.L. ch.176D 3(9)(n)), and if so, to determine the
amount of damages. Based upon the record before the Court,
the Court finds that Travelers did not violate M.G.L. ch.176D
3(9)(f) or 3(9)(n), and thus did not violate M.G.L. ch.93A.
standard of review in a non-jury trial is governed by
Superior Court Rule of Civil Procedure 52(a). "In all
actions tried upon the facts without a jury . . . the court
shall find the facts specially and state separately its
conclusions of law thereon . . . ." Super. R. Civ. P.
52(a). "The trial justice sits as a trier of fact as
well as of law." Hood v. Hawkins, 478 A.2d 181,
184 (R.I. 1984). However, when a case is tried upon
stipulated facts, "the [C]ourt has no independent
fact-finding function and its role is limited to applying the
law to the agreed-upon facts." Hagenberg v.
Avedisian, 879 A.2d 436, 441 (R.I. 2005). Thus, the
scope of review of such application is "narrowly
defined." Id. "[A] trial justice's
analysis of the evidence and findings in the bench trial
context need not be exhaustive." McBurney v.
Roszkowski, 875 A.2d 428, 436 (R.I. 2005). "Even
brief findings will suffice as long as they address and
resolve the controlling factual and legal issues."
White v. LeClerc, 468 A.2d 289, 290 (R.I. 1983).
enacting M.G.L. ch.93A, "the [Massachusetts] Legislature
intended to create new substantive rights and procedural
devices substantially broadening the vindication of
consumers' rights." Richards v. Arteva
Specialties S.A.R.L., 850 N.E.2d 1068, 1073 (2006)
(internal citations omitted). To that end, M.G.L. ch.93A
§ 2 applies to consumers and makes "[u]nfair
methods of competition and unfair or deceptive acts or
practices in the conduct of any trade or commerce . . .
unlawful." M.G.L. ch.93A § 2(a).
Plaintiff to prevail in this action, he must clear three
hurdles. First, he must have properly invoked this
Court's jurisdiction with an adequate 93A letter.
Secondly, he must establish that DaSilva had coverage with
Travelers. Lastly, he must establish that Defendant violated
M.G.L. ch.176D, Unfair Methods of Competition and Unfair and
Deceptive Acts and Practices in the Business of Insurance,
specifically Section 3(9), Unfair claim settlement practices,
which enumerates particular actions that are "unfair
claim settlement practice[s]" and are actionable under
M.G.L. ch.93A. See M.G.L. ch.93A § 9(1). The Court will
proceed to analyze each of these issues in seriatim.
of the 93A Letter
"jurisdictional prerequisite to suit" under M.G.L.
ch.93A against an insurance company, a plaintiff must make a
written demand on the insurer thirty days before filing suit.
See M.G.L. ch.93A § 9(3). Spring v.
Geriatric Auth. of Holyoke, 475 N.E.2d 727, 736 (1985).
The demand must "identify the claimant and reasonably
describ[e] the unfair or deceptive act or practice relied
upon and the injury suffered . . . ." M.G.L. ch.93A
§ 9(3). An adequate demand letter will do this "in
a manner that provides the prospective defendant with an
opportunity to review the facts and the law involved to see
if the requested relief should be granted or denied and
enables him to make a reasonable tender of settlement."
Simas v. House of Cabinets, Inc., 757 N.E.2d 277,
283 (2001) (internal quotations omitted). Additionally, to
qualify as a demand letter under M.G.L. ch.93A, the letter
should contain at least one of the following six things (or,
at a minimum, "contain some other signal which will
alert a reasonably perceptive recipient"):
"(1) [an] express reference to [Chapter] 93A; (2) [an]
express reference to the consumer protection act; (3) [an]
assertion that the rights of the claimants as consumers have
been violated; (4) [an] assertion that the defendant has
acted in an unfair or deceptive manner . . .; (5) [a]
reference that the claimants anticipate a settlement offer
within thirty days . . .; or (6) [an] assertion that the
claimant will pursue multiple ...