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Mathews v. Travelers of Massachusetts

Superior Court of Rhode Island, Providence

June 28, 2019


          For Plaintiff: Peter J. Comerford, Esq.

          For Defendant: Ronald P. Langlois, Esq.


          LICHT, J.

         This 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.


         Facts and Travel

         On 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.

         At the 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.

         After 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, [1] 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.

         Plaintiff 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.

         After 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.

         In 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.

         Plaintiff's 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.

         Almost 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.

         This 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.[2]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.

         On 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.

         On 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 against Travelers.

         Thereafter, 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.

         On 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

         The 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).



         By 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).

         For 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.


         Adequacy of the 93A Letter

         As a "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 ...

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