Kimberly Woods v. the Hanover Insurance Group, Inc. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-627
KIMBERLY WOODS
vs.
THE HANOVER INSURANCE GROUP, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Kimberly Woods, appeals from a Superior
Court summary judgment in favor of the defendant, The Hanover
Insurance Group, Inc. (Hanover), concluding that Woods's G. L.
c. 93A claim against Hanover for unfair insurance settlement
practices under G. L. c. 176D was time barred. Hanover cross-
appeals from orders extending the time for Woods to file her
notice of appeal and denying its motion to strike Woods's notice
of appeal. We affirm.
Background. We draw the undisputed facts from the summary
judgment record. Woods's underlying claim was that, on or about
December 15, 2013, she fell on a slippery sidewalk at Lincoln
Plaza in Hingham. Woods claimed that the owner and the operator
of Lincoln Plaza, both of which were insured by Hanover,
(collectively, the insureds), were negligent in not clearing the
sidewalk of snow and ice. On or about June 27, 2016, Woods sent
a c. 93A demand letter to Hanover asserting that liability was
reasonably clear and demanding $1,750,000 in damages. No later
than August 15, 2016, Woods received a response from Hanover
denying that its insureds were negligent and making no
settlement offer.1
In December of 2016, Woods sued Hanover asserting a single
count for violation of G. L. cc. 93A and 176D. Her amended
complaint, filed shortly thereafter, added claims against the
insureds for negligence as well as several cc. 93A and 176D
claims against Hanover. Within a month thereafter, Woods
voluntarily dismissed the claims against Hanover. On October 1,
2020, Woods and Hanover reached a $350,000 settlement and
release agreement with respect to the negligence claims against
Hanover's insureds; the release included a carve out for Woods's
potential cc. 93A and 176D claims against Hanover, the effect of
which is disputed. On December 1, 2020, Woods filed this action
against Hanover.
1 Hanover had also sent an earlier letter, dated July 20, 2016,
and received by Woods on July 25, 2016, asserting that Hanover
was "unable to respond" to Woods's demand, but also asserting
that liability was not reasonably clear and making no settlement
offer. Hanover contends that Woods's claim accrued when she
received this letter. For purposes of this appeal we assume in
Woods's favor, without deciding, that this letter did not cause
Woods's claim to accrue.
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Discussion. 1. Timeliness of Woods's appeal. Because it
affects our jurisdiction, we turn first to the question whether,
as Hanover seeks to establish through its cross appeal, Woods's
appeal of the judgment was untimely. The judgment is set forth
on a form, entitled "Summary Judgment," that includes a box
labeled "Date Judgment Entered," and in that box appears the
date, "03/22/2022." The judgment also bears a stamp that,
although difficult to read in the copy before us, appears to
say, "judgment entered on docket ______, pursuant to the
provisions of Mass. R. Civ. P. 58 (a), and notice sent to
parties pursuant to the provisions of Mass. R. Civ. P. 77 (d) as
follows," with the date "March 29, 2022" handwritten in the
blank space, and another handwritten notation, "notice sent 3-
29-22." On the docket, the date given for the entry of summary
judgment is "03/29/22." Woods's notice of appeal was docketed
on April 26, 2022.
If the earlier of the two dates of entry appearing on the
judgment itself (i.e., "03/22/2022") controlled, then Woods's
notice of appeal, filed more than thirty days later, would be
untimely. See Mass. R. A. P. 4 (a) (1), as appearing in 481
Mass. 1606 (2019). But the judgment itself also gives March 29,
2022, as the date of entry. It is the date of entry appearing
on the docket, moreover, -- here "03/29/22" -- that generally
controls, although occasionally there is reason to believe from
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the face of the documents that the docket, the judgment itself,
or both, may not accurately or unambiguously reflect the
relevant dates. See Standard Register Co. v. Bolton-Emerson,
Inc., 35 Mass. App. Ct. 570, 571-572 (1993). In Standard
Register Co., the court, confronted with a particular set of
such circumstances, concluded that it would have been an abuse
of discretion to deny the appellant's motion under Mass.
R. A. P. 4 (c), as appearing in 481 Mass. 1606 (2019), to
enlarge the time to file its notice of appeal. See Standard
Register Co., supra at 572-574.
Here, when Hanover raised the timeliness issue in the
Superior Court, Woods moved for and obtained an order under rule
4 (c) extending the time to file her notice of appeal. Hanover
has cross-appealed from that order and from the related order
denying its motion to strike Woods's notice of appeal. We
conclude that the circumstances here are sufficiently akin to
those in Standard Register that the judge here did not abuse her
discretion in allowing Woods's motion for an extension of time
and in denying Hanover's motion to strike. The appeal is
therefore timely.
2. Merits of Woods's appeal. Our review of the summary
judgment is de novo, meaning we consider all of the evidence
that was before the motion judge anew, drawing all reasonable
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inferences therefrom in a light most favorable to the nonmoving
party, Woods. See Miller v. Cotter, 448 Mass. 671, 676 (2007).
Woods's claim under cc. 93A and 176D was subject to a four-
year statute of limitations. See G. L. c. 260, § 5A; Schwartz
v. Travelers Indem. Co., 50 Mass. App. Ct. 672, 676 (2001). The
running of the limitations period was tolled for a 106-day
period, from March 17, 2020, through June 30, 2020, by the
Supreme Judicial Court's COVID-19-related orders. See Shaw's
Supermarkets, Inc. v. Melendez, 488 Mass. 338, 341-342 (2021).
Accordingly, for Woods's complaint filed on December 1, 2020, to
have been timely, Woods's claim must have accrued no more than
four years and 106 days earlier, that is, no earlier than August
17, 2016.
a. Accrual of claim. A G. L. c. 93A claim accrues "when
the plaintiff knew or should have known of appreciable harm
resulting from" the defendant's alleged c. 93A violation.
International Mobiles Corp. v. Corroon & Black/Fairfield &
Ellis, Inc., 29 Mass. App. Ct. 215, 221 (1990). Importantly, as
a general matter, "[t]he plaintiff need not know the full extent
of the injury before the statute starts to run." Bowen v. Eli
Lilly & Co., 408 Mass. 204, 207 (1990). See International
Mobiles Corp., supra at 217-218, 221. Nor need a plaintiff
know, in order for a claim to accrue, that a defendant has
violated a legal duty. Bowen, supra at 206. "The 'notice'
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required is not notice of every fact which must eventually be
proved in support of the claim." Id. at 207, quoting White v.
Peabody Constr. Co., 386 Mass. 121, 130 (1982) (negligence
claim).2 Even under the more plaintiff-friendly "discovery
rule," our law "does not require discovery of each of the
elements of the cause of action -- duty, breach, causation, and
damages [--] before the limitations clock . . . starts ticking."
Malapanis v. Shirazi, 21 Mass. App. Ct. 378, 382 (1986)
(discussing G. L. c. 260, § 4).
Rather, once a plaintiff has "(1) knowledge or sufficient
notice that she was harmed and (2) knowledge or sufficient
notice of what the cause of harm was," her claim accrues.
Bowen, 408 Mass. at 208. "Thus on notice, the potential
litigant has the duty to discover from [counsel and other
sources with relevant knowledge] whether the theory of causation
is supportable and whether it supports a legal claim." Id.,quoting Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir.
1983). The potential litigant has the duration of the
limitations period -- here, four years -- to explore these
issues and thus decide whether to file suit.
2 "The accrual date for a c. 93A cause of action is determined by
the same principles dispositive of the accrual dates of general
tort actions." International Mobiles Corp., 29 Mass. App. Ct.
at 221.
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To determine when the claim accrued here, we turn to the
particular provision of c. 176D still at issue.3 Woods's
specific c. 176D claim was that Hanover had "[f]ail[ed] to
effectuate [a] prompt, fair and equitable settlement[] of [a]
claim[] in which liability has [become] reasonably clear."
G. L. c. 176D, § 3 (9) (f). A commonsense interpretation of
this language is that a claim for its violation accrues, at
least in the circumstances presented here,4 when a plaintiff
informs an insurer that its insured caused injury to the
plaintiff, and that the insurer's liability is reasonably clear,
yet the insurer does not make a prompt,5 fair, and equitable
settlement offer. The insurer's failure to do so necessarily
causes the plaintiff harm, by depriving the plaintiff, at least
for the time being, of compensation for the injuries suffered.6
3 At summary judgment, Woods agreed to the dismissal of her claim
against Hanover under G. L. c. 176D, § (3) (9) (g).
Accordingly, that claim is not before us.
4 We do not attempt any comprehensive statement of when a claim
under § 3 (9) (f) and c. 93A accrues.
5 With regard to promptness, "c. 176D, § 3 (9) (f), and G. L.
c. 93A, § 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 [the demand letter provision of] G. L.
c. 93A, § 9 (3), or as soon thereafter as liability and damages
make themselves apparent." Hopkins v. Liberty Mut. Ins. Co.,
434 Mass. 556, 566 (2001). See id. at 568.
6 Notably, "[a]n insurer's statutory duty to make a prompt and
fair settlement offer does not depend on the willingness of a
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"Whether a settlement is eventually reached or not, . . . when
an insurer wrongfully withholds funds from a claimant, it is
depriving that claimant of the use of those funds," and this
constitutes injury for c. 93A purposes. Clegg v. Butler, 424
Mass. 413, 419 (1997).
At that point, the claim accrues. The plaintiff then has
four years within which to further develop her evidence of the
insured's clear liability, of the insurer's failure to make a
fair and equitable settlement offer, and of her own damages.
The plaintiff may, if she wishes, furnish that further evidence
to the insurer, and make a renewed demand for a reasonable
settlement, before deciding whether to file suit. If she does
file suit, she will be called upon to prove the insurer's
violation of G. L. c. 176D, § 3 (9) (f), and the amount of her
resulting damages.7 But her ability to allege some damages -- in
the form of delay in receipt of whatever amount she asserts the
insurer owes her -- existed from the moment she learned her
claimant to accept such an offer." Hopkins, 434 Mass. at 567.
"Accordingly, quantifying the damages for the injury incurred by
the plaintiff as a result of the defendant's failure under G. L.
c. 176D, § 3 (9) (f), does not turn on whether the plaintiff can
show that she would have taken advantage of an earlier
settlement opportunity." Id.
7 As stated supra, Woods in fact did include a claim under
§ 3 (9) (f) and c. 93A against Hanover in her December 2016
complaint against the insureds, but soon thereafter she
voluntarily dismissed all cc. 93A and 176D claims against
Hanover.
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initial demand was refused. Her claim accrued no later than
that time.
Of course, the pendency and progress of an underlying suit
against the insured cannot be ignored. And "[i]t is a common
practice to stay discovery and trial of a [c.] 93A unfair claims
settlement practices case until the underlying claim has been
resolved." M.C. Gilleran, The Law of Chapter 93A § 9.36 & n.188
(2d ed. 2007 & Supp. 2022). In such a case, once that
resolution occurs, a plaintiff who goes on to pursue her c. 93A
claim and establishes the insurer's violation of § 3 (9) (f) is
entitled to damages, including "interest on the loss of use of
money that should have been, but was not, offered in accordance
with G. L. c. 176D, § 3 (9) (f), if that sum is in fact included
in the sum finally paid to the plaintiff by the insurer."
Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 567 (2001).
"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." Id.Woods correctly observes that this interest amount cannot
be known with certainty until the plaintiff's ultimate recovery
from the insurer is known. But it does not follow, as Woods
argues, that she could not allege any harm, and thus that her
claim did not accrue, until she reached her settlement with
Hanover on October 1, 2020. Instead, she knew no later than
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August 15, 2016, when she received Hanover's letter failing to
make a settlement offer, that Hanover would at a minimum be
delaying any payment to her of the amount of damages to which
she believed she was entitled. By then she was on notice that
Hanover's conduct had caused what she believed to be harm to
her, and thus her claim accrued by that date. Her filing of the
complaint against Hanover on December 1, 2020, was untimely.
b. Continuing violation. We are unpersuaded by Woods's
further argument that her suit is nevertheless timely as to
Hanover's continued failure to settle from the time of its
August 2016 letter up until the October 2020 settlement. Woods
asserts that events during that period, such as the completion
of discovery on the underlying negligence claim in 2019, gave
Hanover new reason to conclude that liability was reasonably
clear, and that Hanover's failure to act on that information by
making a reasonable settlement offer constituted a violation of
cc. 93A and 176D as to which Woods's complaint was timely.
Woods's argument relies entirely on Monteferrante v.
Williams-Sonoma, Inc., 241 F. Supp. 3d 264 (D. Mass. 2017),
which discussed the timeliness of claims under G. L. c. 93A and
G. L. c. 93, § 105. In Monteferrante, the Federal District
Court judge stated that "[u]nder the 'continuing violation'
doctrine, if a defendant engages in continuous or repeated
pattern of unlawful acts, each such act 'rewinds the clock,' for
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limitations purposes, as to the others." Id. at 271-272. The
judge cautioned, however, that "in determining whether there is
a 'continuing violation' that extends the statute of
limitations, courts must be careful to differentiate between
[the unlawful] acts and the ongoing injuries which are the
natural, if bitter, fruit of such acts, which do not restart the
clock" (quotation and citation omitted). Id. at 272.
Woods contends that Hanover acted unlawfully by "[f]ailing
to effectuate [a] prompt, fair and equitable settlement[] of [a]
claim[] in which liability has become reasonably clear." G. L.
c. 176D, § 3 (9) (f). But we do not view each new day on which
Hanover failed to settle Woods's claim as an additional act that
could trigger liability. Woods had only one claim -- that
Hanover had failed to effectuate a prompt, fair, and equitable
settlement of Woods's personal injury claim, as to which she
believed that, at the time of her June 27, 2016, demand letter,
liability had become reasonably clear. Once Woods learned that
Hanover had failed to settle, her claim against Hanover accrued.
That Woods might thereafter furnish Hanover with information
that in Woods's view made liability even clearer than before,
yet still did not prompt Hanover to make a reasonable settlement
offer, cannot create a new claim.
The harm suffered each day as a result of Hanover's failure
to settle is better viewed as an ongoing injury, i.e., "the
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natural, if bitter, fruit" of Hanover's original alleged
violation, the claim for which accrued outside the limitations
period. Monteferrante, 241 F. Supp. 3d at 272. The continuing
violation doctrine does not permit a plaintiff to sue for each
day the original injury is manifested. "This would eviscerate
the purpose of a statutory limitations period, and permit what
should be a limited exception to such a stricture to swallow it
whole." Ocean Spray Cranberries, Inc. v. Massachusetts Comm'n
Against Discrimination, 441 Mass. 632, 645 (2004). Cf. Everett
v. 357 Corp., 453 Mass. 585, 603 n.24 (2009).
c. Settlement carve out. Woods asserts that a provision
in the release agreement settling the underlying negligence
claims against Hanover's insureds preserved Woods's ability to
bring this suit against Hanover itself. Although there was such
a provision, it did not include any agreement tolling the
statute of limitations or waiving Hanover's right to assert a
statute of limitations defense should Woods pursue her claim.
The provision stated in pertinent part only that Woods
"reserve[d] her rights to pursue any claims against Hanover
. . . pursuant to [G. L. c.] 93A and/or 176D. [Woods]
acknowledges that Hanover . . . also reserves [its] rights to
defend any such claim and that Hanover . . . expressly den[ies]
any liability." Nothing in this provision saves Woods's
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untimely complaint from the application of the statute of
limitations.
Conclusion. The judgment dismissing Woods's complaint as
untimely is affirmed. The orders allowing Woods's motion for an
extension of time for filing a notice of appeal and denying
Hanover's motion to strike Woods's notice of appeal are
affirmed.
So ordered.
By the Court (Sullivan,
Sacks & Ditkoff, JJ.8),
Clerk
Entered: April 14, 2023.
8 The panelists are listed in order of seniority.
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