US District Court for District of Massachusetts holds that Vermont Mutual's post-judgment settlement offers that were less than verdict were in bad faith; puts it on notice for future conduct

    Fire in apartment and tenants' underlying lawsuit against landlord

Chester Robinson and Lorraine Hames were tenants in a multi-unit apartment building owned by Edward Toland and Cogavin Associates.  A fire forced them to move out.

The tenants sued the landlords in Superior Court for negligence, breach of covenant of quiet enjoyment and violation of Mass. Gen. Laws ch. 93A. Vermont Mutual Insurance Company defended the landlords under a reservation of rights. 

Exercising their option to choose counsel to be paid by the insurer when the insurer is defending under a reservation of rights, the landlords chose Emil Ward, an experienced landlord tenant lawyer, as their attorney. 

Underlying jury verdict and insurer's settlement offers that do not match the verdict

Ward regularly communicated with Vermont Mutual about the claim.  Throughout the litigation, Vermont Mutual made several settlement offers, but no offer exceeded $30,000.  Vermont Mutual believed that the landlords would prevail on the merits, based on Ward’s representations as to the strength of the defense.  Ward believed the tenants’ case was generally weak before and during trial, and was surprised when the jury verdict came back against the landlords in the amount $61,750 for negligence and about $20,000 for breach of the covenant of quiet enjoyment.  With prejudment interest the total award was more than $120,000.  The plaintiffs were also entitled to attorneys fees because of the quiet enjoyment claim.  Those fees exceeded $240,000. 

After trial but before the judge’s ruling on the 93A claim, Vermont Mutual raised its settlement offer to $112,016. 

At that point Ward predicted that the Superior Court would rule in favor of the tenants on the 93A claim.  He asked Vermont Mutual to make a larger settlement offer.  Vermont Mutual refused.  The court granted 93A damages to the tenants and entered an aggregate judgment of over $405,000. 

Ward requested settlement authority from Vermont Mutual in the amount of the judgment.  Vermont Mutual refused.

The landlords appealed the judgment.  

    Underlying settlement

While the appeal was pending, the landlords settled with the tenants for $380,000. Vermont Mutual did not participate in the settlement.

    Insurer's declaratory judgment action and counterclaims by landlords and tenants

Vermont Mutual filed a declaratory judgment lawsuit against the landlords and tenants in federal court. The tenants counterclaimed for breach of Mass. Gen. Laws chs. 93A and 176D, alleging that Vermont Mutual had failed to make a reasonable offer of settlement.  The landlords also counterclaimed, alleging that Vermont Mutual had breached its contract with them.

    Reckless acts, even if they breach ch. 93A, are occurrences

Vermont Mutual argued that because the Superior Court awarded damages for the landlords’ violation of ch. 93A, the fire was not an “accident” within the meaning of the policy.  Therefore, it had no duty to indemnify any damages related to the fire, because the harm that flowed from the landlords’ unfair and deceptive conduct was largely the same as the harm caused by their negligence and breach of covenant of quiet enjoyment.  Moreover, the Superior Court had ruled that the landlords’ violation of ch. 93A was willful or knowing, and therefore the damages were not caused by an occurrence.  

The United States District Court for the District of Massachusetts held in Vermont Mut. Ins.Co. v. Toland, 2022 WL 4481508 (D. Mass.) (unpublished) that an injury that ensues from a volitional act of an insured is still an accident within the meaning of an insurance policy if the insured does not specifically intend to cause the resulting harm or is not substantially certain such harm will occur.  Thus, injuries caused by recklessness are covered as caused by an accident.

The court noted that in the context of ch. 93A reckless conduct is considered willful.  But that does not affect insurance coverage for reckless acts. 

    Insurer's post-judgment settlement offer was unreasonable

The court then examined whether Vermont Mutual breached its duty to make a reasonable offer of settlement.  The court held that the pre-trial settlement offers of $30,000 were not unreasonable.  The insurer could have plausibly believed that the policy did not cover some of the claims brought by the tenants, as there was evidence that the landlords’ conduct was intentional.  In addition, Vermont Mutual believed in good faith that the landlords would prevail at trial, based on Ward’s reports. 

The court held that Vermont Mutual’s offer after verdict but before the 93A ruling was unreasable.  A jury verdict makes liability reasonably (or even “pellucidly”) clear. It would have been reasonable for Vermont Mutual to make a substantial offer, discounting the jury verdict by the likelihood of success on appeal.  Here, the likelihood of a successful appeal was low.  Taking such factors into account, Vermont Mutual’s offer of $112,026 was too low. 

Insurer cannot base post-judgment settlement offer on its self-serving division of damages for covered claims from damages for non-covered claims

Vermont Mutual based its offer on its analysis of the “proportionate share of recoveries” – in other words, what percentage of the verdict pertained to a covered loss.  But, “because Vermont Mutual failed to intervene to allocate damages in the underlying action, it had the burden to establish allocation, and the Supreme Judicial Court has rejected the kind of speculative calculation made by Vermont Mutual – which was effectively an attempt to determine the particular  amount that happened to be in the juror’s minds as they returned the verdict.”   The federal court held that Vermont Mutual’s self-serving figures were not reasonable. 

Multiple damages not awarded, but Vermont Mutual put on notice for future claims

The court declined to award multiple damages on the 93A claim.  The tenants argued that multiple damages were warranted in light of what they claim is Vermont Mutual’s continuing practice of litigating hopeless positions in order to drive inadequate settlements.  The Court ruled that it did not have before it sufficient evidence to compel such a conclusion.  “Vermont Mutual is on notice, however that further such conduct could well warrant Chapter 93A sanctions.” 

Takeaways:

·       What constitutes a reasonable offer of settlement changes as the situation changes.  The court held that Vermont Mutual’s pretrial offers of $30,000 were not unreasonable, given the assessment of defense counsel that the plaintiffs’ claim was weak.  But once there was a jury verdict, liability was “pellucidly” clear, and Vermont Mutual was required to make an offer of settlement based on that understanding. 

·       After a jury verdict an insurer can’t swoop in and claim to know what amount of the verdict was for damages covered by the policy and what amount was for damages not covered by the policy.  The insurer has the burden of establishing allocation, and the proper procedure to do so is to intervene in the underlying trial.  Although not discussed in the decision, intervention would allow the insurer to request special verdict forms in which the jury would say what damages were awarded for what acts.  Otherwise, the insurer must engage in impermissible speculation (or have a later trial on allocation issues).  

        ·   Although the court chose not to award multiple damages under ch. 93A against Vermont Mutual, it had some harsh words for the company.  The court did not discuss what evidence the plaintiffs offered of Vermont Mutual’s alleged practice of litigating hopeless positions in order to drive inadequate settlements.  It merely held that the evidence was insufficient.  But it did put Vermont Mutual on notice that “further such conduct could well warrant Chapter 93A sanctions.”  The court appears to be inviting future litigants to cite this statement as a basis for multiple damages in future 93A claims against Vermont Mutual.  

    Massachusetts Lawyers Weekly quoted me in an article about this case, here.