In this case, Metropolitan insured both the tortfeasor and the claimant. Conceding clear liability, Metropolitan paid the tortfeasor's policy limit immediately and filed an action to compel arbitration of the policyholder/plaintiff's claim for underinsured motorist benefits. The demand had been for $90,000, the entire monetary coverage available. Discussion ensued between the claimant/insured's attorney and a claim representative. When asked if the claimant would come off the $90,000, his counsel replied that he would settle the case for $89,000.

The claim representative advanced no offer and the arbitration resulted in an award of $25,000 to the claimant/insured. The arbitration award was confirmed in the Court. The claimant then brought the instant bad faith action against Metropolitan. The court tossed aside the argument that the high-handed negotiation technique of the claimant's attorney justified Metropolitan decision not to make an offer. It said where liability is clear and the damages are appreciable, notwithstanding the conduct of the claimant or his or her attorney, the insurer is obligated to make a good faith settlement offer. The trial judge concluded that Metropolitan had acted willfully and knowingly. The Appeals Court found that the proper measure of damages for purposes of multiplication was the amount of the underlying judgment. While an arbitration award itself is not a "judgment," where it is confirmed in court, it becomes a judgment and thus subject to multiplication.

Hanover Insurance Company v. Sutton, 46 Mass. App. Ct. 153.

This was an action brought by Hanover against several defendants, at least one of whom had been an executive with the plaintiff. Essentially the plaintiff claimed that the defendants had diverted a corporate opportunity by establishing a competing business using secret information of the plaintiff, and in breach of fiduciary duty as executives of the plaintiff. The plaintiff complained about an accelerated trial date and a limitation on discovery. These are matters within the sound discretion of the trial judge and will not be disturbed absent abuse. With respect to the jury instructions, the Appeals Court said that the trial judge is not required to include every correct statement of law in the jury instructions. Instructions pass muster if they are correct and touch upon the fundamental elements of a claim. The standard for a motion for judgment NOV is the same as that for a directed verdict. Rarely can it be ruled as a matter of law that the party with the burden of proof is entitled to a directed verdict. An executive with a corporation has a fiduciary duty to put the interests of the corporation with respect to business opportunities ahead of his or her own interests. The jury found the former employee had not diverted a corporate opportunity. However, the Appeals Court sustained the allowance of the motion for judgment NOV by the employer on the basis that there was sufficient evidence that the employee was aware of the opportunity and failed to disclose it to his principal, rather diverting it to his own benefit. The measure of damages for such an infraction is the profit which the employee who diverted the corporate opportunity obtained as a consequence of his misfeasance.

The trial court's finding of a violation of G.L.c. 93A, although nominal, supported the award of attorney's fees. Merely because an employer is precluded from suing its employee pursuant to that statute, the employer is not barred from recovery pursuant to G.L.c. 93A against the entity for whom the employee had diverted the corporate opportunity. With respect to the award of attorney's fees, the Appeals Court indicated that the trial judge is in the best position to evaluate the work of the attorneys. However, the depth of the effort and expense must bear a reasonable relationship to what is at stake.

American Shooting Sports Council, Inc. v. Attorney General, 429 Mass. 871.

This was an action brought by a firearms industry group seeking a declaration that a regulation promulgated by the Attorney General with respect to the sale of firearms was invalid. It said that the Attorney General exceeded his authority. The plaintiff took the position that the Attorney General is empowered to issue regulations pertaining to economic interests, but not to dictate the specifications for products sold in this state. Regulations at issue had to do with trigger locks and the length of the gun barrel. G.L.c. 93A § 2 authorized the Attorney General to establish regulations to prevent unfair and deceptive acts or practices. The SJC concluded that the Attorney General had authority to promulgate regulations concerning the sale of handguns with certain safety and performance requirements pursuant to G.L.c. 93A.

Tarpey v. Crescent Ridge Dairy, Inc., 47 Mass. App. Ct. 380.

Essentially, this was a product liability action against the producer of dairy products, specifically milk which contained excessive amounts of Vitamin D. The plaintiff's decedent purportedly suffered from elevated levels of Vitamin D in her bloodstream which required medication which in turn allegedly compromised her immune system, leading to her death. The plaintiff's appealed with respect to the admission of testimony by the defendant's medical/scientific expert. The expert had relied upon scientific findings performed in a California laboratory. Neither the principal nor any of the employee's of the lab testified as to their findings. There was also an issue as to whether their methodology was accepted by a substantial portion of the scientific community. The admission of the defendant's expert's testimony was affirmed without the admission of the tests upon which his opinion rested. The Appeals Court remarked that even if the testing methodology had not been accepted by a significant portion of the scientific community, it could be so logically reliable that its general acceptance may be unnecessary. The Appeals Court also pushed aside the plaintiff's contention that there were inconsistent answers in response to the special verdict questions. It pointed out that the plaintiffs had failed to raise the issue in a timely fashion before the jury was dismissed. Moreover, it found that the trial judge's instruction meshed with the verdict slip so that there was no inconsistency. It also reaffirmed the proposition that if there are inconsistent responses to special verdict questions, the dispositive answer is controlling.

With regard to the 93A claims, the Court indicated that the demand letter in a consumer claim need not be sent prior to litigation but instead could be sent during litigation, and become effective upon the allowance of a motion to permit the plaintiff to amend the complaint to include a 93A count. Here, the trial court on the 93A count award specifically denominated compensatory damages which were greater than those awarded by the jury. This is permissible. However, the award of attorney's fees in conjunction with the 93A claim was reversed as no recovery for attorney's fees could be had prior to the amendment of the complaint to include the 93A count, and inasmuch as there was a sizeable and reasonable offer made, no attorney's fees could be recovered after receipt of the same. The defendants, by motion pursuant to Rule 67, sought to deposit $200,000 with the Court to avoid the accrual of statutory interest. The motion was properly denied according to the Appeals Court because the defendants continued to contest liability.

Green v. Blue Cross & Blue Shield of Massachusetts, Inc., 47 Mass. App. Ct. 443.

This is a dispute over health insurance coverage. The plaintiff suffered from an unusual affliction requiring jaw surgery. Prior to undertaking the procedure, the plaintiff contacted BCBS on a number of occasions to determine the cost and the coverage. BCBS was less than forthcoming with regard to the same. The plaintiff elected to have the surgery performed in Texas. Prior thereto, the surgeon provided the plaintiff with a letter setting forth the anticipated costs of the procedure. This letter was shared with BCBS. The Appeals Court reversed the finding of both the district court judge and the appellate division of the district court to the effect that the plaintiff had failed to seek information concerning the pricing. Non-Massachusetts physicians were permitted to bill the patient for the balance of the charges after deduction for the insurance payment. Thus, the issue of cost was significant to the plaintiff. The Appeals Court found that BCBS failed in its obligation under 93A to deal with its insured with candor and fairness. The evidence demonstrated that BCBS was able to compute their payment share when called upon to do so after the procedure. BCBS had breached its duty of good faith and fair dealing. The matter was remanded for damages and attorney's fees.

Columbia Chiropractic Group, Inc. v. Trust Insurance Company, 430 Mass. 60.

This action was brought by a chiropractic group pursuant to G.L.c. 93A against Trust for its refusal to pay medical expenses incurred in the treatment of insureds following motor vehicle accidents. Trust counterclaimed, also under 93A, alleging that the medical expenses were neither reasonable nor necessary, and were incurred solely for the purpose of surmounting the tort threshold created by G.L.c. 231 § 6D. The jury rendered an advisory verdict with respect to the 93A claims, finding that the bills were neither reasonable nor necessary, and that Trust should not have to honor the same. Based upon that, the Court reached a similar conclusion and awarded double costs and fees against the chiropractic group. On appeal, the chiropractic group asserted that the matter should not have been adjudicated in the superior court, but rather by the doctrine of primary jurisdiction, it was regulatory in nature and should have been resolved before the Board of Registration of Chiropractors. The SJC dismissed this argument inasmuch as said agency had no authority to adjudicate 93A litigation and that the reasonableness and necessity of medical bills was appropriately decided by a judge or jury. The advisory jury found that Trust had incurred no damages but the judge was free to ignore that conclusion and to award Trust its litigation expenses. The incurrence of attorneys' fees and litigation costs constitute a loss of money or property and are recoverable as 93A damages. With respect to the chiropractic group's assertion that Trust should only recover fees and costs incurred in the prosecution of the 93A claim, and not fees and costs incurred in the defense of the chiropractic group's claim, the SJC found that the disputes involved the same facts and there was no need to apportion counsel fees.