O  T  H  E  R      D  E  C  I  S  I  O  N  S

Watts Water Technologies, Inc. v. Fireman’s Fund Insurance, 2009 WL 987336
(Mass. Super. April 13, 2009) (Hinkle, J.).

Although this opinion was issued in the second quarter, we report on it now because it is an important case for any practitioner who represents a business or an insurance company. A valve manu-facturer, Watts Regulator Company (“Watts”), filed this action against a number of insurance companies (“insurers”), seeking a declaratory judgment that the insurers had a duty to defend it in hundreds of asbestos personal injury actions across the country. Watts also alleged that the insurers violated Section 9 of Chapter 93A by virtue of having committed unfair insurance claims settlement practices under Chapter 176D, § 3(9).

The insurers moved to dismiss the Chapter 93A claim, arguing that as a matter of law, a business plaintiff cannot bring a claim under Section 9 of Chapter 93A for unfair insurance claims settlement practices. The plaintiff asserted a claim under Section 9 because a violation of Chapter 176D, by definition, is a violation of Section 9 of Chapter 93A (see Hejinian on page 1). Specifically, Section 9 states: “Any person, other than a person entitled to bring action under section eleven of this chapter, . . . or any person whose

rights are affected by another person violating [G.L. c. 176D, §3] may bring an action in the superior court . . .” There is no companion provision under Section 11 of Chapter 93A, which applies to business-to-business disputes. The insurers argued that the above-quoted passage in Section 9 meant that the right to bring an action under Chapter 93A on account of a violation of Chapter 176D was available only to non-business claimants, i.e. those who cannot bring an action under Section 11.

This issue has never been addressed by a Massachusetts appellate court. Applying familiar principles of statutory construction, however, Judge Hinkle held that the legislature did not intend to allow business plaintiffs to recover under Chapter 93A for violations of Chapter 176D the same way as the legislature intended for consumer plaintiffs. Accordingly, the Court dismissed the 93A claim, declaring that a Section 11 business plaintiff may not sue under Section 9 for a violation of Chapter 176D. The remedies available under Section 9 are available only to a person “other than a person entitled to bring action under section eleven of [Chapter 93A]”.

Meaney v. One Beacon Insurance Group, LLC, 25 Mass. L. Rep. 308, 2009 WL 884613
(Feb. 25, 2009) (Neel, J.).

In another insurance dispute, this putative class action concerned plaintiffs’ alleged rights to interest on arbitration awards for uninsured and underinsured motorist benefits. The insurers paid the arbitration awards, but contended that they had no contractual, statutory or common law obligation to pay interest on such awards. The insurers moved for summary judgment on all counts.

The Court held that Plaintiffs were entitled to interest, not by contract (the insurance policies) nor by statute (confirmation of arbitration awards under Chapter 251), but rather under the common law, specifically Murphy v. National Union Fire Ins. Co., 438 Mass. 529 (2003). The Court followed Murphy, in which the SJC held that payment of post-award interest was the “rule in Massachusetts” and was adopted to “encourage swift obedience to the award without the necessity of court proceedings.” Accordingly, the Court allowed the motion for summary judgment insofar as the Plaintiffs’ claims were based on the contract or the arbitration act, but denied the motion insofar as Plaintiffs’ claims were asserted under the

common law. The Court also denied the motion to dismiss the unfair claims settlement practices under Chapter 176D.

The Court then grappled with G.L. c. 232A, §1, which allows a party to a contract to tender payment after an action is commenced and have it be treated as if payment was made at the time provided in the contract. Under this statute, the defendant must tender payment either before the action is commenced or at least four days prior to the date on which an answer must be filed. The Court addressed the timeliness of some of the insurers’ alleged tender, and whether a tender to the named plaintiff was effective as to all putative class members. The results of this analysis varied according to the insurer. Of significance is the Court’s determination that a class action is “commenced,” for purposes of Chapter 232, immediately upon filing, even if a class has not yet been certified. The Court relied on Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293 (1975), in which the Court held that prior to class certification a court should treat a putative class action as a class action for purposes of dismissal or compromise.