LESLIE v. TRAVELERS INSURANCE COMPANY (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiffs appeal from the summary judgment entered in favor of the defendant on the plaintiffs' negligence claim, infliction of emotional distress claims, and violation of G. L. c. 93A or G. L. c. 176D claim.³ We affirm.

1. Background. On behalf of herself and her two minor children, plaintiff Pauline Leslie filed a bodily injury lawsuit against John R. Barrett and his employer, Kingstown Corporation (Kingstown), following a motor vehicle accident in December, 2010. The claims against Travelers Insurance Company (Travelers)⁴ were stayed. The bodily injury claims against Kingstown and Barrett were tried to a jury in December, 2015; these defendants conceded liability. The sole issue for the jury was damages. After a four-day trial, the jury returned a verdict awarding $5,260.80 to Leslie; $5,000 to one minor child; and no damages to the other minor child. A different panel of this court affirmed that judgment in August, 2017.⁵

Travelers was the business automobile liability insurer of Kingstown at the time of the accident. Travelers began investigating the claim, and in January, 2013, made a settlement offer of $185,000 that was rejected by Leslie. The offer was increased in March, 2013, to $195,000; Leslie also rejected that offer. Following an unsuccessful mediation, in March, 2014, Travelers offered $260,000; Leslie again rejected the offer. In February, 2018, Travelers moved for summary judgment. After oral argument, its motion was allowed, and judgment entered for Travelers. After denial of the plaintiffs' motion for reconsideration, this appeal followed.

2. Discussion. a. Summary judgment. A motion for summary judgment is appropriate where “the moving party ․ ‘show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’ based on the undisputed facts.” Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474 (2013), quoting Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). “In reviewing the grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record ․ and view the evidence in the light most favorable to the part[y] opposing summary judgment,” LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012), “drawing all reasonable inferences in [the nonmoving party's] favor.” Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005).⁶

i. Negligence claim. Count I of the plaintiffs' amended complaint is entitled “Negligence against all Defendants.” However, the plaintiffs fail to allege any act or omission of Travelers that contributed to the accident and resultant damages. See Madsen v. Erwin, 395 Mass. 715, 731 (1985). There was no error in the entry of summary judgment on this count.

ii. Infliction of emotional distress claims. Counts IX, X, and XIII of the plaintiffs' amended complaint allege that they experienced emotional distress as a result of the conduct of the defendant's private investigator. While Travelers acknowledged using a private investigator in the course of its business in evaluating personal injury claims, the plaintiffs failed to show that the private investigator who committed the acts of which they complain was actually hired by Travelers. Although the plaintiffs contended that they had “proof” that the investigator worked for Travelers, they never produced any evidence, nor does the summary judgment record contain such evidence. There was no error in the entry of summary judgment on these counts.

iii. Violation of G. L. c. 93A or G. L. c. 176D claims. Count XIV of the plaintiffs' amended complaint alleges that Travelers violated G. L. c. 93A or G. L. c. 176D. The plaintiffs claim that Travelers failed to effectuate a prompt, fair, and equitable settlement of their claims when liability was reasonably clear. Liability, in this sense, encompasses both fault and damages. See Clegg v. Butler, 424 Mass. 413, 421 (1997). The plaintiffs rejected any settlement offer that was less than the limits of Kingstown's insurance policy, even though their ultimate recovery was well less than those limits. Indeed, Travelers's settlement offers were reasonable as the plaintiffs' damages were not clear. As the jury verdicts came in much lower than the most recent offer of settlement, this is further evidence of the reasonableness of the offer. There was no error in the entry of summary judgment on this count.

b. Discovery. The plaintiffs contend that they were denied discovery; however, prior to the stay of the claims against Travelers, the plaintiffs did, in fact, conduct discovery. They have failed to show how further discovery would have been relevant to their claims. See Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 307-308 (1991); Blake Bros. Corp. v. Roche, 12 Mass. App. Ct. 556, 560-561 (1981).

Furthermore, the plaintiffs failed to provide an affidavit showing why they could not “present by affidavit facts essential to justify [their] opposition” in response to the motion for summary judgment, as required by Mass. R. Civ. P. 56 (f), 365 Mass. 824 (1974). This failure is fatal to the argument that the plaintiffs were prejudiced by a lack of discovery. Brick Constr. Corp. v. CEI Dev. Corp., 46 Mass. App. Ct. 837, 840 (1999). There was no error.

c. Remaining claims. The plaintiffs make additional claims regarding the trial in the bodily injury case and the trial judge. These claims are not properly before us and we do not address them. We also pause to note that self-represented litigants are bound by the same rules of procedure as litigants with counsel. Briscoe v. LSREF3/AH Chicago Tenant, LLC, 481 Mass. 1026, 1027 (2019).⁷

Judgment affirmed.

Order denying motion for reconsideration affirmed.

FOOTNOTES

3.   The plaintiffs also appeal from the order denying their motion for reconsideration.

4.   The defendant's brief states that it is submitted on behalf of “Travelers Indemnity Company of Connecticut, misnamed as Travelers Insurance Company.”

5.   Leslie v. Travelers Ins. Co., 92 Mass. App. Ct. 1104 (2017).

6.   The plaintiffs have included in the record appendix voluminous material that is outside of the summary judgment record. Our review is limited to only those materials that constitute the record considered by the Superior Court judge in connection with the motion for summary judgment. See Mass. R. A. P. 18 (a) (1) (A) (v) (a) & (b), as appearing in 481 Mass. 1637 (2019).

7.   To the extent that we have not specifically addressed subsidiary arguments in the plaintiffs' brief, they have not been overlooked. “We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).