LIFCHITS v. PROGRESSIVE CORPORATION (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Pavel Lifchits, appeals from a decision and order of the Appellate Division of the District Court that affirmed the dismissal of his complaint for failure to state a claim upon which relief may be granted. We affirm.

Like the Appellate Division, we are hindered in our review by Lifchits's failure to provide us with a copy of his complaint. It is “a fundamental and long-standing rule of appellate civil practice” that the appellant has an obligation “to include in the appendix those parts of the [record that] are essential for review of the issues raised on appeal ․” Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 372-373 (1991), S.C., 411 Mass. 807 (1992). While we recognize that Lifchits is self-represented, he is nonetheless required to comply with the Massachusetts Rules of Appellate Procedure. See Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183, 184 (1994).

The Appellate Division understood the case to have arisen as follows:

“Lifchits claims that his automobile was damaged because of the negligence of a Progressive insured, Edward Kunath (‘Kunath’), a New York resident, in an accident that occurred on January 9, 2018 on Route 95 in Connecticut. Progressive appraised the vehicle and attempted to negotiate a resolution to the property damage claim. The parties, however, were unable to reach an agreement.

“Lifchits filed a complaint against Progressive in Framingham District Court. Progressive's motion to dismiss was allowed because the motion judge concluded that Lifchits had no right to bring a direct action against a third-party liability insurer.”

The Appellate Division affirmed on the following basis:²

“It is established law in Massachusetts that an injured party may not maintain a cause of action against a liability insurer for the actions of its insured. See Tessier v. State Farm Mut. Ins. Co., 334 F. Supp. 807, 809 (1971), which was affirmed by the U.S. Court of Appeals in 458 F.2d 1299 (1st Cir. 1972). An injured party's right to proceed against the insurer is a two-step process. First, a judgment must be obtained against the insured. Then, if the judgment is not satisfied, the insurer may be pursued by a bill to reach and apply. Id. at 1300.

“In the instant case, Lifchits does not have a judgment against the insured of Progressive. In short, Lifchits sued the wrong entity. He needed to file suit against Kunath, not Progressive.”

The First Circuit explained that “[t]he most obvious reason for the two steps is that the insurer may have a defense, vis-a-vis its insured ․ such as a breach of the cooperation clause. Cf. Potter v. Great American Indem. Co., [316 Mass. 155, 157 (1944)]; Goldstein v. Bernstein, [315 Mass. 329, 333-334 (1943)]. Manifestly it is procedurally difficult, and sometimes perhaps substantively impossible, to raise this defense in conjunction with the original tort action.” Tessier, 458 F.2d at 1300.

We see no error or abuse of discretion in the Appellate Division's reliance on the Tessier cases to affirm dismissal of the complaint. In his brief, Lifchits appears to argue that the Tessier cases should apply only to cases in which an insurer has not voluntarily acknowledged responsibility. He suggests that because here, Progressive “recognized its responsibility for [the] accident and paid compensation” but determined “the amount of compensation itself contrary to [Lifchits's] objections,” his dispute is with Progressive rather than Progressive's insured, Kunath. Lifchits's argument, although unclear,³ appears to be that Progressive is estopped to deny its own liability to Lifchits.

Whatever the merits of such an argument as a general matter -- and we express no view on that question -- we are unable to determine whether and how it might apply here. Without Lifchits's complaint before us, we do not know what it alleged about Progressive's acknowledgment of liability, the course of any dispute between Lifchits and Progressive about the amount of such liability, or the insured's cooperation or lack thereof with Progressive. Nor do we know whether the complaint alleged facts that might state a claim under G. L. c. 93A or G. L. c. 176D.⁴ We therefore are constrained to affirm the dismissal of Lifchits's complaint.

Decision and order of Appellate Division affirmed.

FOOTNOTES

2.   The Appellate Division noted the assertion in the defendant's motion to dismiss “that United Financial Casualty Company is a company engaged in the business of insurance” and that “Lifchits incorrectly sued United Financial Casualty Company as Progressive.” The Appellate Division did not rely on that claimed pleading defect in affirming the dismissal of the complaint, and neither do we.

3.   Lifchits's assertions do not meet the requirements for a developed argument set forth in Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1629-1630 (2019). See Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 540 (2014).

4.   Without the complaint itself before us, oral argument would serve no purpose, and thus Lifchits's motion seeking such argument is denied.