River Farm Realty Trust v. Farm Family Casualty Ins. Co.

United States Court of Appeals
For the First Circuit

No. 19-1188

RIVER FARM REALTY TRUST; PAUL R. DERENSIS; LINDA DERENSIS,

Plaintiffs, Appellants,

v.

FARM FAMILY CASUALTY INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta,
Circuit Judges.

James T. Hargrove, with whom Brooks & DeRensis PC was on
brief, for appellants.
William A. Schneider, with whom Morrison Mahoney LLP was on
brief, for appellee.

November 19, 2019
 LYNCH, Circuit Judge. River Farm Realty Trust, Paul

DeRensis, and Linda DeRensis ("River Farm") sued their home

insurer, Farm Family Casualty Insurance Company ("FFI"), alleging

breach of contract and violations of Massachusetts General Laws

chapters 93A and 176D in how the insurer handled their claim for

residential property damage. The district court entered summary

judgment for the insurer, concluding that, on this record, no

reasonable jury could find that FFI violated chapter 176D or was

in breach of the policy. We affirm.

I.

A. Facts

Because we are reviewing the grant of summary judgment,

we take all inferences from the facts in favor of River Farm.

Carlson v. Univ. of New Eng., 899 F.3d 36, 43 (1st Cir. 2018). We

add that there are no material facts in dispute.

River Farm is a realty trust which holds title to 262

South Main Street in Sherborn, Massachusetts. Paul and Linda

DeRensis reside on this property. In October 2014, FFI issued

Special Farm Package "10" to River Farm Realty Trust for the policy

period of November 15, 2014, to November 15, 2015.1

1 A separate policy, not at issue in this case, was issued
to Paul DeRensis for the same policy period and provided coverage
for personal property loss.

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 The policy provides that, in the event of a covered

property loss, FFI would pay the least of the following:

(a) the applicable limit of liability; (b) an
amount not greater than [the insured’s]
interest in the property; (c) the cost of
repairing or replacing the property with
materials of equivalent kind and quality to
the extent practicable; (d) the amount
computed after applying the deductible or
other limitation applicable to the loss; or
(e) the ACTUAL CASH VALUE of the property at
the time of loss (except as provided under the
Replacement Cost Provision, if applicable).

The policy defines "actual cash value" as "the amount it would

currently cost to repair or replace the covered property with new

material of like kind and quality, less allowance for physical

deterioration and depreciation, including obsolescence."2 The

liability limit under the policy was $1,263,807 in total, and

$729,987 was the limit of liability for the River Farm residence

at 262 South Main Street.

The policy also contained an amendment that was specific

to Massachusetts. Under this amendment, the insured must provide

the insurer with a "signed, sworn statement in proof of loss."

That proof of loss triggers the obligation of the insurer, within

thirty days of the insured submitting this statement, to "either

2 Because there were no such expenses, not at issue in
this appeal is another policy provision that stated if the insured
entity was a residence and became uninhabitable because of a
covered loss, FFI would pay for living expenses for at most two
years "for the necessary and reasonable increase in living costs
[the insured] incur[s] to maintain the normal standard of living."

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pay the amount for which it shall be liable, which amount if not

agreed upon, shall be ascertained by award of referees . . . or

replace the property with other of the same kind and goodness."

If the insurer fails to comply with the policy within thirty days

of receiving the statement of loss, it is liable for “the payment

of interest to the [insured] at a rate of one percent over the

prime interest rate on the agreed figure.”

The Massachusetts amendment to the policy also allowed

each of the insured and the insurer to seek a "Reference" if they

disagreed as to the amount of loss. Massachusetts law requires

insurance contracts to include this procedure. See Mass. Gen.

Laws ch. 175, § 99.3 The award selected by a majority of the

referees "shall be conclusive and final upon the parties as to the

amount of loss or damage."

In February 2015, ice dams formed at the River Farm

property. Due to the thawing and refreezing of the ice dams

through February and early March, water leaked into the residence.

The DeRensises first contacted FFI by phone on an unspecified date

around March 3, 2015, to notify it of the damage to the River Farm

residence but kept no documentation of the call. FFI asserts that

3 Under the Reference procedure, the parties refer the
question of the amount of loss to "three disinterested men, [FFI]
and [River Farm] each choosing one out of three persons to be named
by the other." Those two referees choose a third referee.

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it has no formal record of such a call but acknowledges that notice

of damage to the residence was given.

On April 27, 2015, Paul DeRensis emailed FFI about a

separate open claim that River Farm had filed with FFI. That same

day, Paul DeRensis received an email from Mark Chilton, an adjuster

from FFI who handled claims made by the DeRensises under different

FFI policies.4 The email stated:

I must apologize. Unfortunately when your
claims arrived at Farm Family they were set up
as one singular claim where in fact there are
two separate and distinct claims being
asserted. Once I had recognized the issue of
two claims and separated them a record keeping
issue came to light. . . . [T]he independent
claim numbers became interchanged. As you can
see one minor issue led to a number of
problems. . . . I will work to see you receive
our coverage determination ASAP. Again, I
apologize for the confusion and delay.

Within a week, on May 4, 2015, FFI assigned Scott Howard,

a Senior Claim Representative, to the River Farm property damage

claim. That same day, Howard sent Paul DeRensis a letter

acknowledging receipt of the claim and asking Paul DeRensis to

give him a call if he had any concerns. Also on the same day,

Howard selected Dineley Claims Services, a Massachusetts

adjustment company that he had used in the past, to handle the

4 River Farm had several open claims with FFI. These other
claims included a workmen's compensation claim, a tenant dispute,
a claim referred to as "Arizona mistaken identity claim," and a
claim referred to as "Donalds."

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estimates needed. Dineley Claims Services assigned adjuster Mark

Whidden to the claim. Howard told Paul DeRensis that FFI would be

sending a representative to the property.

On May 20, 2015, Whidden inspected the residence in the

presence of Paul DeRensis. Whidden prepared an estimate5 of the

damage and mailed it to the DeRensises in June 2015. Whidden

estimated that the loss to the River Farm residence, less the

deductible and depreciation, was $17,825.95.6 Both River Farm and

the insurer were given a copy of this estimate. The estimate

included a statement that the adjuster had "reached an agreement

of scope for the repairs with the insured as viewed at [the]

inspection."

5 We use the term "estimate" to refer to a prepared report
that determines the amount of money it will take to repair property
loss.
6 Whidden's estimate broke down the loss by area of the
residence and, within each area, itemized the repairs to be made
and the costs to conduct those repairs. The areas covered by the
estimate were the roof, living room, kitchen, dining room, foyer,
library, "Lindsay's bedroom," and "general" costs. Within each
area, the estimate listed up to twenty necessary repairs. Examples
of such itemized repairs include removing and replacing
insulation, removing and replacing drywall, removing and replacing
cabinetry, removing and reinstalling appliances, removing and
replacing wallpaper, removing and replacing crown moldings,
painting, and construction clean-up costs. The estimate also
includes $1,365.87 for the application of mildewcide to the walls,
ceiling, or both in the living room, kitchen, dining room, foyer,
library, and "Lindsay's bedroom." The estimate also included
thirty-four photos of damage to the residence.

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 River Farm did not immediately notify the insurer or

adjuster that it disputed this estimate in whole or in part. Nor

did River Farm inform either the insurer or the insurer's appraiser

that River Farm intended to contact contractors to get independent

estimates. Neither the insurer nor its adjuster received any

response to Whidden's estimate for close to five months.

On November 13, 2015, Linda DeRensis faxed a letter to

Whidden, stating that the DeRensises had consulted with three local

contractors, each of whom examined different aspects of the damage,

and "discovered that the estimate [Whidden] provided [was] not

consistent with local contractors' estimates." That letter

contained estimates of a total loss of $154,769.93.7 This letter

was the first notice of any disagreement by River Farm as to the

insurer's estimate of the recoverable loss.8

7 Attached to their letter requesting $154,769.93, the
DeRensises included estimates as to different aspects of the damage
from three local contractors. The first contractor document, from
C&L Construction, contained an undated, itemized estimate that
interior repair would cost $50,600. The second contractor, Mark
E. O'Connell, gave a nonitemized estimate, dated November 5, 2015,
for the cost of wallpaper and paint of $14,670. The third
contractor, Bob Rogers Roofing, provided a nonitemized estimate,
dated October 27, 2015, of repairs to the roof of $27,940. Bob
Rogers Roofing also estimated that replacing rotten and damaged
plywood may cost up to an additional $9,000, which the DeRensises
added to the $27,940 figure in their request to FFI under the label
of "roof repair." We note that River Farm's briefing does not
ever discuss the itemization of the various estimates.
8 In addition to the three estimates determined by
contractors, the letter also sought additional costs including

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 The insureds do not allege that Howard ever told them to

go hire these contractors. At deposition, Linda DeRensis stated

that she had not invited either Whidden or Howard to the property

to accompany the contractors.

It appears that Dineley Claims Services' records show

receipt of the DeRensises' letter around November 16, 2015. When

Whidden had not immediately replied to the letter, Linda DeRensis

called Whidden on an unspecified date between November 13 and

November 24.9

FFI received the November 13 letter on November 24 and

Howard immediately attempted to contact the DeRensises. That same

day, Howard emailed Paul DeRensis that (1) he had received the

contractor estimates in the November 13 letter, (2) he had tried

unsuccessfully to reach Paul DeRensis by phone earlier that day

and left him voicemail messages, and (3) he requested a call to

"see what we can do to get this resolved for you." Paul DeRensis

replied by email on that same day stating:

over $42,000 for anticipated hotel costs and furniture damage.
When these costs are removed, the sum sought was $112,134.93.
9 River Farm's amended complaint asserts that Whidden
"falsely" told the DeRensises that he never received the three
estimates and that Whidden and Richard Dineley of Dineley Claims
Services told them that they had already received payment for their
claim. But River Farm did not depose Whidden or Dineley, nor did
it provide any affidavits or other evidence about such statements.
Regardless, it is clear that both Whidden and Dineley acknowledged
the dispute and lack of payment by November 25, 2015, and River
Farm does not argue it suffered any damages from this.

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 Given how badly this claim handling has been
botched, I am consulting an attorney this
morning, not withstanding the requests from
the adjuster to "start over" and forget the
past. . . . Every contractor we had to on our
own find to provide real estimates of this
loss told us that the adjusters were not
acting in good faith, and from recent
conversations with them they present as
basically scam men. . . . I understand that
in Massachusetts we may be entitled to treble
damages arising out of the bad faith botch up,
plus legal fees, so your exposure is well over
a half million and rising fast.

This was the first written notice to the insurer of any claim that

its adjuster had acted in bad faith. Thereafter, the insurer

communicated with River Farm's attorney. On November 24, Attorney

James Hargrove emailed Howard to inform him that he would be

representing the DeRensises and stated that he hoped to speak about

the matter the following week.

On November 23, Linda DeRensis sent an email to Richard

Dineley thanking him for taking her call, reiterating her

dissatisfaction with Whidden, and stating that Whidden's estimate

did not reflect the damage done to the River Farm residence.

Within two days, at the request of Linda DeRensis, on November 25,

2015, Dineley assigned the DeRensises' claim to a new adjuster.

On December 1, 2015, Dineley sent another email to Linda DeRensis

asking her to contact an adjuster named "Paul." But then, on

December 2, 2015, Dineley explained he had made a mistake and

confused her claim with the claim of a different "Linda," and told

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her that he had assigned Bryan Grandmont to the River Farm claim.10

A few minutes later, Grandmont emailed Linda DeRensis that he was

waiting for her attorney's contact information to proceed with the

claim.

River Farm does not dispute that between November 24,

2015, and February 16, 2016, Attorney Hargrove corresponded with

Howard, and vice versa, mostly via email and phone. The plaintiffs

say that their claim was not resolved during this period from

November to February because FFI asked them to get a new estimate

of the loss to the River Farm residence.

10 Dineley Claims Services' undisputed business records
document the travel of the DeRensises' claim:
1. Receive claim 5/20/2015
2. [I]nsured answered phone on 5/25/2015
. . . Scheduled inspection date
3. [I]nspected loss 5/26/2015 with only Paul
DeRensis present . . . Reached agreed scope.
4. [U]ploaded estimate/final report into
portal 5/29/2015
5. [R]eceived phone call from the insured's
wife on 11/23/2015 stating check was not
received and black mold now present. Also
claiming our estimate is not enough to make
needed repairs. The insured stated no repairs
have been made to date. Our photos taken on
date of inspection shows the roof and siding
to be very old. Only one shingle was found to
be damaged. Interior showed small scattered
areas of damage.
6. 11/23/2015 reviewed letter from insured
and telephoned the insured three times with no
answer.
7. File reopened/reassigned to local
adjuster[.]

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 The emails reveal that on December 3, 2015, Attorney

Hargrove told Howard that he was waiting on a new estimate from a

local contractor. Howard replied the same day and told Attorney

Hargrove to contact him whenever he was ready to discuss the claim.

Howard and Attorney Hargrove then set up a phone conversation on

December 4, 2015. On December 17, 2015, Howard emailed Attorney

Hargrove to follow up on their phone conversation and to ask if

the plaintiffs had received the new estimate. Attorney Hargrove

responded via email the same day and stated that he had not yet

received the estimate. Howard again followed up via email on

January 29, 2016, to check on the status of the new estimate.

No new estimate was sent to Howard until February 16,

2016, when Attorney Hargrove emailed Howard a "preliminary

statement of loss and associated estimates," which claimed the

loss was $236,438.11 This was a $81,668.07 increase over the

insured's estimate of loss of $154,769.93 three months before.

That same day, Howard acknowledged receipt of the

estimate and then contacted Attorney Hargrove on February 24,

2016, to set up a time to discuss the claim. Given the increase

in the insured's estimate, FFI requested that its estimator

11This estimate was largely generated by a new contractor
named Lincoln Barber. Barber compiled estimates from several other
contractors that estimated the total cost to repair the residence
would be $208,498. Also included with this request was the prior
estimate of $27,940 to repair the roof.

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reinspect the River Farm residence. On February 29, 2016, Howard

confirmed that his independent adjuster, Grandmont, would be

present at the second inspection.

The second inspection by the insurer's agent took place

on March 2, 2016, within fifteen days of the date of Attorney

Hargrove's new estimate. Present at this inspection were Howard,

Grandmont, Linda DeRensis, Attorney Hargrove, and contractor

Lincoln Barber.

On March 18, 2016, FFI received and sent to Attorney

Hargrove Grandmont's new, increased estimate for FFI, which

determined that the loss to River Farm (but not including the roof

damage),12 less the deductible and depreciation, was $28,005.21.

FFI then issued payment to the DeRensises for $28,005.21. The

DeRensises disagreed with this amount and on March 28, 2016,

Attorney Hargrove sent a letter to Howard demanding Reference on

behalf of the DeRensises pursuant to Massachusetts General Laws

chapter 175, section 99.

The Reference proceeding, a two-day hearing, was

conducted in June/July 2016. The insurer states, and River Farm

12 The Grandmont estimate for FFI did not include any sum
for roof repairs, nor did it purport to do so. The insurer
explained that Grandmont was unable to inspect the roof because
the DeRensises' roofing contractor had covered the roof with tarps
and did not come out to remove the tarps before the inspection.
The insurer offered to pay for the roofing contractor to come back
to remove the tarps, but the DeRensises asked for a check before
the work was done, and no check was issued.

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does not dispute, that the parties agreed on a figure, not provided

to us, for the roof repairs, and submitted that figure to the

Reference Panel.13 Putting aside any sum for roof repairs, FFI

requested that the referees find that Grandmont's inspection

correctly determined the remaining amount of loss. River Farm's

requests to the Reference Panel changed over time. On June 3,

2016, River Farm claimed that the building loss on an actual cash

value basis was $240,173.45, but on June 27, 2016, River Farm

increased its estimate to $257,997.97.

In its closing memorandum to the Reference Panel, the

insurer provided its explanation for the varying estimates and

demands over time:

This was not a situation where the insureds
disclosed information in a timely fashion
sufficient to allow the insurance company to
conduct a reasonable investigation based upon
. . . all available information before having
to address new claim material at Reference.
Putting those issues aside, the view of the
insured's residence in evidence did not
support the insured's total building claim of
$240,173.00 on a replacement cost basis.

On July 20, 2016, the Reference Panel determined that

the "Building Replacement Cost Loss," including the roof, was

13 In its closing memorandum to the Reference Panel, the
insurer further explained that a new roofer met with a contractor
named Mark Dill of Bergeron Construction and the two agreed on the
scope of loss to the roof. For this reason, the insurer requested
that the Panel disregard the plaintiffs' estimate from Bob Rogers
Roofing.

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$153,208 and the amount recoverable on an actual cash value basis

was the lesser sum of $137,888. On August 17, 2016, FFI paid the

DeRensises the actual cash value amount determined by the Reference

Panel less the amount already paid, for a total of $109,882.78.

On September 22, 2016, Attorney Hargrove wrote to FFI

demanding payment of $147,397.77, which included legal fees,

Reference expenses, and an "Additional Reference Award," based on

alleged violations of Massachusetts General Laws chapters 93A and

176D.

FFI responded on October 21, 2016, and offered the

DeRensises $7,766.58, which reflected six percent interest on the

funds River Farm was unable to use during the course of the

dispute. FFI sought a signed release in return, but the DeRensises

refused and the $7,766.58 was not paid to them.

In January 2017, the DeRensises sought14 from the insurer

a six-month extension of the two-year period under the policy to

submit different claims for the cost of replacement to the

residence and additional living expenses. FFI declined.

B. Procedural History of the Litigation

On November 23, 2016, River Farm filed an unverified

complaint against FFI, alleging breach of contract and violations

14The DeRensises did not allege that they incurred
additional living expenses, nor did they submit any documents
showing repairs made to the residence.

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of chapters 93A and 176D. We describe the allegations in the

analysis below.

On June 8, 2017, FFI moved for summary judgment,

supporting its motion with twenty-seven exhibits that documented

the insurer's communications with the insureds throughout the

dispute, the estimates of both FFI adjusters, the estimates from

the plaintiffs' contractors, Dineley Claims Services' internal

claim notes, the depositions of Scott Howard and Paul and Linda

DeRensis, the plaintiffs' pre-hearing memoranda submitted to

Reference, and the final Reference award.

River Farm opposed, relying on copies of the email and

mail correspondence between FFI and River Farm, the depositions of

Scott Howard and Paul and Linda DeRensis, the internal policies of

FFI, claim notes from Dineley Claims Services employees, the two

estimates from FFI, the plaintiffs' own estimates from November

and February, portions of the materials submitted to the Reference

Panel by both parties, and the Reference award. River Farm did

not depose anyone besides Howard. Nor did it submit affidavits

from the DeRensises, offer any evidence or argument as to insurance

industry standards, or provide any evidence that what FFI did was

in violation of any such standards.

The district court granted FFI's summary judgment motion

on February 4, 2019. River Farm Realty Tr. v. Farm Family Cas.

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Ins. Co., 360 F. Supp. 3d 31, 46 (D. Mass. 2019). River Farm

timely appealed.

II.

We review the district court's grant of summary judgment

de novo, taking the facts and drawing all reasonable inferences in

the light most favorable to the nonmoving party. Rando v. Leonard,

826 F.3d 553, 556 (1st Cir. 2016). Summary judgment is appropriate

where "there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). As a federal court sitting in diversity, we apply

Massachusetts law. Mulder v. Kohl's Dep't Stores, Inc., 865 F.3d

17, 20 (1st Cir. 2017).

Massachusetts law is quite clear that summary judgment

may be appropriately entered in insurance coverage disputes under

chapter 176D. See, e.g., Bobick v. U.S. Fid. & Guar. Co., 790

N.E.2d 653, 654 (Mass. 2003); Silva v. Steadfast Ins. Co., 35

N.E.3d 401, 408 (Mass. App. Ct. 2015). It is also quite clear

that the boundaries of what are viable claims under chapter 176D

are matters of law for the court to decide. See Silva, 35 N.E.3d

at 408 (stating, in the context of assessing a grant of summary

judgment to the insurer on the plaintiff's chapter 176D claim,

that "the boundaries of what may qualify for consideration as a

[G.L.] c. 93A violation is a question of law" (alteration in

original) (quoting Chervin v. Travelers Ins. Co., 858 N.E.2d 746,

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759 (Mass. 2006))). Summary judgment is appropriate where the

insurer's actions fall outside those boundaries. See id. at 407-

08.

A. Chapter 176D Claim

River Farm argues that the district court erred in

concluding that no reasonable jury could find that FFI had violated

Massachusetts General Laws chapter 176D. River Farm on appeal

most heavily relies for its chapter 176D claim on two basic

theories. It says a violation of chapter 176D is established by

the amount of time which FFI took to resolve the claim from the

first notice of a claim in March 2015 to the Reference award in

July 2016. It also argues that such a violation is established by

the disparity in amounts between FFI's estimates, River Farm's

demand in November, and the final Reference award.

The pertinent state law, chapter 176D, section 3 states

that "unfair claim settlement practices" constitute "unfair

methods of competition and unfair or deceptive acts or practices

in the business of insurance." Mass. Gen. Laws ch. 176D, § 3.

Subsection 9 of section 3 lists fourteen acts or omissions that

constitute "unfair claim settlement practice[s]." Id.

§ 3(9)(a)-(n). For a consumer plaintiff, a violation of

chapter 176D, section 3(9) constitutes a violation of chapter 93A.

See Polaroid Corp. v. Travelers Indem. Co., 610 N.E.2d 912, 917

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(Mass. 1993).15 But a plaintiff engaged in "trade or commerce" may

only use a violation of chapter 176D as evidence of a chapter 93A

violation. See id. Like the district court, we treat this as a

section 9 case, but do not think the result would be different

under section 11. This case is resolved on its particular facts,

not on broad statements utilizing per se rules under Massachusetts

chapter 176D law.

The central inquiry under chapter 176D is the

reasonableness of the insurer's actions, regardless of whether the

plaintiffs are consumers or engaged in trade or commerce. See

Bobick, 790 N.E.2d at 658. "The standard for examining the

adequacy of an insurer's response to a demand for relief under

G.L. c. 93A, § 9(3) is 'whether, in the circumstances, and in light

of the complainant's demands, the offer is reasonable.'" Id.

15 The district court stated that the Supreme Judicial
Court (SJC) decisions in this area show that chapter 176D should
be read "narrowly," relying on Van Dyke v. St. Paul Fire & Marine
Ins. Co., 448 N.E.2d 357, 362 (Mass. 1983), and Morrison v. Toys
"R" Us, Inc., 806 N.E.2d 388, 393 (Mass. 2004). We do not read
these cases to support this statement.
River Farm argues that the district court relied on
irrelevant case law because the relationship between River Farm
and FFI was that of insured and insurer, not the more adversarial
third-party-insurer relationship. But the SJC has stated that
both types of relationships are covered by chapter 176D. See Clegg
v. Butler, 676 N.E.2d 1134, 1139 (Mass. 1997). Further, the case
law that River Farm provided in support of this position at oral
argument, Brandley v. U.S. Fid. & Guar. Co., 819 F. Supp. 101 (D.
Mass. 1993), does not support this view and this opinion was
subsequently withdrawn and vacated.

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(quoting Clegg v. Butler, 676 N.E.2d 1134, 1140 (Mass. 1997)).

Ordinarily, mere negligence by an insurer "does not represent an

unfair or deceptive act." Boyle v. Zurich Am. Ins. Co., 36 N.E.3d

1229, 1241 (Mass. 2015). It may be that evidence of bad faith is

also required. See Guity v. Commerce Ins. Co., 631 N.E.2d 75, 77-

78 (Mass. App. Ct. 1994) ("An absence of good faith and the

presence of extortionate tactics generally characterize the basis

for a c. 93A--176D action based on unfair settlement practice.").

Further, the SJC has rejected the proposition that an insurer must

provide "evidence of insurance industry practices in similar

circumstances and expert testimony" in order to prove that it acted

reasonably. Bobick, 790 N.E.2d at 659.

The insureds' claims are paraphrases of the wording of

several sections of chapter 176D, section 3, representing the two

general themes outlined above.

1. Length of Time to Resolution

We deal first with the insured's argument that FFI

"fail[ed] to acknowledge and act reasonably promptly upon

communications with respect to claims arising under insurance

policies." Mass. Gen. Laws ch. 176D, § 3(9)(b). We break down

the argument, as to the different periods of time.

As to the period of time between River Farm's report of

the claim in early March and the reply from FFI on April 27, there

is no evidence that this time period was unreasonable, and

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certainly no evidence it occurred out of a desire to delay or bad

faith. See Doe v. Liberty Mut. Ins. Co., 667 N.E.2d 1149, 1153

(Mass. 1996) (granting summary judgment to insurer on chapter 176D,

section 3(9)(b) claim even though insurer failed to respond to

plaintiff for six months in part because nothing in the record

showed the delay was "the result of bad faith or ulterior

motives"). FFI explained its delay in responding as a result of

its confusion as to several outstanding claims, and then promptly

sent an adjuster to the property. Even if there was negligence by

FFI, negligence is not enough to show a chapter 176D violation.

See Boyle, 36 N.E.3d at 1241.

We next look to the period between the first estimate

by the insurer's agent in June 2015 and the response from the

insureds in November and thereafter. The DeRensises did not inform

FFI that they disagreed with the estimate or that they were seeking

separate estimates as to the damage. Once the DeRensises sent the

letter to the adjuster on November 13, FFI timely responded via

email on November 24, the day FFI received the letter. From that

date on, FFI regularly corresponded with the DeRensises' attorney

by email and phone to get the matter resolved. FFI also complied

with the Reference procedure once invoked. River Farm points to

no evidence that FFI acted unreasonably in the time it took to

respond.

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 We turn to River Farm's assertion that the insurer

"fail[ed] to affirm or deny coverage of claims within a reasonable

time after proof of loss statements [had] been completed." Mass.

Gen. Laws ch. 176D, § 3(9)(e).16 We see no evidence that the

insurer denied coverage at any time. The dispute was about

estimates of loss, not coverage, and as said above, FFI

continuously was in touch with River Farm's attorney about the

differences in estimated loss until River Farm invoked Reference

in March 2016. No reasonable jury could conclude that FFI

"fail[ed] to affirm or deny coverage of claims within a reasonable

time." Id.

River Farm next argues that FFI "fail[ed] to effectuate

prompt, fair and equitable settlements of claims in which liability

ha[d] become reasonably clear." Mass. Gen. Laws ch. 176D,

§ 3(9)(f). We treat this as separate from the argument that the

insurer's estimates of loss were unreasonably low, a topic to which

we return. Massachusetts law is clear that there is no violation

of chapter 176D where the insurer and insured had a "legitimate

16We bypass the fact that the insureds do not dispute that
they never provided FFI with a sworn proof of loss statement. They
instead argue that FFI waived this requirement and that the
information River Farm provided to FFI in November 2015 serves as
a substitute for a sworn proof of loss under Massachusetts General
Laws chapter 175. See Mass. Gen. Laws ch. 175, § 102 (describing
insurer's obligation if insured fails to provide sworn statement
and insurer fails to request one). We need not reach this
argument.

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difference of opinion as to the extent of . . . liability."

Bobick, 790 N.E.2d at 659; see also Silva, 35 N.E.3d at 408

(affirming summary judgment for insurer on chapter 176D,

section 3(9)(f) claim because insured, rather than seeking to

enforce a judgment in his favor or make a settlement request,

appealed the judgment and so "open[ed] up both the scope of

liability and the amount of damages").

Further, under Massachusetts law, "a duty to settle does

not arise until 'liability has become reasonably clear' . . .

and . . . liability encompasses both fault and damages." Clegg,

676 N.E.2d at 1140 (quoting Mass. Gen. Laws ch. 176D, § 3(9)(f)).

Although "excessive demands on the part of a

claimant . . . do not relieve an insurer of its statutory duty to

extend a prompt and equitable offer of settlement once liability

and damages are reasonably clear," these excessive demands "may be

considered as part of the over-all circumstances affecting the

amount that would qualify as a reasonable offer in response."

Bobick, 790 N.E.2d at 660-61.

The plaintiffs' own asserted estimates rose from

$154,769.93 in November 2015, to $236,438 in February 2016, and to

a demand of $257,997.97 in June 2016. And the sum finally awarded

was $120,109.97 less than plaintiffs' last demand. The disparity

between the award and the insurer's last estimate (plus an agreed-

on sum for roof damage) was less than that. Here, as described,

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the total amount of losses claimed by each side changed

significantly over the course of the dispute, suggesting that each

was reacting to changing information not necessarily discerned at

the outset.

2. Discrepancy Between Various Estimates

We turn to the argument that the large disparities

between FFI's June 2015 estimate, the plaintiffs' November 2015

demands, the insurer's second estimate in March 2016, and the final

Reference award establish a chapter 176D violation. River Farm

couches this in the terms that FFI "refus[ed] to pay claims without

conducting a reasonable investigation based upon all available

information." Mass. Gen. Laws ch. 176D, § 3(9)(d).

Disparity in amounts offered and amount awarded may, of

course, be relevant, but cannot be subject to per se rules, and

depends on the totality of the facts. The SJC has dealt with a

variation of our own situation. In Bobick, the SJC affirmed the

entry of summary judgment for the insurer on the plaintiff's

chapter 176D claim where the disparity of $10,000 between the

initial estimate and the award was "not substantially less than

the amount ultimately determined by a jury to be the proper measure

of damages" and there was no other evidence that the estimate was

unreasonable. Bobick, 790 N.E.2d at 660. Significantly, the SJC

nevertheless cautioned that the final award, in that case a jury

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verdict, "may not constitute in all circumstances a definitive

measure of reasonableness." Id.

We also follow the SJC's statement that settlement

negotiation within the range of reasonable positions is, "to an

extent, a legitimate bargaining process" and "[e]xperienced

negotiators do not make their final offer first off, and

experienced negotiators do not expect it, or take seriously a

representation that it is." Id. (quoting Forcucci v. U.S. Fid. &

Guar. Co., 11 F.3d 1, 2 (1st Cir. 1993)).

We first look to the large disparity between FFI's

initial estimate of $17,825.95 for property damage in June 2015

and the Reference award of $137,888 some thirteen months later in

July 2016. The mere fact that the initial opening estimate, likely

made before all the damage manifested itself, was less than what

FFI later offered does not mean that it was outside the scope of

reasonableness. Each set of estimates, whether from the insurer

or the insureds, at all times covered the same three basic areas

of damage -- to residence interior, to paint, and to the roof (save

for the express reservation as to the roof in the last insurer

estimate). Yet River Farm does not identify, by evidence or even

argument, the ways in which FFI failed to act reasonably in

estimating the damage. Nor does it make any effort to show or

argue that what the insurer did in any estimate varied from

industry practice. FFI's initial estimate is detailed and includes

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specific statements of loss for particular rooms in the River Farm

residence. River Farm provides no evidence or even argument as to

which of these itemized estimated costs, if any, were unreasonable

at the time made. At oral argument, when asked for such evidence,

River Farm pointed us to its opposition to summary judgment. But

that opposition does not contain greater specificity, nor any

evidence other than the fact of different figures.

The passage of time between initial estimate and final

award and the nature of the damage are also relevant. As the

insurer sensibly points out, water and ice damage occurring over

a New England winter may manifest itself more visibly and more

broadly as time goes on and temperatures warm up.

The discrepancy argued by River Farm between the

insured's $154,769.93 estimate in the November 13, 2015 letter,

and Grandmont's $28,005.21 estimate in March 2016 also does not

support a finding of unreasonableness. River Farm compares apples

to oranges. First, the November 13 letter included close to

$43,000 for anticipated hotel rental and for furniture damage,

which concededly are not reimbursable as actual cost associated

with property damage. Excluding those costs, this brings the

insured's estimate down to $112,134.93, assuming in River Farm's

favor that all the other items listed are recoverable. Of this

amount, $36,940 was for roof damage. Second, Grandmont's estimate

explicitly did not include, and reserved on, roof damage. If the

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figure for the roof damage is excluded from the November 13 letter,

then the $112,134.93 insured's demand is reduced to $75,194.93.

The difference between this value and Grandmont's estimate is the

much lower sum of $43,969.27.17

Finally, we look to the difference between FFI's second

estimate of $28,005.21 in March 2016 and the final Reference award

of $137,888, where the Reference award included an agreed-upon sum

for the roof.18 Again, River Farm compares apples to oranges. The

Reference award contains a figure for the roof while the March

2016 estimate does not. The parties do not provide us with the

agreed-upon sum for the roof, so we are unable to determine the

true disparity between FFI's second estimate and the final

Reference award. River Farm has provided no evidence, only

argument, that the second estimate was unreasonable.19 The

insurer's agreement with the insured as to the amount of the roof

17 Because the insured's requested sums are calculated on
a replacement cost basis, we used Grandmont's replacement cost
estimate, less the $500 deductible, of $31,225.66 in order to
determine the difference between the two estimates.
18 River Farm's only argument to the district court
regarding the disparity between the $28,005.21 estimate and the
Reference award was that it "is less than one-sixth of the
Reference Award" and constituted a "lowball" offer. Any other
arguments are waived.
19 The second insurer March 2016 estimate includes a
detailed report which lists the repairs needed in each damaged
room of the residence. River Farm again does not tell us which
parts of this estimate were unreasonable when made or point to any
evidence as to why this is so.

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damage and the submission of that agreed sum to the Reference Panel

also diminish any argument as to unreasonableness.

On this record, this is insufficient to defeat summary

judgment.

3. Miscellaneous Arguments

In addition to its specific claims of error under

chapter 176D, River Farm generally argues that FFI acted in bad

faith. As proof, River Farm points to FFI's refusal to grant it

an extension to make additional claims for replacement costs and

living expenses. Even if the policy permitted recovery for these

costs, FFI's decision not to waive the two-year time limit does

not show an absence of good faith, especially when River Farm

substantially contributed to the time periods involved.20

As to River Farm's general argument that the district

court failed to view the facts in the light most favorable to River

Farm because it failed to discuss various allegations made by River

Farm, we reject this challenge. A nonmovant cannot rely "merely

upon conclusory allegations, improbable inferences, and

unsupported speculation" to defeat summary judgment. Pina v.

Children's Place, 740 F.3d 785, 796 (1st Cir. 2014) (quoting Dennis

v. Osram Sylvania, Inc., 549 F.3d 851, 855-56 (1st Cir. 2008));

20 River Farm also says that FFI's proposal of $7,766.58 in
response to the demand letter shows bad faith but does not develop
this argument, so it is waived. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).

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see Haverty v. Comm'r of Corr., 776 N.E.2d 973, 985 (Mass. 2002)

("An adverse party may not manufacture disputes by conclusory

factual assertions; such attempts to establish issues of fact are

not sufficient to defeat summary judgment." (quoting Ng Bros.

Constr., Inc. v. Cranney, 766 N.E.2d 864, 872 (Mass. 2002))).

River Farm provides no evidentiary support for most of its

allegations.

Finally, River Farm argues that it is entitled to a jury

trial under Full Spectrum Software, Inc. v. Forte Automation

Systems, Inc., 858 F.3d 666 (1st Cir. 2017). Even if there were

such a jury trial right, this would not entitle River Farm to a

jury trial absent a genuine dispute of material fact. See, e.g.,

Bobick, 790 N.E.2d at 654 (reversing appeals court's denial of

summary judgment for insurer on chapter 176D claims). Further,

Full Spectrum stated that "there is no precedent from our circuit

that resolves whether the Seventh Amendment requires that a chapter

93A claim be tried to a jury in federal court," and concluded that

it would "leave for another day a fuller consideration of the

extent to which the Seventh Amendment may apply to chapter 93A

claims." Full Spectrum, 858 F.3d at 678.

B. Breach of Contract Claim

The entry of summary judgment on the breach of contract

claim is easily affirmed. To show a breach of contract under

Massachusetts law, a plaintiff "must demonstrate that there was an

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agreement between the parties; the agreement was supported by

consideration; the plaintiff was ready, willing, and able to

perform his or her part of the contract; the defendant committed

a breach of the contract; and the plaintiff suffered harm as a

result." Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 39 (Mass.

2016). The policy states that FFI must pay the least of five

values, one of which is the "actual cash value" at the time of

loss. If there is a dispute, the policy states that FFI shall

comply with the Reference procedure. A dispute arose in November

and once River Farm invoked the procedure, FFI complied and paid

the actual cash value as determined by the referees. There was no

breach of the contract.21

Because we have determined that FFI is not liable for

breach of contract or a chapter 176D violation, we do not reach

River Farm's arguments as to the appropriate amount of damages.

We do not say that the insurer FFI behaved admirably,

and it may have been negligent at times. But liability under

chapter 176D is not imposed for mere negligence and River Farm has

simply failed to produce evidence in support of its assertions.

21River Farm has waived any argument based on the implied
covenant of good faith and fair dealing because this argument was
never raised to the district court and "arguments not made
initially to the district court cannot be raised on appeal."
DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001)
(quoting St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp.,
26 F.3d 1195, 1205 (1st Cir. 1994)). In any event, as our
discussion makes clear, the claim is without merit.

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Affirmed. No costs are awarded.

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