(dissenting). The complaint in this case contained five counts. The first four counts alleged that James A. Clegg .(Clegg) sustained personal injuries and his wife, Katherine M. Clegg, sustained consequential damages as a result of negligence on the part of the defendants Jeff L. Butler, Louis C. Butler, and Helene M. Butler. In the fifth count, Clegg alleged that the. defendant Utica Mutual Insurance Company (Utica) engaged in unfair settlement practices in violation of G. L. c. 176D, § 3 (9) (f), and as a result was liable to Clegg under G. L. c. 93A, § 9 (3). Trial was scheduled for June, 1994. At a mediation session on May 4, 1994, Utica, the Butlers’ motor vehicle liability insurer, offered the Cleggs $250,000, the limits of its policy, and Merrimack Mutual Insurance Company (Merrimack), the Butlers’ excess carrier, offered $425,000, resulting in settlement of the motor vehicle tort claims against the Butlers. asserted in Counts One through Four for $675,000. Subsequently the remaining count, Count Five, against Utica, was tried jury waived and resulted in a judgment in the sum of $750,000 ($250,000 trebled) plus interest in the sum of $59,685 plus attorney’s fees of $150,000 for a total of $959,685. The judgment, of course, was in addition to the $675,000 settlement of *427the tort claims against the Butlers asserted in Counts One through Four.
Utica appeals from the judgment against it in connection with the issues raised by Count Five and the plaintiffs appeal from the denial of their motion for the entry of judgment with respect to the first four counts. I concur with the court’s holding that the plaintiffs’ motion for entry of judgment on their motor vehicle tort claims was properly denied. I do not agree, however, that this case should be remanded to the Superior Court for a “redetermination of damages” in the dispute between Clegg and Utica (Count Five). Ante at 426. In my view, after a full and fair opportunity, Clegg has failed to establish Utica’s liability because he has failed to prove any injury or adverse impact on his rights as a result of anything Utica did or failed to do. The court should order the entry of judgment for Utica.
Massachusetts law permits a third-party claimant, as is Clegg with reference to Utica, to sue the insurer of another party when the claimant alleges, as does Clegg here, that he or she has been injured or his or her rights have been adversely affected by the insurer’s violation of G. L. c. 93 A, which incorporates the provisions of G. L. c. 176D, § 3 (9). Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675 (1983). The success of such a claim, of course, is contingent on the claimant’s proof of injury or an adverse effect on his or her rights resulting from the insurer’s conduct, a burden which Clegg has not sustained.
General Laws c. 176D, § 3 (9) (f), on which Clegg relies, provides in relevant part, “The following are hereby defined as unfair methods of competition and unfair or deceptive acts or practices in the business of insurance: . . . Unfair claim settlement practices: An unfair claim settlement practice shall consist of any of the following acts or omissions: ...(f) Failing to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.” Surely, regardless of when Utica should have offered its $250,000 limits, no payment would have been made, and none was due, without the tort claims against the Butlers having been settled and the Butlers released. When, if at all, prior to May 4, 1994, the date the tort claims were settled for $675,000, would that have happened? Neither the judge’s findings nor the evidence suggests the answer. Clegg’s burden was not only to *428prove that Utica should have offered its policy Emit sooner than May 4, 1994, but also, at a minimum, that, if Utica had done so, Merrimack too would have made an offer at an appreciable time before May 4 that the plaintiffs would have accepted. Without such proof, no injury or adverse impact on the plaintiffs in the form of loss of use of money for a period of time or otherwise has been proved.
The judge below issued a memorandum of findings of fact and conclusions of law. One of those “findings” and one of those “conclusions of law” are especiaUy important. Finding no. 61 states, “The evidence permits the inference, which I draw, and the finding, which I make, that had Utica offered its poEcy Emits, in late 1992, Merrimack would have made an offer at least equivalent to that which it made in May, 1994 ($425,000), and which [Clegg] accepted.” Notably absent is a finding as to when, or approximately when, or by when, Merrimack would have made, and the tort plaintiffs would have accepted, such an offer. The judge states in conclusion of law no. 15 in relevant part as foEows: “It is Ekely that had Utica tendered the policy Emits earEer, the excess carrier would have settled sooner. However, I cannot determine fairly when such settlement would have occurred.” The court errs when it states, ante at 423 n.ll, in reference to finding no. 61 quoted above, that “[t]he record supports the judge’s inference that Merrimack would have settled once Utica tendered its limits.” The judge made no such determination. Perhaps, standing alone, finding no. 61 could fairly be construed as a determination that Merrimack would have offered at least $425,000 whenever Utica offered the Emits of its poEcy, but the judge’s conclusion of law no. 15 clearly states that the judge was unable fairly to determine when a settlement would have occurred foHowing a $250,000 offer by Utica. The judge was not persuaded, and therefore did not make a determination, as to when or in what circumstances Merrimack would have made an offer, acceptable to the tort plaintiffs, that would have settled them claims and produced the appropriate releases. Indeed, my review of the record satisfies me that the evidence as a matter of law would not have warranted such a finding.
Settlement of the tort claims required the agreement of the plaintiffs and both insurers, Utica and Merrimack. The judge was not persuaded as to when that would have occurred if *429Utica had offered its policy limits in 1992 or at any time before May 4, 1994. As a matter of law, the evidence would not have warranted such a finding. For all that appears, regardless of when, before May 4, 1994, Utica might or should have offered $250,000, the case would not have settled until it did settle as a result of the court-sponsored mediation that produced the settlement that was reached with the prospect of a prompt trial if mediation were to fail. Therefore, it cannot fairly be said that Utica failed “to effectuate prompt, fair and equitable settlement []” of the plaintiffs’ tort claims in violation of G. L. c. 176D, § 3 (9) (f), and that liability under G. L. c. 93 A, § 9 (3), has been established. Utica was not shown to have been in position to effectuate a prompt, fair and equitable settlement before May 4, 1994. Clegg failed to persuade the judge — indeed to offer evidence — that he has been deprived of the use of an established amount of money for an established length of time. He has not proved that he has been injured or that his rights have been adversely affected by any action or inaction of Utica, see Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675, 678 (1983), as required for liability, and therefore for recovery of damages, under Count Five of the complaint. Clegg has had his day in court. There is no need, therefore, and it is inappropriate, to “remand this case to the Superior Court for a redetermination of damages.” Ante at 426. See Whalen v. NYNEX Info. Resources Co., 419 Mass. 792, 796-797 (1995). I would order the entry of judgment for Utica.