(concurring in part and dissenting in part). With due respect, I dissent from part l.b. of the majority opinion, concerning the measure of damages for the pretrial conduct of AIG Domestic Claims, Inc. (AIGDC).1 I dissent because I do not believe that the AIGDC2 August 11, 2004, settlement offer was fair and reasonable, or that the low-end offer advanced by AIGDC ended the G. L. c. 176D, § 3(9)(/), violation.3 Instead, I conclude that (1) by not engaging in good faith pretrial settlement *318negotiations, AIGDC in effect forced the plaintiffs to go to trial; (2) AIGDC, therefore, remained open to damages for its G. L. c. 176D, § 3(9)(/), violation; and (3) AIGDC was vulnerable to potential unfair insurance practice damages, extending up to the full amount of the jury verdict — not loss of use damages, as limited and capped by the majority opinion.
1. AIGDC settlement offer not fair and reasonable. The information known to and the records possessed by AIGDC, as well as case value assessments prepared by the lead insurers and their agents and held within the AIGDC files, reflect a pretrial assessment of a high of $10 million as the quantum of damages for the plaintiffs’ injuries, with the lowest damage assessment being $5 million. Against this backdrop, the AIGDC $1.5 million offer under its policy, late-advanced on August 11, 2004, cannot be deemed fair and reasonable. Further, despite indisputable liability, AIGDC remained silent, advancing absolutely no settlement offer, except the low-end settlement offer advanced on the eve of trial.
It is, in my view, important in assessing the G. L. c. 176D, § 3(9)(/), violation damages, that it was AIGDC, the insurer with the largest coverage, which held out from engaging in settlement negotiations, rendering pretrial settlement more difficult and unlikely. That is, notwithstanding that Zurich American Insurance Company (Zurich), the primary insurance carrier, tendered $2 million (the full amount of the Zurich policy), AIGDC held back until trial was imminent before advancing any settlement offer under the AIGDC $50 million excess insurance coverage.
Then, having violated G. L. c. 176D, § 3(9)(/), by refusing to participate in good faith pretrial settlement negotiations, AIGDC emerged from the shadows only to put forth this $1.5 million low-ball insurance contribution to the global settlement. Such a de minimis offer on the AIGDC $50 million excess insurance policy flies in the face of all the damage estimates and settlement recommendations to AIGDC summarized below in this dissent.4 With the low-end AIGDC contribution of $1.5 *319million,5 the total pretrial settlement offer was only $3.5 million. Indeed, after this low-ball AIGDC August 11 offer, and the plaintiffs’ rejection thereof, the plaintiffs, just under a month later, were compelled to commence trial of their case, on September 7, 2004. During that trial, AIGDC increased its component of the global settlement pool from $1.5 million to $4 million, thereby increasing the global offer to $6 million. However, even this was too low, when one considers that the judge found the AIGDC postverdict offer of $7 million to be “unreasonable” and “insulting.”
2. Judicial review in rejected settlement cases. In affirming the implicit determination that the August 11 AIGDC offer of $1.5 million ended the G. L. c. 176, § 3(9)(/), pretrial violation, the majority approach, I believe, obscures the fundamental differences between accepted versus rejected pretrial settlement offer cases. This conflation yields the same result in cases where a late settlement offer is rejected, as in cases where a late settlement offer is accepted. However, this is contrary to the express reservation of the issue by the Supreme Judicial Court in Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556 (2001). In that case, where a tardy offer was accepted by the plaintiff before trial, the court affirmed a damages award based on the agreed-to settlement offer, but declined to “decide in this [Hopkins] case whether the same measure of damages would apply in a case where an insurer, having initially violated G. L. c. 176D, § 3(9)(/), and G. L. c. 93A, §§ 2 and 9, thereafter makes a fair and reasonable (but nevertheless tardy) offer of settlement, which is refused by a claimant” (emphasis supplied). Id. at 567 n.16.
Where a settlement offer is accepted, as in Hopkins, a methodology for damage assessment based on the accepted pretrial settlement figure as the damage marker/calculator makes *320sense because acceptance of the offer, in and of itself, indicates that, although the insurer advanced the offer late, in violation of G. L. c. 176D, § 3 (9)(/), the settlement offer was deemed fair and reasonable by the plaintiff — even if not perfect. In contrast, in a case of a rejected late-tendered settlement offer, such as that in the present case, no such fairness and reasonableness can be presumed, and the rejected offer should not be the per se marker/calculator for the G. L. c. 176D, § 3(9)(/), damage analysis. In other words, the Hopkins methodology — which depends on the accepted settlement figure and calculates the loss of use of monies based on that figure, measured during the period within which no settlement offer was forthcoming — does not work in rejected settlement offer cases. As the Supreme Judicial Court’s reservation in Hopkins indicates, a difference in methodology to assess damages in a rejected offer case is important because, as further discussed below, if the rejected late pretrial settlement figure is given too much weight, that rejected figure, in effect, becomes a cap on damages for the G. L. c. 176D, § 3(9)(/), violation. That should not be so because, among other reasons, in a low-end rejected settlement case, a plaintiff is left with no real basis to consider resolution of claims by a pretrial settlement, and is virtually compelled to bring the case to trial to seek redress on the claims — which is antagonistic to the protections that G. L. c. 176D, § 3(9)(/), was enacted to provide for insureds.
Furthermore, in a rejected settlement offer case, such as this one, AIGDC, as the insurer defending the G. L. c. 176D, § 3(9)(/), violation:
“bore the burden of proving that [its] settlement offer was reasonable and made in good faith in light of the demand and attendant circumstances. Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 799 (1976). This determination required proof that the defendant!] did not act deliberately to derail the settlement process. Otherwise stated, a wrongdoer ‘ought not wear out the claimant by unduly delaying settlement,’ Miller v. Risk Mgmt. Foundation of Harvard Med. Insts., Inc., 36 Mass. App. Ct. 411, 418 (1994), when liability, including causation and damages, is clear or highly likely. Guity v. Commerce Ins. Co., 36 Mass. App. Ct. 339, 343 (1994).”
*321Parker v. D’Avolio, 40 Mass. App. Ct. 394, 395-396 (1996) (c. 93A settlement offer). Here, in light of its actions, AIGDC did not, I conclude, meet this burden.
Where there is no damage marker by the figure in an accepted offer, and given the Hopkins reservation on this point, when an offer is rejected, such as in the present case, what then is the judicial review and methodology for determining whether an insurer has met its burden of proof, and what is the damage marker/calculator for the G. L. c. 176D, § 3(9)00, violation? I conclude that judicial scrutiny of what is fair and reasonable in a rejected settlement offer case must — among a host of factors involving the insurer’s conduct in not engaging in pretrial settlement negotiations — directly involve consideration of the insurer’s valuation of the case, what damage assessment information was available to the insurer, and whether the effect of the insurer’s actions in failing to advance any fair and reasonable settlement left the plaintiff with no real alternative except to litigate the matter — which is precisely what G. L. c. 176D, § 3(9)00, was designed to protect against.
In this case, respectfully, I see two fundamental omissions in the judicial review that led to acceptance of the AIGDC offer as being fair and reasonable. First, the Superior Court judge’s conclusion, accepted by the majority, that the $1.5 million advanced by AIGDC on August 11, 2004, was fair and reasonable does not give sufficient weight to the actual damage information in the AIGDC files. Indeed, while the Superior Court judge acknowledged that AIGDC’s contribution of $1.5 million to the August 11 global settlement offer of $3.5 million was “at the low end of . . . reasonable,” the judge nonetheless accepted that rejected “low end” figure. But that conclusion is not sustainable, when the following facts in this case record are weighed: (1) since close to the beginning of the case, AIGDC was aware that liability was clear and damages would be very high, and the $50 million dollar excess insurance policy would be invoked; (2) as of January 30, 2002, AIGDC was on notice that its third-party claims adjuster, Crawford & Company (Crawford), characterized the claim as involving “catastrophic” personal injury damages, and that the plaintiffs’ claim would carry a high value; (3) as of April 8, 2002, Crawford informed AIGDC of its recommendation that the full amount of the Zurich primary *322policy coverage be placed in reserve; (4) in September, 2002, AIGDC was provided an estimate of the potential value of the case as being between $5 million and $10 million; (5) on November 21, 2002, the driver admitted criminal guilt for the crash; (6) as of August, 13, 2003, counsel for the defendant National Union Fire Insurance Company of Pittsburgh, PA (National Union) (for which AIGDC administered the subject claim), was provided a “day in the life” videotape portraying the care Mrs. Rhodes would require as a paraplegic, summarized medical expenses of $413,977.68, future medical costs estimated at $2,027,078, and out-of-pocket expenses of $83,984.74; (7) on November 19, 2003, AIGDC was informed that authority would be sought for Zurich to tender the full amount of $2 million primary coverage; (8) on the same day, November 19, 2003, defense counsel for Building Materials Corp. of America (GAF; see note 4, ante), the insured covered by National Union, recommended a $5 million settlement, but the AIGDC claims director rejected that recommendation; and (9) on December 19, 2003, the Zurich claims director prepared the underlying documents necessary for Zurich to tender the primary $2 million in insurance, and that documentation valued the claim in excess of $10 million.6,7
A second omission in the judicial scrutiny of the AIGDC pretrial offer — an omission which adds to my conviction that the August 11, 2004, $1.5 million settlement offer late-advanced by AIGDC cannot be sustained as fair and reasonable — is that the low-end pretrial offer, and the unfair insurance practices of AIGDC in refusing to engage in settlement negotiations until the eve of trial, left no alternative but for the plaintiffs to proceed to trial. This contravenes the core statutory purpose of G. L. c. 176D, § 3(9)(/), to enforce the obligations of insurers to *323tender settlement of a case before the tort plaintiff has to take the case to trial. See Clegg v. Butler, 424 Mass. 413, 425 (1997).
Judicial review of a settlement offer in a case such as this one, in which the insurer engaged in egregiously unfair settlement practices, involves not just pure fact review and findings concerning the figure in the late settlement offer by the recalcitrant insurer. Rather, judicial review also implicates questions of law concerning the seriousness of, and the extent of, an insurer’s violations of G. L. c. 176D, § 3(9)(/), in its actions and pretrial settlement proffers.8 In other words, to be considered is the gravity of the unfair practices of the insurer in refusing to participate in good faith pretrial settlement negotiations.9 Also to be considered in judicial review is whether, as in this case, late in the day, as the trial date approached, the insurer engaged in a pretrial zero sum game strategy by advancing an offer that *324sought to place the plaintiffs at a decision intersection with the only choices being (i) to yield by acceptance of a low-end, low-grade settlement, even though consistent neither with the plaintiffs’ major injuries (as documented and evaluated by the involved insurance companies) nor with the indisputable liability under the subject policy; or (ii) to proceed to full litigation by trial of the case.
If G. L. c. 176D, § 3(9)(/) — which is designed to foster pretrial settlements in lieu of litigation by trial — means anything, it should mean that an insurer, such as AIGDC, cannot engage in such a zero sum pretrial game strategy by advancing a low-end offer which has no real nexus to the damage information and case evaluations possessed by the insurer. Such pretrial conduct by an insurer, in violation of G. L. c. 176D, § 3(9)(f), ineluctably will end in a plaintiff having to proceed to trial, as happened here. This part of AIGDC’s egregious conduct, and the inherent legal conflict it poses with the statutory purposes of G. L. c. 176D, § 3(9)00, was not, I respectfully submit, given due legal weight in the analysis that led to acceptance of the AIGDC $1.5 million as fair and reasonable.
Because I believe that the AIGDC August 11 late-advanced offer was not fair and reasonable, it did not end the AIGDC G. L. c. 176D, § 3(9)(/), pretrial violation. Thus, the cap and the time period limitations on the damages for unfair pretrial settlement practices under G. L. c. 176D, § 3(9)(/) (as applied in Hopkins, 434 Mass. at 567, and as accepted by the majority in this appeal), should not protect AIGDC in this case. Rather, in my judgment, AIGDC was left potentially open to unfair insurance practice damages that may range as high as the jury verdict, and which, given the wilful violation, will either be doubled or trebled, as provided in G. L. c. 93A, § 9(3).
3. Conclusion. Given the foregoing, I dissent from part l.b., ante, and would rule that, as matter of law, AIGDC’s last-minute $3.5 million pretrial settlement offer was not reasonable. I would therefore remand the matter to the Superior Court for a determination of damages for AIGDC’s pretrial violation of G. L. c. 176D, § 3(9)(/), based on the jury verdict, and for a determination whether the damages for AIGDC’s wilful violation shall be doubled or trebled.
Apart from this dissent to part l.b., I concur with the majority opinion.
See note 5, ante.
Respectfully, I disagree with the majority’s passing comment in note 7, ante, that, in this appeal, the plaintiffs have not challenged the judge’s finding concerning the $3.5 million. To the contrary, the heart of the plaintiffs’ appeal is predicated on a challenge to the trial judge’s decision to limit the plaintiffs’ damages because the judge concluded that the figure of $3.5 million, albeit advanced late, was fair and reasonable and, therefore, ended AIGDC’s pretrial violation of c. 176D, notwithstanding the fact that the judge found AIGDC’s violation was “willful and knowing.” Accordingly, it is clear that the essential challenge in the plaintiffs’ appeal encompasses both the timing and the amount of AIGDC’s last-minute, low-ball offer — appellate issues that are inextricably intertwined. Thus, I see little question but that the interrelated issue of the fairness and reasonableness of the AIGDC $3.5 million settlement amount, and the issue of the fairness and reasonableness of the pretrial time line involving AIGDC’s deliberate strategy to delay mediation and the proffering of any offer until just before trial are both encompassed in the plaintiffs’ appeal and need be addressed by this court. Indeed, were both issues ■— the timing and the amount of the AIGDC offer — not before us, a large measure of the majority opinion would not need to have been written.
As does the majority, I too reject the AIGDC argument that, by not accepting the $3.5 million settlement figure, the plaintiffs were divested of the right to damages under G. L. c. 176D, § 3(9)(/). The plaintiffs’ rejection of the offer did not erase the AIGDC unfair settlement practice in refusing to tender a *319more timely and prompt offer, which remained a violation of G. L. c. 176D, § 3(9)(/). Thus, there were still damages caused to the plaintiffs and an entitlement to recovery, as recognized in Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 567 (2001), under the “causation factor.”
AIGDC’s internal authorization for settlement was $3.75 million, of which $1.75 million would be contributed by AIGDC. Thus, the offer extended by AIGDC to the plaintiffs was $250,000 less than the authorized amount — a further reflection of AIGDC’s not acting in good faith and low-balling the damages.
Against the backdrop of all this record evidence, the judge’s acceptance of the $1.5 million offer as fair and reasonable deferred — too heavily I think — to the abstracted damage views proffered by an AIGDC expert.
Albeit not controlling, because we are here reviewing the pretrial offer of AIGDC, it is, nonetheless, of interest in scrutinizing whether the August 11, 2004, pretrial settlement offer of $1.5 million was fair and reasonable, that AIGDC’s new settlement offer on December 17, 2004, after the jury’s September 15,2004, verdict, which offer provided that AIGDC would contribute $5 million to increase the global settlement to $7 million, was characterized by the judge as “not only unreasonable, but insulting,” and a wilful violation of G. L. c. 176D.
Given these mixed questions of fact and law, in a case involving judicial review of a rejected pretrial settlement offer in respect to damages under G. L. c. 176D, § 3(9)(/), and G. L. c. 93A, I do not accept the majority’s position that appellate review is limited to just the clearly erroneous standard, as the majority suggest (see note 7, ante). See, e.g., R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 73 (2001), and cases cited (“A ruling that conduct violates G. L. c. 93A is a legal, not factual, determination”); Bobick v. United States Fid. & Guar. Co., 439 Mass. 652, 661 (2003), quoting from Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 837 (1st Cir. 1990) (“That [reasonableness] is ordinarily a fact question does not make it invariably a fact question” [emphasis in original]). But, in any event, even in considering appellate review under the “clearly erroneous” standard, see Mass.R.Civ.P. 52(a), as amended, 423 Mass. 1402 (1996), a finding may be reversed when, “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Basis Technology Corp. v. Amazon.com, Inc., 71 Mass. App. Ct. 29, 36 (2008), quoting from Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 509 (1997).
throughout the pretrial proceedings, AIGDC was recalcitrant in participating in settlement negotiations as required by law, this notwithstanding the tendering of offers by the primary insurer. Further, pretrial, ignoring its statutory obligations, AIGDC tendered only the bargain basement low-end offer of August 11. It was not until after the end of trial and the jury verdict, and after the judge had denied AIGDC’s motion for new trial, and after receipt of the plaintiffs’ c. 93A demand letter, that AIGDC finally moved to a fair and reasonable settlement posture. Even at this posttrial stage, pending appeal, AIGDC wilfully persisted in unfair settlement acts — among other things seeking to link any settlement offer with a waiver of the plaintiffs’ claims under G. L. c. 176D and G. L. c. 93A — all of this, I submit, flowing in the aftermath of the original late low-ball offer.