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15-P-358 Appeals Court
RASS CORPORATION vs. THE TRAVELERS COMPANIES, INC., & another.1
No. 15-P-358.
Suffolk. February 24, 2016. - November 10, 2016.
Present: Katzmann, Maldonado, & Blake, JJ.2
Insurance, Coverage, Insurer's obligation to defend, Notice,
Settlement of claim, Unfair act or practice. Notice,
Insurance claim. Commercial Disparagement. Trade Secret.
Libel and Slander. Consumer Protection Act, Insurance,
Unfair act or practice, Offer of settlement, Damages,
Attorney's fees. Damages, Libel, Wrongful use of trade
secret, Consumer protection case, Attorney's fees.
Civil action commenced in the Superior Court Department on
June 7, 2010.
Motions for summary judgment were heard by Janet L.
Sanders, J., and the case was heard by her.
Anil Madan for the plaintiff.
Michael F. Aylward for the defendants.
1
Travelers Property Casualty Company of America.
2
Justice Katzmann participated in the deliberation on this
case prior to his resignation.
2
BLAKE, J. At issue in the present case is whether the
defendant insurance companies, The Travelers Companies, Inc.,
and Travelers Property Casualty Company of America (collectively
Travelers), breached their duties to defend, indemnify, and
settle in good faith, as to their insured, the plaintiff, Rass
Corporation (Rass). The underlying action, arising out of
Rass's decision to cut the underlying plaintiff out of its food
marketing and distribution business, alleged that Rass's
principal had committed trade libel, defamation, and
misappropriation of trade secrets. After a three-month delay in
notice, Travelers agreed to defend the case from that point
forward under a reservation of rights that disclaimed coverage
of the trade secrets claim, and subject to Traveler's limit on
defense counsel's hourly rate. Rass ultimately settled the case
on its own, refusing the insurer's offer to contribute a nominal
amount conditioned on a waiver of Rass's right to seek
indemnification. Thereafter, Rass commenced the present action
against Travelers, seeking indemnity for the settlement and the
reasonable attorney's fees left unpaid by Travelers, and
alleging violations of G. L. c. 93A.
Following a bench trial in the Superior Court, the judge
allocated $140,000 of the settlement to Travelers for
indemnification of the covered claims and found that Travelers
owed an additional $25,000 in reasonable attorney's fees. The
3
judge also found that Travelers had committed violations of
G. L. c. 93A based on its commission of unfair claim settlement
practices. In a summary judgment ruling issued prior to trial,
the judge rejected Rass's claim for attorney's fees incurred
prior to its notice of the underlying claim to Travelers.
Before us now on the parties' cross-appeals are challenges to
the judge's summary judgment ruling, the rulings as to coverage
of the underlying claims, the judge's allocation of the
settlement, and the finding of a c. 93A violation, along with
the judge's related findings as to damages and attorney's fees.
We affirm.
Background. "We recite the essential facts found by the
judge, which we accept 'unless they are clearly erroneous,'
. . . and which the parties do not challenge, supplemented by
other undisputed information from the record." Boyle v. Zurich
Am. Ins. Co., 472 Mass. 649, 651 (2015) (Boyle), quoting Weiler
v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014).
1. The underlying lawsuit. Ranbir "Paul" Jaggi has been
engaged for several years in the sale of food products through
various corporate entities. In the early 1990s, Jaggi met Neera
Tulshian, who is a food chemist based in New Jersey, through his
contact with Nugen, a New Jersey food manufacturing plant.
Tulshian, while she was at Nugen, and then through her own
company, IAM International, Inc. (IAM), worked with Jaggi to
4
convert Jaggi's Indian sauce recipes into a "shelf stable"
product capable of being sold in jars at grocery stores without
refrigeration. Over several years, the two had an arrangement
whereby IAM would manufacture shelf-stable simmer sauces, and
then deliver the product for distribution by Jaggi, through one
of his own entities or a corporate parent. In 2004, Jaggi
formed Rass, which is based in Sudbury. Between January of
2004, and January of 2008, Rass purchased $5,445,968.26 worth of
simmer sauces from IAM, which it then sold to the Trader Joe's
grocery store chain. Tulshian's personal tax returns indicate
that her annual income during that period was about $400,000.
In 2007, Tulshian learned that Jaggi, with his brother-in-
law, was in the process of setting up his own bottling line that
could make the sauces. Knowing that his actions would cut
Tulshian out of the business, Jaggi offered Tulshian a stake in
the new plant. When that offer failed, Jaggi offered her
$100,000. She again refused. Anticipating a problem with his
Trader Joe's account, on November 8, 2007, Jaggi wrote an
electronic mail message (e-mail) to Cara Yokomizo, a buyer at
Trader Joe's. It states, in relevant part:
"[T]here is an outside chance that the person who is
handling this co-packing arrangement for us -- Ms.
Neera Tulshian -- may approach you directly for making
these sauces. Not only will that be unethical but
illegal as well as these are our recipes created by us
for Trader Joe's based on our frozen entrée sauces. I
5
do not foresee that happening but I wanted to give you
a heads up to avoid any confusion."
As anticipated, Tulshian contacted Yokomizo and informed
her that she was the one who had developed the product.
Yokomizo, in turn, told Jaggi that he should contact
Tulshian and resolve the issue.
Having learned of the e-mail to Trader Joe's, Tulshian
retained an attorney, who sent Rass a demand letter dated
December 7, 2007. After negotiation attempts between Jaggi and
Tulshian failed, on January 9, 2008, IAM filed a complaint in
the Superior Court of New Jersey alleging misappropriation of
trade secrets, tortious interference with present and
prospective economic advantage, and trade libel. Under the
count entitled trade libel, the complaint alleges that Jaggi's
statements in the e-mail "constitute trade libel, trade
disparagement, and defamation." Jaggi responded by seeking the
advice of his own local Massachusetts attorney, and by hiring
New Jersey attorney Emery Mishky to defend the IAM lawsuit.
Mishky agreed to defend the case at a rate of $275 per hour.
At all relevant times, Rass was insured by a commercial
general liability policy issued by Travelers. The policy
covered, among other things, claims against the insured for
"[o]ral, written, or electronic publication of material that
slanders or libels a person or organization or disparages a
6
person's or organization's goods, products, or services." The
policy also required Travelers "to defend the insured against
any 'suit' seeking [covered] damages."
On March 6, 2008, Rass notified Travelers of the New Jersey
lawsuit. A Travelers senior technical specialist, John Banks,
responded by letter dated March 19, 2008. It states that "a
potential for coverage" exists under the policy, and that
Travelers agrees to defend Rass subject to a reservation of its
rights "to deny indemnification for any alleged acts which do
not fall within the enumerated personal injury offense . . . or
[fall within] any of the exclusions [listed in the policy]." In
the letter, Travelers also disclaimed coverage for any claim
related to the trade secrets allegations, but acknowledged that
the claims based on the e-mail to Trader Joe's obligated
Travelers to defend the action. Finally, Travelers agreed to
have Mishky remain on the case, but unilaterally set a rate of
payment of $200 per hour.
Throughout the duration of the underlying case, Mishky
regularly reported to the Travelers personnel assigned to the
case, including Banks; Amy Baker, a claims adjustor in
Travelers's major case unit specializing in business torts; and
John Scott, an attorney from a New Jersey law firm retained as
independent monitoring counsel. Despite Tulshian's claim of
$675,000 in lost profits and Baker's acknowledgment that no
7
policy exclusions applied, Mishky's initial assessment of IAM's
case was that Travelers had minimal exposure. As for the claims
arising out of the e-mail, Mishky applied a common-law
defamation analysis. The pretrial reports and notes indicate
that he thought it was defensible on the grounds that the e-mail
was limited in its publication and expressed only Jaggi's
opinion, and because a qualified privilege could apply to the
statements made. On the trade secrets claim, Mishky pointed to
the fact that Tulshian had done nothing to protect any trade
secret she claimed as hers, and the fact that the sauces were
made from generic Punjabi recipes that Jaggi had supplied to
Tulshian. Nevertheless, as the case neared a July 21, 2009,
trial date, in a report dated May 20, 2009, Mishky predicted a
possible verdict of $100,000 to $500,000, recommended a
settlement range of $100,000 to $150,000, and indicated that the
chance of a defense verdict was fifty to seventy-five percent.
On the July 21, 2009, trial date IAM dropped its demand
from $675,000 to $200,000, and then to $175,000. Extensive
settlement discussions occurred between IAM and Rass, with
communications to Travelers inquiring about contribution.
Travelers first offered $10,000 on the condition that Rass waive
its right to dispute Mishky's reasonable hourly rate. When that
offer was rejected, Travelers made a second offer of $20,000 on
the condition that Rass waive its right to seek indemnification
8
under the policy. Rass likewise rejected that offer and, not
wanting to lose the opportunity to avoid trial, settled the case
for $175,000 without any contribution from Travelers.
2. The present action. Having settled the New Jersey case
on its own, Rass filed a complaint in the Superior Court on June
7, 2010, alleging that Travelers had breached its contract and
had committed unfair or deceptive acts in violation of G. L.
c. 93A, § 2.3 Following discovery, Rass moved for partial
summary judgment as to liability on the settlement and
attorney's fees, while Travelers sought a summary judgment
ruling limited to its obligation to pay the attorney's fees Rass
incurred prior to its March 6, 2008, notice to Travelers of the
underlying claim. The judge allowed Travelers's motion and
denied Rass's.
A bench trial was held over multiple days in October and
November, 2012, at which Jaggi, Baker, and Mishky testified.
Rass also hired New Jersey attorney Gregg Paradise, a specialist
in intellectual property law, who testified as an expert for
Rass on the reasonableness of the settlement and provided his
opinion of the viability of IAM's claims under New Jersey law.
The focus of Paradise's and Mishky's testimony was that Rass's
3
The judge's finding that two additional counts, claiming
breach of the implied covenant of good faith and fair dealing
and common-law bad faith, were duplicative of the c. 93A claim
is not disputed on appeal.
9
settlement was reasonable because IAM had a viable trade
disparagement claim4 based on the contents of the e-mail.
Counsel for Travelers and Baker, the major case unit adjuster,
who is also an attorney, disputed that a trade disparagement
claim would be covered under Jaggi's policy because the e-mail
did not "disparage[] a person's or organization's goods,
products, or services" as provided in the policy language but,
rather, disparaged Tulshian herself, or her ownership of the
sauces. Counsel for Travelers also emphasized the absence of
any written records generated prior to the settlement
discussing, or even mentioning, trade disparagement.
Looking at the facts known to the parties at the time of
the settlement, the judge concluded that "Rass has proved by a
preponderance of the evidence that the settlement in large part
(but not entirely) reflected Rass's exposure to plaintiffs'
claims for lost profits due to the Trader Joe's e-mail and that
these claims were covered." The judge accordingly found that
Travelers had breached its contractual duties by failing to
contribute $140,000 to the $175,000 settlement. On the
attorney's fees issue, the judge found that there was little
dispute that Mishky's hourly rate of $275 was reasonable, and
4
Although IAM's complaint states a claim for both trade
libel and trade disparagement, the phrases are interchangeable.
We shall use the phrase trade disparagement for the remainder of
the opinion.
10
awarded Rass damages for the difference that Travelers had
failed to pay, which amounted to $25,000.
Assessing Travelers's conduct in relation to the
requirements of G. L. c. 176D, § 3(9), the judge found
Travelers's failure to contribute to the settlement, and its
failure to pay Mishky's reasonable attorney fees, to be unfair
and unreasonable in the face of the facts known to it and
reasonably available at the time and, therefore, to constitute a
violation of G. L. c. 93A. Rass subsequently requested
attorney's fees totaling $676,302.77. The judge awarded half
that figure, criticizing counsel for his obfuscating trial
tactics and noting that he had repeatedly filed frivolous and
unnecessary motions. After incurring more legal expenses for
work related to bringing the case to final judgment, Rass
submitted an additional motion for an updated fee award seeking
another $29,997.94. The judge summarily denied the motion,
citing the reasoning stated in Travelers's opposition. These
appeals followed. Additional facts will be set forth as
necessary.
Discussion. 1. Standards of review. "The standard of
review of a grant of summary judgment is whether, viewing the
evidence in the light most favorable to the nonmoving party, all
material facts have been established and the moving party is
entitled to a judgment as a matter of law." Augat, Inc. v.
11
Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R.
Civ. P. 56(c), as amended, 436 Mass. 1404 (2002). As to the
parties' remaining claims, we are bound by the trial judge's
findings of fact, including all reasonable inferences, that are
supported by the evidence. Twin Fires Inv., LLC v. Morgan
Stanley Dean Witter & Co., 445 Mass. 411, 420 (2005) (Twin
Fires). T.W. Nickerson, Inc. v. Fleet Natl. Bank, 456 Mass.
562, 569 (2010). Such findings will only be set aside if
clearly erroneous. Mass. R. Civ. P. 52(a), as amended, 423
Mass. 1402 (1996). "The judge's legal conclusions are reviewed
de novo." Anastos v. Sable, 443 Mass. 146, 149 (2004).
2. Breach of contract. a. Duty to pay pre-notice defense
costs. On Travelers's motion for partial summary judgment, the
judge concluded that Travelers had no duty under the policy
language to pay for the defense costs Rass incurred prior to
notifying Travelers of the underlying claim.5 We agree with the
judge's ruling.
When an insured fails to comply with its contractual
obligation to provide prompt notice of a claim, it is well
settled that, unless prejudiced, an insurer nevertheless has a
duty to defend the insured. Boyle, 472 Mass. at 655-658. There
5
Our analysis on the summary judgment claim is limited to
the undisputed facts related to Rass's delayed notice of the
claim to Travelers, and Travelers's refusal to pay the fees
incurred prior to its receipt of that notice.
12
is no equivalent body of case law in Massachusetts addressing
the related question of when an insurer's obligation to fund
that defense begins. The issue has been examined, however, in
the Federal District Courts, and in other States, where the
consensus is that the insurer bears no such obligation until
notice is received. See Hoppy's Oil Serv., Inc. v. Insurance
Co. of N. Am., 783 F. Supp. 1505, 1509 (D. Mass. 1992) ("No duty
to defend or to participate in a defense can arise before the
insurer has notice of the suit against the insured, or at least
of the underlying claim and the likelihood of suit"); American
Mut. Liab. Ins. Co. v. Beatrice Cos., Inc., 924 F. Supp. 861,
872 (N.D. Ill. 1996) (applying Massachusetts law) (Beatrice
Cos.); Windt, Insurance Claims & Disputes § 4:44, at 327-334
(6th ed. 2013) (Windt).
The reasoning supporting the majority position is
persuasive. First, an insurer cannot be aware of a duty to
defend an insured until notice is given. It would be
irrational, then, to conclude that the insurer could breach that
duty at a point when it is unaware that the duty exists.
Second, when an insurer receives late notice, it is unable to
control or minimize costs that have already been incurred. See
generally MacInnis v. Aetna Life & Cas. Co., 403 Mass. 220, 223
(1988) (notice of claim provision exists for purpose of allowing
insurer to protect its interests); Augat, Inc. v. Liberty Mut.
13
Ins. Co., 410 Mass. 117, 123 (1991) (where notice of claim did
not occur until after underlying settlement had been executed
and judgment entered, insurer not liable under policy,
regardless of prejudice, because "it was too late for the
insurer to act to protect its interests"). Here, during the
three-month delay, Travelers was unable to recommend counsel,
negotiate a fee rate, or take other steps to protect its
interests and minimize losses.
Finally, if the opposite result were reached, an insured
could be incentivized to delay providing notice so as to control
its own defense for as long as possible, knowing that, absent
prejudice, the insurer would have to cover the bill for
reasonable defense costs. See Beatrice Cos., supra at 873-874
("There are tactical reasons why an insured may want to withhold
the defense from an insurer that clearly covers a risk. For
example, especially in a high profile case, an insured may not
want to lose control of events to the insurer").
For all of these reasons, the judge properly allowed
Travelers's partial motion for summary judgment on the issue of
defense costs incurred prior to notice.6
6
We reject Rass's alternative argument that Travelers
became bound to pay the prenotice defense costs on the ground of
waiver due to Travelers's inadvertent payment of a portion of
Mishky's prenotice fees. To establish waiver, Rass must to
demonstrate that the payment amounted to the intentional
relinquishment of a known right. See Rotundi v. Arbella Mut.
14
b. Duty to indemnify. Because the underlying case did not
proceed to judgment, but settled, Travelers's liability under
the policy and, in turn, its duty to indemnify Rass for covered
losses were not determined on the record in the underlying case.7
In such instances, the court is left to determine an insurer's
duty to indemnify by looking to the basis for the settlement;
i.e., whether any portion of the settlement was made in
compensation for the acts alleged in the underlying complaint,
and, if so, whether those acts are covered under the policy
language. See Travelers Ins. Co. v. Waltham Indus. Labs. Corp.,
883 F.2d 1092, 1099 (1st Cir. 1989); Windt, supra at § 6:31, at
312. If any part of a settlement is for covered claims, the
court is then charged with allocating the settlement between
covered and noncovered claims. See Allmerica Fin. Corp. v.
Certain Underwriters at Lloyd's, London, 81 Mass. App. Ct. 674,
681 (2012) (remanding matter for, inter alia, allocation of
damages between claims covered by insurance and those not
covered by insurance) (Allmerica).
Ins. Co., 54 Mass. App. Ct. 906, 907 (2002). The record is
devoid of any facts supporting such an argument.
7
When an underlying complaint is tried to a jury, the judge
may assist the process of allocating covered and uncovered
claims by providing the jury with a special verdict form. See
Liquor Liab. Joint Underwriters Assn. of Massachusetts v.
Hermitage Ins. Co., 419 Mass. 316, 323 (1995).
15
The relevant inquiry in determining an insurer's obligation
in these circumstances is "how the parties to the settlement
viewed the relative merits of the plaintiff's claims at the time
of the settlement and whether, if the insured settled without
the carrier's approval, the settlement amount was reasonable."
Windt, supra at § 6:31, at 310-311. See American Home Assur.
Co. v. Libbey-Owens-Ford Co., 786 F.2d 22, 31 (1st Cir. 1986)
(noting on issue of allocating settlement that court "should
accept whatever evidence is available regarding the intent
behind the settlement decision"); Luria Bros. & Co. v. Alliance
Assur. Co., 780 F.2d 1082, 1091 (2d Cir. 1986) (insured need not
establish actual liability, so long as potential liability is
shown to exist on facts known to insured at time of settlement);
Nordstrom, Inc. v. Chubb & Son, Inc., 820 F. Supp. 530, 535
(W.D. Wash. 1992) ("An insurer is not entitled . . . to re-
litigate an underlying action following a settlement"). See
also Allmerica, supra.
As for the burden of proof, it rests with the insured, here
Rass, to prove "the compromise of claims that were covered by
the general insuring clause." Continental Cas. Co. v. Canadian
Universal Ins. Co., 924 F.2d 370, 376 (1st Cir. 1991), quoting
from Windt, supra at § 6.29, at 351.8
8
Rass argues that, based on Travelers's failure to pay
Mishky his reasonable hourly rate of $275, Travelers breached
16
Having set out a legal framework, we turn to the issues
before us. Here, the judge determined that Rass reasonably
settled the IAM case based on its probable liability for both
the e-mail claims and the trade secrets claim. Having
determined that the e-mail claims were covered, but the trade
secrets claim was not, the judge assigned an allocation. On
appeal, the parties agree that the claim for misappropriation of
trade secrets is not covered under the policy and, therefore,
Travelers has no duty to indemnify whatever portion of the
settlement is attributable to that claim. As to the claims of
defamation and trade disparagement arising from the e-mail,
however, the parties' positions diverge. While both agree that
defamation is covered under the policy, and that the e-mail may
be understood to support a claim for defamation, Travelers
maintains that, at the time of settlement, the affirmative
its duty to defend and, in so doing, shifted the burden of proof
from the insured to the insurer. While Rass is correct that a
breach of the duty to defend causes the burden to shift, see
Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 764
(1993), no such breach occurred here. Unlike Polaroid,
Travelers defended the suit against Rass, albeit at a lower
hourly rate, with no resulting prejudice incurred by Rass as a
result of the payment dispute. See ibid. (burden of proof
should shift to insurer "[b]ecause an insurer should be liable
for the natural consequences of a breach of contract that places
its insured in a worse position"). The only consequence flowing
to Travelers in unilaterally setting the lower rate is its
liability to Rass for the difference between the amount paid and
the amount owed under the reasonable rate, which the judge found
and is undisputed on appeal. See Citation Ins. Co. v. Newman,
80 Mass. App. Ct. 143, 144 n.4 (2011).
17
defenses to the defamation claim were considered to be so strong
that little if any portion of the settlement can be allocated to
that claim. Travelers also maintains that, while liability for
the tort of disparagement is covered under the policy, the e-
mail cannot be understood as giving rise to such a claim or as
falling within the policy coverage. Thus, Travelers argues that
no portion of the settlement can be attributed to the
disparagement claim. Rass, for its part, asserts that it faced
no liability for misappropriation of trade secrets, and that the
judge should have allocated the entire settlement to the e-mail
claims.
We conclude that the e-mail gave rise to a covered
disparagement claim as well as a covered defamation claim, and
we discern no reason to disturb the judge's allocation of the
settlement as between the e-mail claims and the trade secrets
claim. We address each point, in turn.
i. Viability and coverage of the e-mail related claims.
Travelers argues that the statements made in the e-mail do not
support a claim for trade disparagement because Jaggi's
statements concern Tulshian's ownership of the sauces, but do
not disparage their quality. Travelers also argues that a
disparagement claim under this set of facts is not a claim for
disparagement of "goods, products, or services," as required by
the language of the policy. The arguments fail, as the relevant
18
case law, facts, and policy language support coverage for the
disparagement claim, as well as the defamation claim.
Disparagement and defamation are distinct torts. See
generally Dairy Stores, Inc. v. Sentinel Publishing Co., 104
N.J. 125, 133-134 (1986), citing Prosser & Keeton, Torts § 111,
at 771, and § 128, at 962-964 (5th ed. 1984) (Prosser & Keeton).9
Disparagement, or trade libel, requires proof of a publication
of a false statement "derogatory to the quality of a plaintiff's
business, of a kind calculated to prevent others from dealing
with [her], or otherwise to interfere adversely with plaintiff's
relations with others." Patel v. Soriano, 369 N.J. Super. 192,
246-247 (App. Div. 2004). "The communication must be made to a
third person and must play a material part in inducing others
not to deal with plaintiff." Id. at 247. Defamation, on the
other hand, requires a statement that "is false, communicated to
a third person, and tends to lower the subject's reputation in
the estimation of the community or to deter third persons from
associating with him." Lynch v. New Jersey Educ. Assn., 161
N.J. 152, 164-65 (1999), citing Restatement (Second) of Torts
§§ 558, 559 (4th ed. 1977). "[T]he threshold issue in any
defamation case is whether the statement at issue is reasonably
susceptible of a defamatory meaning." Printing Mart-Morristown
9
As the underlying lawsuit was filed in New Jersey, the
parties do not dispute the application of its laws to the issue
of coverage of the claims set out therein.
19
v. Sharp Electronics Corp., 116 N.J. 739, 765 (1989). Simply
put, disparagement concerns the reputation of a business, while
defamation concerns an individual's personal reputation in the
community.
Depending on the individual facts involved in any given
case, there can be a significant overlap in the causes of
action. See Prosser & Keeton, supra at 964-965 (noting that
"[m]any statements effectuate both harms"); Dairy Stores, Inc.
v. Sentinel Publishing Co., supra at 133 (noting overlap in
causes of action); Patel v. Soriano, supra at 248 (same). Such
is the case here, where, as the judge found, and we concur, the
10
statements went to both personal and business reputation. In
the e-mail, Jaggi insults Tulshian's personal reputation by
falsely stating that Rass owns the sauces and by calling her
actions "illegal" and "unethical." The statements also concern
her business dealings through her company. As the principal of
IAM, Tulshian was the face of the company, and a personal insult
to her equally could be seen as a disparagement of the
"character" of her business organization that would prevent
10
We are in as good a position as the judge to read the e-
mail and determine if coverage is triggered based on its
contents. We add, nonetheless, that our reading and
interpretation accords with that of the judge.
20
others from doing business with her.11 See Prosser & Keaton,
supra at 964. Because a statement about a business, itself, may
fall within the realm of disparagement, Travelers's arguments
about the absence of any disparagement of the product's quality
are irrelevant.12 In sum, the e-mail gave rise to possible
defamation and disparagement claims.13
As to coverage for disparagement, Travelers argues that
because IAM's business with Rass was not a "good, product or
service" disparaged by Jaggi's e-mail, any trade disparagement
11
As aptly stated by the judge: "[T]he Trader Joe's email
was impossible to deny: it was admittedly sent and it said what
it said. If the email were simply seen as a way to besmirch
Tulshian's personal reputation, then she would be hard-pressed
to show damages. But the email did more than that, targeting
Tulshian's business and disparaging her products. Its message
was also clear: Trader Joe's should not deal with Tulshian or
IAM directly."
12
Travelers cites Heritage Mut. Ins. Co. v. Advanced
Polymer Tech., Inc., 97 F. Supp. 2d 913 (S.D. Ind. 2000), in its
brief in support of the proposition that insurers should bear no
responsibility for covering claims involving a dispute over
ownership or title under a policy providing coverage for the
disparagement of goods, products, or services. The case is
inapposite, as there was no allegation that the insured in that
case had disparaged the character of the opposing party's
business or product. It was for that reason that the court held
that no coverage existed under similar policy language. See id.
at 931-933.
13
Travelers makes much of the fact that, prior to the
present action, everyone involved viewed the e-mail as only
giving rise to a highly defensible defamation claim. Whether
there were defenses, however, is relevant only to the extent
that Travelers can show that Jaggi thought the defamation claims
were so defensible that he settled only due to his liability on
the trade secrets claim. That showing has not been made, and is
contrary to the facts found.
21
claim is not covered under the language of the policy. "It is
. . . appropriate, in construing an insurance policy, to
consider what an objectively reasonable insured, reading the
relevant policy language, would expect to be covered." Hazen
Paper Co. v. United States Fid. & Guar. Co., 407 Mass. 689, 700
(1990). "If there are two rational interpretations of policy
language, the insured is entitled to the benefit of the one that
is more favorable to it." Ibid. In this case, where Jaggi
called into question the legal status of any sauces Tulshian
might produce, and viewing the policy in Rass's favor, an
objective and reasonable policyholder would expect any
disparagement claim arising from those facts to be covered under
the policy language.14
Accordingly, we conclude that all claims arising out of the
e-mail were covered under the relevant policy language.
ii. Allocation. Based on the undisputed record and
credible testimony, the judge allocated eighty percent, or
$140,000 of the $175,000 settlement, to the e-mail-related
claims, with the remainder to the trade secrets claim. Upon an
extensive review of the record and the judge's findings, we see
no reason to disturb the allocation reached.
14
Although we review the coverage question de novo, we note
that we reach the analogous conclusion as the judge.
22
Several facts point to the strength of the claims raised by
the e-mail, and Rass's consideration of them at the time of the
settlement. First, Rass knew that IAM was seeking $675,000 in
losses. That figure could be directly related to the e-mail,
which impeded Tulshian and IAM from selling to Trader Joe's. In
other words, unlike the trade secrets claim, the e-mail claims
were supported by direct evidence linking Rass to IAM's lost
business. Mishky's pretrial analysis reflected this concern,
with a predicted possible verdict of $100,000 to $500,000 and a
recommended settlement range of $100,000 to $150,000. Second,
and particularly telling of Rass's state of mind on July 21,
2008, is the fact that the settlement included, at Tulshian's
urging, a condition that Rass recant its prior statement to
Trader Joe's, but included no assignment of any trademark, trade
secret, or other right.
The record likewise supports the judge's conclusion that
the trade secrets claim formed some small basis for the
settlement. Contrary to Rass's assertions that it faced no
liability for trade secrets, the four counts related to trade
secrets all survived until trial, which was scheduled to
commence on the day the settlement was reached. Mishky, who
testified on behalf of Rass at trial, noted that any claim that
reaches a jury carries some risk, and that the trade secrets
claim carried a five to ten percent chance of a plaintiff's
23
verdict. Mishky's testimony reflects the fact that a jury can
and often does act unpredictably, and a settlement of claims
reflects a compromise to avoid exposure at trial. See generally
Reading Co-Op. Bank v. Suffolk Constr. Co., 464 Mass. 543, 551
(2013); Curcuru v. Rose's Oil Serv., Inc., 66 Mass. App. Ct.
200, 217 (2006).
3. General Laws c. 93A. In its cross-appeal, Travelers
disputes the judge's finding of a violation of G. L. c. 93A.
Rass, on the other hand, argues that multiple damages are
warranted based on Travelers's actions, and that the judge erred
in reducing its award of attorney's fees, and in declining to
award supplemental attorney's fees.
a. Violation of c. 93A based on unfair claim settlement
practices. Liability under G. L. c. 93A, § 2, is based upon the
employment of "unfair or deceptive acts or practices in the
conduct of any trade or commerce" while G. L. c. 176D, § 3, sets
forth unfair acts or practices specific to the insurance
industry. See Silva v. Steadfast Ins. Co., 87 Mass. App. Ct.
800, 803 (2015) (Silva). Among those practices enumerated in
c. 176D, § 3(9), are unfair claim settlement practices,
including:
"(d) [r]efusing to pay claims without conducting a
reasonable investigation based upon all available
information; . . .
24
"(f) [f]ailing to effectuate prompt, fair and
equitable settlements of claims in which liability has
become reasonably clear; [and]
"(g) [c]ompelling insureds to institute litigation to
recover amounts due under an insurance policy by
offering substantially less than the amounts
ultimately recovered in actions brought by such
insureds."
G. L. c. 176D, § 3(9), as amended by St. 2012, c. 208, § 21. "A
violation of G. L. c. 176D, § 3(9), itself establishes a
violation of G.L. c. 93A unless the injured party is 'engage[d]
in the conduct of any trade or commerce.' See G. L. c. 93A,
§§ 9(1), 11." Boyle, 472 Mass. at 661. In that case, as here,
a violation of c. 176D, § 3(9), provides evidence of an unfair
or deceptive practice in violation of c. 93A, but is not
conclusive. See Silva, supra at 803-804, citing Northern
Security Ins. Co. v. R.H. Realty Trust, 78 Mass. App. Ct. 691,
696 n.12 (2011). "[W]hether a particular set of acts, in their
factual setting, is unfair or deceptive is a question of fact,"
which we review for clear error. See Klairmont v. Gainsboro
Restaurant, Inc., 465 Mass. 165, 171 (2013), quoting Casavant v.
Norwegian Cruise Line Ltd., 460 Mass. 500, 503 (2011).
The judge made the following findings of fact in support of
her conclusion that Travelers had committed unfair claim
settlement practices in violation of c. 93A. First, Travelers,
by its statements and conduct, acknowledged that it would be
required to indemnify Rass if IAM prevailed on its e-mail-
25
related claims.15 At that time Travelers also was aware, or
should have been aware, based on its duty to investigate, of the
strength of the e-mail-related claims and Rass's likely exposure
to a judgment in the six figures. Nevertheless, Travelers
offered a settlement contribution far below Rass's likely
exposure. Second, Baker attempted to condition that inadequate
contribution on a waiver of Rass's right to seek attorney's fees
or indemnification. By these acts, Travelers failed to
effectuate a fair and equitable settlement of claims in which
liability had become reasonably clear. See G. L. c. 176D,
§ 3(9)(d), (f). Third, by surrendering control of the defense
to the insured under a reservation of rights, yet at the same
time refusing to pay Mishky's hourly rate, which was reasonable,
Travelers unfairly compelled Rass to seek the unpaid fees
through litigation.16 See G. L. c. 176D, § 3(9)(g). See also
15
In so finding, the judge clarified that Travelers's acts
were not the result of a plausible, good faith, yet ultimately
incorrect interpretation of the policy at issue. Contrast
Premier Ins. Co. of Massachusetts v. Furtado, 428 Mass. 507, 510
(1998), citing Gulezian v. Lincoln Ins. Co., 399 Mass. 606, 613
(1987).
16
Quoting from another decision of the Superior Court, the
judge sensibly observed that "an insurer cannot reserve its
rights and thereby surrender control of the defense, and still
reasonably expect that it will pay the same amount of legal fees
that it would have paid had it accepted coverage and retained
control of the defense. Through its reservation of rights, the
insurer's duty to defend is transformed into a duty to reimburse
its insured for reasonable attorney's fees incurred by the
insured's chosen counsel."
26
Citation Ins. Co. v. Newman, 80 Mass. App. Ct. 143, 144 n.4
(2011) ("reasonable charges are to be assessed with reference to
market rates; an insurer may not insist on paying only the
discounted rate it has been able to negotiate with its panel of
attorneys").
The findings are well supported by the record, and
demonstrate a pattern of unfair conduct on the part of Travelers
in violation of both c. 176D and c. 93A. See R.W. Granger &
Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 75-78
(2001); MT "Baltic Commander" Schiffahrtsgesellschaft MBH & Co.
KG v. Massachusetts Port Authy., 918 F. Supp. 2d 105, 113-114
(D. Mass. 2013).
b. Willful or knowing violation. General Laws c. 93A,
§ 11, provides that, upon a finding of a violation of c. 93A,
"recovery shall be in the amount of actual damages; or up to
three, but not less than two, times such amount if the court
finds that the use or employment of the method of competition or
the act or practice was a willful or knowing violation"
(emphasis added). To be wilful or knowing, a violation need not
be malicious, but must constitute more than negligence. Within
that range is conduct that is "intentionally gainful," McGonagle
v. Home Depot U.S.A., Inc., 75 Mass. App. Ct. 593, 600 n.9
(2009), or demonstrates a wilful recklessness or conscious,
27
knowing disregard for its likely results, see Gore v. Arbella
Mut. Ins. Co., 77 Mass. App. Ct. 518, 531-532 (2010).
Here, noting "the last minute nature of the demand . . .
coupled with Travelers's earlier reliance on Mishky's
evaluations" the judge declined to find a wilful or knowing
violation justifying multiple damages. That conclusion comports
with the judge's findings of negligence on the part of Travelers
relative to its investigative obligations, and in its reliance
on Mishky's overly optimistic reports. Yet, as to the
settlement contribution offered, and the refusal to pay Mishky's
hourly rate, the judge characterized Travelers's tactics as
exerting leverage, and found them to be "extortionate" and
without "good faith." Rass argues that such findings compel an
award of multiple damages. We disagree.
"Whether the defendants violated c. 93A in a wilful or
knowing manner was a matter for the judge," Kattar v. Demoulas,
433 Mass. 1, 15 (2000), which we review for an abuse of
discretion, Clark v. Leisure Woods Estates, Inc., 89 Mass. App.
Ct. 87, 94 (2016). "[B]ecause evidence will support a
particular finding does not require that the finding be made."
Kattar v. Demoulas, supra at 16. Here, while an award of
multiple damages arguably may have been supported by some of the
findings, the judge was well within the range of her discretion
in declining so to order, particularly in consideration of her
28
experience with the case in its entirety. See ibid., citing
Clegg v. Butler, 424 Mass. 413, 420 (1997) (judge's c. 93A
findings will not be disturbed unless clearly erroneous).
c. Attorney's fees.17 On appeal, Rass strongly objects to
the reduction of its fee submission by half and the denial of
its motion for supplemental fees. Travelers challenges the fee
award as well, arguing that Rass should not be awarded fees for
time spent on work unrelated to the c. 93A claim.
A trial judge is owed substantial deference in the award
of reasonable attorney's fees, having witnessed the parties,
counsel, and case being tried firsthand. See Heller v.
Silverbranch Constr. Corp., 376 Mass. 621, 629 (1978); Fontaine
v. Ebtec Corp., 415 Mass. 309, 324 (1993) (reasonable attorney's
fee award "is largely discretionary with the judge"); Twin
Fires, 445 Mass. at 431. Employing the "lodestar" method, Ross
v. Continental Resources, Inc., 73 Mass. App. Ct. 497, 515
(2009), a judge "should consider the nature of the case and the
issues presented, the time and labor required, the amount of
damages involved, the result obtained, the experience,
reputation and ability of the attorney, the usual price charged
for similar services by other attorneys in the same area, and
17
General Laws c. 93A, § 11, provides that, if a violation
of c. 93A, § 2, has been established, the plaintiff "shall . . .
be awarded reasonable attorneys' fees and costs incurred in said
action."
29
the amount of awards in similar cases." Linthicum v.
Archambault, 379 Mass. 381, 388-389 (1979) (Linthicum). See T.
Butera Auburn, LLC v. Williams, 83 Mass. App. Ct. 496, 503
(2013).
Here, the judge provided several reasons for her
substantial reduction of the fees requested. She noted that the
case generally did not raise complex legal issues, but where
there was complexity she was hindered rather than helped by
Rass's submissions. Further, Rass made submissions that were
outside of the procedural rules and frivolous, and which
continued to press arguments that had already been decided or
were plainly incorrect. As an example, the judge noted the
fifty hours billed for Rass's motion for summary judgment,
despite the "near impossibility of prevailing on such a motion."
Finally, the judge remarked on the excessive and duplicative
time Rass's counsel billed for certain pleadings and motions.
As for the supplemental fee request, the judge denied the motion
for the reasons cited in Travelers's opposition.
It is apparent from the record that Rass overwhelmed the
court with numerous filings of dubious value, and then submitted
voluminous, detailed billing statements for that work. In her
application of the Linthicum factors, the judge was well
warranted in reducing the fees requested by a large percentage
on that basis. In doing so, she was not required to provide an
30
hour-by-hour accounting of the result reached. See Twin Fires,
supra at 429-430 (upholding a forty-five percent reduction of
fee award where plaintiff had submitted overwhelming and
unhelpful billing materials, as it was not judge's role "to sort
out the plaintiffs' perplexing submission. To do so would [be]
a poor use of judicial resources"), citing Berman v. Linnane,
434 Mass. 301, 303 (2001) (judge not "required to review and
allow or disallow each individual item in the bill, but could
consider the bill as a whole"). It is also apparent that no
apportionment of the fees was required between the c. 93A and
breach of contract claims, as they arose from the same primary
conduct or chain of events. See Castricone v. Mical, 74 Mass.
App. Ct. 591, 604 (2009), and cases cited. On the motion for
supplemental fees, Travelers's opposition argued that the
additional fees were for unnecessary work. Upon review, the
judge's denial on those grounds was not an abuse of her
substantial discretion.18
Judgment affirmed.
18
Because we affirm the judgment below, we decline to award
attorney's fees to Rass.