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Date: 03-18-2019

Case Style:

Garrick Calandro v. Sedgwick Claims Management Service, Inc.

Case Number: 18-1637

Judge: Selya

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: David J. Hoey

Defendant's Attorney: Allen N. David, Jane A. Horne, Catherine M. Scott

Description:





A Massachusetts statute,
familiarly known as Chapter 176D, requires firms that are "in the
business of insurance" to handle claims in good faith and to
respond reasonably to the exigencies of the settlement process.
Mass. Gen. Laws ch. 176D, § 3. But every case has twists and
turns, and an insurance carrier is not to be held to a duty of
prescience.
This case illustrates the point. In it, plaintiffappellant
Garrick Calandro, suing in his capacity as administrator
of the estate of Genevieve Calandro (his late mother), won a multimillion
dollar jury verdict for wrongful death and conscious pain
and suffering against a nursing home. Attempting to add to the
spoils of that victory, the plaintiff then sued a claims-management
firm, defendant-appellee Sedgwick Claims Management Services, Inc.
(Sedgwick), contending that Sedgwick's actions, both pre- and
post-verdict, violated Chapter 176D.1 That suit was tried to the
district court which entered a take-nothing judgment. The
plaintiff appeals, arguing that the district court erred in holding
1 As its corporate name implies, Sedgwick is in the claimsmanagement
business. It is an open question whether a claimsmanagement
firm, as opposed to an insurance carrier, is "in the
business of insurance," Mass. Gen. Laws ch. 176D, § 3, and
therefore subject to the provisions of Chapter 176D. We need not
answer this question today but, rather, follow the district court's
lead and assume, without deciding, that Sedgwick is subject to the
strictures of Chapter 176D.
- 3 -
that Sedgwick's actions did not constitute unfair claims
settlement practices.
Bench trials evoke a deferential standard of review.
Applying this respectful standard, we affirm the judgment below.
I. BACKGROUND
The case at hand involves a tangled web of facts and a
complicated procedural history. For ease in exposition, we offer
only a barebones sketch and refer the reader who hungers for the
full anthology to the district court's opinions. See Calandro v.
Sedgwick Claims Mgmt. Servs. (Calandro I), 264 F. Supp. 3d 321 (D.
Mass. 2017); Calandro v. Sedgwick Claims Mgmt. Servs. (Calandro
II), No. 15-10533, 2017 WL 5593777 (D. Mass. Nov. 21, 2017).
Sedgwick is a claims-management firm, that is, a thirdparty
administrator of insurance claims. At the times material
hereto, Hartford Insurance Company (Hartford) insured the Radius
Danvers nursing facility (Radius), located in Danvers,
Massachusetts. Hartford retained Sedgwick to handle claims
arising out of Radius's operations.
During this period, Genevieve Calandro was a resident at
Radius. While there, she fell from her wheelchair and was taken
to a local hospital. She never returned to Radius and died at a
hospice facility on August 16, 2008.
After securing letters of administration, the plaintiff
sued Radius in a Massachusetts state court. His complaint
- 4 -
adumbrated claims for negligence and wrongful death. Sedgwick
learned of the suit on October 12, 2011. On the same day, it
received a letter from the plaintiff's attorney demanding $500,000
to settle the plaintiff's claims. According to Sedgwick, no
information that might have facilitated settlement was received
along with the demand letter.
Sedgwick engaged Attorney Lawrence Kenney as Radius's
defense counsel. It also engaged an independent adjuster, Paul
Bistany, and instructed him to "assess the liability and injuries
for possible resolution." Bistany's first report, dated October
24, 2011, noted that the cause of death seemed to be related to
ongoing medical conditions and, thus, did not necessarily evince
any negligence on Radius's part. In the same report, Bistany noted
that some of the documents that he expected to find (such as the
incident report following the fall) were missing from Radius's
files. Finally, Bistany explained that he had experienced
difficulty in locating witnesses (apparently because Radius's
parent company was in the process of closing the facility).
Bistany furnished a second report to Sedgwick in January
of 2012. This report recounted, inter alia, his success in
locating and interviewing two nurses who had cared for Genevieve
Calandro. Their information proved unhelpful, though, as they
offered inconsistent recollections of what transpired before and
after Genevieve fell from her wheelchair. In July of 2012, the
- 5 -
plaintiff added Dr. David Wahl, who was both Radius's medical
director and Genevieve's attending physician, as a defendant in
the state-court suit.
We fast-forward to May 1, 2013. On that date, a hearing
was held before a medical malpractice tribunal (MMT). See Mass.
Gen. Laws ch. 231, § 60B. During the MMT proceeding, the plaintiff
tendered an offer of proof, which included Genevieve's death
certificate and some form of opinion evidence from a retained
expert, Dr. Paul Genecin. The record of the MMT proceeding is not
in evidence, and the parties dispute what quantum of information
Sedgwick received at that time. Sedgwick maintains that the
plaintiff's offer of proof was simply an outline of Dr. Genecin's
opinion and, as such, was insufficient to make liability reasonably
clear. It adds that it did not receive Dr. Genecin's full report
until April 27, 2014. The plaintiff disagrees: he asserts — based
on his interpretation of a note handwritten by Mary Blair (the
Sedgwick official in charge of the case) — that Sedgwick was given
Dr. Genecin's full report in anticipation of the MMT proceeding
(May of 2013) and that, therefore, the MMT proceeding yielded
information that established Radius's liability for the death of
Genevieve Calandro.
The MMT allowed the state-court suit to proceed, see
Mass. Gen. Laws ch. 231, § 60B, and discovery continued. During
Dr. Wahl's deposition, taken on November 13, 2013, the plaintiff
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offered to settle all claims against Radius and Dr. Wahl for
$500,000. The defendants responded on February 6, 2014, extending
a joint settlement offer of $275,000. Of this amount, Radius was
to contribute $125,000. Around the same time (February 7, 2014),
Attorney Kenney wrote a report to Sedgwick, in which he forecast
the defendants' exposure at verdict to be in the $300,000 to
$500,000 range.
The plaintiff rejected the defendants' February 6
counter-offer, but the parties persisted in their efforts to settle
the state-court suit. Nevertheless, the gap grew wider when, in
April of 2014, the plaintiff increased his demand to $1,000,000.
The next month, the defendants put a joint counter-offer of
$300,000 on the table. In a letter dated June 4, 2014, Attorney
David Hoey, representing the plaintiff, rejected this counteroffer
and began efforts to get separate offers from each of the
defendants.
In mid-June of 2014, Blair called Attorney Hoey and
voiced her desire to settle the matter. Before Blair got around
to proposing a settlement amount, Attorney Hoey ended the call,
saying that he needed to speak with his client. Blair heard back,
albeit indirectly, when Attorney Hoey emailed Attorney Kenney on
June 17, that the case could not be resolved in the range of the
last previous offer. Dr. Wahl's counsel found a more receptive
audience: he settled the plaintiff's claims against his client
- 7 -
for $250,000 — a settlement in which the plaintiff reserved all
rights against Radius. Neither Sedgwick nor Attorney Kenney was
privy to these negotiations.
On July 3, 2014, one of Attorney Hoey's associates emailed
Attorney Kenney, informed him of the separate settlement
with Dr. Wahl, and demanded $1,000,000 to settle the plaintiff's
claims against Radius. The e-mail indicated that unless an offer
exceeding $500,000 was extended by July 9, settlement negotiations
would be terminated and the case would proceed to trial. Due to
the July 4 holiday, Attorney Kenney did not see the e-mail until
July 8. No counter-offer was made within the stipulated time
frame. On July 14, though, Attorney Kenney offered the plaintiff
$250,000 and communicated his belief that there was some room to
negotiate. Attorney Hoey turned down the offer and eschewed
further negotiations.
The state-court trial commenced on July 17, 2014,
lasting for four days. Radius admitted to breaching the standard
of care and tried the case on the issues of causation and damages.
The jury found Radius grossly negligent and held it liable both
for Genevieve Calandro's wrongful death and for her conscious pain
and suffering, awarded the plaintiff $1,425,000 in compensatory
damages, and also awarded him $12,514,605 in punitive damages.
Hartford's policy limit — $1,000,000 — was inadequate to
satisfy the verdict. Not surprisingly, Attorney Hoey notified
- 8 -
both Hartford and Sedgwick that the plaintiff planned to seek
damages under Chapter 176D and Chapter 93A. In response, Sedgwick
offered just under $2,000,000 to settle the claims against it, but
the plaintiff spurned that offer. Thereafter, Hartford began
negotiating separately and made its peace with the plaintiff. The
details of that arrangement need not concern us.
In due course, the plaintiff sued Sedgwick in a
Massachusetts state court. Citing diversity of citizenship2 and
the existence of a controversy in the requisite amount, Sedgwick
removed the action to the federal district court. See 28 U.S.C.
§§ 1332(a), 1441(b). Once a litany of pretrial issues were
resolved, see, e.g., Calandro I, 264 F. Supp. 3d at 325, the
district court convened a bench trial. Following the taking of
testimony, post-trial briefing, and arguments of counsel, the
court ruled in Sedgwick's favor. It concluded that "reasonable
offers" were made "at key points leading up to trial" in the state
court, and that the plaintiff had rejected all of those offers.
Calandro II, 2017 WL 5593777, at *5. Moreover, "causation and
damages were hotly contested" throughout the proceedings, at least
with respect to the wrongful death claim. Id. Viewed in context,
2 The plaintiff is a citizen of Massachusetts, as was
Genevieve Calandro at the time of her death. Sedgwick is an
Illinois corporation, which maintains its principal place of
business in Tennessee.
- 9 -
Sedgwick's conduct did not transgress Chapter 176D. See id. at
*8. This timely appeal ensued.
II. ANALYSIS
Following a bench trial, we review the district court's
legal determinations de novo. See Smith v. F.W. Morse & Co., 76
F.3d 413, 420 (1st Cir. 1996). In contrast, we accept the court's
factual findings, including reasonable inferences drawn from raw
facts, unless those findings are clearly erroneous. See United
States v. U.S. Gypsum Co., 333 U.S. 364, 394-95 (1948); Smith, 76
F.3d at 420. Put another way, the district court's findings of
fact must be honored unless, "after careful evaluation of the
evidence, we are left with an abiding conviction that those
determinations and findings are simply wrong." State Police Ass'n
of Mass. v. Comm'r of Internal Revenue, 125 F.3d 1, 5 (1st Cir.
1997); see Fed. R. Civ. P. 52(a). Where, as here, an appellate
court is called upon to review findings of fact made at a bench
trial, this deference makes perfect sense: in such a situation,
the trial court "sees and hears the witnesses at first hand and
comes to appreciate the nuances of the litigation in a way which
appellate courts cannot hope to replicate." Cumpiano v. Banco
Santander P.R., 902 F.2d 148, 152 (1st Cir. 1990); Reliance Steel
Prods. Co. v. Nat'l Fire Ins. Co. of Hartford, 880 F.2d 575, 576
(1st Cir. 1989) (observing that "[d]isputes of this nature are the
- 10 -
staples of a trial court's diet, and comprise an unappetizing,
usually unnourishing, bill of fare for appellate digestion").
In this diversity case, the substantive law of
Massachusetts controls. See Erie R.R. v. Tompkins, 304 U.S. 64,
78 (1938). Under Massachusetts law, a firm that is in the business
of insurance commits an "[u]nfair claim settlement practice[]" by
"[f]ailing to effectuate prompt, fair and equitable settlements of
claims in which liability has become reasonably clear," Mass. Gen.
Laws ch. 176D, § 3(9)(f), or by "[r]efusing to pay claims without
conducting a reasonable investigation," id. § 3(9)(d). A party
whose rights are abridged by a violation of Chapter 176D is
"entitled to bring an action to recover for the violation under
[Mass. Gen. Laws Chapter 93A section 9]." Rhodes v. AIG Domestic
Claims, Inc., 961 N.E.2d 1067, 1075 (Mass. 2012); see McDermott v.
Marcus, Errico, Emmer & Brooks, P.C., 775 F.3d 109, 117 (1st Cir.
2014). "Together, the[se] statutes require an insurer . . .
'promptly to put a fair and reasonable offer on the table when
liability and damages become clear . . . .'" Bobick v. U.S. Fid.
& Guar. Co., 790 N.E.2d 653, 658 (Mass. 2003). It bears emphasis,
however, that the duty to settle arises only when liability and
damages for the underlying claim have become reasonably clear.
See id. at 659; Clegg v. Butler, 676 N.E.2d 1134, 1140 (Mass.
1997). Liability is not reasonably clear if an element in the
underlying claim is subject to good-faith disagreement. See Clegg,
- 11 -
676 N.E.2d at 1138. An insurer who has investigated a claim and
has a good-faith basis for concluding that liability is not
reasonably clear does not violate Chapter 176D either by delaying
a settlement offer or for withholding one altogether.3 See id. at
1140.
With this framework in place, we turn to the district
court's conclusion that Sedgwick did not violate Chapter 176D.
This conclusion rests on a foundation of subsidiary findings: that
Sedgwick investigated the claim in a timeous manner and in good
faith by, among other things, engaging Bistany and retaining
Attorney Kenney, requiring serial reports, and hiring a medical
expert; that, based (at least in part) on this investigation, the
causation element of the wrongful death claim was not reasonably
clear and, thus, Sedgwick had adequate reason to contest liability
thereon; and that, even assuming that liability was reasonably
clear with respect to the claim for conscious pain and suffering,
Sedgwick did not violate Chapter 176D because it made reasonable
settlement offers at appropriate times. See Calandro II, 2017 WL
5593777, at *7.
3 To be sure, an insurer cannot avoid liability under Chapter
176D by playing the ostrich and burying its head in the sand. The
insurer's investigation must itself be carried out expeditiously
and in good faith, see Clegg, 676 N.E.2d at 1140, thus ensuring a
degree of accountability.
- 12 -
In this venue, the plaintiff comes out swinging. Hoping
to land a knockout blow, he pummels many of the district court's
conclusions. For one thing, he submits that liability was
reasonably clear as to both the conscious pain and suffering and
wrongful death claims in October of 2011 (when Sedgwick received
Bistany's initial report). For another thing, he challenges the
district court's finding that causation was always a contested
issue with respect to the wrongful death claim. Finally, he
challenges Sedgwick's good faith and says, among other things,
that the district court erred in deeming Sedgwick's settlement
offers reasonable and prompt.
The plaintiff is punching above his weight. Most of his
arguments can be bundled together and dealt with as a single
strike. The common denominator is that those arguments are
ineluctably factbound and, taken in the ensemble, boil down to a
plaint that the district court missed the mark in concluding that
Sedgwick's conduct did not violate Chapter 176D. While the
plaintiff acknowledges that these arguments are "factuallyintensive"
and subject only to clear-error review, he nonetheless
invites us to hold that the record as a whole belies the district
court's findings. We decline the invitation.
We start with the plaintiff's asseveration that
liability was reasonably clear on both the wrongful death and the
conscious pain and suffering claims as early as October of 2011.
- 13 -
This asseveration, though, was not articulated in the district
court and, thus, may well be waived. See Teamsters Union, Local
No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992)
("If any principle is settled in this circuit, it is that, absent
the most extraordinary circumstances, legal theories not raised
squarely in the lower court cannot be broached for the first time
on appeal.").
In all events, the asservation lacks force. When he
conducted his investigation in October of 2011, Bistany was unable
to determine whether or to what extent Radius was liable for the
death of Genevieve Calandro, partially because certain documents
were missing and some witnesses had not yet been located. Based
on the incomplete information available to him, Bistany suggested
that Genevieve's longstanding health issues seemed to be the most
likely cause of the difficulties that she experienced. Given his
report of October 24, 2011, Sedgwick had every reason to continue
to investigate — as it did — rather than roll over and concede
that Radius's negligence was the cause of death. Consequently, we
discern no clear error in the district court's implicit finding
that, with respect to wrongful death, causation (and, therefore,
liability) was not reasonably clear in October of 2011.
The district court's finding that causation (and,
therefore, liability) was never reasonably clear with respect to
the wrongful death claim at any time before the state-court jury
- 14 -
returned its verdict, see Calandro II, 2017 WL 5593777, at *7, is
likewise supportable. In assailing this finding, the plaintiff
points to e-mail exchanges between Blair and Attorney Kenney, which
he interprets as indicating that liability is likely. Although
this argument has a patina of plausibility, it cannot withstand
scrutiny.
In the course of the bench trial, witnesses clarified
that "liability," as used by lawyers and claims personnel in the
insurance industry, typically refers to a breach of the standard
of care — not to causation. Both Blair and Attorney Kenney
testified that they used the term in that way. The district court
credited this account. See id. at *5 n.7. Within wide limits,
credibility determinations are committed to the sound judgment of
the trial court, see Fed. Refin. Co. v. Klock, 352 F.3d 16, 29
(1st Cir. 2003), and the plaintiff has given us no reason to
deviate from that principle here.
We add, moreover, that other evidence amply supported
the district court's finding that Sedgwick continually — and in
good faith — contested the causation element of the wrongful death
claim. See Calandro II, 2017 WL 5593777, at *7. As we have
already noted, Bistany reported to Sedgwick, early on, that the
cause of Genevieve Calandro's death was unclear. Contrary to the
plaintiff's importunings, this uncertainty was not dissipated by
the plaintiff's May 2013 offer of proof to the MMT. The district
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court supportably found that offer of proof to be no more than an
outline of the expert opinion evidence that the plaintiff hoped to
adduce at trial and, thus, too insubstantial to render causation
(and, therefore, liability) reasonably clear.4 See id. at *7-8 &
n.9. In this connection, the district court credited Attorney
Kenney's testimony that Sedgwick did not receive Dr. Genecin's
complete report (laying out his reasoning about the cause of
Genevieve Calandro's death) until late April of 2014. See id. at
*7 n.9. Blair's handwritten note does not undermine these
findings; the plaintiff himself recognized that whatever Blair
received served only to make Sedgwick generally "aware of the
nature of Dr. Genecin's expected testimony."
In the interval between the MMT proceeding and the
disclosure of the expert's complete report, the investigation into
liability continued. It was not until May of 2014 that Sedgwick
received an opinion on causation from its own medical expert — an
opinion that differed materially from that of Dr. Genecin. To
cinch the matter, the verdict form in the underlying state-court
4 The fact that the MMT allowed the plaintiff's state-court
suit to proceed, without more, does not establish that liability
on the wrongful death claim was reasonably clear. See Mass. Gen.
Laws ch. 231, § 60B (stating that purpose of MMT is to distinguish
claims that are "merely [] unfortunate medical result[s]" from
claims that are judicially cognizable); Joseph v. Sweet, 125 F.
Supp. 2d 573, 575 (D. Mass. 2000) ("Essentially, [the MMT] is an
initial screen, derailing claims with no legal merit from clogging
already congested civil court dockets and increasing litigation
costs.")
- 16 -
trial revealed that the question of causation was submitted to the
jury, thus confirming that Sedgwick never conceded the causation
element of the wrongful death claim.
To be sure, the evidence admittedly points in
conflicting directions. What matters, however, is that the record
as a whole plausibly supports the district court's findings. See
Fed. Refin., 352 F.3d at 29 (explaining that when there are "two
permissible views of the evidence . . . the factfinder's choice
between those competing views cannot be clearly erroneous").
Bistany's reports, intra-company correspondence,5 the state
court's submission of the issue of causation to the jury in the
suit against Radius, and testimony given at the bench trial combine
to lend strength to the district court's findings. Reasonableness
is a construct that depends on the totality of the circumstances
in a given case, not an absolute. Cf. United States v. Rudíaz,
529 F.3d 25, 29 (1st Cir. 2008) (concluding, with regard to
criminal sentencing context that [r]easonableness "is a construct
that must be judged according to objective criteria"). On this
record, it was for the trier to determine whether Sedgwick acted
reasonably in continuing to argue that Radius's breach of the
5 For example, Blair e-mailed her supervisor roughly one week
before the start of the state-court trial, reporting that in light
of the comorbidity issues that commonly pertain to elderly and
infirm persons like Genevieve Calandro, "we have a strong argument
for causation."
- 17 -
standard of care did not cause Genevieve Calandro's demise. The
district court embraced this responsibility, and all of its
findings on this topic pass muster under clear-error review. Taken
together, they confirm that the offer of proof did not suffice to
close the "causation" gap and that liability on the wrongful death
claim was not reasonably clear at any time before the state-court
trial.
The case law cited by the plaintiff does not demand a
different result. Without exception, those cases are cases in
which liability was reasonably clear from the inception. See,
e.g., Rhodes, 961 N.E.2d at 1071; Gore v. Arbella Mut. Ins. Co.,
932 N.E.2d 837, 841 (Mass. 2010). They are, therefore, readily
distinguishable.
To the extent that the plaintiff suggests that Sedgwick
acted in bad faith in contesting causation on wrongful death, he
is fishing in an empty stream. The plaintiff premises this
suggestion in large part on Sedgwick's withholding of the
identities of the two nurses interviewed by Bistany. However, the
plaintiff sought discovery of the nurses' identities in the state
court, which refused to compel discovery on the ground that the
plaintiff's request was untimely.6 Given this ruling, the district
6 At any rate, the nurses were not critical witnesses. For
aught that appears, they were able to offer only vague and
inconsistent recollections of the wheelchair incident. There is
no reason to believe that any information Bistany received from
- 18 -
court did not clearly err in finding that, although Sedgwick may
have been uncooperative, its decision not to furnish the names was
within the bounds of permissible trial strategy and, thus, not a
suitable predicate for a finding of bad faith. See Calandro II,
2017 WL 5593777, at *7. A party who chooses to hold its litigation
adversary to the rules of discovery can scarcely be said to be
exercising bad faith by doing so. Cf. Mulero-Abreu v. P.R. Police
Dep't, 675 F.3d 88, 91-93 (1st Cir. 2012) (upholding district
court's dismissal of action for failure to follow court-ordered
discovery deadlines).
Of course, Sedgwick concedes that liability was
reasonably clear with respect to the plaintiff's claim for
conscious pain and suffering. As to this claim, the district court
found that Sedgwick comported with its duty under Chapter 176D by
conducting a good-faith investigation and by making reasonable and
prompt settlement offers. See Calandro II, 2017 WL 5593777, at
*7.
This is not to say that the district court found
Sedgwick's performance to be a textbook model. The court was
troubled by some deficiencies in Sedgwick's investigation, but it
found those deficiencies to be due in large part to the windingup
of Radius. In the end, the court concluded that Sedgwick did
the nurses' interviews would have served to make causation
reasonably clear.
- 19 -
what it could, given the circumstances. See id. at *2. Perfection
is not the standard that Chapter 176D imposes upon the handling of
a claim. Here, the court supportably found that Sedgwick, on
balance, investigated the claims in a manner sufficient to satisfy
the strictures of the statute. See Van Dyke v. St. Paul Fire &
Marine Ins. Co., 448 N.E.2d 357, 361-62 (Mass. 1983) (concluding
that receiving independent advice from expert witness and trial
counsel was sufficient even when specifics of actual investigation
were unknown). The fact that a qualified investigator was retained
almost immediately buttressed this finding. See Clegg, 676 N.E.2d
at 1137 (finding investigation reasonable when, among other
things, investigator was hired promptly).
This brings us to the plaintiff's complaint that the
district court erred in finding that Sedgwick's settlement offers
were reasonable and prompt. See Calandro II, 2017 WL 5593777, at
*1. Although the district court did not identify a precise date
on which liability became reasonably clear with respect to the
claim for conscious pain and suffering, it indicated during the
bench trial that liability had become reasonably clear on that
claim by February of 2014. Thus, in evaluating the reasonableness
and promptness of Sedgwick's settlement offers, the court focused
on "the value of the case" as of that time.
This time line comports with the reality of events.
Discovery in the state-court suit was ongoing during 2013 and, in
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November of that year, Dr. Wahl's deposition was taken. It was at
that time that Attorney Hoey again renewed his demand (originally
made at the time he filed suit and reiterated on October 12, 2011)
for a $500,000 settlement. Between December 17, 2013, and January
30, 2014, e-mail exchanges show that Radius and Dr. Wahl were
actively considering a joint settlement offer of $300,000. There
was some lag time due to a death in Blair's family and, on February
6, the two defendants extended a joint settlement offer of $275,000
for all claims. Even so, they indicated that they had "some room
to move." The district court found that this offer, though flatly
rejected by the plaintiff, was both prompt and reasonable. See
id. at *7.
This finding was not clearly erroneous. In this context,
promptness and reasonableness are judgment calls: offers made at
divers points during a period of time may be deemed prompt, and a
range of amounts may be deemed reasonable. See, e.g., Bohn v. Vt.
Mut. Ins. Co., 922 F. Supp. 2d 138, 147-48 (D. Mass. 2013).
Especially given the course of discovery, the court below did not
clearly err in deeming the offer prompt. See, e.g., id. And
especially given the difficulties inherent in placing a dollar
value on intangibles such as pain and suffering, the court did not
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clearly err in deeming the amount of the offer to be within the
universe of reasonable offers.7
In addition, the district court found that Sedgwick
(acting on behalf of Radius) had made other prompt and reasonable
settlement offers that encompassed the claim for conscious pain
and suffering. These included its participation in a second joint
settlement offer — in the amount of $300,000 — made in May of
2014; its spurned attempt to re-ignite negotiations and make a
further offer in June of 2014; and — after Dr. Wahl had settled
separately — its $250,000 offer on behalf of Radius alone (made on
July 14, 2014). As trial loomed, Attorney Hoey advised Attorney
Kenney on July 15, 2014, that the plaintiff was unwilling to
resolve the case in the range of Radius's last offer. In the
district court's view, these pre-verdict offers were sufficient to
inoculate Sedgwick against Chapter 176D liability. See Calandro
II, 2017 WL 5593777, at *7. We discern no clear error.
The short of it is that the district court was confronted
with a welter of evidence — evidence that lent itself to differing
interpretations. In such circumstances, the applicable standard
of review requires that we defer to the district court's "fact-
7 In this instance, the finding of reasonableness was
bolstered by a trial report that Attorney Kenney submitted to
Sedgwick the next day. In it, he estimated the verdict potential
for the wrongful death and conscious pain and suffering claims, as
an aggregate, to be between $300,000 and $500,000 (which presumably
would be split between the two defendants).
- 22 -
intensive findings, absent clear error." Reliance Steel, 880 F.2d
at 576 (quoting Irons v. FBI, 811 F.2d 681, 684 (1st Cir. 1987)).
We conclude that clear error is clearly absent and that deference
to the district court's findings is manifestly appropriate.8
This conclusion does not end our odyssey. The plaintiff
makes two further arguments, which he characterizes as matters of
law, evoking de novo review. It remains for us to deal with those
arguments.
To begin, the plaintiff submits that the district court
imposed an additional (and improper) burden on him with respect to
his derivative rights under Chapter 93A section 9. Specifically,
he contends that the district court erred in requiring him to prove
that some unfair or deceptive act on Sedgwick's part caused him to
suffer a loss. In support, he points to the district court's
statement, in its conclusions of law, that the plaintiff "has not
shown that Sedgwick's actions constitute an unfair practice."
Calandro II, 2017 WL 5593777, at *7.
8 The district court also found that Sedgwick's post-verdict
conduct did not violate Chapter 176D. See Calandro II, 2017 WL
5593777, at *8. On appeal, the plaintiff denigrates this finding,
but he makes no developed argument that the court below committed
clear error in this respect. Consequently, we deem any such
argument waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) (explaining that "issues averted to in a
perfunctory manner unaccompanied by some effort at developed
argumentation, are deemed waived").
- 23 -
Whatever the district court may have meant by its
conclusion that Sedgwick had not committed an "unfair practice,"
it plainly did not make any adjudication of the plaintiff's rights
under Chapter 93A section 9. "Everything depends on context,"
Rivera-Velázquez v. Hartford Steam Boiler Inspection & Ins. Co.,
750 F.3d 1, 5 (1st Cir. 2014), and the context in which this phrase
appears in the district court's rescript undermines the
plaintiff's contention. We explain briefly.
The plaintiff's complaint sets out causes of action
under Chapter 176D alone. Under the claims as pleaded, Chapter
93A section 9 comes into play only derivatively, that is, as a
remedial vehicle for a Chapter 176D violation. Cf. McDermott, 775
F.3d at 117 (noting that "Massachusetts courts have recognized"
that a violation of Chapter 176D "automatically give[s] rise to
liability under Chapter 93A"). The district court, therefore, was
never tasked to make an independent adjudication of a Chapter 93A
claim: relief under Chapter 93A section 9 was material only if —
and to the extent that — a violation of Chapter 176D was found.
Here, the district court supportably concluded that
there was no Chapter 176D violation. See Calandro II, 2017 WL
5593777, at *7. In the absence of an antecedent finding that a
Chapter 176D violation had transpired, no derivative liability
could exist under Chapter 93A section 9. See McDermott, 775 F.3d
at 117. Since the district court never reached the issue of the
- 24 -
plaintiff's right to recover through the medium of Chapter 93A
section 9, it necessarily follows that the court's use of the
phrase "unfair practice" cannot conceivably signal the imposition
of an improper burden.
The plaintiff's remaining argument is no more
persuasive. He insists that the district court erred as a matter
of law by assessing whether liability was reasonably clear
according to a subjective standard rather than an objective
standard. The premise on which this argument rests is sound:
under Chapter 176D, the question of whether liability is reasonably
clear such that an insurer would be bound to make a reasonable
settlement offer is an objective inquiry. See Demeo v. State Farm
Mut. Auto. Ins. Co., 649 N.E.2d 803, 804 (Mass. App. Ct. 1995).
In such an inquiry, liability is reasonably clear if the factfinder
determines that "a reasonable person, with knowledge of the
relevant facts and law, would probably have concluded, for good
reason, that the insurer was liable to the plaintiff." Id.
Here, however, the conclusion that the plaintiff would
have us draw is not borne out by the record. Although the district
court did not say in haec verba that it was employing an objective
standard, actions sometimes speak louder than words. This is such
a case.
The record makes manifest that the district court
consulted objective evidence and assessed the clarity of Radius's
- 25 -
liability under the appropriate standard. In finding that
liability was not reasonably clear on the wrongful death claim,
the court relied on investigation reports, status reports,
credible testimony from Attorney Kenney about Radius's liability,
and the state court's verdict form. Fairly read, the court's
finding makes it plain that the court was employing an objective
standard.
We need go no further.9 Inasmuch as the plaintiff has
not shown that the district court either misapplied applicable law
or clearly erred in finding the facts, his appeal fails.

* * *

9 Because we discern neither clear error in the district
court's factual findings nor any error of law, we need not consider
Sedgwick's alternative defense under the "safe harbor" provision
of Chapter 93A section 9. See Calandro I, 264 F. Supp. 3d at 323
(discussing this provision's limiting effect on recovery amount).

Outcome: Affirmed

Plaintiff's Experts:

Defendant's Experts:

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