NATASHA FRODEL & Another v. LIBERTY MUTUAL FIRE INSURANCE COMPANY & Another.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1059

NATASHA FRODEL & another1

vs.

LIBERTY MUTUAL FIRE INSURANCE COMPANY & another.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On July 16, 2019, the plaintiffs, Natasha and Dean Frodel,

filed a complaint in Suffolk Superior Court against the

defendant, Liberty Mutual Fire Insurance Company (Liberty

Mutual), alleging various claims arising out of an insurance

contract. On April 10, 2023, a judge of the Suffolk Superior

Court issued a decision granting summary judgment to Liberty

Mutual and dismissing the action with prejudice.3 The plaintiffs

1 Dean Frodel.

2RebuildEx, LLC (RebuildEx). The plaintiffs' claims
against RebuildEx were dismissed by agreement prior to summary
judgment, and RebuildEx is not a party to this appeal.

3The plaintiffs' breach of contract claim against Liberty
Mutual was dismissed prior to summary judgment and is not an
issue on appeal.
appeal, specifically arguing that Liberty Mutual pressured the

plaintiffs into accepting work from RebuildEx, LLC (RebuildEx),

and separately, that Liberty Mutual orally warranted RebuildEx's

work and then breached that warranty, all in violation of G. L.

c. 93A.4 We affirm.

We review the grant of a motion for summary judgment de

novo. See Barbetti v. Stempniewicz, 490 Mass. 98, 107 (2022).

"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"

(citation omitted). Nunez v. A&M Rentals, Inc., 63 Mass. App.

Ct. 20, 22 (2005). If the moving party satisfies the burden of

showing no genuine issue of material fact and entitlement as a

matter of law to a judgment, the nonmoving party, to survive

summary judgment, must "set[] forth specific facts showing that

there is a genuine issue for trial." (citation omitted).

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

4 The judge also held that, as a matter of law, the
plaintiffs' claims against Liberty Mutual were not resolved by a
purported settlement and release agreement between the parties,
as Liberty Mutual argued below and contends here. Given our
resolution of this appeal on other grounds, we need not consider
this argument. Likewise, the judge ruled that the plaintiffs'
other allegation, that Liberty Mutual did not handle the
plaintiffs' insurance claims fairly and promptly, also failed as
a matter of law. The plaintiffs do not appeal the judge's
decision on that ground, and as such we do not address it.

2
(1991). "In deciding a motion for summary judgment[,] the court

may consider the pleadings, depositions, answers to

interrogatories, admissions on file, and affidavits." Niles v.

Huntington Controls, Inc., 92 Mass. App. Ct. 15, 18 (2017).

Actions alleging a violation of G. L. c. 93A can be

appropriate for summary judgment. See Noyes v. Quincy Mut. Fire

Ins. Co., 7 Mass. App. Ct. 723, 725 (1979). Here, the

plaintiffs' G. L. c. 93A claim alleges improper insurance claims

practices, specifically unfair or deceptive acts, in violation

of G. L. c. 176D.5 For a plaintiff to recover under a G. L.

c. 93A claim, a plaintiff must show an unfair or deceptive act

or practice and a causal connection between the act or practice

and the plaintiff's injury. See Siegel v. Berkshire Life Ins.

Co., 64 Mass. App. Ct. 698, 702 n.3 (2005). "Whether a given

practice is unfair or deceptive under G. L. c. 93A must be

determined from the circumstances of each case." Noyes, supra

at 726. "Although whether a particular set of acts, in their

factual setting, is unfair or deceptive is a question of fact

. . . the boundaries of what may qualify for consideration as a

c. 93A violation is a question of law" (citation omitted).

5 Although the plaintiffs do not reference G. L. c. 176D in
their amended complaint, the judge held that it was "clear that
this is a c. 93A action based upon allegations of improper
insurance claims practices in violation of c. 176D." Neither
party argues otherwise on appeal.

3
Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 563 (2008).

Viewing the evidence in the light most favorable to the

plaintiffs, the motion judge properly determined that Liberty

Mutual was entitled to summary judgment where the plaintiffs

have no reasonable expectation of proving a G. L. c. 93A claim

at trial.

The plaintiffs first contend that Liberty Mutual's unfair

or deceptive behavior included advising the plaintiffs of the

twelve-month limit for coverage of additional living expenses

(ALE), advising the plaintiffs that Liberty Mutual would cover

only damages "actually sustained," advocating for Liberty

Mutual's preferred contractor, and retaining a third-party

contractor to conduct a reinspection of the property and

complete a comparative estimate. As a matter of law, these

allegations do not amount to a G. L. c. 93A violation.

Informing the plaintiffs of the terms of their contract,

that the maximum ALE coverage was twelve months, and that

Liberty Mutual would only cover damages "actually sustained,"

was not an unfair or deceptive practice, but rather good

practice of an insurance company in reminding their client of

the terms of their insurance contract. Furthermore, retaining a

third-party contractor to conduct a reinspection of the property

and complete a comparative estimate was allowed under the

plaintiffs' insurance policy with Liberty Mutual. Also, there

4
is nothing in the record to suggest that the comparative

estimate was requested in bad faith.

Although Liberty Mutual did repeatedly state that their

preferred contractor was RebuildEx, Liberty Mutual never made

contingent any of their services on the plaintiffs' using the

preferred contractor. Absent anywhere in the record is any

statement by Liberty Mutual that their terms were contingent on

the plaintiffs' agreeing to use RebuildEx. In fact, Natasha

Frodel acknowledged in her deposition that Liberty Mutual's

agreement to pay the maximum ALE coverage was not contingent on

the plaintiffs' accepting any other term from Liberty Mutual.

The plaintiffs failed to put forth specific facts from the

record from which a factfinder could conclude that Liberty

Mutual used unlawful tactics to compel the plaintiffs to use

RebuildEx.6

Additionally, the plaintiffs did not establish the

causation element of a G. L. c. 93A violation, as in conjunction

with the previously mentioned facts, it is also undisputed that

Liberty Mutual committed to paying the maximum coverage for ALE

over two months before the plaintiffs selected RebuildEx to

repair their home.

6 In fact, the record also reflects that Liberty Mutual
issued multiple payments to the plaintiffs to help compensate
for their losses.

5
With regard to the plaintiffs' second argument, that

Liberty Mutual violated G. L. c. 93A by orally warranting

RebuildEx's work and then breaching that warranty, this argument

also fails as a matter of law.7 This claim rests on

conversations the plaintiffs had with various Liberty Mutual

agents, in which the agent described that they would "stand by"

the work of RebuildEx, and also where an agent, in describing

RebuildEx, stated that "this is someone we trust and someone

that will do a good job for you." These statements, when

considered in light of the full record before the judge, are not

sufficient as a matter of law to constitute an oral warranty,

nor a G. L. c. 93A violation.

An express warranty amounts to language that suggests the

"defendant promised a specific result." Anthony's Pier Four,

Inc., v. Crandall Dry Dock Eng'rs, Inc., 396 Mass. 818, 823

(1986). The language alleged here does not suggest that Liberty

Mutual promised that RebuildEx would not make any mistakes, or

that Liberty Mutual promised to pay to correct those mistakes.

The plaintiffs fail to mention in their brief that Dean Frodel

7 The judge did not address this argument in his summary
judgment order, although the plaintiffs did argue this point in
their opposition to the defendant's motion for summary judgment.
We address this argument, as "it is well-established that, on
appeal, we may consider any ground apparent in the record that
supports the result reached in the lower court." Gabbidon v.
King, 414 Mass. 685, 686 (1993).

6
also testified that, in his conversations with an agent of

Liberty Mutual, the agent "did not get into [the] point [of]

saying '[w]e'll pay to fix it' [if RebuildEx fails to adequately

perform]." Merely describing that RebuildEx generally does good

work and that Liberty Mutual stands by their work, but not

stating that they would pay for RebuildEx's mistakes, if any,

does not amount to a warranty. Rather, it is permissible

language for an insurance company to use when describing their

preferred contractor.

The plaintiffs also cite no supporting authority in their

brief to suggest that the facts alleged may amount to an oral

warranty. Rather, our case law demonstrates that the facts

alleged, in totality, do not amount to an oral warranty.

Contrast Raymond Syndicate, Inc., v. American Radio & Research

Corp. 263 Mass. 147, 152 (1928) (guaranty of "full satisfaction

or money refunded" constitutes warranty).

In addition, these conversations between Liberty Mutual

agents and the plaintiffs do not by themselves amount to a

violation of G. L. c. 93A. If anything, there may be "a good

faith dispute as to whether money is owed, or performance of

some kind is due, [which] is not the stuff of which a c. 93A

7
claim is made." Duclersaint v. Federal Nat'l Mtge. Ass'n., 427

Mass. 809, 814 (1998).

Judgment affirmed.

By the Court (Meade,
Ditkoff & Toone, JJ.8),

Clerk

Entered: December 15, 2025.

8 The panelists are listed in order of seniority.

8