Kimberly Woods v. the Hanover Insurance Group, Inc.

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

22-P-627

KIMBERLY WOODS

vs.

THE HANOVER INSURANCE GROUP, INC.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Kimberly Woods, appeals from a Superior

Court summary judgment in favor of the defendant, The Hanover

Insurance Group, Inc. (Hanover), concluding that Woods's G. L.

c. 93A claim against Hanover for unfair insurance settlement

practices under G. L. c. 176D was time barred. Hanover cross-

appeals from orders extending the time for Woods to file her

notice of appeal and denying its motion to strike Woods's notice

of appeal. We affirm.

Background. We draw the undisputed facts from the summary

judgment record. Woods's underlying claim was that, on or about

December 15, 2013, she fell on a slippery sidewalk at Lincoln

Plaza in Hingham. Woods claimed that the owner and the operator

of Lincoln Plaza, both of which were insured by Hanover,

(collectively, the insureds), were negligent in not clearing the
sidewalk of snow and ice. On or about June 27, 2016, Woods sent

a c. 93A demand letter to Hanover asserting that liability was

reasonably clear and demanding $1,750,000 in damages. No later

than August 15, 2016, Woods received a response from Hanover

denying that its insureds were negligent and making no

settlement offer.1

In December of 2016, Woods sued Hanover asserting a single

count for violation of G. L. cc. 93A and 176D. Her amended

complaint, filed shortly thereafter, added claims against the

insureds for negligence as well as several cc. 93A and 176D

claims against Hanover. Within a month thereafter, Woods

voluntarily dismissed the claims against Hanover. On October 1,

2020, Woods and Hanover reached a $350,000 settlement and

release agreement with respect to the negligence claims against

Hanover's insureds; the release included a carve out for Woods's

potential cc. 93A and 176D claims against Hanover, the effect of

which is disputed. On December 1, 2020, Woods filed this action

against Hanover.

1 Hanover had also sent an earlier letter, dated July 20, 2016,
and received by Woods on July 25, 2016, asserting that Hanover
was "unable to respond" to Woods's demand, but also asserting
that liability was not reasonably clear and making no settlement
offer. Hanover contends that Woods's claim accrued when she
received this letter. For purposes of this appeal we assume in
Woods's favor, without deciding, that this letter did not cause
Woods's claim to accrue.

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Discussion. 1. Timeliness of Woods's appeal. Because it

affects our jurisdiction, we turn first to the question whether,

as Hanover seeks to establish through its cross appeal, Woods's

appeal of the judgment was untimely. The judgment is set forth

on a form, entitled "Summary Judgment," that includes a box

labeled "Date Judgment Entered," and in that box appears the

date, "03/22/2022." The judgment also bears a stamp that,

although difficult to read in the copy before us, appears to

say, "judgment entered on docket ______, pursuant to the

provisions of Mass. R. Civ. P. 58 (a), and notice sent to

parties pursuant to the provisions of Mass. R. Civ. P. 77 (d) as

follows," with the date "March 29, 2022" handwritten in the

blank space, and another handwritten notation, "notice sent 3-

29-22." On the docket, the date given for the entry of summary

judgment is "03/29/22." Woods's notice of appeal was docketed

on April 26, 2022.

If the earlier of the two dates of entry appearing on the

judgment itself (i.e., "03/22/2022") controlled, then Woods's

notice of appeal, filed more than thirty days later, would be

untimely. See Mass. R. A. P. 4 (a) (1), as appearing in 481

Mass. 1606 (2019). But the judgment itself also gives March 29,

2022, as the date of entry. It is the date of entry appearing

on the docket, moreover, -- here "03/29/22" -- that generally

controls, although occasionally there is reason to believe from

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the face of the documents that the docket, the judgment itself,

or both, may not accurately or unambiguously reflect the

relevant dates. See Standard Register Co. v. Bolton-Emerson,

Inc., 35 Mass. App. Ct. 570, 571-572 (1993). In Standard

Register Co., the court, confronted with a particular set of

such circumstances, concluded that it would have been an abuse

of discretion to deny the appellant's motion under Mass.

R. A. P. 4 (c), as appearing in 481 Mass. 1606 (2019), to

enlarge the time to file its notice of appeal. See Standard

Register Co., supra at 572-574.

Here, when Hanover raised the timeliness issue in the

Superior Court, Woods moved for and obtained an order under rule

4 (c) extending the time to file her notice of appeal. Hanover

has cross-appealed from that order and from the related order

denying its motion to strike Woods's notice of appeal. We

conclude that the circumstances here are sufficiently akin to

those in Standard Register that the judge here did not abuse her

discretion in allowing Woods's motion for an extension of time

and in denying Hanover's motion to strike. The appeal is

therefore timely.

2. Merits of Woods's appeal. Our review of the summary

judgment is de novo, meaning we consider all of the evidence

that was before the motion judge anew, drawing all reasonable

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inferences therefrom in a light most favorable to the nonmoving

party, Woods. See Miller v. Cotter, 448 Mass. 671, 676 (2007).

Woods's claim under cc. 93A and 176D was subject to a four-

year statute of limitations. See G. L. c. 260, § 5A; Schwartz

v. Travelers Indem. Co., 50 Mass. App. Ct. 672, 676 (2001). The

running of the limitations period was tolled for a 106-day

period, from March 17, 2020, through June 30, 2020, by the

Supreme Judicial Court's COVID-19-related orders. See Shaw's

Supermarkets, Inc. v. Melendez, 488 Mass. 338, 341-342 (2021).

Accordingly, for Woods's complaint filed on December 1, 2020, to

have been timely, Woods's claim must have accrued no more than

four years and 106 days earlier, that is, no earlier than August

17, 2016.

a. Accrual of claim. A G. L. c. 93A claim accrues "when

the plaintiff knew or should have known of appreciable harm

resulting from" the defendant's alleged c. 93A violation.

International Mobiles Corp. v. Corroon & Black/Fairfield &

Ellis, Inc., 29 Mass. App. Ct. 215, 221 (1990). Importantly, as

a general matter, "[t]he plaintiff need not know the full extent

of the injury before the statute starts to run." Bowen v. Eli

Lilly & Co., 408 Mass. 204, 207 (1990). See International

Mobiles Corp., supra at 217-218, 221. Nor need a plaintiff

know, in order for a claim to accrue, that a defendant has

violated a legal duty. Bowen, supra at 206. "The 'notice'

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required is not notice of every fact which must eventually be

proved in support of the claim." Id. at 207, quoting White v.

Peabody Constr. Co., 386 Mass. 121, 130 (1982) (negligence

claim).2 Even under the more plaintiff-friendly "discovery

rule," our law "does not require discovery of each of the

elements of the cause of action -- duty, breach, causation, and

damages [--] before the limitations clock . . . starts ticking."

Malapanis v. Shirazi, 21 Mass. App. Ct. 378, 382 (1986)

(discussing G. L. c. 260, § 4).

Rather, once a plaintiff has "(1) knowledge or sufficient

notice that she was harmed and (2) knowledge or sufficient

notice of what the cause of harm was," her claim accrues.

Bowen, 408 Mass. at 208. "Thus on notice, the potential

litigant has the duty to discover from [counsel and other

sources with relevant knowledge] whether the theory of causation

is supportable and whether it supports a legal claim." Id.,

quoting Fidler v. Eastman Kodak Co., 714 F.2d 192, 199 (1st Cir.

1983). The potential litigant has the duration of the

limitations period -- here, four years -- to explore these

issues and thus decide whether to file suit.

2 "The accrual date for a c. 93A cause of action is determined by
the same principles dispositive of the accrual dates of general
tort actions." International Mobiles Corp., 29 Mass. App. Ct.
at 221.

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To determine when the claim accrued here, we turn to the

particular provision of c. 176D still at issue.3 Woods's

specific c. 176D claim was that Hanover had "[f]ail[ed] to

effectuate [a] prompt, fair and equitable settlement[] of [a]

claim[] in which liability has [become] reasonably clear."

G. L. c. 176D, § 3 (9) (f). A commonsense interpretation of

this language is that a claim for its violation accrues, at

least in the circumstances presented here,4 when a plaintiff

informs an insurer that its insured caused injury to the

plaintiff, and that the insurer's liability is reasonably clear,

yet the insurer does not make a prompt,5 fair, and equitable

settlement offer. The insurer's failure to do so necessarily

causes the plaintiff harm, by depriving the plaintiff, at least

for the time being, of compensation for the injuries suffered.6

3 At summary judgment, Woods agreed to the dismissal of her claim
against Hanover under G. L. c. 176D, § (3) (9) (g).
Accordingly, that claim is not before us.

4 We do not attempt any comprehensive statement of when a claim
under § 3 (9) (f) and c. 93A accrues.

5 With regard to promptness, "c. 176D, § 3 (9) (f), and G. L.
c. 93A, § 9, together require an insurer such as the defendant
promptly to put a fair and reasonable offer on the table when
liability and damages become clear, either within the thirty-day
period set forth in [the demand letter provision of] G. L.
c. 93A, § 9 (3), or as soon thereafter as liability and damages
make themselves apparent." Hopkins v. Liberty Mut. Ins. Co.,
434 Mass. 556, 566 (2001). See id. at 568.

6 Notably, "[a]n insurer's statutory duty to make a prompt and
fair settlement offer does not depend on the willingness of a

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"Whether a settlement is eventually reached or not, . . . when

an insurer wrongfully withholds funds from a claimant, it is

depriving that claimant of the use of those funds," and this

constitutes injury for c. 93A purposes. Clegg v. Butler, 424

Mass. 413, 419 (1997).

At that point, the claim accrues. The plaintiff then has

four years within which to further develop her evidence of the

insured's clear liability, of the insurer's failure to make a

fair and equitable settlement offer, and of her own damages.

The plaintiff may, if she wishes, furnish that further evidence

to the insurer, and make a renewed demand for a reasonable

settlement, before deciding whether to file suit. If she does

file suit, she will be called upon to prove the insurer's

violation of G. L. c. 176D, § 3 (9) (f), and the amount of her

resulting damages.7 But her ability to allege some damages -- in

the form of delay in receipt of whatever amount she asserts the

insurer owes her -- existed from the moment she learned her

claimant to accept such an offer." Hopkins, 434 Mass. at 567.
"Accordingly, quantifying the damages for the injury incurred by
the plaintiff as a result of the defendant's failure under G. L.
c. 176D, § 3 (9) (f), does not turn on whether the plaintiff can
show that she would have taken advantage of an earlier
settlement opportunity." Id.

7 As stated supra, Woods in fact did include a claim under
§ 3 (9) (f) and c. 93A against Hanover in her December 2016
complaint against the insureds, but soon thereafter she
voluntarily dismissed all cc. 93A and 176D claims against
Hanover.

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initial demand was refused. Her claim accrued no later than

that time.

Of course, the pendency and progress of an underlying suit

against the insured cannot be ignored. And "[i]t is a common

practice to stay discovery and trial of a [c.] 93A unfair claims

settlement practices case until the underlying claim has been

resolved." M.C. Gilleran, The Law of Chapter 93A § 9.36 & n.188

(2d ed. 2007 & Supp. 2022). In such a case, once that

resolution occurs, a plaintiff who goes on to pursue her c. 93A

claim and establishes the insurer's violation of § 3 (9) (f) is

entitled to damages, including "interest on the loss of use of

money that should have been, but was not, offered in accordance

with G. L. c. 176D, § 3 (9) (f), if that sum is in fact included

in the sum finally paid to the plaintiff by the insurer."

Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 567 (2001).

"It is this amount of money that has been wrongfully withheld

from the plaintiff, and it is this sum on which the defendant

must pay interest to remedy its wrongdoing." Id.

Woods correctly observes that this interest amount cannot

be known with certainty until the plaintiff's ultimate recovery

from the insurer is known. But it does not follow, as Woods

argues, that she could not allege any harm, and thus that her

claim did not accrue, until she reached her settlement with

Hanover on October 1, 2020. Instead, she knew no later than

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August 15, 2016, when she received Hanover's letter failing to

make a settlement offer, that Hanover would at a minimum be

delaying any payment to her of the amount of damages to which

she believed she was entitled. By then she was on notice that

Hanover's conduct had caused what she believed to be harm to

her, and thus her claim accrued by that date. Her filing of the

complaint against Hanover on December 1, 2020, was untimely.

b. Continuing violation. We are unpersuaded by Woods's

further argument that her suit is nevertheless timely as to

Hanover's continued failure to settle from the time of its

August 2016 letter up until the October 2020 settlement. Woods

asserts that events during that period, such as the completion

of discovery on the underlying negligence claim in 2019, gave

Hanover new reason to conclude that liability was reasonably

clear, and that Hanover's failure to act on that information by

making a reasonable settlement offer constituted a violation of

cc. 93A and 176D as to which Woods's complaint was timely.

Woods's argument relies entirely on Monteferrante v.

Williams-Sonoma, Inc., 241 F. Supp. 3d 264 (D. Mass. 2017),

which discussed the timeliness of claims under G. L. c. 93A and

G. L. c. 93, § 105. In Monteferrante, the Federal District

Court judge stated that "[u]nder the 'continuing violation'

doctrine, if a defendant engages in continuous or repeated

pattern of unlawful acts, each such act 'rewinds the clock,' for

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limitations purposes, as to the others." Id. at 271-272. The

judge cautioned, however, that "in determining whether there is

a 'continuing violation' that extends the statute of

limitations, courts must be careful to differentiate between

[the unlawful] acts and the ongoing injuries which are the

natural, if bitter, fruit of such acts, which do not restart the

clock" (quotation and citation omitted). Id. at 272.

Woods contends that Hanover acted unlawfully by "[f]ailing

to effectuate [a] prompt, fair and equitable settlement[] of [a]

claim[] in which liability has become reasonably clear." G. L.

c. 176D, § 3 (9) (f). But we do not view each new day on which

Hanover failed to settle Woods's claim as an additional act that

could trigger liability. Woods had only one claim -- that

Hanover had failed to effectuate a prompt, fair, and equitable

settlement of Woods's personal injury claim, as to which she

believed that, at the time of her June 27, 2016, demand letter,

liability had become reasonably clear. Once Woods learned that

Hanover had failed to settle, her claim against Hanover accrued.

That Woods might thereafter furnish Hanover with information

that in Woods's view made liability even clearer than before,

yet still did not prompt Hanover to make a reasonable settlement

offer, cannot create a new claim.

The harm suffered each day as a result of Hanover's failure

to settle is better viewed as an ongoing injury, i.e., "the

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natural, if bitter, fruit" of Hanover's original alleged

violation, the claim for which accrued outside the limitations

period. Monteferrante, 241 F. Supp. 3d at 272. The continuing

violation doctrine does not permit a plaintiff to sue for each

day the original injury is manifested. "This would eviscerate

the purpose of a statutory limitations period, and permit what

should be a limited exception to such a stricture to swallow it

whole." Ocean Spray Cranberries, Inc. v. Massachusetts Comm'n

Against Discrimination, 441 Mass. 632, 645 (2004). Cf. Everett

v. 357 Corp., 453 Mass. 585, 603 n.24 (2009).

c. Settlement carve out. Woods asserts that a provision

in the release agreement settling the underlying negligence

claims against Hanover's insureds preserved Woods's ability to

bring this suit against Hanover itself. Although there was such

a provision, it did not include any agreement tolling the

statute of limitations or waiving Hanover's right to assert a

statute of limitations defense should Woods pursue her claim.

The provision stated in pertinent part only that Woods

"reserve[d] her rights to pursue any claims against Hanover

. . . pursuant to [G. L. c.] 93A and/or 176D. [Woods]

acknowledges that Hanover . . . also reserves [its] rights to

defend any such claim and that Hanover . . . expressly den[ies]

any liability." Nothing in this provision saves Woods's

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untimely complaint from the application of the statute of

limitations.

Conclusion. The judgment dismissing Woods's complaint as

untimely is affirmed. The orders allowing Woods's motion for an

extension of time for filing a notice of appeal and denying

Hanover's motion to strike Woods's notice of appeal are

affirmed.

So ordered.

By the Court (Sullivan,
Sacks & Ditkoff, JJ.8),

Clerk

Entered: April 14, 2023.

8 The panelists are listed in order of seniority.

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