McLaughlin v. American States Insurance Co.

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15-P-729 Appeals Court

DANIEL McLAUGHLIN & another 1 vs. AMERICAN STATES INSURANCE
COMPANY.

No. 15-P-729.

Middlesex. May 19, 2016. - August 12, 2016.

Present: Kafker, C.J., Cohen, & Green, JJ.

Consumer Protection Act, Insurance, Offer of settlement, Unfair
act or practice, Attorney's fees, Damages. Insurance,
Settlement of claim, Unfair act or practice. Damages,
Attorney's fees. Practice, Civil, Attorney's fees.

Civil action commenced in the Superior Court Department on
February 21, 2008.

The case was heard by Paul D. Wilson, J.

John F. Brosnan (James E. Harvey, Jr. with him) for the
defendant.
Matthew N. Kane for the plaintiffs.

GREEN, J. After the well installed by Shaun Harrington

began pumping salt water through the plaintiffs' (McLaughlins)

irrigation system, causing extensive damage to their

1
Rachel McLaughlin.
2

landscaping, the McLaughlins sought recovery from Harrington and

his insurer, the defendant, American States Insurance Company

(ASIC). Both denied liability, and the McLaughlins eventually

filed an action against Harrington and two others. 2 After the

McLaughlins obtained a judgment in their favor against

Harrington, they commenced this action against ASIC, claiming

unfair insurance settlement practices. A judge of the Superior

Court entered judgment against ASIC, and awarded the McLaughlins

damages based on the legal expenses they incurred in prosecuting

their suit against Harrington, but declined to award multiple

damages as permitted by the statute. See G. L. c. 93A, § 9(3).

On the parties' cross appeals, we conclude that the judge

correctly determined that ASIC failed to conduct a reasonable

investigation of the McLaughlins' claim, and that it failed to

make a reasonable offer of settlement after liability of its

insured became reasonably clear. We also discern no error of

law or abuse of discretion by the judge in his refusal to award

the McLaughlins multiple damages. However, we conclude that the

judge erred in his failure to award the McLaughlins damages

based on the loss of use of the funds ASIC should have offered

2
Assurance Construction, Inc. (Assurance), the general
contractor for the construction of the home to which the
landscaping related, and Waterworks Irrigation, Inc.
(Waterworks), the subcontractor for the irrigation system.
Harrington was subcontracted by Waterworks to drill a well to
furnish water to the irrigation system.
3

in settlement once Harrington's liability became reasonably

clear.

Background. We summarize the written findings of fact

entered by the judge in his detailed and thorough memoranda of

decision. 3

In 2003, Assurance was nearing completion of construction

of a home for the McLaughlins in Osterville. The home is on a

peninsula, surrounded on three sides by salt water bodies

connected to Nantucket Sound. The project included a

substantial landscaping installation. Incident to the

landscaping, Assurance subcontracted Waterworks to install a

multizone irrigation system, to be served by a well. 4

Waterworks, in turn, subcontracted Harrington to drill the well.

Harrington drilled the well in April, 2003, in the only

location on site that his drilling rig would fit, approximately

110 feet from the shoreline. Though local ordinances required

him to obtain a municipal permit before drilling a well,

Harrington did not apply for a permit. In addition, though

State regulations required him to submit a well completion

report to the Department of Environmental Management immediately

3
The judge's memorandum of decision on liability is eighty-
one pages. His memorandum on damages is forty pages.
4
Water for the home itself was supplied by means of a
connection to the Barnstable municipal water system.
4

upon drilling the well, Harrington did not do so until after the

dispute underlying this lawsuit arose.

After drilling the well, Harrington tested the water it

produced by tasting it. Satisfied that it tasted fresh, and

that the well produced water at a rate more than adequate to

meet the requirements of the irrigation system, Harrington

considered his work complete and left the site. 5

From his experience, Harrington was aware that wells on

Cape Cod drilled close to sea water might turn from fresh to

salt water, by means of a phenomenon known as "upconing." 6 In

such circumstances, as fresh water is pumped out of the well,

salt water is drawn in to replace it. Eventually, the supply of

fresh water is exhausted or largely infiltrated by salt water,

and the well thereafter produces salt water. Though Harrington

was concerned about the possibility that upconing could

eventually occur in the McLaughlins' well, he did not advise

Waterworks or the McLaughlins of the possibility. Prudent

5
While Harrington was still on site, a friend of his named
Andrew Miller coincidentally stopped by to see him. Miller, a
hydrogeologist from Florida who was visiting family on Cape Cod,
tested the water with a portable conductivity meter, a portable
pH meter, and iron test strips. Though Miller did not record
the test results, he concluded that the water was fresh, with
neutral pH and acceptable iron levels.
6
A well Harrington previously drilled in a seaside location
not far from the McLaughlins' property had turned to salt water
after initially producing fresh water.
5

practice of well drillers on Cape Cod in 2003, in circumstances

of wells drilled near salt water bodies, was to test the water

produced by the well at regular intervals after drilling, but

Harrington did not do so and did not advise Waterworks or the

McLaughlins that they should.

Decorative and ornamental landscaping plantings were

installed in May and June, 2003, at a cost of approximately

$185,000. In July and August, 2003, the plantings began to show

signs of distress. In late August, after trying unsuccessfully

to reverse the damage by adjusting the watering schedule, the

McLaughlins discovered that the damage was caused by salt water

produced by the well and pumped through the irrigation system.

Upon identifying the cause of the damage, the McLaughlins

asked Assurance to submit a claim to Harrington's insurer for

the damage caused by salt water produced from the well

Harrington had drilled. Assurance submitted a claim to

Harrington's insurance agent on October 22, 2003, and the claim

reached ASIC on November 3, 2003. As submitted by Assurance,

the claim included an invoice for plants killed by salt water as

of that time, in a total amount of $28,224.62. The claim form

submitted to ASIC by Harrington's agent indicated that

Harrington did not believe he was at fault.

ASIC assigned Debra Dresner as claims adjuster to handle

the McLaughlins' claim. Dresner wrote to Rachel McLaughlin at
6

the address of her primary residence in Connecticut on November

4, 2003, asking her to contact Dresner as soon as possible.

When Dresner received no response, she sent a second letter on

November 11, 2003, again asking Rachel McLaughlin to contact

her. On November 5, 2003, Dresner telephoned the nursery whose

invoice accompanied the claim, requesting a "legible copy" of

the invoice. The nursery responded promptly, and the requested

copy arrived on November 10.

On November 5, 2003, Dresner also called Harrington and

took a recorded statement from him. In his statement,

Harrington described the transition of the well from fresh to

salt water as an "act of God." Harrington also advised Dresner

that a certified hydrogeologist had done a conductivity test

when Harrington installed the well. See note 5, supra. When

Dresner asked if the hydrogeologist had prepared a report of the

test, Harrington said that he believed so and would find out.

Dresner wrote to Harrington later that day, requesting all

paperwork he had relating to the loss and specifically

requesting a copy of the report prepared by the hydrogeologist.

At the time she received the claim, Dresner had authority

to settle claims up to $10,000 and was required to inform her

supervisor of any claim for a larger amount. Though the

McLaughlins' claim was for more than $28,000, Dresner did not

inform her supervisor of it.
7

Dresner thereafter took no further investigative or other

action on the McLaughlins' claim until January 26, 2004, when

the McLaughlins' insurance agent left a voice mail message

inquiring about the claim status. Dresner called the agent back

that day; during their conversation, the agent gave Dresner the

McLaughlins' telephone number. Dresner called and spoke to

Rachel McLaughlin, who expressed concern over the length of time

the claim process was taking and attempted to correct various

factual assertions Harrington had made to Dresner. On January

26, 2004, after the telephone call, Dresner documented the call,

sent a confirmation letter to Rachel McLaughlin, and sent a

letter to Harrington requesting documents, including a document

from the hydrogeologist, and contact information for Waterworks.

ASIC took no further action until the McLaughlins' agent called

ASIC on February 19, 2004.

On that occasion, Dresner was out of the office and another

claims adjuster, Julio Maisonette, handled the call. Maisonette

adopted an aggressive and hostile approach toward the

McLaughlins' agent, to the extent that the agent asked to speak

to his supervisor (a request Maisonette refused). Rachel

McLaughlin called Maisonette the following day. During that

call, Maisonette stated that, in his view, Harrington was not

liable for the damage because the well was pumping fresh water

when Harrington completed his work and Harrington had no reason
8

to believe it would eventually begin pumping salt water.

Maisonette expressed his view that ASIC would not be liable if

the well pumped fresh water even for only one day; Rachel

McLaughlin responded with her disagreement with that position.

Maisonette also suggested that other causes might have led to

the damage to the plantings, including an unusually harsh

winter, and observed that he did not even have evidence that the

plantings were dead. When Rachel McLaughlin replied that she

had lost approximately $72,000 in plants, Maisonette responded

that he had only one invoice, for $28,000, and invited Rachel

McLaughlin to send additional documentation of her losses. In

response to Rachel McLaughlin's request for an explanation of

ASIC's failure to send a field claims adjuster to the site,

Maisonette said that ASIC had no intention of doing so. Rachel

McLaughlin threatened to hire an attorney to press her claim.

Despite her frustration with her conversation with

Maisonette, Rachel McLaughlin promptly followed up by sending to

him another copy of the earlier $28,000 invoice, along with a

second invoice for additional damaged plantings in the amount of

$37,475.24. In addition, she included thirty-two photographs,

depicting "before and after" conditions, together with a two-

page letter explaining what each photograph depicted.

Two weeks later, on March 5, 2004, the McLaughlins' agent

called Dresner to express frustration again with the manner in
9

which the McLaughlins' claim was being handled. Following that

call, Dresner called Harrington to ask about the hydrogeologist

report he had promised, and Harrington advised her that he was

still waiting for it. Dresner also gave her supervisor, Ralph

Tedesco, a "heads up" that Rachel McLaughlin was unhappy with

the handling of her claim in Dresner's absence. Tedesco

reviewed the file and criticized Dresner for not bringing the

claim to his attention earlier, since it exceeded her settlement

authority. Tedesco suggested several lines of investigation for

Dresner to pursue, including whether there is a way to prevent

salt water infiltration of a well in close proximity to the sea,

and whether Harrington had warned Waterworks or the McLaughlins

about the risk of salt water infiltration. As a more

experienced adjuster, Tedesco expressed his opinion that

liability of ASIC's insured, Harrington, was likely, and

expressed his skepticism about Harrington's insistence that the

damage was an act of God, since "God didn't install the well."

The following day, Tedesco convened a discussion of the

claim with Dresner and Maisonette. Tedesco suggested that

Dresner might retain an expert to assist in analyzing liability

and that she consult with a Massachusetts attorney to see if the

attorney agreed that an expert is necessary. Tedesco also

suggested that Dresner contact another Cape Cod well driller to
10

ask pointed questions regarding the well and guarantees that

could or should not be made.

Dresner thereafter consulted with Robert Feeney, a

Massachusetts attorney, as suggested by Tedesco. Feeney

explained to Dresner that whether Harrington's work met the

requisite standard of care was a matter for expert testimony.

However, Feeney also offered his lay view that Harrington had

met the standard, based on Harrington's explanation contained in

the claims file Feeney had reviewed.

On March 16, 2004, Miller (the hydrogeologist) prepared a

letter summarizing his recollection of the tests he had

performed on his chance visit to the property in April of 2003.

His letter included a closing paragraph in which he described

the possibility that over-pumping or continuous use of a well in

close proximity to salt water risked contamination of the well

due to upconing.

In early April, 2004, Dresner left ASIC on a medical leave,

and Tedesco transferred the claim to another adjuster, Sharon

Fox. At Tedesco's prompting, Fox arranged for an independent

claims adjuster to visit the property to conduct an assessment

of the damage. On May 18, 2004, 7 the independent adjuster

7
The judge described the report as having been sent on May
16, 2004, but the report appearing in the record at the
reference cited by the judge in his memorandum of decision is
dated May 18, 2004.
11

submitted a report documenting damage to plants and his

consultation with an experienced local nurseryman who confirmed

that the damage had been caused by salt water produced by the

well. The adjuster's report advised that the local nurseryman

offered to furnish an estimate of the cost of the damaged plants

for a fee of $500, which he would waive if the McLaughlins

purchased replacement plants from him. However, ASIC never

responded to the independent adjuster's request for

authorization to have the nurseryman furnish a cost estimate.

Fox left ASIC in early May, 2004, and the file was

reassigned to another adjuster, Suzanne Greer, who was based in

Illinois. At around the same time, Tedesco also left ASIC.

ASIC's claims investigation (such as it was) continued in

like manner thereafter. Greer determined in June of 2004 to

deny the McLaughlins' claim, but ASIC's attorney, Feeney, did

not advise the McLaughlins' attorney of the denial.

On February 1, 2006, the McLaughlins commenced an action in

the Barnstable Superior Court, alleging negligence against

Harrington (the well subcontractor), Waterworks (the irrigation

subcontractor), and Assurance (the general contractor). Shortly

before trial, Waterworks and Assurance each settled with the

McLaughlins for $50,000. The case against Harrington proceeded

to trial, and a jury found Harrington liable, awarding $37,500
12

in damages. On Harrington's motion, the trial judge agreed to

offset against the jury damage award the settlement payments the

McLaughlins received from Waterworks and Assurance, resulting in

a net award against Harrington of zero dollars. A panel of this

court affirmed the judgment in a memorandum and order issued

pursuant to our rule 1:28. See McLaughlin v. Harrington, 76

Mass. App. Ct. 1124 (2010).

On June 8, 2007, the McLaughlins (through their attorney)

sent a demand letter under G. L. cc. 93A and 176D to ASIC. 8 The

McLaughlins then commenced the present action against ASIC,

claiming unfair insurance settlement practices in violation of

G. L. cc. 93A and 176D. The trial judge bifurcated the issues

of liability and damages. After an eleven day jury-waived

trial, the judge concluded that ASIC had failed to conduct a

prompt, thorough, and objective investigation. The judge also

found that Harrington's liability had become reasonably clear by

at least May, 2004, 9 but that ASIC failed to make a reasonable

8
The McLaughlins had sent two previous letters to ASIC, but
the judge found that neither qualified as a proper demand
letter.
9
In his memorandum of decision, the judge based this
conclusion on the report prepared and sent to ASIC on May 18,
2004, by an independent adjuster, describing his consultation
with a local nurseryman who confirmed that the damage had been
caused by salt water produced by the well.
13

offer of settlement for several years thereafter. 10 Following a

six day jury-waived trial on damages, the judge found that the

McLaughlins were entitled to recover their reasonable attorney's

fees and expenses incurred in the prosecution of their claim

against Harrington. The judge declined to award multiple

damages, based on the violation of G. L. c. 93A. The judge also

declined to award damages based on the McLaughlins' loss of use

of funds from the date liability became reasonably clear. Both

parties filed cross appeals.

Discussion. 1. Whether liability and damages were

reasonably clear. Taken together, G. L. c. 93A, § 2(a), and

G. L. c. 176D, § 3(9)(f), "require an insurer . . . '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 G. L. c. 93A, § 9(3), or as soon thereafter as

liability and damages make themselves apparent.'" Bobick

v. United States Fid. & Guar. Co., 439 Mass. 652, 659 (2003),

quoting from Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556,

566 (2001). The test whether an insured's liability is

"reasonably clear" is objective. O'Leary-Alison v. Metropolitan

10
The judge found that Feeney communicated a settlement
offer of $50,000 at approximately 4:31 P.M. on June 6, 2008 (the
Friday before the Monday on which the trial began), during
unsuccessful efforts to mediate the case. Feeney made a second
settlement offer, in the amount of $10,000, on the day that the
case was submitted to the jury.
14

Property & Cas. Ins. Co., 52 Mass. App. Ct. 214, 217 (2001).

"The fact finder determines 'whether a reasonable person, with

knowledge of the relevant facts and law, would probably have

concluded, for good reason, that the insure[d] was liable to the

plaintiff.'" Ibid., quoting from Demeo v. State Farm Mut. Auto.

Ins. Co., 38 Mass. App. Ct. 955, 956-957 (1995).

The judge's conclusion that Harrington's liability was

reasonably clear as of May, 2004, is supported by his findings

of fact (which, in turn, find support in the evidence and

accordingly are not clearly erroneous). In particular, by

letter dated May 18, 2004, ASIC's independent adjuster had

submitted to ASIC his report which confirmed that the

McLaughlins' plantings had been killed or damaged by salt water

pumped through the irrigation system supplied by the well

Harrington had drilled. The extent of the damage was

substantiated by invoices supplied by the McLaughlins totaling

more than $66,000. 11 ASIC was also in possession of Miller's

letter, advising of the risk of salt water intrusion into wells

drilled in close proximity to the sea, if the well were used

11
Additional invoices later supplied, as additional damage
developed, increased the total to an amount of approximately
$164,000. The force of ASIC's protest that the amount of damage
was inflated by reason of its source from an out-of-State
supplier is weakened considerably by ASIC's failure to pursue
the offer of a local nurseryman to furnish an independent
estimate.
15

continuously or over-pumped. ASIC had previously been advised

by Harrington that the McLaughlins' irrigation system was a

multizone system that would water plantings on a large site, and

therefore would be used heavily. Moreover, ASIC knew that

Harrington was aware from his own experience of the possibility

that salt water could infiltrate the well, yet failed to advise

Waterworks or the McLaughlins of the possibility of such

contamination, or of the need to monitor water quality as water

was pumped from the well over time. 12 As the trial judge

observed, based on this information "[a] reasonable objective

insurer would have concluded by May 2004 that Harrington was

liable to McLaughlin, at the very least for failure to warn."

On appeal, ASIC raises two principal claims of error

underlying the trial judge's conclusion. First, it contends

that Harrington's liability was never established, much less

reasonably clear, because the judgment ultimately entered

against him was for no monetary damages. Second, ASIC contends

12
Again, ASIC's failure to consult an independent expert
(the need for which Tedesco recognized and Feeney endorsed) on
the standard of care, or on the likely cause of salt water
contamination of the McLaughlins' well, renders its
unquestioning acceptance of Harrington's denial of
responsibility unreasonable. As the trial judge correctly
recognized (and ASIC does not dispute on appeal), in the absence
of an expert assessment of the cause of the contamination and
the standard of care applicable to a well driller in a coastal
area, ASIC could not reasonably rely on the lay opinion of its
counsel, Feeney, that Harrington was not negligent.
16

that the presence of two other joint tortfeasors rendered the

extent of Harrington's potential liability unclear as matter of

law. Both claims are unavailing.

As a threshold matter, we observe that the jury in the

underlying negligence trial concluded that Harrington was

negligent, and that his negligence caused the McLaughlins to

incur damages. More fundamentally, however, the question

whether and when an insured's liability became reasonably clear

is based on an objective assessment of the facts known or

available at the time, and is independent of how a jury in a

separate trial views the insured's liability. See Bolden

v. O'Connor Cafe of Worcester, Inc., 50 Mass. App. Ct. 56, 66

(2000). See also Bobick, 439 Mass. at 662 ("[A] jury's verdict

is not always predictable and may not constitute in all

circumstances a definitive measure of reasonableness"). As we

have observed, there was ample basis for the judge's conclusion

that Harrington's liability for, at least, a failure to warn of

the possibility of salt water contamination of the well, and the

related need to monitor water quality, was reasonably clear as

of May, 2004, and that ASIC was aware of substantiated damages

to plants valued at approximately $66,000 as of that time.

We likewise reject ASIC's suggestion that liability of an

insured can never be reasonably clear, as matter of law, so long

as other potential tortfeasors are apparent. In pressing its
17

assertion, ASIC relies on a comment in Bobick, supra at 660, in

which the court observed that, though fault of the defendant's

insured may have been ascertained by a specified date, "the

percentage of damages attributable to [United States Fidelity

and Guaranty Company (USF&G)] and to Continental [the insurer of

a potential joint tortfeasor] was still the subject of good

faith disagreement. We conclude that the extent of USF&G's

liability to the plaintiff cannot, as matter of law, have been

clear at that time."

In our view, ASIC reads the quoted language from Bobick too

broadly. First, there is no evidence in the record to suggest

that the potential liability of Waterworks and Assurance was a

matter of consideration by ASIC in May, 2004, much less the

subject of a "good faith disagreement" among the defendants in

the McLaughlins' eventual tort suit. Ibid. See Clegg

v. Butler, 424 Mass. 413, 418 (1997). Furthermore, the fact

that the McLaughlins ultimately named Waterworks and Assurance

as defendants in their underlying complaint, or even that both

ultimately agreed to pay the McLaughlins an amount in settlement

of their claims, did not excuse ASIC from its statutory

obligation to make an offer when Harrington's liability became

reasonably clear. 13 See Bertassi v. Allstate Ins. Co., 402 Mass.

13
We note that USF&G made a settlement offer in Bobick,
supra at 660, at approximately the time the liability of its
18

366, 372-373 (1988) (affirming violation of G. L. c. 93A by an

insurer, despite presence of, and settlement payments by, other

tortfeasors). Indeed, it would significantly diminish, if not

defeat, a principal purpose of G. L. cc. 176D and 93A if an

insurer could refuse to make any offer of settlement whatsoever

in any case in which potential tortfeasors other than its

insured might share liability. See Clegg, supra at 419

(citation omitted) ("The statutes at issue were enacted to

encourage the settlement of insurance claims . . . and

discourage insurers from forcing claimants into unnecessary

litigation to obtain relief").

2. Failure to conduct a reasonable investigation. We

likewise discern no error in the trial judge's conclusion that

ASIC failed to conduct a reasonable investigation of the

McLaughlins' claim, as required by G. L. c. 176D, § 3(9)(d). As

our summary of the judge's extensive factual findings makes

plain, ASIC failed to subject Harrington's initial denial of

responsibility to serious scrutiny and failed to take even the

most basic steps toward obtaining an independent or neutral

assessment of his potential fault. Of perhaps greatest concern

was ASIC's failure to consult an expert in hydrogeology about

insured became reasonably clear. By contrast, the insurer in
the present case made no settlement offer of any kind or in any
amount until the eve of trial, years after the liability of its
insured was clear. See note 10, supra.
19

the reason for, or foreseeability of, the infiltration of salt

water into the McLaughlins' well, despite Tedesco's recognition

of the need for one. Its approach to the claim overall was at

best inattentive, if not incompetent.

3. Attorney's fees as damages. After concluding that ASIC

was liable for a violation of G. L. cc. 93A and 176D, the trial

judge concluded that the McLaughlins were entitled to recover as

damages the attorney's fees and expenses they incurred in

prosecution of their underlying tort suit against Harrington,

Waterworks, and Assurance. On appeal, ASIC challenges both the

inclusion of such costs as an element of damages and the

reasonableness of the amount. 14 Again, we discern no error.

"If a c. 93A violation forces someone to incur legal fees

and expenses that are not simply those incurred in vindicating

that person's rights under the statute, those fees may be

treated as actual damages in the same way as other losses of

money or property." Siegel v. Berkshire Life Ins. Co., 64 Mass.

App. Ct. 698, 703 (2005). 15 See DiMarzo v. American Mut. Ins.

Co., 389 Mass. 85, 101 (1983); Columbia Chiropractic Group, Inc.

14
The trial judge awarded $175,000 as actual damages,
consisting of the reasonable attorney's fees and expenses in the
underlying tort suit.
15
In Siegel, the attorney's fees and expenses were incurred
in defense of unfair and deceptive acts of creditors in
attempting to obtain ownership of the plaintiff's life insurance
policy.
20

v. Trust Ins. Co., 430 Mass. 60, 63 (1999). Accordingly, where

an insurer's protracted delay in settling the underlying tort

case requires a plaintiff to proceed to trial on that case, the

plaintiff's attorney's fees and expenses incurred in that suit

are properly recoverable as actual damages caused by the

statutory violation. See Rivera v. Commerce Ins. Co., 84 Mass.

App. Ct. 146, 149 (2013). In the present case, the McLaughlins

engaged their trial counsel in the underlying tort case on an

hourly rate basis. 16 The trial judge accordingly properly

considered the fees incurred by the McLaughlins in prosecution

of their claim against Harrington as damages incurred as a

consequence of ASIC's failure to make a reasonable offer of

settlement at a time when Harrington's liability had become

reasonably clear.

We likewise discern no abuse of discretion in the

determination by the judge of the amount of the McLaughlins'

reasonable attorney's fees and expenses. See Twin Fires Inv.,

LLC v. Morgan Stanley Dean Witter & Co., 445 Mass. 411, 432

(2005). The judge applied the correct legal standard to his

review of the McLaughlins' application for fees, both as actual

16
The case in that respect is different from Miller v. Risk
Mgmt. Foundation of the Harvard Med. Insts., Inc., 36 Mass. App.
Ct. 411, 421 (1994), in which the plaintiffs engaged counsel in
the underlying case on a contingent fee basis.
21

damages and in prosecution of their G. L. cc. 93A and 176D

claim, and ASIC does not contend otherwise. 17

4. Loss of use damages. In addition to attorney's fees

incurred as a consequence of ASIC's failure to make a reasonable

settlement offer, the McLaughlins assert in their cross appeal

that they should also have been awarded an amount to compensate

them for the loss of use of the funds ASIC should have offered

in settlement once Harrington's liability became clear.

See Clegg, 424 Mass. at 423-424; Rivera v. Commerce Ins. Co., 84

Mass. App. Ct. at 148. Reasoning that the judgment entered in

the underlying tort action awarded no damages, due to the offset

resulting from the settlement payments made by Waterworks and

Assurance, the trial judge concluded that the McLaughlins are

not entitled to loss of use damages. See Hopkins v. Liberty

Mut. Ins. Co., 434 Mass. at 567 (recognizing right of plaintiff

"to recover interest on the loss of use of money that should

have been, but was not, offered [in settlement of insurance

claim], if that sum is in fact included in the sum finally paid

to the plaintiff by the insurer"). This was error.

See Bertassi, 402 Mass. at 373.

17
We reject ASIC's contention, raised for the first time on
appeal, that the McLaughlins may not recover any fees incurred
after ASIC finally made its first settlement offer, on the eve
of trial. See note 10, supra. Because ASIC did not make the
argument in the trial court, it is waived. See Carey v. New
England Organ Bank, 446 Mass. 270, 285 (2006).
22

As discussed above, the presence of other joint tortfeasors

did not derogate from ASIC's obligation to make a reasonable

settlement offer once Harrington's liability became reasonably

clear. Its failure to do so deprived the McLaughlins of the use

of the funds ASIC should have offered in settlement once

Harrington's liability became reasonably clear, until the

McLaughlins finally received compensation for their lost

plantings. To the extent Harrington's ultimate liability was

reduced by offset of settlement payments made by Waterworks and

Assurance, those settlement offers were not made until the eve

of trial and did not obviate the McLaughlins' loss of use of the

funds prior to that time. Accordingly, the McLaughlins are

entitled to recover loss of use damages "from the time when the

claim should have been paid to the time that a settlement or

judgment was paid," Rhodes v. AIG Domestic Claims, Inc., 461

Mass. 486, 497-498 (2012), adjusted to account for the

settlement payments made by Waterworks and Assurance,

respectively, when they were made. See Bertassi, supra.

5. Multiple damages. The McLaughlins also contend that

the trial judge erred as matter of law in declining to multiply

the damages he awarded them for ASIC's violation of G. L.

c. 93A. Under that chapter, actual damages shall be doubled or

trebled if the violation is knowing, wilful, or in bad faith.

See G. L. c. 93A, § 9(3). The requirement of a wilful violation
23

is satisfied if the violation is reckless. See Kattar

v. Demoulas, 433 Mass. 1, 16 (2000). We review a judge's

decision whether to award multiple damages on a G. L. c. 93A

claim for abuse of discretion. See ibid.

The trial judge specifically found that ASIC did not act

knowingly or wilfully in its failure to make a reasonable

settlement offer, and he rejected the McLaughlin's request for a

finding that ASIC's violation was reckless. We discern no clear

error in the judge's factual finding that ASIC's violation was

not knowing, wilful, or in bad faith, and no abuse of discretion

in his refusal to award multiple damages.

6. Attorney's fees for this appeal. The McLaughlins have

requested an award of their appellate attorney's fees incurred

in this appeal. We agree that such an award is appropriate.

See Yorke Mgmt. v. Castro, 406 Mass. 17, 19 (1989). In

accordance with the procedure set forth in Fabre v. Walton, 441

Mass. 9, 10-11 (2004), the McLaughlins may file an application

therefor with the clerk of this court within fourteen days of

the date of the rescript. ASIC shall have fourteen days

following the filing of the McLaughlins' application to respond.

Conclusion. So much of the judgment as declined to award

loss of use damages to the McLaughlins is reversed. In all

other respects the judgment is affirmed. The case is remanded
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to the Superior Court for further proceedings consistent with

this opinion.

So ordered.