MARK R. VENTO v. VERMONT MUTUAL INSURANCE COMPANY; J. BRIAN DAY, INC., Third- Party

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-643

MARK R. VENTO

vs.

VERMONT MUTUAL INSURANCE COMPANY; J. BRIAN DAY, INC., third-
party defendant.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Mark R. Vento, brought an action against

Vermont Mutual Insurance Company (Vermont Mutual) alleging in

his amended complaint claims of breach of contract, violation of

G. L. c. 176D and G. L. c. 93A, negligence, and negligent

infliction of emotional distress. Before trial, Vermont Mutual

moved to dismiss the negligence claim. At the hearing on this

motion, the judge dismissed the negligence claim and sua sponte

dismissed the breach of contract claim. The G. L. c. 93A claim

and negligent infliction of emotional distress claims were tried

before a jury, which rendered a verdict in favor of Vermont

Mutual. The judge then entered a separate and final judgment

dismissing Vento's complaint against Vermont Mutual. Vento has
appealed, arguing that the judge erred in dismissing his breach

of contract and negligence claims. We affirm.

Background. In his amended complaint, Vento alleged the

following facts. Vento owns real property in Holbrook, which he

insured through a policy issued by Vermont Mutual. In

September, 2012, the property was severely damaged by a fire.

Vento reported this loss to Vermont Mutual, and it opened a

claim regarding this damage.

Vermont Mutual hired Samuel F. McCormack Company to assist

it in adjusting the loss. McCormack, in turn, hired Peter Venie

to adjust Vento's loss.

Vento, McCormack, and Venie disagreed on the extent of the

loss and the costs of repairing the property. These

disagreements led to delays in repairing the property. Vento

hired contractors to repair the property, but they were delayed

by Vermont Mutual's refusal to make payments sufficient to cover

the costs of labor and materials for the repairs.

According to the amended complaint, Vermont Mutual refused

to pay amounts it was required to without good cause,

justification, or explanation, and Vermont Mutual refused to

make a reasonable offer to resolve Vento's claims.

While not fully addressed by the allegations, before Vento

filed his amended complaint, the parties submitted their dispute

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about the amount of Vento's loss to three referees pursuant to

the insurance policy. The referees issued an award settling the

amount owed to Vento, and Vermont Mutual paid Vento that amount

minus the payments it had already made to him.

Vermont Mutual moved to dismiss the negligence claim in

Vento's amended complaint, arguing that it owed Vento no duty of

care beyond the requirements of G. L. c. 176D. At the hearing

on this motion, the judge indicated that, in light of the

binding referees' award, he did not think that Vento could

maintain a breach of contract claim. Vento's counsel argued

that while Vento was bound by the referees' award as to the

amount of damage to the property, Vento suffered other losses

due to Vermont Mutual's "lowball[ing]" the loss amount and

delaying the resolution of Vento's claim. The judge then noted

that these sounded like allegations supporting a G. L. c. 93A

claim, rather than a contract claim. Vento's counsel argued

that these allegations also supported a breach of contract

claim, noting that Vermont Mutual had an obligation under the

contract of good faith and fair dealing. The judge ultimately

dismissed the contract claim, stating that it was "wholly and

entirely duplicative of the 93A/176D claim." The judge also

dismissed the negligence claim because he agreed with Vermont

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Mutual that the alleged negligence claim "comes out of a

contractual relationship."

Discussion. "We review the allowance of a motion to

dismiss de novo." Mackie v. Rouse-Weir, 495 Mass. 252, 259

(2025).

1. The contract claim. Vento argues that the judge

erroneously concluded that his breach of contract claim was

subsumed within his G. L. c. "93A/176D" claim.

Generally, "[a] party may . . . state as many separate

claims or defenses as he has regardless of consistency and

whether based on legal or equitable grounds." Mass. R. Civ. P.

8 (e) (2), 365 Mass. 749 (1974). While "[a] plaintiff may seek

recovery under multiple counts," he "may not recover cumulative,

duplicative damages from those counts." Fox v. F & J Gattozzi

Corp., 41 Mass. App. Ct. 581, 588 (1996). Where two claims are

duplicative, though, meaning that "the elements of proof for

both are the same," the judge is not required to submit both

claims to the jury. See Calderon v. Royal Park, LLC, 96 Mass.

App. Ct. 49, 56 & n.9 (2019).

Here, at least as the plaintiff has framed his allegations,

to recover on his breach of contract claim, he would need to

prove facts that, if established, would necessarily also make

out a successful G. L. c. 93A claim. A consumer may recover

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under G. L. c. 93A, § 9, against an insurer who engages in

unfair claims settlement practices as defined in G. L. c. 176D,

§ 3 (9). Such unfair settlement practices include, as relevant

here, "[f]ailing to effectuate prompt, fair and equitable

settlements of claims in which liability has become reasonably

clear" and "[c]ompelling insureds to institute litigation to

recover amounts due under an insurance policy by offering

substantially less than the amounts ultimately recovered in

actions brought by such insureds." G. L. c. 176D, § 3 (9) (f)-

(g).

The amended complaint alleged that Vermont Mutual breached

the parties' contract "by failing to make payments anticipated

and required by the contract," but at the hearing on the motion

to dismiss, Vento's counsel conceded that Vento was bound by the

referees' award as to the amount Vento was owed for damage to

the property and was not questioning that award. Vento's

counsel suggested that, instead, Vermont Mutual may have

violated the covenant of good faith and fair dealing by delaying

the process of settling this claim and lowballing their offers

thereby forcing Vento to hire lawyers to go through the referee

process. In other words, to establish a breach of contract on

the theory counsel articulated at the hearing, Vento would need

to establish that Vermont Mutual "[f]ail[ed] to effectuate

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prompt, fair and equitable settlement[] of [a] claim[] in which

liability ha[d] become reasonably clear" or forced him to

litigate to obtain an amount due under the policy "by offering

substantially less than the amount[] ultimately recovered" by

Vento -- the very things Vento was required to establish to

succeed on at least some of his theories supporting the G. L.

c. 93A and G. L. c. 176D claim. See G. L. c. 176D, § 3 (9) (f)-

(g).

The complaint also alleges facts beyond the conduct that

allegedly amounted to a breach of the contract that might

independently support a finding of violations of G. L. c. 176D.

But if the jury found that Vermont Mutual committed the conduct

Vento alleged violated the contract, they would have also been

required to find that Vermont Mutual violated G. L. c. 176D.1

Consequently, as these two claims were presented here, the

contract claim is duplicative of the G. L. c. 176D and G. L.

c. 93A claim, and the judge was not required to submit both

claims to the jury.

While Vento argues that a violation of G. L. c. 93A
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requires an additional showing that the defendant's conduct was
unfair or deceptive not required to prevail in a contract
action, G. L. c. 93A, § 9, provides for recovery for violations
of G. L. c. 176D, without regard to whether the defendant's
actions would constitute unfair or deceptive acts as defined in
G. L. c. 93A, § 2. See Silva v. Steadfast Ins. Co., 87 Mass.
App. Ct. 800, 803-804 (2015).

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2. Negligence claim. The negligence claim stands on

different ground. To begin with, we disagree with the motion

judge's conclusion that Vento could not bring a negligence

action because of the contractual nature of the parties'

relationship. See Abrams v. Factory Mut. Liab. Ins. Co., 298

Mass. 141, 144 (1937) ("Although the duty arises out of the

contract and is measured by its terms, negligence in the manner

of performing that duty as distinguished from mere failure to

perform it, causing damage, is a tort"). Further, the

negligence claim, unlike the contract claim, is not duplicative

of the G. L. c. 93A claim, as Vermont Mutual may have acted

negligently in ways that go beyond the strictures of the unfair

settlement practices listed in G. L. c. 176D.

For the first time, however, Vermont Mutual raises in its

brief what it puts forward as an alternative ground for

affirmance with respect to the negligence claim, the economic

loss doctrine, arguing that it bars Vento from recovering for

his alleged damages. "Massachusetts generally follows the

traditional rule 'that purely economic losses are unrecoverable

in tort . . . actions in the absence of personal injury or

property damage.'" R.L. Whipple Co. v. Pondview Excavation

Corp., 71 Mass. App. Ct. 871, 873 (2008), quoting FMR Corp. v.

Boston Edison Co., 415 Mass. 393, 395 (1993). The plaintiff has

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not filed a reply brief to address this argument. It is true

that in his amended complaint, he alleged that the delays caused

by Vermont Mutual's negligence "resulted in further damage to

Vento's property." And, at the time it was made, the motion to

dismiss might well have been denied on that ground, pending

further development of the record. This case, however, is in an

unusual posture. The plaintiff has had a trial arising out of

the relevant set of operative circumstances in which he provided

evidence of his damages. Yet at trial, he provided no evidence

that the delay caused additional property damage. Given the

trial record, then, we think the economic loss doctrine argument

is well taken.

Judgment dated September 19,
2023, affirmed.

By the Court (Rubin, Neyman &
Tan, JJ.2),

Clerk

Entered: August 19, 2025.

2 The panelists are listed in order of seniority.

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