1:25-cv-10267•Gretzky v. AMGuard Insurance Company
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United States District Court
District of Massachusetts
Victoria Gretzky,
Plaintiff,
V . Civil Action No.
25-10267-NMG
AmGUARD Insurance Company,
Defendant .
MEMORANDUM & ORDER
GORTON, J.
This case arises fro m allegations of u nfair and deceptive
business pract ic es brought by plaintiff , Victoria Gretzky
(" Gretzky " or " plaintiff " ) , against defendant , AmGUARD Insuran ce
Company ( " AmGUARD " or " defendant " ) . Defendant moves to limit
damages . For the reasons that follow , that motion will be
allowed .
I . Background
a . Facts
In September , 2021 , Gretzky was injured when she fell on a
staircase at an apartment building owned by Manual and Madalena
Arruda (" the Arrudas " ) . Gretzky sustained multiple fractures to
her legs that resulted in surgery and she was hospitalized for
several months . The Arrudas had purchased a liability insurance
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Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 1 of 9policy through AmGUARD which provided coverage for Gretzky ' s fall . In September , 2022 , Gretzky filed an action against the Arrudas in Massachusetts state court to recover her medical expenses and pain and suffering damages . AmGUARD made settlement offers many times before the case went to trial . Gretzky declined all of t h ose settle ment offers and demanded $1 , 000 , 000 in damages , which was AmGUARD ' s policy limit , plus interest . On the second day of trial , the parties settled and a consent ju dgement was entered . It declared that Gretzky was entitled to $2 , 250 , 000 exclusive of interest and costs , and reserved her right to bring first a n d t hi rd - party bad faith claims against AmGUARD . AmGUARD acknowledged responsibility for paying Gretzky $1 , 000 , 000 but the parties dispute whether the settlement required it to pay pre - judgement interest as well . On July 8 , 2024 , Gretzky requested immediate payment of $1 , 000 , 000 plus pre - judgement interest . One week later , AmGUARD submitted a check for $1 , 000 , 000 with a written note that it was in " full and final settlement ". Gretzky rejected that check because the settlement agree ment per mitted h er to pursue bad faith claims and the check did not include pre - judgement interest . On July 31 , 2024 , AmGUARD sent an identical check to plainti f f who again rejected it . On August 8 , 2024 , AmGUARD - 2 - Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 2 of 9
sent a new $1 , 000 , 000 check without the written notation that
Gretzky accepted .
b. Procedural History
Later in August , 2024 , plaintiff sent a demand letter to
AmGUARO for relief under M. G. L . c . 93 , §9 (" Chapter 93A " ) and
also alleged a violation of M. G. L c . 1760 , §3 (9) (a) - (d) , (f)
(" Chapter 1760 " ) . In September , 2024 , AmGUARO responded
offering plaintiff $232 , 769 , which represented pre - judgment
interest at 12% accrued from September 1 , 2022 , through August
8 , 2024. Plaintiff rejected that proffer .
In November , 2024 , plaintiff filed a complaint against
AmGUARO in Massachusetts state court , allegi n g t h at AmGUARO
intentionally , knowingly , willfully and repeatedly
[violated Chapter 93A and Chapter 1760 , via] unfair and
deceptive practices in the business of insurance .
In February , 2025 , the action was removed to this Court .
In defendant ' s answer it denies liability . In May , 2025 ,
defendant filed a motion to limit damages under Chapter 93A ,
asserting that the offer of settlement made in response to the
demand letter was reasonable and entitles it to the safe harbor
provision of Chapter 93A .
Plaintiff opposes the motion , asserting that AmGUARO ' s
settlement offer was unreasonable relative to the actual injury
suffered . Plaintiff claims prejudgment interest is the wrong
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Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 3 of 9measure of economic damages and t hat damages fo r men tal anguish and unnecessary prolongment of the litigation should have b een included in the offer . II . Legal Standard Chapter 176D , Section 3 , of the Massachusetts General Laws provides that insurance companies have an obligation to " effectuate prompt , fair and equitable settlements of claims in which liability has become reasonab ly clear . " M. G. L . c . 176D , §3 ( 9) ( f) . Chapter 93A of the Massachusetts General La ws provides the statutory basis for damages when an in su rer has violated Chapter 1 76 D. In cases in which insurers have failed to effectuate prompt and fair settlements , recovery shall be in the amount of actual damages ; or up to three , but not less than two , times such amount as punitive damages if the violative conduct is willful or knowing . The punitive damages provisi on was amended in 1989 to define the " actual damages " to be multiplied as "t he amount of the ju dgment on al l claims arising out of the same and underlying transaction or occurrence ." R. W. Granger & Sons , Inc . v . J & S Insulation , Inc ., 754 N. E . 2d 668 , 680 (2001) As relevant to the present motion , Chapter 93A also includes a " safe harbor " provision . Section 9(3) provides that if a recipient of a demand letter timely tenders a written - 4 - Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 4 of 9
settlement offer and that offer i s rejected , the recipient may limit dama ges when the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner . M. G. L . c . 93A § 9 ( 3) . The reasonableness of an offer is a question for the factfinder , taking into account al l of the attendant facts and circumstances . Applied Image Reprographics , Inc . v . Citizens Bank of Mass ., 2012 WL 2913528 , at *12 (Mass . Super . Ct . June 5 , 2012) . When plaintiff has no reasonable expectation of proving an elem ent of her case , however , the question of reasonab leness may be res o lved as a matter of law . Wahlstrom v . Zu rich Am . Ins . Co ., 2022 WL 20416910 , at *4 (D . Mass . Nov . 22 , 2022) . III. Analysis The parties dispute the meaning of " injury actual ly suffered ,n in the safe harbor provision . Defendant contends that the injury in such cases is the loss of use of the money wrongfully withheld by the insurer and , therefore , the reasonableness of the offer should be based on the interest lo s t on the money th at should ha ve been proffered once liability was r easonab ly established . With that understanding , defendant offere d $ 232 , 769 , which represents interest at the rate of 12 % on the $1 million policy limit , assuming that the $1 million was - 5 - Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 5 of 9
payable on September 1 , 2022 (the date the underlying tort claim was filed) . Plaintiff resp onds that loss of use is not applicable when there is a judgment in the underlying tort ca se and the insurer committed a willful violation of Chapter 176D . She asserts that , in such cases , the judgment should be multiplied pursuant to the punitive damages amendment to the statutory scheme . She also argues that the injury actually suffered includes damages for emotional distress and the stress of going to trial but she does not submit what a reasonable offer would have been other than to suggest it should have been closer to the judgment of $2 , 250 , 000 . a. Loss of Interest Plaintiff is mistaken about the applicability of loss - of - use damages . Massachusetts case law indicates that loss of use is the proper measure of damages , see , ~ , Wahlstrom , 2022 WL 20416910 , at *4 (collecting cases) , and plaintiff cites no authority to the contrary . The single case she relies on , Rhodes v . AIG Domestic Claims , Inc ., is factually distinguishable . First , the $7 million offer in that case was to settle both the judgment of the underlying tort suit (approx ima tely $11 million , which had not yet to be paid) and the Chapter 93A claim . Second , although perhaps the $7 million offer could have satisfied the safe harbor provision , none o f - 6 - Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 6 of 9
• I the courts in the litigation analyzed the offer in that regard. Third , at the time the $7 million was offered , a judge had already found the de fendant l iable for willful and knowing violations of Chapter 93A , enabling an award of punitive damages . Rhodes is inapposite to this case because (1) AmGUARD ' s offer was to settle the Chapter 93A claim o n ly because the underlying tort action had already been settled ; (2) Rhodes did not involve the safe harbor provision of the statute on which this case indispu tably turns ; and (3) there has been no judicial finding of a willful and knowing violation of Chapter 93A . The loss of use of wrongfully withheld settlement funds is the proper standard that this Court will use to determine whether AmGUARD ' s offer was reasonable. Having determined that loss of use is the proper measure of damages under Section 1760 , the ultimate question is what was that loss here? i. Prejudgment Violations Beginning with the prejudgment violation , plaintiff does not and cannot argue that AmGUARD was obligated to settle for more than the $1 million policy limit . That is the maximum amount plaintiff could have expected to receive . Thus , with respect to prejudgment violations , plaintiff was deprived of use of $1 million , and her damages are the interest accrued on that - 7 - Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 7 of 9
' I amount. Defendant ' s settlement offer was precisely that amount and was therefore reasonable relative to the prejudgment injuries . ii. Post-Judgment Violations As for post - judgment violations , plaintiff argues that after the parties entered their consent judgment , defendant became obligated , pursuant to the terms of the settlement , to pay prejudgment interest on the $1 million , i . e . $232 , 769 . Thus , defendant is alleged to have wrongfully withheld the payment of interest and therefore owes interest on the interest which defendant did not include in its offer . Whether defendant was required to pay prejudgment interest as part of the consent judgment is a question of fact that the Court will not determine at this stage . Assuming , arguendo , that the consent judgment did in fact mandate payment of the prejudgment interest , the settlement offer was reasonable relative to the injury suffered . The two - month withholding o f the prejudgment interest resulted in less than $5 , 000 in loss- of - use damages , a de minimis amount compared to the amount offered to plaintiffs , and therefore the September 12 settlement offer was reasonable as a matter of law . b. Other Injury Finally , plaintiff contends that the Chapter 93A settlement offer was unreasonable because it did not include any damages - 8 - Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 8 of 9
for emotional distress . Plaintiff is correct that a Chapter 93A settlement may include more than just loss of use of wrongfully withheld funds . Other damages include emotional distress for t he fear of financial ruin and the hassle of litigation . Urban v . Zurich Am . Ins . Co. , 737 F . Su pp. 3d 39 , 46 (D . Mass . 2024) . Yet , in this case , plaintiff did not include a request for such damages in her demand letter . Not having been apprised of plaintiff ' s alleged injuries outside of loss of use , defendan t cannot be expected to have included compensation for such damages in its offer . See Wahlstrom , 2022 WL 20416910 , at *8 . ORDER For the foregoing reasons , the Motion to Limit Damages (Docket No . 19) is ALLOWED. So ordered. Nathaniel M. Gorton Senior United States District Judge Dated : November /O , 2025 - 9 - Case 1:25-cv-10267-NMG Document 32 Filed 11/10/25 Page 9 of 9
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