LIBERTY MUTUAL INSURANCE COMPANY v. MANSOUR CONSTRUCTION, INC., & Others.

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

25-P-249

LIBERTY MUTUAL INSURANCE COMPANY1

vs.

MANSOUR CONSTRUCTION, INC., & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In January 2015 Steven Reis, an employee of Mansour

Construction, Inc. (Mansour), was tragically killed when he was

struck by a falling load of sheetrock while working in a trench

at a construction site. A few months later, Reis's estate

brought a wrongful death action (Reis lawsuit) against the

general contractor, Suffolk Construction Company (Suffolk),

among others. Suffolk then filed a third-party complaint

against its subcontractor Mansour, claiming that Mansour had a

duty under the subcontract to defend and indemnify Suffolk.

1As assignee and subrogee of Suffolk Construction Company,
Inc., and subrogee of Liberty Construction Services, LLC.

2Travelers Indemnity Company and St. Paul Fire and Marine
Insurance Company.
After the Reis lawsuit settled in 2018, Suffolk's insurer,

Liberty Mutual Insurance Company (Liberty), was substituted for

Suffolk as the third-party plaintiff on the claims against

Mansour. Later, Liberty amended the third-party complaint to

add G. L. c. 93A claims against Mansour's insurers, Traveler's

Indemnity Company and St. Paul Fire and Marine Insurance

Company,3 alleging they engaged in unfair settlement practices.

Liberty's claims against Mansour were tried to a jury, resulting

in a verdict for Mansour. The judge who presided over the jury

trial (first judge) then denied Liberty's motion for judgment

notwithstanding the verdict (judgment n.o.v.) or for a new

trial. Liberty's c. 93A claims proceeded to a bench trial

before a different judge (second judge), who found that Liberty

failed to prove that Travelers engaged in unfair settlement

practices. Judgment entered accordingly, and Liberty appeals.

We affirm.

1. Claims against Mansour. The subcontract between

Mansour and Suffolk requires Mansour to defend and indemnify

Suffolk against claims "caused by, arising out of, resulting

from, or occurring in connection with" Mansour's work on the

construction project. The subcontract also requires Mansour to

3 These two companies merged in 2004. We will refer to them
together as "Travelers."

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defend and indemnify Suffolk against claims resulting from

Mansour's violations of safety regulations, including

regulations issued by the Occupational Safety and Health

Administration (OSHA). In returning a verdict for Mansour, the

jury found that Mansour did not breach these contractual

obligations and answered "No" to the question, "Did any action

or inaction of Mansour . . . bring about or provoke the mishap

that resulted in the death of Mr. Reis?" On appeal Liberty

argues that the evidence compelled contrary findings and that

its motion for judgment n.o.v. should therefore have been

allowed. We are unpersuaded.

Our review of a denial of a motion for judgment n.o.v. is

de novo. See Gyulakian v. Lexus of Watertown, Inc., 475 Mass.

290, 295 n.11 (2016). The standard we employ is highly

deferential to the jury verdict, which must be sustained if

"anywhere in the evidence, from whatever source derived, any

combination of circumstances could be found from which a

reasonable inference could be drawn in favor of the nonmoving

party." Id., quoting Esler v. Sylvia-Reardon, 473 Mass. 775,

780 (2016). In conducting this inquiry, we must consider the

evidence "in the light most favorable to the [nonmoving party],

without weighing the credibility of the witnesses or otherwise

considering the weight of the evidence," while "disregard[ing]

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the evidence favorable to the [moving party]" (quotations and

citations omitted). Gyulakian, supra.

Here, the evidence was adequate to support the jury's

verdict that no action or inaction of Mansour caused the

accident that resulted in Reis's death. As the first judge

detailed in his decision, the evidence, viewed favorably to

Mansour, established that the Mansour employees working in the

trench at the time of the accident did not know there were loads

of sheetrock being delivered over their heads. The foreman

testified that he saw the boom delivering one overhead load, but

this was after the rest of the crew, including Reis, had already

left for the morning coffee break; when they returned, the

foreman looked for the boom but did not see it, so he assumed

(mistakenly) that the hazard had been removed. And two other

employees testified that they never saw any loads being

delivered over the trench at any time that day. The testimony

of these witnesses alone permitted the jury to find that Mansour

did not cause Reis's death because its crew was simply not aware

that they were working under suspended loads. To the extent

Liberty argues that these witnesses were not credible, it is not

our role to make credibility determinations, nor can we

"substitute [our] judgment of the facts for that of the jury."

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O'Shaughnessy v. Besse, 7 Mass. App. Ct. 727, 728 (1979). See

Gyulakian, 475 Mass. at 295 n.11.

Liberty further argues that the first judge erred by

excluding Mansour's post-accident letters to OSHA. This

argument is made in summary fashion with no citations to the

record or to controlling authority and is thus waived. See

Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628

(2019). Likewise waived is Liberty's argument that the first

judge erred by denying its motion to strike Mansour's jury

demand. The first judge concluded that the jury-waiver

provision in the subcontract applies only to disputes about

amounts owed or time of performance and that Liberty was

estopped from arguing otherwise, having claimed its own right to

a jury years before. Liberty does not mention these rulings,

let alone explain why they are erroneous. We therefore need not

address the argument further. See id.

For these reasons we conclude that Liberty has failed to

show that it is entitled to relief from the jury's verdict in

favor of Mansour.4

2. Claims against Travelers. Liberty next challenges the

second judge's conclusion that it failed to prove that Travelers

4 Mansour's request for appellate attorney's fees and double
costs is denied.

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committed unfair settlement practices in violation of G. L.

c. 93A and c. 176D. These statutes "operate in tandem 'to

encourage the settlement of insurance claims . . . and

discourage insurers from forcing claimants into unnecessary

litigation to obtain relief.'" Terry v. Hospitality Mut. Ins.

Co., 101 Mass. App. Ct. 597, 604 (2022), quoting Caira v. Zurich

Am. Ins. Co., 91 Mass. App. Ct. 374, 381 (2017). Under G. L.

c. 176D, § 3 (9) (f), an insurer must "effectuate [a] prompt,

fair and equitable settlement[]" when liability of its insured

is "reasonably clear." Liability in this context "encompasses

both fault and damages." Clegg v. Butler, 424 Mass. 413, 421

(1997).

In reviewing the second judge's decision, we accept her

findings of fact, which are not clearly erroneous, and consider

her legal conclusions de novo. See Silva v. Norfolk & Dedham

Mut. Fire Ins. Co., 91 Mass. App. Ct. 413, 415-416 (2017).

Applying this standard, we conclude that the second judge

correctly rejected Liberty's claims for at least two reasons.

First, we agree with the second judge that the liability of

Mansour to defend and indemnify Suffolk never became reasonably

clear so as to trigger a duty to settle on the part of

Travelers. As an initial matter, until the parties in the Reis

lawsuit agreed to settle in 2017, the relative liability among

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the named defendants (which did not include Mansour) was not

reasonably clear.5 Indeed, a few months before the settlement,

Liberty told Reis's estate that Suffolk's liability was not

reasonably clear, and, in answering Travelers' interrogatories

related to the c. 93A claims, Liberty took the position that

Suffolk's liability "never became reasonably clear." And if

Suffolk's liability to Reis was not reasonably clear, it

necessarily follows that Mansour's contractual duty to defend

and indemnify Suffolk was also not reasonably clear. See Bobick

v. United States Fid. & Guar. Co., 439 Mass. 652, 660 (2003)

(liability not reasonably clear if "there exist[s] a legitimate

difference of opinion as to the extent of [the insured's]

liability"); Demeo v. State Farm Mut. Auto. Ins. Co., 38 Mass.

App. Ct. 955, 957 (1995) (liability not reasonably clear where

there was genuine dispute whether accident caused by insured or

another party).

Moreover, even if Suffolk's own liability to Reis was

reasonably clear, Mansour still would have had no contractual

5 There were four defendants named in the Reis lawsuit:
East Coast Building Materials (East Coast), the company that
delivered the sheetrock; the East Coast employee who operated
the truck; Liberty Construction Services, LLC, the subcontractor
that received the delivery; and Suffolk. Under the final
settlement agreement, Suffolk and Liberty Construction Services,
LLC (both insured by Liberty) agreed to pay $7.5 million and the
East Coast defendants (both insured by Travelers) agreed to pay
$4.5 million.

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duty to Suffolk unless, as discussed above, Mansour caused the

accident that led to Reis's death. The second judge properly

found that the record is void of any evidence of causation that

would have led a reasonable insurer in Travelers' position to

conclude that Mansour's liability was clear. Travelers'

decision not to concede liability thus reflected "a legitimate

difference of opinion" and not bad faith. Bobick, 439 Mass. at

660. This is confirmed by the jury's verdict in the coverage

trial finding that Mansour was not the cause of the accident.

Contrary to Liberty's contention, the jury's verdict, though

rendered in 2022, is relevant to whether Travelers acted in good

faith by not settling earlier because it "confirmed that

[Travelers] had a reasonable basis to resist settlement."

Silva, 91 Mass. App. Ct. at 418. See Bobick, supra (damages

attributable to insured was "subject of good faith disagreement"

in 1994, as evidenced by jury's verdict in 1996 dividing

liability among insured and other parties); Transamerica Ins.

Co. v. KMS Patriots, L.P., 52 Mass. App. Ct. 189, 197 (2001)

("When coverage has been correctly denied . . . , no violation

of the Massachusetts statutes proscribing unfair or deceptive

trade practices may be found").

We are also unpersuaded by Liberty's contention that

Travelers' claims notes, which reflect that Travelers

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anticipated having to indemnify Suffolk, should be treated as

binding admissions of liability. As the second judge observed,

the notes were merely indicative of Travelers' views of its

potential exposure and were not admissions of liability. More

fundamentally, as the second judge further observed, the

standard for determining whether liability was clear is an

objective one. See Demeo, 38 Mass. App. Ct. at 957. Where the

evidence that Mansour caused the accident was contradictory at

best, Travelers' refusal to concede liability was objectively

reasonable.

Second, even assuming Mansour's liability was clear, the

second judge did not err in finding that Travelers made a

reasonable settlement offer. "A determination of reasonableness

normally is a question of fact." Kohl v. Silver Lake Motors,

Inc., 369 Mass. 795, 799 (1976). See Parker v. D'Avolio, 40

Mass. App. Ct. 394, 395 (1996). That question "is to be

considered in the light of the situation as a whole," bearing in

mind that "[t]he statute [G. L. c. 176D, § 3 (9)] does not call

for [a] defendant's final offer, but only one within the scope

of reasonableness." Bobick, 439 Mass. at 661-662, quoting

Forcucci v. United States Fid. & Guar. Co., 11 F.3d 1, 2 (1st

Cir. 1993). Even where an insurer undervalues a claim, it has

not engaged in unfair settlement practices absent "evidence that

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[it] acted in a deliberate attempt to derail the settlement

process, or to litigate a claim in which causation and damages

were clear." Parker, supra at 401.

There is no such evidence here. In December 2017, during

the mediation in the Reis lawsuit, Travelers made Liberty an

offer of $1 million, but the mediator reported back that

"Liberty is going to settle this by themselves, and then they'll

deal with Travelers later."6 Liberty did not make a

counteroffer, and Travelers was not given the opportunity to

increase its offer or otherwise participate in the settlement.

Then, after the Reis lawsuit settled, Travelers made an

increased offer of $1,250,000 in August and November 2018 and

increased its offer again to $1,375,000 in May 2020.7 Liberty

6 Liberty argues that the second judge erred in considering
the $1 million offer because "an alleged offer to a mediator is
not the same as an offer to Liberty" and because the testimony
should have been excluded under the mediation privilege. These
arguments are waived, as Liberty did not raise them below. In
fact, Liberty's litigation counsel told the second judge that he
"[did not] dispute there was a million-dollar offer at the
mediation," and its in-house counsel testified that Travelers
made the offer but Liberty rejected it.

7 Liberty argues that the second judge erred in considering
the 2018 and 2020 offers because under Kapp v. Arbella Mut. Ins.
Co., 426 Mass. 683 (1998), it was an unfair settlement practice
for Travelers to condition those offers on Liberty's releasing
its c. 93A claims. We disagree. Putting aside that Kapp is
distinguishable -- because the insurer there knew that its
insured was liable and that the plaintiff's damages exceeded the
policy limit, see id. at 684, 687 -- the part of Kapp relied on
by Liberty is no longer good law because it follows Thaler v.

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rejected all of these offers and chose to litigate its claims

against Mansour, resulting in the jury's verdict that Mansour

was not liable.

In these circumstances the second judge did not err in

finding that "the increasing settlement offers that Travelers

made were reasonable in light of the facts of this case." As

discussed above, this is not a case where "causation and damages

were clear," and Liberty offered no evidence that would support

a finding that Travelers "acted in a deliberate attempt to

derail the settlement process." Parker, 40 Mass. App. Ct. at

401. Liberty's summary assertions that Travelers' offers were

made in bad faith because they were less than the amount of its

settlement authority do not rise to the level of adequate

appellate argument and are in any event unavailing. Travelers

was not obligated to offer the full amount of its authority to

avoid being held liable for unfair settlement practices. See

Bobick, 439 Mass. at 662.8 Furthermore, although it is hard to

American Ins. Co., 34 Mass. App. Ct. 639 (1993), which has since
been overruled. See Lazaris v. Metropolitan Prop. & Cas. Ins.
Co., 428 Mass. 502, 504-506 (1998).

In suggesting otherwise, Liberty mischaracterizes Hopkins
8

v. Liberty Mut. Ins. Co., 434 Mass. 556 (2001), as holding that
a "$400,000 offer for [a] $700,000 claim is bad faith." In
fact, $400,000 was the settlement amount in Hopkins; the unfair
settlement practice was Liberty's failure to make the offer
within a reasonable time after receiving the plaintiff's demand
of $700,000. See id. at 560.

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see how Travelers undervalued the claim in light of the jury's

verdict for Mansour, even assuming that it did, "bad faith is

'not simply bad judgment.'" Parker, supra at 402, quoting

Spiegel v. Beacon Participations, Inc., 297 Mass. 398, 416

(1937). Rather, bad faith "implies conscious doing of wrong,"

evidence of which is utterly lacking in this case. Parker,

supra, quoting Spiegel, supra.

Because we uphold the second judge's decision on these

grounds, we need not reach the alternative grounds for

affirmance raised by Travelers. To the extent we have not

specifically addressed any of Liberty's arguments, we see

nothing in them that warrants disturbing the judgment.

Judgment affirmed.

By the Court (Desmond, Shin &
Walsh, JJ.9),

Clerk

Entered: January 21, 2026.

9 The panelists are listed in order of seniority.

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