Caira v. Zurich American Insurance Co.

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16-P-927 Appeals Court

MICHAEL CAIRA vs. ZURICH AMERICAN INSURANCE CO.

No. 16-P-927.

Essex. February 2, 2017. - April 21, 2017.

Present: Grainger, Sullivan, & Lemire, JJ.

Motor Vehicle, Insurance. Insurance, Unfair act or practice,
Settlement of claim. Consumer Protection Act, Unfair act
or practice, Insurance. Practice, Civil, Consumer
protection case, Summary judgment, Continuance, Discovery.

Civil action commenced in the Superior Court Department on
April 9, 2015.

A motion for a continuance was heard by Timothy Q. Feeley,
J., and the case was heard by him on a motion for summary
judgment.

Mark T. Rumson (Paul F.X. Yasi also present) for the
plaintiff.
Jane A. Horne (Allen N. David also present) for the
defendant.

LEMIRE, J. In this case, we consider whether a judge in

the Superior Court erred in granting summary judgment to Zurich

American Insurance Co. (Zurich) on a complaint alleging that
2

Zurich committed unfair claim settlement practices in violation

of G. L. c. 176D, § 3(9)(f), and G. L. c. 93A, § 2. We conclude

that Zurich did not violate these statutory provisions when it

conditioned the payment of its primary insurance policy limit on

a release of all claims against its insureds, notwithstanding

the availability of excess insurance. Accordingly, we affirm.

Background. Shortly after midnight on September 14, 2013,

Daniel Madigan-Fried was driving a rental car in Swampscott when

he was involved in a one-vehicle accident. The plaintiff,

Michael Caira, who was a passenger in the front seat, suffered

life-threatening injuries, and the two passengers in the back

seat sustained serious injuries. A few weeks before the

accident, Madigan-Fried had rented the vehicle in his capacity

as an employee of Groom Construction Co., Inc. (Groom). Zurich

had issued to Groom the primary commercial automobile insurance

policy that was in place at the time of the accident. The

bodily injury coverage under the policy was $1 million. In

addition, Groom had two excess insurance policies issued by

Starr Indemnity & Liability Company (Starr Indemnity) and

Navigators Insurance Company (collectively, excess insurers)

that provided coverage of $5 million each.1

1
"An insurance program involving a primary policy and one
or more excess policies divides risk into distinct units and
insures each unit individually. The individual insurers do not
(absent a specific provision) act as coinsurers of the entirety
3

On October 29, 2013, Caira filed a complaint in the

Superior Court against Madigan-Fried and Groom, alleging

negligence.2 Caira claimed that excessive speed caused Madigan-

Fried to lose control of the vehicle and to crash into a granite

wall. Zurich undertook the defense of Madigan-Fried and Groom.

Between December 23, 2014, and July 15, 2015, thirteen

letters were exchanged between Caira and Zurich regarding the

settlement of Caira's negligence claims against Madigan-Fried

and Groom. In his initial demand letter dated December 23,

2014, written pursuant to G. L. c. 176D, § 3(9)(f) and (n),

Caira asserted that it was reasonably clear that Madigan-Fried

was liable for both the accident and the resulting damages

(which purportedly exceeded $1 million),3 and that Zurich had an

of the risk. Rather, each insurer contracts with the insured
individually to cover a particular portion of the risk. . . .
The layer of risk each insurer covers is defined and distinct."
Allmerica Financial Corp. v. Certain Underwriters at Lloyd's,
London, 449 Mass. 621, 629-630 (2007).
2
Caira's complaint was later consolidated with a complaint
that had been filed by the two back seat passengers against
Madigan-Fried and Groom. In May, 2015, Zurich settled the
claims of the back seat passengers for a total of $230,000,
thereby reducing Zurich's $1 million policy limit to $770,000.
The back seat passengers executed general releases of Madigan-
Fried and Groom.
3
On September 26, 2014, Madigan-Fried had pleaded guilty to
one count of negligent operation of a motor vehicle in a related
criminal proceeding.
4

obligation to tender a settlement to Caira.4 The letter stated

that in exchange for the $1 million insurance policy limit,

Caira would release Zurich from further claims of any kind.

This proposed settlement, however, did not include an offer to

release either Madigan-Fried or Groom because Caira intended to

continue litigating his claims for additional damages. Caira

stated, however, that if Zurich met his demand for the $1

million policy limit, he would enter into an agreement with

Madigan-Fried and Groom to seek recovery of any future judgments

only from one or both of the excess insurers. Caira demanded a

response within sixty days.

Zurich responded by electronic mail message (e-mail) dated

February 4, 2015, declining Caira's offer to release Zurich, but

not Madigan-Fried and Groom, from any additional claims in

exchange for the $1 million policy limit. Zurich stated that,

because discovery had just begun and because there had not yet

been any independent medical examinations, the matters of

liability and damages remained substantially unresolved. In

addition, Zurich stated that paying the policy limit without

receiving a release could expose Zurich to a claim of bad faith

by its insureds (Madigan-Fried and Groom), and could jeopardize

4
In his letter, Caira stated that the demands made pursuant
to G. L. c. 176D, § 3(9)(f) and (n), were in no way intended to
suggest that Zurich had already violated either of these
statutory provisions.
5

any excess insurance coverage to which Madigan-Fried and Groom

might be entitled in the event that Zurich's policy was

exhausted.

In a subsequent demand letter dated February 10, 2015,

written pursuant to G. L. c. 93A, § 9(3), Caira asserted that

Zurich's failure to conduct a reasonable investigation and to

make an equitable offer of settlement constituted wilful and

knowing violations of G. L. c. 176D, § 3(9)(c), (d), and (f),

and per se violations of G. L. c. 93A, § 2. The letter

reiterated Caira's demand for Zurich's $1 million policy limit

in exchange for the partial resolution of Caira's claims against

Madigan-Fried and Groom. Caira stated that an untimely response

or an unreasonable offer of settlement would result in the

amendment of his complaint to include a claim for unfair claim

settlement practices against Zurich.

By letter dated February 13, 2015, Zurich responded that,

in reliance on Lazaris v. Metropolitan Property & Cas. Ins. Co.,

428 Mass. 502 (1998), it properly could condition the payment of

its policy limit on the receipt of a release of its insureds.

In Zurich's view, nothing in Lazaris or its progeny turned on

the existence or nonexistence of excess insurance. Assuming for

purposes of its response that liability was reasonably clear and

that Caira's damages exceeded the $1 million policy limit,
6

Zurich stated that it would only entertain settlement proposals

that provided for a release of Madigan-Fried and Groom.

On March 19, 2015, Caira moved to amend his complaint to

add a claim against Zurich for unfair claim settlement practices

in violation of G. L. c. 176D, § 3(9)(f), and G. L. c. 93A, § 2.

A judge allowed the motion, and he stayed the claim against

Zurich pending the resolution of the underlying negligence

claims.

Meanwhile, by letter dated April 8, 2015, Caira demanded a

settlement from Zurich and the two excess insurers in the amount

of $3.9 million. Caira asserted that Madigan-Fried's liability

for the motor vehicle accident was clear. Zurich responded by

letter dated May 7, 2015, reiterating its position that, absent

a release of Madigan-Fried and Groom, Zurich was not in a

position to make a settlement offer.

In an e-mail dated May 12, 2015, Caira challenged Zurich's

reliance on Lazaris and stated that the excess insurance

protected, and effectively released, Madigan-Fried and Groom

from any future personal liability for damages arising from the

motor vehicle accident. Caira again demanded a settlement in

the amount of $3.9 million, and he agreed that the tender of

such amount by Zurich and the excess insurers would result in
7

the release of all claims against Madigan-Fried and Groom.5

Zurich responded by letter dated June 9, 2015, pointing out

that, for the first time, Caira was offering a release of

Madigan-Fried and Groom in exchange for the demanded settlement

payment of $3.9 million. Zurich stated that it was willing to

offer Caira its remaining policy limit of $770,000 in settlement

of his claims and in exchange for a general release of its

insureds. See note 2, supra.

By e-mail dated June 12, 2015, Caira indicated his

willingness to accept payment of $770,000 from Zurich,

conditioned not on a release of Madigan-Fried or Groom, but on

an agreement with each of them that any judgment subsequently

entered against either or both, in excess of $770,000, would be

collected only from the excess insurers. Caira stated that he

would continue to pursue additional claims for damages and would

endeavor to settle such claims with Starr Indemnity. Caira also

stated that nothing in his settlement proposal should be

construed as an offer to release his unfair claim settlement

practices claim against Zurich. The offer was to remain open

for five days. When there was no response within this time

frame, Caira sent Zurich another e-mail, dated June 19, 2015,

asking for an explanation for the denial of his settlement

5
Caira's letter dated May 12, 2015, was sent only to
Zurich, and not to the excess insurers.
8

proposal. Zurich responded the same day by clarifying that it

had not denied Caira's claim, and that its offer of the $770,000

policy limit in exchange for a release of Madigan-Fried and

Groom remained open.6

In another demand letter dated June 29, 2015, written

pursuant to G. L. c. 93A, § 9(3), and G. L. c. 176D, § 3(9)(f)

and (n), Caira asserted, among other things, that Zurich's

imposition of an inequitable condition on its settlement offer,

namely, the general release of its insureds, violated G. L.

c. 176D, § 3(9)(f), and G. L. c. 93A, § 2. In Caira's view,

Zurich unreasonably sought a release not only of its insureds,

but also of the excess insurers because once Caira released his

claims against Madigan-Fried and Groom, there could never be any

additional judgment beyond the $770,000 tendered by Zurich, and

the excess insurers would not have a duty of indemnification.

Caira reiterated his demand for the settlement he had proposed

in his e-mail dated June 12, 2015.

Zurich responded by letter dated July 15, 2015, stating

that if Caira was interested in settling with Zurich, then he

could accept Zurich's offer of its $770,000 policy limit and

provide a release of Madigan-Fried and Groom. What Caira could

6
On June 19, 2015, Caira moved for partial summary judgment
with respect to his claim of negligence against Madigan-Fried.
The motion was denied on the ground that there were genuine
issues of material fact regarding Caira's comparative negligence
in the causation of his injuries.
9

not do, in its view, was "settle" with Zurich for $770,000,

refuse to proffer a release, and continue to litigate his

claims. Zurich reiterated that its settlement position was

consistent with Lazaris.7

On November 11, 2015, Starr Indemnity settled Caira's

claims against Madigan-Fried for $900,000.8 The settlement was

funded by Zurich's remaining policy limit of $770,000, and by

$130,000 from Starr Indemnity.9 Caira executed a general release

of Madigan-Fried, Groom, and the excess insurers. The release

explicitly excluded Caira's claim against Zurich for unfair

claim settlement practices. On December 21, 2015, the parties

filed a stipulation, with prejudice and without costs or

attorney's fees, dismissing all of Caira's claims except his

claim against Zurich under G. L. c. 176D and G. L. c. 93A.

On February 18, 2016, Zurich moved for summary judgment,

arguing that Caira could not satisfy his burden of proof under

G. L. c. 176D, § 3(9)(f), where Zurich had offered its policy

7
On August 21, 2015, Groom moved for summary judgment,
arguing that because Madigan-Fried was not acting in the scope
of his employment at the time of the motor vehicle accident,
Groom was not vicariously liable for his actions. A judge
agreed and dismissed Caira's negligence claim against Groom.
8
In addition to his negligence claim, Caira had amended his
complaint to add a claim against Madigan-Fried for wanton and
reckless conduct.
9
In September, 2015, Zurich had tendered its remaining
policy limit of $770,000 to Starr Indemnity.
10

limit on multiple occasions, conditioned only on Caira's release

of his claims against Madigan-Fried and Groom. Caira opposed

and also requested, in the alternative, a continuance pursuant

to Mass.R.Civ.P. 56(f), 365 Mass. 824 (1974), so he could

conduct additional discovery. Following a hearing, a judge10

denied Caira's motion for a continuance, allowed Zurich's motion

for summary judgment, and dismissed Caira's claim against Zurich

for unfair claim settlement practices.

With respect to Caira's request for a continuance, the

judge stated that Caira had not been precluded from ascertaining

facts that were essential to his opposition to Zurich's motion

for summary judgment. Given that Zurich's settlement position

was based on a question of law, namely, the interpretation of

Lazaris, the judge concluded that additional discovery would

have no bearing on the adjudication of Zurich's motion.

As to the merits, the judge stated that, for purposes of

G. L. c. 176D, liability for the accident, including damages up

to if not exceeding the policy limit, was reasonably clear by

the time the parties started settlement discussions in December,

2014. Zurich's settlement position consistently was based on

its reading of Lazaris, to the effect that Zurich was not

obligated to pay its available policy limit without a

concomitant release of its insureds by Caira. The judge stated

10
The same judge to whom we referred in note 7, supra.
11

that there was no evidence suggesting an absence of good faith

or the presence of extortionate tactics by Zurich. Zurich had

responded to Caira's various demands in a timely manner, Zurich

did not drag out settlement discussions, and Caira had made

strategic choices that largely determined the pace of the

litigation. The judge stated that, based on his reading of

Lazaris, it was reasonable for Zurich to condition its payment

of the available policy limit on the receipt of a general

release of Madigan-Fried and Groom, irrespective of the

availability of excess insurance. Accordingly, the judge

concluded that Zurich did not engage in unfair claim settlement

practices in violation of G. L. c. 176D, § 3(9)(f), and,

therefore, was entitled to judgment as a matter of law.11 The

present appeal ensued.

11
In his second amended complaint, Caira also had alleged
that Zurich failed to conduct a reasonable investigation as to
liability and damages in violation of G. L. c. 176D, § 3(9)(c)
and (d). The judge concluded that this was not a claims
investigation case and, that therefore, Zurich was entitled to
summary judgment with respect to these purported statutory
violations. Because Caira has not challenged this ruling on
appeal, we do not consider it further. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975). In a similar vein,
Caira asserted in correspondence between the parties that Zurich
violated G. L. c. 176D, § 3(9)(n), by failing to provide a
reasonable explanation for denying Caira's claim or for offering
a compromise settlement. The judge concluded that § 3(9)(n) was
not applicable in this case where Zurich had never denied
coverage of Caira's claim or offered a compromise settlement,
and where Caira was well aware of the legal basis for Zurich's
unwillingness to pay its policy limit absent a release of its
insureds. Because Caira also has not challenged this ruling on
12

Discussion. 1. Standard of review. Summary judgment is

appropriate where there are no genuine issues of material fact

and the moving party is entitled to judgment as a matter of law.

See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). See

also Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991). "[A] party moving for summary judgment in a case in

which the opposing party will have the burden of proof at trial

is entitled to summary judgment if [it] demonstrates, by

reference to material described in Mass.R.Civ.P. 56(c), unmet by

countervailing materials, that the party opposing the motion has

no reasonable expectation of proving an essential element of

that party's case." Ibid. See Flesner v. Technical

Communications Corp., 410 Mass. 805, 809 (1991) (moving party's

burden "need not be met by affirmative evidence negating an

essential element of the plaintiff's case, but may be satisfied

by demonstrating that proof of that element is unlikely to be

forthcoming at trial"). See also Bobick v. United States Fid. &

Guar. Co., 439 Mass. 652, 659 (2003) (question whether insurer

has fulfilled obligations under G. L. c. 176D may be resolved by

summary judgment). We review a decision to grant summary

judgment de novo, construing all facts in favor of the nonmoving

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

appeal, we do not consider it further. See Mass.R.A.P.
16(a)(4).
13

2. Unfair claim settlement practices. General Laws

c. 93A, § 2(a), inserted by St. 1967, c. 813, § 1, provides that

"unfair or deceptive acts or practices in the conduct of any

trade or commerce" are unlawful. General Laws c. 176D, § 2,

sets forth a similar prohibition against such conduct in the

insurance business. That prohibition encompasses "[u]nfair

claim settlement practices," including the "[f]ail[ure] to

effectuate prompt, fair and equitable settlements of claims in

which liability has become reasonably clear." G. L. c. 176D,

§ 3(9), inserted by St. 1972, c. 543, § 1. Any person whose

rights have been affected by an insurance practice that violates

G. L. c. 176D, § 3(9), may sue under G. L. c. 93A. See Van Dyke

v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675 (1983).

General Laws c. 176D and c. 93A "were enacted to encourage the

settlement of insurance claims . . . and discourage insurers

from forcing claimants into unnecessary litigation to obtain

relief." Clegg v. Butler, 424 Mass. 413, 419 (1997). See

Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 562 (2001).

Taken together, G. L. c. 176D, § 3(9)(f), and c. 93A, § 9,

"require an insurer such as [Zurich] 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." Hopkins v. Liberty Mut. Ins. Co.,
14

supra at 566. "Our standard for examining the adequacy of an

insurer's response to a demand for relief under G. L. c. 93A,

§ 9(3), is 'whether, in the circumstances, and in light of the

complainant's demands, the offer is reasonable.'" Clegg v.

Butler, supra at 420, quoting from Calimlim v. Foreign Car

Center, Inc., 392 Mass. 228, 234 (1984). "[T]he reasonableness

of an insurer's response is to be considered in the light of the

situation as a whole," bearing in mind that the negotiation of a

settlement is "a legitimate bargaining process." Bobick v.

United States Fid. & Guar. Co., 439 Mass. at 661-662.

Liability under G. L. c. 176D and c. 93A based on unfair

claim settlement practices is generally characterized by "[a]n

absence of good faith and the presence of extortionate tactics."

Guity v. Commerce Ins. Co., 36 Mass. App. Ct. 339, 344 (1994).

In contrast, "[a] plausible, reasoned legal position that may

ultimately turn out to be mistaken [or unsuccessful] is outside

the scope of the punitive aspects of the combined application of

c. 93A and c. 176D." Id. at 343.

As an initial matter, there is no real dispute in this case

regarding liability. Notwithstanding that Caira's motion for

summary judgment as to Madigan-Fried's negligence was denied,

see note 6, supra, Zurich nonetheless assumed, for purposes of

responding to Caira's demand under G. L. c. 176D, that Madigan-

Fried's liability was reasonably clear, and that Caira's damages
15

exceeded the $1 million limit of Zurich's insurance policy.

Zurich did not raise comparative negligence as a basis for

challenging Caira's settlement demands. Instead, Zurich's

willingness to tender its available policy limit was conditioned

on receipt of a release of its insureds. We conclude that the

judge properly found that liability was reasonably clear when

the parties started settlement negotiations.

Given that liability was reasonably clear, Caira argues on

appeal that Zurich failed to effectuate a prompt, fair, and

equitable settlement of his claim as required by G. L. c. 176D,

§ 3(9)(f). In Caira's view, Zurich erroneously relied on

Lazaris v. Metropolitan Property & Cas. Ins. Co., 428 Mass. at

504-506, to support its contention that Zurich need not pay its

policy limit absent a release of its insureds, and the judge

erroneously relied on Lazaris in allowing summary judgment. We

disagree.

In Lazaris, the court clarified an insurer's obligation

under § 3(9)(f) in situations where liability is reasonably

clear and the claimant's damages unquestionably exceed the

coverage set forth in the insured's policy. 428 Mass. at 504.

The court concluded that, in such circumstances, an insurer does

not violate § 3(9)(f) by insisting on a release of its insured
16

as a condition of the payment of its policy limit.12 Lazaris,

supra at 504-505. Contrast Davis v. Allstate Ins. Co., 434

Mass. 174, 179 (2001).

In reaching this conclusion, the court stated that "a claim

is settled within the meaning of § 3(9)(f) only when it is fully

disposed of, which means that the claimant has released all

claims against the insured." 428 Mass. at 504. See MacInnis v.

Aetna Life & Cas. Co., 403 Mass. 220, 226 (1988) (settlement

typically involves "release or termination of further claims

against the tortfeasor"). The court acknowledged that where

liability is reasonably clear and in an amount that is

substantially more than the policy limit, an insurer cannot

effectuate a fair and equitable settlement because payment of

the policy limit in exchange for a release will not fully

compensate the claimant for the damages sustained. Lazaris,

supra at 505-506. The best that the insurer can do to

effectuate a settlement is to offer the policy limit in exchange

for a release, given that payment without a release is not a

12
In Lazaris v. Metropolitan Property & Cas. Ins. Co.,
supra at 504-505, the court overruled Thaler v. American Ins.
Co., 34 Mass. App. Ct. 639 (1993), which held that an insurance
company violates G. L. c. 176D, § 3(9)(f), if it insists on a
release as a condition of payment of the policy limit where the
liability of the insured "is undisputed and damages clearly
exceed the policy limits." 34 Mass. App. Ct. at 643. By
demanding the limit of Zurich's insurance policy without
offering a release of Madigan-Fried and Groom, Caira seeks to
resurrect Thaler.
17

settlement. Id. at 506. The claimant then can decide whether

to accept the offer or to decline the offer and proceed to

trial. Ibid.

"While [an] insurer has a duty to respond promptly to

demands by a claimant and to effectuate prompt settlement, it

also has an obligation to protect the interests of its insured,

and to guard against bad faith claims." Gore v. Arbella Mut.

Ins. Co., 77 Mass. App. Ct. 518, 525-526 (2010). See Flattery

v. Gregory, 397 Mass. 143, 150 (1986) (third-party claimants are

intended beneficiaries under optional automobile liability

insurance policies). The court in Lazaris did not construe

G. L. c. 176D, § 3(9)(f), as placing an insurer in the position

of either being sued for unfair claim settlement practices by a

claimant who is disgruntled by the insurer's failure to pay, or

being sued by an insured who is disgruntled by the insurer's

payment of the policy limit without obtaining a release of the

insured. 428 Mass. at 506. Rather, the court concluded that,

even where the claimant's damages exceed the policy limit, an

insurer can insist on a release of all claims against its

insured before tendering the policy limit, without running afoul

of G. L. c. 176D, § 3(9)(f), and c. 93A. Lazaris, supra.

Contrast Davis v. Allstate Ins. Co., 434 Mass. at 179. An

insurer who acts in good faith to protect the interests of its

insured from additional liability will not be deemed to have
18

committed an unfair settlement practice. Lazaris, supra. An

insurer need not forsake its demand for a release in order to

enable a claimant to collect additional damages, either from the

insureds themselves or from an excess insurance policy. If the

court in Lazaris had wanted to carve out an exception to its

ruling for cases where excess insurance is available, it could

have done so.

From the commencement of settlement negotiations on

December 23, 2014, it was clear that Caira wanted to receive the

insurance policy limit but was unwilling to provide a release of

Madigan-Fried and Groom. Zurich responded in a timely manner by

conditioning the payment of the available policy limit on the

release of all claims against its insureds. During their

ensuing negotiations over several months, neither party wavered

from its essential demand. In our view, Zurich's settlement

position was reasonably and correctly based on its

interpretation of Lazaris, 428 Mass. at 504-506. Simply put,

"to pay without a release is not a settlement." Id. at 506.

The availability of excess insurance did not change the

applicability of Lazaris to the facts in the present case, and

was not material to Zurich's legally sound settlement position.

Accordingly, we conclude that Zurich did not engage in unfair

claim settlement practices in violation of G. L. c. 176D,
19

§ 3(9)(f), and c. 93A, § 2. The judge properly granted summary

judgment in its favor.

3. Request for continuance. Caira contends that the judge

erred in denying Caira's motion for a continuance of the summary

judgment hearing. Rule 56(f) of the Massachusetts Rules of

Civil Procedure permits a judge to grant a continuance where a

nonmoving party needs to conduct discovery or to take

depositions for the purpose of presenting facts in opposition to

the summary judgment motion. Caira argues that more extensive

discovery, including depositions of employees of Zurich, was

necessary to produce additional evidence of unfair claim

settlement practices. We disagree.

A judge's refusal to grant a continuance is "a

discretionary ruling which will be set aside only upon a clear

showing of an abuse of discretion." Commonwealth v. Fall River

Motor Sales, Inc., 409 Mass. 302, 307 (1991). "One common

reason for the denial of a continuance . . . is the irrelevance

of further discovery to the issue being adjudicated in summary

judgment." Id. at 308. Here, the judge's decision was

predicated on whether, pursuant to Lazaris, it was proper for

Zurich to condition the offer of its policy limit on a release

of its insureds. As the judgment was based on the determination

that Zurich acted in good faith to protect its insureds, which,

as a matter of law, is not an unfair or deceptive act,
20

additional discovery purporting to show bad faith on other

grounds would have been immaterial. Accordingly, we conclude

that the judge did not abuse his discretion in denying Caira's

motion for a continuance.

Judgment affirmed.