Preview
NOV/16/2020/MON 10:50 AM FAX No, P. 003
ar\O
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, ss. Superior Court
Docket No. 1773CV00974
George French and
Theresa French, . BRISTOL, SS SUPERIOR COURT
Plaintiffs FILED
v. Nov 16 2020
Government Employees Insurance Co.
d/b/a GEICO, MARC J SANTOS, ESQ.
Defendant. CLERK/MAGISTRATE
VOSS Sree EEN
OPPOSITION OF GEICO TO PLAINTIFFS MOTTION TO CONTINUE THE
PRETRIAL CONFERENCE AND MOTION TO STRIKE PLAINTIFFS MOTION
GEICO Opposes Plaintiffs Motion to Continue the Pretrial Conference as the Motion is
untimely. This case was filed in 2017. Plaintiffs Counsel filed his Motion to Withdraw as
counse] for the Plaintiff on January 21, 2020. On information and belief, Plaintiff Theresa
French is an experienced Paralegal, working at a law office. Plaintiffs have had more than ample
time to arrange for successor counsel. The given reason is without merit, as the Pre-Trail
Memorandum prepared by the Defendant (filed herewith as Defendants Pretrial Memorandum)
gave ample opportunity for Plaintiffs to include their position on the case.
Plaintiffs Motion improperly, and for no reason apparent on the face of the Motion,
iucludes reference to an Offer to settle made to Plaintiffs. That reference, in a matter that
includes a Jury-Waived Count is improper and prejudicial. As a result, the Motion should be
stricken from the record and sealed..
NOV/16/2020/MON 10:51 AM
FAX No, P, 004
Defendant,
By its Atrore
Rbnald E. Harding
BBO#: 221340
Harding Gurley LLP
65 William Street, Suite 207
Wellesley, MA 02481
(781) 772-6985
reh@hardinggurley.com
CERTIFICATE OF SERVICE
Thereby certify that on this day I served the attached document(s) on the attorney(s) of
record in the above-entitled action a copy thereof, by e-mail. :
Date: Af Ufa
Ronald E. Harding, Esq.
BBO#221340
Harding Gurley, LLP
65 William Street, Suite 207
Wellesley, MA 02481
781-772-6985
reh@hardinggurley.comNOV/16/2020/MON 10:51 AM FAX No. P. 005
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, ss. Superior Court
Docket No. 1773CV00974
George French and
Theresa French,
Plaintiffs
v.
Government Employees Insurance’ Co.
d/b/a GEICO,
Defendant.
ere rr SU
DEFENDANTS JOINT PRETRIAL MEMORANDUM
t, AGREED FACTS
Plaintiff George French alleges to have been injured in a motor vehicle collision that
occurred on November 12, 2010 when his motor vehicle was struck by a vehicle that was
uninsured. Plaintiffs, on November 12, 2010, were insured by Government Employees
Insurance Company (“GEICO”) with a policy of insurance that provided coverage for certain
damages caused by an uninsured vehicle.
In accordance with the terms of that policy, the claim for Uninsured Motorists benefits
was arbitrated on June 2, 2017. The arbitrator made a net award in favor of George French in the
amount of. $67,000.00. That award was timely paid by GEICO.
2. PLAINTIFFS STATEMENTNOW/16/2020/MON 10:51 AM PAX No, / P, 006
DEFENDANTS STATEMENT
At all times Defendant acted in a fair and proper manner consistent with Massachusetts
law. At no time was liability reasonably clear as there were significant medical issues
concerning causation of Plaintiffs injuries. GEICO timely investigated the claim presented,
obtained Plaintiff's medical records and bills, and referred those bills to a medical expert. The _
records established that Plaintiff had significant preexisting chronic low back complaints and
treatment for a decade prior to the motor vehicle collision. MRI’s before the accident-and after
the accident showed no change to his underlying condition.
GEICO arranged for and Plaintiff attended an IME with Matk Lebovits, M.D. on April 5,
2012, who opined that the accident aggravated Plaintiffs pre-existing conditions. As Plaintiff
continued to treat, the arbitration was not scheduled or was continued at the request of Mx.
French’s attomey several times. Mr. French then underwent surgery on 12/18/2015.
Upon receipt of the updated records, GEICO timely had them reviewed by Josef Simon,
M.D., a Harvard Medical School Graduate and Board Certified Orthopedic Surgeon. Dr. Simon
opined that Mr. French sustained a short term exacerbation of his pre-existing chronic low back
pain, and that his surgery was not related to the motor vehicle collision.
GEICO relied upon the medical opinions it obtained both in attempting to resolve the
claim and at the time of the arbitration. It is clear that an insurer may rely upon the opinions of
experts it has hired, and that the fact that the fact finder ultimately did not agree with those
experts is not a violation of M.G..L. c. 176D'or c. 93. In fact, c. 176D only requires an offer to
be made where liability is reasonably clear (“liability”, as used in the statute, includes both fault
and damages). In this claim, although the arbitrator ultimately found in favor of the Plaintiff,
liability was never “reasonably clear”.NOV/16/2020/MON 10:51 AM FAX No, P, 007
. 3. AGREED DESCRIPTION TO BE READ TO THE JURY
Defendant contends that Count I of the Complaint alleges violations of c. 176D and c.
93A for which there is ‘no right to a Jury trial. Counts II-IV set forth causes of action for breach
of contract and breach of the implied covenant of good faith and fair dealing, for which there is a
right to trial by Jury. Defendant contends that those Counts do not set forth a claim upon which
relief may be granted, as GEICO has complied with the contract (policy), arbitrated the claim,
and paid.the awatd. Should the case be tried to a Jury, an agreed description follows:
Plaintiff George French alleges to have been injured in a motor vehicle collision that
occurred on November 12, 2010 when his motor vehicle was struck by a vehicle that was
uninsured. Plaintiffs, on November 12, 2010, were insured by Government Employees
Insurance Company (“GEICO”) with a policy of insurance that provided coverage for certain
damages caused by an uninsured vehicle.
In accordance with the terms of that policy, the claim for Uninsured Motorists benefits
was arbitrated on June 2, 2017., The arbitrator made a net award in favor of George French in the
_ amount of $67,000.00. That award was timely paid by GEICO.
Plaintiffs claim that GEICO breached its contract (the policy) with them, and that they ~
were damaged as aresult. GEICO denies that it breached the contract, and asserts that it
complied with the terms and requirements of the contract.
4, SIGNIFICANT LEGAL ISSUES
1. Whether GEICO violated M.G.L. c. 93A or c. 176D in the handling of Plaintiffs
claim.NOW/16/2020/MON 10:52 AM FAX No, P. 008
2. Liability as used in c. 176D, includes both fault and damages. Clegg v. Butler, 424
Mass. 413 (1997). Thus, for c. 93A purposes, the inquiries focus is on whether GEICO, in good
faith, had a belief that damages were not reasonably clear, as in general, insurers do not have an
obligation to settle where liability is not reasonably clear.
3. Hartford Cas. Co. v. N.H. Ins. Co., 417 Mass 115, 121 (1994) requires the court use
an “objective test” to determine whether an insurer has acted in good faith. It was later held that
“the standard for examining the adequacy of an insurer’s response to a demand for relief... Is
whether, in the circumstances, and in light of the complaint and’s demands, the offer is
reasonable.” Bobick v. United States Fid. & Guar. Co., 439 Mass. 652 (2003).
4. A good faith etror in evaluating a case will not be a basis for finding ac, 934.
violation. “So long as the insurer acts in good faith, the insurer is not held to standards of
omniscience or perfection; it has leeway to use, and should consistently employ, it’s honest
business judgment.” Peckham v. Continental Cas. Ins. Co., 895 F2d 830, 835 (isr Cir. 1990).
5. An insurer may rely on the opinions of experts, such as physicians in formulating their
decisions. Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671 (1983).
6. Whether the holding in Van Dyke requires dismissal of the action.
7. Negotiating a settlement, particularly when the damages are unliquidated, is, 10 an
extent, a legitimate bargaining process. M.G.L. c. 93A does not call for the defendant's final
offer, but only one within the scope of reasonableness. Experienced negotiators do not make
their final offer first off, and experienced negotiators do not expect it, or take seriously a
representation that it is. The reasonableness of a defendant's response is to be considered in the
. light of the situation as a whole, one aspect of which was the size of plaintiff's demand.
Forcucci v. US F & G, 11 F3rd 1 (Ist Cir. 1993)NOV/16/2020/MON 10:52 AM FAX No, P. 009
5. WITNESSES
PLAINTIFF:
DEFENDANT:
1. Christopher Carfagna or other representatives of GEICO
300 Crosspoint Parkway
Amherst, NY
2. Mark O’Connor, Esq.
Law Offices of Patrice Simonelli
29 Crafts Street
Newton, MA.
6. EXPERTS
PLAINTINF:
DEFENDANT:
Defendant does not intend to call any expert witness at the time of trial.
However, the Defendant reserves the right to designate an appropriate in the fixture should there
be a late disclosure of an expert by the Plaintiffs.
Plaintiffs, ByNOV/16/2020/MON 10:52 AM
PAX No. P.010
Defendant,
By its Attorney, °
Rogald E. Harding
BBO#: 221340
Harding Gurley LLP
65 William Street, Suite 207
Wellesley, MA 02481
(781) 772-6985
reh@hardinggurley.comNOV/16/2020/MON 10:52 AM FAX No, . POLL
CERTIFICATE OF SERVICE
I hereby certify that on this day I served thé attached document(s) on the
attorney(s) of record in the above-entitled action a copy thereof, by e-mail.
Roald E. Harding, Esq.
- BBO#221340
Harding Gurley, LLP
65 William Street, Suite 207
Wellesley, MA 02481
781-772-6985
teh@hardinggurley.com
DATE: of “es Zo
Preview
NOV/16/2020/MON 10:50 AM FAX No, P. 003 ar\O COMMONWEALTH OF MASSACHUSETTS BRISTOL, ss. Superior Court Docket No. 1773CV00974 George French and Theresa French, . BRISTOL, SS SUPERIOR COURT Plaintiffs FILED v. Nov 16 2020 Government Employees Insurance Co. d/b/a GEICO, MARC J SANTOS, ESQ. Defendant. CLERK/MAGISTRATE VOSS Sree EEN OPPOSITION OF GEICO TO PLAINTIFFS MOTTION TO CONTINUE THE PRETRIAL CONFERENCE AND MOTION TO STRIKE PLAINTIFFS MOTION GEICO Opposes Plaintiffs Motion to Continue the Pretrial Conference as the Motion is untimely. This case was filed in 2017. Plaintiffs Counsel filed his Motion to Withdraw as counse] for the Plaintiff on January 21, 2020. On information and belief, Plaintiff Theresa French is an experienced Paralegal, working at a law office. Plaintiffs have had more than ample time to arrange for successor counsel. The given reason is without merit, as the Pre-Trail Memorandum prepared by the Defendant (filed herewith as Defendants Pretrial Memorandum) gave ample opportunity for Plaintiffs to include their position on the case. Plaintiffs Motion improperly, and for no reason apparent on the face of the Motion, iucludes reference to an Offer to settle made to Plaintiffs. That reference, in a matter that includes a Jury-Waived Count is improper and prejudicial. As a result, the Motion should be stricken from the record and sealed.. NOV/16/2020/MON 10:51 AM FAX No, P, 004 Defendant, By its Atrore Rbnald E. Harding BBO#: 221340 Harding Gurley LLP 65 William Street, Suite 207 Wellesley, MA 02481 (781) 772-6985 reh@hardinggurley.com CERTIFICATE OF SERVICE Thereby certify that on this day I served the attached document(s) on the attorney(s) of record in the above-entitled action a copy thereof, by e-mail. : Date: Af Ufa Ronald E. Harding, Esq. BBO#221340 Harding Gurley, LLP 65 William Street, Suite 207 Wellesley, MA 02481 781-772-6985 reh@hardinggurley.comNOV/16/2020/MON 10:51 AM FAX No. P. 005 COMMONWEALTH OF MASSACHUSETTS BRISTOL, ss. Superior Court Docket No. 1773CV00974 George French and Theresa French, Plaintiffs v. Government Employees Insurance’ Co. d/b/a GEICO, Defendant. ere rr SU DEFENDANTS JOINT PRETRIAL MEMORANDUM t, AGREED FACTS Plaintiff George French alleges to have been injured in a motor vehicle collision that occurred on November 12, 2010 when his motor vehicle was struck by a vehicle that was uninsured. Plaintiffs, on November 12, 2010, were insured by Government Employees Insurance Company (“GEICO”) with a policy of insurance that provided coverage for certain damages caused by an uninsured vehicle. In accordance with the terms of that policy, the claim for Uninsured Motorists benefits was arbitrated on June 2, 2017. The arbitrator made a net award in favor of George French in the amount of. $67,000.00. That award was timely paid by GEICO. 2. PLAINTIFFS STATEMENTNOW/16/2020/MON 10:51 AM PAX No, / P, 006 DEFENDANTS STATEMENT At all times Defendant acted in a fair and proper manner consistent with Massachusetts law. At no time was liability reasonably clear as there were significant medical issues concerning causation of Plaintiffs injuries. GEICO timely investigated the claim presented, obtained Plaintiff's medical records and bills, and referred those bills to a medical expert. The _ records established that Plaintiff had significant preexisting chronic low back complaints and treatment for a decade prior to the motor vehicle collision. MRI’s before the accident-and after the accident showed no change to his underlying condition. GEICO arranged for and Plaintiff attended an IME with Matk Lebovits, M.D. on April 5, 2012, who opined that the accident aggravated Plaintiffs pre-existing conditions. As Plaintiff continued to treat, the arbitration was not scheduled or was continued at the request of Mx. French’s attomey several times. Mr. French then underwent surgery on 12/18/2015. Upon receipt of the updated records, GEICO timely had them reviewed by Josef Simon, M.D., a Harvard Medical School Graduate and Board Certified Orthopedic Surgeon. Dr. Simon opined that Mr. French sustained a short term exacerbation of his pre-existing chronic low back pain, and that his surgery was not related to the motor vehicle collision. GEICO relied upon the medical opinions it obtained both in attempting to resolve the claim and at the time of the arbitration. It is clear that an insurer may rely upon the opinions of experts it has hired, and that the fact that the fact finder ultimately did not agree with those experts is not a violation of M.G..L. c. 176D'or c. 93. In fact, c. 176D only requires an offer to be made where liability is reasonably clear (“liability”, as used in the statute, includes both fault and damages). In this claim, although the arbitrator ultimately found in favor of the Plaintiff, liability was never “reasonably clear”.NOV/16/2020/MON 10:51 AM FAX No, P, 007 . 3. AGREED DESCRIPTION TO BE READ TO THE JURY Defendant contends that Count I of the Complaint alleges violations of c. 176D and c. 93A for which there is ‘no right to a Jury trial. Counts II-IV set forth causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing, for which there is a right to trial by Jury. Defendant contends that those Counts do not set forth a claim upon which relief may be granted, as GEICO has complied with the contract (policy), arbitrated the claim, and paid.the awatd. Should the case be tried to a Jury, an agreed description follows: Plaintiff George French alleges to have been injured in a motor vehicle collision that occurred on November 12, 2010 when his motor vehicle was struck by a vehicle that was uninsured. Plaintiffs, on November 12, 2010, were insured by Government Employees Insurance Company (“GEICO”) with a policy of insurance that provided coverage for certain damages caused by an uninsured vehicle. In accordance with the terms of that policy, the claim for Uninsured Motorists benefits was arbitrated on June 2, 2017., The arbitrator made a net award in favor of George French in the _ amount of $67,000.00. That award was timely paid by GEICO. Plaintiffs claim that GEICO breached its contract (the policy) with them, and that they ~ were damaged as aresult. GEICO denies that it breached the contract, and asserts that it complied with the terms and requirements of the contract. 4, SIGNIFICANT LEGAL ISSUES 1. Whether GEICO violated M.G.L. c. 93A or c. 176D in the handling of Plaintiffs claim.NOW/16/2020/MON 10:52 AM FAX No, P. 008 2. Liability as used in c. 176D, includes both fault and damages. Clegg v. Butler, 424 Mass. 413 (1997). Thus, for c. 93A purposes, the inquiries focus is on whether GEICO, in good faith, had a belief that damages were not reasonably clear, as in general, insurers do not have an obligation to settle where liability is not reasonably clear. 3. Hartford Cas. Co. v. N.H. Ins. Co., 417 Mass 115, 121 (1994) requires the court use an “objective test” to determine whether an insurer has acted in good faith. It was later held that “the standard for examining the adequacy of an insurer’s response to a demand for relief... Is whether, in the circumstances, and in light of the complaint and’s demands, the offer is reasonable.” Bobick v. United States Fid. & Guar. Co., 439 Mass. 652 (2003). 4. A good faith etror in evaluating a case will not be a basis for finding ac, 934. violation. “So long as the insurer acts in good faith, the insurer is not held to standards of omniscience or perfection; it has leeway to use, and should consistently employ, it’s honest business judgment.” Peckham v. Continental Cas. Ins. Co., 895 F2d 830, 835 (isr Cir. 1990). 5. An insurer may rely on the opinions of experts, such as physicians in formulating their decisions. Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671 (1983). 6. Whether the holding in Van Dyke requires dismissal of the action. 7. Negotiating a settlement, particularly when the damages are unliquidated, is, 10 an extent, a legitimate bargaining process. M.G.L. c. 93A does not call for the defendant's final offer, but only one within the scope of reasonableness. Experienced negotiators do not make their final offer first off, and experienced negotiators do not expect it, or take seriously a representation that it is. The reasonableness of a defendant's response is to be considered in the . light of the situation as a whole, one aspect of which was the size of plaintiff's demand. Forcucci v. US F & G, 11 F3rd 1 (Ist Cir. 1993)NOV/16/2020/MON 10:52 AM FAX No, P. 009 5. WITNESSES PLAINTIFF: DEFENDANT: 1. Christopher Carfagna or other representatives of GEICO 300 Crosspoint Parkway Amherst, NY 2. Mark O’Connor, Esq. Law Offices of Patrice Simonelli 29 Crafts Street Newton, MA. 6. EXPERTS PLAINTINF: DEFENDANT: Defendant does not intend to call any expert witness at the time of trial. However, the Defendant reserves the right to designate an appropriate in the fixture should there be a late disclosure of an expert by the Plaintiffs. Plaintiffs, ByNOV/16/2020/MON 10:52 AM PAX No. P.010 Defendant, By its Attorney, ° Rogald E. Harding BBO#: 221340 Harding Gurley LLP 65 William Street, Suite 207 Wellesley, MA 02481 (781) 772-6985 reh@hardinggurley.comNOV/16/2020/MON 10:52 AM FAX No, . POLL CERTIFICATE OF SERVICE I hereby certify that on this day I served thé attached document(s) on the attorney(s) of record in the above-entitled action a copy thereof, by e-mail. Roald E. Harding, Esq. - BBO#221340 Harding Gurley, LLP 65 William Street, Suite 207 Wellesley, MA 02481 781-772-6985 teh@hardinggurley.com DATE: of “es Zo