2009 Mass.App.Div. 145 (2009), 07-ADMS-70002.FN2, Rodriguez v. Alvelo

Docket Nº:07-ADMS-70002.
Citation:2009 Mass.App.Div. 145
Opinion Judge:BRENNAN, J.
Party Name:Cesar RODRIGUEZ v. Hector ALVELO and another.[1]
Attorney:Mark J. Albano, Esq., Dalsey, Ferrara & Albano, Springfield, MA, for plaintiff. Kerry M. Courtney, Esq., Brent A. Ting, Esq., Morrison Mahoney LLP, Springfield, MA, for Premier Ins. Co.
Judge Panel:Before LoCONTO, P.J., BRENNAN & RUTBERG, JJ.
Case Date:July 29, 2009
Court:Massachusetts Appellate Division

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2009 Mass.App.Div. 145 (2009)



Hector ALVELO and another. 1

No. 07-ADMS-70002. 2

Massachusetts Appellate Division, District Court Department, Western District.

July 29, 2009

Heard Oct. 30, 2007.

In the Springfield Division, Docket No. 0623-CV-3272, Payne, J.

Mark J. Albano, Esq., Dalsey, Ferrara & Albano, Springfield, MA, for plaintiff.

Kerry M. Courtney, Esq., Brent A. Ting, Esq., Morrison Mahoney LLP, Springfield, MA, for Premier Ins. Co.




Plaintiff Cesar Rodriguez (" Rodriguez" ) sustained injuries in an automobile accident in Holyoke while riding as a passenger in a vehicle operated by defendant Hector Alvelo (" Alvelo" ) and insured with defendant Premier Insurance Company of Massachusetts (" Premier" ). Rodriguez commenced this action in two counts to recover (1) for his personal injuries, pain and suffering, medical expenses, and lost wages allegedly caused by the negligence of Alvelo, and (2) punitive damages, costs, and attorney's fees under G .L. c. 93A, § 9 for Premier's alleged failure to have effected a prompt settlement of Rodriguez's insurance claim when liability was reasonably clear in violation of G.L. c. 176D, § 3(9)(f). On the same day that it filed its answer, before any discovery had been requested, Premier moved to sever Count II of the complaint and to stay all discovery on that G.L. c. 93A claim until final disposition of Rodriguez's Count I tort claim. After hearing, the trial court denied Premier's motion. At Premier's request, however, the motion judge filed the G.L. c. 231, § 108 report of his ruling that is now before us. The following issue for appellate review is framed in the report:

Whether the trial court erred in denying Premier's Motion to Sever and Stay the plaintiff's Ch. 93A claim, where the underlying bodily injury claim has not been resolved.

As there was no abuse of discretion in the denial of Premier's motion, we answer the reported question in the negative.

1. Severance of a district court G.L. c. 93A claim from an underlying tort claim is

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governed by Mass. R. Civ. P. 42(d), see Roddy & McNulty Ins. Agency, Inc. v. A.A. Proctor & Co., 16 Mass.App.Ct. 525, 529-530 (1983), which provides, in pertinent part:

The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim.... 3

It is established that a Rule 42(d) motion is addressed to the sound discretion of a trial court judge. Dobos v. Driscoll, 404 Mass. 634, 644-645 (1989); Kimball v. Liberty Mut. Ins. Co., 1999 Mass.App. Div. 298; Bixby v. Allstate Ins. Co., 1986 Mass.App. Div. 118, 119. The denial of a motion for severance will be reversed only if that ruling rested " on whimsy, caprice, or arbitrary or idiosyncratic notions" and, thus, constituted an abuse of discretion. Chan v. Chen, 70 Mass.App.Ct. 79, 84 (2007), quoting Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999). The burden of establishing an abuse of discretion in this case was on Premier. Northeastern Univ. v. Rasten, 2002 Mass.App. Div. 28, 29, quoting Barrett v. Pereira, 1997 Mass.App. Div. 45, 46.

In support of its contention that it was legally entitled to severance of Rodriguez's claims, Premier relies principally on two Appeals Court single justice opinions issued in 1984 and 1989. Belcher v. Pawtucket Mut. Ins. Co., Mass.App.Ct., No. 89-J-672 (Sept. 27, 1989); Gross v. Liberty Mut. Ins. Co., Mass.App.Ct., No. 84-0138 (Apr. 24, 1984). Both decisions dealt exclusively, however, with the issue of a stay of discovery on a G.L. c. 93A unfair insurance settlement claim until adjudication of the related automobile tort claim. With respect to a pure severance question, Belcher and Gross merely suggest that the tort claim be tried first because a judgment against the plaintiff-insured on that claim, or an award of damages to the plaintiff in an amount commensurate with the insurer's settlement offer, could render the unfair settlement claim moot.4 Those opinions do not reference any established requirement in this Commonwealth for severance or bifurcation

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as a matter of law in every case involving automobile tort liability and unfair insurance practice claims.5

Contrary to Premier's argument, other cases indicate that severance or bifurcation is neither the required, nor the automatically preferred, procedural approach, and that the issue remains one within the trial judge's discretion. It has been stated that, generally, the " bifurcation of [a] common law claim and [a] c. 93A claim has little to recommend it.... It is not only...

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