35 Mass.App.Ct. 563 (1993), 92-P-932, Wyler v. Bonnell Motors, Inc.

Docket Nº:92-P-932.
Citation:35 Mass.App.Ct. 563, 624 N.E.2d 116
Party Name:Geoffrey D. WYLER, Second, v. BONNELL MOTORS, INC.
Case Date:December 01, 1993
Court:Appeals Court of Massachusetts
 
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Page 563

35 Mass.App.Ct. 563 (1993)

624 N.E.2d 116

Geoffrey D. WYLER, Second,

v.

BONNELL MOTORS, INC.

No. 92-P-932.

Appeals Court of Massachusetts, Middlesex.

December 1, 1993

Further Appellate Review Denied Feb. 1, 1994.

Argued Sept. 27, 1993.

Peter T. Wechsler, Boston, for defendant.

Andrew M. Fischer, Boston, for plaintiff.

Before PERRETTA, KASS and PORADA, JJ.

KASS, Justice.

There must be a cautionary tale to spin when, as here, a difference of opinion about an automobile repair bill of $502.33 [624 N.E.2d 117] results in an aggregate judgment for the customer of $120,418. 1

What we are to decide is whether, if G.L. c. 93A damages are to be assessed after the underlying common law

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claim has gone to judgment, 2 a different judge who hears the related 93A claim is bound by principles of issue preclusion to accept the previously assessed common law damages for purposes of assessing the 93A damages? To illustrate with actual numbers, if a jury returns a verdict of $45,000 for abuse of process, is that the number that the 93A judge is bound to double if he finds that the defendant acted unfairly and wilfully, even though the judge's independent finding is that the damages are $7,500? The answer is "no" and our holding will require a reduction in the amount of the c. 93A judgment.

We have the benefit of careful findings from the judge on the 93A case, and we rely on them to set the factual context. Geoffrey D. Wyler, a lawyer, owned a 1981 Ford Tempo automobile which he had purchased from Bonnell Motors, Inc. (Bonnell), and which he regularly took to Bonnell for servicing. On April 17, 1985, after discovering that the rear window of his car had been shattered in an act of vandalism, Mr. Wyler asked his son, Geoffrey D. Wyler, II (Geoffrey), to take the car to Bonnell for repair and to rent a car from Bonnell to tide them over until the Tempo was fixed (the repair was to take a day). Geoffrey, who was eighteen at the time, signed a repair authorization on which was prominently printed: "TERMS: CASH OR MAJOR CREDIT CARD." In connection with the car rental, Geoffrey left an imprint of his mother's credit card on a blank charge slip (signed by Geoffrey, according to his testimony).

Next morning Geoffrey went to pick up his father's car and to return the leased vehicle. The bill for the glass repair was $502.33. Geoffrey informed the service manager at Bonnell that the damage was covered by insurance and that the insurer would pay. Bonnell was adamant that it must be paid (cash or major credit card) before it would release the car. Geoffrey called his father. Mr. Wyler, in turn, called Bonnell and had no better success in persuading Bonnell to accept his

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insurer's payment. 3 Unable to retrieve his father's car, Geoffrey left in the rented vehicle. It may have complicated matters that Mr. Wyler had not, up to this point, notified his insurance agent or insurer, nor had he troubled to furnish Bonnell with any details about his insurance coverage. That deficiency Mr. Wyler rectified the next day, but Bonnell refused to take the information over...

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