Cohen v. Liberty Mut. Ins. Co.

• Decision Date: 04 December 1996
• Docket Number: No. 94-P-1958,94-P-1958
• Citation: 41 Mass.App.Ct. 748,673 N.E.2d 84
• Parties: Fred COHEN v. LIBERTY MUTUAL INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

Page 84

673 N.E.2d 84

41 Mass.App.Ct. 748

Fred COHEN v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 94-P-1958.

Appeals Court of Massachusetts Suffolk.

Argued March 15, 1996.

Decided Dec. 4, 1996.

Mark E. Cohen, Boston (Stephen Rosenberg with him), for defendant.

Thomas M. Bond, Boston, for plaintiff.

Before GREENBERG, LAURENCE & FLANNERY, JJ.

FLANNERY, Justice.

We summarize the trial judge's findings. On February 24, 1989, the plaintiff, Fred Cohen, was injured while unloading merchandise from a van under circumstances which gave rise to his claim against the owner of the van. The van bore Massachusetts registration number 248413 and was registered to Accessory Group, Ltd. (AGL). Cohen believed that the van was insured under the defendant Liberty Mutual Insurance Company's (Liberty), policy number AMI 313 451899 018. On April 25, 1989, Cohen's attorney notified AGL of Cohen's injury and claim. AGL did not respond. Subsequently, in September, October, and November 1989, Cohen's attorney mailed and faxed copies of the claim notice to Liberty. Cohen's attorney also spoke to two Liberty representatives. Liberty, however, did not respond.

On December 8, 1989, Liberty searched the Registry of Motor Vehicles database for the title corresponding to registration number 248413. The Registry found no match. On December 21, 1989, Liberty made a second search of the Registry. Again, the Registry found no match. On December 22, 1989, Liberty made a third search of the Registry. This time, the Registry reported that the number matched that assigned to a van bearing vehicle identification number 1FDKE37H 1GHB67479 (emphasis supplied), which was owned by AGL and insured by Liberty.

On December 11, 1989, Cohen filed an action against AGL in the Essex County Superior Court, seeking damages for his injuries. Although Cohen served process on AGL, it failed to answer or otherwise respond to Cohen's complaint. On February 23, 1990, the Superior Court defaulted AGL. On March 30, 1990, Cohen's attorney notified Liberty, pursuant to G.L. c. 231, § 58A, of an assessment of damages hearing scheduled for April 9, 1990. Liberty did not appear at the hearing or respond otherwise. Upon determining that notice had been sent to Liberty in compliance with G.L. c. 231, § 58A, the Superior Court judge entered judgment in Cohen's favor awarding him $90,000 in damages, $3,570 in prejudgment interest, and the costs of the action. Neither AGL nor Liberty appealed from or moved to reopen or vacate that judgment.

On April 25, 1990, Cohen or his attorney notified Liberty of the default judgment and assessment of damages. Liberty stated that it still questioned its coverage of Cohen's claim, but failed to respond any further.

On May 31, 1990, Cohen obtained an execution on the judgment from the Essex County Superior Court, and on June 5, 1990, the execution was served on AGL in care of Liberty. A Liberty representative called Cohen's attorney and stated that she would determine if there was coverage for Cohen's claim.

On June 11, 1990, Liberty requested information from the Rizzo Insurance Agency of Revere (Rizzo) concerning insurance coverage on a vehicle bearing Massachusetts registration number 248413. On August 7, 1990, Rizzo sent Liberty a copy of an application for Massachusetts motor vehicle insurance dated November 19, 1986, which Rizzo accepted on behalf of Liberty from Leonard Grossman on a Ford van bearing vehicle identification number 1FDKE37B 1GHB67479 (emphasis supplied). ¹ Rizzo also sent Liberty a copy of the November 19, 1986, Registry of Motor Vehicles application for title and application for registration (Form RMV-1) on the same van, made out in the name of AGL and endorsed by Rizzo as a Liberty broker. Upon receiving these documents, Liberty obtained Rizzo's file on Leonard Grossman. Despite having this information, Liberty still did not respond to Cohen's claim.

On October 26, 1990, not having heard from Liberty, Cohen's attorney sent Liberty a demand letter under G.L. c. 93A and G.L. c. 176D, alleging unfair and deceptive practices in its handling of Cohen's claim against AGL and demanding immediate payment of the claim. Liberty did not respond to Cohen's demand letter. On January 17, 1991, Cohen filed this action in Suffolk Superior Court against AGL and Liberty alleging violations of c. 93A and c. 176D. Liberty admitted that it was the "named insurance company under policy number AMI 313 451899 018" and that on February 24, 1989, that policy number applied to a Ford van bearing Massachusetts registration number 248413.

In August of 1991, Liberty at last concluded that the van involved in Cohen's accident was a covered vehicle under AGL's insurance policy with Liberty. Accordingly, Liberty resolved the coverage issue in favor of Cohen. Liberty offered Cohen the $20,000 limit on AGL's policy. Cohen rejected the offer.

Following a jury-waived trial, a Superior Court judge concluded that Liberty violated G.L. c. 93A, § 9(1), and G.L. c. 176D, § 3(9)(f ). Under c. 93A, § 9(3), the judge determined actual damages to be the $20,000 limit of the policy together with the interest on that amount from August 7, 1990, to the date of entry of judgment. Additionally, having found Liberty's violation to be knowing, the judge trebled the $20,000 and the interest pursuant to c. 93A, § 9(3). The judge also awarded Cohen $9,500 in attorney's fees and the costs of the action. Liberty appealed and Cohen cross-appealed. We affirm.

1. Liberty's policy exclusions. During trial, Liberty attempted to introduce evidence showing that several policy exclusions relieved it of its obligation to indemnify AGL for Cohen's claim. The trial judge, however, excluded the evidence concluding that it was irrelevant to the c. 93A and c. 176D action. Moreover, in his decision, the judge stated that Liberty's defenses were "barred due to untimeliness. Not only did Liberty fail to appear and/or defend Cohen's action in the Essex County Superior Court, but Liberty also failed to file a motion to vacate that judgment or reopen that case." Liberty contends that the judge erred in excluding this evidence.

The trial judge excluded the evidence as being untimely raised. From the explanatory note in his decision, it appears that he viewed the evidence as raising collateral issues irrelevant to the c. 93A action. ² Determining relevancy is within the substantial discretion of the trial judge. G.E.B. v. S.R.W., 422 Mass. 158, 167, 661 N.E.2d 646 (1996), citing Commonwealth v. Tobin, 392 Mass. 604, 613, 467 N.E.2d 826 (1984). "Evidence is relevant if it has a 'rational tendency to prove an issue in the case.' " G.E.B. v. S.R.W., supra at 169, 661 N.E.2d 646, quoting from Commonwealth v. Fayerweather, 406 Mass. 78, 83, 546 N.E.2d 345 (1989). If evidence throws light on an issue, it is admissible. Commonwealth v. Palladino, 346 Mass. 720, 726, 195 N.E.2d 769 (1964). Here, Liberty posits that the evidence concerning its policy exclusions would have shown that its liability was not reasonably clear. Although this evidence is of marginal significance, we cannot say that it was irrelevant. See Commonwealth v. Gordon, 407 Mass. 340, 351, 553 N.E.2d 915 (1990) (stating that "[e]vidence need not establish directly the proposition sought; it must only provide a link in the chain of proof").

A trial judge's erroneous exclusion of evidence does not necessitate reversal on appeal unless it "injuriously affect[s] the substantial rights" of a party. G.L. c. 231, § 119, as inserted by St.1973, c. 1114, § 202. The party seeking reversal of a trial judge's evidentiary rulings bears the burden of demonstrating prejudice. G.E.B. v. S.R.W., supra at 169, 661 N.E.2d 646. Establishing prejudicial error in the exclusion of evidence requires the proponent of the excluded evidence to make "a plausible showing that the trier of fact might have reached a different result if the evidence had been before it. Thus the erroneous exclusion of relevant evidence is reversible error unless, on the record, the appellate court can say with substantial confidence that the error would not have made a material difference." DeJesus v. Yogel, 404 Mass. 44, 48-49, 533 N.E.2d 1318 (1989). In this case, therefore, we must decide whether Liberty makes a plausible showing that the trial judge might not have found a violation of c. 176D had he not excluded the evidence concerning the policy defenses.

In support of its argument that the error was prejudicial, Liberty asserts that had the judge considered the policy exclusion evidence, he would have ruled "that there was a legitimate question concerning whether Liberty had a duty to defend or indemnify AGL against the Cohen lawsuit." We disagree.

Upon reviewing the record in "a commonsense way," id. at 48, 533 N.E.2d 1318, we can say with substantial confidence that admission of the evidence concerning Liberty's policy exclusions would not have made a material difference in the trial's outcome. Despite the judge's evidentiary ruling at trial, the substance of Liberty's arguments concerning its policy defenses was presented to him through Liberty's request for findings of fact and rulings of law, Liberty's proposed amended findings of fact, Liberty's motion to dismiss at the close of all the evidence, and Liberty's motion for reconsideration or a new trial. Given that this was a bench trial before an experienced trial judge and the record before that judge was replete with references to, and discussions of, Liberty's policy exclusions, we conclude that Liberty has not made a plausible showing that the trial judge might have reached a different result if the excluded evidence had been formally admitted at trial. Accordingly, we conclude that any error was harmless.

2. Chapter 93A damages. Concluding that Liberty violated c. 93A, the judge awarded Cohen actual damages consisting of the $20,000 limit of the policy and the interest on that amount accruing...