Konsevick v. Plymouth Rock Assurance Corp.
| Decision Date | 22 March 2021 |
| Docket Number | Docket: 2084CV02130 |
| Parties | REBECCA L. KONSEVICK & ANOTHER, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED v. PLYMOUTH ROCK ASSURANCE CORPORATION |
| Court | Massachusetts Superior Court |
Dates: March 22, 2021
Present: Robert B. Gordon, Justice of the Superior Court
County: SUFFOLK, ss.
This case presents a dispute regarding the interpretation of the Massachusetts Standard Automobile Policy (the “Standard Policy” or “Policy”) as applied by the Defendant, Plymouth Rock Assurance Corporation (“Plymouth Rock” or the “Defendant”). The Plaintiffs, Rebecca Konsevick and Colleen Bartini, on behalf of themselves and others similarly situated, seek declaratory relief and bring claims for breach of contract and violation of G.L. c. 93A and G.L. c. 176D. The Plaintiffs’ claims arise out of Plymouth Rock’s failure to consider the costs of title, registration, and inspection when it determined the “actual cash value” of their vehicles when it indemnified them for an insured loss. Presented for decision is the Defendant’s Motion to Dismiss the First Amended Complaint pursuant to Mass. R. Civ. P. 12(b)(6). For the reasons which follow, the Defendant’s motion shall be ALLOWED.
The Standard Policy is a form of insurance contract “prescribed by statute, with standard language controlled by the Division of Insurance.” Jacobs v. United States Fidelity & Guar. Co.,417 Mass. 75, 76 (1994). See G.L. c. 175, § 113B. The instant action centers on language found within the Standard Policy’s collision and comprehensive coverage provisions, pursuant to which insurers agree to pay for direct and accidental damage to an insured vehicle.2 Both provisions contain similar language, which provides, in relevant part, as follows:
Although the Standard Policy does not define the term “actual cash value” (“ACV”), the Division of Insurance has identified four factors that insurers must consider to determine ACV. These factors are set forth in 211 Code Mass. Regs. § 133.05(1) (“Section 133.05(1)”), as follows::
“[T]he insurer shall determine the vehicle’s actual cash value. . . . based on a consideration of the following factors:
(a) the retail book value for a motor vehicle of like kind and quality, but for the damage incurred; (b) the price paid for the vehicle plus the value of prior improvements to the motor vehicle at the time of the accident, less appropriate depreciation;
(c) the decrease in value of the motor vehicle resulting from prior unrelated damage which is detected by the appraiser; and
(d) the actual cost of purchase of an available motor vehicle of like kind and quality but for the damage sustained.”
Each Plaintiff owned a private passenger vehicle that was titled, registered, and inspected in accordance with Massachusetts law and insured under a Standard Policy issued by Plymouth Rock (the “insured vehicles”). In 2018 and 2019, the insured vehicles were involved in automobile accidents that prompted each Plaintiff to file a property damage claim with the Defendant. In each instance, Plymouth Rock determined that the cost to repair the insured vehicle exceeded the cost to replace it, and accordingly elected to pay the vehicle’s ACV rather than the cost of repair. The Defendant then paid each Plaintiff an amount calculated by a third- party vendor. The vendor did not consider or factor in the costs of titling, registering and inspecting the insured vehicles when it determined each vehicle’s ACV. The Plaintiffs maintain that the calculation of ACV upon which Plymouth Rock relies for its insurance payments to them thus violates the Standard Policy, as expounded by Section 133.05(1).
The Defendant has moved to dismiss the Plaintiffs’ claims pursuant to Mass. R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “factual ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief....” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “The allegations must be more than ‘mere labels and conclusions,’ and must ‘raise a right to relief above the speculative level.’” Buffalo-Water 1, LLC v. Fidelity Real Estate Co., LLC, 481 Mass. 13, 17 (2018) (quoting Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 165 (2014)). The Court’s review is limited to the factual allegations of the complaint and facts contained within any attached exhibits, see Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 285 n.6 (2007), as well as any matters of public record and documents relied upon in the complaint itself. See Marram v. Kobrick Offshore Fund, Ltd., 442 Mass. 43, 45 n.4 (2004); Schaer v. Brandeis Univ., 432 Mass. 474, 477 (2000). The Court must “accept as true the factual allegations in the complaint and the attached exhibits, [and] draw all reasonable inferences in the plaintiff’s favor . . .” Buffalo-Water 1, LLC, 481 Mass. at 17.
The Plaintiffs have asserted claims for declaratory relief, breach of contract, and violation of G.L. c. 93A and G.L. c. 176D. As grounds, they contend that the Defendant’s failure to consider and factor in the costs of title, registration and inspection (collectively, the “regulatory fees”) when it determined the ACV of each insured vehicle violated the terms of the Standard Policy, and constituted an unfair and deceptive trade practice. Plymouth Rock counters that the Policy does not require it to consider or factor in the cost of regulatory fees when it determines a vehicle’s ACV, and thus argues that the Plaintiffs have failed to state a claim upon which relief may be granted. The Defendant is correct.
The Court must first address the Plaintiffs’ contention that the issue of whether regulatory fees must be included in ACV presents a question of fact that cannot be determined on a motion to dismiss. In support of this assertion, the Plaintiffs argue that ACV “should be interpreted so as to effectuate the goal of putting an insured back into their pre-loss position.” (Plaintiff’s Opposition, at 9.) To that end, the Plaintiffs argue that ACV must be computed under the “broad evidence rule,” pursuant to which a “trier of facts may consider any evidence logically tending to the formation of a correct estimate of the value of the insured property at the time of loss.” O’Connor v. Merrimack Mut. Fire Ins. Co., 73 Mass. App. Ct. 205, 210 (2008) (quoting 12 Couch, Insurance § 175:33 (3d ed. 1998)). The Court does not agree.
The calculation of ACV is controlled by the specific terms of the insurance policy in question, and is not dictated by the larger purpose of insurance more generally. Massachusetts courts have only employed the broad evidence rule to estimate the value of property at the time of a loss when faced with insurance policies that do not themselves define or import a specific standard for determining ACV. See, e.g., Interstate Gourmet Coffee Roasters, Inc. v. Seaco Ins. Co., 59 Mass. App. Ct. 78, 84 (2003) (); O’Connor, 73 Mass. App. Ct. at 210 (). Here, by contrast, the Standard Policy at issue does import a standard for determining ACV, insofar as the Policy expressly incorporates applicable automobile insurance law (including Section 133.05(1)) by reference. Unlike the broad evidence rule, which would invest fact-finders with discretion to choose which particular facts and circumstances are appropriate when estimating ACV, Section 133.05(1) expressly requires that ACV be determined based on four enumerated factors. Whether the Policy or Section 133.05(1) specifically requires Plymouth Rock to consider and/or include regulatory fees when it determines ACV is a question of law. See Massachusetts Insurers Insolvency Fund v. Premier Ins. Co., 449 Mass. 422, 426 (2007) (); Corsetti v. Stone Co., 391 Mass. 1, 12 (1984) (). As such, the question is properly decided on a Rule 12 motion to dismiss. See, e.g., Skiffington v. Liberty Mut. Ins. Co., 93 Mass. App. Ct. 1, 3 (2018) (); Casco Bay Fin. Co., LLC v. Quincy Mut. Fire. Ins. Co., 77 Mass. App. Ct. 913, 913 (2010) (same).
“We interpret the words of the standard policy in light of their plain meaning, . . . giving full effect to the document as a whole[,] . . . consider[ing] what an objectively reasonable insured, reading the relevant policy language, would expect to be covered . . . [and] interpret[ing] the provision of the standard policy in a manner consistent...
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