Ora Catering, Inc. v. Northland Insurance Company
Filing
25
Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "In accordance with the foregoing, the motion to dismiss of defendant Northland Insurance Co. (Docket No. 6 ) is ALLOWED. So ordered."(Moore, Kellyann)
United States District Court
District of Massachusetts
ORA CATERING, INC.,
Plaintiff,
v.
NORTHLAND INSURANCE CO.,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
14-12618-NMG
MEMORANDUM & ORDER
GORTON, J.
This case arises out of a dispute over the coverage of a
commercial insurance policy issued to Ora Catering, Inc. (“Ora”
or “plaintiff”) by Northland Insurance Co. (“Northland” or
“defendant”).
Ora contends that Northland wrongfully denied
coverage of a submitted claim for “extra expenses” incurred
after its rental kitchen facilities were destroyed by fire.
Plaintiff had sought reimbursement for the costs associated with
equipping and bringing its replacement kitchen facilities up to
code.
It brought both common law and statutory claims based on
defendant’s alleged misconduct.
Pending before the Court is
Northland’s motion to dismiss all claims.
follow, that motion will be allowed.
-1-
For the reasons that
I.
Background
A.
Factual Background
Ora is a Boston-based kosher food catering company.
Northland is a Connecticut corporation with a principal place of
business in St. Paul, Minnesota.
Northland issued a commercial
property insurance policy (“the policy”) to Ora that provided
coverage for Ora’s business personal property (i.e., kitchen
equipment), food spoilage, business income losses and extra
expense losses.
The term policy was in effect from November 9,
2011 to November 9, 2012.
On February 12, 2012, plaintiff’s rented kitchen facilities
in Brighton, Massachusetts were destroyed in a large fire.
The
fire started in a neighboring restaurant and damaged plaintiff’s
facilities after being fueled by chemicals stored in an adjacent
cleaning supply store.
In the immediate aftermath of the fire, Ora managed to
secure kosher kitchen facilities at two local religious
congregations.
The use of those two temporary kitchen
facilities enabled plaintiff to continue to operate its kosher
catering business.
Ora utilized the facilities at (1) Young
Israel of Brookline from February, 2012 to August, 2013 and (2)
Congregation Chai Odom in Brighton from February, 2012 to July,
2013.
Neither congregation charged plaintiff for the use of its
kitchen facilities.
-2-
Sometime during 2012 or early 2013, Ora eventually located
a desirable permanent replacement facility and incurred $95,631
of expenses to equip and “up-fit” the location to meet local
city code requirements for a kitchen facility.
Plaintiff
operated out of the two temporary locations while the new
permanent facility was being equipped and brought up to code. As
such, it managed to avoid any interruption to its business after
the fire.
Ora subsequently submitted proof of claim documentation to
Northland.
Northland paid Ora $39,517 in order to cover damages
related to its business personal property and corresponding food
spoilage costs.
Plaintiff’s complaint does not allege that the
amount paid by defendant failed to cover that portion of its
claim.
Additionally, as part of its claim, Ora submitted
documentation that detailed the more than $95,631 in expenses
that it incurred to equip and “up-fit” its new permanent
facility.
Plaintiff contends that those expenses are
compensable as “extra expenses” under its policy with defendant.
Northland declined, however, to cover Ora’s claim for the
expenses it incurred that related to the improvements made to
its permanent replacement kitchen facility.
Accordingly, in a
four-page letter dated February 28, 2013, defendant denied the
“extra expenses” portion of plaintiff’s claim.
-3-
In its denial of coverage letter, Northland quoted verbatim
from a portion of the “Business Income (And Extra Expense)
Coverage Form” included in Ora’s policy.
Defendant first
reproduced the policy language regarding extra expenses, which
read in relevant part as follows:
Extra Expense means necessary expenses you incur
during the “period of restoration” that you would not
have incurred if there had been no direct physical
loss or damage to property caused by or resulting from
a Covered Cause of Loss.
We will pay Extra Expense (other than the expense to
repair or replace property) to:
(1)
Avoid
or
minimize
the
“suspension”
of
business and to continue operations at the
described premises or at replacement premises
or temporary locations, including relocation
expenses and cost to equip and operate the
replacement location or temporary location.
(2)
Minimize the “suspension” of business if you
cannot continue “operations”.
We will also
property, but
of loss that
this Coverage
pay Extra Expense to repair or replace
only to the extent it reduces the amount
otherwise would have been payable under
Form.
Northland’s denial letter then reproduced the policy language
regarding the “period of restoration” referred to in the extra
expenses section.
The relevant “period of restoration” was
defined as beginning “72 hours after the time of direct physical
loss” and ended on “[t]he date when business is resumed at a new
permanent location.”
-4-
Northland’s letter explained its denial of Ora’s extra expenses
claim as follows:
As a result of the fire damage you have made a claim
for damages that you considered to be extra expenses
under your loss of income coverage. During the period
of restoration, which ends the day you move into the
new [permanent] location, you were able to conduct and
maintain your business at no additional costs. We have
never received a claim for loss of income or for extra
expenses that were incurred to continue your business.
The only expenses presented were for build out
expenses at a new location. These expenses were not
incurred to continue your operation.
As such, defendant concluded that plaintiff’s claimed expenses
were not covered because they
were not extra expenses incurred during the “period of
restoration” that were incurred to avoid or minimize
the “suspension” of [plaintiff’s] business.
In September, 2013, Ora sent Northland a Chapter 93A demand
letter requesting payment of the $95,631 in incurred expenses.
In that letter Ora contended that Northland’s denial of its
claim (1) was “based upon an egregious misrepresentation of the
policy,” (2) “omitted key policy language” and (3) constituted
unfair and deceptive insurance practices.
Defendant failed to
respond with an offer of settlement.
B.
Procedural History
Based on defendant’s purported misconduct, plaintiff
subsequently filed suit in the Massachusetts Superior Court for
Suffolk County on April 25, 2014, alleging both common law and
statutory violations in a six-count complaint.
-5-
Plaintiff’s
complaint raises common law claims against defendant for breach
of contract (Count I), breach of implied contract (Count II),
unjust enrichment (Count III) and the right to recompense of
mitigated expenses under the insurance policy (Count IV).
Plaintiff also seeks a declaratory judgment against defendant
(Count V) and raises a statutory claim against defendant for its
alleged violation of both M.G.L. c. 93A, § 11 and M.G.L. c.
176D, § 3(9) (Count VI).
Defendant timely removed the case to this Court in June,
2014, based on complete diversity of the parties.
Defendant
then filed a motion to dismiss plaintiff’s suit for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6) in July,
2014.
II.
Defendant’s Motion to Dismiss
Northland argues that Ora’s entire suit is time-barred
under the statutorily mandated two-year statute of limitations
provided for in the insurance policy.
It contends that the
statute of limitations began to run on the date of the fire that
destroyed plaintiff’s rental kitchen facilities and that Ora has
provided no justification for tolling that two-year period.
As
such, Ora’s failure to file suit on or before February 12, 2014
forecloses its claims.
Alternatively, Northland asserts that Ora’s quasi-contract
claims (Counts II-IV) are barred by the existence of the written
-6-
insurance policy.
Moreover, defendant argues that Count VI of
plaintiff’s complaint fails to plead a plausible violation of
M.G.L. c. 93A or c. 176D.
Defendant maintains that its denial
of coverage was a correct application of the insurance policy or
was at least based on a good faith, plausible interpretation of
the policy.
In opposition to Northland’s motion, Ora contends that the
statute of limitations did not begin to run until Northland
denied its insurance claim for extra expenses in February, 2013.
Further, Ora argues that Northland waived its statute of
limitations defense by making payments to Ora for the losses
that it did cover.
Furthermore, Ora maintains that its claim detailing alleged
violations of Chapters 93A and 176D is subject to a separate
four-year statute of limitations that overrides the two-year
limitations period identified in the policy and that it
articulated plausible bases for violations of those Chapters by
defendant.
A.
Legal Standard
To survive a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6), a complaint must contain
Asufficient factual matter@ to state a claim for relief that is
actionable as a matter of law and Aplausible on its face.@
Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl.
-7-
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A district court
assesses “the sufficiency of the complaint’s factual allegations
in two steps.” Manning v. Boston Med. Ctr. Corp., 725 F.3d 34,
43 (1st Cir. 2013).
First, a court ignores conclusory
allegations mirroring legal standards. Id.
Second, it accepts
the remaining factual allegations as true and draws all
reasonable inferences in the plaintiff’s favor, thereafter
deciding if the plaintiff would be entitled to relief. Id.
If
the facts in the complaint are sufficient to state a cause of
action, a motion to dismiss the complaint must be denied. See
Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204, 208
(D. Mass. 2000), aff'd, 248 F.3d 1127 (1st Cir. 2000).
A
complaint, however, does not state a claim for relief where the
well-pled facts fail to warrant an inference of any more than
the mere possibility of misconduct. Iqbal, 556 U.S. at 679.
In ruling on a Rule 12(b)(6) motion to dismiss, a court
“may properly consider only [those] facts and documents that are
part of or incorporated into the complaint.” Trans-Spec Truck
Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.
2008).
Exhibits attached to the complaint are part of the
pleadings and can therefore be considered. Id. (citing Fed. R.
Civ. P. 10(c)).
-8-
B.
Statute of Limitations
1.
Legal Standard
A defendant can raise the statute of limitations as an
affirmative defense in a Rule 12(b)(6) motion to dismiss, so
long as the underlying factual basis for the defense is “clear
on the face of the plaintiff’s pleadings.” Santana-Castro v.
Toledo-Davila, 579 F.3d 109, 113-14 (1st Cir. 2009) (citation
omitted).
As the First Circuit Court of Appeals recently noted
[w]hen the allegations in a complaint show that the passage
of time between the events giving rise to the claim and the
commencement of the action exceeds the applicable
limitations period, a [] court should grant a 12(b)(6)
motion by the defense if the complaint (and any other
properly considered documents) “fails to ‘sketch a factual
predicate’ that would” provide a basis for tolling the
statute of limitations.
Abdallah v. Bain Capital LLC, 752 F.3d 114, 119 (1st Cir. 2014)
(quoting Trans-Speck Truck, 524 F.3d at 320)).
2.
Count I: Breach of Contract
In Massachusetts, all commercial property insurance
policies that insure against loss or damage by fire must adhere
to a standard format. M.G.L. c. 175, § 99.
The mandatory
language to be included in all policies provides a two-year
statute of limitations. Id.
Accordingly, plaintiff’s insurance
policy with defendant contained the following provision:
[n]o suit or action against [defendant] for the
recovery of any claim by virtue of this policy shall
be sustained in any court of law or equity in
-9-
[Massachusetts] unless commenced within two years from
the time the loss occurred.
Ora thus had two years to commence the suit after “the loss
occurred.”
Neither M.G.L. c. 175, § 99 nor the policy itself defines
when the “loss” occurs.
Ora urges the Court to find that its
“loss” occurred in February, 2013 when defendant denied it
insurance benefits for extra expenses.
Courts have, however,
routinely interpreted the “loss” referenced in the statute and
reproduced verbatim in plaintiff’s policy as occurring on the
day that the fire or other covered incident causes the damage to
a plaintiff’s property. See, e.g., Nunheimer v. Cont’l Ins. Co.,
68 F. Supp. 2d 75, 77-78 (D. Mass. 1999) (collecting cases and
concluding that “the ‘loss’ which starts the [accrual] of the
statute of limitations is the incident [i.e., the fire] which
gives rise to the claim for insurance benefits”); DiMaio Family
Pizza & Luncheonette v. Charter Oak Fire Ins. Co., 448 F.3d 460,
462 (1st Cir. 2006) (“[a]ppellants do not dispute the fact that
they failed to file suit within two years of the date of the
fire”); J. & T. Enters., Inc. v. Liberty Mut. Ins. Co., 428
N.E.2d 131, 132-33 (Mass. 1981).
The Court accordingly finds that plaintiff’s “loss”
occurred on the day of the fire, February 12, 2012.
-10-
Plaintiff
had until February 12, 2014 to file suit against defendant for
breach of the insurance contract.1
Plaintiff’s contention that defendant somehow waived its
statute of limitations defense by paying plaintiff for certain
losses is unavailing.
Northland paid Ora $39,517 for covered
personal business property and food spoilage losses.
Northland,
however, rejected Ora’s claim as to “extra expenses” and
specifically made clear in its denial letter to Ora that it did
“not waive any of the rights that [it] may have under the terms
of the insurance policy or at law.”
An insurer does not waive
its right to raise a statute of limitations defense merely by
making payment for undisputed losses while specifically
reserving its rights as to all disputed losses. See Merrimack
Mut. Fire Ins. v. Nonaka, 606 N.E.2d 904, 906 (Mass. 1993)
(“Waiver consists of the insurer’s voluntary or intentional
relinquishment of a known right.”).
The undoubtedly desirable
goal of prompt insurance payments to insureds would be
undermined if every insurer which paid out on undisputed losses
was deemed to have waived its right to raise affirmative
defenses as to all disputed losses.
Plaintiff had until February 12, 2014, two years after the
fire occurred, to bring a claim against defendant for breach of
1
Plaintiff has made no argument that the statute of limitations
period should have been tolled for any period of time.
-11-
the insurance contract.
Plaintiff failed to do so.
Therefore,
defendant’s motion to dismiss Count I will be allowed.
3.
Counts II-V: Equitable Claims and Declaratory
Judgment
Ora’s claims for breach of implied contract (Count II),
unjust enrichment (Count III), the right to recompense of
mitigated expenses under the insurance policy (Count IV) and a
declaratory judgment (Count V) all face similar timeliness
problems.
The insurance policy clearly and broadly states that “[n]o
suit or action against [defendant] for the recovery of any claim
by virtue of this policy shall be sustained” unless it is
brought within the two-year statute of limitations period.
(emphasis added).
Counts II through V of plaintiff’s complaint
undoubtedly are claims made “by virtue of [plaintiff’s] policy”
with defendant. See J. & T. Enters., 428 N.E.2d at 133.
These
claims are therefore also subject to the two-year limitation
period. See Gilbert v. City of Cambridge, 932 F.2d 51, 57-58
(1st Cir. 1991) (“where legal and equitable claims coexist,
equitable remedies will be withheld if an applicable statute of
limitations bars the concurrent legal remedy”); Gray Excavation,
Inc. v. Acadia Ins. Co., No. 0602026C, 2008 WL 496645, at *4
(Mass. Super. Ct. Jan. 29, 2008).
-12-
Because plaintiff failed to
bring those additional claims within the two-year period,
plaintiff is time-barred from doing so now.
Accordingly, for substantially the same reasons the Court
allowed defendant’s motion to dismiss with respect to Count I,
defendant’s motion with respect to Counts II through V will be
allowed.
4.
Count VI: Violations of Chapter 93A and Chapter
176D
Northland contends that the insurance policy’s two-year
statute of limitations also time-bars Ora’s claim for any
alleged violations of Chapter 93A and Chapter 176D.
Northland
maintains that the broad language included in both M.G.L. c.
175, § 99 and the insurance policy subjects any conceivable
claim surrounding Ora’s policy to a two-year statute of
limitations.
Ora disagrees and asserts that the reasoning of a
2001 Massachusetts Appeals Court decision warrants applying a
four-year statute of limitations to Count VI.
As previously discussed, M.G.L. c. 175, § 99 mandates a
two-year statute of limitations for all insurance policies
covering fire loss.
M.G.L. c. 260, § 5A, however, establishes a
four-year statute of limitations for consumer protection actions
brought for, inter alia, violations of Chapters 93A and 176D.
The remedy to the apparent conflict between the two-year
statute of limitations set out in both M.G.L. c. 175, § 99 and
-13-
plaintiff’s policy and the four-year statute of limitations for
violations of the subject Chapters is elucidated in Schwartz v.
Travelers Indem. Co., 740 N.E.2d 1039, 1042-44 (Mass. App. Ct.
2001).
In Schwartz, the court held that the general statute of
limitations for all fire insurance policies, set forth in M.G.L.
c. 175, § 99, should give way to the specific statute of
limitations period established for claims alleging violations of
Chapters 93A and 176D. Id. at 1044 (noting that alternate
reading would render “meaningless” the specific inclusion of
Chapter 176D actions in M.G.L. c. 260, § 5A). Cf. Nunheimer, 68
F. Supp. 2d at 79-80 (holding that two-year statute of
limitations applied because plaintiff’s claims under Chapters
93A and 176D are undoubtedly claims that exist “by virtue of the
policy” and were therefore time-barred).
Conduct prohibited by
Chapter 176D is “not merely duplicative of ordinary breach of
contract claims based on the [insurance] policy.” Schwartz, 740
N.E.2d at 1042-43.
Instead,
engaging in the conduct prohibited by G.L. c. 176D, [which
is] made unfair and deceptive by G.L. c. 93A [], creates an
action independent from the contract.
Id. at 1043.
The Court finds that defendant’s alleged violations of
Chapters 93A and 176D are, in fact, claims that are predicated
on conduct independent from plaintiff’s other claims.
Plaintiff
alleges misconduct by defendant that is not merely a repackaging
-14-
of its breach of contract claim under “the guise of a c. 93A
violation.” See id. at 1043 n.7 (distinguishing result in
Nunheimer).
Rather, plaintiff alleges misconduct by defendant
that might “support activity, independent of a claim under the
policy, [that is] violative of G.L. c. 176D.” Id.
For example,
plaintiff contends that, inter alia, defendant misrepresented
policy provisions in its denial letter.
Such misconduct, if
true, would enable plaintiff to bring suit against defendant for
actions independent of any breach of contract claim.
As such,
Count VI of plaintiff’s complaint is subject to the four-year
statute of limitations established for all Chapter 93A and
Chapter 176D claims, which plaintiff satisfied here.
Accordingly, defendant’s motion to dismiss Count VI on
statute of limitations grounds will be denied.
C.
Sufficiency of Factual Allegations for Chapter 93A
Claim (Count VI)
Although the Court finds that Count VI of Ora’s claim is
timely filed, Ora must still plead sufficient factual
allegations to state a claim for relief.
Ora alleges that Northland engaged in unfair insurance
claim settlement practices, thereby violating both M.G.L. c.
176D, § 3(9) and M.G.L. c. 93A, § 11 (Count VI).
Specifically,
plaintiff contends that defendant: (1) misrepresented pertinent
facts and insurance policy provisions relating to its coverage,
-15-
(2) failed to effectuate prompt, fair and equitable settlement
of the claim after liability had become reasonably clear, (3)
compelled plaintiff to institute litigation to recover amounts
due under the policy and (4) failed to provide a reasonable
explanation of the basis for the denial of its claim for extra
expenses. See M.G.L. c. 176D, § 3(9)(a), (f), (g), (n).
Defendant moves to dismiss Count VI for failure to allege
sufficient facts to state a claim.
1.
Legal Standard
Chapter 93A prohibits those engaged in trade or commerce
from employing “unfair methods of competition and unfair or
deceptive acts or practices” and authorizes businesses to sue
one another for engaging in such practices. M.G.L. c. 93A, §§ 2,
11.
Chapter 176D, § 3(9) defines a variety of unfair claim
settlement practices for insurance companies. M.G.L. c. 176D,
§ 3(9)(a)-(n).
A violation of Chapter 176D is not automatically
a violation of Chapter 93A, § 11. Brazas Sporting Arms, Inc. v.
Am. Empire Surplus Lines Ins. Co., 220 F.3d 1, 9 (1st Cir.
2000).
Instead, violations of Chapter 176D may serve as
evidence of unfair conduct that could be found to violate
Chapter 93A, § 11. See id.; Kiewit Constr. Co. v. Westchester
Fire Ins. Co., 878 F. Supp. 298, 302 (D. Mass. 1995).
In the context of disputes among businesses, where both
parties are sophisticated commercial players, the “objectionable
-16-
conduct must attain a level of rascality that would raise an
eyebrow to the rough and tumble of the world of commerce.”
Levings v. Forbes & Wallace, Inc., 396 N.E.2d 149, 153 (Mass.
App. Ct. 1979)); see Madan v. Royal Indemnity Co., 532 N.E.2d
1214, 1217 n.7 (Mass. App. Ct. 1989) (citations omitted) (noting
higher standard of unfairness under § 11).
Thus, in order to
prove a violation of Chapter 93A, plaintiff must show that
defendant’s conduct fell within “the penumbra” of some
“established concept of unfairness” or was “immoral, unethical,
oppressive or unscrupulous.”
See Boyle v. Int’l Truck & Engine
Corp., 369 F.3d 9, 15 (1st Cir. 2004) (citations and internal
quotations omitted).
2.
Application
Not surprisingly, the parties have a fundamental
disagreement over the interpretation of provisions in the
insurance policy relating to “extra expenses.”
Plaintiff contends that defendant violated Chapters 176D
and 93A through its failure to give a reasonable explanation for
its denial of the extra expenses portion of plaintiff’s claim.
Moreover, plaintiff alleges that defendant blatantly
misrepresented the terms of the policy and omitted key policy
language.
Plaintiff maintains that a plain reading of the
policy would have warranted coverage for the expenses it
-17-
incurred for relocation and the corresponding costs to equip and
up-fit its new permanent location.
Plaintiff reads the policy as categorically covering all
necessary expenses incurred up until the time at which it moved
into its new permanent location.
It thus maintains that the
claimed expenses for the new permanent location were incurred
during the “period of restoration” to help avoid a suspension of
its business.
Such a reading of the policy would include
coverage for the expenses plaintiff incurred to equip and up-fit
its new location even while it continued to operate at its two
temporary locations.
Defendant, on the other hand, reads the policy more
narrowly.
It contends that extra expenses are owed only in the
event that an insured is at risk for not being able to conduct
and maintain its business.
Because plaintiff managed to find
temporary kitchen facilities for which it was not charged, there
were necessarily no “extra expenses” incurred to “avoid or
minimize” the suspension of its business.
Under defendant’s
rationale, equipping and up-fitting the new permanent facility
would have qualified as “extra expenses” only if plaintiff was
unable to continue its business in the meantime or was in fact
charged for the use of either temporary facility.
Under such
circumstances, “extra expenses” would have been compensable.
-18-
The Court need not determine which party has the correct
contract interpretation.
Even if defendant’s interpretation of
the policy was found to be incorrect, it would not result in a
violation of Chapter 93A so long as defendant made a good faith
determination to deny coverage. Pediatricians, Inc. v. Provident
Life & Acc. Ins. Co., 965 F.2d 1164, 1173 (1st Cir. 1992)
(“[l]iability under c. 176D and 93A does not attach merely
because an insurer concludes that it has no liability under an
insurance policy and that conclusion is ultimately determined to
have been erroneous”).
The question, therefore, is whether the defendant’s reading
of the contract, and its explanation for its denial, was somehow
so “immoral, unethical, oppressive or unscrupulous” as to
demonstrate a violation of Chapter 93A. See Boyle, 369 F.3d at
15.
The Court concludes that defendant’s interpretation of the
insurance policy in the denial letter does not rise to that
standard.
Typically, situations where the parties have a
“genuine difference of opinion” are merely “ordinary disputes”
that lack conduct sufficient to implicate Chapter 93A.
Duclersaint v. Fed. Nat’l Mortg. Ass’n, 696 N.E.2d 536, 540
(Mass. 1998) (“a good faith dispute as to whether money is owed
... is not the stuff of which a c. 93A claim is made”).
Importantly, defendant did not omit any key policy language
in bad faith.
In fact, defendant used more than an entire page
-19-
of its denial letter to quote verbatim from all portions of the
insurance policy relevant to plaintiff’s claim for extra
expenses.
Furthermore, defendant provided a good faith, reasonable
explanation for its decision. Milazzo v. Sentry Ins., 691 F.
Supp. 517, 520 (D. Mass. 1987).
In its denial letter, defendant
referenced the fact that plaintiff was able to continue its
business at the two temporary locations at no additional cost.
Therefore, the expenses for plaintiff’s build out at its new
location “were not incurred to continue [its] operation” and
cannot be considered under the policy to be “extra expenses.”
Defendant admits that it could have gone into more detail in the
denial letter to support the reasons for its decision.
Nevertheless, the Court finds that defendant’s four-page denial
letter adequately explained the basis for its decision and did
not misrepresent any policy terms in doing so.
Defendant’s
interpretation of the policy’s language and its succinct
explanation of its rationale for the denial of extra expenses
can hardly be characterized as inherently unfair or deceptive.
Ultimately, this case appears to involve “an ordinary
contract dispute” between sophisticated commercial players.
Zurich Am. Ins. Co. v. Watts Regulator Co., 796 F. Supp. 2d 240,
245 (D. Mass. 2011); see Kobayashi v. Orio Ventures, Inc., 678
N.E.2d 180, 189 (Mass. App. Ct. 1997) (citation omitted).
-20-
Plaintiff alleges insufficient facts from which a finder of fact
could reasonably find that defendant acted in bad faith or
violated an “established conception of unfairness” that would
implicate Chapter 93A.
Accordingly, Count VI will be dismissed.
ORDER
In accordance with the foregoing, the motion to dismiss of
defendant Northland Insurance Co. (Docket No. 6) is ALLOWED.
So ordered.
_/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated November 5, 2014
-21-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?