Duane v. Vermont Mutual Insurance Company

Filing 96

Judge Richard G. Stearns: ORDER entered granting 58 Motion for Summary Judgment; denying 61 Motion for Summary Judgment; denying 73 Motion to Strike ; adopting Report and Recommendations re 87 Report and Recommendations. Clerk will set the case for trial. (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 17-11982-RGS
JON DUANE
v.
VERMONT MUTUAL INSURANCE COMPANY
MEMORANDUM AND ORDER ON THE REPORT
AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
February 26, 2019
STEARNS, D.J.
This is one of those puzzling cases in which a dispute over a collateral
matter, in this case the reasonableness of attorneys’ fees billed to the
defendant insurer for a defense of its insured, had metastasized into a billing
nightmare in which neither side can realistically expect to recover its sunk
costs. That said, I agree with Magistrate Judge Boal that the material
differences of opinion between the two reputable retained experts over the
appropriateness of the unpaid fees precludes an award of summary
judgment on Count I.1 She also correctly points out that Chapter 176D of the

I also agree that there is no good reason to strike Judge Todd’s report
or to exclude his testimony. As she observed, any perceived unfairness to
Vermont Mutual can be cured by permitting it to depose Todd on all relevant
1

Massachusetts General Laws does not authorize the private cause of action
asserted by Duane in Count III (and I do not understand Duane to argue
otherwise). See Salvati v. Am. Ins. Co., 855 F.3d 40, 49 (1st Cir. 2017) (cited
by Magistrate Judge Boal). Consequently, her Recommendation will be
ADOPTED.2
ORDER
Plaintiff Duane’s motion for summary judgment on Count I is
DENIED. Vermont Mutual’s motion for summary judgment on Count III is
ALLOWED. Vermont Mutual’s motion to strike Todd as an expert witness is
DENIED.

Leave to depose Todd is GRANTED to Vermont Mutual. The

Clerk will set the remaining claims for trial, assigning the case our next
available date.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

issues, including his conversations with Attorney Driscoll.
I have reviewed the Objections to the Magistrate Judge’s Report filed
by each of the parties, and nothing said persuades me differently.
2