Santos et al v. Preferred Mutual Insurance Company

Filing 28

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated in the attached memo and order, Defendants Motion for Summary Judgment (Dkt. No. 18 ) is hereby DENIED, without prejudice. It is the courts intention that the referral process be completed promptly. Plaintiffs counsel will report to this court in writing on or before June 14, 2013, regarding the evolution of the referral process. All action in this case is hereby STAYED, pending completion of the referral. At the conclusion of the referral process, the court will refer the matter to Magistrate Judge Kenneth P.Neiman, so that he can issue a new scheduling order for completion of all pretrial proceedings. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
JOSE F. SANTOS, ET AL.,
Plaintiffs
v.
PREFERRED MUTUAL INSURANCE
COMPANY,
Defendant

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C.A. No. 12-cv-30060-MAP

MEMORANDUM AND ORDER REGARDING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Dkt. No. 18)
April 15, 2013
PONSOR, U.S.D.J.
This case arises from the explosion of an oil tank at
Plaintiffs’ residence on November 3, 2011.

Plaintiffs have

sued Defendant Preferred Mutual Insurance Company, alleging
breach of contract, unfair trade practices under Mass. Gen.
Laws ch. 93A, and violation of the implied covenant of good
faith.

They also seek a declaratory judgment.

Defendant filed a Motion for Summary Judgment (Dkt. No.
18), contending that under Mass. Gen. Laws ch. 175, § 99,
Plaintiffs were obliged, before bringing suit, to undergo a
procedure by which their claim for loss “shall be referred
to three disinterested men.”

This referral mechanism is

mandatory whenever “the parties failed to agree upon the
amount of loss.”

Id.

Plaintiffs points out that this lawsuit includes claims
for a disputed amount of loss, but also seeks a declaratory
judgment and an award of damages based upon Defendant’s
abusive practices during the claims process.

The latter two

claims, Plaintiffs argue, do not require any referral under
Mass. Gen. Laws ch. 175, § 99.
Under these circumstances, the simplest, fairest, and
most practical approach is to stay this case to permit
referral as required by § 99.

Once this is completed, the

parties may return to this court if the matter has not been
resolved and proceed with the litigation on all counts.

At

least one judge of this district has adopted this approach.
M.A.S. Realty Corp. v. Travelers Cas. & Sur. Co. Illinois,
196 F. Supp. 2d 41, 47 (2001) (Gorton, J.).
Defendant’s argument that summary judgment should enter
for Defendant on all counts, even those not appropriate for
referral pursuant to § 99, based upon Plaintiffs’ failure to
proceed with the referral, is too much of a stretch.

The

statute applies only to a sub-set of disputes between a
policyholder and an insurance company -- i.e., those where
the dispute centers only on a disagreement about the amount
of loss -- and not to any and all controversies.

Under the

court’s approach, both sides will have a fair opportunity to
employ the referral process and, if they desire, to proceed
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with litigation if the matter is not resolved.
For the foregoing reasons, Defendant’s Motion for
Summary Judgment (Dkt. No. 18) is hereby DENIED, without
prejudice.

It is the court’s intention that the referral

process be completed promptly.

Plaintiffs’ counsel will

report to this court in writing on or before June 14, 2013,
regarding the evolution of the referral process.

All action

in this case is hereby STAYED, pending completion of the
referral.

At the conclusion of the referral process, the

court will refer the matter to Magistrate Judge Kenneth P.
Neiman, so that he can issue a new scheduling order for
completion of all pretrial proceedings.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

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