The Meadows at Mainstone Farm Condominium Trust v. Strathmore Insurance Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

THE MEADOWS AT MAINSTONE

FARM CONDOMINIUM TRUST,

Plaintiff,

v. CIVIL ACTION NO.

16-12546-MBB

STRATHMORE INSURANCE COMPANY,

Defendant.

MEMORANDUM AND ORDER RE:

DEFENDANT STRATHMORE INSURANCE COMPANY’S MOTION TO STRIKE EXPERT

OPINION (DOCKET ENTRY # 26); MOTION FOR SUMMARY JUDGMENT (DOCKET

ENTRY # 28); PLAINTIFF THE MEADOWS AT MAINSTONE FARM CONDOMINIUM

TRUST’S MOTION FOR LEAVE TO AMEND COMPLAINT (DOCKET ENTRY # 36)

September 28, 2018

BOWLER, U.S.M.J.

Pending before this court is a motion to strike an expert

opinion and a motion for summary judgment filed by defendant

Strathmore Insurance Company (“defendant”) as well as a motion

for leave to amend the complaint filed by plaintiff The Meadows

at Mainstone Farm Condominium Trust (“plaintiff”). (Docket

Entry ## 26, 28, 36). After conducting a hearing, this court

took the motions under advisement.

PROCEDURAL BACKGROUND

On December 17, 2016, plaintiff, a condominium trust, filed

a two-count complaint against defendant, setting out a claim for

breach of contract (Count I) and seeking a declaratory judgment

(Count II). (Docket Entry # 1). With respect to Count I, the

complaint requests judgment against defendant in the amount of

plaintiff’s damages, including interest and costs. (Docket

Entry # 1). With respect to Count II, the complaint requests

that this court declare that all amounts expended to repair

damage are covered by the insurance policy at issue and that

plaintiff is entitled to interest and costs on said amount.

(Docket Entry # 1).

On October 16, 2017, defendant filed the motion to strike

the opinion of plaintiff’s expert, Paul F. Amoruso, CPCU

(“Amoruso”), which would be used to oppose defendant’s upcoming

motion for summary judgment. (Docket Entry # 26). Defendant

filed the motion to strike on the grounds that the expert

opinion contains “inadmissible conclusions of law,” and the

expert’s report “lacks any specialized knowledge” that would

assist a trier of fact in understanding or determining a factual

issue. (Docket Entry # 26, p. 2). The motion asks this court

to strike Amoruso’s expert report in its entirety, preclude the

use of the opinions to oppose a future summary judgment motion

by defendant, and preclude Amoruso from testifying at trial.

(Docket Entry # 26). Plaintiff argues that the motion to strike

is deficient because it is premature, plaintiff gave “fair

notice” to defendant about Amoruso’s qualifications and

opinions, and Amoruso’s knowledge will assist a trier of fact in

understanding and applying the disputed insurance policy.

(Docket Entry # 27, p. 2). Defendant also challenges the

competency of Matthew D. Langweber (“Langweber”), a resident at

The Meadows at Mainstone Farm condominium complex (“the

Meadows”), to testify concerning the frequency of communication

between plaintiff and defendant following the loss. (Docket

Entry # 34-1, ¶ 32) (Docket Entry # 30-2, ¶ 1).

On October 31, 2017, defendant filed the summary judgment

motion, asserting that the claims are time barred under both the

statutory and the policy’s limitations periods. (Docket Entry #

28). Defendant argues that under a two-year limitations period

for covered losses under Massachusetts General Laws chapter 175,

section 99 (“section 99”), the claims must have been filed by

February 4, 2013 in order to be timely. (Docket Entry # 28).

Plaintiff submits that the contractual two-year limitations

period does not bar the claims for the type of loss at issue.

(Docket Entry # 30). Plaintiff also contends that defendant

waived or is estopped from raising the contractual limitations

period. (Docket Entry # 30).

In January 2018, plaintiff filed the motion for leave to

amend the complaint. (Docket Entry # 36). Plaintiff seeks to

amend the original complaint by adding claims for: (1)

violation of Massachusetts General Laws chapter 176D (“chapter

176D”) (Count III); and (2) violation of Massachusetts General

Laws chapter 93A (“chapter 93A”) (Count IV). (Docket Entry #

36-1). In opposing the motion, defendant contends that the

proposed amendment is “futile, untimely, and prejudicial.”

(Docket Entry # 38, p. 1).

I. Defendant’s Motion for Summary Judgment

FACTUAL BACKGROUND

Effective as of May 28, 2010, defendant issued an insurance

policy (“the policy”) for general commercial property liability

coverage to plaintiff for the period of May 28, 2010 to May 28,

2011. (Docket Entry # 1, ¶ 2) (Docket Entry # 6, ¶ 2) (Docket

Entry # 28-2, ¶ 1) (Docket Entry # 31, ¶¶ 1, 20) (Docket Entry #

34-1, ¶ 20) (Docket Entry # 28-4). The policy combines a

variety of different coverages including, at plaintiff’s

request, a “Standard Massachusetts Fire Policy endorsement.”

(Docket Entry # 34-1, ¶ 21). Endorsement CP 01 09 10-00 adds

standard Massachusetts fire policy provisions which, in

pertinent part, include the following:

Your policy contains Legal Actions Against Us, Appraisal

and Cancellation Provisions. Massachusetts law requires

that the Suit, Appraisal and Cancellation Provisions of the

Massachusetts Standard Fire Policy supersede any similar

provisions contained in your policy. Therefore, all Legal

Action Against Us, Appraisal and Cancellation Provisions

contained in your policy are void. The Suit, Appraisal and

Cancellation Provisions of the Massachusetts Standard Fire

Policy shall apply instead.

(Docket Entry # 28-4, p. 107, ¶ 1) (emphasis added). The

endorsement further provides that:

. . . No suit or action against this company for the

recovery of any claim by virtue of this policy shall be

sustained in any court of law or equity in this

commonwealth unless commenced within two years from the

time the loss occurred[.]

(Docket Entry # 28-4, p. 110) (emphasis added). In addition to

the Standard Massachusetts Fire Policy endorsement, the policy

contains language that prevents an individual from bringing

legal action against defendant under the policy unless “[t]he

action is brought within 2 years after the date on which the

direct physical loss or damage occurred.” (Docket Entry # 28-2,

¶ 8) (Docket Entry # 31, ¶ 18) (Docket Entry # 28-4, p. 102).

On February 4, 2011, a series of water intrusions from

melting ice and snow caused interior damage to the ceiling,

walls, and flooring inside plaintiff’s buildings (“interior

damage”). (Docket Entry # 28-2, ¶ 3) (Docket Entry # 31, ¶ 3).

Three days later, on February 7, 2011, plaintiff notified

defendant of an insurance claim arising from the flooding.

(Docket Entry # 28-2, ¶ 2) (Docket Entry # 31, ¶ 2). In March

2011, plaintiff hired Criterium Turner Engineers as an expert

consultant to assess the damage. (Docket Entry # 28-2, ¶ 5)

(Docket Entry # 31, ¶ 5) (Docket Entry # 30-2, ¶ 3) (Docket

Entry # 30-3, ¶ 3).1 In July 2011, defendant made payments to

plaintiff in order to rectify the interior damage resulting from

1 See the next two footnotes.

the water intrusion and closed the claim. (Docket Entry # 28-2,

¶ 4) (Docket Entry # 31, ¶ 4).2 The interior damage is not at

issue in this litigation. (Docket Entry # 28-2, ¶ 4) (Docket

Entry # 31, ¶ 4).

After July 2011, plaintiff hired additional outside

consultants to determine whether the water intrusions caused

damage to the exterior walls, roofs, and siding of the

condominium units (“exterior damage”).3 (Docket Entry # 30-2, ¶

3) (Docket Entry # 30-3, ¶ 3) (Docket Entry # 28-2, ¶ 5) (Docket

Entry # 31, ¶ 5).4 In September 2011, October 2011, March 2012,

and June 2012, plaintiff hired and consulted with expert

2 Plaintiff does not controvert defendant’s LR. 56.1 statement

that defendant made the payments on the claim for interior

damage and closed the claim on or about July 2011. (Docket

Entry # 31, ¶ 4); see Cochran v. Quest Software, Inc., 328 F.3d

1, 12 (1st Cir. 2003); Stonkus v. City of Brockton School

Department, 322 F.3d 97, 102 (1st Cir. 2003) (citing LR. 56.1 and

deeming admitted the undisputed material facts that the

plaintiff failed to controvert).

3 Documents in the record also refer to the claim for exterior

damage as the supplemental claim.

4 Plaintiff’s LR. 56.1 response does not controvert the dates in

defendant’s LR. 56.1 statement. (Docket Entry # 28-2, ¶ 5)

(Docket Entry # 31, ¶ 5); see Cochran v. Quest Software, Inc.,

328 F.3d at 12 (the plaintiff’s failure to contest date in LR.

56.1 statement of material facts caused date to be admitted on

summary judgment). In addition, even if plaintiff hired the

expert consultants to assess the damage in general, as opposed

to damage specific to the exterior, such experts and, by

extension, plaintiff should have uncovered the exterior damage

to the walls, roofs, and siding resulting from ice dams or other

damages caused by the February 2011 storm prior to the

production and communication of their expert reports to

plaintiff.

consultants to investigate the matter. (Docket Entry # 30-2, ¶

3) (Docket Entry # 30-3, ¶ 3) (Docket Entry # 28-2, ¶ 5) (Docket

Entry # 31, ¶ 5).5 After receiving reports from its expert

consultants after September 1, 2012, plaintiff estimated the

repair costs for the exterior damage to be seven million

dollars. (Docket Entry # 30-2, ¶ 3) (Docket Entry # 30-3, ¶ 3).

By January 31, 2013, the expert consulting firm plaintiff hired

in October 2011 expressed the belief “that ‘there is some damage

that they will be able to positively identify that reflates to

ice dams.’” (Docker Entry # 28-2, ¶ 5) (Docket Entry # 31, ¶

5).6 It is the policy’s coverage, if any, for this exterior

damage to the external structure of the condominium units that

forms the central issue of this case.7

5 See the previous footnote. Plaintiff does not controvert the

dates or that it began consulting with these expert consultants.

6 Plaintiff’s response does not controvert this statement in

paragraph five of defendant’s LR. 56.1 statement.

7 Plaintiff describes this exterior damage as “[c]oncealed

[d]amage” that was not entirely uncovered until it acquired

expert damage reports after September 1, 2012. (Docket Entry #

31, ¶ 30). Defendant denies the characterization of the damage

as “concealed.” (Docket Entry # 34-1, ¶ 29). It repeatedly

argues that that “[n]othing magical happened after September 1,

2012” that would have notified plaintiff of the true extent of

the exterior damage beyond what it already knew as early as

February 2011, immediately following the flooding events, or as

late as July 2012, when it last hired an expert consultant.

(Docket Entry # 34-1, ¶¶ 29, 30). Denying the concealed nature

of the exterior damage, defendant argues that the policy should

not cover it. (Docket Entry # 28-1) (Docket Entry # 34-1, ¶¶

29, 41).

On January 31, 2013, Jeff Grosser (“Grosser”), vice

president of Rodman Insurance Agency (“Rodman”), defendant’s

local insurance agent,8 emailed David Barrett of Crowninshield

Management Corporation (“Crowninshield”), plaintiff’s property

management company. (Docket Entry # 28-2, ¶ 6) (Docket Entry #

31, ¶ 6). Correspondence from Rodman to Cronwinshield states

the following: “‘Confirming that you did inquire about the

merits of filing a supplemental claim related to the large ice

dam loss because the contractor has indicated that there may be

additional damage resulting from that loss.’” (Docket Entry #

28-6).

On April 2, 2013, David Barrett (“Barrett”) of

Crowninshield sent additional communication to Debbie Morda and

Grosser of Rodman stating: “‘The board would like to

investigate opening up a supplemental claim associated with a

prior ice dam claim.’” (Docket Entry # 28-2, ¶ 8) (Docket Entry

# 31, ¶ 8) (Docket Entry # 28-7). The email also requested

contact with a Rodman insurance adjustor. (Docket Entry # 28-2,

¶ 8) (Docket Entry # 31, ¶ 8) (Docket Entry # 28-7).

8 The parties dispute whether Rodman is plaintiff’s or

defendant’s local insurance agent. (Docket Entry # 28-2, ¶ 6)

(Docket Entry # 31, ¶ 6). Langweber, a resident of The Meadows

at Mainstone Farm who attests he has personal knowledge of the

matter, avers by affidavit that Rodman is defendant’s local

insurance agent. (Docket Entry # 30-2, ¶ 4). Construing the

record in plaintiff’s favor, this court considers Rodman to be

defendant’s local insurance agent. (Docket Entry # 30-2, ¶ 4).

The following day, April 3, 2013, Christine Nemet (“Nemet”)

of Rodman forwarded Barrett’s April 2 email to Michael Kearney

(“Kearney”), an adjuster at LaMarche Associates, Inc.

(“LaMarche”). (Docket Entry # 28-2, ¶ 9) (Docket Entry 31, ¶ 9)

(Docket Entry # 28-8, p. 2). LaMarche is an independent

insurance adjustor that defendant had previously retained to

evaluate and adjust the interior damages resulting from the

flooding. (Docket Entry # 28-2, ¶ 9) (Docket Entry # 31, ¶ 9).

In an April 3, 2013 reply email to Nemet, Kearney states that,

“‘the two-year statute has expired on this claim that occurred

in February 4, 2011.’” (Docket Entry # 28-2, ¶ 9) (Docket Entry

# 31, ¶ 9) (Docket Entry # 28-8). Notably, Kearney also sent

this email to Barrett and to John Auli (“Auli”), plaintiff’s

senior claims examiner. (Docket Entry # 28-8). In an email

less than two hours later, Nemet asked Kearney to revisit the

question of whether the statute of limitations had expired on

claims arising from the exterior damage and that she needed

“Greater New York” (“GNY”) “to authorize this supplemental.”

(Docket Entry # 28-2, ¶ 9) (Docket Entry # 31, ¶ 9) (Docket

Entry # 30-2, p. 5). Nemet’s email also forwarded Rodman’s

January 31, 2013 email, which Nemet describes as “confirming

there is a possible supplemental claim” sent “before the statute

was up.” (Docket Entry # 28-2, ¶ 9) (Docket Entry # 31, ¶ 9)

(Docket Entry # 30-2, p. 5).

Later that morning, Steven Baroncini (“Baroncini”),

defendant’s vice president of property claims, sent a

communication to Nemet at Rodman and Kearney at LaMarche further

discussing the expiration of the limitations period.9 (Docket

Entry # 30-2, p. 5). Baroncini’s email states that “[t]he suit

limitation has passed, but that does not preclude the insured

from reporting a supplement to their claim.” (Docket Entry #

30-2, p. 5).

On April 4, 2013, LaMarche, writing on defendant’s behalf,

sent a reservation of rights letter to plaintiff in care of

Crowninshield and to the attention of Barrett. (Docket Entry #

28-9) (Docket Entry # 28-2, ¶ 10) (Docket Entry # 31, ¶ 10).

While the letter acknowledges that defendant would be

“investigating . . . the supplemental claim,” it also states

defendant’s intention to proceed with the investigation under a

full reservation of rights. (Docket Entry # 28-9). The letter

informs plaintiff that, “None of [defendant’s] activities to

date are to be construed as an admission of liability nor as a

waiver of any of the rights or defenses available under the

terms and conditions of the policy, all of which are hereby

reserved.”10 (Docket Entry # 28-9).

9 Nemet included Baroncini as a recipient of this email to

Kearney. (Docket Entry # 30-2, p. 5).

10 Langweber avers in an affidavit that “at all times,”

plaintiff was “in frequent communication” with Rodman. (Docket

On or about August 8, 2013, defendant wrote to plaintiff to

explain defendant’s coverage position relative to plaintiff’s

supplemental claim. (Docket Entry # 28-2, ¶ 12) (Docket Entry #

31, ¶ 12). Denying coverage for the supplemental claim, the

correspondence restated the terms set forth in the insurance

policy including that: “no one may bring legal action against

the insurance company unless: 1. There has been full compliance

with all the terms of this coverage part; and 2. The action is

brought within two years after the date on which the direct

physical loss or damage occurred.” (Docket Entry # 28-2, ¶ 12)

(Docket Entry # 31, ¶ 12) (Docket Entry # 28-10, p. 4).

Following this denial of coverage, plaintiff retained counsel to

assist with the supplemental claim. (Docket Entry # 31, ¶ 34)

(Docket Entry # 34-1, ¶ 34). On December 19, 2013, Barrett

responded to defendant’s coverage position on plaintiff’s

behalf, advising that plaintiff “does not accept the findings in

Entry # 30-2, ¶ 4). Defendant objects to the averment as a

“broad and vague characterization” and that Langweber’s lack of

personal knowledge concerning the alleged frequency of

communication between the two parties renders his testimony “not

competent.” (Docket Entry # 34-1, ¶ 32). The above emails set

out the written communication in and around early 2013. Even

accepting Langberger’s averment as accurate (Docket Entry # 30-

2, ¶ 4), it nevertheless does not provide a basis to show the

timely filing of this lawsuit within two years of the date of

loss under section 99, as explained in the discussion. Nor, in

light of the repeated reservation of rights and statements

denying the existence of an estoppel or waiver does this

averment provide a basis for waiver or estoppel.

the rejection letter,” and that it would provide additional

information on the claim. (Docket Entry # 28-2, ¶ 13) (Docket

Entry # 31, ¶ 13) (Docket Entry # 28-11).

On May 30, 2014, Richard E. Quinby, Esq. (“Quinby”),

plaintiff’s counsel at the time, sent a letter to Auli

requesting a reconsideration of the coverage denial made last

year. (Docket Entry # 28-12). The letter asserts that various

consultants advised plaintiff in “late 2012 or early 2013” that

“there may be water penetration” to “the building envelope.”

(Docket Entry # 28-12). The letter estimates the total cost of

repair “to be $7.75 million.” (Docket Entry # 28-12).

Acknowledging that defendant already made payments to repair the

interior damage, the letter re-asserts plaintiff’s position that

the exterior damage should also be covered. (Docket Entry # 28-

12). The letter concludes that if defendant did not pursue

mediation prior to June 9, 2014, plaintiff would “file the

appropriate action.” (Docket Entry # 28-12).

After plaintiff’s counsel asked defendant to reconsider the

denial of coverage, defendant agreed to reconsider the denial.

(Docket Entry # 30-2, ¶ 7) (Docket Entry # 30-3, ¶ 6) (Docket

Entry # 34-1, ¶ 34). On July 30, 2014, defendant “through its

coverage counsel sent a demand for examination under oath and

request for production of documents.” (Docket Entry # 28-2, ¶

19) (Docket Entry # 31, ¶ 19) (Docket Entry # 28-15). In this

letter, defendant reiterated its reservation of rights,

including the right to assert a statute of limitations defense.

(Docket Entry # 28-15, p. 3). The letter sets forth the

reservation of rights in the following manner:

This reservation includes, but is not limited to,

reservation of its rights to continue to disclaim any

obligations under this policy, if investigation of the

circumstances surrounding this loss would so warrant, and

to avail itself of any other policy defenses which it may

have or which may arise including, without limitation, all

rights and defenses arising out of the duties of the

insured provisions and the exclusionary provisions.

Any and all investigations taken by Strathmore . . . shall

not constitute a waiver of, or an estoppel to assert, any

of the terms of the policy . . . or any rights or defenses

. . ., including . . . limitations of actions . . ..

(Docket Entry # 28-15, p. 3). In addition to the reservation of

rights, the letter requests that plaintiff provide additional

information. (Docket Entry # 31, ¶ 36) (Docket Entry # 34-1, ¶

36). Plaintiff provided certain additional information and

produced two witnesses who made statements under oath. (Docket

Entry # 31, ¶ 36) (Docket Entry # 34-1, ¶ 36).

During defendant’s investigation of the claim for exterior

damage, Quinby, plaintiff’s counsel at the time, interacted with

defendant’s counsel. Together with Langweber, Quinby gathered

materials and produced documents requested by defendant’s

counsel. (Docket Entry # 30-3, ¶¶ 2, 10) (Docket Entry # 30-2,

¶ 8). Quinby avers that defendant’s counsel “assured” him that

defendant would “attempt to amicably resolve” the claim for

exterior damage after contemplating the investigation. (Docket

Entry # 30-3, ¶ 9).

In an email on August 13, 2014 to defendant’s counsel,

Quinby recounted his efforts to compile the documents and stated

that he “can withhold bringing an action . . . if we can agree

on a tolling agreement.” (Docket Entry # 34-2, p. 4). In a

reply email on September 5, 2014, defendant’s counsel stated

that “GNY would consider agreeing to” a tolling agreement “so

long as the tolling agreement does not serve to revive any

expired statute of limitations.” (Docket Entry # 34-2, p. 3)

(emphasis added). In a reply email two hours later, plaintiff’s

counsel stated he “agree[d] on the tolling agreement.” (Docket

Entry # 34-2, p. 3).

In December 2014, both parties entered into a tolling

agreement (“Tolling Agreement”) with an effective date “as of

September 1, 2014.” (Docket Entry # 28-2, ¶ 15) (Docket Entry #

31, ¶ 15) (Docket Entry # 28-13, pp. 1, 4). The pertinent

parts, which appear in paragraphs two and four, are as follows:

2.) This Tolling Agreement will terminate 30 calendar days

after Strathmore Insurance Company notifies in writing

The Meadows at Mainstone Farm Condominium Trust of its

decision related to the Supplemental Claim

(“Termination Date”).

4.) This Tolling Agreement shall not in any manner revive,

resurrect, or create any claims, rights, causes of

action or suits which have expired or are barred by

any applicable statute of limitations or repose or

other rule, provision, defense or principle based upon

the passage of time (including, without limitation,

waiver, estoppel and laches) whether statutory,

contractual or otherwise existing as of the Effective

Date or limit in any way the assertion of any defense

available as of the Effective Date related to the

Claim and Supplemental Claim.

(Docket Entry # 28-13, ¶¶ 2 & 4) (emphasis added). In the

Tolling Agreement, the parties also agreed that the period from

the agreement’s effective date (September 1, 2014) to its

termination date (30 days after defendant’s coverage decision)

would not be “asserted or relied upon in any way to compute” the

running of the statute of limitations. (Docket Entry # 28-13,

¶¶ 1, 2).11

On or about November 17, 2016, defendant provided plaintiff

with a detailed basis for declining coverage for the

supplemental claim for exterior damage. (Docket Entry # 28-2, ¶

16) (Docket Entry # 31, ¶ 16). On December 17, 2016, in

response to its receipt of the letter declining claim coverage,

plaintiff filed this action. (Docket Entry # 28-2, ¶ 17)

(Docket Entry # 31, ¶ 17).

STANDARD OF REVIEW

Summary judgment is designed “‘to pierce the boilerplate of

the pleadings and assay the parties’ proof in order to determine

11 The Tolling Agreement therefore excluded from the limitations

period the time period of September 1, 2014 to December 17,

2016, which was 30 days after defendant’s final coverage

decision on November 17, 2016. (Docket Entry # 28-13, ¶¶ 1, 2).

whether trial is actually required.’” Dávila v. Corporación De

Puerto Rico Para La Difusión Pública, 498 F.3d 9, 12 (1st Cir.

2007). It is appropriate when the summary judgment record shows

“there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). It is inappropriate “if the record is

sufficiently open-ended to permit a rational factfinder to

resolve a material factual dispute in favor of either side.”

Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).

“An issue is ‘genuine’ when a rational factfinder could

resolve it [in] either direction” and a “fact is ‘material’ when

its (non)existence could change a case’s outcome.” Mu v. Omni

Hotels Mgmt. Corp., 882 F.3d 1, 5 (1st Cir. 2018); accord Green

Mountain Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir.

2014). Facts are viewed in favor of the non-movant, i.e.,

plaintiff. See Garcia-Garcia v. Costco Wholesale Corp., 878

F.3d 411, 417 (1st Cir. 2017) (court examines “‘record in the

light most favorable to the nonmovant’ and must make ‘all

reasonable inferences in that party’s favor’”); Ahmed v.

Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In reviewing a

summary judgment motion, a court may examine all of the record

materials on file even if not cited by the parties. Fed. R.

Civ. P. 56(c)(3); Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st

Cir. 2014). “‘“[C]onclusory allegations, improbable inferences,

and unsupported speculation”’” are ignored. Garcia-Garcia v.

Costo Wholesale Corp., 878 F.3d at 417.

With respect to a statute of limitations defense, summary

judgment is appropriate “where there is no dispute as to

essential evidentiary facts controlling the application of the

statute of limitations.” Nunheimer v. Continental Ins. Co., 68

F. Supp. 2d 75, 77 (D. Mass. 1999). As an affirmative defense,

“‘the defendant bears the burden of establishing” the

applicability of the statute of limitations. Asociación de

Suscripción Conjunta del Seguro de Responsabilidad Obligatorio

v. Juarbe-Jimenez, 659 F.3d 42, 50 n.10 (1st Cir. 2011); see

Fed. R. Civ. P. 8(c). As explained by the court in Asociación

with respect to the statute of limitations:

“The party who has the burden of proof on a dispositive

issue cannot attain summary judgment unless the evidence he

provides on that issue is conclusive.” Torres Vargas v.

Santiago Cummings, 149 F.3d 29, 36 (1st Cir. 1998)

(internal citations omitted). Once the defendant produces

such evidence, the burden shifts to the plaintiff to

establish that the statute of limitations does not apply.

Id. (emphahsis added). Thus, if defendant provides evidence

that the statute of limitations conclusively applies, plaintiff

bears the burden to show that any tolling of the limitations

period “is within the range where reasonable men and women can

differ.”12 Espada v. Lugo, 312 F.3d 1, 4 (1st Cir. 2002) (noting

12 As discussed below, tolling under the discovery rule does not

apply.

on summary that “plaintiff bears the burden of proving

timeliness by establishing that she lacked the necessary

knowledge or imputed knowledge before instituting the action”);

Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 19 (1st

Cir. 2000).

DISCUSSION

A. Breach of Contract

In Count I, plaintiff asserts that defendant’s “failure to

honor its contractual obligations and failure to make payment on

the full amount of [p]laintiff’s loss” under the policy

constitutes a breach of contract. (Docket Entry # 1, ¶ 17). In

light of defendant’s refusal to cover the exterior damage,

plaintiff purportedly expended “in excess of seven million

dollars repairing the damage.” (Docket Entry # 1, ¶ 18).

In seeking summary judgment, defendant sets forth the

following arguments: (1) the applicable limitations period

under the policy, which section 99 sets out by statute, is two

years from the time the loss occurred; (2) in Massachusetts, the

two-year limitations period in section 99 applies to all claims

for first-party property losses; (3) the discovery rule does not

apply; and (4) its actions have not waived the statute of

limitations or estopped it from asserting such a defense.

(Docket Entry # 28-1). As such, plaintiff’s failure to file

suit on or before February 4, 2013 forecloses its claims,

according to defendant. (Docket Entry # 28-1).

In Massachusetts, section 99 sets out a standard form and

content to include in property policies insuring against loss or

damage by fire. Mass. Gen. Laws ch. 175, § 99. The language

includes a two-year limitations period. Mass. Gen. Laws ch.

175, § 99. In accordance with section 99’s requirements,

plaintiff’s policy with defendant contains the following

provision:

No suit or action against this company for the recovery of

any claim by virtue of this policy shall be sustained in

any court of law or equity in this commonwealth unless

commenced within two years from the time the loss

occurred[.]

(Docket Entry # 28-4, p. 110) (emphasis added); see Mass. Gen.

Laws ch. 175, § 99 (containing same language). Plaintiff argues

that the limitations language found in Massachusetts General

Laws chapter 175, section 22 (“section 22”) applies. In

pertinent part, section 22 states that:

No company and no officer or agent thereof shall make,

issue or deliver any policy of insurance or any annuity or

pure endowment contract containing any condition,

stipulation or agreement . . . limiting the time for

commencing actions against it to a period of less than two

years from the time when the cause of action accrues . . ..

Any such condition, stipulation or agreement shall be void.

Mass Gen. Laws ch. 175, § 22 (emphasis added). Plaintiff

submits that section 22 voids the policy’s limitations period,

which wrongly “purports to shorten the time to bring suit to

less than the ‘two years from the time when the cause of action

accrues.’” (Docket Entry # 30, p. 7).

There are a number of Massachusetts cases in which

plaintiffs use section 22 to challenge the validity of insurance

policies that utilize section 99’s limitations language. See

Goldsmith v. Reliance Ins. Co., 228 N.E.2d 704, 706 (Mass.

1967); Rock of Salvation Pentecostal Church, Inc. v. Guideone

Ins. Co., No. 0301382A, 2004 WL 856613, at *1, *6 (Mass. Super.

Mar. 2, 2004). Most notably, in Goldsmith, the Massachusetts

Supreme Judicial Court (“SJC”) held that, contrary to the

plaintiff’s contention, section 22 did not void the section 99

limitations provision in a policy that insured a retail store

against fire damage. Goldsmith v. Reliance Ins. Co., 228 N.E.2d

at 706. The SJC noted that the section 99 language could remain

effective by “confining § 22 to nonstatutory limitations, that

is, to those settled upon solely by the parties to the insurance

policy . . ..” Id. Stated otherwise, if the insurance policy’s

limitations provision contains the precise statutory language

from section 99, section 22 does not nullify it.13 See id.

13 Furthermore, Goldsmith distinguishes Barton, which also

discussed the relationship between sections 99 and 22. Barton

v. Automobile Ins. Co. of Hartford, Conn., 34 N.E.2d 516, 517

(Mass. 1941). Specifically, the Barton court held that “[u]nder

our statutes no limitation can be made to run from the happening

of the loss.” Id. The key difference between the two cases

lies in the fact that the Barton policy was “not in a standard

form prescribed by statute,” so the court did not have occasion

The court in Faustman v. Commerce Ins. Co. further develops

Goldsmith by confronting a similar issue, namely, “whether the

inclusion of fire insurance with other types of coverage makes

the entire policy subject to [section] 99, thereby avoiding the

proscriptions of [section] 22.” Faustman v. Commerce Ins. Co.,

No. 992303, 2000 WL 1473148, at *1, *2-4 (Mass. Super. Ct. July

5, 2000). Massachusetts General Laws chapter 175, section 54E

(“section 54E”), authorizes the combining of fire insurance with

other types of coverage in a homeowner’s insurance policy upon

obtaining approval from the Massachusetts Commissioner of

Insurance (“the Insurance Commissioner”). Mass. Gen. Laws ch.

175, § 54E. In light of section 54E, the Faustman court

determined that the Massachusetts legislature likely intended

section 99 to govern policies that obtained permission to

combine fire insurance with a variety of other coverages.

Faustman v. Commerce Ins. Co., 2000 WL 1473148, at *2-4.

Because the plaintiff’s policy combined this variety of

different coverages and received approval from the Insurance

Commissioner to do so, the policy’s reliance on section 99 was

appropriate. Id. The court therefore allowed summary judgment

to consider section 99’s limitations clause. Goldsmith v.

Reliance Ins. Co., 228 N.E.2d at 706 n.1. This distinction

further supports the conclusion that a policy’s limitations

clause that directly follows section 99’s standard, statutory

form is valid. See id.

by finding the insurance claim untimely because it filed the

action after two years from the time the loss occurred. Id.

The applicable limitations provision in the policy between

plaintiff and defendant uses the precise statutory language of

the limitations provision in section 99. See Goldsmith v.

Reliance Ins. Co., 228 N.E.2d at 706. With the Insurance

Commissioner’s permission, the policy conforms a variety of

different coverages and includes section 99’s language. (Docket

Entry # 31, ¶ 21) (Docket Entry # 34-1, ¶ 21). Section 54F

explicitly permits commercial property insurance policies to

write additional coverage protections into standard fire

insurance policies with the Insurance Commissioner’s

permission.14 See Mass. Gen. Laws ch. 175, § 54F; Faustman v.

Commerce Ins. Co., 2000 WL 1473148, at *2-4. Because section 22

does not void limitations provisions that explicitly follow

statutory guidelines, defendant’s reliance on section 99 adheres

to the legislative intent behind section 54F. See Goldsmith v.

14 In the pertinent part, section 54F states:

Any company authorized to insure against loss or damage by

fire . . . may . . . insure against loss or damage to, or

the legal liability of the insured with respect to,

commercial property . . . provided, that insurance against

loss or damage by perils other than the peril of fire may

be written only when insurance against the peril of fire is

written in the same policy and on forms which have been

submitted to and approved by the commissioner.

Mass. Gen. Laws ch. 175, § 54F.

Reliance Ins. Co., 228 N.E.2d at 706. Consistent with the

Goldsmith and Faustman precedents, section 99 establishes the

policy’s limitations period at two years from the time the loss

occurred.15 See id.; Faustman v. Commerce Ins. Co., 2000 WL

1473148, at *2-4.

Plaintiff next submits that because the exterior damage did

not result from fire loss, the Goldsmith holding does not apply.

(Docket Entry # 30). Plaintiff asserts that section 22

therefore governs the policy’s limitations provision. (Docket

Entry # 30). At the very least, plaintiff requests that,

pursuant to SJC Rule 1:03, this court certify to the SJC the

question of whether section 99 or section 22 governs non-fire

“weather event loss claims.” (Docket Entry # 30, p. 11)

(capitalization omitted).

The argument fails to acknowledge that existing

Massachusetts case law applies section 99 beyond the narrowly-

defined scope of fire losses to a broad range of claims arising

from non-fire damages. See Nurse v. Omega U.S. Ins., Inc., 38

15 To the extent plaintiff asserts that a six-year limitations

applies under Massachusetts General Laws chapter 260, section

two, because Count I constitutes a breach of contract claim

(Docket Entry # 30, p. 7), the argument lacks merit. The

contract claim constitutes a “claim by virtue of this policy”

within the meaning of the limitations language in section 99.

Mass. Gen. Laws ch. 175, § 99. The policy includes this

language and the statute’s two-year limitations period therefore

applies.

N.E.3d 759, 761 (Mass. App. Ct. 2015) (affirming summary

judgment pursuant to section 99 for insurance claim seeking

recovery for water damage resulting from bursting pipes);

Riverdale Mills Corp. v. Fireman’s Fund Ins. Co., 123 F. Supp.

2d 37, 40 (D. Mass. 2000) (affirming summary judgment pursuant

to section 99 for insurance claim seeking recovery for rain-

induced flooding damage); Nunheimer v. Continental Ins. Co., 68

F. Supp. 2d at 78-80 (affirming summary judgment pursuant to

section 99 for insurance claim seeking recovery for contaminants

released from underground storage tanks); see also J. & T.

Enters., Inc. v. Liberty Mut. Ins. Co., 428 N.E.2d 131, 133

(Mass. 1981) (construing fire insurance policy’s section 99

provision broadly such that “any claim by virtue of the policy”

must be subject to its limitations provisions). These cases not

only show a willingness to extend section 99 to non-fire losses,

but also suggest that Massachusetts courts already apply section

99 to flooding damage and other property losses that closely

resemble the facts of the present case. See Nurse v. Omega U.S.

Ins., Inc., 38 N.E.3d at 761; Riverdale Mills Corp. v. Fireman’s

Fund Ins. Co., 123 F. Supp. 2d at 40. Plaintiff’s assertion

that section 99 does not govern non-fire losses is therefore

unconvincing and inconsistent with the established precedent.

Certification is not appropriate.

Plaintiff additionally points out that section 99 does not

contain “the ‘supercede’ language” defendant cites to support

the application of section 99 to the policy. (Docket Entry #

30). Although true, it is the presence of the statutory

language prohibiting suit “unless commenced within two years

from the time the loss occurred” (Docket Entry # 107, p. 110)

that constitutes the focal point of the analysis in the

foregoing cases and that section 99 contains. The additional

unambiguous contractual “‘supercede’ language” simply confirms

the intent of the parties that “the Massachusetts Standard Fire

Policy shall apply instead” of the “legal Action Against Us,

Appraisal and Cancellation Provisions contained in your policy.”

(Docket Entry # 28-4, p. 107, ¶ 1). Tellingly, plaintiff does

not cite a case to support the argument regarding the absence of

the superceding language in section 99 as rendering the “time

the loss occurred” language void.

Defendant also argues that the Massachusetts discovery rule

does not apply to limitations periods defined by section 99.

(Docket Entry # 28-1, pp. 9-11). Plaintiff disagrees.

Under the discovery rule, “a claim accrues and the statute

of limitations clock commences when a plaintiff knows, or

reasonably should have known, ‘that she has been harmed or may

have been harmed by the defendant’s conduct.’” Evans v.

Lorillard Tobacco Co., 990 N.E.2d 997, 1028 (Mass. 2013)

(quoting Bowen v. Eli Lilly & Co., 557 N.E.2d 739, 741 (Mass.

1990)); see Albrecht v. Clifford, 767 N.E.2d 42, 49 (Mass. 2002)

(rule tolls “limitations period until a prospective plaintiff

learns or should have learned that he has been injured”). In

tracing the history of the rule from its original application to

a legal malpractice claim and its extensions to fraudulent

misrepresentation and medical malpractice claims, the

Massachusetts Court of Appeals in Nurse astutely points out

that:

In each instance, the court was construing statutes that

set forth limitations periods that began when a cause of

action “accrued.” As the court noted in Bowen, it

developed “a discovery rule for the purpose of determining

when a cause of action accrues.”

Nurse v. Omega U.S. Ins., Inc., 38 N.E.3d 759, 762 (Mass. App.

Ct. 2015) (quoting Bowen, 557 N.E.2d at 739). Notably, the

court in Nurse explains that because the plain language of

section 99 uses the “unambiguous” phrase “‘loss occurred,’” the

“plain language” of section 99 did “not support the application

of the discovery rule.” Id. at 763-764. The Nurse decision

addresses a breach of contract and declaratory judgment action

under a dwelling insurance policy for water damage caused by

burst pipes in a largely vacant building.16 Id. at 760.

16 Ongoing construction was taking place in a third floor unit

in the building. Id. at 760.

Here too, as reasoned in Nurse, the plain and unambiguous

language of section 99 that “No suit . . . for the recovery of

any claim . . . shall be sustained . . . unless commenced within

two years from the time the loss occurred” leaves no room for a

delay of the accrual of the two-year limitations period under

the discovery rule. See id. at 763-764 (emphasis added). In

the “instances where the discovery rule has been extended, the

governing statute of limitations required a determination of

when the cause of action accrued, as opposed to when the ‘loss

occurred.’” Id. at 763. Thus, whereas both the contract, tort,

and malpractice statutes of limitations use the term “accrues,”

section 99 employs the phrase “loss occurred” as the trigger for

the limitations period. See Mass. Gen. Laws ch. 260, §§ 2, 2A,

4; see also Nurse v. Omega U.S. Ins., Inc., 38 N.E.3d at 763-64

n.15 (noting the accrual language in Mass. Gen. Laws ch. 260, §§

2, 4). In the context of a denial of an insurance claim

alleging a breach of contract, the term “loss” in section 99 “is

the incident ‘causing the damage to the property’ rather than

the denial of insurance benefits.’” Nurse v. Omega U.S. Ins.,

Inc., 38 N.E.3d at 762 (discussing conclusion by the court in

Nunheimer v. Continental Ins. Co., 68 F. Supp. 2d 75, 78 (D.

Mass. 1999)); see Nunheimer v. Continental Ins. Co., 68 F. Supp.

2d at 78; Gray Excavation, Inc. v. Acadia Ins. Co., No.

0602026C, 2008 WL 496645, at *1, *3 (Mass. Super. Jan. 29, 2008)

(“loss” occurred during acid contamination, not when plaintiff

discovered damage nearly three years later). Applying the

foregoing reasoning in Nurse v. Omega U.S. Ins., Inc., 38 N.E.3d

at 762, including the court’s adherence to the statutory

language and the unambiguous “‘loss occurred’” phrase, the

discovery rule does not delay the running of the two-year

limitations period in section 99 and the policy. The damage to

the property took place in February 2011 and the two-year time

period expired in February 2013.17 Accordingly, this case filed

in December 2016 is untimely.

Defendant next contends that it did not engage in any

activity that would waive the application of the statute of

limitations. (Docket Entry # 28-1). Plaintiff summarily states

that defendant waived its statute of limitations defense.

(Docket Entry # 30, p. 12). Plaintiff does not, however,

advance any additional argument beyond this conclusion. (Docket

Entry # 30, p. 12).

17 Furthermore, the loss or damages from the water intrusions

took place on February 4, 2011 as opposed to gradually over an

extended period of time. Cf. Mulhern v. Philadelphia Indem.

Ins. Co., 802 F. Supp. 2d 317, 321 (D. Mass. 2011). To the

extent Mulhern applies the discovery rule to an insurance claim

arising out of “gradual accumulation of damage” over the course

of three and a half months, the decision does not apply to the

factual circumstances in the case at bar. See Nurse v. Omega

U.S. Ins., Inc., 38 N.E.3d at 762 n.13 (discussing Mulhern 802

F. Supp. 2d at 802).

It is well established in Massachusetts that “[a]n 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.”

Ora Catering Inc. v. Northland Ins. Co., 57 F. Supp. 3d 102, 108

(D. Mass. 2014). If courts considered every payment for an

undisputed loss as a waiver of rights to assert future rights

and defenses, insurance companies would have little incentive to

promptly distribute coverage payments. See id. Waiver

therefore occurs only when the insurer voluntarily or

intentionally relinquishes a known right. Merrimack Mut. Fire

Ins. Co. v. Nonaka, 606 N.E.2d 904, 906 (Mass. 1993).

In communications between the two parties, defendant

repeatedly reserved its rights or reasserted its rights or

defenses under the policy to challenge coverage. (Docket Entry

# 28-9) (Docket Entry # 28-10, p. 4) (Docket Entry # 28-15, p.

3) (Docket Entry # 34-2, p. 3); see Merrimack Mut. Fire Ins. Co.

v. Nonaka, 606 N.E.2d at 906. The April 2013 reservation of

rights letter states that defendant retains a “full reservation

of rights” and that “[n]one of our activities to date are to be

construed . . . as a waiver of any of the rights or defenses

available under the terms and conditions of the policy, all of

which are hereby reserved.” (Docket Entry # 28-9). The August

2013 denial letter repeats defendant’s expressed intention to

reserve its defenses. (Docket Entry # 28-10, p. 4). When

defendant sent an additional demand for examination under oath

and request for certain documents in July 2014, defendant once

again reiterated and included its right to assert a statute of

limitations defense. (Docket Entry # 28-15). The September 5,

2014 email to plaintiff’s counsel reasserts defendant’s

continued reliance on the statute of limitations. (Docket Entry

# 34-2, p. 3). Accordingly, in light of the above evidence and

the absence of contrary evidence that gives rise to a genuinely

disputed fact regarding defendant’s voluntary or intentional

waiver, plaintiff’s waiver argument does not forestall summary

judgment. See Ora Catering Inc. v. Northland Ins. Co., 57 F.

Supp. 3d at 108; Merrimack Mut. Fire Ins. Co. v. Nonaka, 606

N.E.2d at 906.

Finally, defendant argues it is not estopped from asserting

the statute of limitations defense. (Docket Entry # 28-1).

Plaintiff disagrees and contends that “genuine factual issues

remain” regarding the reasonableness of plaintiff’s reliance on

defendant’s conduct throughout the coverage dispute. (Docket

Entry # 30, p. 13). Plaintiff posits that it reasonably relied

on defendant’s “assurances of good faith in the submission and

investigative process.” (Docket Entry # 30, p. 14). Plaintiff

also points out that it “reasonably pressed its claim . . . only

after [defendant] expressed its willingness to consider the

claim.” (Docket Entry # 30).

The parties agree on the elements of an estoppel claim.

(Docket Entry # 28-1, pp. 11-12) (Docket Entry # 30, p. 13).

Succinctly stated, to prevail on an estoppel claim in

Massachusetts, a plaintiff must show: “(1) a representation

intended to induce a course of conduct on the part of the person

to whom the representation was made; (2) reasonable reliance

upon the representations by that party; and (3) detriment to

that party as a result of the reliance.” Consolo v. Bank of

Am., Civil Action No. 15-11840-DJC, 2017 WL 1739171, at *1, *4

(D. Mass. May 2, 2017); Riverdale Mills Corp. v. Fireman’s Fund

Ins. Co., 123 F. Supp. 2d at 40 (citing Turnpike Motors Inc. v.

Newbury Group, Inc., 596 N.E.2d 989, 991 (Mass. 1992)). As also

pointed out by defendant, plaintiff’s reliance must be

reasonable. See Riverdale Mills Corp. v. Fireman’s Fund Ins.

Co., 123 F. Supp. 2d at 40.

A number of courts adjudicating estoppel claims against a

statute of limitations defense examine whether the defendant’s

communication was “a representation calculated to induce the

Plaintiffs to forego suit during the two-year statute of

limitations period.” Id.; see also Kozikowski v. Toll Bros.,

Inc., 354 F.3d 16, 24 (1st Cir. 2003) (affirming summary

judgment for estoppel claim in the absence of clear assurances

that signified defendants’ intentions to carry out plans); Coady

v. Martin Lumber and Cedar Co., 167 F. Supp. 2d 166, 171 (D.

Mass. 2001) (successful estoppel claims must prove “that the

defendant lulled the plaintiff” into delaying suit past the

limitations period). As aptly argued by defendant, its conduct

of investigating the matter subject to an express reservation of

rights could not have induced plaintiff to forego filing suit.

(Docket Entry # 28-1) (discussing Riverdale Mills Corp. v.

Fireman’s Fund Ins. Co., 123 F. Supp. 2d at 39-40, at length).

The April 4, 2013 letter expressly reserved its rights and

defenses under the policy. (Docket Entry # 28-9). Two days

prior to the letter, Kearney emailed Nemet and Barrett that “the

two year statute of limitations expired on this claim that

occurred in [sic] February 4, 2011.” (Docket Entry # 28-8).

The August 8, 2013 letter stated that “no act” by defendant’s

attorneys “shall constitute a waiver or estoppel of any defense,

term, provision, or condition under [the] policy.” (Docket

Entry # 28-10) (emphasis added). This denial letter quoted

various provisions of the policy including the limitations

provision that “no one may bring legal action against the

insurance company unless . . . ‘[t]he action is brought within

two years after the date on which the direct physical loss or

damage occurred.’” (Docket Entry # 28-10, p. 4). The July 2014

letter that defendant sent requesting documents and examinations

under oath once again included a reservation of rights. (Docket

Entry # 28-15, p. 3). This letter specifically informed

plaintiff that “[a]ny and all investigations taken by” defendant

“shall not constitute a waiver of, or an estoppel to assert, any

of the terms or conditions of the policy of insurance described

above or any rights or defenses Strathmore Insurance Company may

have which may arise under applicable law, including . . .

limitations of action . . ..” (Docket Entry # 28-15, p. 3)

(emphasis added). Defendant’s conduct as a whole18 does not

amount to a representation intended to induce plaintiff’s

reliance or import reasonable reliance on the part of plaintiff.

See, e.g., Riverdale Mills Corp. v. Fireman’s Fund Ins. Co., 123

F. Supp. 2d at 40 (finding that letter from insurer stating it

had not yet decided to cover plaintiff’s loss could not support

equitable estoppel claim); cf. John Beaudette, Inc. v. Sentry

Ins. A Mutual Co., 94 F. Supp. 2d 77, 130 (D. Mass. 1999)

(denying summary judgment because insurer affirmatively

represented and unequivocally stated that coverage existed

without mentioning any reservation of rights).

To support its contention that estoppel usually requires

close factual scrutiny, plaintiff relies in part on John

Beaudette, Inc., a case that underscores the fact-specific

18 See footnote 26 and related text.

nature of estoppel claims. John Beaudette, Inc. v. Sentry Ins.,

94 F. Supp. 2d at 130. Unlike the insurer in John Beaudette,

Inc., however, defendant never affirmatively represented that

coverage would apply to the exterior damage. See id. (by

letter, “Gross wrote to JBI’s attorney and unequivocally

informed him ‘that there would be coverage for both on-site and

off-site damage and cleanup costs’” without “mention of a

reservation of rights”). To the contrary, defendant repeatedly

reserved its right to assert all rights and defenses. The

payments defendant made to cover the interior losses do not by

themselves support a finding of estoppel. The decision to

reconsider coverage was subject to a reservation of rights and,

as such, did not constitute an affirmative intention to support

coverage. See American Guarantee & Liab. Ins. Co. v. Lamond,

Civil Action No. 13-13168-RGS, 2016 WL 1312008, at *3 (D. Mass.

Apr. 4, 2016) (denying estoppel defense on summary judgment and

rejecting argument that insurance company’s failure to send

second reservation of rights letter gave rise to an estoppel);

Riverdale Mills Corp. v. Fireman’s Fund Ins. Co., 123 F. Supp.

2d at 40; Gallant v. Fed. Mut. Ins. Co., 235 N.E.2d 810, 813

(Mass. 1968). While this court recognizes the fact-intensive

nature of estoppel claims, no reasonable finder of fact could

conclude that defendant had an intention to induce plaintiff

into forgoing the limitations provision or that plaintiff’s

reliance was reasonable. See Riverdale Mills Corp. v. Fireman’s

Fund Ins. Co., 123 F. Supp. 2d at 40; John Beaudette, Inc. v.

Sentry Ins., 94 F. Supp. 2d at 130.

Where, as here, “there is no dispute as to essential

evidentiary facts controlling the application of the statute of

limitations,” summary judgment “is appropriate.” Nunheimer v.

Continental Ins. Co., 68 F. Supp. 2d at 77. The breach of

contract claim is therefore time barred pursuant to section 99’s

two-year statute of limitations provision included in the

policy. See id. Summary judgment on Count I is appropriate.

B. Declaratory Judgment

Based on the same arguments, defendant moves for summary

judgment on the declaratory judgment count. (Docket Entry #

28). In the declaratory judgment count, “[p]laintiff requests

that the Court declare that all amounts expended to repair

damage to the Complex are covered by the Policy and Plaintiff is

also entitled to interest and costs on said amount.” (Docket

Entry # 1, p. 4).

“‘(T)he operation of the Declaratory Judgment Act is

procedural only.’” Skelly Oil Co. v. Phillips Petroleum Co.,

339 U.S. 667, 671 (1950) (internal citation omitted). “Because

a declaratory judgment action is a procedural device used to

vindicate substantive rights, it is barred only if relief on a

direct claim based on such rights would also be barred.” Stone

v. Williams, 970 F.2d 1043, 1048 (2nd Cir. 1992); Int’l Ass’n of

Machinists and Aerospace Workers v. Tennessee Valley Auth., 108

F.3d 658, 668 (6th Cir. 1997) (quoting Stone v. Williams, 970

F.2d at 1048); see also Stefanick v. Planning Board of Uxbridge,

657 N.E.2d 475, 478 (Mass. App. Ct. 1995) (“permissible

expedient of a complaint for declaratory judgment . . . does not

suspend” application of statute of limitations). “A contrary

rule would allow a plaintiff to ‘make[e] a mockery of the

statute of limitations by the simple expedient of creative

labeling.’” Int’l Ass’n of Machinists & Aerospace Works v.

Tennessee Valley Auth., 108 F.3d at 668 (quoting Gilbert v. City

of Cambridge, 932 F.2d 51, 57 (1st Cir. 1991)).

Here, there is no reason to find the declaratory judgment

claim timely and not subject to the two-year statute of

limitations in section 99 when the accompanying breach of

contract claim is untimely as subject to the two-year statute of

limitations in section 99. See Page v. LeRoux, 685 N.E.2d 1205,

1207 n.2 (Mass. App. Ct. 1997) (complaint seeking declaratory

relief as to ownership of property interest under partnership

agreement subject to six-year limitations period applicable to

breach of contract claims); see also Gilbert v. City of

Cambridge, 932 F.2d at 58 (if “‘a claim for declaratory relief

could have been resolved through another form of action which

has a specific limitations period, the specific period of time

will govern’”) (internal citations omitted).

II. Defendant’s Motion to Strike

Separately, defendant moves to strike Amoruso’s expert

report, affidavit, and testimony at trial.19 (Docket Entry # 26)

(Docket Entry # 34, p. 2). Defendant seeks to strike Amoruso’s

opinions because they: (1) constitute legal conclusions

regarding questions of law; and (2) will not assist a trier of

fact in understanding the evidence or determining a disputed

material fact. (Docket Entry # 26).

DISCUSSION

A. Expert Report

With respect to the expert report, plaintiff contends that

because defendant filed the motion to strike the report before

moving for summary judgment, it is premature. (Docket Entry #

27). Plaintiff submits that it should have an opportunity to

review a summary judgment motion first before evaluating the

19 In a reply brief, defendant seeks to strike Amoruso’s

affidavit because it reiterates the same opinions found in the

expert report. (Docket Entry # 34, p. 2). Plaintiff did not

object to the inclusion of the affidavit in the motion to strike

by seeking leave to file a sur-reply, and the opinions in the

affidavit overlap, to a degree, the opinions in the affidavit.

In this court’s discretion, the motion to strike therefore

applies to Amoruso’s expert report, his affidavit, and his

testimony as trial.

evidence it should present in opposition to such a motion.

(Docket Entry # 27).

Defendant filed the motion to strike more than two weeks

before filing the motion for summary judgment. Notably, neither

plaintiff’s memorandum in opposition to summary judgment nor its

LR. 56.1 statement of material facts cite to Amoruso’s expert

report. (Docket Entry # 31). Instead, plaintiff relies on the

affidavit by Amoruso that plaintiff subsequently submitted.

(Docket Entry # 30-1). The motion to strike the expert report

filed on October 16, 2017 is moot to the extent defendant seeks

“to preclude” its use to oppose defendant’s summary judgment

motion. (Docket Entry # 26). Although the motion to strike

also seeks to preclude Amoruso from testifying at trial (Docket

Entry # 26), the allowance of the summary judgment motion moots

this request.

B. Affidavit

Next, this court addresses defendant’s request to strike

Amoruso’s affidavit, which plaintiff filed as part of the

summary judgment record on November 21, 2017. (Docket Entry #

30-1) (Docket Entry # 34, p. 2). In response to defendant’s

aforementioned arguments, plaintiff submits that: (1) Amoruso’s

“‘knowledge, skill, experience, training, or education’” in the

insurance industry will assist a trier of fact to understand and

apply the policy; (2) Amoruso can testify about industry

practice, including how a particular insurance policy is

structured and how ambiguous terms are typically understood in

other insurance policies; and (3) excluding Amoruso’s expert

opinion is a drastic remedy that is avoidable by limiting his

testimony to certain customs and usages in the insurance

industry. (Docket Entry # 27).

Federal Rule of Evidence 702 (“Rule 702”) governs the

admissibility of expert testimony, which, in pertinent part,

states:

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert

by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based upon sufficient facts or data, (2)

the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and

methods reliably to the facts of the case.

Fed. R. Evid. 702. In order to meet the aims of Rule 702, the

court acts as a gatekeeper by ensuring that the expert opinion

“‘both rests on a reliable foundation and is relevant to the

task at hand.’” Milward v. Rust-Oleum Corp., 820 F.3d 469, 473

(1st Cir. 2016) (affirming district court’s exclusion of expert

testimony under Rule 702 and allowance of summary judgment)

(citation omitted); see Daubert v. Merrell Dow Pharm., Inc., 509

U.S. 579, 591 (1993) (Rule 702’s requirement that expert

testimony “‘assist the trier of fact’” is concerned primarily

with relevance); Pages-Ramirez v. Ramirez-Gonzalez, 605 F.3d

109, 115 (1st Cir. 2010).

“‘It is black-letter law that it is not for witnesses to

instruct the jury as to applicable principles of law, but for

the judge.’” Bacchi v. Mass. Mut. Life Ins. Co., 2016 WL

1170958, *1, *2 (D. Mass. March 23, 2016) (quoting Nieves-

Villanueva v. Soto-Rivera, 133 F.3d 92, 99 (1st Cir. 1997)).

Accordingly, expert testimony that discusses “purely legal

issues is rarely admissible.” Nieves-Villanueva v. Soto-Rivera,

133 F.3d at 99; see Bacchi v. Mass. Mut. Life Ins. Co., 2016 WL

1170958, at *4 (striking expert report devoted to discussing

legislative history of Massachusetts statute); OneBeacon Am.

Ins. Co. v. Commercial Union Assurance Co. of Canada, 804 F.

Supp. 2d 77, 83 (D. Mass. 2011) (striking expert affidavit

seeking to interpret insurance policy’s renewal period because

it amounted to legal opinion); Ji v. Bose Corp., 538 F. Supp. 2d

354, 360 (D. Mass. 2008) (striking commentary on background

legal principles, bald legal conclusions, and opinions regarding

legal force of each party’s actions); Carrier v. Am. Bankers

Life Assur. Co. of Fla., Civil Action No. 05-430-JD, 2007 WL

3124653, at *2 (D.N.H. Oct. 25, 2007) (excluding expert’s

opinion explaining “legal requirements of state law for credit

insurance policies” as “merely parrot[ing] the law, which is the

province of the court”). “An expert cannot simply opine as to

his or her view of a disputed point of law.” Adams v. New

England Scaffolding, Inc., Civil Action No. 13-12629-FDS, 2015

WL 9412518, at *6 (D. Mass. Dec. 11, 2015); see also RTR Techs.,

Inc. v. Helming, 707 F.3d 84, 93 (1st Cir. 2013) (“‘expert

opinion must be more than a conclusory assertion about ultimate

legal issues’” in order to thwart a motion for summary

judgment”) (citation omitted).

Although “there is no blanket prohibition on expert

testimony concerning the law,” Adams v. New England Scaffolding,

Inc., Civil Action No. 13-12629-FDS, 2015 WL 9412518, at *5 (D.

Mass. Dec. 22, 2015), a “district court has broad discretion to

exclude expert opinion evidence about the law that would impinge

on the roles of the judge and the jury.” Pelletier v. Main St.

Textiles, LP, 470 F.3d 48, 54 (1st Cir. 2006). Simply stated,

expert testimony should “help the trier of fact” in

comprehending “a fact in issue” or the factual evidence. Fed.

R. Evid. 702; see United States v. Pena-Santo, 809 F.3d 686, 694

(1st Cir. 2015) (“‘[f]or expert testimony to be admissible under

Fed. R. Evid. 702, it must “be relevant to the task at hand” and

helpful to the jury in its deliberations’”). Because the jury

does not decide “pure questions of law, such testimony is not

helpful to the jury and so does not fall within the literal

terms of Fed. R. Evid. 702.” Nieves-Villanueva v. Soto-Rivera,

133 F.3d at 100. For example, an expert’s opinion interpreting

exclusionary provisions, including whether an exclusion

endorsement superseded an exclusion, invades the court’s

province to interpret the language of the policy. Maine State

Properties, LLC v. Chubb Custom Ins. Co., No. 2:15-cv-140-JHR,

2016 WL 8672924, at *14 (D. Me. July 8, 2016). Accordingly, the

court struck the opinion as “irrelevant and unhelpful to the

trier of fact.” Id.

Although “an expert may not offer an opinion concerning a

legal question,” he may testify about industry standards. Levin

v. Dalva Bros., Inc., 459 F.3d 68, 79 (1st Cir. 2006). Hence,

“in general, the customs and practices of an industry are proper

subjects for expert testimony.” Pelletier v. Main Street

Textiles, LP, 470 F.3d at 55; accord Massachusetts Mut. Life

Ins. Co. v. DB Structured Prod., Inc., Civil Action No. 11-

30039-MGM, 2015 WL 2130060, at *13 (D. Mass. May 7, 2015)

(“experts may opine as to industry customs and practices, if

sufficiently qualified”). “The line between testimony regarding

what the law requires and testimony describing how an industry

practice typically operates is not always clear.” Ji v. Bose

Corp., 538 F. Supp. 2d at 358. Testimony from an expert that

describes industry practices may incorporate the expert’s

“understanding of the law,” but “the expert cannot testify as to

what the law requires.” Bacchi v. Mass. Mut. Life Ins. Co.,

2016 WL 1170958, at *3 (allowing expert testimony about specific

characteristics of industry practice and striking portions of

opinion containing legal analysis); see also Nieves-Villanueva

v. Soto-Rivera, 133 F.3d at 101 (considering situations where

testimony on “rare, highly complex and technical matters” that

incorporates limited legal discussion could be admissible);

Adams v. New England Scaffolding, Inc., Civil Action No. 13-

12629-FDS, 2015 WL 9412518, at *5-7.

With more than 45 years of experience in the insurance

industry, Amoruso undeniably possesses the knowledge and ability

to deliver competent testimony on common insurance practices.

(Docket Entry # 30-1). Turning to the content of the opinions,

the ninth paragraph of Amoruso’s affidavit opines “that the

contractual two-year limit for filing this action . . . does not

apply” because it appears in the standard fire policy

endorsement and the “loss was not a fire-related loss.” (Docket

Entry # 30-1, ¶ 9). As discussed above, case law and

Massachusetts statutes establish the contrary. The opinion is

not helpful to the trier of fact regarding a factual issue.

Rather, in this instance it encroaches on the role of this court

to determine the law.

For similar reasons, the same result applies to paragraph

ten. In evaluating the insurance policy’s use of the

Massachusetts standard fire policy provisions, Amoruso states

the following:

I agree that for claims handling and coverage purposes the

commercial property provisions of the Policy apply here,

and I do not believe that Mr. Baroncini or Strathmore

should have considered anything contained within the fire

coverage provisions of the Policy. It is my professional

opinion that proper handling of this claim by Strathmore

would not have referenced or relied upon the Massachusetts

Standard Fire Policy Provisions because this case does not

involve a fire loss.

(Docket Entry # 30-1, ¶ 10). In this paragraph, Amoruso states

that defendant should not rely on the Massachusetts standard

fire policy because the loss did not involve a fire loss. He is

opining that the standard policy provisions in the statute and

in the policy do not apply because this case does not involve a

fire loss. Under the case law, as recited previously, courts

apply the statutory language to non-fire losses. Thus, like the

distinction drawn in Pelletier between an expert testifying

about what the law means and an expert testifying about the law

as a factual issue, for example, whether defendant’s reliance on

tax law was wilful and intentional, Amoruso’s testimony falls

into the former category. See Pelletier v. Main Street

Textiles, LP, 470 F.3d at 55 (citing United States v. Garber,

607 F.2d 92, 96-98 (1st Cir. 2003)).20 Amoruso is presenting an

20 The court in Garber framed the intersection between the facts

and the law as follows:

The government must demonstrate that the defendant

willfully concealed and omitted from her return income

which she knew was taxable. When the taxability of

unreported income is problematical as a matter of law, the

unresolved nature of the law is relevant to show that

alternative opinion to this court’s determination of the law and

the determination of the Massachusetts cases cited previously

regarding the application of the statutory language in section

99 to non-fire losses. The statutory terms in the policy

pertaining to the commencement of suit “within two years from

the time the loss occurred” are plain and unambiguous, and case

law establishes their application to non-fire losses. Here

again, the opinion usurps the role of this court as the arbiter

of the law and impinges on the role of this court in determining

what the law means in the context of a non-fire loss. See id.

at 54. In this court’s discretion, the opinion in paragraph ten

is stricken from the summary judgment record. See Maine State

Properties, LLC v. Chubb Custom Ins. Co., 2016 WL 8672924, at

*14; S.E.C. v. Goldsworthy, 2008 WL 2943398, at *4 (stating it

is inappropriate “to have experts opine ‘as to the legal

obligations of the parties under the contract’” and “is

particularly inappropriate in this case, where the contract does

not require ‘scientific, technical, or other specialized

knowledge’ to interpret its terms”).

defendant may not have been aware of a tax liability or may

have simply made an error in judgment.

United States v. Garber, 607 F.2d at 98 (finding the expert

testimony appropriate). Here, the law is not unresolved and

Amoruso’s testimony does not concern the interpretation of the

law as a factual issue in this case. See Pelletier v. Main

Street Textiles, LP, 470 F.3d at 55.

In paragraph 11, Amoruso discusses the policy’s reliance on

section 99’s limitations language. (Docket Entry # 30-1, ¶ 11).

Citing the belief of Baroncini, defendant’s vice president of

property claims, that Massachusetts law requires the

“‘supersede’ language,” the affidavit states:

It is my professional opinion that Mr. Baroncini is

mistaken. The “supersede” language quoted above does not

appear in the relevant statute, Mass. G.L.c. 175, § 99, and

it is my professional opinion that for claims handling and

coverage purposes, the Massachusetts Standard Fire Policy

does not apply, and should not be applied, to non-fire

losses such as those in this case. Based upon my

experience, understanding and knowledge of claims practices

by insurers in Massachusetts, they would not apply the

Massachusetts Fire Policy conditions to a non-fire loss.

(Docket Entry # 30-1, ¶ 11). For reasons stated with respect to

paragraph ten, including the distinction drawn in Pelletier, 470

F.3d at 55, the opinion in paragraph 11 intrudes upon this

court’s role in deciding and determining the law. The

contractual superceding language that certain provisions are

“void” and that the provisions of the standard fire policy

“shall apply instead” is clear and unambiguous contractual

language in the policy, as determined by this court. It

requires no expert testimony, which both impinges on this

court’s role and is not helpful to the trier of fact. It is

therefore stricken from the summary judgment record. See Maine

State Properties, LLC v. Chubb Custom Ins. Co., 2016 WL 8672924,

at *8, *14 (interpreting whether exclusion endorsement

superseded an exclusion invades court’s province to interpret

policy language of the policy); S.E.C. v. Goldsworthy, 2008 WL

2943398, at *4; see also Pelletier v. Main Street Textiles, LP,

470 F.3d at 54-56.

Next, in paragraph 13 Amoruso discusses the policy’s

limitations period in the context of the Tolling Agreement and

when plaintiff “discovered” the “concealed damage.” (Docket

Entry # 30-1, ¶ 13). In pertinent part, paragraph 13 states:

I believe that under standard claims handling practices by

insurers in Massachusetts, this action would be treated as

timely since under the parties’ Tolling Agreement . . .

this action would be treated as commenced less than two (2)

years after the concealed damage that is the subject of

this action was discovered.

(Docket Entry # 30-1, ¶ 13). Thus, in examining the appropriate

“claims handling practices” of the limitations provision in the

industry, Amoruso arrives at the legal conclusion that the

action would properly toll in two years after the exterior

damage “was discovered.” (Docket Entry # 30-1, ¶ 13).

First, including the opinion in paragraph 13 in the summary

judgment record does not alter the outcome of the summary

judgment motion. As explained previously, the statute of

limitations in section 99 included in the policy expired prior

to the effective date of the Tolling Agreement. Second,

Amoruso’s description of the “standard claims handling

practices” that “would treat” the loss as commenced is incorrect

because a number of Massachusetts cases do not apply the two-

year limitations period in section 99 contained in an insurance

policy as commencing when the damage “was discovered” (Docket

Entry # 30-1, ¶ 13). See Nunheimer v. Continental Ins. Co., 68

F. Supp. 2d at 78; Goldsmith v. Reliance Ins. Co., 228 N.E.2d at

706; see also Pelletier v. Main Street Textiles, LP, 470 F.3d at

54-55; Adams v. New England Scaffolding, Inc., 2015 WL 9412518,

at *6; Nieves-Villanueva v. Soto-Rivera, 133 F.3d at 101. It is

therefore stricken as an impermissible legal conclusion as well

as unhelpful to the trier of fact.

Finally, in paragraph 14 Amoruso opines about the issues of

waiver and estoppel. (Docket Entry # 30-1, ¶ 14). In pertinent

part, paragraph 14 states:

Based upon my professional experience, there are times when

an insurance company must pay a claim because it is

estopped to deny coverage, or has waived a contractual or

other defense to payment. Based upon the contents of the

Langweber and Quinby Affidavits filed herewith, it is my

professional opinion that Strathmore is estopped to deny

coverage, or has waived a contractual or other defense to

payment. Based upon my experience, understanding and

knowledge of claims practices by insurers in Massachusetts,

they would not apply the Massachusetts Fire Policy

conditions to a non-fire loss. Based on my more than 30

years of experience, an insurer in Massachusetts would have

made a payment in the claim at issue in this case.

(Docket Entry # 30-1, ¶ 14). A trier of fact, however, is fully

capable of drawing his or her own conclusion from the record

regarding the existence of an estoppel or waiver. As explained

by the court in Baumann, “‘it would not assist the trier of fact

for the expert to offer’” an opinion that an insurer “‘is barred

by estoppel from denying coverage’” because “‘a jury is fully

qualified to make on its own determination from the evidence

presented,’” and “‘such testimony would not assist the trier of

fact.’” Baumann v. Am. Family Mut. Ins. Co., 836 F. Supp. 2d

1196, 1202 (D. Colo. 2011) (quoting Lone Star Steakhouse and

Saloon, Inc. v. Liberty Mutual Ins. Group, 343 F. Supp. 2d 989,

1015 (D. Kan. 2004)). Here too, the opinions in paragraph 14

contain factual conclusions about claims practices of

Massachusetts insurers that would not assist a trier of fact.

Exercising this court’s discretion, the opinions in paragraph 14

are stricken from the summary judgment.

In the alternative, even if this court considered the

opinions in paragraph 14, they do not create a genuinely

disputed issue of material fact and do not alter the decision to

allow summary judgment. In the context of the repeated

assertions and statements that defendant was reserving its

rights and defenses and that no act shall constitute an estoppel

or waiver, Amoruso’s opinions in paragraph 14 do not create a

genuinely disputed material fact vis-à-vis either estoppel or

waiver.

As a final mater, plaintiff argues that Amoroso’s opinion

should be admitted into evidence because it will assist this

court and finders of fact to understand the “technical,

specialized terminology” embedded within a 166-page insurance

policy. (Docket Entry # 27, p. 8). According to plaintiff,

Amoruso’s testimony will provide helpful guidance to assist the

trier of fact to “navigat[e] through a complicated and

sophisticated insurance agreement.” (Docket Entry # 27, p. 8).

This dispute, however, is not concerned with the bulk of the

language in the policy. Rather, it primarily involves the

contractual superceding language and the statutory language that

commences the limitations period at “the time the loss

occurred.” (Docket Entry # 28-4, pp. 107, 110). Moreover, the

contested areas of Amoruso’s opinions are narrowly confined to a

discrete set of issues, namely, the policy’s inclusion of

section 99 limitations language, the effect of the Tolling

Agreement, and whether defendant waived or estopped itself from

asserting the two-year statute of limitations in the policy.

(Docket Entry # 30-1, ¶¶ 10-11, 13-14). Furthermore, except for

the factual conclusions regarding estoppel and waiver which the

trier of fact is fully capable of determining without the

potentially confusing and perceived significant of an expert’s

opinions, the central issues in the summary judgment motion are

legal issues involving construction of unambiguous statutory and

contractual terms in the policy, see Nurse v. Omega U.S. Ins.,

Inc., 38 N.E.3d at 763-64, application of Massachusetts case

law, and statutory construction. Amoruso’s opinions will not,

as discussed above, assist the trier of fact, and they impinge

on the role of this court.

III. Motion for Leave to Amend Complaint

Plaintiff filed the motion for leave to amend the complaint

on January 2, 2018. (Docket Entry # 36). Plaintiff therefore

seeks to amend the complaint after defendant moved for summary

judgment on October 31, 2017. (Docket Entry # 28). As

previously noted, the amended complaint seeks to include two

additional counts for violation of chapters 93A and 176D.

(Docket Entry # 36-1). Defendant opposes the motion because:

(1) the 93A and 176D claims are untimely; (2) chapter 176D does

not provide a private cause of action; (3) undue and prejudicial

delay; and (4) futility. (Docket Entry # 38). Plaintiff did

not seek leave to file a reply brief or otherwise specifically

address the futility of the chapter 93A and chapter 176D claims

or the absence of a private cause of action under chapter 176D.

See Curet-Velazquez v. ACEMLA de Puerto Rico, Inc., 656 F.3d 47,

54 (1st Cir. 2011) (“[a]rguments alluded to but not properly

developed before a magistrate judge are deemed waived”).21

Separately, although plaintiff does not expressly refer to

section 11 in the proposed amended complaint or in the motion to

amend, the proposed chapter 93A claim raises a section 11 claim

21 This court addresses the merits to complete the record.

because it alleges that “Plaintiff and Defendant have been

engaged in trade or commerce” in Massachusetts “within the

meaning of chapter 93A” and “caused Plaintiff to suffer a loss

of money.”22 (Docket Entry # 36-1, ¶¶ 44-45) (emphasis added);

see Mass. Gen. Laws ch. 93A, § 11.

Turning to the allegations of the chapter 93A claim, they

incorporate all of the previous allegations regarding the

chapter 176D claim and purported chapter 176D violation in the

proposed amended complaint. (Docket Entry # 36-1, ¶ 43). The

proposed amended complaint alleges that “notwithstanding the

passage of time,” defendant failed to pay the “claim once

liability and damages” became “clearly established.” (Docket

Entry # 36-1, ¶ 46). Defendant also allegedly misrepresented

its position as well as the “true deadline” to make a claim for

the “Concealed Damage.” (Docket Entry # 36-1, ¶¶ 40, 43).

Based on defendant’s assurances “that the parties would work

toward” an “amicable resolution,” plaintiff “delayed filing

suit,” according to the proposed amended complaint. (Docket

Entry # 36-1, ¶¶ 36, 43). It further alleges that “Plaintiff

22 Violations of chapter 176D constitute “probative evidence” as

opposed to “per se proof, of egregious business misconduct” in a

section 11 claim. Peabody Essex Museum, Inc. v. U.S. Fire Ins.

Co., 802 F.3d 39, 54 (1st Cir. 2015). In contrast, a consumer

asserting a section nine claim “may recover for violations of

G.L. c. 176D, § 3, cl. 9, without regard to whether the

violation was unlawful under G.L. c. 93A, § 2.” Polaroid Corp.

v. Travelers Indem. Co., 610 N.E.2d 912, 917 (Mass. 1993).

and its counsel were never advised or led to believe that

Defendant would refuse” to pay the claim. (Docket Entry # 36-1,

¶¶ 34, 43). Defendant purportedly “misrepresented the true

purpose for its ‘investigation[,]’ which was to search for

additional reasons to deny the claim[,]” and it engaged in

“unfair settlement practices.” (Docket Entry # 36-1, ¶¶ 40, 42,

43). Finally, defendant “knowingly induced [p]laintiff to

believe that [d]efendant intended to adjust and make payment on

its claim for Concealed Damage caused by the Weather Events . .

..” (Docket Entry # 36-1, ¶ 45). In turn, plaintiff

purportedly incurred significant costs and expenses as it

“jump[ed] through the hoops” that defendant set out during the

investigation. (Docket Entry # 36-1, ¶ 48).

STANDARD OF REVIEW: FUTILITY

It is well settled that futility constitutes an adequate

basis to deny amendment. See generally Maine State Bldg. and

Constr. Trades Council, AFL-CIO v. United States Dep’t of Labor,

359 F.3d 14, 19 (1st Cir. 2004). The proper standard to gauge

futility depends on the posture of the action. See Hatch v.

Dep’t for Children, Youth, and Their Families, 274 F.3d 12, 19

(1st Cir. 2001). Where, as here, a plaintiff seeks leave to

amend after the filing of a summary judgment motion, “‘the

proposed amendment must be not only theoretically viable but

also solidly grounded in the record.’” Somascan, Inc. v.

Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir.

2013) (quoting Hatch v. Dep’t for Children, Youth, and Their

Families, 274 F.3d at 19). In such circumstances, “‘an

amendment is properly classified as futile unless the

allegations of the proposed amended complaint are supported by

substantial evidence.’” Id. (quoting Hatch v. Dep’t for

Children, Youth, and Their Families, 274 F.3d at 19).

FACTUAL BACKGROUND

Having already summarized the evidence in the record, this

court only briefly recounts pertinent facts. At the end of

January 2013, Grosser, Rodman’s vice president, sent the email

to Barrett “confirming” Barrett’s inquiry “about the merits of

filing a supplemental claim related to the large ice dam loss.”

(Docket Entry # 28-6). As discussed above, the two-year statute

of limitations expired shortly thereafter in early February

2013. On April 2, 2013, Barrett sent the email to Rodman

stating that “The Board would like to investigate opening a

supplemental claim associated with the prior ice dam claim” and

asking for an adjuster to contact him. (Docket Entry # 28-7).

The next morning, Kearney, the general adjuster, sent the email

to Nemet at Rodman, Barrett at Crowninshield, and Auli,

plaintiff’s senior claims examiner, stating that “the two year

statute of limitations has expired on this claim that occurred

in February 4, 2011.” (Docket Entry # 28-8). In the email less

than two hours later, Nemet asked Kearney “to revisit that

answer that you just gave me about the statute being up” and

that “there is a possible supplemental claim” in light of

Grosser’s January 31, 2013 email, which she forwarded,

confirming the inquiry about the merits on filing a supplemental

claim.23 (Docket Entry # 30-2).

The next day, April 4, 2013, Kearney advised plaintiff and

Barrett that defendant will investigate the supplemental claim

“under a full reservation of rights due to [the] question of

coverage.” (Docket Entry # 28-9) (emphasis added). Eight days

later, Kearney asked Auli for the authority to obtain “the

services of AEGIS Engineering to support the reopening of” the

supplemental damages claim. (Docket Entry # 30-2). Baroncini

approved the request the same day. (Docket Entry # 30-2).24 In

the August 8, 2013 letter, defendant denied the supplemental

claim for the exterior damage stating it completed the

investigation. (Docket Entry # 28-10). Langweber, however,

states by affidavit that plaintiff denied the claim “without

performing an investigation.” (Docket Entry # 30-2). In

23 In the context of the summary judgment motion as well as the

proposed chapter 93A claim, this court does not consider the

emails for the truth of the matters asserted therein.

24 This email chain provides a basis for the averments by

Langweber and Quinby that “Strathmore advised” Rodman and

plaintiff “in April 2013 that the Meadows was not precluded from

making a claim for repair of the Concealed Damage.” (Docket

Entry ## 30-2, 30-3) (citing attached exhibit A).

December 2013, Barrett sent Auli the previously noted letter

stating that the “Condominium Association does not accept the

findings in the rejection letter” sent on August 8, 2013.

(Docket Entry # 28-11).

In the May 30, 2014 letter to Auli, Quinby identified his

law firm as plaintiff’s counsel, characterized the denial as

unjustified, and stated his belief that the exterior damage to

the building envelope is a covered claim. (Docket Entry # 28-

12). After Quinby asked defendant to reconsider the denial,25

plaintiff “agreed to do so,” according to Langweber. (Docket

Entry ## 28-12, 30-2). The July 30, 2014 letter from

defendant’s counsel to plaintiff requests various records and an

examination of a corporate representative in connection with

defendant’s investigation. (Docket Entry # 28-15).

Meanwhile, plaintiff hired the aforementioned experts as

well as undertook and completed the repair at its own expense.

(Docket Entry ## 302-, 30-3). Plaintiff spent considerable time

and effort and “incurred substantial fees for professional

assistance” to provide plaintiff with the information and the

documents it requested. (Docket Entry ## 30-2). Langweber

attests he was in active communication with Rodman about the

25 The averment does not refer to Quinby by name. Rather,

Langweber attests that “After counsel for Meadows requested that

Strathmore reconsider its denial of the claim for Concealed

Damage, Strathmore agreed to do so.” (Docket Entry # 30-2).

claim for exterior damage. (Docket Entry # 30-2). Quinby

similarly avers he “was in frequent contact with” defendant’s

counsel throughout the investigation. (Docket Entry # 30-3).

According to Quinby, defendant’s counsel “repeatedly assured”

him that plaintiff “was going to attempt to amicably resolve the

Meadow’s claim” after completing the investigation,

“notwithstanding its initial denial of the claim,” i.e., the

August 8, 2013 denial letter. (Docket Entry ## 28-10, 30-3).

Quinby further attests that plaintiff “delayed filing suit in

reliance upon assurances of Strathmore’s counsel that the

parties would work toward . . . an amicable resolution.”26

(Docket Entry # 30-3). Quinby and Langweber uniformly state

that, if plaintiff “had . . . suggested that it would be denying

the entirety of the Meadow’s claim for Concealed Damage, the

Meadows would have” filed suit “immediately.” (Docket Entry ##

30-2, 30-3).

The August 2013 denial letter, however, states that “no act

of any agent” or employee of plaintiff, including its attorneys,

“shall constitute a waiver or estoppel” and that plaintiff

reserves its defenses. (Docket Entry # 28-10) (emphasis added).

The four-page letter quotes various provisions of the policy,

26 To be clear, in adjudicating the summary judgment motion,

this court has considered all of the above evidence, including

the affidavits, and construed the record in plaintiff’s favor in

denying the motion.

including the two-year limitations provision. (Docket Entry #

28-10). The July 30, 2014 letter devotes three paragraphs to

defendant’s reservations of its rights, explicitly noting the

“limitations of action.” (Docket Entry # 28-15). Like the

admonition in the August 2013 denial letter, the July 2014

letter states that all investigations undertaken by defendant

and its authorized representatives to investigate or attempt to

adjust any claim “shall not constitute a waiver” or an estoppel

of the terms, rights, and defenses under the policy. (Docket

Entry # 28-15). In the September 5, 2014 email to Quinby,

defendant’s counsel states that “GNY would consider agreeing” to

a tolling agreement “so long as the tolling agreement does not

serve to revive any expired statute of limitations.” (Docket

Entry # 34-2) (emphasis added). The parties entered into the

Tolling Agreement effective September 1, 2014, which excluded

the time thereafter until 30 days after defendant issued a

decision regarding the supplemental claim for exterior damage.

(Docket Entry # 28-13). Defendant denied the claim for exterior

damage on November 17, 2016 and plaintiff filed suit 30 days

thereafter. (Docket Entry # 28-14).

DISCUSSION

A. Chapter 93A Claim

As previously noted, defendant contends that the chapter

93A claim is futile. Beyond noting that the chapter 93A and

176D claims do not raise new factual issues and that it

discussed all the supporting facts in the summary judgment

papers, plaintiff does not address the futility of the chapter

93A claim.

Turning to the task, it is well settled that “[a]n

insurance company which in good faith denies a claim of coverage

on the basis of a plausible interpretation of its insurance

policy is unlikely to have committed a violation of G.L. c.

93A.” Lumbermens Mutual Cas. Co. v. Offices Unlimited, Inc.,

645 N.E.2d 1165, 1169 (Mass. 1995) (also stating that

“Lumbermens went beyond a mere plausible interpretation of the

policy and denied coverage based on a legally correct

interpretation of the policy”). Indeed, like the plaintiff in

Lumbermens, defendant “went beyond a mere plausible

interpretation of the policy and denied coverage based on a

legally correct interpretation of the policy.” Id. at 1169-

1170.

Defendant had a viable and convincing reason to deny

coverage on the basis that plaintiff did not file suit within

two years of the time of the loss. “In such circumstances there

are no facts” to “support a claim that” defendant “acted

unfairly or deceptively.” Lumbermens Mutual Cas. Co. v. Offices

Unlimited, Inc., 645 N.E.2d at 1170 (adjudicating section 11

chapter 93A claim). The circumstances in the case at bar

therefore fall comfortably within the “general rule” that “an

insurance company does not act unfairly or deceptively within

the meaning of G.L. c. 93A, § 2, with respect to a claim made

under a policy of insurance simply by making a legally correct

disclaimer of coverage.” Jet Line Services, Inc. v. Am.

Employers Ins. Co., 537 N.E.2d 107, 114 (Mass. 1989).

Furthermore, defendant did not string plaintiff along or

engage in deceptive conduct that gave the impression it would

pay the claim. (Docket Entry # 28-8, p. 1) (Docket Entry # 28-

9) (Docket Entry # 28-10, p. 4) (Docket Entry # 28-15, p. 3).

It repeatedly informed plaintiff, Barrett, and/or Quinby that it

reserved its right to deny coverage, including referring to the

limitations of action and the two-year time period to commence

an action. (Docket Entry ## 28-8, 28-9, 28-10) (Docket Entry #

28-15, p. 3) (Docket Entry # 34-2, p. 3). Substantial evidence

of deceptive conduct or “‘stringing out the process’” of the

investigation is therefore decidedly absent. See Peabody Essex

Museum, Inc. v. U.S. Fire Ins. Co., 802 F.3d at 54 (setting out

at length the applicable section 11 standard in business context

as including unfair settlement practices defined in chapter

176D, section three). Defendant did not unreasonably delay an

investigation and accommodated plaintiff by entering in the

Tolling Agreement. See House of Clean, Inc. v. St. Paul Fire

and Marine Ins. Co., Inc., 775 F. Supp. 2d 296, 300 (D. Mass.

2011) (denying motion to amend complaint under plaintiff-

friendly Fed. R. Civ. P. 12(b)(6) standard to include chapter

93A claim alleging that insurance company delayed coverage

investigation for three years and failed to reimburse plaintiff

for defense-related costs). Defendant likewise did not engage

in “nefarious leveraging conduct,” Peabody Essex Museum, Inc. v.

U.S. Fire Ins. Co., 802 F.3d at 55, or breach the insurance

agreement, let alone commit a breach rising to the level of a

section 11 chapter 93A violation. See City of Revere v.

Boston/Logan Airport Assocs., LLC, 416 F. Supp. 2d 200, 208-09

(D. Mass. 2005) (“a simple, or even intentional, breach is

insufficient in itself to constitute an unfair or deceptive

trade practice under Chapter 93A”). The document requests in

July 2014 were reasonable in light of the asserted repair costs

“estimated to be $7.75 million” by plaintiff in May 2014.

(Docket Entry ## 28-12, 28-15). In the context of the entire

record, defendant acted fairly and did not engage in any

actionable misrepresentation that would provide substantial

evidence of a section 11 chapter 93A claim. Coverage for the

claim was never reasonably clear. Rather, it was absent.

Defendant’s conduct in its entirety as set out in the

record does not rise to a “level of an ‘extreme or egregious’

business wrong” or other “similar level of ‘rascality,’ that

raises ‘an eyebrow of someone inured to the rough and tumble’”

world of commerce. Peabody Essex Museum, Inc. v. U.S. Fire Ins.

Co., 802 F.3d at 54. Where, as here, substantial evidence does

not establish that defendant’s conduct violates chapter 93A,

section 11, the proposed claim is futile.27 Finally, in making

this finding this court considered the chapter 176D violations

alleged in the proposed amended complaint and summarized above.

Substantial evidence in the record does not support a chapter

176D violation that could be used as probative evidence of a

section 11 chapter 93A claim.

B. Chapter 176D Claim

Defendant maintains that the chapter 176D claim is futile

because chapter 176D does not provide a separate cause of

action. (Docket Entry # 38, p. 4) (citing Silva v. Steadfast

Ins. Co., 35 N.E.3d 401 (Mass. App. Ct. 2015)). Plaintiff does

not address the argument. See Curet-Velazquez v. ACEMLA de

Puerto Rico, Inc., 656 F.3d at 54.

The court in Silva extensively discusses the relationship

between chapter 93A and chapter 176D. Silva v. Steadfast Ins.

Co., 35 N.E.3d at 405-404. As explicitly stated by the court in

Silva, “To proceed against an insurer who has violated G.L. c.

176D, § 3(9), a plaintiff must bring a claim under G.L. c. 93A,

§ 9 or § 11.” Id. at 405. Although a court may rely on a

27 It is therefore not necessary to address defendant’s other

arguments relative to the chapter 93A claim.

chapter 176D violation as evidence of an unfair business

practice for the purpose of a section 11 claim, liability

arises, if at all, under sections two and 11. Id. at 405, 407-

408 (noting, in context of unfair settlement allegation in which

“liability has become reasonably clear” under chapter 176D,

section 3(9), “the question is whether Steadfast’s failure to

make a postjudgment settlement offer constituted a violation of

G.L. c. 93A, §§ 2 and 11”). In contrast, section nine of

chapter 93A allows section nine consumer plaintiffs “to bring c.

93A claims alleging violations of c. 176D without regard to

whether those violations constitute an unfair business practice

under c. 93A, § 2.”28 Id. at 406. Hence, “while private

individuals bringing claims for unfair and deceptive acts and

practices under Mass. Gen. Laws ch. 93A, §§ 2 and 9 may recover

for violations of Mass. Gen. Laws ch. 176D, § 3(9), which

defines unfair claim settlement practices, business entities

such as [the plaintiff] may proceed only under ch. 93A, § 11.”

Metropolitan Property & Casualty Ins. Co. v. Boston Regional

Physical Therapy, Inc., 538 F. Supp. 2d 338, 343 (D. Mass.

2008).

As a section 11 business claimant, plaintiff therefore does

not have a separate cause of action for a chapter 176D

28 See footnote 22.

violation. Rather, it must proceed under section 11. As

explained in the previous section, the chapter 93A claim,

including the purported violations of section 176D in the

proposed amended complaint, do not rise to a section 11

violation. The chapter 176 “claim” is therefore futile.

CONCLUSION

In accordance with the foregoing discussion, defendant’s

motion to strike expert opinion (Docket Entry # 26) and motion

for summary judgment (Docket Entry # 28) are ALLOWED.

Plaintiff’s motion for leave to amend complaint (Docket Entry #

36) is DENIED.

/s/ Marianne B. Bowler

MARIANNE B. BOWLER

United States Magistrate Judge