# DiMarzo v. American Mutual Insurance

> Massachusetts Supreme Judicial Court · May 4, 1983 · 389 Mass. 85

URL: https://www.frixlaw.com/law-library/cases/9735646

## Case

- **Full name:** Louis DiMarzo vs. American Mutual Insurance Company
- **Court:** Massachusetts Supreme Judicial Court
- **Decided:** May 4, 1983
- **Citations:** 389 Mass. 85; 449 N.E.2d 1189; 1983 Mass. LEXIS 1420
- **Precedential status:** Published
- **Opinion:** Concurrence by Hennessey
- **Judges:** Hennessey, Wilkins, Liacos, Abrams, Nolan, Lynch, O'Connor
- **Cited by:** 162 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735646

## How later opinions describe it (automated extraction)

- holding that separate counts of a complaint alleging 93A violations represented elements of damage arising from a single chain of events where a plaintiff was injured both individually and as American Mutual’s insured’s assignee when American Mutual failed to offer a reasonabl…
- rejecting the proposition that an act or practice authorized by statute cannot constitute an unfair or deceptive practice under ch. 93A

## Opinion text

Hennessey, C.J.
(concurring, with whom Nolan, J., joins). I concur in the result and reasoning of the court’s opinion. Nevertheless, I am constrained to add a few comments.
The money damages here are, in the circumstances, extraordinarily large. A policy of insurance affording to the insured indemnity coverage of $20,000, undoubtedly at a cost to the insured commensurate with that amount of coverage, will result in a judgment (including interest as ultimately computed) of more than $500,000 against the insurer. An argument can be made that the Legislature which created c. 93A never contemplated such a result.
That argument is inapposite. The facts as found by the jury, and later by the judge, are warranted on the evidence. The law, step by step, was correctly applied. The crucial principles are either explicit in c. 93A, or we have established them by construction of the statute, or by common law, in prior cases. For example, “actual damages” in this case clearly are in the amount of the tort judgment entered against MacDonald (International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 850 [1983]); c. 93A is applicable in controversies between insurer and insured under an automobile liability policy (Dodd v. Commercial Union Ins. Co., 373 Mass. 72 [1977]); and rights under c. 93A are assignable (Raymer v. Bay State Nat’l Bank, 384 Mass. 310, 314 [1981]).
*109 Although c. 93A, in both content and title, is “for Consumers Protection,” it can reasonably be contended that the result here is, in a sense, anticonsumer. The tort judgment for DiMarzo, including interest, was in the amount of a little more than $149,000. Yet he will now receive, including attorneys’ fees and interest, nearly four times that amount. The insurer here, like many liability insurers, is a mutual company. Thus, the “consumer” DiMarzo’s great good fortune is at the expense of other consumers. It may be that the threat of c. 93A may hurt the bargaining position of insurers in many other cases, even in cases where controversy is rooted in genuine differences of opinion and there is no bad faith on the insurer’s part. If the large ultimate judgment here is an unexpected effect of c. 93A, it ensues, not from the application of any new or surprising legal principles, but from the large amount of actual damages, to which are applied, as permitted by statute, punitive multiple damages and a proportionate lawyer’s fee. Arguments that no such results were ever contemplated, that persons insured in mutual companies, indeed in all insurance companies, are the losers, and to that extent the effect is anti-consumer, are policy arguments and are more appropriately addressed to the Legislature than to the courts.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735646. Public record. Not legal advice.