United States Court of Appeals

For the First Circuit

No. 23-1332

JONATHAN MARTINS, individually and on behalf of all others 

similarly situated,

Plaintiff, Appellant,

v.

VERMONT MUTUAL INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Kayatta, Selya, and Howard,

Circuit Judges.

Kevin J. McCullough, with whom Michael C. Forrest and 

Mazow/McCullough, P.C. were on brief, for appellant.

Michael S. Batson, with whom Michael C. Kinton and Clyde & Co 

US LLP were on brief, for appellee.

February 6, 2024
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SELYA, Circuit Judge. Scripture teaches that "there is 

no new thing under the sun." Ecclesiastes 1:9. Yet — in an 

industry as old as time itself1 — new twists still occur. This is 

such a case.

Plaintiff-appellant Jonathan Martins (Martins) attempts 

to prosecute a new strain of claim against a liability insurer, 

defendant-appellee Vermont Mutual Insurance Company (Vermont 

Mutual). The district court entered summary judgment in favor of 

Vermont Mutual. See Martins v. Vermont Mut. Ins. Co., 662 F. Supp. 

3d 55, 67 (D. Mass. 2023). We affirm. 

I

We briefly rehearse the relevant facts and travel of the 

case. We draw our narrative from the summary judgment record and 

construe the facts in the light most flattering to the party 

against whom summary judgment was entered (here, Martins). See

Pleasantdale Condos., LLC v. Wakefield, 37 F.4th 728, 730 (1st 

Cir. 2022). By the same token, we draw all reasonable inferences 

from the factual record to Martins's behoof. See id. 

Martins is a citizen and resident of Malden, 

Massachusetts. Vermont Mutual is an insurance company with a 

1 Cf. Hammurabi's Code of Laws § 235 (L.W. King trans.) ("If 

a shipbuilder build a boat for some one, and do not make it tight, 

if during that same year that boat is sent away and suffers injury, 

the shipbuilder shall take the boat apart and put it together tight 

at his own expense. The tight boat he shall give to the boat 

owner."). 
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principal place of business in Montpelier, Vermont. On January 

23, 2017, Martins's 2015 Nissan Altima was damaged when it was 

involved in a crash with a vehicle driven by Elhadjmamado Dansoko. 

At the time of the collision, Dansoko was insured under a policy 

issued by Vermont Mutual. 

Dansoko's policy was written on a form that constituted

the 2008 edition of the standard Massachusetts automobile 

insurance policy. Part 4 of this policy vouchsafed that the 

insurer would

pay damages to someone else whose auto or 

other property is damaged in an accident. The 

damages we will pay are the amounts that 

person is legally entitled to collect for 

property damage through a court judgment or 

settlement.

Martins reported the accident to his insurer, Safety 

Insurance Company (Safeco), which paid him $11,711.80 to cover the 

full cost of repairs to his car. Vermont Mutual, in turn, paid 

Safeco $12,942.80, which included the costs of repairs, $331 for 

towing and storage fees, and $900 toward the temporary use of a 

rental car. Vermont Mutual appears later to have paid Martins an 

additional $635.91 to cover the remaining expense of his rental 

car. 

Notwithstanding these payments, an attorney representing 

Martins sent a letter on June 26, 2017, to Vermont Mutual demanding 

payment of $6,129 for the "inherent diminished value" (IDV) of the 
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car. A Vermont Mutual representative responded, denying any 

responsibility either to Martins or to the putative class. In the 

same response, though, Vermont Mutual made a settlement offer. 

Martins spurned the offer. Instead — on August 23, 2017 — his 

attorney sent a demand letter under Mass. Gen. Laws ch. 93A, which 

alleged that Vermont Mutual had a practice of intentionally and 

knowingly making unfair and unreasonably low offers to cover claims 

for IDV damages of third-party claimants. 

That same day, Martins filed a putative class action 

against Vermont Mutual in a Massachusetts state court, claiming 

breach of contract and seeking a declaration of rights. After 

Vermont Mutual denied the material allegations of Martins's

complaint and tendered an increased settlement offer (which 

Martins rejected), Martins amended his complaint. The amended 

complaint asserted a claim for breach of contract (count 1), five 

claims under Mass. Gen. Laws ch. 93A (counts 2 through 6), and a 

claim for declaratory relief (count 7). Noting the existence of 

diverse citizenship and the requisite amount in controversy, see

28 U.S.C. § 1332(a), (d), Vermont Mutual removed the case to the 

United States District Court for the District of Massachusetts, 

see id. § 1441. 

Following further proceedings, not relevant here, the 

district court eventually granted summary judgment in favor of

Vermont Mutual. See Martins v. Vermont Mut. Ins. Co., 411 F. Supp. 
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3d 166, 173 (D. Mass. 2019). The court held that Part 4 of the 

standard Massachusetts automobile policy did not provide coverage 

for IDV damages. See id. at 172-73. A timely appeal ensued. 

While Martins's appeal was pending, the Massachusetts 

Supreme Judicial Court (SJC) held that Part 4 did, in fact, provide 

coverage to third parties for IDV damages. See McGilloway v. 

Safety Ins. Co., 174 N.E.3d 1191, 1199 (Mass. 2021). Martins 

proceeded to send another demand letter to Vermont Mutual, inviting 

it to adjust both Martins's claim for IDV damages and the claims 

of other putative class members. Vermont Mutual declined the 

invitation but made yet another settlement offer. Martins rejected 

the new offer. Meanwhile, this court — in an unpublished judgment 

— vacated the district court's entry of summary judgment and 

remanded the case for reconsideration in light of McGilloway. See

Martins v. Vermont Mut. Ins. Co., No. 19-1878, 2021 WL 9549392, at 

*1 (1st Cir. Nov. 9, 2021). 

After Martins stipulated to the dismissal of all of his 

claims save for counts 1 and 7 and once again declined a settlement 

offer, he moved to amend his complaint to include new claims under 

Mass. Gen. Laws ch. 93A and ch. 176D. In a single swoop, the 

district court considered this motion, the earlier motion for class 

certification, and the parties' motions for summary judgment on 

the two remaining claims. It first denied the motion to amend the 

complaint, finding that motion to be both unduly delayed and 
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futile. See Martins, 662 F. Supp. 3d at 62-63. It then denied 

Martins's motion for summary judgment as to count 1 and granted 

Vermont Mutual's cross-motion, holding that there was no viable 

breach-of-contract claim against Vermont Mutual because Martins 

had not obtained a final judgment against Vermont Mutual's insured 

(Dansoko). See id. at 66. Finally, the district court refused to 

certify the class, denied Martins's motion for summary judgment on 

count 7, and granted Vermont Mutual's cross-motion for summary 

judgment. See id. at 66-67. 

This timely appeal followed. 

II

We review the district court's order for summary 

judgment de novo. See Pleasantdale, 37 F.4th at 732. To prevail 

on summary judgment, the moving party must show that there is no 

genuine issue as to any material fact and that it is entitled to 

judgment as a matter of law. See Fed. R. Civ. P. 56(a); Morelli

v. Webster, 552 F.3d 12, 18 (1st Cir. 2009). 

Because Martins's action was brought in diversity 

jurisdiction pursuant to the Class Action Fairness Act, see 28 

U.S.C. § 1332(d), state law supplies the substantive rules of 

decision, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). 

In this instance, we accept the parties' reasonable agreement that 

Massachusetts law controls. See Borden v. Paul Revere Life Ins. 

Co., 935 F.2d 370, 375 (1st Cir. 1991) (holding that "a federal 
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court sitting in diversity is free, if it chooses, to forgo 

independent analysis and accept the parties' agreement" as to which 

state's law controls). 

Before us, Martins takes issue only with the district 

court's resolution of his breach-of-contract claim.2 He offers 

two reasons why — in his view — the district court's decision 

should not stand. Neither reason is convincing. 

A

Martins first contends that he is entitled to recover 

IDV damages directly from Vermont Mutual and, thus, has a valid 

breach-of-contract claim. This is the case, he says, even though 

he never obtained an underlying judgment against (or settlement 

with) Dansoko. In support, Martins cites to the SJC's decision in

Flattery v. Gregory, 489 N.E.2d 1257 (Mass. 1986). There, the SJC

merely "recognize[d] again the principle of law that, 'when one 

person, for a valuable consideration, engages with another, by 

simple contract, to do some act for the benefit of a third, the 

latter, who would enjoy the benefit of the act, may maintain an 

action for the breach of such engagement.'" Id. at 1260 (quoting 

2 Although Martins mentions the district court's denial of 

both his motion to amend and motion for class certification in his 

statement of issues, he has wholly failed to develop these 

arguments. Consequently, any such arguments are deemed waived. 

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) 

("[I]ssues adverted to in a perfunctory manner, unaccompanied by 

some effort at developed argumentation, are deemed waived."). 
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Rae v. Air-Speed, Inc., 435 N.E.2d 628, 632-33 (Mass. 1982)). When 

read in conjunction with the SJC's recent decision in McGilloway

extending IDV damages to third parties, Martins asseverates, the

combination clears the way for him to bring a direct 

breach-of-contract claim against Vermont Mutual. And he puts the 

frosting on the cake by suggesting that Mass. Gen. Laws ch. 175, 

§ 112 "mandates that a judgment need not be necessary for a 

liability automobile insurer's duty to be imposed upon the 

insurer." 

We do not agree. To begin with Martins's latter 

suggestion, we find his reading of the statutory text to be 

off-kilter. The provision in question states that "the 

satisfaction by the insured of a final judgment for such loss or 

damage shall not be a condition precedent to the right or duty of 

the company to make payment on account of said loss or damage." 

Mass. Gen. Laws ch. 175, § 112. Martins reads this provision 

through rose-colored glasses — as affording a third-party claimant 

a direct cause of action against an insurer. But that is not what 

the provision states. All that it says is that a third-party 

claimant need not wait until the insured tortfeasor has satisfied 

the final judgment before demanding that an insurer pay damages. 

We think that the provision says what it means and means what it 

says — and it says nothing about whether a third-party beneficiary 
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(such as Martins) can directly maintain a cause of action against 

an insurer in the first place.3

Martins's reading of the case law fares no better. 

Although the language that he cites from Flattery indicates that 

he is an intended third-party beneficiary and has a potential

breach-of-contract cause of action against Vermont Mutual, neither 

that language nor anything else in the cited case says a word about 

the mechanics of acting on such a cause of action. In fact, the 

Flattery plaintiff obtained a judgment against the defendant 

before initiating the lawsuit. See 489 N.E.2d at 1258. Because 

the case at hand revolves around the very question of whether 

obtaining a judgment is a necessary predicate for maintaining a 

cause of action against Vermont Mutual, Flattery is of little help. 

We add, moreover, that there is established case law 

that cuts sharply against Martins's claim that he has an already 

existing cause of action against Vermont Mutual. In Rogan v.

Liberty Mutual Insurance Co., the SJC explicitly declared that 

"[t]he statutes affording a remedy for an injured plaintiff against 

an insurer issuing a liability policy require as a prerequisite to 

3 Martins makes a number of arguments predicated on provisions

contained in Mass. Gen. Laws ch. 93A and ch. 176D. Because the 

district court denied his motion to amend his complaint to include 

claims based on these provisions and because he does not appeal 

that denial, we do not consider these arguments. 
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suit 'the recovery of a final judgment' against the insured 

wrongdoer." 25 N.E.2d 188, 189 (Mass. 1940). 

Martins attempts to portray Rogan as an anachronism — an 

"inapplicable authority from 1940." But his effort to blunt the 

force of Rogan comes up empty-handed. Although Martins is correct 

in noting that the defendant in Rogan was ultimately deemed not to 

be liable because he was not within the jurisdiction of the court 

that issued the final judgment, see id., that circumstance does 

not render Rogan's determination that a final judgment is a 

prerequisite to a cause of action inapplicable. 

So, too, Martins's suggestion that Flattery superseded 

Rogan represents a triumph of hope over reason. As we noted 

earlier, Flattery did not spell out how a third-party beneficiary 

obtains a cause of action. Rather — as the district court 

perspicaciously observed — "Flattery is . . . entirely consistent 

with Rogan." Martins, 662 F. Supp. 3d at 65 n.2. Given that the 

SJC has never overruled — or even come close to overruling — the 

principle enunciated in Rogan, see Shapiro v. State Farm Mut. Ins.

Co., 242 N.E.2d 753, 755 (Mass. 1968) ("A valid judgment in the 

original action, of course, is a prerequisite of the present 

suit."); see also Lifchits v. Integon Nat'l Ins. Co., No. 18-12637, 

2020 WL 4756272, at *5 (D. Mass. Aug. 17, 2020) (holding that, 

absent claim under Mass. Gen. Laws chs. 93A or 176D, plaintiffs 
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may not institute direct actions against insurers), we discern no 

impediment to applying Rogan's holding to the case at hand.4

B

Martins next argues that Vermont Mutual is estopped from 

denying that it is liable to him for IDV damages. By paying for 

the cost of repairs, towing, storage, and car rental, his thesis 

runs, Vermont Mutual has accepted general liability. And in light 

of McGilloway, Martins insists, this liability now extends to IDV 

damages. Having thus already partially performed its duty and 

paid some damages, Martins says, Vermont Mutual is now estopped 

from denying that it owes IDV damages. 

This argument gains Martins no traction. For one thing, 

there is an obvious difference between an insurer being obligated 

to make a reasonable settlement offer and an insurer conceding 

liability. See Chiulli v. Liberty Mut. Ins., Inc., 146 N.E.3d 

471, 481 (Mass. App. Ct. 2020) (explaining that "the insurer's 

obligation to make a reasonable settlement offer is independent of 

how a jury might view the question of liability"). For another 

thing, in order to establish estoppel, Martins would have to show 

4 We note that there is nothing in McGilloway that tips the 

scales in the other direction. Although the SJC revived and 

remanded the breach-of-contract claim made by the third party 

against the insurer of the tortfeasor, see 174 N.E.3d at 1199, it 

did so without any discussion at all concerning whether such claims 

might be untenable for reasons other than those raised by the 

parties in that case. We are, therefore, not inclined to find 

that Rogan was implicitly overruled.
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not only that Vermont Mutual made a representation intended to 

induce his reliance but also that he reasonably relied on such a 

representation and that he consequently suffered a detriment. See

Sullivan v. Chief Just. for Admin. & Mgmt. of Trial Ct., 858 N.E.2d 

699, 711 (Mass. 2006). Inasmuch as Martins does not even attempt 

to make these showings, his estoppel claim necessarily crumbles. 

III

We need go no further. For the reasons elucidated above, 

the judgment of the district court is 

Affirmed.