United States Court of Appeals

For the First Circuit

No. 22-1074

PETER GOTTLIEB, individually and on 

behalf of all persons similarly situated,

Plaintiff, Appellant,

v.

AMICA MUTUAL INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Denise J. Casper, U.S. District Judge]

Before

Kayatta, Lipez, and Thompson,

Circuit Judges.

John Peter Zavez, with whom Noah Rosmarin, Brendan M. 

Bridgeland, and Adkins, Kelston & Zavez, P.C., were on brief, for 

appellant.

Christopher Michael Reilly, with whom Laura Meyer Gregory, 

Anthony Antonellis, and Sloane and Walsh, LLP, were on brief, for 

appellee.

December 30, 2022
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KAYATTA, Circuit Judge. Peter Gottlieb claims that the 

price he agreed to pay Amica Mutual Insurance Company to insure 

his home was $16 too high because it was based on an excessive

coverage limit. Claiming as well that other Amica insureds paid 

too much to insure their homes, he filed this putative class 

action. After the district court dismissed part of Gottlieb's

complaint for failure to state a claim and entered summary judgment 

disposing of the remainder of his claims, he filed this appeal. 

For the following reasons, we affirm the judgments of the district 

court. 

I.

Gottlieb owns a home in Burlington, Massachusetts. In 

2015, he purchased a homeowners insurance policy from Amica that 

covered him from March 10, 2015, through March 10, 2016. The 

coverage limit for replacing his house in the event of a loss was 

$311,000, for which Gottlieb paid a $730 premium. The policy also 

contained an endorsement providing additional coverage of up to 

130% of the coverage limit if Gottlieb agreed to certain 

conditions, including that Amica could adjust the coverage limit 

and the premium "in accordance with" "property evaluations [Amica] 

make[s]" and "[a]ny increases in inflation." The policy contained 

no other language allowing Amica to increase coverage limits. 

No loss occurred during the one-year term of the policy. 

With the expiration of the policy term approaching, Amica sent 
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Gottlieb a proposed renewal policy, which contained the same 

endorsement, along with a cover letter. The proposed premium for 

the renewal policy was $795 ($65 more than the premium for the

original policy). Sixteen dollars of the increase was due to a

higher coverage limit for Gottlieb's house ($321,000 versus 

$311,000). Amica arrived at that coverage limit based on a 

multiplier calculated by a company called E2Value, Inc., which 

projected costs for Gottlieb's zip code based on various data 

sources. The rest of the increase in the premium was due to 

changes in the base rate and other changes in Amica's public rate 

filing. 

The cover letter accompanying the renewal pointed out 

that the increased coverage limit was partially attributable to

higher reconstruction costs, which it stated had "risen steadily 

since [Amica's] last survey of [Gottlieb's] home," along with 

"various other factors . . . that impact the dwelling amount." 

The letter noted that Gottlieb was ultimately responsible for 

determining the proper dwelling limit for his home. After calling 

Amica to clarify how much coverage he would get under the 

endorsement, Gottlieb accepted the 2016-2017 renewal policy, and 

Amica issued the policy. 

Gottlieb then sued Amica, claiming that the increased 

coverage limit on his house and premium in the 2016-17 violated 

the terms of his contract with Amica. Gottlieb argues that the 
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endorsement in his original policy limited how Amica could set the

coverage limit in the renewal policy; namely, Amica could change 

the original limit only if it did a new home inspection, or 

accounted for an increase in inflation. Because Amica did not 

reinspect Gottlieb's home and because his coverage limit allegedly 

increased more than the rate of inflation, Gottlieb contends that 

Amica breached the policy. 

Gottlieb also argues that even if Amica did not 

explicitly breach the policy, it breached the implied covenant of 

good faith and fair dealing. In his view, Amica acted in bad faith 

by adjusting his coverage limit based on impermissible factors 

(including projected future inflation and reconstruction costs), 

attempting to rewrite the contract, and deceiving him about why 

the limit was increasing. As to the claimed deception, Gottlieb 

contends that Amica lied to him by stating in the cover letter 

that one reason for the proposed increase in his dwelling limit

was a rise in reconstruction costs. According to Gottlieb, those 

costs had not increased, or at least not as much as reflected in 

the proposed increase to Gottlieb's coverage; thus, Gottlieb 

contends Amica's statement was untrue and deceptive. As a result 

of this allegedly fraudulent adjustment to his coverage limit, 

Gottlieb asserts that Amica sold him illusory coverage he could 

never use, because Amica would never pay more than actual 

replacement costs and his replacement costs would always be less 
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than Amica's estimate. Because Amica received the benefit of 

Gottlieb's additional premium but provided no additional practical

benefit to Gottlieb, he argues, he is also entitled to relief for 

unjust enrichment, money had and received, and violation of 

Massachusetts law prohibiting deceptive business practices, Mass. 

Gen. L. c. 93A ("Chapter 93A"). 

Gottlieb filed his complaint in Middlesex Superior 

Court. Amica then removed the case to the United States District 

Court for the District of Massachusetts. The district court 

dismissed the breach of contract and implied covenant of good faith 

and fair dealing claims. The court found that the 2015-16 and 

2016-17 policies were two separate contracts, so setting the 

initial coverage limit in the latter could not have violated the 

former. Moreover, the initial contract imposed no restrictions on 

how the new coverage limit in the renewal contract could be set. 

Likewise, the court ruled, no covenant of good faith and fair 

dealing extended or created a freestanding obligation to use the 

within-term rules contained in the first policy for selecting the 

starting point of the renewal policy. Following discovery and an 

amendment to the complaint, the district court granted summary 

judgment for Amica on the unjust enrichment, money had and 

received, and Chapter 93A claims. The court found that the 

equitable claims were unavailable because there was an adequate 

remedy at law and a valid contract. It also concluded that there 
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was no Chapter 93A violation because although Gottlieb had been 

charged a higher premium, he had received the benefit of additional 

coverage. Gottlieb appeals from both the denial of the motion to 

dismiss and the grant of summary judgment for Amica.

II.

We review a district court's grant of a motion to dismiss 

de novo. Legal Sea Foods, LLC v. Strathmore Ins. Co., 36 F.4th 

29, 34 (1st Cir. 2022). In doing so, we take all of Gottlieb's

well-pled allegations as true and view the facts in the light most 

favorable to him. Id. We affirm if, having done so, the complaint 

does not provide "enough factual detail to make the asserted claim 

plausible on its face." Id. at 33 (internal quotation marks 

omitted) (quoting Cardigan Mountain Sch. v. N.H. Ins. Co., 787 

F.3d 82, 84 (1st Cir. 2015)). We also review a district court's 

grant of summary judgment de novo, drawing all inferences in favor 

of Gottlieb. Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 

2009). Following the lead of both parties, we apply Massachusetts 

law. 

A.

Gottlieb's breach of contract claim begins with the 

original policy's limitation on Amica's unilateral ability to 

change the coverage limit of $311,000 and the corresponding premium 

upon which the parties had agreed when they entered the contract. 

Such a limitation makes sense: A homeowner who agrees to receive
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one year of coverage for a set premium hardly expects that, during 

that year, the insurer could jack up the premium for that year's 

coverage beyond that to which the homeowner agreed by declaring a 

unilateral increase in the coverage limit. 

Amica, though, did no such thing. After agreeing to 

issue the original policy with a one-year term, Amica provided a 

full year of coverage for the agreed-upon premium without making 

any adjustments that would increase the premium (even those that 

would have been allowed under the policy endorsement). Had the 

parties gone their separate ways upon expiration of the policy, it 

is clear that no breach could have been claimed.

The parties did not go their separate ways. Instead, 

they entered into a new policy -- the renewal policy. In so doing, 

they agreed upon a new, slightly higher coverage limit of $321,000 

(as compared to $311,000 in the prior year) and a corresponding 

premium of $795. During the term of that renewal policy, Amica 

never sought to charge Gottlieb more than that agreed-upon $795. 

Nor did it ever deny him any promised coverage.

Gottlieb nevertheless contends that Amica wronged him 

when it proposed a coverage limit of $321,000 in negotiating the 

renewal policy. His principal argument is that the limitation for 

adjusting the coverage limit in the original policy applied to the 

setting of the coverage limit in the renewal policy. Like the 

district court, we disagree. 
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The 2015-16 policy was a separate contract from the 2016-

17 renewal. See Epstein v. Nw. Nat'l Ins. Co., 166 N.E. 749, 750–

51 (Mass. 1929) (renewal policies are new contracts). Nothing in 

the 2015-16 policy's terms indicated that anything in that policy 

prevented Amica from proposing a new coverage limit for the 2016-

17 policy. Gottlieb attempts to evade this hole in his breach of 

contract claim by highlighting abstract references to renewal 

policies in the 2015-16 agreement.1 He claims that these 

references show that his initial policy governed the terms of any

renewal. But the references to renewals govern different 

procedures for canceling the contract depending on whether the 

contract is an initial policy or a renewal. They do not suggest 

that the first policy governs any future renewals. Rather, they 

simply indicate that some terms of a particular policy apply 

differently depending on whether the policy itself is a renewal or 

an initial policy.

Nor does it help Gottlieb that the cover letter 

accompanying the proposed renewal policy referred to the new 

1 For example, the policy provides that it may be cancelled 

for certain reasons "[w]hen this policy has been in effect for 

60 days or more, or at any time if it is a renewal with us." Other 

references to renewal or nonrenewal indicate what will happen if 

there is a nonrenewal, e.g., "[i]f we decide to cancel or not renew 

this policy, that loss payee will be notified in writing," and 

procedures for renewal or nonrenewal, e.g., "[o]rdinarily we will 

renew this policy automatically" and "[w]e may elect not to renew 

this policy . . . by delivering to you . . . written notice." 
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coverage limit as an adjustment. That reference says nothing about 

whether the initial policy itself limited Amica in setting the 

coverage limit for a subsequent policy. The language in the cover 

letter sent along with the renewal policy does not turn the 

renewal, which is clearly a new policy, into an "adjust[ment]" as 

that phrase is used in the language of the endorsement in the first 

policy. 

Gottlieb also claims in passing that "[t]he Homeowners 

Information Insurance Digest included in Plaintiff's policy also 

expressly provides the terms of the Endorsement apply to renewal 

policies." In describing various coverage options, the Digest

(which is not a part of the contract) states that policyholders

will get the benefit of the endorsement's increased coverage if 

they "[a]llow [Amica] to issue your policy (and subsequent 

renewals) in accordance with a current property evaluation." 

Gottlieb did not mention this Digest in either his initial or 

amended complaint, nor did he mention it in his briefing on the 

motion to dismiss. As such, we consider it waived when evaluating 

his appeal of the district court's decision on the motion to 

dismiss. See, e.g., P.R. Hosp. Supply, Inc. v. Bos. Sci. Corp., 

426 F.3d 503, 505 (1st Cir. 2005). Even if we were to consider 

Gottlieb's argument, we see no breach of contract. The Digest's 

language does not require Amica to base the premium of a renewal 

policy on a current property evaluation. Rather, it states that 
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an insured will get the benefit of the endorsement if they "comply 

with" three conditions, including "[a]llow[ing] [Amica] to issue 

[the] policy (and subsequent renewals) in accordance with a current 

property evaluation." That the insured may allow Amica to do that 

does not mean that Amica must do it.

In sum, because the original policy did not limit Amica's 

freedom in proposing a coverage limit for the renewal policy, 

Gottlieb's breach of contract claim fails. Gottlieb was not 

entitled under the initial contract to a proposed renewal coverage

limit reflecting only inflation or a new property evaluation.2

B.

Gottlieb's claim for breach of the implied covenant of 

good faith and fair dealing fares no better. The covenant of good 

faith and fair dealing is implied in all contracts under 

Massachusetts law. Guldseth v. Fam. Med. Assocs. LLC, 45 F.4th 

526, 537 (1st Cir. 2022). It provides that "neither party shall 

do anything that will have the effect of destroying or injuring 

the right of the other party to receive the fruits of the 

contract." Latson v. Plaza Home Mortg., Inc., 708 F.3d 324, 326 

(1st Cir. 2013) (quoting Anthony's Pier Four, Inc. v. HBC Assocs., 

583 N.E.2d 806, 820 (Mass. 1991)). The implied covenant is not, 

however, a catch-all for altering the terms or scope of a contract. 

2 We therefore do not address Gottlieb's various claims that 

Amica used the wrong measure of inflation. 
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"Because the implied covenant is all about the expectations 

concerning the obligations actually in the contract, the scope of 

the covenant is only as broad as the contract that governs the 

particular relationship." Guldseth, 45 F.4th at 537; see also Uno 

Rests, Inc. v. Bos. Kenmore Realty Corp., 805 N.E.2d 957, 964

(Mass. 2004) ("The covenant may not, however, be invoked to create 

rights and duties not otherwise provided for in the existing 

contractual relationship, as the purpose of the covenant is to 

guarantee that the parties remain faithful to the intended and 

agreed expectations of the parties in their performance.").

As we concluded above, the limitation on Amica's changes 

to the dwelling limit during the term of the original policy did 

not apply to the setting of the initial coverage limit in the 

renewal policy. Given that conclusion, Gottlieb cannot claim to 

have had any reasonable expectation to the contrary. Guldseth, 45 

F.4th at 537–38. The covenant of good faith and fair dealing 

therefore does not secure this benefit that the contract never 

guaranteed in the first place. Nor did Amica do anything to 

deprive Gottlieb of the reasonably expected benefits of the policy. 

Gottlieb lists several other acts that he contends show 

that Amica breached the implied covenant of good faith and fair 

dealing. As an initial matter, some of these contentions have no 

footing in either the complaint or the response filed in the 

district court to the motion to dismiss, so those arguments are 
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not part of our review of the dismissal of Gottlieb's claim for 

breach of the implied covenant of good faith and fair dealing. 

But the rest merely restate Gottlieb's claim that the contract 

guaranteed a specific methodology to set his renewal coverage 

limit, and that Amica failed to follow that methodology. Having 

rejected the first premise, we also reject the second. 

In particular, we do not find (as Gottlieb argues) that 

any contractual language obligated Amica to set Gottlieb's 

coverage limit for an upcoming policy year based only on "current"

inflation (i.e., not based on any projection of future inflation). 

Gottlieb points to the language in the endorsement allowing Amica 

to increase the Coverage A limit based on "any increases in 

inflation," but the word "current" does not appear in this excerpt. 

He also points to the Digest, which he says requires Amica to issue 

the Coverage A limit in accordance with "'current' reconstruction 

costs." But as we have already concluded, the Digest does not 

require Amica to do anything. And the absence of any restriction 

on Amica's ability to use future projections in calculating 

coverage limits makes sense, because Amica must insure the covered 

dwelling up to the end of the coming policy year. So we cannot 

say it was a breach either of the contract or the implied covenant 

of good faith and fair dealing for Amica to set the limit using a 

projection for the anticipated year. 
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Finally, Gottlieb contends that Amica sold him illusory 

coverage that he could never use. We will address this argument

in analyzing Gottlieb's remaining claims, to which we turn next. 

We begin with Gottlieb's claims for unjust enrichment and money 

had and received, and then move to his claim for unfair trade 

practices in violation of Chapter 93A. 

C.

Gottlieb's equitable claims must fail as well. 

Massachusetts law "does not allow litigants to override an express 

contract by arguing unjust enrichment." Reed v. Zipcar, Inc., 883 

F. Supp. 2d 329, 334 (D. Mass. 2012) (quoting Platten v. HG Bermuda 

Exempted Ltd., 437 F.3d 118, 130 (1st Cir. 2006)); Guldseth, 45 

F.4th at 541 (unjust enrichment not available as a remedy when a 

valid contract governs the relationship between the parties and 

sets out their obligations). This also applies to money had and 

received claims, which have "the same elements" as unjust 

enrichment, but are limited to enrichment by money or its 

equivalent. Jelmoli Holding, Inc. v. Raymond James Fin. Servs., 

Inc., 470 F.3d 14, 17 n.2 (1st Cir. 2006). Despite Gottlieb's 

argument to the contrary, the policy plainly governs the 

relationship between the parties and the subject matter of the 

dispute (Gottlieb's premium), so Gottlieb's equitable claims are 

foreclosed here.
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D.

That leaves Gottlieb's Chapter 93A claim. Chapter 93A 

prohibits unfair or deceptive acts or practices in trade and 

commerce. In determining whether a practice is unfair, courts 

look to "(1) whether the practice . . . is within at least the 

penumbra of some common-law, statutory, or other established 

concept of unfairness; (2) whether it is immoral, unethical, 

oppressive, or unscrupulous; [and] (3) whether it causes 

substantial injury to consumers (or competitors or other 

businessmen)." Mass. Eye & Ear Infirmary v. QLT Phototherapeutics, 

Inc., 412 F.3d 215, 243 (1st Cir. 2005) (alterations in original) 

(quoting PMP Assocs., Inc. v. Globe Newspaper Co., 321 N.E.2d 915, 

917 (Mass. 1975)). Courts consider "[a]n act or practice . . . 

deceptive if it 'has the capacity to mislead consumers, acting 

reasonably under the circumstances, to act differently" than they 

otherwise would have. Tomasella v. Nestlé USA, Inc., 962 F.3d 60, 

71 (1st Cir. 2020) (quoting Aspinall v. Philip Morris Cos., 813 

N.E.2d 476, 488 (Mass. 2004)). To succeed on a claim based on a 

deceptive act or practice, a consumer must show "(1) a deceptive 

act or practice on the part of the seller; (2) an injury or loss 

suffered by the consumer; and (3) a causal connection between the 

seller's deceptive act or practice and the consumer's injury." 

Id. (quoting Casavant v. Norwegian Cruise Line, Ltd., 919 N.E.2d 

165, 169 (Mass. App. Ct. 2009)). Importantly, in order to obtain 
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relief under this statute for either an unfair or a deceptive act, 

plaintiffs must show that they were injured by the conduct at 

issue, and that the conduct caused some loss beyond the mere fact 

that a violation occurred. Shaulis v. Nordstrom, 865 F.3d 1, 10 

(1st Cir. 2017); Hershenow v. Enterprise Rent-A-Car Co. of Bos., 

840 N.E.2d 526, 528 (Mass. 2006).

The only arguably deceptive statement by Amica to which 

Gottlieb points is Amica's statement that "[r]econstruction costs 

have risen steadily since our last survey of your home." Gottlieb 

claims that Amica's consultant reported a decrease in costs rather 

than an increase, rendering false the statement that costs had 

risen, and the district court credited this statement in its order 

on the motion granting summary judgment. Thus, Amica's statement 

in the cover letter that reconstruction costs had "risen steadily" 

may well have been deceptive.3 

3 Gottlieb also claims that Amica's statements in the cover 

letter to him would violate Massachusetts General Laws 

Chapter 176D, § 3(1)(a), which classifies "[m]isrepresent[ing] the 

benefits, advantages, conditions, or terms of any insurance 

policy" as an "unfair or deceptive act[] or practice[] in the 

business of insurance." The district court correctly noted that 

there is no private right of action for violations of Chapter 176D, 

§ 3(1)(a). However, courts have held that plaintiffs may "attempt 

to state a claim under Chapter 93A, section 2 by alluding to 

conduct that is impermissible under chapter 176D." United States 

ex rel. Metric Elec., Inc. v. Enviroserve, Inc., 301 F. Supp. 2d 

56, 70 (D. Mass. 2003) (quoting M. DeMatteo Constr. Co. v. Century 

Indem. Co., 182 F. Supp. 2d 146, 163 (D. Mass. 2001)); see also M. 

Dematteo Constr. Co., 182 F. Supp. 2d at 160 (concluding that 

although there is no private right of action under Chapter 176D, 

that does not end the inquiry as to whether a plaintiff can recover 
- 16 -

However, Gottlieb has not shown that he was injured by 

this statement. He argues that he has been injured because the 

higher coverage he purchased was illusory. Amica, he claims, 

overestimated his reconstruction costs and charged him a 

correspondingly higher premium, but would only ever pay actual 

reconstruction costs far below this overestimate. It could 

therefore pocket the difference, enriching itself and harming 

Gottlieb. He asserts that Amica would never pay the full amount 

of the coverage limit, because the actual reconstruction costs 

would never be that high. In so arguing, however, Gottlieb assumes 

that Amica's very first estimate of reconstruction costs was 

correct, and that such costs not only decreased during the year 

covered by that policy (or, at the very least, increased less than 

the increase represented by the new coverage limit), but could not 

possibly rise during the year to be covered by the second policy. 

Without evidence that such a risk was essentially nonexistent at 

the time of contracting, he cannot prove that insurance coverage 

protecting him from that risk was illusory. And Gottlieb has 

failed to show that he was entitled to a policy accounting only 

for changes in costs in the previous year, as opposed to changes 

through the upcoming year for which he would be insured.

under Chapter 93A for a violation of Chapter 176D). However, we 

decline to determine whether Amica's statements would violate 

Chapter 176D, § 3(1)(a) because Gottlieb's failure to show injury 

would nonetheless prove fatal to a Chapter 93A claim. 
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Gottlieb attempts to sidestep the gap in his evidence by 

claiming that the approximately $16 increase in his premium 

resulting from the allegedly wrongfully calculated increase in his 

Coverage A liability limit represents his damages from Amica's 

wrongful acts. But this merely states the amount by which his 

premium increased due to the higher coverage limit. It does not 

itself show why Amica's estimate was so high that it would never 

have to pay the full amount of the coverage limit. 

The closest Gottlieb comes to estimating what his 

coverage limit should have been is to assume that his "correct" 

reconstruction costs were the original coverage limit, to which he 

adds "any increase due to inflation allowed under the terms of the 

Policy." But as we have already explained, Gottlieb is not 

entitled to such a calculation under the Policy. And there is no 

evidence that this calculation would have produced the "true" cost 

of reconstruction.

Gottlieb also points to Amica's rate filing with the 

Massachusetts Department of Insurance, which reported a "premium 

trend factor" of approximately 1%. At oral argument, Gottlieb's 

counsel argued that this estimate premium trend factor represented

inflation, and he pointed out that it was far lower than the amount 

by which Gottlieb's premium had increased. This argument was 

raised for the first time on reply, and thus, absent exceptional 

circumstances, we consider it waived. See, e.g., Alamo-Hornedo v. 
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Puig, 745 F.3d 578, 582 (1st Cir. 2014). We see no exceptional 

circumstances here. Moreover, Amica's counsel explained that the

premium trend factor measures Amica's losses across the board, 

rather than general reconstruction cost increases or inflation. 

We cannot find any indication in the record that this premium trend 

factor estimates inflation. And, in any event, evidence that 

replacement costs may have increased less than Amica's estimate 

does not suffice to show that Gottlieb's coverage limit was so 

high as to provide illusory coverage. 

Finally, to the extent Gottlieb argues that he was 

fraudulently induced to renew the policy based on the deceptive 

statement that reconstruction costs had risen, he has not pointed 

to any evidence that he would have done anything differently, such 

as seeking alternative coverage or forgoing coverage altogether 

absent this statement.

In sum, we are unable to conclude that Amica by deception 

sold Gottlieb coverage he could never use. He has thus not shown 

that he was injured as required for a 93A claim.

III.

For the foregoing reasons, we affirm the orders of the 

district court.