United States Court of Appeals 

For the First Circuit 

No. 15-2539 

HARRY SANDERS, Executor of the ESTATE OF NANCY A. ANDERSEN 

and Assignee of JOHN DOE, 

Plaintiff, Appellant, 

v. 

THE PHOENIX INSURANCE COMPANY and 

THE TRAVELERS INDEMNITY COMPANY OF AMERICA, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. George A. O'Toole, Jr., U.S. District Judge] 

[Hon. Jennifer Boal, U.S. Magistrate Judge] 

Before 

Lynch and Selya, Circuit Judges, 

and Burroughs,* District Judge. 

 Robert D. Cohan, with whom Jonathan D. Plaut and Cohan Rasnick 

Myerson Plaut LLP were on brief, for appellant. 

 Wystan M. Ackerman, with whom Jonathan E. Small and Robinson 

& Cole LLP were on brief, for appellees. 

December 7, 2016 

 

 * Of the District of Massachusetts, sitting by designation
- 2 - 

SELYA, Circuit Judge. This case begins with a tragic 

tale of unrequited love and morphs into a series of imaginative 

questions regarding the coverage available under a standard form 

homeowner's insurance policy. But when imagination runs headlong 

into settled legal precedent, imagination loses. Recognizing as 

much, the court below dismissed the complaint. After careful 

consideration, we affirm. 

I. BACKGROUND

This diversity suit arises from the refusal of The 

Phoenix Insurance Company to defend and/or indemnify its named 

insured, an attorney whom we (like the court below) shall call 

"John Doe," against claims advanced by Harry Sanders, suing in his 

capacities as executor of the estate of Nancy A. Andersen (his 

deceased spouse) and as Doe's assignee.1 Inasmuch as the district 

court dismissed Sanders's complaint for failure to state a claim 

upon which relief could be granted, we take as true the raw facts 

as alleged in the complaint. See SEC v. Tambone, 597 F.3d 436, 

441-42 (1st Cir. 2010) (en banc). 

 1 Sanders sued both The Phoenix Insurance Company (which 

issued the homeowner's insurance policy to Doe) and The Travelers 

Indemnity Company of America (which, like Phoenix, is a whollyowned subsidiary of The Travelers Companies, Inc.). In the 

district court, the parties referred indiscriminately to both 

defendants. Phoenix now insists for the first time that The 

Travelers Indemnity Company of America is not a proper party. 

Because nothing in this case turns on any distinction between these 

sister companies, we refer throughout to them, collectively, as 

"Phoenix." 
- 3 - 

Doe met Andersen in January of 2011 when she sought legal 

representation in possible divorce proceedings against Sanders. 

Roughly four months later, Doe initiated divorce proceedings on 

Andersen's behalf. During this interval, Doe learned that Andersen 

suffered from severe depression and anxiety, had been prescribed 

several anti-depressant and anti-anxiety medications, and had 

recently attempted suicide. Nevertheless, Doe and Andersen began 

an on-again/off-again intimate relationship. Despite his personal 

involvement, Doe did not withdraw as her counsel. 

The relationship did not go smoothly. As the fall of 

2011 approached, Doe's ardor cooled and he became progressively 

distant. Correspondingly, Andersen's anxiety increased. Matters 

came to a head when, on or around October 1, 2011, Doe promised to 

join Andersen at her apartment. He did not do so. Distraught, 

Andersen wrote a suicide note lamenting Doe's inconstancy and 

proceeded to drink herself to death. Doe tried unsuccessfully to 

contact Andersen by telephone the next day. When he could not 

reach her, he went to her apartment and discovered her body. 

Sanders was appointed as executor of Andersen's estate. 

Slightly over a year after Andersen's death, he sent Doe a demand 

letter pursuant to Massachusetts General Laws Chapter 93A, Section 

9.2 Cognizant that some of his meretricious interludes had 

 2 Section 2 of Chapter 93A declares unlawful "[u]nfair methods 

of competition and unfair or deceptive acts or practices in the 
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occurred at his home, Doe promptly notified his homeowner's 

insurance carrier (Phoenix). After looking into the matter, 

Phoenix denied coverage on two grounds: that Andersen's death was 

not an "occurrence" covered under Doe's homeowner's policy (the 

Policy) and that the Policy's professional services exclusion 

barred coverage. 

In a letter dated September 19, 2013, Sanders notified 

Phoenix that he and Doe planned to mediate their dispute and 

invited Phoenix to participate. Phoenix declined the invitation. 

About three weeks later, Doe sought to have Phoenix reconsider its 

denial of coverage, informing it that Sanders was advancing a claim 

for negligent infliction of emotional distress. Unmoved, Phoenix 

reiterated its denial of coverage. 

Eventually, Doe, Doe's law firm, and Sanders reached an 

accord: the law firm's insurers agreed to pay Sanders $500,000 in 

exchange for a release of all claims against the firm. Ancillary 

to the settlement, Doe agreed that his personal liability to 

Sanders amounted to an additional $500,000 and assigned to Sanders 

all of Doe's rights and interests under the Policy vis-à-vis 

Andersen's death and any claims that he might have against Phoenix 

 

conduct of any trade or commerce." Mass. Gen. Laws ch. 93A, 

§ 2(a). The statute creates a private right of action through 

which consumers may seek equitable and monetary relief from 

businesses employing unfair or deceptive practices. See id. 

§ 9(1). 
- 5 - 

as a result of its failure to defend and/or indemnify him.3 Sanders 

followed up by sending a Chapter 93A demand letter to Phoenix, see 

supra note 2, accusing it of unfair settlement practices and 

demanding $500,000 (the limit of liability under the Policy). 

Phoenix refused the demand. 

Sanders repaired to a Massachusetts state court and 

filed this suit. Citing diversity of citizenship and the existence 

of a controversy in the requisite amount, Phoenix removed the case 

to the federal district court. See 28 U.S.C. §§ 1332(a), 1441. 

Phoenix then moved to dismiss. See Fed. R. Civ. P. 12(b)(6). The 

district court referred the motion to a magistrate judge, who 

recommended granting it. Sanders objected, and the district court, 

undertaking de novo review, overruled his objections and dismissed 

the action.4 This timely appeal ensued. 

II. ANALYSIS

We review a district court's dismissal of a complaint 

for failure to state a claim de novo. See Artuso v. Vertex Pharm., 

Inc., 637 F.3d 1, 5 (1st Cir. 2011). Accepting as true all well-

 3 According to Phoenix, Doe's liability to Sanders was on a 

non-recourse basis; that is, the settlement agreement stipulated 

that the additional $500,000 could be collected only from whatever 

proceeds might be due under the Policy. Sanders has not 

contradicted this description. 

4 In our discussion of these rulings, it would serve no useful 

purpose to distinguish between the district judge and the 

magistrate judge. Instead, we take an institutional view and refer 

throughout to the district court. 
- 6 - 

pleaded facts contained in the complaint, we are constrained to 

draw all reasonable inferences in the pleader's favor. See id. 

Where relevant, we may supplement the pleaded facts with 

"documentation incorporated by reference in the complaint." 

Rivera-Díaz v. Humana Ins. of P.R., Inc., 748 F.3d 387, 388 (1st 

Cir. 2014); see Hidalgo-Vélez v. San Juan Asset Mgmt., Inc., 758 

F.3d 98, 101-02 (1st Cir. 2014). 

Because this case is brought in diversity jurisdiction, 

we must look to state law for the substantive rules of decision. 

See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). The parties 

agree that Massachusetts law applies, and we readily embrace that 

sensible agreement. See Artuso, 637 F.3d at 5 ("In determining 

which state's law applies, a diversity court is free to honor the 

parties' reasonable agreement."). 

If we are unable to discern any controlling 

Massachusetts authority on a particular point, we must make an 

"informed prophecy" as to how the state's highest court — the 

Supreme Judicial Court (SJC) — would rule if faced with the issue. 

Ambrose v. New Eng. Ass'n of Schs. & Colls., Inc., 252 F.3d 488, 

498 (1st Cir. 2001). Our prediction may be "guided, inter alia, 

by persuasive case law from other jurisdictions and relevant public 

policy considerations." Id. 
- 7 - 

A. Alleged Breach of Duty to Defend.

We start with Sanders's principal remonstrance (asserted 

in his capacity as Doe's assignee): that Phoenix forsook its duty 

to defend Doe against the claims advanced by Sanders. In 

Massachusetts, the duty to defend under an insurance policy arises 

"when the allegations in a complaint are reasonably susceptible of 

an interpretation that states or roughly sketches a claim covered 

by the policy terms." Billings v. Commerce Ins. Co., 936 N.E.2d 

408, 414 (Mass. 2010). When determining whether an insurer has a 

duty to defend, an inquiring court must consider "the facts alleged 

in the complaint, and [any] facts known or readily knowable by the 

insurer that may aid in its interpretation of the allegations in 

the complaint." Id. The precise scope of an insurer's duty to 

defend is defined by the insurance policy itself, to which we apply 

familiar rules of contract interpretation. See B & T Masonry 

Constr. Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 39 (1st Cir. 

2004); Bos. Gas Co. v. Century Indem. Co., 910 N.E.2d 290, 304 

(Mass. 2009). We interpret the words of the policy in light of 

their plain meaning, considering the document as a whole. See B 

& T Masonry, 382 F.3d at 39; Golchin v. Liberty Mut. Ins. Co., 993 

N.E.2d 684, 688 (Mass. 2013). Our construction must be consistent 

with what an objectively reasonable insured, reading the relevant 

policy language, would expect the words to mean. See Hazen Paper 

Co. v. U.S. Fid. & Guar. Co., 555 N.E.2d 576, 583 (Mass. 1990). 
- 8 - 

If this analysis yields two reasonable (but conflicting) 

interpretations of the policy's text, the insured must be given 

the benefit of the interpretation that redounds to his benefit. 

See id. 

In the case at hand, the Policy (to which we add our own 

emphasis and remove original emphasis) states in pertinent part: 

If a claim is made or a suit is brought against any 

insured for damages because of bodily injury or 

property damage caused by an occurrence to which 

this coverage applies, even if the claim or suit is 

false, we will: 

. . . . 

b. provide a defense at our expense of counsel of 

our choice, even if the suit is groundless, false 

or fraudulent. We may investigate and settle any 

claim or suit that we decide is appropriate. 

In Phoenix's view, the Policy therefore provides that it must only 

furnish counsel to defend the insured in the face of a suit but 

may investigate and settle a claim. Thus, it has no obligation to 

provide a defense in the absence of a suit. 

Sanders demurs. He points to the Policy's other 

references to claims or suits and asseverates that the Policy 

obligates the insurer to defend broadly against pre-suit claims. 

This asseveration lacks force. The majority of the references 

that Sanders identifies come from the Policy's credit card, fund 

transfer card, forgery, and counterfeit money provision, which 

covers losses of up to $1,000 incurred due to unauthorized use of 
- 9 - 

the insured's credit cards or similar forms of financial 

misfeasance. The particular subsection most loudly bruited by 

Sanders states: 

Defense: 

a. . . . OUR OBLIGATION TO DEFEND ANY CLAIM 

OR SUIT ENDS WHEN THE AMOUNT WE PAY FOR 

THE LOSS EQUALS OUR LIMIT OF LIABILITY. 

b. If a claim is made or a suit is brought 

against any insured for liability under the 

Credit Card or Fund Transfer Card coverage, 

we will provide a defense at our expense by 

counsel of our choice. 

The location of these statements within the credit card provision, 

coupled with the fact that the claims asserted in this case in no 

way implicate that coverage, persuasively indicates that the 

language cannot reasonably be read to support Sanders's broader 

argument concerning the scope of the basic liability coverage 

afforded by the Policy. While an insurance policy must be read as 

a whole, see Golchin, 993 N.E.2d at 688, that prescription does 

not give a party license to transplant randomly words from one 

provision into the inhospitable soil of an entirely different 

provision. 

Sanders' next argument is no more convincing. He notes 

that the Policy states that Phoenix will cover "reasonable expenses 

incurred by any insured at [its] request . . . for assisting [it] 

in the investigation or defense of any claim or suit." Using this 
- 10 - 

clause as a springboard, he contends that Phoenix has undertaken 

a duty to defend claims as well as suits. 

This glib reading of the quoted language does not 

withstand scrutiny. Giving the language its natural meaning, it 

denotes no more than that — if the company does investigate either 

a claim or a suit — it will reimburse any reasonable expenses 

incurred by the insured. An objectively reasonable insured, 

reading this language, would surely come to this conclusion. 

Of course, the general rule that there is no duty to 

defend before the filing of a suit is not ironclad. For example, 

the SJC has held that a Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA) notice letter from the 

federal Environmental Protection Agency (EPA) to a potentially 

responsible party is sufficiently analogous to a suit as to trigger 

a duty to defend. See Hazen Paper, 555 N.E.2d at 580-81. The 

CERCLA letter notified Hazen Paper that it could be held 

responsible for the release of hazardous substances at a particular 

waste facility. See id. at 578. Hazen Paper asked its insurer to 

defend it in the CERCLA proceeding, but the insurer declined. The 

SJC held that the duty to defend had been triggered, reasoning 

that the litigation defense insurance purchased by Hazen Paper 

would be "substantially compromised" if the insurer's duty to 

defend was not activated by the CERCLA letter. Id. at 580. After 

all, the CERCLA letter itself had severe consequences: without a 
- 11 - 

response, the EPA could proceed unilaterally with its 

administrative action, and subsequent judicial review of the EPA's 

final order would be limited to the administrative record created 

before the EPA. See id. at 581 (citing 42 U.S.C. § 9613(j)(1)). 

Moreover, the EPA's final order would be subject to review only 

under an agency-friendly standard. See id. (citing 42 U.S.C. 

§ 9613(j)(2)). In addition, merely failing to provide requested 

information to the EPA would have exposed Hazen Paper to monetary 

penalties (independent of its potential responsibility for the 

hazardous substances). See id. at 580; 42 U.S.C. § 9604(e). This 

administrative structure, the SJC said, left the insured with "no 

practical choice other than to respond actively to the letter." 

Hazen Paper, 555 N.E.2d at 581-82. To characterize such a response 

as "voluntary" would be "naive." Id. 

In the last analysis, though, the SJC's decision in Hazen 

Paper was quite narrow and case-specific. Among other things, the 

SJC took great pains to distinguish the CERCLA letter from a 

"conventional demand letter based on a personal injury claim." 

Id. at 581. 

Sanders argues that this case comes within the confines 

of the Hazen Paper exception because of his Chapter 93A letter to 

Doe. In support, he notes that failure either to respond to a 

Chapter 93A letter or to make a reasonable settlement offer can 

expose the insured to multiple damages, attorneys' fees, and costs. 
- 12 - 

See Mass. Gen. Laws ch. 93A, § 9(3)-(4). That is true as far as 

it goes — but it does not take Sanders very far. A Chapter 93A 

demand letter is simply not a fair congener to the CERCLA letter 

discussed in Hazen Paper; rather, it is more like a "conventional 

demand letter based on a personal injury claim" — a type of 

communication that the SJC said was insufficient to trigger the 

duty to defend.5 Hazen Paper, 555 N.E.2d at 581. 

In Hazen Paper, the failure to participate in the 

administrative process would have all but forfeited the insured's 

case. Ignoring a Chapter 93A demand letter, however, would not 

"substantially compromise[]" an insured's position: a failure to 

respond produces a much more limited effect. Id. at 580. 

Significantly, Doe's underlying liability could not have been 

affected by the Chapter 93A letter — and his potential exposure to 

 5 The district court agreed with this conclusion, finding the 

Chapter 93A demand letter insufficient to trigger the duty to 

defend. So, too, another district court has held that a Chapter 

21E pre-suit demand letter did not animate the duty to defend. 

See Zecco, Inc. v. Travelers, Inc., 938 F. Supp. 65, 68-69 (D. 

Mass. 1996) (discussing Mass. Gen. Laws ch. 21E, § 4A; comparing 

that provision to Chapter 93A; and reasoning that the Hazen Paper 

court had "carefully avoided opening the door" to having an array 

of pre-suit demand letters impose the duty to defend). Yet a third 

district court, though, has reached a contrary conclusion (but 

held nonetheless that various policy exclusions precluded 

coverage). See Cytosol Labs., Inc. v. Fed. Ins. Co., 536 F. Supp. 

2d 80, 88, 90 (D. Mass. 2008). The Cytosol decision contains very 

little in the way of reasoning on this point, and we find that 

court's conclusion less convincing than the contrary conclusions 

reached by the court below and by the Zecco court. 
- 13 - 

multiple damages, attorneys' fees, and costs would only come to 

fruition if a court established that underlying liability. See 

Mass. Gen. Laws ch. 93A, § 9(3)-(4). 

The short of it is that Chapter 93A demand letters are 

fairly comparable to demand letters sent in anticipation of gardenvariety personal injury litigation. Given the frequency with which 

they are used and the important differences that distinguish them 

from CERCLA letters, we are reluctant to widen the narrow 

boundaries sketched by the Hazen Paper court and hold that Chapter 

93A demand letters are a functional equivalent of a suit. In our 

view, such restraint is particularly appropriate given our status 

as a federal court predicting state law. Cf. Katz v. Pershing, 

LLC, 672 F.3d 64, 73-74 (1st Cir. 2012) (declining to recognize 

novel exception to "bright-line rule" of state law because "federal 

diversity courts are charged with ascertaining state law, not with 

reshaping it"). 

If more were needed — and we do not think that it is — 

there is substantial reason to doubt, based on the facts of this 

case, whether a failure to respond to the Chapter 93A letter would 

have brought about the consequences that Sanders gloomily 

predicts. Chapter 93A applies to "acts or practices in the conduct 

of any trade or commerce." Mass. Gen. Laws ch. 93A, § 2(a). Here, 

however, Sanders alleges that Doe's liability arises from personal 

— rather than professional — misconduct (presumably because the 
- 14 - 

Policy excludes coverage for liability originating from 

professional services rendered by the insured).6

Sanders also submits that the mediation in which he and 

Doe participated was the functional equivalent of a suit and, thus, 

triggered the duty to defend. For this proposition, he relies on 

the decision in Selective Insurance Co. v. Cherrytree Cos., 998 

N.E.2d 701 (Ill. App. Ct. 2013). There, the insurer denied 

coverage for a disputed claim, and the insured entered into a 

settlement agreement with the claimant without suit having been 

filed. See id. at 702-03. The court held that the absence of a 

lawsuit did not insulate the insurer from liability, explaining 

that "the indemnification provision in the policy . . . did not 

require the filing of a 'suit.'" Id. at 709-10. 

Sanders's reliance on Cherrytree is triply misplaced. 

First, Cherrytree is an Illinois case, never adopted by the 

Massachusetts courts. Second, it is black-letter law that the 

policy language determines the scope of coverage, see B & T 

 6 In somewhat the same vein, we note that Sanders also assigns 

error to the district court's ruling that the Policy's professional 

services exclusion barred coverage. But the challenged ruling was 

simply that "[t]o the extent in this action that the plaintiff 

sought coverage of claims based on Doe's professional misconduct 

under the homeowner's policy, the professional services exclusion 

would be effective to preclude those claims." Here, however, the 

liability that Sanders posits is premised upon Doe's decision to 

embark on a volatile intimate relationship with a known vulnerable 

person. Since this asserted liability is not based on a 

professional responsibility theory, any error in the challenged 

ruling is harmless. 
- 15 - 

Masonry, 382 F.3d at 39, and the Policy on which Sanders sues 

contains no provision allowing indemnification without suit. 

Third, the Cherrytree decision did not in any way implicate the 

duty to defend. See Wesco Ins. Co. v. Regas, No. 14 C 716, 2015 

WL 500702, at *6 (N.D. Ill. Feb. 3, 2015) (observing that, in 

Cherrytree, there was "no determination of whether the insurer had 

a duty to defend"). Given these salient distinctions, the 

Cherrytree decision fails to persuade us that the SJC would 

conclude that the mediation conducted in this case was the 

functional equivalent of a suit. 

Bereft of any support in the case law, Sanders's 

suggestion that mediation, in the circumstances of this case, 

should be regarded as the functional equivalent of a suit strikes 

us as patently unreasonable. The mediation to which he adverts 

was a less formal, more ad hoc proceeding, and Doe's involvement 

in it was completely voluntary. So viewed, the mediation was 

markedly different from a lawsuit, which operates under 

established procedural rules and in which a defendant must 

participate to protect his interests. In the face of a lawsuit, 

mounting a defense is a necessity; in the face of a proposal to 

mediate, opting to participate is a strategic choice.7

 7 For essentially the same reasons, we reject Sanders's 

assertion that "alternative dispute resolution proceedings [can 

come] within the scope of policies utilizing the term 'suit' 

alone." Without exception, the few cases that Sanders cites for 
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In an effort to catch lightning in a bottle, Sanders 

emphasizes that Doe's desire for anonymity created an added 

pressure to settle before Sanders filed suit (thus making 

participation in mediation more imperative for fear that Doe's 

name would be exposed in public court documents). This stated 

concern turns a blind eye to familiar procedural protections. 

Sanders could have filed a motion to seal the case along with his 

complaint or, if he did not, Doe himself could have moved to seal. 

See D. Mass. R. 7.2; New Eng. Internet Café, LLC v. Clerk of 

Superior Ct., 966 N.E.2d 797, 803 (Mass. 2012). In the 

alternative, Doe could have sought — whether by agreement or by 

court order — to have his identity safeguarded through the use of 

a pseudonym (which is precisely what transpired here).

To sum up, the Policy, fairly read, draws a clear 

distinction between the duty to defend (which applies to suits 

alone) and the right to investigate (which applies to both suits 

and claims). Giving force to this clear distinction, we hold — as 

did the court below — that Phoenix's duty to defend was never 

triggered (and, thus, never breached) in the circumstances of this 

case. 

 

that proposition involve policies that explicitly include 

arbitration or alternative dispute resolution in their definitions 

of "suit." See, e.g., Sunoco, Inc. v. Ill. Nat'l Ins. Co., No. 

04-4087, 2007 WL 127737, at *11 (E.D. Pa. Jan. 11, 2007). 
- 17 - 

B. Other Theories of Liability. 

Sanders raises a gallimaufry of other theories of 

liability. To begin, he asserts that, even in the absence of a 

duty to defend, Phoenix violated its separate duty to indemnify. 

In his view, the two duties are separate and distinct: the dutyto-defend analysis considers all preliminary allegations, whereas 

the duty-to-indemnify analysis examines the factual merits of the 

case. Phoenix counters that, under Massachusetts law, there can 

be no duty to indemnify if there is no duty to defend. 

As a general matter, the duty to defend is broader than 

the duty to indemnify. See Bagley v. Monticello Ins. Co., 720 

N.E.2d 813, 817 (Mass. 1999). The SJC has made pellucid that "[i]f 

an insurer has no duty to defend, based on the allegations in the 

plaintiff's complaint, it necessarily follows that the insurer 

does not have a duty to indemnify." Id. In other words, the 

broader duty (the duty to defend) swallows up the narrower duty 

(the duty to indemnify). 

Sanders resists this formulation. He lauds decisions 

from other jurisdictions in an effort to cast the SJC's formulation 

into doubt. See, e.g., Grinnell Mut. Reins. Co. v. Reinke, 43 

F.3d 1152, 1154 (7th Cir. 1995) (suggesting that "because of the 

possibility that the legal theory of the underlying suit may 

change, a conclusion that the insurer need not defend does not 

[necessarily] imply that it need not indemnify"). As federal 
- 18 - 

judges sitting in diversity jurisdiction, though, we are not free 

to pick and choose which state's jurisprudence is the most sound. 

Rather, we are duty-bound to accept controlling state law where it 

can be discerned. See Kassel v. Gannett Co., 875 F.2d 935, 949-

50 (1st Cir. 1989). On this issue, then, it is incumbent upon us 

to accept the clear statement of Massachusetts law articulated by 

the SJC. 

Here, moreover, the Policy affords us an independently 

sufficient reason to hold that Phoenix does not have a duty to 

indemnify. The Policy states that "no action with respect to [the 

insured's personal liability coverage] can be brought against 

[Phoenix] until the obligation of the insured has been determined 

by a final judgment or [an] agreement signed by [Phoenix]." In 

this instance, there is neither a final judgment nor a settlement 

agreement executed by Phoenix; there is only a settlement 

negotiated between Sanders and Doe, in Phoenix's absence. 

Consequently, no action lies against Phoenix for indemnification 

under the terms of the Policy. 

Sanders asks us to overlook this Policy language and 

focus instead on the Policy's general indemnification provision. 

That provision states that Phoenix will "[p]ay up to [its] limit 

of liability for the damages for which the insured is legally 

liable." Sanders contends that the phrase "legally liable" does 
- 19 - 

not logically require that the insured's obligation be reflected 

in a final judgment. 

This contention ignores the more specific provision 

cited by Phoenix. It likewise ignores the logical import of that 

provision: that an insured's liability will either be adjudicated 

by a court of law or agreed to by the insurer. Massachusetts law 

teaches that an inquiring court normally should give a more 

specific policy provision priority over a more general policy 

provision, see Certain Interested Underwriters at Lloyd's, London 

v. Stolberg, 680 F.3d 61, 67 (1st Cir. 2012), and Sanders has not 

offered a plausible rationale for abandoning that tenet here. 

This brings us to Sanders's common-law claims sounding 

in tort and breach of contract. Those claims need not detain us. 

The complaint predicates them largely on Phoenix's failure to 

defend or indemnify Doe. But here — as discussed above — Phoenix 

did not have a duty either to defend or to indemnify in the 

circumstances at hand. 

The one remaining claim hinges on Sanders's allegation 

that Phoenix is guilty of unfair and deceptive trade practices in 

violation of Massachusetts General Laws Chapter 176D. 

Specifically, he alleges that Phoenix's liability rests on its 

refusal to effectuate a prompt, fair, and equitable settlement. 

This claim fails for two reasons. For one thing, Phoenix 

has no duty to settle absent a duty either to defend or to 
- 20 - 

indemnify. See Transam. Ins. Co. v. KMS Patriots, L.P., 752 N.E.2d 

777, 783 (Mass. App. Ct. 2001) (explaining that "[w]hen coverage 

has been correctly denied . . . no violation of the Massachusetts 

statutes proscribing unfair or deceptive trade practices may be 

found"). For another thing, Massachusetts law only requires an 

insurer to effectuate settlement once "liability has become 

reasonably clear." Mass. Gen. Laws ch. 176D, § 3(9)(f); see Clegg 

v. Butler, 676 N.E.2d 1134, 1140 (Mass. 1997). Doe's liability to 

Sanders — as a private individual, not an attorney — was far from 

reasonably clear. Sanders has not identified a case in which 

Massachusetts (or any other jurisdiction, for that matter) has 

held an individual's romantic partner responsible for the 

individual's suicide. 

In lieu of case law, Sanders relies on the Restatement 

(First) of Torts section 325, which provides: 

One who gratuitously undertakes with another to do an 

act or to render services which he should recognize as 

necessary to the other's bodily safety and thereby leads 

the other in reasonable reliance upon the performance of 

such undertaking 

(a) to refrain from himself taking the necessary 

steps to secure his safety or from securing the 

then available protective action by third persons, 

or 

(b) to enter upon a course of conduct which is 

dangerous unless the undertaking is carried out, 

is subject to liability to the other for bodily harm 

resulting from the actor's failure to exercise 

reasonable care to carry out his undertaking. 
- 21 - 

Extending the type of voluntary undertaking of another's care that 

section 325 contemplates to participants in an on-again/off-again 

romantic relationship would involve mental gymnastics that we are 

not prepared to undertake. For present purposes, it suffices to 

say that such a leap in logic is far from reasonably clear. 

III. CONCLUSION

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

the judgment is 

Affirmed.