United States Court of Appeals 

For the First Circuit 

No. 19-1188 

RIVER FARM REALTY TRUST; PAUL R. DERENSIS; LINDA DERENSIS, 

Plaintiffs, Appellants, 

v. 

FARM FAMILY CASUALTY INSURANCE COMPANY, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Torruella, Lynch, and Kayatta, 

Circuit Judges. 

James T. Hargrove, with whom Brooks & DeRensis PC was on 

brief, for appellants. 

William A. Schneider, with whom Morrison Mahoney LLP was on 

brief, for appellee. 

November 19, 2019 
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LYNCH, Circuit Judge. River Farm Realty Trust, Paul 

DeRensis, and Linda DeRensis ("River Farm") sued their home 

insurer, Farm Family Casualty Insurance Company ("FFI"), alleging 

breach of contract and violations of Massachusetts General Laws 

chapters 93A and 176D in how the insurer handled their claim for 

residential property damage. The district court entered summary 

judgment for the insurer, concluding that, on this record, no 

reasonable jury could find that FFI violated chapter 176D or was 

in breach of the policy. We affirm. 

I. 

A. Facts 

Because we are reviewing the grant of summary judgment, 

we take all inferences from the facts in favor of River Farm. 

Carlson v. Univ. of New Eng., 899 F.3d 36, 43 (1st Cir. 2018). We 

add that there are no material facts in dispute. 

River Farm is a realty trust which holds title to 262 

South Main Street in Sherborn, Massachusetts. Paul and Linda 

DeRensis reside on this property. In October 2014, FFI issued 

Special Farm Package "10" to River Farm Realty Trust for the policy 

period of November 15, 2014, to November 15, 2015.1

 1 A separate policy, not at issue in this case, was issued 

to Paul DeRensis for the same policy period and provided coverage 

for personal property loss. 
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The policy provides that, in the event of a covered 

property loss, FFI would pay the least of the following: 

(a) the applicable limit of liability; (b) an 

amount not greater than [the insured’s] 

interest in the property; (c) the cost of 

repairing or replacing the property with 

materials of equivalent kind and quality to 

the extent practicable; (d) the amount 

computed after applying the deductible or 

other limitation applicable to the loss; or 

(e) the ACTUAL CASH VALUE of the property at 

the time of loss (except as provided under the 

Replacement Cost Provision, if applicable). 

The policy defines "actual cash value" as "the amount it would 

currently cost to repair or replace the covered property with new 

material of like kind and quality, less allowance for physical 

deterioration and depreciation, including obsolescence."2 The 

liability limit under the policy was $1,263,807 in total, and 

$729,987 was the limit of liability for the River Farm residence 

at 262 South Main Street. 

The policy also contained an amendment that was specific 

to Massachusetts. Under this amendment, the insured must provide 

the insurer with a "signed, sworn statement in proof of loss." 

That proof of loss triggers the obligation of the insurer, within 

thirty days of the insured submitting this statement, to "either 

 2 Because there were no such expenses, not at issue in 

this appeal is another policy provision that stated if the insured 

entity was a residence and became uninhabitable because of a 

covered loss, FFI would pay for living expenses for at most two 

years "for the necessary and reasonable increase in living costs 

[the insured] incur[s] to maintain the normal standard of living." 
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pay the amount for which it shall be liable, which amount if not 

agreed upon, shall be ascertained by award of referees . . . or 

replace the property with other of the same kind and goodness." 

If the insurer fails to comply with the policy within thirty days 

of receiving the statement of loss, it is liable for “the payment 

of interest to the [insured] at a rate of one percent over the 

prime interest rate on the agreed figure.”

The Massachusetts amendment to the policy also allowed 

each of the insured and the insurer to seek a "Reference" if they 

disagreed as to the amount of loss. Massachusetts law requires 

insurance contracts to include this procedure. See Mass. Gen. 

Laws ch. 175, § 99.3 The award selected by a majority of the 

referees "shall be conclusive and final upon the parties as to the 

amount of loss or damage."

In February 2015, ice dams formed at the River Farm 

property. Due to the thawing and refreezing of the ice dams 

through February and early March, water leaked into the residence. 

The DeRensises first contacted FFI by phone on an unspecified date 

around March 3, 2015, to notify it of the damage to the River Farm 

residence but kept no documentation of the call. FFI asserts that 

 3 Under the Reference procedure, the parties refer the 

question of the amount of loss to "three disinterested men, [FFI] 

and [River Farm] each choosing one out of three persons to be named 

by the other." Those two referees choose a third referee. 
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it has no formal record of such a call but acknowledges that notice 

of damage to the residence was given.

On April 27, 2015, Paul DeRensis emailed FFI about a 

separate open claim that River Farm had filed with FFI. That same 

day, Paul DeRensis received an email from Mark Chilton, an adjuster 

from FFI who handled claims made by the DeRensises under different 

FFI policies.4 The email stated: 

I must apologize. Unfortunately when your 

claims arrived at Farm Family they were set up 

as one singular claim where in fact there are 

two separate and distinct claims being 

asserted. Once I had recognized the issue of 

two claims and separated them a record keeping 

issue came to light. . . . [T]he independent 

claim numbers became interchanged. As you can 

see one minor issue led to a number of 

problems. . . . I will work to see you receive 

our coverage determination ASAP. Again, I 

apologize for the confusion and delay. 

Within a week, on May 4, 2015, FFI assigned Scott Howard, 

a Senior Claim Representative, to the River Farm property damage 

claim. That same day, Howard sent Paul DeRensis a letter 

acknowledging receipt of the claim and asking Paul DeRensis to 

give him a call if he had any concerns. Also on the same day, 

Howard selected Dineley Claims Services, a Massachusetts 

adjustment company that he had used in the past, to handle the 

 4 River Farm had several open claims with FFI. These other 

claims included a workmen's compensation claim, a tenant dispute, 

a claim referred to as "Arizona mistaken identity claim," and a 

claim referred to as "Donalds." 
- 6 - 

estimates needed. Dineley Claims Services assigned adjuster Mark 

Whidden to the claim. Howard told Paul DeRensis that FFI would be 

sending a representative to the property.

On May 20, 2015, Whidden inspected the residence in the 

presence of Paul DeRensis. Whidden prepared an estimate5 of the 

damage and mailed it to the DeRensises in June 2015. Whidden 

estimated that the loss to the River Farm residence, less the 

deductible and depreciation, was $17,825.95.6 Both River Farm and 

the insurer were given a copy of this estimate. The estimate 

included a statement that the adjuster had "reached an agreement 

of scope for the repairs with the insured as viewed at [the] 

inspection."

 5 We use the term "estimate" to refer to a prepared report 

that determines the amount of money it will take to repair property 

loss. 

6 Whidden's estimate broke down the loss by area of the 

residence and, within each area, itemized the repairs to be made 

and the costs to conduct those repairs. The areas covered by the 

estimate were the roof, living room, kitchen, dining room, foyer, 

library, "Lindsay's bedroom," and "general" costs. Within each 

area, the estimate listed up to twenty necessary repairs. Examples 

of such itemized repairs include removing and replacing 

insulation, removing and replacing drywall, removing and replacing 

cabinetry, removing and reinstalling appliances, removing and 

replacing wallpaper, removing and replacing crown moldings, 

painting, and construction clean-up costs. The estimate also 

includes $1,365.87 for the application of mildewcide to the walls, 

ceiling, or both in the living room, kitchen, dining room, foyer, 

library, and "Lindsay's bedroom." The estimate also included 

thirty-four photos of damage to the residence. 
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River Farm did not immediately notify the insurer or 

adjuster that it disputed this estimate in whole or in part. Nor 

did River Farm inform either the insurer or the insurer's appraiser 

that River Farm intended to contact contractors to get independent 

estimates. Neither the insurer nor its adjuster received any 

response to Whidden's estimate for close to five months. 

On November 13, 2015, Linda DeRensis faxed a letter to 

Whidden, stating that the DeRensises had consulted with three local 

contractors, each of whom examined different aspects of the damage, 

and "discovered that the estimate [Whidden] provided [was] not 

consistent with local contractors' estimates." That letter 

contained estimates of a total loss of $154,769.93.7 This letter 

was the first notice of any disagreement by River Farm as to the 

insurer's estimate of the recoverable loss.8

 7 Attached to their letter requesting $154,769.93, the 

DeRensises included estimates as to different aspects of the damage 

from three local contractors. The first contractor document, from 

C&L Construction, contained an undated, itemized estimate that 

interior repair would cost $50,600. The second contractor, Mark 

E. O'Connell, gave a nonitemized estimate, dated November 5, 2015, 

for the cost of wallpaper and paint of $14,670. The third 

contractor, Bob Rogers Roofing, provided a nonitemized estimate, 

dated October 27, 2015, of repairs to the roof of $27,940. Bob 

Rogers Roofing also estimated that replacing rotten and damaged 

plywood may cost up to an additional $9,000, which the DeRensises 

added to the $27,940 figure in their request to FFI under the label 

of "roof repair." We note that River Farm's briefing does not 

ever discuss the itemization of the various estimates. 

8 In addition to the three estimates determined by 

contractors, the letter also sought additional costs including 
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The insureds do not allege that Howard ever told them to 

go hire these contractors. At deposition, Linda DeRensis stated 

that she had not invited either Whidden or Howard to the property 

to accompany the contractors. 

It appears that Dineley Claims Services' records show 

receipt of the DeRensises' letter around November 16, 2015. When 

Whidden had not immediately replied to the letter, Linda DeRensis 

called Whidden on an unspecified date between November 13 and 

November 24.9

FFI received the November 13 letter on November 24 and 

Howard immediately attempted to contact the DeRensises. That same 

day, Howard emailed Paul DeRensis that (1) he had received the 

contractor estimates in the November 13 letter, (2) he had tried 

unsuccessfully to reach Paul DeRensis by phone earlier that day 

and left him voicemail messages, and (3) he requested a call to 

"see what we can do to get this resolved for you." Paul DeRensis 

replied by email on that same day stating: 

 

over $42,000 for anticipated hotel costs and furniture damage. 

When these costs are removed, the sum sought was $112,134.93. 

9 River Farm's amended complaint asserts that Whidden 

"falsely" told the DeRensises that he never received the three 

estimates and that Whidden and Richard Dineley of Dineley Claims 

Services told them that they had already received payment for their 

claim. But River Farm did not depose Whidden or Dineley, nor did 

it provide any affidavits or other evidence about such statements. 

Regardless, it is clear that both Whidden and Dineley acknowledged 

the dispute and lack of payment by November 25, 2015, and River 

Farm does not argue it suffered any damages from this. 
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Given how badly this claim handling has been 

botched, I am consulting an attorney this 

morning, not withstanding the requests from 

the adjuster to "start over" and forget the 

past. . . . Every contractor we had to on our 

own find to provide real estimates of this 

loss told us that the adjusters were not 

acting in good faith, and from recent 

conversations with them they present as 

basically scam men. . . . I understand that 

in Massachusetts we may be entitled to treble 

damages arising out of the bad faith botch up, 

plus legal fees, so your exposure is well over 

a half million and rising fast. 

This was the first written notice to the insurer of any claim that 

its adjuster had acted in bad faith. Thereafter, the insurer 

communicated with River Farm's attorney. On November 24, Attorney 

James Hargrove emailed Howard to inform him that he would be 

representing the DeRensises and stated that he hoped to speak about 

the matter the following week. 

On November 23, Linda DeRensis sent an email to Richard 

Dineley thanking him for taking her call, reiterating her 

dissatisfaction with Whidden, and stating that Whidden's estimate 

did not reflect the damage done to the River Farm residence. 

Within two days, at the request of Linda DeRensis, on November 25, 

2015, Dineley assigned the DeRensises' claim to a new adjuster. 

On December 1, 2015, Dineley sent another email to Linda DeRensis 

asking her to contact an adjuster named "Paul." But then, on 

December 2, 2015, Dineley explained he had made a mistake and 

confused her claim with the claim of a different "Linda," and told 
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her that he had assigned Bryan Grandmont to the River Farm claim.10 

A few minutes later, Grandmont emailed Linda DeRensis that he was 

waiting for her attorney's contact information to proceed with the 

claim. 

River Farm does not dispute that between November 24, 

2015, and February 16, 2016, Attorney Hargrove corresponded with 

Howard, and vice versa, mostly via email and phone. The plaintiffs 

say that their claim was not resolved during this period from 

November to February because FFI asked them to get a new estimate 

of the loss to the River Farm residence. 

 10 Dineley Claims Services' undisputed business records 

document the travel of the DeRensises' claim: 

1. Receive claim 5/20/2015 

2. [I]nsured answered phone on 5/25/2015 

. . . Scheduled inspection date 

3. [I]nspected loss 5/26/2015 with only Paul 

DeRensis present . . . Reached agreed scope. 

4. [U]ploaded estimate/final report into 

portal 5/29/2015 

5. [R]eceived phone call from the insured's 

wife on 11/23/2015 stating check was not 

received and black mold now present. Also 

claiming our estimate is not enough to make 

needed repairs. The insured stated no repairs 

have been made to date. Our photos taken on 

date of inspection shows the roof and siding 

to be very old. Only one shingle was found to 

be damaged. Interior showed small scattered 

areas of damage. 

6. 11/23/2015 reviewed letter from insured 

and telephoned the insured three times with no 

answer. 

7. File reopened/reassigned to local 

adjuster[.]
- 11 - 

The emails reveal that on December 3, 2015, Attorney 

Hargrove told Howard that he was waiting on a new estimate from a 

local contractor. Howard replied the same day and told Attorney 

Hargrove to contact him whenever he was ready to discuss the claim. 

Howard and Attorney Hargrove then set up a phone conversation on 

December 4, 2015. On December 17, 2015, Howard emailed Attorney 

Hargrove to follow up on their phone conversation and to ask if 

the plaintiffs had received the new estimate. Attorney Hargrove 

responded via email the same day and stated that he had not yet 

received the estimate. Howard again followed up via email on 

January 29, 2016, to check on the status of the new estimate. 

No new estimate was sent to Howard until February 16, 

2016, when Attorney Hargrove emailed Howard a "preliminary 

statement of loss and associated estimates," which claimed the 

loss was $236,438.11 This was a $81,668.07 increase over the 

insured's estimate of loss of $154,769.93 three months before. 

That same day, Howard acknowledged receipt of the 

estimate and then contacted Attorney Hargrove on February 24, 

2016, to set up a time to discuss the claim. Given the increase 

in the insured's estimate, FFI requested that its estimator 

 11 This estimate was largely generated by a new contractor 

named Lincoln Barber. Barber compiled estimates from several other 

contractors that estimated the total cost to repair the residence 

would be $208,498. Also included with this request was the prior 

estimate of $27,940 to repair the roof. 
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reinspect the River Farm residence. On February 29, 2016, Howard 

confirmed that his independent adjuster, Grandmont, would be 

present at the second inspection. 

The second inspection by the insurer's agent took place 

on March 2, 2016, within fifteen days of the date of Attorney 

Hargrove's new estimate. Present at this inspection were Howard, 

Grandmont, Linda DeRensis, Attorney Hargrove, and contractor 

Lincoln Barber. 

On March 18, 2016, FFI received and sent to Attorney 

Hargrove Grandmont's new, increased estimate for FFI, which 

determined that the loss to River Farm (but not including the roof 

damage),12 less the deductible and depreciation, was $28,005.21. 

FFI then issued payment to the DeRensises for $28,005.21. The 

DeRensises disagreed with this amount and on March 28, 2016,

Attorney Hargrove sent a letter to Howard demanding Reference on 

behalf of the DeRensises pursuant to Massachusetts General Laws 

chapter 175, section 99. 

The Reference proceeding, a two-day hearing, was 

conducted in June/July 2016. The insurer states, and River Farm 

 12 The Grandmont estimate for FFI did not include any sum 

for roof repairs, nor did it purport to do so. The insurer 

explained that Grandmont was unable to inspect the roof because 

the DeRensises' roofing contractor had covered the roof with tarps 

and did not come out to remove the tarps before the inspection. 

The insurer offered to pay for the roofing contractor to come back 

to remove the tarps, but the DeRensises asked for a check before 

the work was done, and no check was issued. 
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does not dispute, that the parties agreed on a figure, not provided 

to us, for the roof repairs, and submitted that figure to the 

Reference Panel.13 Putting aside any sum for roof repairs, FFI 

requested that the referees find that Grandmont's inspection 

correctly determined the remaining amount of loss. River Farm's 

requests to the Reference Panel changed over time. On June 3, 

2016, River Farm claimed that the building loss on an actual cash 

value basis was $240,173.45, but on June 27, 2016, River Farm 

increased its estimate to $257,997.97. 

In its closing memorandum to the Reference Panel, the 

insurer provided its explanation for the varying estimates and 

demands over time: 

This was not a situation where the insureds 

disclosed information in a timely fashion 

sufficient to allow the insurance company to 

conduct a reasonable investigation based upon 

. . . all available information before having 

to address new claim material at Reference. 

Putting those issues aside, the view of the 

insured's residence in evidence did not 

support the insured's total building claim of 

$240,173.00 on a replacement cost basis. 

On July 20, 2016, the Reference Panel determined that 

the "Building Replacement Cost Loss," including the roof, was 

 13 In its closing memorandum to the Reference Panel, the 

insurer further explained that a new roofer met with a contractor 

named Mark Dill of Bergeron Construction and the two agreed on the 

scope of loss to the roof. For this reason, the insurer requested 

that the Panel disregard the plaintiffs' estimate from Bob Rogers 

Roofing. 
- 14 - 

$153,208 and the amount recoverable on an actual cash value basis 

was the lesser sum of $137,888. On August 17, 2016, FFI paid the 

DeRensises the actual cash value amount determined by the Reference 

Panel less the amount already paid, for a total of $109,882.78. 

On September 22, 2016, Attorney Hargrove wrote to FFI 

demanding payment of $147,397.77, which included legal fees, 

Reference expenses, and an "Additional Reference Award," based on 

alleged violations of Massachusetts General Laws chapters 93A and 

176D. 

FFI responded on October 21, 2016, and offered the 

DeRensises $7,766.58, which reflected six percent interest on the 

funds River Farm was unable to use during the course of the 

dispute. FFI sought a signed release in return, but the DeRensises 

refused and the $7,766.58 was not paid to them. 

In January 2017, the DeRensises sought14 from the insurer 

a six-month extension of the two-year period under the policy to 

submit different claims for the cost of replacement to the 

residence and additional living expenses. FFI declined. 

B. Procedural History of the Litigation 

On November 23, 2016, River Farm filed an unverified 

complaint against FFI, alleging breach of contract and violations 

 14 The DeRensises did not allege that they incurred 

additional living expenses, nor did they submit any documents 

showing repairs made to the residence. 
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of chapters 93A and 176D. We describe the allegations in the 

analysis below. 

On June 8, 2017, FFI moved for summary judgment, 

supporting its motion with twenty-seven exhibits that documented 

the insurer's communications with the insureds throughout the 

dispute, the estimates of both FFI adjusters, the estimates from 

the plaintiffs' contractors, Dineley Claims Services' internal 

claim notes, the depositions of Scott Howard and Paul and Linda 

DeRensis, the plaintiffs' pre-hearing memoranda submitted to 

Reference, and the final Reference award. 

River Farm opposed, relying on copies of the email and 

mail correspondence between FFI and River Farm, the depositions of 

Scott Howard and Paul and Linda DeRensis, the internal policies of 

FFI, claim notes from Dineley Claims Services employees, the two 

estimates from FFI, the plaintiffs' own estimates from November 

and February, portions of the materials submitted to the Reference 

Panel by both parties, and the Reference award. River Farm did 

not depose anyone besides Howard. Nor did it submit affidavits 

from the DeRensises, offer any evidence or argument as to insurance 

industry standards, or provide any evidence that what FFI did was 

in violation of any such standards.

The district court granted FFI's summary judgment motion 

on February 4, 2019. River Farm Realty Tr. v. Farm Family Cas. 
- 16 - 

Ins. Co., 360 F. Supp. 3d 31, 46 (D. Mass. 2019). River Farm 

timely appealed. 

II. 

We review the district court's grant of summary judgment 

de novo, taking the facts and drawing all reasonable inferences in 

the light most favorable to the nonmoving party. Rando v. Leonard, 

826 F.3d 553, 556 (1st Cir. 2016). Summary judgment is appropriate 

where "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). As a federal court sitting in diversity, we apply 

Massachusetts law. Mulder v. Kohl's Dep't Stores, Inc., 865 F.3d 

17, 20 (1st Cir. 2017). 

Massachusetts law is quite clear that summary judgment 

may be appropriately entered in insurance coverage disputes under 

chapter 176D. See, e.g., Bobick v. U.S. Fid. & Guar. Co., 790 

N.E.2d 653, 654 (Mass. 2003); Silva v. Steadfast Ins. Co., 35 

N.E.3d 401, 408 (Mass. App. Ct. 2015). It is also quite clear 

that the boundaries of what are viable claims under chapter 176D 

are matters of law for the court to decide. See Silva, 35 N.E.3d 

at 408 (stating, in the context of assessing a grant of summary 

judgment to the insurer on the plaintiff's chapter 176D claim, 

that "the boundaries of what may qualify for consideration as a 

[G.L.] c. 93A violation is a question of law" (alteration in 

original) (quoting Chervin v. Travelers Ins. Co., 858 N.E.2d 746, 
- 17 - 

759 (Mass. 2006))). Summary judgment is appropriate where the 

insurer's actions fall outside those boundaries. See id. at 407-

08. 

A. Chapter 176D Claim 

River Farm argues that the district court erred in 

concluding that no reasonable jury could find that FFI had violated 

Massachusetts General Laws chapter 176D. River Farm on appeal 

most heavily relies for its chapter 176D claim on two basic 

theories. It says a violation of chapter 176D is established by 

the amount of time which FFI took to resolve the claim from the 

first notice of a claim in March 2015 to the Reference award in 

July 2016. It also argues that such a violation is established by 

the disparity in amounts between FFI's estimates, River Farm's 

demand in November, and the final Reference award. 

The pertinent state law, chapter 176D, section 3 states 

that "unfair claim settlement practices" constitute "unfair 

methods of competition and unfair or deceptive acts or practices 

in the business of insurance." Mass. Gen. Laws ch. 176D, § 3. 

Subsection 9 of section 3 lists fourteen acts or omissions that 

constitute "unfair claim settlement practice[s]." Id. 

§ 3(9)(a)-(n). For a consumer plaintiff, a violation of 

chapter 176D, section 3(9) constitutes a violation of chapter 93A. 

See Polaroid Corp. v. Travelers Indem. Co., 610 N.E.2d 912, 917 
- 18 - 

(Mass. 1993).15 But a plaintiff engaged in "trade or commerce" may 

only use a violation of chapter 176D as evidence of a chapter 93A 

violation. See id. Like the district court, we treat this as a 

section 9 case, but do not think the result would be different 

under section 11. This case is resolved on its particular facts, 

not on broad statements utilizing per se rules under Massachusetts 

chapter 176D law. 

The central inquiry under chapter 176D is the 

reasonableness of the insurer's actions, regardless of whether the 

plaintiffs are consumers or engaged in trade or commerce. See 

Bobick, 790 N.E.2d at 658. "The standard for examining the 

adequacy of an insurer's response to a demand for relief under 

G.L. c. 93A, § 9(3) is 'whether, in the circumstances, and in light 

of the complainant's demands, the offer is reasonable.'" Id. 

 15 The district court stated that the Supreme Judicial 

Court (SJC) decisions in this area show that chapter 176D should 

be read "narrowly," relying on Van Dyke v. St. Paul Fire & Marine 

Ins. Co., 448 N.E.2d 357, 362 (Mass. 1983), and Morrison v. Toys 

"R" Us, Inc., 806 N.E.2d 388, 393 (Mass. 2004). We do not read 

these cases to support this statement. 

River Farm argues that the district court relied on 

irrelevant case law because the relationship between River Farm 

and FFI was that of insured and insurer, not the more adversarial 

third-party-insurer relationship. But the SJC has stated that 

both types of relationships are covered by chapter 176D. See Clegg 

v. Butler, 676 N.E.2d 1134, 1139 (Mass. 1997). Further, the case 

law that River Farm provided in support of this position at oral 

argument, Brandley v. U.S. Fid. & Guar. Co., 819 F. Supp. 101 (D. 

Mass. 1993), does not support this view and this opinion was 

subsequently withdrawn and vacated. 
- 19 - 

(quoting Clegg v. Butler, 676 N.E.2d 1134, 1140 (Mass. 1997)). 

Ordinarily, mere negligence by an insurer "does not represent an 

unfair or deceptive act." Boyle v. Zurich Am. Ins. Co., 36 N.E.3d 

1229, 1241 (Mass. 2015). It may be that evidence of bad faith is 

also required. See Guity v. Commerce Ins. Co., 631 N.E.2d 75, 77-

78 (Mass. App. Ct. 1994) ("An absence of good faith and the 

presence of extortionate tactics generally characterize the basis 

for a c. 93A--176D action based on unfair settlement practice."). 

Further, the SJC has rejected the proposition that an insurer must 

provide "evidence of insurance industry practices in similar 

circumstances and expert testimony" in order to prove that it acted 

reasonably. Bobick, 790 N.E.2d at 659. 

The insureds' claims are paraphrases of the wording of 

several sections of chapter 176D, section 3, representing the two 

general themes outlined above. 

 1. Length of Time to Resolution 

We deal first with the insured's argument that FFI 

"fail[ed] to acknowledge and act reasonably promptly upon 

communications with respect to claims arising under insurance 

policies." Mass. Gen. Laws ch. 176D, § 3(9)(b). We break down 

the argument, as to the different periods of time. 

As to the period of time between River Farm's report of 

the claim in early March and the reply from FFI on April 27, there 

is no evidence that this time period was unreasonable, and 
- 20 - 

certainly no evidence it occurred out of a desire to delay or bad 

faith. See Doe v. Liberty Mut. Ins. Co., 667 N.E.2d 1149, 1153 

(Mass. 1996) (granting summary judgment to insurer on chapter 176D, 

section 3(9)(b) claim even though insurer failed to respond to 

plaintiff for six months in part because nothing in the record 

showed the delay was "the result of bad faith or ulterior 

motives"). FFI explained its delay in responding as a result of 

its confusion as to several outstanding claims, and then promptly 

sent an adjuster to the property. Even if there was negligence by 

FFI, negligence is not enough to show a chapter 176D violation. 

See Boyle, 36 N.E.3d at 1241. 

We next look to the period between the first estimate 

by the insurer's agent in June 2015 and the response from the 

insureds in November and thereafter. The DeRensises did not inform 

FFI that they disagreed with the estimate or that they were seeking 

separate estimates as to the damage. Once the DeRensises sent the 

letter to the adjuster on November 13, FFI timely responded via 

email on November 24, the day FFI received the letter. From that 

date on, FFI regularly corresponded with the DeRensises' attorney 

by email and phone to get the matter resolved. FFI also complied 

with the Reference procedure once invoked. River Farm points to 

no evidence that FFI acted unreasonably in the time it took to 

respond.
- 21 - 

We turn to River Farm's assertion that the insurer 

"fail[ed] to affirm or deny coverage of claims within a reasonable 

time after proof of loss statements [had] been completed." Mass. 

Gen. Laws ch. 176D, § 3(9)(e).16 We see no evidence that the 

insurer denied coverage at any time. The dispute was about 

estimates of loss, not coverage, and as said above, FFI 

continuously was in touch with River Farm's attorney about the 

differences in estimated loss until River Farm invoked Reference 

in March 2016. No reasonable jury could conclude that FFI 

"fail[ed] to affirm or deny coverage of claims within a reasonable 

time." Id. 

River Farm next argues that FFI "fail[ed] to effectuate 

prompt, fair and equitable settlements of claims in which liability 

ha[d] become reasonably clear." Mass. Gen. Laws ch. 176D, 

§ 3(9)(f). We treat this as separate from the argument that the 

insurer's estimates of loss were unreasonably low, a topic to which 

we return. Massachusetts law is clear that there is no violation 

of chapter 176D where the insurer and insured had a "legitimate 

 16 We bypass the fact that the insureds do not dispute that 

they never provided FFI with a sworn proof of loss statement. They 

instead argue that FFI waived this requirement and that the 

information River Farm provided to FFI in November 2015 serves as 

a substitute for a sworn proof of loss under Massachusetts General 

Laws chapter 175. See Mass. Gen. Laws ch. 175, § 102 (describing 

insurer's obligation if insured fails to provide sworn statement 

and insurer fails to request one). We need not reach this 

argument. 
- 22 - 

difference of opinion as to the extent of . . . liability." 

Bobick, 790 N.E.2d at 659; see also Silva, 35 N.E.3d at 408 

(affirming summary judgment for insurer on chapter 176D, 

section 3(9)(f) claim because insured, rather than seeking to 

enforce a judgment in his favor or make a settlement request, 

appealed the judgment and so "open[ed] up both the scope of 

liability and the amount of damages"). 

Further, under Massachusetts law, "a duty to settle does 

not arise until 'liability has become reasonably clear' . . . 

and . . . liability encompasses both fault and damages." Clegg, 

676 N.E.2d at 1140 (quoting Mass. Gen. Laws ch. 176D, § 3(9)(f)). 

Although "excessive demands on the part of a 

claimant . . . do not relieve an insurer of its statutory duty to 

extend a prompt and equitable offer of settlement once liability 

and damages are reasonably clear," these excessive demands "may be 

considered as part of the over-all circumstances affecting the 

amount that would qualify as a reasonable offer in response." 

Bobick, 790 N.E.2d at 660-61. 

The plaintiffs' own asserted estimates rose from 

$154,769.93 in November 2015, to $236,438 in February 2016, and to 

a demand of $257,997.97 in June 2016. And the sum finally awarded 

was $120,109.97 less than plaintiffs' last demand. The disparity 

between the award and the insurer's last estimate (plus an agreedon sum for roof damage) was less than that. Here, as described, 
- 23 - 

the total amount of losses claimed by each side changed 

significantly over the course of the dispute, suggesting that each 

was reacting to changing information not necessarily discerned at 

the outset. 

2. Discrepancy Between Various Estimates 

We turn to the argument that the large disparities 

between FFI's June 2015 estimate, the plaintiffs' November 2015 

demands, the insurer's second estimate in March 2016, and the final 

Reference award establish a chapter 176D violation. River Farm 

couches this in the terms that FFI "refus[ed] to pay claims without 

conducting a reasonable investigation based upon all available 

information." Mass. Gen. Laws ch. 176D, § 3(9)(d). 

Disparity in amounts offered and amount awarded may, of 

course, be relevant, but cannot be subject to per se rules, and 

depends on the totality of the facts. The SJC has dealt with a 

variation of our own situation. In Bobick, the SJC affirmed the 

entry of summary judgment for the insurer on the plaintiff's 

chapter 176D claim where the disparity of $10,000 between the 

initial estimate and the award was "not substantially less than 

the amount ultimately determined by a jury to be the proper measure 

of damages" and there was no other evidence that the estimate was 

unreasonable. Bobick, 790 N.E.2d at 660. Significantly, the SJC 

nevertheless cautioned that the final award, in that case a jury 
- 24 - 

verdict, "may not constitute in all circumstances a definitive 

measure of reasonableness." Id. 

We also follow the SJC's statement that settlement 

negotiation within the range of reasonable positions is, "to an 

extent, a legitimate bargaining process" and "[e]xperienced 

negotiators do not make their final offer first off, and 

experienced negotiators do not expect it, or take seriously a 

representation that it is." Id. (quoting Forcucci v. U.S. Fid. & 

Guar. Co., 11 F.3d 1, 2 (1st Cir. 1993)). 

We first look to the large disparity between FFI's 

initial estimate of $17,825.95 for property damage in June 2015 

and the Reference award of $137,888 some thirteen months later in 

July 2016. The mere fact that the initial opening estimate, likely 

made before all the damage manifested itself, was less than what 

FFI later offered does not mean that it was outside the scope of 

reasonableness. Each set of estimates, whether from the insurer 

or the insureds, at all times covered the same three basic areas 

of damage -- to residence interior, to paint, and to the roof (save 

for the express reservation as to the roof in the last insurer 

estimate). Yet River Farm does not identify, by evidence or even 

argument, the ways in which FFI failed to act reasonably in 

estimating the damage. Nor does it make any effort to show or 

argue that what the insurer did in any estimate varied from 

industry practice. FFI's initial estimate is detailed and includes 
- 25 - 

specific statements of loss for particular rooms in the River Farm 

residence. River Farm provides no evidence or even argument as to 

which of these itemized estimated costs, if any, were unreasonable 

at the time made. At oral argument, when asked for such evidence, 

River Farm pointed us to its opposition to summary judgment. But 

that opposition does not contain greater specificity, nor any 

evidence other than the fact of different figures. 

The passage of time between initial estimate and final 

award and the nature of the damage are also relevant. As the 

insurer sensibly points out, water and ice damage occurring over 

a New England winter may manifest itself more visibly and more 

broadly as time goes on and temperatures warm up. 

The discrepancy argued by River Farm between the 

insured's $154,769.93 estimate in the November 13, 2015 letter, 

and Grandmont's $28,005.21 estimate in March 2016 also does not 

support a finding of unreasonableness. River Farm compares apples 

to oranges. First, the November 13 letter included close to 

$43,000 for anticipated hotel rental and for furniture damage, 

which concededly are not reimbursable as actual cost associated 

with property damage. Excluding those costs, this brings the 

insured's estimate down to $112,134.93, assuming in River Farm's 

favor that all the other items listed are recoverable. Of this 

amount, $36,940 was for roof damage. Second, Grandmont's estimate 

explicitly did not include, and reserved on, roof damage. If the 
- 26 - 

figure for the roof damage is excluded from the November 13 letter, 

then the $112,134.93 insured's demand is reduced to $75,194.93. 

The difference between this value and Grandmont's estimate is the 

much lower sum of $43,969.27.17

Finally, we look to the difference between FFI's second 

estimate of $28,005.21 in March 2016 and the final Reference award 

of $137,888, where the Reference award included an agreed-upon sum 

for the roof.18 Again, River Farm compares apples to oranges. The 

Reference award contains a figure for the roof while the March 

2016 estimate does not. The parties do not provide us with the 

agreed-upon sum for the roof, so we are unable to determine the 

true disparity between FFI's second estimate and the final 

Reference award. River Farm has provided no evidence, only 

argument, that the second estimate was unreasonable.19 The 

insurer's agreement with the insured as to the amount of the roof 

 17 Because the insured's requested sums are calculated on 

a replacement cost basis, we used Grandmont's replacement cost 

estimate, less the $500 deductible, of $31,225.66 in order to 

determine the difference between the two estimates. 

18 River Farm's only argument to the district court 

regarding the disparity between the $28,005.21 estimate and the 

Reference award was that it "is less than one-sixth of the 

Reference Award" and constituted a "lowball" offer. Any other 

arguments are waived. 

19 The second insurer March 2016 estimate includes a 

detailed report which lists the repairs needed in each damaged 

room of the residence. River Farm again does not tell us which 

parts of this estimate were unreasonable when made or point to any 

evidence as to why this is so. 
- 27 - 

damage and the submission of that agreed sum to the Reference Panel 

also diminish any argument as to unreasonableness. 

On this record, this is insufficient to defeat summary 

judgment. 

3. Miscellaneous Arguments 

In addition to its specific claims of error under 

chapter 176D, River Farm generally argues that FFI acted in bad 

faith. As proof, River Farm points to FFI's refusal to grant it 

an extension to make additional claims for replacement costs and 

living expenses. Even if the policy permitted recovery for these 

costs, FFI's decision not to waive the two-year time limit does 

not show an absence of good faith, especially when River Farm 

substantially contributed to the time periods involved.20

As to River Farm's general argument that the district 

court failed to view the facts in the light most favorable to River 

Farm because it failed to discuss various allegations made by River 

Farm, we reject this challenge. A nonmovant cannot rely "merely 

upon conclusory allegations, improbable inferences, and 

unsupported speculation" to defeat summary judgment. Pina v. 

Children's Place, 740 F.3d 785, 796 (1st Cir. 2014) (quoting Dennis 

v. Osram Sylvania, Inc., 549 F.3d 851, 855-56 (1st Cir. 2008)); 

 20 River Farm also says that FFI's proposal of $7,766.58 in 

response to the demand letter shows bad faith but does not develop 

this argument, so it is waived. See United States v. Zannino, 895 

F.2d 1, 17 (1st Cir. 1990).
- 28 - 

see Haverty v. Comm'r of Corr., 776 N.E.2d 973, 985 (Mass. 2002) 

("An adverse party may not manufacture disputes by conclusory 

factual assertions; such attempts to establish issues of fact are 

not sufficient to defeat summary judgment." (quoting Ng Bros. 

Constr., Inc. v. Cranney, 766 N.E.2d 864, 872 (Mass. 2002))). 

River Farm provides no evidentiary support for most of its 

allegations. 

Finally, River Farm argues that it is entitled to a jury 

trial under Full Spectrum Software, Inc. v. Forte Automation 

Systems, Inc., 858 F.3d 666 (1st Cir. 2017). Even if there were 

such a jury trial right, this would not entitle River Farm to a 

jury trial absent a genuine dispute of material fact. See, e.g., 

Bobick, 790 N.E.2d at 654 (reversing appeals court's denial of 

summary judgment for insurer on chapter 176D claims). Further, 

Full Spectrum stated that "there is no precedent from our circuit 

that resolves whether the Seventh Amendment requires that a chapter 

93A claim be tried to a jury in federal court," and concluded that 

it would "leave for another day a fuller consideration of the 

extent to which the Seventh Amendment may apply to chapter 93A 

claims." Full Spectrum, 858 F.3d at 678. 

B. Breach of Contract Claim 

The entry of summary judgment on the breach of contract 

claim is easily affirmed. To show a breach of contract under 

Massachusetts law, a plaintiff "must demonstrate that there was an 
- 29 - 

agreement between the parties; the agreement was supported by 

consideration; the plaintiff was ready, willing, and able to 

perform his or her part of the contract; the defendant committed 

a breach of the contract; and the plaintiff suffered harm as a 

result." Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 39 (Mass. 

2016). The policy states that FFI must pay the least of five 

values, one of which is the "actual cash value" at the time of 

loss. If there is a dispute, the policy states that FFI shall 

comply with the Reference procedure. A dispute arose in November 

and once River Farm invoked the procedure, FFI complied and paid 

the actual cash value as determined by the referees. There was no 

breach of the contract.21

Because we have determined that FFI is not liable for 

breach of contract or a chapter 176D violation, we do not reach 

River Farm's arguments as to the appropriate amount of damages. 

 We do not say that the insurer FFI behaved admirably, 

and it may have been negligent at times. But liability under 

chapter 176D is not imposed for mere negligence and River Farm has 

simply failed to produce evidence in support of its assertions. 

 21 River Farm has waived any argument based on the implied 

covenant of good faith and fair dealing because this argument was 

never raised to the district court and "arguments not made 

initially to the district court cannot be raised on appeal." 

DiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001) 

(quoting St. Paul Fire & Marine Ins. Co. v. Warwick Dyeing Corp., 

26 F.3d 1195, 1205 (1st Cir. 1994)). In any event, as our 

discussion makes clear, the claim is without merit. 
- 30 - 

Affirmed. No costs are awarded.