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SJC-11477

AUTO FLAT CAR CRUSHERS, INC. vs. HANOVER INSURANCE COMPANY.

Norfolk. May 5, 2014. - October 15, 2014.

Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk, 

JJ.1

Insurance, Insurer's obligation to defend, Coverage. Consumer 

Protection Act, Insurance, Availability of remedy, Damages, 

Unfair or deceptive act. Contract, Insurance, Performance 

and breach, Damages, Indemnity. Damages, Consumer 

protection case, Breach of contract. Indemnity. 

Declaratory Relief. Environment, Environmental cleanup 

costs.

Civil action commenced in the Superior Court Department on 

May 20, 2009.

A motion for partial summary judgment was heard by E. Susan 

Garsh, J.; motions for partial summary judgment were heard by 

Elizabeth B. Donovan, J.; a motion for summary judgment on the 

remaining issue was heard by Raymond P. Veary, Jr., J.; and the 

case was reported to the Appeals Court by Kenneth J. Fishman, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Donald V. Jernberg (John J. McMaster with him) for the 

plaintiff.

 

1 Chief Justice Ireland participated in the deliberation on 

this case prior to his retirement.
2

Aaron R. White for the defendant.

The following submitted briefs for amici curiae:

John P. Ryan & Harry A. Pierce for Massachusetts Insurance 

Federation, Inc.

Jonathan M. Feigenbaum for United Policyholders.

J. Michael Conley, Hans R. Hailey, Thomas R. Murphy, & 

Danielle M. Spang for Massachusetts Academy of Trial Attorneys.

LENK, J. The plaintiff's insurer refused to defend or to 

indemnify the plaintiff in connection with an environmental 

dispute involving the Department of Environmental Protection 

(DEP). Several years later, the plaintiff, having by then 

funded both its own defense and the environmental remediation 

ordered, brought suit against the insurer, alleging breach of 

contract and seeking declaratory relief; on a motion for partial 

summary judgment, the plaintiff obtained declaratory relief 

establishing the insurer's duty to defend. The plaintiff then 

amended its complaint to assert a claim under G. L. c. 93A, § 11 

(§ 11), arising out of the insurer's failure to defend; the 

insurer did not avail itself of the statutory mechanism 

permitting a defendant to limit its liability to single damages 

by tendering with its answer a written offer of settlement. See 

G. L. c. 93A, § 11, fifth par. Thereafter, and while reserving 

its rights as to its pending claims, the plaintiff accepted 

reimbursement from the insurer, with interest, for its expenses 
3

in litigating and resolving the DEP matter. It is the 

consequence of having done so that gives rise to this appeal.2

The essential question before us is whether the plaintiff, 

having been thus compensated for its losses, may nonetheless 

continue to press its pending claims, particularly under G. L. 

c. 93A. The insurer maintains that, because the plaintiff has 

no uncompensated losses, its contract claims must fail as a 

matter of law, as must its G. L. c. 93A claim, since, as to the 

latter, the plaintiff no longer can establish the requisite 

"loss of money or property" constituting actual damages for 

purposes of § 11. The insurer also asserts that the G. L. 

c. 93A claim must fail for the separate reason that, absent a 

judgment on the plaintiff's breach of contract claims

establishing an amount of actual damages, and where the 

plaintiff has been made whole, there is no predicate for 

calculating multiple damages under G. L. c. 93A.

We conclude that, because the statute does not require a

plaintiff to demonstrate uncompensated loss or to obtain a 

judgment on an underlying claim in order to proceed, neither the 

plaintiff's acceptance of full reimbursement of its expenses nor 

 

2 We acknowledge the amicus briefs submitted by the 

Massachusetts Academy of Trial Attorneys and United 

Policyholders on behalf of Auto Flat Car Crushers, Inc. We also 

acknowledge the amicus brief submitted by the Massachusetts 

Insurance Federation, Inc., on behalf of Hanover Insurance 

Company.
4

the absence of a judgment establishing contract damages 

precludes the plaintiff from pursuing a claim under G. L. 

c. 93A. In the circumstances here, however, the plaintiff may 

not press its remaining contract and declaratory judgment 

claims.

1. Background and prior proceedings. a. Factual 

background. The plaintiff, Auto Flat Car Crushers, Inc. (Auto 

Flat), operates a vehicle-crushing service in Millis. At all 

relevant times, it has been insured under a garage insurance 

policy3 issued by the defendant, Hanover Insurance Company 

(Hanover). In February, 2004, Auto Flat was hired to remove 600

vehicles from an automobile salvage yard in Spencer. The 

removal process entailed detaching the vehicles' fuel tanks and 

emptying their contents into large drums before crushing the 

vehicles.

In March of that year, Auto Flat received a notice of 

responsibility from the DEP, pursuant to G. L. c. 21E, informing 

it that a release of oil or other hazardous material had 

occurred at the salvage yard in Spencer. DEP identified Auto 

Flat as "a party with potential liability" and ordered it to 

take various responsive actions.

 

3 A garage insurance policy is a commercial policy designed 

to address the needs of automobile dealers and others in the 

business of servicing automobiles.
5

Auto Flat advised Hanover of the notice and sought defense 

and indemnification in the matter. By letter dated June 4, 

2004, Hanover denied coverage, claiming that the loss "did not 

arise out of the ownership, maintenance or use of the garage 

location," nor was it "a result of operations incidental to a 

garage business." Hanover also cited the policy's pollution 

exclusion as barring coverage for Auto Flat's losses. After 

Auto Flat renewed its request for coverage, Hanover issued 

another denial letter, dated November 9, 2004, referring to 

exclusions not mentioned in its first letter.

In August, 2008, having incurred considerable legal 

expenses and remediation costs in connection with the thenconcluded DEP matter, Auto Flat again contacted Hanover, 

asserting its "conclusion that Hanover improperly denied both 

defense and indemnity coverage." After Hanover reaffirmed its 

denial of coverage, citing the reasons given in its first letter 

of denial, Auto Flat commenced its action in the Superior Court.

Auto Flat's four-count complaint (1) sought a declaration 

that Hanover had a duty to defend Auto Flat against DEP 

allegations that it had released hazardous materials into the 

environment; (2) alleged breach of contract by virtue of 

Hanover's failure so to defend; (3) sought a declaration that 

Hanover had a duty to indemnify Auto Flat for the costs of 

complying with DEP's cleanup directives; and (4) alleged breach 
6

of contract by virtue of Hanover's failure so to indemnify. 

Hanover filed counterclaims seeking a declaratory judgment on 

the claims concerning the duty to defend and the duty to 

indemnify. Three entries of partial summary judgment followed, 

which we discuss in turn.

b. Partial summary judgment on duty to defend (count 1) 

and subsequent correspondence between parties. In December, 

2009, a Superior Court judge allowed Auto Flat's motion for 

partial summary judgment on count 1, the duty to defend, ruling 

that the policy provided Auto Flat with coverage for a defense 

against the DEP allegations. In March, 2010, Auto Flat amended 

its complaint to add a fifth count alleging that Hanover's 

denial of such defense constituted a violation of G. L. c. 93A.4

On May 6, 2010, at Hanover's request, Auto Flat sent 

Hanover an accounting of its expenses to that point. The 

accounting included legal fees incurred in connection with the 

DEP matter and in establishing Hanover's duty to defend, and 

cleanup costs incurred at the behest of DEP. A few days later, 

and approximately six years after Auto Flat first made a claim 

for insurance coverage, Hanover agreed to reimburse Auto Flat 

for all of its expenses, less certain downward adjustments where 

it stated that Auto Flat's figures were legally unwarranted or 

 

4 Because both Auto Flat and Hanover are engaged in the 

conduct of trade or commerce, G. L. c. 93A, § 11, rather than 

G. L. c. 93A, § 9, applies.
7

insufficiently documented. Hanover enclosed a check for 

$449,924.47 with its letter; the check included both $314,170.70 

for payment of expenses incurred5 and $135,753.77 in interest. 

Hanover stated that it would "consider making additional 

reimbursement upon the receipt of additional documentation."

Auto Flat did not agree that the amount paid represented 

the full amount owed, but accepted the payment "without 

prejudice to either the insured's right [to] pursue additional 

amounts owed for defense and indemnity or to pursue damages 

under [G. L. c.] 93A." Auto Flat thereafter submitted 

additional invoices, and Hanover responded with two more checks. 

In total, Hanover paid Auto Flat $539,757.48.

By letter dated October 20, 2010, Auto Flat acknowledged 

Hanover's payment of expenses incurred in the DEP matter. 

Noting, however, the "remaining issues" of postjudgment legal 

fees6 incurred after the entry of partial summary judgment 

establishing the duty to defend, and the pending G. L. c. 93A 

claim, Auto Flat indicated its "willing[ness] at [that] time to 

make a final settlement of the remaining claims," and made a 

demand for settlement in the amount of $246,007.71. Asserting

that it was undisputed that "Hanover [had] fully reimbursed Auto 

 

5 Auto Flat's asserted expenses, prior to any calculation of 

interest, amounted to $405,290.07.

6 Auto Flat later filed a motion to compel the payment of 

such fees; the motion was denied.
8

Flat for its defense and indemnification of the claim with 

interest," Hanover "denie[d] any allegation that it violated 

[G. L.] c. 93A," and declined to offer any additional payment.

c. Partial summary judgment on counts 2 through 5. In 

April, 2011, Hanover moved for partial summary judgment on 

counts 2 through 4 of Auto Flat's complaint, which sought 

contract damages for breach of the already-adjudicated duty to 

defend, a declaration that Hanover had a duty to indemnify Auto 

Flat, and contract damages for breach of the duty to indemnify.7 

Hanover argued that, even if Auto Flat could establish a breach 

of contract as to either duty, Auto Flat already had been made 

whole by Hanover's reimbursement of all expenses incurred in the 

DEP matter, plus twelve per cent interest per annum. 

Accordingly, Hanover maintained, Auto Flat could not demonstrate 

that it continued to suffer damages, and its breach of contract 

claims therefore failed as a matter of law. Hanover asserted 

also that Auto Flat was not entitled to a declaration regarding 

Hanover's duty to indemnify because "there [was] simply nothing 

to indemnify." A different judge allowed Hanover's motion, 

incorporating by reference the rationale offered in Hanover's 

supporting memorandum.

 

7 Auto Flat also filed a cross motion for summary judgment 

on counts 2 (breach of contract for failure to defend) and 4

(breach of contract for failure to indemnify).
9

Hanover thereafter sought summary judgment on count 5 of 

Auto Flat's complaint, which alleged a violation of G. L. c. 93A

by virtue of Hanover's failure to defend Auto Flat in the DEP 

litigation. Hanover made much the same argument as it had in 

its memorandum in support of its motion for summary judgment on 

the breach of contract and indemnification claims, namely that 

Hanover's reimbursement of Auto Flat's expenses precluded a 

finding that Auto Flat had suffered a loss of money or property, 

as required to establish a violation of G. L. c. 93A, § 11.

8

A third judge denied Hanover's motion, concluding that Auto 

Flat had suffered a monetary loss "as a matter of historical 

fact," notwithstanding Hanover's payments, which, in any event, 

were made after the commencement of the action. Citing 

Ameripride Linen & Apparel Servs., Inc. v. Eat Well, Inc., 65 

Mass. App. Ct. 63, 68-70 (2005), the judge reasoned that, "[i]n 

actions brought under [G. L. c.] 93A, amounts earlier paid by 

one party to another are appropriately considered as a basis for 

setoff against a possible award of multiple damages, and not as 

a bar to the underlying action."

 

8 Hanover did not argue that its refusal to defend Auto Flat 

in the litigation with the Department of Environmental 

Protection (DEP) did not constitute an unfair or deceptive act 

or practice. Rather, it maintained that, "even if [Auto Flat 

could] establish that [Hanover] engaged in unfair or deceptive 

conduct, [Auto Flat] has already been made whole for all alleged 

damages," and accordingly could not make out a showing of 

damages, as required by G. L. c. 93A, § 11.
10

The parties then filed a joint motion seeking to report the 

decisions on counts 2 through 4 and count 5, to the Appeals 

Court for interlocutory review, pursuant to Mass. R. Civ. P. 64, 

as amended, 423 Mass. 1410 (1996). The motion was allowed, and 

we transferred the case to this court on our own motion.

2. Discussion. The central dispute on appeal concerns 

Auto Flat's ability to pursue a claim under G. L. c. 93A after 

accepting Hanover's payments in reimbursement for expenses 

incurred in connection with the DEP matter. Although the 

parties now agree that Auto Flat's damages stemming from 

Hanover's breach of the duty to defend have been reimbursed

fully, with interest,9 the parties continue to disagree over 

whether such compensatory payments eliminated Auto Flat's actual 

damages as a matter of law, such that its underlying breach of 

contract claim, or its G. L. c. 93A claim, was precluded as a 

result.

Hanover argues that, in addition to eliminating Auto Flat's 

contract damages, its postcomplaint reimbursement of Auto Flat's 

 

9 As discussed infra, it is not clear whether the parties 

agreed, at the time of entry of the order granting partial 

summary judgment on counts 2 through 4, that Hanover had 

reimbursed Auto Flat fully for losses incurred as a result of 

the breach of the duty to defend. Nonetheless, by the time of 

the parties' joint motion to report the decisions on counts 2 

through 4 and count 5 for interlocutory review, they apparently 

agreed that all of Auto Flat's damages had been paid, with 

appropriate interest. The record does not indicate, however, 

that the parties ever entered into a settlement agreement 

covering either the contract claims or the G. L. c. 93A claim.
11

expenses also eliminated all of Auto Flat's actual damages, 

establishment of which would be necessary for any recovery under 

G. L. c. 93A, § 11. Accordingly, Hanover contends, the denial 

of its motion for summary judgment on the G. L. c. 93A claim 

(count 5) was error, but the allowance of summary judgment in 

its favor on the breach of contract claims (counts 2 and 4), and 

on the issue of the duty to indemnify (count 3), was proper.

Auto Flat, on the other hand, contends that it has viable

contract and G. L. c. 93A claims against Hanover. The G. L. 

c. 93A claim arises from Hanover's asserted unfair or deceptive 

act or practice of refusing, in the circumstances, to provide 

its insured a defense in the DEP litigation. Auto Flat's

asserted actual damages for purposes of § 11 are those expenses 

it incurred as a matter of historical fact and for which it 

belatedly received full compensation, regardless of whether 

those expenses were established in a judgment on its claims

alleging Hanover's contractual breaches of the duties to defend 

and indemnify.

Auto Flat argues that, if a judgment is needed in order to 

establish the amount of actual damages, Hanover's unilateral and 

belated tender, absent a settlement between the parties, should 

not bar entry of a judgment in its favor on its breach of 

contract claims. In particular, Auto Flat maintains an 

entitlement to a judgment on count 2, alleging a breach of the 
12

contractual duty to defend, for which Hanover's liability was 

established by the initial declaratory judgment; such judgment, 

it contends, would serve as a predicate for any award of 

multiple damages under G. L. c. 93A. Auto Flat argues that the 

payments it received from Hanover should be viewed as an offset 

against any G. L. c. 93A damages that might be awarded, after 

multiplication as appropriate, rather than as a bar to recovery 

in the first instance under G. L. c. 93A. Auto Flat accordingly 

asks that we affirm the ruling on count 5, the G. L. c. 93A 

claim, and reverse the ruling on counts 2 through 4.

We first consider whether the judge properly denied 

Hanover's motion for partial summary judgment on count 5 before 

addressing whether the allowance of Hanover's partial motion for 

summary judgment on counts 2 through 4 was warranted.

a. Partial summary judgment on G. L. c. 93A claim 

(count 5). Whether Auto Flat's acceptance of Hanover's payments 

eliminated its actual damages, such that it could not proceed on 

its G. L. c. 93A claim, presents a question of law appropriate 

for resolution in a motion for summary judgment. Our review is 

de novo. See Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 

469 (2013), and cases cited. In reviewing a denial of a motion 

for summary judgment in a case in which the opposing party, Auto 

Flat, will have the burden of proof at trial, we consider 

whether the moving party, Hanover, has "demonstrate[d], by 
13

reference to material described in Mass. R. Civ. P. 56 (c), [as 

amended, 436 Mass. 1404 (2002),] unmet by countervailing 

materials, that the party opposing the motion has no reasonable 

expectation of proving an essential element of that party's 

case." HipSaver, Inc. v. Kiel, 464 Mass. 517, 522 (2013), 

quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 

716 (1991).

To be successful, a plaintiff bringing a claim under § 11 

must establish (1) that the defendant engaged in an unfair 

method of competition or committed an unfair or deceptive act or 

practice, as defined by G. L. c. 93A, § 2, or the regulations 

promulgated thereunder; (2) a loss of money or property suffered 

as a result;10 and (3) a causal connection between the loss 

suffered and the defendant's unfair or deceptive method, act, or 

practice. See G. L. c. 93A, § 11; R.W. Granger & Sons v. J & S 

Insulation, Inc., 435 Mass. 66, 80-81 (2001); Jet Line Servs., 

Inc. v. American Employers Ins. Co., 404 Mass. 706, 718 (1989). 

Cf. Herman v. Admit One Ticket Agency LLC, 454 Mass. 611, 615-

616 (2009), citing Hershenow v. Enterprise Rent-A-Car Co. of 

Boston, 445 Mass. 790, 797 (2006).

 

10 The requirement that a plaintiff have suffered a loss of 

money or property is unique to G. L. c. 93A, § 11, governing 

suits between businesses. Under G. L. c. 93A, § 9 (1), by 

contrast, which applies to consumer actions, a plaintiff need 

only show that he or she "has been injured."
14

Hanover does not dispute that Auto Flat has at least a 

reasonable expectation of proving both the first and third 

elements. See note 8, supra. As the third judge observed, the 

claim that Hanover engaged in unfair or deceptive acts or 

practices by refusing to provide a defense in the DEP litigation 

"must at least be viewed as reasonably credible, given Auto 

Flat's successful motion for partial summary judgment [on count 

1 of its complaint seeking a declaration of Hanover's duty to 

defend]."11 It is also undisputed, and indeed the parties 

acknowledge, that Hanover's refusal to defend Auto Flat caused 

the latter to incur substantial out-of-pocket expenses. At 

issue, then, is the second element: whether, after accepting 

payments from Hanover, which both parties now agree fully 

reimbursed Auto Flat's underlying losses incurred as a result of 

the breach of the duty to defend, Auto Flat still has a 

reasonable expectation of proving that it has suffered actual

damages.

As to this question, the parties dispute two main points. 

They disagree, most fundamentally, over whether the damages 

element of § 11 requires a showing of uncompensated loss. They 

 

11 We do not address whether Hanover's failure to defend 

Auto Flat in the DEP litigation in fact constituted an unfair or 

deceptive act or practice in violation of G. L. c. 93A, a point 

that Hanover did not raise below and does not press on appeal. 

Discovery that might assist in establishing the merits of Auto 

Flat's G. L. c. 93A claim appears to have been ongoing at the 

time of the summary judgment decisions.
15

also differ over whether a judgment establishing the amount of 

damages is a prerequisite to recovery under § 11, and the amount 

that can be recovered in the absence of such a judgment. We 

consider each point in turn.

i. Whether G. L. c. 93A requires a showing of 

uncompensated loss. Hanover argues that its payments to Auto 

Flat, made after Auto Flat had obtained a declaratory judgment 

establishing Hanover's liability and had asserted a G. L. c. 93A 

claim against Hanover arising from the insurer's failure to 

defend, negated Auto Flat's actual damages and therefore should 

bar a claim under the statute. The cases that Hanover cites in 

support of this argument, however, hold only that concrete 

monetary or property loss is necessary to support a § 11 claim. 

See Transamerica Ins. Group v. Turner Constr. Co., 33 Mass. App. 

Ct. 446, 452 (1992) (affirming dismissal of G. L. c. 93A claim 

against insurer where insurer paid all defense and settlement 

costs upfront, such that insured at no point suffered any loss 

of money). Cf. Baldassari v. Public Fin. Trust, 369 Mass. 33, 

45 (1975) ("severe emotional distress" does not constitute "loss 

of money or property"). As we explain below, the plain language 

of § 11 and cases interpreting it, as well as the policy 

underlying G. L. c. 93A, make clear that a plaintiff who can 

establish that it has sustained such concrete monetary or 

property loss will have satisfied the actual damages element of 
16

§ 11, without also having to prove that the loss remains 

uncompensated.

General Laws c. 93A "is a statute of broad impact which 

creates new substantive rights and provides new procedural 

devices for the enforcement of those rights." Slaney v. 

Westwood Auto, Inc., 366 Mass. 688, 693 (1975). Recovery under 

the statute is not "limited by traditional tort and contract law 

requirements." Id., quoting Commonwealth v. DeCotis, 366 Mass. 

234, 244 n.8 (1974). Although acceptance of a defendant's

tender of payment may affect the continued viability of a 

plaintiff's contract claims, see Barron Chiropractic & 

Rehabilitation, P.C. v. Norfolk & Dedham Group, ante , 

(2014), such acceptance does not vitiate a claim under G. L. 

c. 93A as a matter of course, unless the latter claim has been 

expressly settled. See Fascione v. CNA Ins. Cos., 435 Mass. 88, 

95-96 (2001) (insured's acceptance of insurer's late tender of 

payment extinguishes remedy under G. L. c. 90, § 34M, but 

recourse to G. L. c. 93A is preserved). Even if the amount 

tendered represents the full amount recoverable as actual 

damages under G. L. c. 93A, as Auto Flat concedes is the case 

here, that alone does not preclude a claim under the statute.

Section 11, the particular provision governing actions 

between businesses, serves "the important public policy of 

encouraging the fair and efficient resolution of business 
17

disputes"; it is intended to deter misconduct while providing a 

remedy for those who have suffered a specific harm as a result 

of a defendant's prohibited conduct. R.W. Granger & Sons v. 

J & S Insulation, Inc., supra at 83-84, citing International 

Fid. Ins. Co. v. Wilson, 387 Mass. 841, 857 (1983). Cf. 

Commonwealth v. Fall River Motor Sales, Inc., 409 Mass. 302, 316 

(1991). Section 11 bestows a right of action on "[a]ny person 

who engages in the conduct of any trade or commerce and who 

suffers any loss of money or property, real or personal," as a 

result of the unfair or deceptive act or practice, or unfair 

method of competition, of another person who engaged in trade or 

commerce. G. L. c. 93A, § 11, first par. Such monetary or 

property loss constitutes the "actual damages" to which a

prevailing plaintiff is entitled; a plaintiff may recover up to 

three times that amount upon a finding of a wilful or knowing

violation of the statute. G. L. c. 93A, § 11, fourth par. 

"Said damages may include . . . attorneys' fees and costs," 

G. L. c. 93A, § 11, fourth par., and comprise "all foreseeable 

and consequential damages arising out of conduct which violates 

the statute." Brown v. LeClair, 20 Mass. App. Ct. 976, 979 

(1985), citing DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 

101 (1983).

Thus, under the plain language of § 11, "[i]f any person 

invades a [plaintiff's] legally protected interests, and if that 
18

invasion causes the [plaintiff] a loss [of money or 

property] . . . the [plaintiff] is entitled to redress under our 

consumer protection statute." Hershenow v. Enterprise Rent-ACar Co. of Boston, 445 Mass. 790, 802 (2006). Where a plaintiff 

can demonstrate that it has suffered actual damages, i.e., a

concrete loss of money or property, § 11 does not impose a 

further requirement that the plaintiff establish outstanding 

uncompensated loss. Cf. United States v. Bornstein, 423 U.S. 

303, 314 & n.10 (1976) (because language of False Claims Act

then in effect "sp[oke] of doubling 'damages' and not doubling 

'net damages' or 'uncompensated damages,'" Federal government's 

recovery of actual damages did not preclude action under that 

statute for multiple damages).

The injury requirement of G. L. c. 93A is designed "to 

guard against vicarious suits by self-constituted attorneys 

general who see a wrong but have not actually been harmed by the 

wrong." M.C. Gilleran, The Law of Chapter 93A § 4.18 (2d ed. 

2007), and cases cited. Thus, plaintiffs proceeding under 

either § 9 or § 11 of G. L. c. 93A are obligated to allege and 

ultimately to prove a "distinct injury," Tyler v. Michaels 

Stores, Inc., 464 Mass. 492, 503 (2013); under § 11, first par., 

such injury encompasses "any loss of money or property, real or 
19

personal."12 See Baldassari v. Public Fin. Trust, 369 Mass. 33, 

45 (1975) ("'money' means money, not time, and . . . 'property' 

means the kind of property that is purchased or leased, not such 

intangibles as a right to a sense of security, to peace of mind, 

or to personal liberty"). Where a plaintiff has sustained the 

requisite "distinct injury," Tyler v. Michaels Stores, Inc., 

supra, we have allowed recoveries under G. L. c. 93A without 

requiring additional elements of proof as to damages. See R.W. 

Granger & Sons v. J & S Insulation, Inc., supra at 83-84 

(affirming award of double damages as serving important public 

policy, even where plaintiff was compensated for underlying 

losses, including interest, prior to entry of judgment on § 11 

claim). Cf. Chery v. Metropolitan Prop. & Cas. Ins. Co., 79 

Mass. App. Ct. 697, 699 (2011) (notwithstanding insurer's 

payment of benefits after insured's filing of claim alleging 

violation of G. L. c. 90, § 34M, insured showed, "for purposes 

 

12 A plaintiff proceeding under G. L. c. 93A, § 9, need not 

demonstrate that he or she has suffered a loss of money or 

property. See note 10, supra. Rather, the damages element of 

G. L. c. 93A, § 9, requires only that a plaintiff establish an 

invasion of a legally protected interest, in the form of "a 

distinct injury or harm that arises from the claimed unfair or 

deceptive act itself." Tyler v. Michaels Stores, Inc., 464 

Mass. 492, 503 (2013). See Hershenow v. Enterprise Rent-A-Car 

Co. of Boston, Inc., 445 Mass. 790, 799 (2006), quoting Leardi

v. Brown, 394 Mass. 151, 159 (1985). In the absence of actual 

damages, a plaintiff who prevails on a claim under G. L. c. 93A, 

§ 9, will be awarded statutory damages of twenty-five dollars, 

subject to multiplication where appropriate. See G. L. c. 93A, 

§ 9 (3).
20

of surviving summary judgment [on G. L. c. 93A, § 9, claim], an 

ascertainable loss caused by [insurer's] dilatory conduct").

To the extent that a plaintiff already has received 

compensation for its underlying loss prior to the resolution of 

its G. L. c. 93A claim, such compensation has been treated as an 

offset against any damages ultimately awarded, rather than as a 

bar to recovery.13 See Ameripride Linen & Apparel Servs., Inc. 

v. Eat Well, Inc., 65 Mass. App. Ct. 63, 68-71 (2005); Friendly 

Fruit, Inc. v. Sodexho, Inc., 529 F. Supp. 2d 158, 166 (D. Mass. 

2007). See also Wolfberg v. Hunter, 385 Mass. 390, 399-400 

(1982). Treating such compensation as an offset against damages 

recovered, rather than as a bar to recovery altogether, comports 

 

13 Courts in other jurisdictions also have addressed whether 

a plaintiff's prior recovery of compensatory damages prevents 

him or her from stating a claim giving rise to punitive damages. 

While not involving statutes that provide for multiplication of 

actual damages as the measure of punitive damages, as G. L. 

c. 93A does, these cases concern common-law causes of action

requiring showings of injury comparable to actual damages. 

These courts have held in pertinent regard that, where a 

plaintiff has established a concrete loss, he or she may proceed 

with a claim for punitive damages even where such loss has been 

fully compensated. See, e.g., Fullington v. Equilon Enters.,

LLC, 210 Cal. App. 4th 667, 689-690 (2012) (plaintiff satisfied 

"actual damages" element of fraud cause of action 

notwithstanding already having been compensated; "the question 

relevant to determining whether a plaintiff may recover punitive 

damages is whether he or she suffered a tort for which the law 

permits the recovery of damages -- not whether those damages 

have [or have not] already been paid"); Turner v. Firstar Bank, 

N.A., 363 Ill. App. 3d 1150, 1160 (2006) (in suit against lender 

for wrongful repossession of vehicle, payment of compensatory 

damages prior to trial did not negate fact of legitimate injury, 

which supported claim for punitive damages).
21

with the policy rationale of G. L. c. 93A, and the Legislature's 

intent in enacting it. General Laws c. 93A is a "broad 

remedial" statute, Holland v. Jachmann, 85 Mass. App. Ct. 292, 

299 (2014); "the Legislature's manifest purpose" in enacting it 

was to deter misconduct, Commonwealth v. Fall River Motor Sales, 

Inc., supra at 316, and to "encourage vindicative lawsuits." 

International Fid. Ins. Co. v. Wilson, supra at 857. These

objectives would not be served by precluding claims on the basis 

of a lack of uncompensated loss; to the contrary, barring claims 

under such circumstances effectively "would undercut the 

deterrent purposes of [G. L.] c. 93A." Holland v. Jachmann, 

supra at 298.

Equating the payments to Auto Flat after the duty to defend 

was established with a settlement under § 11, Hanover argues 

that permitting Auto Flat's G. L. c. 93A claim to proceed in 

these circumstances would contravene the legislative purpose of 

the statute to promote settlement. The Legislature, however, 

has set forth a method by which defendants may settle § 11 

claims. In an effort to prevent needless litigation, § 11 

permits a defendant to tender with its answer a written offer of 

settlement, and thereby limit its liability to single damages. 

See G. L. c. 93A, § 11, fifth par. Hanover failed to comply 

with these requirements; it did not include such an offer with 

its answer, or at any other time. A defendant who fails to make 
22

a reasonable settlement offer concurrently with its answer, as 

the statute provides, risks exposure to an award of multiple 

damages, which is "'the appropriate punishment' for forcing 

plaintiffs to litigate clearly valid claims." International 

Fid. Ins. Co. v. Wilson, supra at 857, quoting Heller v. 

Silverbranch Constr. Corp., 376 Mass. 621, 628 (1978).

Under Hanover's interpretation, § 11 would lose its force; 

insurers would be free to engage in dilatory conduct, arguably 

in violation of G. L. c. 93A, with the knowledge that, so long 

as they ultimately reimbursed claimants for their resulting 

expenses, statutory liability could be avoided. Even insurers 

acting in bad faith would be able to shield themselves from 

exposure to multiple damages, including attorney's fees, and to 

preempt an otherwise viable § 11 claim by reimbursing claimants 

prior to entry of a judgment. Insurers would be able to do so 

even where, as here, they initially had declined to tender a 

written offer of settlement with their answers, as provided by 

the statute.

14 Such an interpretation would significantly weaken 

 

14 We are unpersuaded by Hanover's argument that the only 

way for a plaintiff to preserve a claim under G. L. c. 93A in 

such circumstances is to reject the money offered by the insurer 

in reimbursement of its contract claims. Claims for breach of 

contract and for violations of G. L. c. 93A are distinct avenues 

for relief. See Linthicum v. Archambault, 379 Mass. 381, 383 

(1979), citing York v. Sullivan, 369 Mass. 157, 164 (1975). 

Where a plaintiff is entitled to contract damages, as Auto Flat 

was after Hanover's duty to defend was established, he or she is 

not required to reject payment of those damages in order to 
23

the existing statutory scheme, "designed to make it 

'unprofitable'" for insurers to engage in unfair or deceptive 

conduct in the first instance, and would undermine the "prime 

goal" of § 11 to promote reasonable settlement offers. See 

International Fid. Ins. Co. v. Wilson, supra at 857. We 

therefore reject Hanover's argument as "clearly inconsistent 

with the scheme of [G. L. c. 93A.]" Commonwealth v. Fall River 

Motor Sales, Inc., supra at 316.

Thus, insofar as Auto Flat can establish a loss of money or 

property as a result of Hanover's breach of the duty to defend, 

and to the extent that failure to defend in the circumstances 

constitutes a violation of G. L. c. 93A, Auto Flat may maintain 

its claim under § 11, notwithstanding its acceptance of 

Hanover's compensatory payments.

ii. Whether G. L. c. 93A requires prior judgment 

establishing amount of damages as prerequisite to recovery. The 

parties also dispute whether the absence of a judgment in Auto 

Flat's favor, establishing the amount of damages incurred,

precludes or otherwise limits recovery under G. L. c. 93A. 

Hanover argues that "[r]ecovery of damages under [G. L. c.] 93A 

 

preserve a claim under G. L. c. 93A. See Fascione v. CNA Ins. 

Cos., 435 Mass. 88, 95-96 (2001). Cf. Wolfberg v. Hunter, 385 

Mass. 390, 398-399 (1982) (tenants who have right to withhold 

rent due to landlord's breach of warranty of habitability need 

not forgo that right in order to establish actual damages and 

thereby maintain G. L. c. 93A claim).
24

is triggered by a judgment." Where there has been no judgment 

awarding a plaintiff damages, Hanover contends, the plaintiff 

may recover only loss of use damages (here, interest), which, in 

any event, also have been reimbursed in this case. Hanover, 

however, misapprehends the significance of the second sentence 

of G. L. c. 93A, § 11, fifth par., inserted by a 1989 

legislative amendment. See St. 1989, c. 580, § 2. That 

sentence does not make a prior judgment a prerequisite to 

recovery; rather, it provides only that, in certain 

circumstances, a judgment may constitute an appropriate basis 

for multiplication, as a penalty for a defendant's failure "to 

settle a claim reasonably, [thus] obliging the plaintiff to 

litigate unnecessarily." Kapp v. Arbella Mut. Ins. Co., 426 

Mass. 683, 686 (1998), citing Clegg v. Butler, 424 Mass. 413, 

425 (1997).

Before 1989, several appellate decisions had held that the 

measure of damages for an insurer's failure to effectuate a 

prompt settlement of a claim under a policy was "the damages 

directly caused by the insurer's conduct -- typically, loss of 

the use of such funds from the time when the claim should have 

been paid to the time that a settlement or judgment was paid --

and not the total amount owed to the claimant under the 

insurance policy." Rhodes v. AIG Domestic Claims, Inc., 461 

Mass. 486, 497-498 (2012), citing Bertassi v. Allstate Ins. Co.,
25

402 Mass. 366 (1988) (Bertassi); Wallace v. American Mfrs. Mut. 

Ins. Co., 22 Mass. App. Ct. 938 (1986) (Wallace); Trempe v. 

Aetna Cas. & Sur. Co., 20 Mass. App. Ct. 448 (1985) (Trempe). 

However, the Legislature amended G. L. c. 93A in 1989, to revise 

the calculation of damages in certain circumstances. See 

St. 1989, c. 580, § 2 (1989 amendment). As modified by the 1989 

amendment, noted with emphasis below, § 11, fifth par., now

provides,

"If the court finds for the petitioner, recovery 

shall be in the amount of actual damages; or up to 

three, but not less than two, times such amount if the 

court finds that the use or employment of the method 

of competition or the act or practice was a willful or 

knowing violation of said section two. For the 

purposes of this chapter, the amount of actual damages 

to be multiplied by the court shall be the amount of 

the judgment on all claims arising out of the same and 

underlying transaction or occurrence . . . ."15

"There is general consensus among courts and commentators 

that the 1989 amendment was intended to increase the potential 

penalties for insurers who engaged in unfair claim settlement 

practices, in response to the Bertassi-Wallace-Trempe line of 

cases." Rhodes v. AIG Domestic Claims, Inc., supra at 498, and 

cases cited. See R.W. Granger & Sons v. J & S Insulation, Inc., 

435 Mass. 66, 82-83 & n.21 (2001). The amendment "expanded the 

base on which multiple damages may be awarded." Drywall Sys., 

Inc. v. ZVI Constr. Co., 435 Mass. 664, 669 (2002). The general 

 

15 The emphasized sentence also was added to G. L. c. 93A, 

§ 9 (3). See St. 1989, c. 580, § 1.
26

rule, as provided by the first sentence of the quoted language, 

is that "single recovery shall be 'the amount of actual 

damages,' meaning the (foreseeable) loss to the claimant caused 

by the violation, this amount to be doubled or tripled where the 

violation was in bad faith." Kapp v. Arbella Mut. Ins. Co., 

supra at 685, quoting Yeagle v. Aetna Cas. & Sur. Co., 42 Mass. 

App. Ct. 650, 653 (1997). The second sentence, inserted by the 

amendment, sets forth an exception to the general rule, 

applicable "in the particular situation where a claimant has 

recovered a judgment on the underlying claim." Kapp v. Arbella 

Mut. Ins. Co., supra, quoting Yeagle v. Aetna Cas. & Sur. Co., 

supra. In that situation, the entire amount of the judgment 

will form the basis for multiplication, even if the judgment 

represents more than the amount of actual damages attributable 

to a defendant's G. L. c. 93A violation. See Kapp v. Arbella 

Mut. Ins. Co., supra at 685-686

The point is illustrated in cases involving personal injury 

claims under insurance policies, where the insurer fails to 

effectuate a prompt settlement after liability has become 

reasonably clear, in violation of G. L. c. 176D, § 3 (9) (f). 

See, e.g., Rhodes v. AIG Domestic Claims, Inc., supra at 497-

498. In such cases, an insurer's unreasonable delay in settling 

a valid claim may cause a claimant to resort to litigation, and

ultimately may result in the claimant's securing a judgment 
27

against the insurer. That judgment usually will provide an 

amount due under an insurance policy as a result of a covered 

event such as an automobile accident. In that event, the amount

of the judgment corresponds to damages sustained due to the 

conduct of a third party, e.g., a negligent driver, but does not 

represent the actual damages incurred by the claimant as the 

result of the insurer's unfair or deceptive act or practice of 

unreasonably delaying in settling the claim.16 See, e.g., id. at 

492-493. Nonetheless, by virtue of the 1989 amendment, if the 

insurer is determined to have engaged in wilful or knowing 

misconduct, the entire amount of the judgment is to be 

multiplied, as "a stiff penalty . . . on defendants who 

knowingly or wilfully fail to settle claims where liability on 

an underlying claim is clear." R.W. Granger & Sons v. J & S 

Insulation, Inc., supra at 85. See Clegg v. Butler, supra at 

425 (provision for multiplication of judgment "intended to 

penalize insurers who unreasonably and unfairly force claimants 

into litigation by wrongfully withholding insurance proceeds").

However, where no judgment has entered establishing a 

defendant's monetary liability because, for example, the parties 

have reached a settlement regarding an amount due under an 

insurance policy, the provision added by the 1989 amendment 

 

16 In such circumstances, the actual damages attributable to 

the insurer's conduct generally constitute loss of use damages. 

See Clegg v. Butler, 424 Mass. 413, 425 (1997).
28

pertaining to multiplication of the amount of the judgment has 

no application.

17 See Rhodes v. AIG Domestic Claims, Inc., supra

at 499 n.19. Nevertheless, in such circumstances, the absence 

of a judgment does not preclude recovery under G. L. c. 93A; 

rather, the first sentence of § 11, fifth par., governs. That

language provides that a successful plaintiff's "recovery shall 

be in the amount of actual damages; or up to three, but not less 

than two, times such amount" upon a finding of wilful or knowing 

misconduct. Thus, where no prior judgment has entered, a 

plaintiff's actual damages, i.e., "all foreseeable and 

consequential damages arising out of conduct which violates the 

statute," Brown v. LeClair, 20 Mass. App. Ct. 976, 979 (1985), 

citing DiMarzo v. American Mut. Ins. Co., 389 Mass. 85, 101

(1983), form the basis of recovery. See Rhodes v. AIG Domestic 

Claims, Inc., supra at 499 n.19.

In cases where no judgment has entered, the amount of 

damages recoverable pursuant to G. L. c. 93A therefore will 

depend on the nature and extent of actual damages flowing from 

 

17 Similarly, where parties submit to arbitration a claim 

for reimbursement under an insurance policy, the ensuing 

arbitral award does not constitute a "judgment"; as such, the 

amount of the award is not subject to multiplication in any 

ensuing G. L. c. 93A action. See Bonofiglio v. Commercial Union 

Ins. Co., 411 Mass. 31, 37-38 (1991), S.C., 412 Mass. 612 

(1992). An arbitrator retains authority, however, to award 

multiple damages in G. L. c. 93A cases brought before him or 

her. See Drywall Sys., Inc. v. ZVI Constr. Co., 435 Mass. 664, 

669 (2002).
29

the statutory violation at issue. Where the conduct alleged to 

violate G. L. c. 93A is an unreasonable delay in settling a 

claim arising under an insurance policy, we have held that a 

plaintiff's actual damages generally comprise "the interest lost 

on the money wrongfully withheld by the insurer."18 See Clegg v. 

Butler, supra at 425, quoting S. Young, Chapter 93A and the 

Insurance Industry § 14.19, Chapter 93A Rights and Remedies 

(Mass. Cont. Legal Educ. 1996 & Supp. 1996). Here, however, the 

alleged violation of G. L. c. 93A is not a failure to effectuate 

a prompt settlement, but a breach of the duty to defend. 

Damages arising from a breach of the duty to defend may 

encompass out-of-pocket expenses incurred by the plaintiff, in 

addition to interest; a breaching insurer will be liable for all 

"natural consequences of [the breach] that places its insured in 

a worse position," including, in appropriate circumstances, the 

amount of the settlement reached in the underlying litigation. 

See Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 764 

(1993).

 

18 There is no indication in the record that the parties 

expressly agreed to settle Auto Flat's breach of contract claim 

arising out of the breach of the duty to defend, see note 9,

supra, but nothing turns on this point. Even had the contract 

claims been settled, Auto Flat's G. L. c. 93A claim would not be 

precluded; rather, Auto Flat still would be permitted to seek 

recovery of its actual damages under § 11, provided it had not 

agreed to release its G. L. c. 93A claim. There was no such 

release here, however, and the parties clearly did not agree to 

settle the G. L. c. 93A claim.
30

Accordingly, Auto Flat may proceed with its G. L. c. 93A 

claim notwithstanding the absence of a judgment in its favor 

establishing the amount of contract damages incurred. Discovery 

as to the G. L. c. 93A claim presumably will take place, and, if

this matter proceeds to trial, Auto Flat may offer evidence of

"all foreseeable and consequential damages" it contends were 

caused by Hanover's asserted unfair or deceptive act or practice 

arising from its refusal and failure to provide a defense in the 

DEP litigation.19 Brown v. LeClair, supra, citing DiMarzo v. 

American Mut. Ins. Co., supra. If Auto Flat establishes that 

Hanover's breach of the duty to defend constituted a wilful or 

knowing statutory violation, the amount of actual damages proven 

to flow from that breach will form the basis for multiplication. 

Any award of damages will be reduced by the amount that Auto 

Flat already has accepted from Hanover;

20 such offset is to be 

 

19 Acknowledging that the amount of money it received from 

Hanover is equivalent to the amount of actual damages it 

suffered as a result of Hanover's breach of the duty to defend, 

Auto Flat apparently does not claim that it has sustained other 

consequential damages that remain uncompensated. In proving its 

actual damages, Auto Flat must in any event establish that the 

amounts it recovered from Hanover are in compensation for 

expenses incurred as a result of the breach of the duty to 

defend on which its G. L. c. 93A claim is solely predicated.

20 As has been noted, Auto Flat does not claim that it 

suffered damages beyond the amount compensated by Hanover. See 

note 19, supra. Thus, if Auto Flat successfully proves a G. L. 

c. 93A violation but fails to demonstrate that the violation was 

wilful or knowing, such that it is awarded single damages only, 
31

applied after multiplying Auto Flat's actual damages, if 

appropriate.

21

Because neither entry of a judgment nor the existence of 

uncompensated loss is a prerequisite to recovery under G. L. 

c. 93A, Hanover has not met its burden of demonstrating that 

Auto Flat lacks a reasonable expectation of proving an essential 

 

the balance after setting off the amount of Hanover's payments 

will be zero, not including attorney's fees and costs.

21 For example, in Wolfberg v. Hunter, 385 Mass. 390, 391, 

397 (1982), tenants withheld rent after their landlord failed to 

remedy certain defects in their apartment, and subsequently sent 

the landlord a demand letter pursuant to G. L. c. 93A, § 9 (3). 

A judge found that the landlord had violated G. L. c. 93A, and 

that his response to the demand letter was not made in good 

faith, warranting double damages pursuant to G. L. c. 93A, § 9. 

Id. at 397. We held that the tenants were entitled to double 

their actual damages -- comprising the difference between the 

agreed-upon rent and the value of the apartment with defects,

plus reasonable expenses -- to be offset, after multiplication,

by the amount of rent withheld. Id. at 399-400. We calculated 

the damages as follows:

"[T]he agreed rent for five months ($330 times 

five, or $1,650) minus the sum of the fair market 

value of the apartment, as found for each of those 

five months ($525), equals $1,125. To this figure is 

added the tenants' reasonable expenses ($195), and the 

sum is doubled, since the judge found that the 

landlord's response to the tenants' G. L. c. 93A 

demand letter was not made in good faith, for a total 

of $2,640. From this amount, the rent withheld by the 

tenants ($990) is deducted. The tenants' damage award 

with respect to their G. L. c. 93A counterclaim is 

therefore $1,650."

Id. at 400. See Ameripride Linen & Apparel Servs., Inc. v. Eat 

Well, Inc., 65 Mass. App. Ct. 63, 68-70 (2005); Friendly Fruit, 

Inc. v. Sodexho, Inc., 529 F. Supp. 2d 158, 166 (D. Mass. 2007). 

Cf. United States v. Bornstein, 423 U.S. 303, 316 (1976).
32

element of its case, and the denial of Hanover's motion for 

partial summary judgment on count 5 was proper. See 

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 

(1991).

b. Partial summary judgment on claims for breach of 

contract and duty to indemnify (counts 2 through 4). As 

discussed, the second judge allowed Hanover's motion for partial 

summary judgment on the claims alleging breach of contract for 

failure to defend, seeking a declaration regarding Hanover's 

duty to indemnify, and asserting contract damages as a result of 

the failure to indemnify. In allowing the motion, the judge 

accepted Hanover's argument that the claims should be dismissed 

because all damages had been paid, noting that, "[a]fter summary 

judgment was allowed on [c]ount 1 in favor of the plaintiffs, 

the defendant paid the cost to clean up together with [twelve 

per cent] interest per annum beginning on the various dates on 

which the damage occurred."

At the time of Hanover's motion for partial summary 

judgment on counts 2 through 4, a declaration already had 

entered holding that Hanover had a duty to defend Auto Flat in 

the then-concluded DEP litigation. Insofar as Hanover had 

declined to defend Auto Flat to that point, and instead had 

"disclaimed a duty to defend without first obtaining a judicial 

declaration," Metropolitan Prop. & Cas. Ins. Co. v. Morrison, 
33

460 Mass. 352, 359 (2011), Hanover stood in breach of its duty. 

See Deutsche Bank Nat'l Ass'n v. First Am. Title Ins. Co., 465 

Mass. 741, 745 (2013), citing Metropolitan Prop. & Cas. Ins. Co. 

v. Morrison, supra at 358-359 ("Any uncertainty as to whether 

the pleadings include or are reasonably susceptible to an 

interpretation that they include a claim covered by the policy 

terms is resolved in favor of the insured, and the insurer must 

undertake the defense until it obtains a declaratory judgment of 

no coverage"); Sterilite Corp. v. Continental Cas. Co., 17 Mass. 

App. Ct. 316, 324 (1983) (insurer who evades duty to defend, 

which arises on face of complaint and policy, "by dint of its 

own assertion that there is no coverage . . . stands in breach 

of its duty").

Thus, when the motion for partial summary judgment was 

filed, and on the record before the judge, the only material 

issue of fact in dispute as to the claim alleging breach of 

contract for failure to defend (count 2) was the amount of 

damages for which Hanover was liable; Hanover's liability for 

breach of contract otherwise had been established. See 

Metropolitan Prop. & Cas. Ins. Co. v. Morrison, supra at 359, 

citing Polaroid Corp. v. Travelers Indem. Co., 414 Mass. 747, 

763 (1993) ("a breach of the duty to defend is a breach of the 

insurance contract, and the insured is entitled to contract 

damages caused by the breach").
34

On the limited record before us, it is not entirely clear 

whether, at the time of the motion, the parties agreed on the 

amount of contract damages attributable to Hanover's breach of 

the duty to defend, and the extent to which that amount had been 

offered and accepted without qualification. Were this a 

material issue of fact in dispute, as it appears, summary 

judgment on count 2 well may have been allowed in error. We 

need not linger on this possibility, however, since it is plain 

that the parties are now in agreement that Auto Flat has 

accepted Hanover's payments in full reimbursement for expenses 

resulting from the breach of the duty to defend. "Such 

acceptance removes the 'foundation of [a potential contract] 

suit' and necessitates the dismissal of a suit already 

commenced." Barron Chiropractic & Rehabilitation, P.C. v. 

Norfolk & Dedham Group, ante , n.11(2014), quoting Davis

v. Harrington, 160 Mass. 278, 280 (1894). Because "[t]he 

dispute over [contract] damages . . . ha[s] been resolved," 

Murphy v. National Union Fire Ins. Co., 438 Mass. 529, 533 

(2003), the claim for contractual damages for breach of contract 

for failure to defend must be dismissed.22

 

22 Auto Flat has not presented arguments in its brief 

concerning the propriety of the allowance of Hanover's motion 

for partial summary judgment on the claims pertaining to the 

duty to indemnify (counts 3 and 4). As this issue has not been 

substantively addressed on appeal, it is deemed waived. See 
35

3. Conclusion. For the foregoing reasons, the portion of 

the judgment allowing Hanover's motion for partial summary 

judgment on count 2 is vacated and the case is remanded for 

entry of an order dismissing that count. The remaining portions 

of the judgment allowing Hanover's motion for partial summary 

judgment on counts 3 and 4, and the judgment denying Hanover's 

motion for partial summary judgment on count 5, are affirmed.

So ordered.

 

Mass. R.A.P. 16 (a) (4), as amended, 367 Mass. 921 (1975); U.S.

Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 426 n.10 (2014).