Of the District of Rhode Island, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 06-1050

FEDERAL INSURANCE CO.,

Plaintiff, Appellant,

v.

HPSC, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Smith, District Judge. *

Bradford R. Carver, with whom CharCretia V. DiBartolo, Stephen

R. Swofford and Hinshaw & Culbertson LLP were on brief, for

appellant.

Jillian B. Hirsch, with whom William Shields and Day, Berry &

Howard LLP were on brief, for appellee.

March 15, 2007
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TORRUELLA, Circuit Judge. This case arises from a failed

attempt by defendant-appellee HPSC, Inc. ("HPSC") to recover an

embezzlement loss under an executive protection insurance policy

issued by plaintiff-appellant Federal Insurance Co. ("Federal").

Federal brought this declaratory judgment action against HPSC

seeking rescission of the policy based on a misrepresentation made

by HPSC in its 2001 insurance renewal application. HPSC

counterclaimed, seeking recovery under the policy and damages for

unfair and deceptive trade practices. Judgment was entered in

favor of HPSC on all claims. Federal appeals, claiming that the

district court admitted irrelevant and prejudicial evidence on the

materiality of HPSC's misrepresentation and that it is entitled to

judgment as a matter of law on all claims. After carefully

reviewing the record, we affirm.

I. Relevant Facts

On May 28, 2002, HPSC reported to its long-time insurer,

Federal, that an officer of its asset-based lending subsidiary

American Commercial Finance Corp. ("ACFC"), Kevin Morrison, had

embezzled $4.7 million over the previous five years. HPSC

submitted proof of loss to Federal on July 9, 2002, pursuant to its

Executive Protection Policy, which provided for $1,000,000 of

employee theft coverage, subject to a $25,000 deductible. With its

claim, HPSC included an investigative report by

PricewaterhouseCoopers (the "PwC report") indicating that the theft
-3-

occurred due to Morrison's unsegregated control over account

activities. The PwC report stated that Morrison "exercised sole

control over the factoring [of accounts receivable] business at

ACFC and had full authority to disburse funds, collect payments,

reconcile accounts and report financial performance." As a result,

"ACFC had insufficient segregation of duties in the factoring

operation."

The investigation of HPSC's claim was assigned to Federal

claims examiner Anna MacKay. Upon reading the PwC report, MacKay

concluded that Morrison both reconciled bank statements and signed

checks on the same ACFC accounts, which contradicted information

provided by HPSC on its April 13, 2001 renewal application.

Specifically, HPSC had answered "no" to Question 12 of the

application, "Do the employees who reconcile the monthly bank

statements also either: a. sign checks? b. handle deposits? or c.

have access to check signing machines or signature plates?" MacKay

related her findings up the ladder to her superiors at Federal, who

proceeded on the same assumptions as MacKay. MacKay also engaged

outside coverage counsel, who reviewed HPSC's file and issued an

opinion letter.

Meanwhile, HPSC remained in contact with Federal

regarding the status of its claim. Finally, on September 13, 2002,

HPSC issued an ultimatum to Federal: If Federal did not pay the

claim, HPSC would file suit by September 20, 2002.
The conversation between the parties' attorneys was memorialized 1

in a letter dated February 6, 2003.

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II. Relevant Proceedings

Without further investigation, Federal responded to

HPSC's ultimatum by filing a diversity suit seeking rescission of

the policy for fraud and misrepresentation. HPSC counterclaimed

for recovery under the policy and for damages under Mass. Gen. Laws

ch. 93A for unfair and deceptive trade practices based on Federal's

delay in investigating and paying the claim.

Two weeks after the initial case management conference,

HPSC informed Federal that MacKay had misread the PwC report. In 1

fact, it was not Morrison, but his subordinate, Sylvia Maguire, who

reconciled the bank statements on ACFC's fifteen operating

accounts. Maguire did not sign checks or handle deposits, and ACFC

had no check signing machine or signature plate. All transactions

on these fifteen accounts were accomplished through wire transfers.

The only account for which Morrison both reconciled statements and

signed checks was an imprest petty cash account, which was capped

at $10,000 and could only be replenished each month after HPSC

reviewed ACFC's disbursements.

Federal then shifted its theory of the case, relying on

Morrison's authority over all sixteen of the ACFC accounts.

Federal also contended that Morrison's authority over wire
 Outside auditors had alerted HPSC to Morrison's unsegregated 2

duties on March 27, 2001 -- more than two weeks before HPSC filed

the renewal application.

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transfers was the equivalent of signing checks for the purposes of

Question 12 on the renewal application.

Both sides filed cross motions for summary judgment. The

district court denied both motions, concluding that HPSC's response

to Question 12 was truthful as to the fifteen operating accounts,

given that the question did not ask about an employee's unexercised

authority or about wire transfer authority. The district court

found that the only misrepresentation made by HPSC involved

Morrison's control over the petty cash account, but that given the 2

relatively small size of that account compared to the fifteen

operating accounts, the materiality of the misrepresentation was a

question of fact for the jury. The district judge noted, however,

that if he "were the factfinder, [he] would most likely agree that

the misrepresentation . . . [was] a material one."

Prior to trial, Federal moved in limine to exclude any

evidence regarding Federal's past underwriting practices on the

basis that such evidence was irrelevant to the materiality of

HPSC's misrepresentation. The district court denied the motions.

At trial, Federal's underwriter, Yalonda Mason, testified

that had she known the truth about Morrison's unsegregated duties,

she still would have written the policy, but with a larger

deductible or higher premium because of the increased risk.
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Federal also called a risk management expert, Dean P. Felton, who

testified that the lack of segregation between reconciliation and

check-writing duties increased the risk of loss from theft. Felton

further indicated that if HPSC's answer to Question 12 had been

truthful, he would have either increased the deductible, increased

the premium, or excluded the checking account from coverage.

HPSC's expert, Michael Bracken, testified that in his

opinion the imprest petty cash account "did not present a

materially elevated risk of loss to HPSC or [Federal]." Bracken

also concluded that had HPSC answered "yes" to Question 12, it

would have made no difference in Federal's decision to underwrite

HPSC's policy. He explained that he had reviewed HPSC's past

applications to Federal, and that Federal had not followed up on

any of HPSC's past "no" answers or even questioned its "yes" answer

to Question 12 in 1995. Bracken claimed that this question was

important and that, as an underwriter, he would have investigated

an affirmative answer.

At the conclusion of the evidence, Federal moved for a

directed verdict under Rule 50(a), but the district court denied

the motion. The district court instructed the jury that Federal

was not obligated to pay HPSC's claim if HPSC's misrepresentation

was material, meaning that if Federal had known the truth, it would

have declined to issue the policy or charged a higher rate or
-7-

premium in light of the increased risk. The jury found in favor of

HPSC, concluding that its misrepresentation was not material.

The district court then held a bench trial on the chapter

93A claim. At the close of HPSC's case, Federal filed a motion for

judgment as a matter of law, which the district court denied.

After Federal presented its case, the court found that Federal's

initial determination regarding HPSC's misrepresentation was made

in good faith, but that Federal had violated two statutory duties

under Mass. Gen. Laws ch. 176D, § 3(9): Federal's decision to seek

rescission without inquiring into the facts or giving HPSC a chance

to respond breached its duty under subsection (d) to conduct a

reasonable investigation before rejecting a claim, and its failure

to make a reasonable settlement offer upon learning of its mistaken

conclusion regarding Morrison's reconciliation and check-writing

duties on the fifteen operating accounts violated its duty under

subsection (f) to "effectuate prompt, fair and equitable

settlements of claims in which liability has become reasonably

clear." The court concluded that the two statutory violations

constituted unfair business practices within the meaning of chapter

93A, and that Federal's conduct after learning of its flawed

assumptions was a breach of its duty of good faith, which merited

doubling the damages incurred thereafter.
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III. Discussion

On appeal, Federal argues that it is entitled to judgment

as a matter of law on the rescission claim because HPSC's

misrepresentation objectively increased the risk of loss, or

alternatively to a new trial because the district court admitted

irrelevant and prejudicial evidence on the materiality issue.

Federal also contends that it is entitled to judgment as a matter

of law on the unfair trade practices claim because it had a

reasonable, plausible basis for denying HPSC's claim, even after it

learned of its original mistaken conclusion.

A. Preservation of the Issues

As a preliminary matter, HPSC asserts that Federal failed

to preserve any issues on appeal because it did not renew its Rule

50(a) motion and it did not make any evidentiary objections at

trial.

1. Judgment as a Matter of Law

It is now settled that an appellate court "cannot review

the denial of a Rule 50(a) motion based on the sufficiency of the

evidence when the party appealing the verdict failed to renew its

sufficiency challenge in the district court pursuant to Rule

50(b)." Vázquez-Valentín v. Santiago-Díaz, 459 F.3d 144, 148 (1st

Cir. 2006) (citing Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,

126 S. Ct. 980, 987 (2006)). Despite our previous case law

establishing a strict "dearth of evidentiary support" standard of
-9-

review when a party failed to comply with the strictures of Rule

50, see, e.g., Surprenant v. Rivas, 424 F.3d 5, 13 (1st Cir. 2005),

the Supreme Court made it abundantly clear in Unitherm Food

Systems, Inc. v. Swift-Eckrich, Inc., that in the absence of a

renewed motion for judgment as a matter of law pursuant to Rule

50(b), we are utterly "without power to direct the District Court

to enter judgment contrary to the one it had permitted to stand,"

126 S. Ct. at 985 (quoting Cone v. W. Va. Pulp & Paper Co., 330

U.S. 212, 218 (1947)).

Federal failed to renew its Rule 50(a) motion after the

jury's verdict, and accordingly we have no power to review the

district court's denial of judgment as a matter of law on the

rescission claim.

The strictures of Rule 50, however, do not apply in nonjury trials. Fed. R. Civ. P. 50 (specifying the requirements for

judgment as a matter of law in jury trials); see also Colonial Penn

Ins. v. Market Planners Ins. Agency Inc., 157 F.3d 1032, 1037 n.3

(5th Cir. 1998) ("In a jury trial, of course, a party must make

(and renew at the trial's conclusion) a Rule 50(a) motion for

judgment as a matter of law in order to preserve sufficiency of the

evidence for appellate review. But nothing indicates that a

similar rule applies to an appeal of the sufficiency of evidence to

support findings or sufficiency of findings to support a judgment

following a bench trial." (citations omitted)). Rather, we treat
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motions for judgment as a matter of law made during bench trials as

motions for judgment on partial findings under Rule 52(c). See Ne.

Drilling, Inc. v. Inner Space Servs., Inc., 243 F.3d 25, 37 (1st

Cir. 2001); see also Mullin v. Town of Fairhaven, 284 F.3d 31, 36

(1st Cir. 2002). Federal made such a motion at the close of HPSC's

case, but then proceeded to put on evidence, thus waiving its right

to appeal the denial of that motion. Ne. Drilling, Inc., 243 F.3d

at 37. "Consequently, we treat the arguments [Federal] makes on

appeal under the heading of 'motion for judgment as a matter of

law' simply as challenges to the factual and legal sufficiency of

the district court's determinations based on all the evidence,"

id. (emphasis omitted), challenges which Federal may raise for the

first time on appeal, Colonial Penn Ins., 157 F.3d at 1036 ("We see

no reason why [a party], following a bench trial, cannot argue now

for the first time [on appeal] that the court's findings were

clearly erroneous or that they cannot support the judgment."

(footnote omitted)).

2. Improper Admission of Evidence

HPSC also argues that Federal did not preserve its right

to seek a new trial on the basis of improperly admitted evidence

because it did not object to the introduction of the evidence at

trial nor file a motion for a new trial under Rule 59(b).

While Federal did not object to the introduction of any

evidence at trial, it did file motions in limine before trial
 While it is true that the failure to move for a new trial 3

precludes our review of sufficiency of the evidence and

inconsistent verdict claims, see Unitherm Food Sys., 126 S. Ct. at

986; Torres-Arroyo v. Rullán, 436 F.3d 1, 7 (1st Cir. 2006), it

does not affect our review of a district court's decision to admit

or exclude evidence over a party's properly preserved objection,

see Torres-Arroyo, 436 F.3d at 7 (deciding the challenged

evidentiary issue despite the appellant's failure to file a motion

for a new trial). Rather, if we determine that the district court

erred in admitting evidence, the appropriate remedy would be a new

trial. See Sec'y of Labor v. DeSisto, 929 F.2d 789, 796 (1st Cir.

1991). Thus, HPSC's theory that failure to file a motion for a new

trial precludes our review of an evidentiary ruling is flawed.

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seeking to bar evidence concerning its past underwriting practices.

Motions in limine preserve evidentiary issues for appeal if the

district court made a final and unconditional ruling on the motion;

no further steps, such as filing a Rule 59(b) motion, are 3

necessary. Crowe v. Bolduc, 334 F.3d 124, 133 (1st Cir. 2003).

Of course, to preserve the issue, the motion in limine

must raise the same evidentiary error raised on appeal. HPSC

alternatively argues that Federal's pre-trial motion objected to

the introduction of evidence regarding prior applications and

policies on the ground that such evidence was irrelevant to the

narrow issue at trial, "that is, whether the misrepresentation on

the 2001 policy application regarding the petty cash account was

material," whereas on appeal Federal argues that the evidence was

irrelevant because it went to the underwriter's subjective state of

mind. We fail to see the difference in Federal's arguments as

framed by HPSC, given that Federal's position on appeal is that the

materiality inquiry is an objective one, rather than a subjective
 Federal's fundamental argument on appeal is that the district 4

court applied the wrong standard in the case. However, Federal did

not object to the trial court's instructions to the jury, nor did

it preserve its right to appeal the court's denial of judgment as

a matter of law. Our only inquiry, therefore, is whether the

evidence in question is relevant to the objective materiality of

HPSC's misrepresentation.

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one, hence that the underwriter's subjective state of mind is

irrelevant to the issue of materiality.

B. Evidentiary Issue

Having determined that Federal preserved the evidentiary

issue, we turn to the substance of that issue. We review a

district court's ruling on the admission of evidence for abuse of

discretion. Pelletier v. Main Street Textiles, LP, 470 F.3d 48, 52

(1st Cir. 2006).

Federal objects to the district court's admission of

evidence concerning Federal's past underwriting of HPSC's policies

on the ground that such evidence permits a subjective inquiry into

what the underwriter would have done had she known the truth, which

is irrelevant to the objective standard of whether the

misrepresentation increased the insurer's risk of loss. We

disagree with Federal's premise.4

Federal's right to rescind HPSC's policy is governed by

Mass. Gen. Laws ch. 175, § 186, which provides:

No oral or written misrepresentation or

warranty made in the negotiation of a policy

of insurance by the insured or in his behalf

shall be deemed material or defeat or avoid

the policy or prevent its attaching unless
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such misrepresentation or warranty is made

with actual intent to deceive, or unless the

matter misrepresented or made a warranty

increased the risk of loss.

With respect to the materiality of a misrepresentation in an

insurance application, "[a] material fact, measured by an objective

standard, is one which would 'naturally influence the judgment of

[an] underwriter in making the contract at all, or in estimating

the degree and character of the risk, or in fixing the rate of the

premium.'" A.W. Chesterton Co. v. Mass. Insurers Insolvency Fund,

838 N.E.2d 1237, 1246 (Mass. 2005) (second alteration in original)

(quoting Employers' Liab. Assur. Corp. v. Vella, 321 N.E.2d 910,

913 (1975)).

Thus, the materiality of a misrepresentation depends on

what a reasonable underwriter would have done differently had she

known the truth behind the misrepresentation. See Boston Mut. Ins.

Co. v. N.Y. Islanders Hockey Club, L.P., 165 F.3d 93, 97 (1st Cir.

1999). There are, as a matter of common sense, a variety of ways

to objectively prove what an underwriter would do in a given

situation. The parties could offer the testimony of various

underwriters or other risk management experts as to what they would

have done in the same situation, as both sides did in this case.

See Hanover Ins. Co. v. Leeds, 674 N.E.2d 1091, 1095-96 (Mass. App.

Ct. 1997) (basing a finding of materiality on the testimony of the

insurer's underwriter). Or the parties could provide evidence of

what underwriters have in fact done in the past in similar
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situations. Similarly, it makes sense that an insurer might wish

to establish what it would do in a particular situation by

presenting evidence of its own policies and past practices. See

Boston Mut. Ins. Co., 165 F.3d at 97 ("[T]he statute does not go so

far as to require proof by the insurer that it would have acted

differently (although such proof certainly tends to establish

materiality . . . ).") (citing Barnstable County Ins. Co. v. Gale,

680 N.E.2d 42 (Mass. 1997)); TIG Ins. Co. v. Blacker, 767 N.E.2d

598, 602 (Mass. App. Ct. 2002) (basing a finding of materiality on

evidence of the insurer's own standards).

If Federal could present evidence of its own past

underwriting practices to establish materiality, it follows that

HPSC could do the same to establish immateriality. Thus, it is

clear that the district court did not err in admitting evidence of

Federal's actions on past applications, including HPSC's, since

such evidence provides relevant insight into how specific

information would influence a reasonable underwriter's decisions

regarding a particular policy.

C. Chapter 93A claim

Federal also argues that it is entitled to judgment as a

matter of law on HPSC's unfair and deceptive trade practices claim.

As explained above, we treat this argument as a challenge to the

factual and legal sufficiency of the district court's conclusions.

Following a bench trial on a chapter 93A claim, we review the
 Mass. Gen. Laws ch. 176D, § 3(9) states in relevant part: 5

The following are hereby defined as unfair methods of

competition and unfair or deceptive acts or practices in

the business of insurance:--

. . .

(9) Unfair claim settlement practices: An unfair claim

settlement practice shall consist of any of the following

acts or omissions:

. . .

(d) Refusing to pay claims without conducting a

reasonable investigation based upon all available

information;

. . .

(f) Failing to effectuate prompt, fair and equitable

settlements of claims in which liability has become

reasonably clear . . . .

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district court's legal conclusions de novo and its underlying

factual findings for clear error. Commercial Union Ins. Co. v.

Seven Provinces Ins. Co., 217 F.3d 33, 40 (1st Cir. 2000). We also

review the district court's "evaluative judgment[s], [when]

applying a legal standard to a particular set of facts," for clear

error. Roland M. v. Concord Sch. Comm., 910 F.2d 983, 990 (1st

Cir. 1990). The determination of whether certain conduct is unfair

or deceptive is a question of fact, but whether that conduct rises

to the level of a chapter 93A violation is a question of law.

Commercial Union Ins. Co., 217 F.3d at 40.

The district court concluded that Federal violated its

statutory duties to undertake a reasonable investigation of the

facts before denying the claim and to make a settlement offer when

liability has become reasonably clear, Mass. Gen. Laws ch. 176D,

§ 3(9), and that the violation of these duties constituted an 5
 There may be additional requirements for liability to attach, 6

such as the requirement that a claimant suffer a loss of money or

property, Mass. Gen. Laws ch. 93A, § 11, and that the unfair or

deceptive conduct "occurred primarily and substantially within the

commonwealth," id.; Kuwaiti Danish Computer Co. v. Digital Equip.

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unfair trade practice under Mass. Gen. Laws ch. 93A, § 2(a)

("Unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce are hereby

declared unlawful."). The district court also found that Federal's

conduct was knowing or willful after February 6, 2003, when it

learned that the fundamental premise of its suit was flawed; the

court accordingly doubled the damages incurred by HPSC after that

date. Id. § 11 ("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.") Federal

argues that the district court's rulings are not supported by the

record. We disagree.

1. Unfair Trade Practices Determination

The Massachusetts Supreme Judicial Court has concluded

that a violation of General Laws chapter 176D, § 3, which defines

unfair claim settlement practices in the insurance industry, is

evidence of an unfair business practice under chapter 93A, § 2,

which would give rise to a cause of action under chapter 93A,

§ 11. See Polaroid Corp. v. Travelers Indem. Co., 610 N.E.2d 912, 6
Corp., 781 N.E.2d 787, 799-800 (Mass. 2003), but none of those

requirements are at issue here.

 Federal also challenges the district court's factual findings 7

underlying these conclusions. There is ample support in the

record, however, to support the judge's conclusion that MacKay

misread the PwC report and that her mistaken perception was shared

by her superiors.

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917 (Mass. 1993); see also Peterborough Oil Co. v. Great Am. Ins.

Co., 397 F. Supp. 2d 230, 244 (D. Mass. 2005) ("Unlike in the

context of consumer plaintiffs under § 9, a violation of chapter

176D is only evidence of a violation of chapter 93A, § 11."). The

question for us then is whether the district court correctly

concluded that Federal breached its statutory duties to investigate

and to effectuate settlement.

With respect to the duty to investigate, the record

supports the district court's determination that Federal did not

conduct a reasonable investigation before filing its suit for

rescission. Specifically, the district court found that MacKay

never confirmed her tentative conclusion regarding Morrison's

authority over the accounts in question, and no one at Federal ever

attempted to contact HPSC to obtain more information regarding the

apparent discrepancy between HPSC's answer to Question 12 on the

renewal application and the conclusions in the PwC report. Thus, 7

other than reviewing the materials submitted with HPSC's claim, it

appears that Federal did no investigation of the available facts

before denying coverage. Consequently, the district court
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correctly concluded that Federal's failure to investigate breached

its statutory duty under chapter 176D, § 3(9)(d).

The record also supports the district court's finding

that Federal breached its statutory duty to effectuate settlement.

An insurer's duty to make a settlement offer arises when "liability

has become reasonably clear." Mass. Gen. Laws ch. 176D, § 3(9)(f).

The determination as to when liability is reasonably clear depends

on when "a reasonable person, with knowledge of the relevant facts

and law, would probably have concluded, for good reason, that the

insurer was liable to the plaintiff." Nyer v. Winterthur Int'l,

290 F.3d 456, 461 (1st Cir. 2002) (quoting Demeo v. State Farm Mut.

Auto. Ins. Co., 649 N.E.2d 803, 804 (Mass. App. Ct. 1995)). Here,

the district court considered liability sufficiently clear after

Federal learned that Morrison did not have reconciliation and

check-writing duties with respect to ACFC's fifteen operating

accounts. Instead of admitting its error and making a settlement

offer, however, Federal changed its legal theory, and when that one

failed, Federal again shifted its position, finally settling on the

theory that HPSC's misrepresentation regarding the petty cash

account was material enough to warrant denying the claim. While we

have some doubt that a reasonable person would "probably" have

concluded that Federal was liable on HPSC's claim, we are not

prepared to say that the court's conclusion was clearly erroneous.
-19-

Federal contends that it had a plausible basis for

denying coverage at all times, even after it learned that HPSC's

only misrepresentation involved the petty cash account, and that an

insurer who has a good faith, plausible basis for denying a claim

"cannot ordinarily be said to have committed a violation of

[chapter] 93A." Lumbermens Mut. Cas. Co. v. Offices Unlimited,

Inc., 645 N.E.2d 1165, 1169 (Mass. 1995). Even if we were inclined

to agree that Federal's basis for denying coverage was plausible,

in that it was a "[s]eemly or apparently valid" legal theory,

Webster's II New Riverside University Dictionary 901 (1988), the

district court explicitly determined, with sufficient support in

the record, as explained below, that Federal was not acting in good

faith after February 6, 2003. The absence of good faith supports

the district court's unfair settlement practice determination, even

in the face of a plausible coverage position. See Guity v.

Commerce Ins. Co., 631 N.E.2d 75, 77-78 (Mass. App. Ct. 1994) ("A

plausible, reasoned legal position that may ultimately turn out to

be mistaken . . . is outside the scope of the punitive aspects of

the combined application of c. 93A and c. 176D. 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." (citations omitted)).

In sum, the district court did not clearly err in finding

that Federal failed to conduct a reasonable investigation before
 February 6, 2003, was the date of the letter memorializing 8

HPSC's revelation that MacKay had misread the PwC report and that

Federal's assumption that Morrison had reconciled statements and

wrote checks on all sixteen ACFC accounts was flawed.

-20-

seeking rescission and then failed to make a settlement offer once

liability was reasonably clear, and thus that Federal breached its

statutory duties. Therefore, we affirm the district court's legal

conclusion that Federal violated chapter 93A by engaging in unfair

claim settlement practices as defined in chapter 176D, § 3(9). See

Cont'l Ins. Co. v. Bahnan, 216 F.3d 150, 157 (1st Cir. 2000) ("We

are persuaded here . . . that the court's finding that [the

plaintiff] satisfied the imperatives of chapter 176D was amply

supported by competent and credible evidence. So, too, were the

court's fairness determinations under chapter 93A. We need go no

further.")

2. Willfulness Determination

Finally, the district court's conclusion that "Federal's

conduct . . ., while not motivated by a dishonest purpose, spite,

or ill will, was after February 6, 2003, a knowing or willful

breach of its duty of good faith" is also supported by the record.8

The district court was convinced based on the evidence before it

that Federal acted in bad faith by, among other things, racing to

litigate without knowing all the facts and then stubbornly refusing

to admit its error. Cf. id. ("The district court, which saw and

heard the witnesses, concluded that Continental had not sailed too
-21-

close to the chapter 176D winds . . . ."); Correa v. Hosp. S.F., 69

F.3d 1184, 1194 (1st Cir. 1995) ("To be sure, the evidence in this

case is not particularly precise. But facts at trial, as in life,

do not always appear in black and white. Juries and judges

frequently must distinguish between manifold shades of gray.").

Accordingly, the district court properly doubled the damages

incurred after February 6, 2003. Canal Elec. Co. v. Westinghouse

Elec. Corp., 548 N.E.2d 182, 188 n.10 (Mass. 1990) ("In

circumstances of knowing and wilful violation of c. 93A or of badfaith refusal to settle, a plaintiff also may be entitled to double

or treble damages under c. 93A itself.")

3. Attorneys' Fees

HPSC asks that we order Federal to pay attorneys' fees

incurred by HPSC in defending this appeal. HPSC is indeed entitled

to "reasonable attorney's fees for [its] successful defense of

[its] award of attorney's fees and costs under [chapter] 93A."

Twin Fires Inv., LLC v. Morgan Stanley Dean Witter & Co., 837

N.E.2d 1121, 1140 (Mass. 2005). Federal did not challenge the

district court's calculation of attorneys' fees and costs below,

and therefore we will not disturb that ruling. With regard to the

calculation on appeal, however, we award only those attorneys' fees

incurred in defending the chapter 93A claim. See Incase, Inc. v.

Timex Corp., 421 F. Supp. 2d 226, 244 (D. Mass. 2006) ("[When t]he

chapter 93A claim was brought together with a number of other
-22-

claims[,] . . . an award of fees and costs under chapter 93A should

generally include an amount only for those fees and costs that were

incurred in connection with the chapter 93A portion of the case.")

The factual basis of the chapter 93A claim is sufficiently distinct

from that of the breach of contract claim that HPSC and its

attorneys should be able to differentiate the time spent on each of

the two claims. See id. However, to the extent that the

attorneys' fees incurred in successfully defending the chapter 93A

claim cannot be excised with any certainty from those related to

HPSC's breach of contract defense, HPSC is entitled to the fees

common to both claims, since the two are based on the same core of

facts. Id. (citing Twin Fires Inv., 837 N.E.2d at 1140).

IV. Conclusion

For the reasons stated above, we affirm the judgment in

favor of HPSC on both the rescission and the unfair trade practices

claims, as well as the doubling of damages after February 6, 2003.

Affirmed.