Damages – Fee award – Chapter 93A

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Where a defendant violated G.L.c. 93A by failing to produce the plaintiff’s requested medical records, the plaintiff’s motion for counsel fees should be allowed in part and denied in part, as she is not entitled to fees incurred after she rejected in writing the defendant’s reasonable settlement offer of $20,000.

“On September 20, 2024, following a week-long trial, a fourteen-member jury found in favor of Plaintiff Sandra Montanez, as personal representative of the Estate of Benita Sanchez (‘Sanchez’), and against Defendant 178 Lowell Street Operating Company, LLC, d/b/a CareOne at Lexington (‘COL’), on breach of contract (Count II) and negligence (Count III) claims in connection with COL’s failure to timely produce a complete set of Sanchez’s medical records. The jury awarded Plaintiff $4,500 on each respective claim.

“On September 23, 2024, the court conducted a jury-waived trial on the remaining G.L.c. 93A, §9 claim against COL (Count I). On October 10, 2024, the court issued its Findings of Fact and Rulings of Law. The court found in favor of Plaintiff and against COL, concluding that COL had violated c. 93A by failing to produce the requested medical records in violation of Federal regulations. The court also concluded, however, that COL’s settlement offer in the amount of $20,000, which Plaintiff did not accept, was reasonable in relation to the injury she suffered. Further concluding that COL’s violation of c. 93A was due, at most, to its negligence and that of its agents, and not any willful, knowing, or bad faith conduct, the court awarded single damages in the amount of $9,000 and declined to impose multiple damages. The court lastly found that the jury’s total award of $9,000 on the breach of contract and negligence claims was duplicative of, and encompassed within, the $9,000 damage award for the c. 93A claim, entitling Plaintiff to recover one sum in the amount of $9,000.

“Plaintiff’s Attorney also sought to recover attorney’s fees and costs under c. 93A. …

“After thorough consideration of the Docket Report, this court’s familiarity with certain pretrial proceedings, and the parties’ submissions, including, but not limited to, the affidavit and the itemized billing records Plaintiff’s Attorney submitted, for the reasons set forth below, the Motion for Attorney’s Fees and Costs under Chapter 93A is allowed in part and denied in part.

“Also before the court is Plaintiff’s Attorney’s written request to recover ‘taxable costs and interest’ (Paper No. 129). Defendants oppose the request, which the court treats as a motion. … After a hearing on October 16, 2024, and for the reasons set forth below, the Motion for Taxable Costs and Interest is allowed in part and denied in part. …

“The rejection of a reasonable settlement offer affects the period of time for which a prevailing attorney may collect fees under c. 93A. …

“… Following the c. 93A trial, as noted, the court determined that COL’s $20,000 settlement offer on December 17, 2019, was reasonable. … Based on the evidence admitted at trial, the court concluded in its Findings of Facts and Rulings of Law that while Plaintiff did not explicitly reject the offer, she did so implicitly through her conduct in not responding to the offer and continuing to prosecute the matter through trial. In that decision, the court accordingly set the cutoff date for Plaintiff’s attorney’s fees to be the date of the offer, December 17, 2019.

“Plaintiff now argues for the first time that the court’s cutoff date of December 17, 2019, is ‘factually unrealistic’ because on February 26, 2020, Plaintiff rejected in writing Defendant’s $20,000 settlement offer. However, neither party introduced the February 26, 2020, rejection letter in evidence at the c. 93A trial, nor was the existence of the letter disclosed to the court in Plaintiff’s motion for reconsideration. Only now is the court learning of this letter. … Plaintiff also offers no explanation as to why it took more than two months to reject COL’s settlement offer.

“While the preferred course would have been to admit the letter in evidence at trial or alert the court to its existence in the motion for reconsideration, the court nevertheless sua sponte amends the October 10, 2024, Order to extend the time frame from December 17, 2019, to February 26, 2020. Thus, in these circumstances, the court limits recovery of attorney’s fees and costs to those incurred from July 25, 2014, through February 26, 2020. …

“As with Plaintiff’s request for attorney’s fees, the costs associated with the c. 93A claim are limited to costs incurred prior to the date of her rejection of COL’s reasonable written offer of settlement. … The court concludes that the $1,805.62 claimed is reasonable and supported by Plaintiff’s Attorney’s submissions. …

“Pursuant to G.L.c. 261, §1, and Mass. R. Civ P. 54(d), (e), and (f), Plaintiff requests that this court approve and add to the judgment certain ‘taxable costs’ totaling $3,606.29, as well as pre-judgment interest totaling $10,964.70.  …

“Here, under G.L.c. 261, Plaintiff seeks to recover $364.04, including fees associated with filing the Complaint, obtaining a summons, and service of process. These taxable costs are recoverable. …

“For the above stated reasons, the court awards taxable costs to Plaintiff in the amount of $2,577.54. …

“Finally, Plaintiff seeks statutory prejudgment interest nun pro tunc to September 20, 2024. COL does not oppose this aspect of Plaintiff’s motion. The motion therefore is allowed. The Clerk’s Office shall calculate prejudgment interest through September 20, 2024.”

Montanez v. 178 Lowell Street Operating Company, LLC, et al. (Lawyers Weekly No. 12-057-25) (13 pages) (Bloomer, J.) (Middlesex Superior Court) (Civil Action No. 1481CV06724) (Jan. 23, 2025).

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