Litigation Strategy

Appeals Court Enforces Attorney Fee Provision in Commercial Contract

The Massachusetts Appeals Court today enforced, without substantial comment, analysis or citation to authority, a bank’s loan guaranty contract providing that the "[g]uarantor agrees that whenever any attorney is used by the Lender to obtain payment hereunder, to enforce this Guaranty . . . the Lender shall be entitled to recover reasonable attorneys' fees, all court costs, and expenses." MountainOne Bank v. Hurley, No. 18-P-1504. https://www.mass.gov/files/documents/2019/08/15/18P1504.pdf. The court also consequently awarded the bank its appellate fees. Parties to contracts sometimes wonder whether courts will enforce such provisions. Today’s decision, albeit an unpublished decision, reaffirms that yes, such provisions can be enforceable and that this conclusion is sometimes so obvious a reviewing court will not need to analyze the issue in detail or even cite supporting authority.

Form Matters:  Appeals Court Rejects Insurer's Rate Increase Because of Submission Error

The Massachusetts Appeals Court has again reminded litigants of the necessity of following procedures in administrative (make that *all*) matters.  In Genworth Life Ins. Co v. Commissioner of Insurance, No. 18-P-55 (June 3, 2019), the Appeals Court rejected Genworth’s appeal of the trial court’s summary judgment against Genworth on the basis that Genworth “had not followed the proper procedure to secure approval for proposed rate increases for long-term care insurance.”

In a bulletin released in 2008 (2008-08 bulletin), the commissioner announced that all filings by insurance carriers doing business in Massachusetts must be made using the Division of Insurance’s (division) system for electronic rate and form filing (SERFF)

Though Genworth filed its request for rate increases through SERFF, it amended its filings through SERFF to change the requested rate increase, but never made any filing through SERFF that sought a specific deadline for the implementation of its requested rate increases.  After some negotiations and significant delay in the approval process, Genworth sent letters to the commissioner through e-mail and Federal Express, but not through SERFF.  The letters cited G. L. c. 175, § 108, which, Genworth argued, in combination with G. L. c. 175, § 193F, constituted a so-called “deemer provision” whereby Genworth’s requested rate increase was “deemed approved” when the commissioner did not explicitly disapprove the increase within thirty days.

But the instructions to the Commissioner’s 2008-08 bulletin state explicitly, under the section titled “Deemer Provision,” that “[t]his section does not apply . . . to any filings that are effective on approval.”  The Appeals Court deferred to this interpretation, noting that “[w]e review questions of statutory interpretation de novo. . . . [However, w]e give substantial deference to a reasonable interpretation of a statute by the administrative agency charged with its administration enforcement.” Further, “an administrative agency may use sub-regulatory guidance to ‘fill in the details or clear up an ambiguity of an established policy’ without resort to formal rulemaking as long as it does not contradict its enabling statute or preexisting regulations.’”

The Appeals Court applied these precedents noting that the 2008-08 bulletin mandating the use of SERFF “did not conflict in any way with the relevant statutes but, rather, provided a method to implement them -- a method with which Genworth clearly was familiar, having filed its 2012 rate increase proposal through SERFF.”

The lesson here—one the appellate courts frequently teach—is that strict compliance with statutory or other procedural requirements can be essential.

When Two Notices of Appeal Are Required

The Massachusetts Appeals Court today reminds litigants that where a party claims an entitlement to attorney's fees under G. L. c. 231, § 6F (the statute relating to insubstantial, frivolous or bad faith claims or defenses), a party challenging a denial of fees must file a separate notice of appeal pursuant to G. L. c. 231, § 6G. A party appealing a § 6F order incorporated into a final judgment is required to file two notices of appeal, one to appeal the § 6F order to a single justice and the other to appeal the balance of the judgment to a panel. See Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 584 (2010) (quoting Bailey v. Shriberg, 31 Mass. App. Ct. 277, 284 (1991)).

Employment Litigation Tactics

Employment Litigation Tactics

Think of litigation as akin to being on a battlefield.  Your lawyer is like a field general charged with achieving the lawful objectives of you—the sovereign head of state.  Strategy and tactics are an indelible part of what happens on a battlefield and in a courtroom.  Here are some tactical observations about one particular type of litigation, employment litigation.