November 1, 1993

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 93-1490

            CARMEN FORCUCCI and THERESA FORCUCCI,

                   Plaintiffs, Appellants,

                              v.

         UNITED STATES FIDELITY AND GUARANTY COMPANY,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. A. David Mazzone, U.S. District Judge]
                                                    

                                         

                            Before

                     Stahl, Circuit Judge,
                                         

         Aldrich and Campbell, Senior Circuit Judges.
                                                    

                                         

Mark D. Shuman for appellants.
              
Alice  Olsen Mann  with  whom  Ralph  C.  Sullivan  and  Morrison,
                                                                  
Mahoney &amp; Miller were on brief for appellee.
            

                                         

                                         

          ALDRICH,  Senior  Circuit   Judge.    The  district
                                           

court's  allowance of  defendant's  Fed.  R.  Civ.  P.  56(c)

summary   judgment    motions,   adopting    a   magistrate's

recommendation,  raises questions of opinion, the law as well

as  the basic  facts  being undisputed.    Did defendant,  an

insurer on a standard automobile policy providing coverage in

case of injury  by a party who was  uninsured or underinsured

("UIM coverage"),  act  fairly,  reasonably,  promptly,  with

respect to a  claim?   Mass. G.L.  c. 93A,   9  and c.  176D,

  3(9).   (Counts I  and II).   Was its conduct  "extreme and

outrageous . . .   utterly  intolerable"?    Agis  v.  Howard
                                                             

Johnson,  371  Mass. 140,  145,  355 N.E.2d  315,  319 (1976)
       

(quoting Restatement).  (Counts III  and IV).  Counts III and

IV's allegations  are themselves  extreme, and  are so  fully

answered by the magistrate judge as confirmed by the district

court  and by what  we say, incidentally,  hereafter, that we

will give  them no  further specific  attention.   The  other

claims are more difficult, as are often questions of judgment

when summary  disposition is  sought.  Cf.  Wallace v.  Shade
                                                             

Tobacco Growers Agric. Ass'n., Inc.,  642 F.2d 17, 19-20 (1st
                                   

Cir.  1981).   At the  same time,  although our review  is de
                                                             

novo, Rivera-Marcano v.  Normeat Royal Dane Quality  A/S, 998
                                                        

F.2d  34, 37  (1st Cir. 1993),  we may  be slow to  reverse a

magistrate's careful conclusions, thoughtfully  reviewed.  In

                             -2-

this case  we almost entirely  agree with what has  been said

below and we affirm.

          First, some  dates.   On November  11, 1988  Cesare

Forcucci,  son of plaintiffs Carmen and Theresa Forcucci, was

injured in  a single vehicle  accident, dying  the next  day.

There  was at  first  a  question whether  he,  or one  Darin

Goodwin, was driving.  On April 26, 1989, plaintiffs' counsel

notified  defendant of the  accident, and requested  the full

medical  coverage of  $10,000,  due  regardless  of  who  was

driving.   Nothing  was said  about UIM.   On June  1 counsel

wrote  with respect to  UIM that Goodwin's  $100,000 coverage

with Travelers was insufficient.  Defendant paid the medical.

In late September Travelers, evidently conceding that Goodwin

had  been the  driver,  offered the  full $100,000  under its

policy, and thereafter  paid it.   On November 9  plaintiffs'

counsel  wrote defendant that  Goodwin had been  convicted on

October 5 of motor  vehicle homicide, thus resolving the  UIM

issue,  and  repeated  his demand  for  defendant's  full UIM

$100,000.  Included was a handwritten Victim Impact Statement

that Theresa  Forcucci had  submitted to  the criminal  court

prior to  Goodwin's sentencing,  describing the  effects upon

her of her son's loss.

          On  November  28,  having  received  no   response,

plaintiffs'  counsel, by fax, asked  defendant why it did not

respond.   On December  4, having received  no reply, counsel

                             -3-

telephoned  defendant and  was  told  that  it  was  awaiting

completion  of  its  investigation  into the  possibility  of

plaintiffs  making a  claim against  the  nightclub that  had

supplied  Goodwin with alcoholic  beverages.  Asked  why this

was  relevant, defendant's claim representative could give no

answer.  On December 5  plaintiffs mailed a demand letter for

unfair  settlement practices pursuant to G.L. c. 93A,   9(3).

This  extensive  letter  referred, inter  alia,  to  a recent
                                              

Massachusetts  case, Bertassi v. Allstate Ins. Co., 402 Mass.
                                                  

366, 522  N.E.2d  949 (1988),  that  held that  an  insurer's

investigation of possible  dram shop liability was  no excuse

for delay.  The certified  receipt shows that this letter was

received on December 11.  Defendant replied by fax on January

11, 1990, offering $25,000 in full settlement.  On January 18

counsel  replied by certified  mail that $25,000  was grossly

inadequate  and  stating  that  plaintiffs  were  instituting

arbitration proceedings  forthwith  pursuant  to  the  policy

provisions.

          Plaintiffs' first  claim is that  defendant's offer

was  not  "prompt,"  one  of   the  four  objections  to  the

magistrate's  report, because  it was made  31 days  from the

date of its receipt of  plaintiffs' December 5 letter, rather

than within 30.   Thirty days is a  statutory period relating

to a defendant's  opportunity to receive Ch.  93A protection,

Mass. G.L. c. 93A,   9(3),  not to the statutory  requirement

                             -4-

of a reasonably prompt response.  Mass. G.L. c. 176D,   3(9).

Especially with the holiday season interference we accept the

magistrate's conclusion that 31 days was reasonably prompt as

matter of law.1

          The  more serious question is whether $25,000 was a

reasonable offer.   The  magistrate found it  was on  the low

side, but  reasonable as matter of law.  In agreeing with him

we stress two factors; one, perhaps more than he did, and one

that he  did not  stress at all.   Negotiating  a settlement,

particularly when  the damages  are unliquidated,  is, to  an

extent,  a legitimate bargaining  process.  The  statute does

not call for defendant's final offer, but only one within the

scope of reasonableness.  Experienced negotiators do not make

their final offer  first off, and experienced  negotiators do

not expect it, or take seriously a representation that it is.

Indeed, plaintiffs say as much  in now intimating that  their

own $100,000  policy limits offer  was not final in  spite of

the fact that, in several talks, they refused to reduce it.

          The  reasonableness of a defendant's response is to

be considered  in the light of the  situation as a whole, one

aspect  of  which   was  the  size  of   plaintiffs'  demand.

                    

1.  We   further  ask,   if  plaintiffs   consider   30  days
appropriate, may not a fax on the 31st day be equivalent to a
letter mailed on the 30th?

                             -5-

Plaintiffs'  demand was very  high.2  Ordinary  give and take

would suggest that both would and should move.  Defendant was

not ever given that opportunity, even when it traded  against

itself,  as  shown  in  the   magistrate's  report.    As  to

defendant's alleged bad faith, this  is not a case like Whyte
                                                             

v. Connecticut Mutual Life Ins. Co.,  818 F.2d 1005 (1st Cir.
                                   

1987).  

          We  have   only  one   problem,  the   last  minute

expression  of  defendant's  legal   department's  fear  that

$100,000  would be  a likely  outcome.   How  over-large that

opinion  might be is  indicated by the  arbitrator's finding.

See  n.2,  ante.    This  brings  us  to  Theresa  Forcucci's
               

extensive victim  impact statement,  submitted in support  of

her claim herein.   With the greatest respect  for a bereaved

mother who has suffered a great tragedy, a jury's response is

not necessarily predictable.   Defendant's legal department's

belief that a jury might give it great weight did not destroy

the  reasonableness of the claim department's opinion that it

might not.   Two  different views could  both be  reasonable.

Apprehensions  did  not  make the  lower  offer unreasonable,

particularly where, in dollars, that offer was the nearer  to

the arbitrator's finding.

                    

2.  In saying this we may look at the arbitrator's finding of
$55,000.  Plaintiffs'  complaint of  the magistrate's  giving
weight  hereto  overlooks that the statute  expressly permits
it.  Mass.  G.L. c. 176D,   3(9)(8)G.   Their contention that
he accepted it out of hand is incorrect.

                             -6-

          We  accept   the  magistrate's   recommendation  in

substance, and affirm the district court.

                             -7-
