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SJC-12108

   ODIN ANDERSON & others1 vs. NATIONAL UNION FIRE INSURANCE
               COMPANY OF PITTSBURGH PA & others.2



         Middlesex.    October 6, 2016. - February 2, 2017.


 Present:    Gants, C.J., Botsford, Lenk, Hines, Gaziano, & Lowy,
                              Budd, JJ.


Consumer Protection Act, Insurance, Unfair or deceptive act,
     Offer of settlement, Damages. Insurance, Settlement of
     claim. Damages, Consumer protection case, Interest,
     Punitive. Interest. Judgment, Interest. Practice, Civil,
     Judgment, Damages, Interest.



     Civil action commenced in the Superior Court Department on
March 13, 2003.

     The case was heard by Brian A. Davis, J., and motions to
alter or amend the judgment were also heard by him.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.




     1
       Kerstin Anderson and Katarina Anderson, by her father and
next friend, Odin Anderson.
     2
       American International Group Technical Services, Inc., &
AIG Claims Services, Inc.
                                                                    2


     Kathleen M. Sullivan for National Union Fire Insurance
Company of Pittsburgh PA.
     Leonard H. Kesten (Richard E. Brody also present) for the
plaintiffs.


     GAZIANO, J.   In this appeal, we consider the proper measure

of punitive damages to be assessed against defendants who engage

in unfair or deceptive insurance settlement practices in

violation of G. L. c. 176D, § 3, and G. L. c. 93A, § 9 (3).    The

plaintiffs -- Odin Anderson, his wife, and his daughter -- filed

a personal injury action in the Superior Court for serious

injuries Odin3 suffered after being struck by a bus owned by

Partners Healthcare Systems, Inc. (Partners), that was being

driven by one of its employees.   The plaintiffs filed a separate

action, under G. L. c. 176D, and G. L. c. 93A, against Partner's

insurers and claims representatives; proceedings in that action

were stayed pending resolution of the underlying tort claims.

After a trial, a Superior Court jury awarded Anderson $2,961,0004

in damages in the personal injury action, and awarded his wife

and daughter $110,000 each.   At a subsequent, jury-waived trial,

a different Superior Court judge found that the insurers and

claims representatives violated G. L. c. 93A and G. L. c. 176D

by their "egregious," "deliberate or callously indifferent"

     3
       Because the plaintiffs share a last name, we refer to them
by their first names.
     4
       This amount was later reduced by forty-seven per cent
based on the jury's finding of comparative negligence.
                                                                    3


actions, "designed to conceal the truth, improperly skew the

legal system and deprive the Andersons of fair compensation for

their injuries for almost a decade."   Based on these findings,

the judge concluded that the insurers' and claims

representatives' "misconduct warrants the maximum available

sanction . . . , both as punishment for what transpired and as a

deterrent to similar conduct in the future."    He awarded the

plaintiffs treble damages, using as the "amount of the judgment"

to be multiplied the combined amount of the underlying tort

judgment and the accrued postjudgment interest on that judgment.

See G. L. c. 93A, § 9 (3); G. L. c. 176D, § 3 (9) (f) (where

violation of G. L. c. 176D is wilful, damages are to be

multiplied pursuant to G. L. c. 93A, § 9 [3]).    The Appeals

Court affirmed the judgment of liability and the amount of the

award of damages, in an unpublished memorandum and order issued

pursuant to its rule 1:28.   See Anderson v. National Fire Ins.

Co. of Pittsburgh PA, 88 Mass. App. Ct. 1117 (2015).

    We granted the defendants' application for further

appellate review, limited to the issue whether postjudgment

interest was included properly in the "amount of the judgment"

to be multiplied under G. L. c. 93A, § 9 (3).    We conclude that

in a case where the amount of actual damages to be multiplied

due to a wilful or knowing violation of G. L. c. 93A or G L.
                                                                     4


c. 176D are based on the amount of an underlying judgment, that

amount does not include postjudgment interest.

    1.      Background.   On September 2, 1998, while crossing

Staniford Street in Boston, Odin was struck and injured by a bus

owned by Partners and operated by Partners' employee Norman

Rice.   As a result of the collision, he sustained serious

injuries, including a fractured skull and intracerebral

hemorrhage, that ultimately required more than one year of

medical treatment.

    At the time of the accident, Partners and Rice were insured

under primary and excess policies issued by National Union Fire

Insurance Company of Pittsburgh PA.      American International

Group Claims Services, Inc., the primary insurer, and American

International Group Technical Services, Inc., the excess

insurer, were responsible for adjusting claims on these

policies.

    The plaintiffs, through counsel, sought to reach a

settlement agreement with the defendants.      The defendants

rejected the plaintiffs' demand for settlement and declined to

enter into settlement negotiations.     As a result, in May, 2001,

the plaintiffs filed a personal injury action against Partners

and Rice, claiming negligent operation of a motor vehicle,

negligent infliction of emotional distress, and loss of

consortium.    In March, 2003, the plaintiffs filed a separate
                                                                   5


action against all of the defendants under G. L. c. 176D, § 3,

and G. L. c. 93A, § 9 (3), alleging wilful and egregious failure

to conduct a reasonable investigation of the plaintiffs' claims,

and failure to effectuate a prompt, fair, and equitable

settlement, notwithstanding that liability had become

"reasonably clear" by the time the plaintiffs filed their

initial complaint.   Proceedings in the second action were

stayed, on the parties' joint motion, pending resolution of the

underlying tort action.

     Trial in the tort case took place in June and July of 2003.

The jury found that Odin had suffered $2,961,000 in damages but

that he was comparatively negligent for forty-seven per cent of

his injuries, thereby reducing the award of damages to

$1,569,330.5 Judgment entered for Odin on July 10, 2003, in the

amount of $2,244,588.93; the total amount included costs and

mandatary prejudgment interest, as required under G. L. c. 231,

§ 6B, of approximately $450,000.

     The defendants appealed to the Appeals Court from certain

evidentiary rulings and from the judge's instructions on

comparative negligence.   In August, 2008, the Appeals Court

affirmed the judgment, Anderson v. Rice, 72 Mass. App. Ct. 1114


     5
       The jury also awarded $110,000 each to Kerstin and
Katarina, Odin's wife and daughter. In April, 2007, the parties
reached an agreement to settle the loss of consortium claims,
and Kerstin and Katarina each received $204,569.13.
                                                                    6


(2008), and we thereafter denied the defendants' application for

further appellate review, see 452 Mass. 1107 (2008).     In

December, 2008, the defendants paid the amount of the damages

due to Odin on the underlying tort judgment, as well as the five

years of statutorily-mandated postjudgment interest accrued on

that judgment between its date of entry in the Superior Court

and the issuance of the Appeals Court's opinion.     The amount

ultimately paid to Odin totaled $3,252,857.80, which included

$1,284,243.17 in postjudgment interest.

    In September, 2013, a second Superior Court judge conducted

a ten-day jury-waived trial on the G. L. c. 176D and G. L.

c. 93A action.     His decision containing findings of fact,

rulings of law, and an order for judgment issued in April, 2014.

The judge found that the defendants violated G. L. c. 176D,

§ 3 (9) (d), by failing to "conduct a reasonable investigation

. . . based on all available evidence," including by suppressing

unfavorable evidence and offering fictitious evidence; failing

to "effectuate prompt, fair and equitable settlement of claims

in which liability . . . ha[d] become reasonably clear"; and

pursuing an unreasonable appeal of the underlying personal

injury judgment.    The judge also concluded that the defendants'

violations of G. L. c. 176D had been wilful and egregious,

warranting an award of punitive damages under G. L. c. 93A,

§ 9 (3).   The judge determined that the amount to be multiplied
                                                                    7


under G. L. c. 93A, § 9 (3), was double the amount of the

underlying personal injury judgment that had entered in 2003,

combined with the postjudgment interest that had accrued between

the date of entry and the date of the defendants' payment in

2008.

     The parties filed motions to modify the judgment, pursuant

to Mass. R. Civ. P. 59 (e), 365 Mass. 827 (1974).    The

plaintiffs asserted that the judge's doubling of the amount of

the underlying 2003 judgment was inconsistent with his stated

purpose to impose "maximum available sanctions."    They argued

that the maximum award of punitive damages available under G. L.

c. 93A, § 9 (3), is three times the amount of the judgment

rendered in the underlying tort action.    The defendants argued,

by contrast, that the judge improperly included postjudgment

interest in the amount to be multiplied.    In June, 2014, the

judge issued an amended judgment that increased the amount of

the punitive damages to three times the amount of the underlying

judgment.   He also rejected the defendants' "unduly restrictive

view" of punitive damages under G. L. c. 93A, § 9 (3), and

retained the postjudgment interest in the amount to be

multiplied.6



     6
       The judge awarded the plaintiffs punitive damages in the
amounts of $9,758,573.40 to Odin and $613,707.39 each to Kerstin
and Katarina. Of that amount, approximately $4.2 million was
                                                                      8


    2.     Discussion.   The statutory framework governing the

plaintiffs' claims is well established.     See Rhodes v. AIG

Domestic Claims, Inc., 461 Mass. 486, 494-495 (2012) (describing

interplay between related G. L. c. 176D, § 3 [9] [f], and G. L.

c. 93A, § 9 [3], claims).     An insurance company commits an

unfair claim settlement practice if it "[f]ail[s] to effectuate

prompt, fair and equitable settlements of claims in which

liability has become reasonably clear."     G. L. c. 176D,

§ 3 (9) (f).     "[A]ny person whose rights are affected by another

person violating the provisions of [G. L. c. 176D, § 3 (9) (f),]

is entitled to bring an action to recover for the violation

under G. L. c. 93A, § 9" (quotations omitted).     See Rhodes,

supra at 494.    If the fact finder concludes that an insurer has

failed to effectuate a prompt, fair, and equitable settlement,

causing injury, the plaintiff is entitled to the greater of

actual damages or statutory damages of twenty-five dollars.

G. L. c. 93A, § 9 (3).     Where an insurer's action was "willful

or knowing" (or, as here, both), the judge must award multiple

damages.   Id.   General Laws c. 93A, § 9 (3), requires that the

judge "shall" award punitive damages of "up to three but not

less than two times" the actual damages in the underlying

action.    The statute further provides that "[f]or the purposes



attributable to the trebling of approximately $1.4 million in
postjudgment interest.
                                                                     9


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." (emphasis supplied).     Id.

    The question before us is whether "the amount of the

judgment" that serves as the measure of "actual damages" to be

doubled or trebled under G. L. c. 93A, § 9 (3), includes the

amount of any postjudgment interest that accrued on that

judgment before it was paid.     In examining this issue we

consider (a) the plain language of G. L. c. 93A, § 9 (3); (b)

the nature of pre- and postjudgment interest; and (c) the

purpose of the punitive damages available under the statute.

    a.   Statutory language.     As with every statutory analysis,

our interpretation of G. L. c. 93A, § 9 (3), begins with the

plain language of the statute.    See International Fid. Ins. Co.

v. Wilson, 387 Mass. 841, 853 (1983).       "All the words of a

statute are to be given their ordinary and usual meaning, and

each clause or phrase is to be construed with reference to every

other clause or phrase without giving undue emphasis to any one

group of words, so that, if reasonably possible, all parts shall

be construed as consistent with each other so as to form a

harmonious enactment effectual to accomplish its manifest

purpose."   Worcester v. College Hill Props., LLC, 465 Mass. 134,

139 (2013), quoting Selectmen of Topsfield v. State Racing
                                                                 10


Comm'n, 324 Mass. 309, 312–313 (1949).   Although the "[w]ords

and phrases" of the statutory text "shall be construed according

to the common and approved usage of the language," "technical

words and phrases and such others as may have acquired a

peculiar and appropriate meaning in law shall be construed and

understood according to such meaning."   G. L. c. 4, § 6, Third.

Where "the language is clear and unambiguous, it is conclusive

as to the intent of the Legislature."    Deutsche Bank Nat'l Trust

Co. v. Fitchburg Capital, LLC, 471 Mass. 248, 253 (2015).

    In common understanding, a "judgment" is "a legal decision;

an order or sentence given by a judge or law court"; or "a debt,

resulting from a court order."   Webster's New Universal

Unabridged Dictionary 990 (2d ed. 1983).   This is consistent

with the more technical, legal definition of a "judgment" as a

"court's final determination of the rights and obligations of

the parties in a case."   Black's Law Dictionary 970 (10th ed.

2014).   See Shawmut Community Bank, N.A. v. Zagami, 419 Mass.

220, 225 (1994), quoting Gibbs Ford, Inc. v. United Truck

Leasing Co., 399 Mass. 8, 11 (1987) ("the term 'judgment' refers

to the final adjudicating act of the judge 'disposing of all

claims against all the parties to the action'").

    The statutory language in question here, "the amount of the

judgment," does not provide any express guidance as to whether

the "judgment" to be multiplied for wilful or knowing misconduct
                                                                   11


encompasses postjudgment interest.    Nor is this question

clarified elsewhere in the statute.    Where, as here, the meaning

of the statutory language is "sufficiently ambiguous to support

multiple, rational interpretations, . . . we look to the cause

of its enactment, the mischief or imperfection to be remedied

and the main object to be accomplished, to the end that the

purpose of its framers may be effectuated" (citations and

quotations omitted).    Kain v. Department of Envtl. Protection,

474 Mass. 278, 286 (2016).

     b.   Nature of pre- and postjudgment interest.   As the

Legislature has enacted two statutes mandating the payment of

interest on judgments, see G. L. c. 231, § 6B (prejudgment

interest); G. L. c. 235, § 8 (postjudgment interest), we turn to

them for guidance.7    See Connors v. Annino, 460 Mass. 790, 796

(2011), quoting Canton v. Commissioner of the Mass. Highway

Dep't, 455 Mass. 783, 791–792 (2010) (we attempt to "construe

statutes that relate to the same subject matter as a harmonious

whole and avoid absurd results").    See, e.g., Canton, supra

(construing differing provisions of Massachusetts Environmental


     7
       In common usage, "interest" is defined as "money paid for
the use of money." Webster's New Universal Unabridged
Dictionary 956 (2d ed. 1983). In legal understanding,
"interest" is "compensation . . . allowed by law for the use or
detention of money, or for the loss of money by one who is
entitled to its use." Black's Law Dictionary 935 (l0th ed.
2014). Interest is thus, by its nature, an amount charged and
owed that is distinct from the amount of the principal.
                                                                  12


Protection Act).   "If the language of the statute is 'fairly

susceptible [of] a construction that would lead to a logical and

sensible result' . . . we will construe [it] so 'as to make [it

an] . . . effectual piece[] of legislation in harmony with

common sense and sound reason.'"   Commonwealth v. Williams, 427

Mass. 59, 62, (1998), quoting Commonwealth v. A Juvenile, 16

Mass. App. Ct. 251, 254 (1983).

    With respect to prejudgment interest, G. L. c. 231, § 6B,

provides that, in a tort case involving personal injury or

damage to property, "there shall be added by the clerk of court

to the amount of damages interest thereon . . . from the date of

commencement of the action." (emphasis supplied).   Because

prejudgment interest is "added . . . to the amount of damages,"

it becomes an integral part of the amount of the judgment

itself.   See, e.g., R.W. Granger & Sons v. J & S Insulation,

Inc., 435 Mass. 66, 84 (2001) (prejudgment interest forms part

of underlying judgment and therefore is multiplied in computing

award under G. L. c. 93A); City Coal Co. of Springfield, Inc. v.

Noonan, 424 Mass. 693, 695 (1997), S.C., 434 Mass. 709 (2001)

(prejudgment interest forms part of judgment for purpose of

calculating postjudgment interest).   Prejudgment interest is

included in the judgment because it compensates the prevailing

party for the time value of money accrued before resolution of

the legal dispute, and thus represents an "integral component of
                                                                   13


compensatory damages."   Smith v. Massachusetts Bay Transp.

Auth., 462 Mass. 370, 376 (2012).

    By contrast, postjudgment interest "is not an element of

compensatory damages."   Id.   Postjudgment interest serves to

provide compensation to the prevailing party for delay in

payment after a nonprevailing party's underlying obligation has

been established.    See Chapman v. University of Mass. Med. Ctr.,

423 Mass. 584, 587 (1996) (postjudgment interest is not part of

underlying claim).   Thus, the postjudgment interest statute,

G. L. c. 235, § 8, provides that "[e]very judgment for the

payment of money shall bear interest from the day of its

entry . . ." (emphasis supplied).    See Kaiser Aluminum & Chem.

Corp. v. Bonjorno, 494 U.S. 827, 835-836 (1990) ("purpose of

postjudgment interest is to compensate the successful plaintiff

for being deprived of compensation for the loss from the time

between the ascertainment of the damage and the payment by the

defendant" [citation omitted]).     Put another way, in every

context other than G. L. c. 93A, while prejudgment interest is

added to a judgment and therefore forms an integral part of it,

postjudgment interest is borne by the judgment and is separate

and distinct from it.

    The plaintiffs urge that we read the requirement of G. L.

c. 235, § 8, as indicating that, in the context of G. L. c. 93A,

postjudgment interest is part of the judgment itself, subject to
                                                                    14


doubling or trebling for wilful or knowing misconduct.     In our

view, however, the language of the statute implies the opposite

conclusion.   That a judgment "bears" interest suggests that

interest is not an inherent part of the judgment itself but,

rather, something accrued in addition.   See Black's Law

Dictionary 183 (10th ed. 2014) (defining to "bear" as to

"support or carry" or to "produce as yield").   That a judgment

supports, carries, or produces interest indicates that the

interest is separate and distinct from the judgment.     The

statutory language is consistent with this common understanding

of its words:   the Legislature chose not to include in the

statute mandating postjudgment interest that such interest is to

be "added . . . to the amount of damages," in direct contrast to

the language it chose with respect to prejudgment interest.8    See

G. L. c. 231, § 6B.

     The view that postjudgment interest is separate and

distinct from the underlying amount of the damages is supported

by statutory provisions and rules of civil procedure in other

contexts, such as those governing the form of executions.


     8
       Although the issues confronting us were different, and the
question of postjudgment interest was not the focus of the
decisions, on two prior occasions we have treated postjudgment
interest as properly excluded from the "amount of the judgment"
for purposes of a multiplied damage calculation under G. L.
c. 93A, § 9 (3). See Rhodes v. AIG Domestic Claims, Inc., 461
Mass. 486, 498-500 (2012); R.W. Granger & Sons v. J & S
Insulation, Inc., 435 Mass. 66, 84 (2001).
                                                                    15


General Laws c. 235, § 8, provides that an execution of a money

judgment shall "specify the day upon which judgment is entered,

and shall require the collection or satisfaction thereof with

interest from the date of its entry."     Likewise, Mass. R. Civ.

P. 54 (f), 382 Mass. 822 (1980), provides that "[e]very judgment

for the payment of money shall bear interest up to the date of

payment of said judgment" (emphasis supplied).9    If postjudgment

interest were, like prejudgment interest, a part of the

underlying amount of damages, there would be no need separately

to specify both sums in an execution.

     c.   Purpose of punitive damages under G. L. c. 93A § 9 (3).

We recognize, as we have previously, that multiple damages

awarded under G. L. c. 93A, § 9 (3), are punitive in nature.

See Rhodes, 461 Mass. at 498 ("There is general consensus among

courts and commentators that the 1989 amendment [establishing

the award of multiple damages] was intended to increase the

potential penalties for insurers who engaged in unfair claim

settlement practices"); id. at 503.     The statute is thus a

"penal statute" akin to other statutes "designed to enforce the

law by punishing offenders, rather than simply by enforcing

     9
       Rule 54 (f) of the Massachusetts Rules of Civil Procedure,
382 Mass. 822 (1980), provides that where an "execution or order
directing the payment of [a] judgment" is issued, the amount of
"interest from the date of entry of . . . judgment to the date
of [the] execution or order shall . . . be computed by the
clerk, and the amount of such interest shall be stated on the
execution or order."
                                                                  16


restitution to those damaged."   See Collatos v. Boston

Retirement Bd., 396 Mass. 684, 686 (1986) (construing pension

forfeiture statute).

     The trial judge included postjudgment interest in the

amount to be trebled based on his determination that the

"maximum available sanction" was warranted.   Thus, we consider

the plaintiffs' contention that the "amount of the judgment" to

be multiplied properly should include postjudgment interest, in

order to discourage defendants from "holding the verdict money

'hostage' during the appellate process" and to effectuate the

legislative purpose of providing an additional, substantial

sanction to discourage others from similar misconduct.

     For several reasons, we conclude that the plaintiffs'

contention that the Legislature must have intended to include

postjudgment interest in "the amount of the judgment to be

multiplied" in order to protect injured parties against bad

faith appeals by insurance companies is unwarranted.10    The


     10
       Relying on Boyer v. Bowles, 316 Mass. 90, 95 (1944), as
did the Appeals Court, the plaintiffs argue that postjudgment
interest, while not computed when a judgment is entered, is part
of the judgment because it is definitively derived from a known
mathematical calculation based on the amount of the initial
award. In 1944, this court observed that "the meaning of the
final decree is plain. Though not computed, the amount of
interest to be paid was certain, on the principle that whatever
can be made certain by mere arithmetic is already certain.
Substantially the decree is as though the interest had been
computed and stated, and added to the principal." Id. That
case, however, predated the provision for multiple damages in
                                                                  17


Legislature established the statutory twelve per cent

postjudgment interest rate specifically to protect prevailing

parties during the appellate process.     In addition, several

other statutory and procedural means exist to discourage

frivolous or bad-faith appeals.    See, e.g., G. L. c. 211A, § 15

(costs and interest for delay caused by frivolous appeal); G. L.

c. 231, § 6F (awards of costs, expenses, and attorney's fees as

sanction for advancing claim or defense found to be

"insubstantial, frivolous and not advanced in good faith");

Mass. R. A. P. 25, as appearing in 376 Mass. 949 (1979) (damages

and interest where delay result of frivolous appeal).     These

also include G. L. c. 93A, § 9 (3), itself, claims under which

may be triggered by postjudgment conduct.     See Rhodes, 461 Mass.

at 495 (considering postjudgment violations of c. 93A).

Ultimately, we find it persuasive that the Legislature did not

specify explicitly in the postjudgment interest statute that

such interest is to be "added     . . . to the amount of damages,"

as it did with regard to prejudgment interest in G. L. c. 231,

§ 6B.

    Moreover, under the rule of lenity, given the absence of an

express textual provision or an indication of legislative



G. L. c. 93A § 9 (3), by more than forty years, and discussed
both pre- and postjudgment interest. The statement that the
plaintiffs reference was made with regard to prejudgment
interest. See Boyer, supra.
                                                                   18


intent, G. L. c. 93A, § 9 (3), cannot be read implicitly to

allow (or to require, as the multiplication of an award of

damages for wilful misconduct is mandatory) doubling or trebling

an award of postjudgment interest.   See Libby v. New York, N.H.

& H.R.R., 273 Mass. 522, 525–526 (1930).

    In sum, the plaintiffs have advanced no reason other than

further punishing a defendant whose violation was wilful or

knowing to suggest that, in enacting G. L. c. 93A, the

Legislature intended a departure from the treatment of

postjudgment interest in other contexts.   We therefore decline

to read into the statute an additional measure of punishment

that the Legislature did not set forth explicitly.   Commissioner

of Correction v. Superior Court Dep't of the Trial Court for the

County of Worcester, 446 Mass. 123, 126 (2006) ("We do not read

into the statute a provision which the Legislature did not see

fit to put there, nor add words that the Legislature had an

option to, but chose not to include").

    3.   Conclusion.   The judgment is vacated, and the matter is

remanded to the Superior Court for entry of a revised judgment,

consistent with this opinion.

                                     So ordered.
