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17-P-425                                                 Appeals Court

    ANN SKIFFINGTON        vs.    LIBERTY MUTUAL INSURANCE COMPANY.


                                 No. 17-P-425.

           Hampden.       November 9, 2017. - March 8, 2018.

               Present:     Meade, Shin, & Ditkoff, JJ.


Motor Vehicle, Insurance. Insurance, Motor vehicle insurance,
     Construction of policy, Coverage, Settlement of claim,
     Amount of recovery for loss.



     Civil action commenced in the Superior Court Department on
January 25, 2016.

    A motion to dismiss was heard by Constance M. Sweeney, J.


    Matthew T. LaMothe for the plaintiff.
    Daniel P. Tighe for the defendant.


    SHIN, J.     Following a motor vehicle accident, the

plaintiff, a third-party claimant, received reimbursement from

Liberty Mutual Insurance Company (Liberty Mutual) for the loss

of her vehicle.       She then sought additional payment for

(1) costs arising from loss of use of her vehicle, even though

she was unable to produce any documentation to Liberty Mutual
                                                                    2


that she had paid for substitute transportation, and (2) her

title and registration fees and the residual value of her

inspection sticker.   When Liberty Mutual denied liability for

these claims, the plaintiff brought this putative class action,

seeking declaratory relief under G. L. c. 231A and damages for

unfair claim settlement practices under G. L. c. 93A, § 9, and

G. L. c. 176D, § 3(9).   On Liberty Mutual's motion, a Superior

Court judge dismissed the complaint in its entirety under

Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and the plaintiff

appeals.   As we conclude that the plaintiff has failed to allege

compensable damages, we affirm, modifying the judgment to

declare the rights of the parties.

     Background.   We accept the allegations of the amended

complaint as true for purposes of this appeal.    See Goodwin v.

Lee Pub. Schs., 475 Mass. 280, 284 (2016).    In October of 2015,

the plaintiff's 2005 Nissan Altima was struck by a driver whose

vehicle was insured by Liberty Mutual under a standard

Massachusetts automobile policy.1    The plaintiff's vehicle was

declared to be a total loss.   After determining that its insured




     1 Copies of the policy and Liberty Mutual's responses to the
plaintiff's G. L. c. 93A demand letter were attached to Liberty
Mutual's motion to dismiss. The judge could consider these
documents without converting the motion into one for summary
judgment. See Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222,
224 (2011), S.C., 466 Mass. 156 (2013).
                                                                    3


was responsible for the accident, Liberty Mutual reimbursed the

plaintiff for the loss of her vehicle.

    The plaintiff then sent Liberty Mutual a demand letter

under G. L. c. 93A, claiming that she was also entitled to

payment for loss of use, title and registration fees, and the

residual value of her inspection sticker.   Liberty Mutual sent a

letter in response detailing its rationale for denying the

claims.   Liberty Mutual also requested, on at least two

occasions, that the plaintiff provide "documentary or other

proof indicating that she actually incurred" costs relating to

loss of use -- such as receipts showing she rented a replacement

vehicle or took public transportation.   It is uncontested that

the plaintiff never provided any such substantiation.

    Discussion.   We review de novo the judge's allowance of

Liberty Mutual's motion to dismiss under Mass.R.Civ.P. 12(b)(6).

See Goodwin, 475 Mass. at 284.   In conducting our review, we

"accept[] as true the facts alleged in the plaintiff['s]

complaint and exhibits attached thereto, and favorable

inferences that reasonably can be drawn from them."     Ibid.,

quoting from Burbank Apartments Tenant Assn. v. Kargman, 474

Mass. 107, 116 (2016).

    1.    Loss of use.   Despite failing to plead actual costs

related to loss of use of her vehicle, the plaintiff contends

that she is still entitled to some unspecified amount of damages
                                                                    4


because the standard policy provides coverage whether or not she

actually incurred costs for substitute transportation.    We

disagree.   To determine what damages are compensable under the

standard policy, we must interpret the policy's words "in light

of their plain meaning, giving full effect to the document as a

whole."   Given v. Commerce Ins. Co., 440 Mass. 207, 209 (2003)

(citation omitted).   We consider "what an objectively reasonable

insured, reading the relevant policy language, would expect to

be covered."   Ibid., quoting from Hazen Paper Co. v. United

States Fid. & Guar. Co., 407 Mass. 689, 700 (1990).

Furthermore, because the policy language is prescribed by the

Commissioner of Insurance, we do not construe any ambiguities in

it against the insurer.    Golchin v. Liberty Mut. Ins. Co., 460

Mass. 222, 225 (2011), S.C., 466 Mass. 156 (2013).

    With respect to third-party claimants, coverage is governed

by part 4 of the policy, which provides that the insurer "will

pay . . . the amounts that [the third party] is legally entitled

to collect for property damage through a court judgment or

settlement," including "the costs resulting from the loss of use

of the damaged property" (emphasis supplied).    We construe the

word "costs" according to its "usual and accepted meaning."

Mount Vernon Fire Ins. Co. v. Visionaid, Inc., 477 Mass. 343,

348 (2017), quoting from Federal Natl. Mort. Assn. v. Rego, 474

Mass. 329, 334 (2016).    In ordinary usage "cost" refers to "the
                                                                      5


amount or equivalent paid or charged for something," Merriam-

Webster's Collegiate Dictionary 282 (11th ed. 2007); it means,

in other words, an expense that is actually incurred.       "As the

plain meaning of the word . . . is clear, we do not deviate from

it."   Mount Vernon Fire Ins. Co., supra at 348.

       Attempting to sidestep this plain language, the plaintiff

asserts that the standard policy conflicts with G. L. c. 90,

§ 34O, as appearing in St. 1976, c. 266, § 7, which requires

"[e]very policy of property damage liability insurance [to]

provide that the insurer will pay on behalf of the insured all

sums the insured shall become legally obligated to pay as

damages because of injury to or destruction of property,

including loss of use thereof" (emphasis supplied).    The

plaintiff's assertion of a conflict is based on the fact that

the statute does not refer explicitly to "costs."    But that

omission does not create any conflict with the policy because

the statute also does not define what constitutes "loss of use

thereof."    It was therefore within the authority of the

Commissioner of Insurance to fill in that gap when "decid[ing]

what the terms of a standard policy will be."    Colby v.

Metropolitan Property & Cas. Ins. Co., 420 Mass. 799, 806

(1995).     See Given, 440 Mass. at 213-214.

       The tort decisions cited by the plaintiff do not aid her

cause.    None of those decisions directly addressed the question
                                                                     6


whether a plaintiff can recover loss of use damages absent proof

of any actual out-of-pocket expenses.    And as a more general

matter, the plaintiff does not explain why common-law tort

principles should trump the plain language of the standard

policy.    See id. at 210-211 ("[T]he issue before us is not

whether, in some other context, diminution in market value would

be an appropriate method by which to calculate monetary damages

for some form of injury to property," but whether "that is the

form or measure of 'damage' that the standard policy is intended

to cover").

    Even assuming, moreover, that tort law informs our

analysis, the plaintiff fares no better in light of our recent

decision in Ramirez v. Commerce Ins. Co., 91 Mass. App. Ct. 144

(2017).    At issue there was the provision in part 4 of the

standard policy requiring reimbursement of "applicable sales

tax."   We held that the plaintiff was not automatically entitled

to such reimbursement but, rather, had to "provide to the

insurer proof of the payment of sales tax on a replacement

automobile."   Id. at 148.   Citing tort cases, we reasoned that

the insurer "is only responsible for placing the plaintiff in

the same position as he was before suffering the loss."     Id. at

147-148.   Thus, the plaintiff had to "establish[] that [sales

tax] is an element of the damages he incurred or will incur"
                                                                        7


before he could recover "applicable sales tax" from the insurer.

Id. at 148.

       We similarly conclude that the plaintiff had to

substantiate to the insurer that she incurred actual damages --

i.e., actual costs for substitute transportation -- to recover

for loss of use under part 4 of the standard policy.      As the

plaintiff does not dispute that she did not incur actual costs,

she is not entitled to loss of use damages.

       2.    Title, registration, and inspection fees.   We decline

to consider the plaintiff's claim that Liberty Mutual is liable

for her title and registration fees and the residual value of

her inspection sticker.       The plaintiff does not point to any

provision in the standard policy that would entitle her to

reimbursement of those fees.       Instead, she relies exclusively on

tort law.      But again, the scope of Liberty Mutual's obligation

to pay is governed by the policy.      See Given, 440 Mass. at 210-

211.       The plaintiff does not contend that title, registration,

and inspection fees constitute "property damage" under part 4 of

the policy or that they are covered by some other provision of

the policy.      As she has thus failed to make an adequate argument

based on the language of the policy, we do not consider her

claim.2



       Our rejection of the plaintiff's arguments necessarily
       2

disposes of her claims that Liberty Mutual engaged in unfair
                                                                   8


    Conclusion.   Although there was no error in the judge's

allowance of Liberty Mutual's motion to dismiss the complaint,

the judge was required to make a declaration of the rights of

the parties.   See Boston v. Massachusetts Bay Transp. Authy.,

373 Mass. 819, 829 (1977).   The judgment below shall therefore

be modified to declare that Liberty Mutual is not obligated to

pay the plaintiff damages for loss of use, title or registration

fees, or the residual value of her inspection sticker.   As so

modified, the judgment is affirmed.

                                   So ordered.




claim settlement practices in violation of G. L. c. 93A and
G. L. c. 176D. See Ramirez, 91 Mass. App. Ct. at 145 n.2.
