*1 App. Ct. 114 Ins. Carter v. Mutual Co. Empire than in terms of "insane” is no being er” rather her consequence, of 7 requirement as basic had present already been fulfilled. performed
All of a for- entry that remains with the judgment judgment mal consistent order September dated 1976.8
Appeal dismissed Bertha Carter Mutual Insurance vs. Company and others. Worcester. November 1976. March Armstrong, C.J., Goodman, Brown, & JJ. Hale, Keville, Present: Insurance, insurance, Agent, liability Motor vehicle Cancellation. Storage Damages,
Agency,What constitutes. Unlawful Interference. fees, Towing charge. Truth-in-Lending Act. purported policy cancellation of a of automobile insurance was effect, agent improperly an diverted
without where insurance had premium initial under a financ- a sum from insured’s which, applied premium, ing arrangement if would have been default, later, months sufficient to forestall insured’s several nor note for the balance of [117-120]; an installment negotiated properly company finance to which the note was could a attorney power the insured’s effect cancellation exercise default, judge’s in uncontested in the view event agent insurance had acted as the finance com- that the collecting agent purpose initial pany’s for the [121- J., Hale, C.J., concurring joined, Armstrong, with whom 122]. part. dissenting part a view to judgment must first be scrutinized with The order for findings judge’s apparent discrepancies reconciling between and parties is recorded and the 1962 deed book which page is recorded. which the 1965 deed at Inc., Corp. Agency, Finance Insurance Street
Carter u. *2 against agent company Claims an insurance and a finance for dam- ages arising causing from the actions of each in an com- insurance pany wrongfully repudiate plaintiffs policy to the of insurance properly joined policy against were with the claim on her company; the insurance all three defendants were liable for the joined, dissenting benefits under the insurance prived the plaintiff. in [123] part. Armstrong, policy of which J., with whom they wrongfully Hale, C.J., de- finding damages towing storage automobile, A for the of an evidence, nor, stand;
which was not based on the could not on the record, assumption, could the on sustained an which the make, court did not that these ordinary services were such an judge nature that the could find their value on the basis his general knowledge experience. [124-125] agent Failure of an to payment,” insurance insert "date of first payment price,” charge "deferred and the date the "finance will begin spaces provided to accrue” in the therefor an insurance premium financing agreement signature by plaintiff its before 140C, constituted violations of Truth-in-Lending Act, G. L. c. entitling plaintiff statutory damages, notwithstanding con- temporaneous subsequent entry oral disclosure missing writing [125-129]; information in where the record did not reveal a timely for demand relief the could not recover treble dam- (3) 93A, ages c. J., under G. L. 9§ Armstrong, with [129-130]. whom Hale, C.J., joined, concurring part dissenting part. Civil action commenced in the Superior Court on January case was heard Meagher, J. by
The case was submitted on briefs. David B. & Cohen A. Kowal for Fi- Colony Sanford Corp. nance & another.
Franklin P. Anastas for Empire Mutual Insurance Co. A. Stephen McNerney for Bertha Carter.
Goodman, appeals J. These cross pur- arise out of the by chase of a motor vehicle liability insur- ance policy Empire issued Mutual by Insurance Company (Empire) year 1974; the policy coverage included damage plaintiff’s to the automobile. The paid part premium total in cash and financed the (G. balance through agreement finance L. 4) 255C, definition Main Street Insurance Ins. Carter Mutual Co. (Main), agreement, Empire’s agent. dat- Agency, Inc. 3,1974, signed a promissory ed included note January installments; monthly plaintiff payable Main assigned agreement Colony Corp. Finance plaintiff alleged In her (Colony). complaint agreement did not meet the disclosure premium finance sought L. G. L. c. 140C and G. c. 255C and requirements subjected penalty to have the three defendants 10(b). L. The plaintiff G. also prescribed by cancellation of her sent that a notice of claimed to permit Empire ineffective *3 entitled and that she was therefore policy cancel the arising her losses from an recover from the defendants on June in which she was involved automobile accident pur- notice of cancellation days five after the to become effective. ported findings judg- and an order judge
The
filed
of fact
52(a),
Mass.R.Civ.P. meet agreement did not premium finance find as of G. L. c. 255C and a requirements the disclosure L. c. and that L. c. 140C and G. 93A2 violated G. result also as to award the accordingly so be amended judgment (and fees penalty attorney’s the minimum plaintiff complaint question as to a violation of no raised The 93A. G. L. c.
Carter v. costs) prescribed 10(b), G. L. c. together 93A, 9(3), trebling pursuant to G. L. c. plaintiff damages already awarded the for her losses in The on sought accident. motion also interest all the damages. The motion was denied. Within pro- the time (1974), vided by Mass.R.A.P. Mass. 846 for appeal from the all judgment, parties filed of appeal.3 notices
The
Appeals
Defendants’
validity
1. the cancellation. We
cer-
summarize
question.
tain facts which are not in
for the
1974 motor
liability
vehicle
insurance policy which the
plaintiff
purchased
through Main was
On
$294.80.
$50,
December
paid Main
3,1974,
paid
she
January
Main an additional
On
$58.80.
latter date the
signed a note
provided
that she
pay
Although
$247.52.
had
$108.80,
paid Main a total of
face
the note indicated
appeals
appeals
We treat
judgment although
these
from the
appeals
"findings
defendants’
are
stated
be from the
and conclu
Davis,
[1962];
sions
law”
Foman v.
371 U.S.
and 9
*4
par.
1975])
plaintiffs
Moore’s Federal Practice
203.18
ed.
and the
[2d
appeal
findings
is from the denial of her motion for additional
of fact
judgment
and for an amendment of the
State Farm Mut. Auto. Ins.
Palmer,
[1956],reversing
876,
v.Co.
Carter that Main had received a cash down of on payment $73.80 the the amount of premium and note $247.52 the unpaid the a represented premium, a balance on $221 $1 insurance, charge.4 and a finance By credit life $25.52 plaintiff the terms of the note the was to the pay $247.52 monthly in of The note eight payments contained $30.94. allowing "perform power attorney a of its holder to all appropriate to effect cancellation” of necessary acts plaintiffs insurance policy. assigned Colony, Colony the note to and transmit- Main to which then sent the to Em- ted $294.80 $294.80 payment premium. in Main transmitted pire plaintiff paid of had which the Colony $73.80 $108.80 3l January applied Main on December and and remaining payment plaintiffs from the $108.80 $35 membership automobile club purchase an name. on Feb- payments Colony mailed $30 25. April Colony received these ruary March April respective- March payments on March no further Colony payments June 3 had received ly. By arrears, and, plaintiff being plaintiff, from her, mail, it was by registered sent notice that Colony cancelling her effective June because finance contract.” This "default Colony unopened, was returned notice it. On re- to have received June claims never dated plaintiff money May a order ceived from a letter day Colony sent same On adding, receipt of her stating that was "However, insurance, your in order reinstate 24, we must receive effective June will be cancelled charges and reinstate- which includes late $2.00 *5 fee, personal checks will be June No ment before on June 13. plaintiff received this letter accepted.” plaintiff note the all entered on the when These amounts were signed it.
Carter v. telephone As a result of a employee conversation an on sent Colony, plaintiff, of June Colony $30.94 on Colony received June 28 and accepted. passing On June through Georgia trip while on a to Alabama, plaintiff was involved in an automobile July plaintiff Colony accident. On sent further $40; but accepted. this was not Em- on June received pire, notification from plaintiffs was to policy be cancelled effective June 24. Empire processed the It early July. cancellation has plaintiffs since refused the claim under the her policy for loss in the accident on ground policy had been cancelled when happened. judge found that Main applied had improperly $35 which the paid had Main on 31,1973, 3,1974, January
December and purchase to the an automobile club membership judge name. The found that had not agreed purchase a membership such and "was unaware such motor club thought enrollment she paid had Main Street Insurance Agency, $108.[80] Inc. was to be put toward her 1974 car insurance premi- um.” He further found that if Main had done so instead diverting to a motor club membership, plain- $35 tiffs payments, including those which Colony received June would have carried the into July. He concluded that responsible Main "is any loss incurred by and that Colony held out Main... agent their to collect monies due and them apply properly coverage towards insurance them, premium payments forward the and that they legally obligated are any losses incurred the plain- tiff which are covered risks under the policy issued Empire.” There was no error.
There was support sufficient evidence to the judge’s 52[a], Mass.RCiv.P. 816 [1974]) had, that Main without authority, diverted $108.80, premium, intended as of a purchase motor *6 App. Ct. 114
Carter membership plaintiffs plaintiff in name: —The club Main, had, through insured her automobile for year with the Hanover simultane- Company; Insurance through membership in an purchased she had Main ously Late in 1973 Main sent automobile club for 1973. "Final Notice Before Cancellation” com- a application for the plete and return to Main an enclosed her motor vehicle insurance for the renewal of completing the renewal year 1974. instructions stated, requested, your insurance form "Unless otherwise plain- in be renewed on the same basis as 1973.” will 31,1973, on and Janu- tiff visited Main’s office December 3,1974, She arrange in order to insurance. intend- ary paid full which she to Main on those ed premium. of her No one applied dates be anything concerning pur- Main’s said to her at office in membership her name and chase an automobile club application she made no therefor.5 language quoted not aided The defendants are form, in the instructions insurance renewal above out, correctly pointed As the they rely. judge in the refers to the renewal of language only instructions insurance, an club mem- not to the automobile renewal And, event, did bership. apparently any contemplated by return the enclosed forms as merely office, personally to Main’s the instructions but went renewing her bought insurance instead where she new the judge as in As insurance on same basis out, plaintiffs changed on her car points "The insurance of 1973 was 1974 from that she substantially insurance and there company different insured under Cover- change also a in her deductible amount was (It C, Motor Vehicle.” Damage to Insured age Division $50.) from was reduced $100 5Indeed, representation by the appendix contains a the record a member of time the was counsel that at "Triple A.” Carter u. Mutual Ins. Co. payment by
Since the diversion
was
unauthorized,
duty
apply
Main’s
sum to the
*7
In view the
premium.
judge’s
finding
of
uncontested
agent
Colony’s
Bousquet
Main was
v. Common
wealth,
[1978]),
374 Mass.
is
duty
likewise
imposed on
See
v.
Colony.
England Acceptance
New
Corp.
Co.,
Mut.
App.
American
Ins.
Mass.
Ct.
Manufacturers
(1977).
(1976),
180-181
S.C.
(1875); Bank, Simmons v. Cambridge Sav. (1963);
331-332
Co.,
Osborn v. Metropolitan
Ins.
Life
See
Chickering
Globe Mut. Life
Ins.
Carter v. Empire policy.6 preclude and thus forfeiture In the case the diverted from the present $35 premium payment prevent was sufficient default on judge’s the note. The defendants do attack trial after Colony’s received June letter, stated that her would be cancelled paid plain- unless she before June Colony $42.86 telephoned tiff and received an of time extension within do the payment; which make nor defendants implicit finding attack the at judge’s plain- least tiff’s June 28 received was before expiration unapplied premium of that extension. more than sufficient to cover the $11.92 *8 ($30.94) 28 plaintiff’s which the June was short of the Colony’s requested paid.7 which letter be We $42.86 the that the judge correctly therefore conclude that ruled in full force and policy improperly was cancelled and was date of plaintiff’s effect the the accident.8 6 analysis and not the defend Our makes immaterial we do decide application divert to the of the ants’ contentions with reference exact sum, argue they applied not either the down could be ed which the first installment. 7 $11.92, Colony charges accounted for various Of this is plaintiff making proceed made to as a of her in result lateness concerning ing plaintiff question payments. four As raises these no charges, they upon late and as have no effect our decision as judge’s ruling plaintiff’s correctness of the cancellation validity. policy improper, we not consider their do 8 by Colony filed in the We do not consider the assertion brief matter) argument separate on this (Empire’s no Main brief makes give plaintiff proper notice of the accident did not written thereby liability on the Empire Empire from is excused and that argument- merely It policy. not rise the level This assertion does part of the provision policy reference to a a and makes a cites fur transcript appendix. defendants included in the record reaching helpful a might in analysis this nish no court which (Cf. e.g., v. Travel complex Milton Ice Co. rather area. decision this Co., [1947]). See Mass.RA.P. Indemnity 320 721-722 Mass. ers (1975) 16(a)(4) 24,1975,367 February Mass. as amended effective § ("The upon questions not ar pass or issues appellate court need not Co., brief”). England 359 Mass. New Power gued in Gelinas v. (1971). 126-127 6 Mass. Empire
Carter v. liability damages. The contention of Main cannot be held liable if the Colony they on the conten policy only can recover from —the connection —is merit. The tion make this without they damages arising against Colony claim Main and causing Empire repudi from wrongfully their action See Gram plaintiff. ate its insurance contract with the Zolotas, Pino v. menos Trans- (1970); v. 356 Mass. Marine, Inc., (1970). Atlantic Mass. For such interference claim against has tort Main which Colony properly joined she with her claim on 20(a), policy against Empire. Mass.R.Civ.P. Mass. (1974). Provincetown, M.F. Roach Co. v. Homes, (1969). See Gentile Bros. v. Rowena 732-733 Inc., (1967). All 591-592 three are wrongdoers repudiated because it its contract — Colony breach; and Main and because induced the they they are all therefore liable for the benefits under insurance they wrongfully deprived plaintiff. H.D. Watts Co. American Bond & Mortgage v. National Merchandis 613-614 Leyden,
ing Corp. 430-431 n.6 & Homes, Inc., See Gentile Bros. v. Rowena M.F. supra; Provincetown, Roach supra. Co. It is no defense to the against claim also has *9 Empire. Phillips Benjamin & Co. v. Rat against a claim 1953). ner, (2d Wilson & Co. v. 372, 206 F.2d 376 Cir. (N.D. United 809, Iowa, Packinghouse, Supp. 181 F. 819 1960). (1950). Rice, Louis 169, 181 Schlesinger Co. v. 4 N.J. 1971). Prosser, 129, Annot., Torts at 948 ed. 26 § 1227, 1257, nothing A.L.R.2d 19 There is to the Meier, 398, contrary v. 302 Mass. 404-405 Comerford Guiliano, and Backman v. (1939), 231, 331 Mass. (1954), cited Main and In Colony. those cases the con breached; question tract was never here has the insurance breached contract. (a)
3. Amount damages, The defendants’ attack on $1,278.32 damage to her judge’s award automobile Mass. Carter v. parties stipulated begin
overlooks fact that the at the ning damages of trial that this sum was the amount of stipulation the automobile. That was made with ref erence to an estimate of the cost of repairs which the plaintiff had received seems to us the point. beside We thus need not deal with the argument defendants’ proper plaintiffs measure of the recovery is the dimi Further, nution in market value. the defendants’ brief is question silent on the whether is the measure of 1974, recovery under the St. amend 90, ing [1], G. L. c. 34 I inas effect on the date of the accident) its other applications. And they —whatever overlook that the estimate of the repairs cost of is evi dence on the issue of the diminution in market value. Bros., Housing Authy. Marinucci v. 354 Mass. Medford (1968), citing O’Leary, Childs 703-704 v. (1899), and Colangeli v. Construction Serv. 114-116 353 Mass. (b) agree We with the defendants that the award in the ”$1,000.00 judgment expenses incurred since the date of the accident” cannot stand. The judge found that plaintiffs "the car could not be driven and was towed City place Wide Wrecker Service to their of business accruing storage where has been fees at the daily rate However, it undisputed that no evidence was $2.50.” storage towing charge.9 introduced as fees or the proposition Nor can the this case on the rely could, the trial judge solely gener- the basis of his knowledge experience, al make a as to what (in Atlanta, charge storage a reasonable daily Scullane Georgia) of Compare car would be. (1897), Kellogg, McGarrahan New v. 169 Mass. v. York, R.R., New Haven & Hartford DeVio, (1898), (1945), Thibault 606-607 Richmond, (1975), and Green *10 9 charges argument No is made that such fees and are not covered by policy. 125 Mass. Empire Mutual Ins. Co.
Carter u.
Bunar,
and Hurwitz
(1952),
Driscoll
Club, Inc.,
Country
Parkway
(and
point)
not
we do
decide the
may
However
do;
judge purported
the trial
rather he
that is not what
charge to
daily
found that
the actual
for the
being no
storage
day.
of her car was
a
There
such
$2.50
charge,
finding
clearly
of the
this
er-
daily
evidence
finding
a
for the ultimate
roneous and could
be basis
$1,000. Further,
portion
there is no indication
what
$1,000
towing. Again,
attributable
even
a
assuming
towing
of a car is
service of such an
that,
description
nature
with a sufficient
ordinary
involved,
could,
case,
a trial
in the usual
towing
judge
solely
make a
as to its value
on the basis of his
general knowledge
experience,
nothing
we have
appendix
the record
besides the bare fact that
there was
towing involved.10 Pearl v. Wm. Filene’s
Sons
Appeal
The Plaintiffs
Laws,
c.
General
140C and
255C. argues
judge
the trial
erred when he failed to find
premium financing agreement
be in
violation of
L.
requirements
the disclosure
of G.
c. 140C and c. 255C
subject
and failed to
all three defendants
to the $100
(together
minimum
therefor
costs and attor
penalty
fees)
140C, 10(b),
provided
G. L. c.
ney’s
by
as amended
agree.
St.
9.*
We
accident,
day
It seems curious that at
from the date of the
29,1974,
15,1975,
hearing, April
June
to the date of the close of the
charges
$725,
storage
the total
do not exceed
which leaves a rather
towing charge.
any
unusual sum of
ny by
as the
Nor was there
testimo
any
damage.
or otherwise
other
Pearl v. Wm.
Co.,
Carter u. Mutual Ins. Co. 255C, regulating premium c. insurance General Laws 1964, 727, 1; St. c. financing, by years was inserted five § 140C, L. Truth-in-Lending later G. c. Massachusetts 1969, 517, Act, c. 1. by was inserted St. Section of § 517, G. L. c. 255C a St. c. added to new § transaction, "A provides: although subject chap- this ter, subject provisions shall also be of... L. c. [G. in provisions the case of conflict between the 140C] L. chapter chapter, provi- of this c. [G. 255C] chapter sions of that shall control.” We therefore base the following primarily provisions discussion on the of G. L. c. 140C. parties stipulated
At
the trial the
beginning
of
signed
financing
premium
agree
when the
3, 1974,
January
including
ment on
certain information
first
the "deferred
payment,”
the "date [of]
the "finance
price,”
charge
and the date on which
will
in
begin
spaces pro
to accrue” had not been written
information
form for
vided for that
on the
financing agreement. The failure to write in the date of
140C,
a
L.
the first
constituted
violation
G.
c.
7(b)(3),
requiring
inserted
St.
c.
§
§
periods
Compare
or
disclosed.
payments”
"due dates
be
255C,
L.
paragraph
item 3 of the third
of G.
c.
§
payment price
in the deferred
constituted
failure
write
7(c)(8).
140C,
L. c.
Walker v. College
a violation of G.
(W.D.
1974),
Inc.,
Supp.
399 F.
779-781
Va.
Toyota,
1975).
aff'd,
Compare
Carter v. second L. paragraph of G. 13. Because the premium financing agreement signed on January began and interest to accrue on January the failure to write in the began date interest to accrue 140C, 7(b)(1), constituted a violation of L.G. inserted *12 517, St. by requiring that the due date on § charge begins which the finance to accrue be disclosed "if different from the date of the transactions.” Ljepava v. Inc., Properties, M.L.S.C. 511 F.2d 943 n.8 Cir. 1975). Compare item 1 of the third paragraph of G. L. 255C, §
There no is merit in the defendants’ contention that oral disclosure to the by Main of the missing (of which, information argue, defendants thére was evidence) sufficient constituted compliance with G. L. c. 140C. That contention flies in the face of G. L. c. 5(a)12 7(a), both inserted St. by §§ c. 517 l.13See 5(a), inserted, provides Section as pertinent part: so in "The disclo required given sures chapter to be this clearly, shall be made conspicuously, meaningful sequence, in ... at the time in terminology prescribed applicable sections. Where the 'fi terms charge’ nance they quired by percentage used, and 'annual required rate’ are to be printed shall be conspicuously more terminology than other re chapter. Except respect this requirements to the nine, section all numerical percentages amounts and shall be stated figures printed and shall be equivalent in not less than the of 10 point type, seventy-five computer one type, thousands inch or elite size typewritten numerals, legibly or shall be handwritten.” 7(a), inserted, provides Section pertinent part: as so "Any credi extending tor when open shall, credit other than end credit in accord ance with section applicable, five and to the extent make the disclo required by ..., sures this section such disclosures shall be made before the transaction is consummated. At the time disclosures are made, the creditor shall duplicate furnish the customer with a instrument or a required statement disclosures are made and on which the creditor is identified. All disclosures shall be made (1) together on either evidencing note or other instrument the to the obligation page on the same adjacent side of the and above or place (2) signature; for the except customer’s provided as otherwise chapters B, in C and two fifty-five two hundred fifty-five two hundred and D, fifty-five separate hundred and one of a side statement which identifies the transaction.”
Carter Sons, Inc., & Kristiansen Mullins 59 F.R.D. (E.D.N.Y. (D.C. v. Household 1973); Corp. Evans Finance 1973), Guide, par. C.C.H. Credit Iowa Consumer 5(a) 1973). (Transfer inspection Binder The mere of §§ 7(a), supra, out in note 12 and note demon set approaches strates the defendants’ contention frivolous. Were we to decide that the oral disclosure of information was sufficient to avoid un required liability 140C, 10(6), der G. L. c. it would emasculate the Act. Cf. Ratner v. Chemical Bank N. Y. Trust Supp. 329 F. (S.D.N.Y. 1971). point The fact that at some after 3,1974, January missing information was written on irrelevant, premium financing agreement even as suming was somehow informed this (with 140C, 7 exceptions fact. General Laws c. certain case), present not relevant mandates clearly required by *13 the disclosures that section "be made before (see 13, supra) the transaction is consummated” note may opportunity order the consumer have an Here, shop for the best credit terms available. comparison the transaction was consummated on January plaintiff signed premium financing agree when the 1(66). (1970). 140C, Wach G. L. c. 15 U.S.C. 1601 ment. § § (6th West, 1062, Cir.), tel v. 176 F.2d 1064-1066 cert. de Hardin Pettit Motors nied, 414 U.S. Cliff 1976). (E.D. Inc., Lynch Cf. Supp. 407 F. Tenn. Co., Finance 507-508 It Signal is 5(e), 140C, St. c. true that G. L. c. inserted § creditor, in instances where an item of allows § required to be disclosed is unknown at the information made, estimated time the disclosures must be to "use an provide identified as such” and clearly amount ... later, but before the due date accurate information Here no "estimated amount” was writ first installment. place financing agreement in on the premium ten information not disclosed.14 made that the failure to disclose all the infor No claim has been 140C, 7, required by L. c. from a fide error mation G. "resulted bona § App. Mutual Ins. Co.
Carter v. 140C, G. L. c. the defendants under liability Associates 10(b), v. Finance "mandatory” (Shepard is § 182,195-196 [1974]; See Grant v. Auburn, Inc., 1976]); Motors, 510-511 Cir. 539 F.2d Imperial [5th 740,746 Co., 479 F.2d Furniture Myers-Dickson Thomas v. is entitled to the award 1973]); Cir. [5th (together with requests single penalty of a which she fees) from the defend- attorney’s her costs and reasonable jointly severally.15 ants true Laws c. 93A. While is that violations General L. 93A L. 140C also constitute violations of G. c.
of G. c. (see 140C, 12), L. cannot succeed her G. c. § 93A, damages pursuant to G. L. c. effort to recover treble 9(3). no evidence that appendix The record reveals § the commencement of thirty days at least before format, computation, layout type in a mathematical or order of clauses contained in” the or in the size of financing agreement. 10(6)(note 140C, 11, supra). See G. L. c. § 140C, 10(6), argued footing The case has been on the that G. L. c. § applicable presumably all to Main one three who defendants — credit,” "regularly arranges ... for the extension of consumer G. L. 140C, 1(Z), 1969, 517, 1, Empire, inserted St. judge principal England Acceptance Corp. found was Main’s New 177-178, v. American S.C. Mut. Ins. Ct. at Manufacturers Mass, 597), basis, at on the same and to as one who credit”, (Z), also, "regularly extends ... G. L. c. as the found, principal. judge Joseph trial as Main’s See V. Norman’s Health Club, Inc., 1976); 532 F.2d 91-93 Cir. v. General Mirabal *14 (7th 871, 1976); Acceptance Corp., Meyers Motors 537 F.2d 874 n.l Cir. (5th Sales, Inc., 511, 1976), Dodge 514-516 v. Clearview F.2d Cir. 1602(f) 1975), interpreting (Supp. provision 15 U.S.C. V Truth-in-Lending defining Regulation Federal Act "creditor.” See also 226.2(h) ("The Board, Z of the Federal Reserve 12 C.F.R. § Truth-in-Lending closely upon Massachusetts Act is modeled the Fed Act,” Truth-in-Lending "substantially eral and the two are similar.” 505.) Lynch Signal at Finance single question beyond $100 The raises no of entitlement a fees) against recovery (plus attorney’s costs and the three defendants jointly serverally. Acceptance and See Mirabal v. General Motors Sales, Inc., 880-881;Meyers Dodge supra Corp., supra at v. Clearview at 520-521.
Carter v. her suit sent any the defendants a written demand for relief "reasonably describing deceptive the unfair or act practice upon relied and the suffered.” injury G. L. 93A, 9(3), inserted St. by c. 690. See Slaney v. Auto, Inc., Westwood
Conclusion is reversed and the case is judgment The remanded to the Superior Court which shall judgment enter declaring plaintiff’s insurance was in full force and effect on June awarding to the against $1,294.32 the defendants jointly and severally ($1,278.32 damages to her automobile plus $16 expenses) medical plus interest from the date of the com- mencement of 6C, the action. See G. L. c. 6B and §§ as amended St. respectively.16 §§ plaintiff against The judgment shall also award jointly defendants the minimum severally penalty prescribed 10(b), G. L. c. plus costs and attorney’s reasonable fee which the trial judge shall Meyers Sales, Inc., determine. See v. Clearview Dodge (5th 1976); F.2d Cir. McGowan v. Credit Center Jackson, Inc., 1977). North 546 F.2d Cir. plaintiff’s costs of these appeals against shall be taxed defendant Main.
So ordered. initially panel This case was heard aby composed of Keville, JJ., Armstrong, Goodman and and was there- Hale, C.J., after submitted on the record and briefs to Brown, J., part who took in this decision accordance provisions with the of Rule 1:18 of this court. point specific against does not to a date of demand
Empire earlier than the commencement of the action. *15 Ct. App.
Carter (concurring). J. I concur in the fully majority Brown, In liti- opinion. my addition to usual disdain for those Tele- gants seeking (compare with unclean hands equity David, transmissions, Inc.
[1977] [Brown, J., concurring]), I find the defendants’ con- unconvincing tentions as as their acts are unconsciona- ble. may
It well that as between and Colony, agent Empire; however, was of Main the it is clear beyond (as judge) doubt me was to the trial that between Colony, must be considered (Second) agent Colony. of See Agency Restatement of (1958). 14L, a, Comment Illustration This is a funda- agency principle mental based on commercial conven- Sell, See ience. See Agency also Restatement (Second) Agency 8A§ (with Hale, C.J., J. whom joins, concurring
Armstrong, in part dissenting part). The trial judge found that plaintiff, on or shortly after June "called Colony and was them that assured she could her make context, after June which she did.” In finding implies that given an assurance her policy would not be cancelled on June stated date of the effective notice cancellation previ- mailed, ously she was to have a reasonable time thereafter to pay Colony the owing.1 then This finding challenged critical nowhere by Colony; two its ignore finding; briefs position and we are in no supported evidence, conclude that it was not much reproduced appendix. which has been It follows from that Colony’s cancellation of comply requirement Failure with the of G. L. c. agreement making an to extend the time for an installment writing signed by parties, must be in would bar collection charge a deferment an such extension but would not otherwise validity affect the of an extension. *16 App. 6
132 Mass. Empire Carter Mutual Ins. Co. power given under the of the holder2 of
policy
attorney
the
note
the
thereof was
plaintiffs
wrongful,
terms
Colony
damages
liable for the
general principles
on
is
flowing
wrongful
from that
cancellation. As to the meas-
damages,
opinion.
concur in the majority
ure of those
we
however,
nothing in the judge’s findings,
There is
Empire
Main,
or its agent,
which indicates that either
is
resulting from
damages
poli-
liable for
cancellation
the
upon
majority
Empire
The
which
holds
cy.
theory
right
that
it had no
to cancel the
namely,
liable —
agent
"non-payment
premiums”3
for
when its
Main
bring
owing
sufficient
to
the
money
held
inapplicable
to date —is
for at
premium
up
payments
first,
the
(acting through
it was
insured
least two reasons:
note)
Empire
her
the holder of the
and not
who
attorney,
for the
policy,
having
the
the cancellation
been
cancelled
obtaining
portion
of the unused
purposes
return
second,
and,
discussions
premium;4
preliminary
whatever
plaintiff signed a note which
place,
have taken
the
may
that
of her down
plainly
only
disclosed
$73.80
premium
insurance
and which
applied
been
the
had
day
each
obligated
pay
her to
on the first
month
found,
On the facts
eight
months.
consecutive
mistake;
product
not the
of fraud or mutual
note was
not have read the
may
neither
the fact
the
(Cohen
Santoianni,
signed
at the time she
note
[1953])
may
nor
fact
Main
be
2Colony
Code defini
was
"holder” under
Uniform Commerical
(G.
assignment, being
106, 1-201[20])
written
L. c.
because
tion
note,
legal
was in
effect an indorsement. Mass. Ann.
on
face of the
106, 3-202(4),
See cases cited in 11 Am.
& Comment
Laws
1963).
(2d
ed.
Jur. 2d §
misleading.
fully paid
at the
terminology was
Acceptance
outset,
signed
England
New
note.
when the
App.
Ct.
Mut. Ins.
Corp. v. American Manufacturers
controversy
(1976),
gave rise to the
S.C.
Carter v. it, her obligated to return to without au- thorization, applied renewing membership her in the obligation automobile club altered her to make the promised she monthly payments by signing make note. held on the theory, liable advanced by cannot contract, majority, tortious interference with be nothing effecting
cause Main had whatever to do with *17 ****5 policy.* cancellation of the Nor can Main’s liability having predicated Empire’s agent; on its been for even if assume, contrary we the facts found judge, was which cancelled the that Em pire contract, thereby breached the insurance Main similarly agent would not be liable. The of a disclosed principal is not ordinarily personally liable for his princi pal’s breach of contract Restatement [Second] [1958]; Agency Appleman, Insurance Law & § Practice [1968] at 459-461; Keeton, Insurance Law [1971] at 51), unless the breach is the result of agent’s fraud,6 own fraud. The trial judge finding made no Santoianni, Cohen v. presumed. fraud is not to be supra Taxn., at 192. Stow v. Commissioner Corp. & (1957). 337, 341 Gifford, Gifford 5Parenthetically, theory do not we understand how a of tortious application any interference with contract Colony, can have be latter, contract, cancelling simply trying pro cause the was by exercising right tect its own economic interest its contractual apply any premium Prosser, available return to a note in default. See 1971); James, Harper Torts at 944-945 ed. & 514- Torts findings were that intended the entire initial ($108.80) applied to be to the insurance and that membership she did not ask have her in the auto club renewed. findings applied There were no that Main knew when it $35 membership initial to renewal of the auto club that that was contrary any to her or intention that she instructed Main at time not membership. to renew that
Carter Empire, Main and we concur in As to the defendants portions majority opinion dealing with the those damages refusal to award the judge’s 10(6). L. fees under G. The defendant attorney’s It similarly judge’s is not liable. is clear from the Colony findings and from the evidence and the terms of the note creditor until Colony did become assigned Main to and that Colony, Colony note was not a "creditor” at the time Main violated the disclo- was G. L. c. 140C and G. L. c. 255C. The requirements sure Colony’s or conclusion that Main was judge’s agent plainly wrong. There was no evidence that im- given authority, express had Main actual or Colony plied, Colony’s to enter into business transactions be- half, apparent authority no could be ostensible which,' face, plainly found from the note on its indicated only to the transaction Colony party would become assign if the note to it. The fact and when Main should assigned such notes to fur- regularly *18 Colony no basis for a conclusion that was Main’s nished Uniform Commercial Code 3- principal Anderson § 302:14, 1971]); if contrary, at 827 fed. such [2d existed, would be from the out- relationship payee assignment superfluous. Colony would be was a set at the time the truth-in-lend- stranger transaction plain- ing violations occurred and thus is liable 140C, L. Contrast G. statutory penalty. tiff for the 10(c). L. c. inserted St. 10(g), See now G. September effective