440 Mass. 1013 | Mass. | 2003
We consider on direct appellate review two orders issued in a Superior Court action brought by Suzanne Roth against Arnica Mutual Insurance Company (Arnica), her automobile insurer. We affirm both orders, and affirm judgment for Arnica.
Background. Arnica issued Roth a standard Massachusetts automobile policy, sixth edition (standard policy), including optional collision coverage (part seven), to insure her 1993 Acura Legend automobile. See Given v. Commerce Ins. Co., ante 207, 208-209 (2003) (summarizing relevant policy provisions). In 1996, during the policy period, Roth submitted a claim to Arnica for collision damage.
In July, 1998, Roth, “individually and as a representative of all persons similarly situated,” filed a seven-count complaint against Arnica, predicated on Arnica’s specification of allegedly inferior non-OEM parts to repair damaged automobiles and its refusal to pay compensation for inherent diminished value. Arnica filed a motion for summary judgment on all counts, which was partially granted in September, 1999. The judge held that, under the plain language of the standard policy, Roth was not entitled to recover inherent diminished value from Arnica. Relying on regulations promulgated by the division of insurance (division) and the auto damage appraiser licensing board (board), he further concluded that Arnica’s specification of non-OEM parts, although not expressly provided for in the standard policy, was not a per se violation of its duty under part seven to repair or replace collision-damaged parts, but that a genuine issue of material fact existed as to the quality of the non-OEM fender Arnica had specified for Roth’s vehicle. In August, 2000, Arnica again filed for summary judgment on the non-OEM parts issue, and a second judge denied that motion. The judge noted in her memorandum and order that the class had not been certified and that, “given the procedural wrangling in this case, certification sooner rather than later may better protect the class members.” As of the time of the pretrial conference in May, 2001, no motion for certification had been filed. Trial was set for October 1, 2001. In July, 2001, Roth filed a motion for class certification pursuant to Mass. R. Civ. R 23, 365 Mass. 767 (1974), which was denied in August, 2001. The judge denied the motion on the grounds that it was untimely and that “during the last three (3) years, Ms. Roth has failed to bring forward one other insured similarly situated” plaintiff affected by Arnica’s allegedly wrongful specification of non-OEM parts. See Mass. R. Civ. P. 23 (a) and (b). In April, 2002, pursuant to a joint motion, the judge entered judgment for Arnica on all counts. Roth appealed from the order of partial summary judgment in favor of Arnica and from the denial of her motion for class certification. We granted Arnica’s application for direct appellate review.
Discussion. In Given v. Commerce Ins. Co., supra, we held that insureds are not entitled to recover for alleged inherent diminished value under part seven of the standard policy. See id. at 209-214. There was no error in granting summary judgment in favor of Arnica with respect to Roth’s claims for inherent diminished value.
We also agree with the judge that Arnica’s specification of non-OEM parts to repair a damaged automobile is not an automatic violation of its obligations under part seven and the applicable regulations. Roth argued below, as she argues on appeal, that all non-OEM parts are inherently inferior to OEM parts in every circumstance. Her global generalization flies in the face of common sense, common experience, and contrary conclusions reached by the Legislature, the division, and the board. See, e.g., G. L. c. 90, § 340 (requiring notice to insured persons of insurer’s or repairer’s specification of non-OEM parts); 211 Code Mass. Regs. § 133.04 (1996) (requiring specification of “a rebuilt, aftermarket, or used part of like kind and quality, at the lowest
Finally, the judge acted well within her “broad discretion,” Weld v. Glaxo Wellcome Inc., 434 Mass. 81, 85 (2001), in denying as untimely Roth’s motion for class certification, where the motion was not filed until nearly three years after entry of the complaint, nearly one year after a judge’s admonition to file the motion promptly, and less than three months before the scheduled start of trial. Morever, the judge’s conclusion that Roth had failed to demonstrate the required numerosity or typicality was amply supported by the record and was not “arbitrary, unreasonable, or capricious.” Id. See Mass. R. Civ. P. 23 (a).
Orders affirmed.
Judgment affirmed.
Moth’s vehicle had been driven over 15,000 miles at the time of the accident, thereby meeting a criterion for the use of “rebuilt, aftermarket or used [replacement] part.” See 211 Code Mass. Regs. § 133.04 (1) (1996).