COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

Nos. 2000-P-1655 & 2000-P-1675 .

Norfolk County Division.

Daniel Lord,

Plaintiff-Appellant and

Cross-Appellee,

v.

Commercial Union Insurance Company d/b/a

Commercial Union Homeland Insurance Company,

and Westwood Insurance Agency of Wellesley, Inc.,

Defendants-Appellees and Cross-Appellants.

ON APPEAL FROM A JUDGMENT OF THE SUPERIOR COURT DEPARTMENT.

Brief for the Plaintiff-Appellant and Cross-Appellee, Daniel Lord .

i.

TABLE OF CONTENTS

Statement of the Issues Presented for Review........................................................................1

Statement of the Case and Facts.........………………………………………..............................1

Argument

1. The Motion Judge Erred In Denying Lord's Motion For Class Certification....................................................................................................................20

2. The Trial Judge Erred In Denying Lord's Motion For Partial Reconsideration of the Order of February 27, 1997, As Clarified on April 16, 1997, Denying His Earlier Motion For Class Certification......................................................................................34

Conclusion...................................................................................................................................

Addendum..............................................................................................................................Post

Statutory and Rule Addendum...........................................................................Post Addendum

ii.

TABLE OF AUTHORITIES.

Cases.

Other Authorities.

Statement of the Issues Presented For Review.

1. Whether the motion judge erred in denying the motion of the plaintiff-appellant and cross-appellee Daniel Lord (“Lord”) for class certification?

2. Whether the trial judge erred in denying Lord's

motion for partial reconsideration of the order of February 27, 1997, as clarified on April 16, 1997, deny-ing his earlier motion for class certification?

3. Whether the lower court erred in awarding Lord attorney's fees in the amount of only $9,000?

4. Whether the trial judge erred in denying Lord's motion for a preliminary injunction?

Statement of the Case and Facts.

In the wake of certain dealings with both his automobile insurer, the defendant-appellee and cross appellant Commercial Union Homeland Insurance Company (“Commercial”), and his insurance agent, the defendant-appellee and cross appellant Westwood Insurance Agency (“Westwood”), the plaintiff-appellant and cross appellee Daniel Lord (“Lord”) notified both of them in writing of his claim that they had violated Chapter 93A, Sections 2 and 9(A.15-18).

According to his letter of December 7, 1992, Lord had entered into a contract of automobile insurance with Commercial for his 1986 Nissan on or about November 5, 1991, one which renewed his existing automobile insurance for one year or until November 5, 1992(A.15). Among other things, the contract provided insurance coverage for col-lision damage should Lord's vehicle become involved in an accident(A.15). Subsequently, on November 19, 1991, Lord received from Commercial a notice of cancellation of insurance for nonpayment of premium, effective December 12, 1991(A.15). Lord then duly sent to Commercial his premium payment of $430.28 on December 10, 1991; and Com-mercial thereafter cashed Lord's check on December 13, 1991(A.15).

Before doing so, however, Commercial had canceled Lord's policy on December 12, 1991; but it then rein-stated coverage the same day upon its receipt of Lord's check(A.15). In the meantime, Lord had requested of Commercial's agent, Westwood, that it transfer his insurance coverage to a newly purchased vehicle, a 1987 Nissan; and on December 13, 1991, Westwood issued corres-pondence to Lord confirming that his existing insurance coverage had been transferred to this newly purchased vehicle(A.16). Moreover, Westwood attached to this correspondence the reinstated insurance automobile policy issued by Commercial one day earlier on December 12, 1991(A.16).

Lord's Chapter 93A letter then recited the fact that on or about December 20, 1991, another vehicle struck Lord's automobile with the driver of the other vehicle fleeing the scene, leaving Lord unable to seek collection for his collision damages from that individual's insur-ance company(A.16). He accordingly submitted a claim to Commercial for damages to his vehicle in the amount of $3,000 on December 21, 1991(A.16). In a letter dated De-cember 22, 1991, postmarked December 24, 1991, and received by Lord December 26, 1991, Commercial notified Lord that physical damage insurance coverage for his vehicle had been suspended on November 22, 1991, because of his failure to obtain a mandatory physical damage pre-insurance inspection on his newly purchased 1987 Nissan, an inspection required by the terms of 211 CMR 94.00(A.16). Commercial subsequently sent Lord an amended insurance policy on January 3, 1992, one which reflected its retroactive cancellation of collision and com-prehensive insurance coverage for his vehicle(A.16). Three days later, on January 6, 1992, Commercial sent Lord notice that it would not honor his claim or provide him the insurance coverage for which he had paid and upon which he had reasonably relied(A.16).

Upon these recited facts, Lord asserted that when Commercial accepted his premium payment, cashed his check of December 10, 1991, and then issued a new policy insuring his newly purchased 1987 Nissan, he reasonably and in good faith relied upon Commercial's verbal and written representations that it would provide automobile insurance coverage in the event of an accident(A.16). He then claimed that Commercial's

retroactive cancellation of such insurance, subsequent to its cashing of [his] check, and subsequent only to the placement of a claim by ...Lord, amounts to a violation of Massachusetts General Laws Chapter 93A.

(A.16). Lord characterized these unfair and deceptive acts or practices by Commercial as willful and knowing ones; and he claimed damages of $3,920.00 as proximately caused thereby(A.16-17). Lord therefore made demand upon both Commercial and Westwood for this amount(A.16-17).

On January 6, 1993, Commercial responded to Lord's demand letter(A.19-21). The gist of its response was that when Lord purchased his 1987 Nissan on or about November 14, 1991, and then requested a transfer of his insurance policy to cover this newly purchased vehicle, he signed an acknowledgment letter which obligated him to obtain a so-called pre-insurance inspection by November 20, 1991, failure of which would “result in the suspension (losses will not be covered) of the physical damage coverages (fire and theft/comprehensive, collision, limited collision)” after that date (A.19). Because Lord had not complied with this obligation, Commercial claimed that its suspension of insurance coverage for physical damage to Lord's vehicle as of November 22, 1991, one made “automatically,” was proper in all respects(A.20).

Commercial therefore asserted that “its notice of cancellation [of December 22, 1991] and refusal to pay [Lord's] collision loss was timely, reasonable and proper based on the terms of the Standard Automobile Policy as well as the provisions of 211 CMR 94:00”(A.20). In addi-tion, Commercial denied that it had fraudulently repre-sented to Lord on or about December 13, 1991, that full insurance coverage for his vehicle was in effect on that date (A.20). As it concluded, “it was clear both from the language [of] the auto policy as well as the ‘ACKNOW-LEDGMENT OF REQUIREMENT FOR PRE-INSPECTION' which [Lord] signed...that [Lord's] physical damage coverage would automatically be terminated if he failed to comply with the pre-inspection requirement”(A.20). Commercial (and Westwood) accordingly denied any violation of Chapter 93A and refused to make any offer of settlement(A.20-21).

With the parties' respective claims in this posture, Lord then commenced a civil action in the Quincy Division of the District Court Department against Commercial and its agent Westwood in December of 1994(A.22-26). His com-plaint of two counts alleged the same essential facts contained in his Chapter 93A letter, claimed that Commercial and Westwood had breached the contract of insurance entitling him to damages of $3,920, and that they had violated Chapter 93A as well as G.L.c. 176D, Section 3, by its bad faith negotiation and settlement of his insurance claim (A.23-26). He demanded a jury trial on all issues so triable (A.26).

The answers of Commercial and Westwood denied all of the material allegations of Lord's complaint, asserted that he had not submitted his newly purchased 1987 Nissan for their inspection by November 20, 1991, and that physical damage coverage was therefore rightfully suspended and not restored despite Commercial's letter to Lord of December 12, 1991, apparently reinstating insurance coverage for his vehicle (A.27-33).

During discovery among the parties in the District Court Department, it became clear that while 211 CMR 94:09(2) requires that “whenever physical damage coverage is suspended,[Commercial] shall, by the 21 st and the 30 th calendar day after the effective date of coverage, mail to [Lord]...a prescribed NOTICE OF SUSPENSION OF PHYSICAL DAMAGE COVERAGE,” Commercial never did so. That is, because Lord and Commercial had entered into a contract for insurance concerning his newly purchased 1987 Nissan effective November 14, 1991, a contract which included coverage for physical damage to his vehicle, Commercial was bound by the terms of 211 CMR 94:09(2) to notify Lord between December 5th and December 14 th of 1991 if it was suspending such physical damage coverage. Yet no such notice was given Lord by Commercial until December 24, 1991(A.16).

Moreover,211 CMR 94:09(3) provides that Commercial's failure to comply with 211 CMR 94:09(2) “shall subject the insurer to a penalty pursuant to 211 CMR 94:12,” the provisions of which makes such a failure by Commercial “an unfair or deceptive act or practice in violation of M.G.L. 176D.” 211 CMR 94:12(1).

It was also revealed during discovery that Com-mercial had programmed its computer so that notices to policyholders of its suspension of physical damage coverage were not printed until after twenty-eight (28) days from the effective date of coverage, a practice which disregarded the first eight days of the ten-day notice period for such suspensions. Because these emergent facts implicated an entire class of policy-holders who had suffered the same or similar damage as Lord due to Commercial's conduct in failing to notice timely such suspensions, Lord brought a separate class action in the Superior Court Department in December of 1995 against Commercial and Westwood pursuant to Mass. R. Civ. P. 23 (Docket No. 95-2721)(A.1;38-53).

His second amended complaint in that case defined the class of plaintiffs under Count I as composed of all persons who, like himself, had (a) purchased automobile insurance from Commercial for private passenger vehicles which were subject to inspection pursuant to G.L.c. 175, Section 113S(c) and 211 CMR 94:00; (b) failed to comply with the mandatory pre-insurance inspection pursuant to 211 CMR 94:00 within the time period prescribed; and (c) were not provided with notice pursuant to G.L.c. 175, Section 113S, and 211 CMR 94:09(2) that physical damage insurance coverage had been suspended(A.38-39). Lord alleged that Commercial and Westwood violated G.L.c. 176D, Section 3, when it concealed or misrepresented the actual insurance coverage which would be in effect for those who did not timely obtain a pre-insurance inspec-tion; by concealing the fact that it was required to provide policyholders with notice of suspension of physical damage coverage within a prescribed period of time; by failing to provide such notice; and by violating 211 CMR 94:00, a per se violation of Chapter 176D(A.38-45). He sought a judgment for himself and for the class which declared that such violations had occurred, awarded damages for the cost of the policy and for the defendants' willful and wanton conduct, permanently enjoined them from future violations, and provided the plaintiffs with their costs and attorney's fees(A.44-45).

Lord's second count encompassed a sub-class of plaintiffs who, like himself, had not obtained a pre-insurance inspection; were not given the required notice of physical damage suspension by Commercial; were involved in an accident and/or placed claims for physical damage to their vehicles; and were then denied coverage by Commercial for such damage or received no payment on the claim(A.45-46). It alleged that Commercial's conduct toward these plaintiffs amounted to breach of contract entitling them to damages for inter alia the amount of money which should have been paid them under Commercial's policy, a permanent injunction enjoining future viola-tions of Chapter 176D and 211 CMR 94:00, and an award of their costs and attorney's fees(A.47-48).

In Count III, Lord alleged that Westwood breached the fiduciary duty it owed him and the class when purchasing physical damage insurance for their vehicles by (a) failing to notify them of their statutory rights to notice by an insurer of its suspension of such coverage; (b) purchasing insurance from a carrier such as Commercial, an insurer which was failing to provide policyholders with such notice of suspension; (c)con-cealing Commercial's material misrepresentations of coverage; and (d)failing to alert Lord or the class of plaintiffs that they lacked any physical damage coverage for their vehicles(A.48-49). He sought the return of premiums which he and the class had paid to Westwood together with interest thereon as well as the amount it cost them to repair their vehicles(A.49).

Lord brought a fourth count against Commercial and Westwood claiming that their conduct violated Chapter 93A “by willfully and knowingly violating 211 CMR 94:12(1)&(2) which is a per se violation of G.L.c. 176D”(A.50-51). They sought for each member of the class an award of damages which would be three times their actual damages or in the nominal amount of $25.00 to-gether with their reasonable attorney's fees and costs (A.51-52).

The answer of Commercial and Westwood to this second amended complaint admitted most of Lord's ground level facts, denied all of his material allegations and asserted in an affirmative defense that the rights of the parties were the subject of Lord's prior action in the Quincy District Court(A.1-2;54-66). On May 3, 1996, however, Lord's District Court action was transferred to the Superior Court Department(Docket No. 96-930) and on February 20, 1997, it was eventually consolidated with his ongoing Superior Court action (Docket No. 95-2721) (A.2-3;10-11;35-37)

Just before the consolidation of these cases, Lord moved under Rule 23 to proceed as a class action in Docket No. 95-2721(A.2;68-71). After describing the characteristics of the class and the sub-class of plaintiffs in his second amended complaint, Lord claimed that he had identified through discovery 2,276 such members and because the class was so numerous, joinder of all the members was impracticable(A.69;71). Since the questions of fact and law common to the class predominate

over any questions affecting only individual members, and because Lord would fairly and adequately represent and protect the interests of the class, he claimed that a class action was the superior method for the fair and efficient adjudication of the controversy(A.69-70). Commercial and Westwood opposed the motion by contending inter alia that Lord's unique circumstances of failing to pay his premium distinguished him from the class of policyholders he purported to represent in challenging Commercial's failure to give them timely notice of its suspension of physical damage coverage in the wake of their non-compliance with the pre-insurance inspection regime described by G.L.c. 175, Section 113S (c)and 211 CMR 94:00(A.2-3;72-305).

On February 27, 1997, the Superior Court Department, van Gestel, J., denied Lord's class certification motion (A.3;306-307). Noting the limited financial means of Lord to prosecute this case as a class action, the question-able nature of the interest in class action status and the problem with arraying this class against Westwood, the motion judge ruled that “proceeding as a model or test case...[in view of] the limited ability of the court itself to manage a class action, is superior to litigating with the classes proposed”(A.307). He therefore denied the motion without prejudice to its renewal before the judge who will actually try the case(A.307).

Upon Lord's motion for clarification of this ruling, the response of Commercial and Westwood thereto and the formulation of a stipulation by the parties, the motion judge issued an order on April 16, 1997, approving the parties' stipulation, determining that the matter was in the proper posture to proceed as a test case and amending its prior ruling to delete all the language making his earlier denial without prejudice its renewal before the trial judge(A.3;308-311).

The parties' stipulation provided that Commercial waived any defense based upon the Statute of Limitations “whose claim is based on the same factual circumstances as [Lord] and whose claim was not already barred prior to the commencement of these actions”(A.312). It also agreed to be bound by any decision of the Court requiring the payment of damages to the test party and to any similarly situated plaintiffs; and both parties retained their right to appeal any decision regarding liability or damages(A.313).

On June 10, 1997, a trial on these now consolidated matters commenced in the Superior Court Department before Butler, J., and a jury(A. 3-4;11;315). At the beginning of the trial, Lord dismissed with prejudice all claims against Westwood(A.315). The jury then heard Lord's breach of contract claim against Commercial and the trial judge alone addressed Lord's claim that Commercial's conduct had violated Chapters 93A and 176D(A.315).

The jury eventually returned a verdict for Commer-cial on Lord's breach of contract claim(A.3). On July 21, 1997, the trial judge issued his findings of fact, rulings of law and order on the remaining issue of whether Commercial's conduct violated Chapters 93A and 176D(A.3-4;11;314-324). With specific relevance to the issues raised on this appeal, Judge Butler found that upon his request to transfer insurance to his newly acquired 1987 Nissan on November 14, 1991, Lord had signed an acknowledgment of the need for a pre-insurance inspection of this vehicle(A.315-316). However, because Commercial had placed Lord's policy in “cancellation mode” for his nonpayment of premium on November 18, 1991, effective December 12, 1991, “no notices were sent out to [him]...” concerning this pre-insurance inspection requirement, a practice which was apparently Commer-cial's “custom”(A.316-317).

The trial judge further found that Commercial was required by 211 CMR 94:09(2) to send Lord a notice of suspension of its physical damage coverage for his vehicle between December 5, 1991, and December 14, 1991, and that it failed to do so(A.317-318). But she further determined that while Commercial programmed its computer to send out such notices on the 29 th day after the policy's effective date, it was done only to minimize confusion, was not unreasonable and was not an unfair or deceptive act or practice(A.317-318). It was also found that Commercial did not mail Lord a pro rata premium adjustment reflecting the loss of his physical damage insurance coverage within forty-five (45) days of No-vember 21,1991, as required by 211 CMR 94:09(2)(A.318).

Judge Butler then ruled that Commercial's conceded violations of 211 CMR 94.09(2) amounted to violations of G.L.c. 176D, and were therefore deceptive acts or prac-tices. 211 CMR 94:12(1)(A.321-322). As she determined, Commercial's violations of 211 CMR 94:09(2) “came about because of [its] practice of not sending out notices once a notice of policy cancellation was outstanding for non-payment of premium”(A.322). While Commercial's custom or practice was perhaps reasonable from a business stand-point, the lower court ruled that there was no specific statute, regulation or any other authority which excused it

from full compliance with 211 CMR 94:09(2) once an insured was notified of imminent full policy cancellation (as opposed to partial coverage suspension) unless overdue premium[s] were paid. The provisions of G.L.c. 175, Section 113A, the strict statutory scheme for cancellation of policies due to nonpayment of premium do not afford refuge from the plain and compelling language of 211 CMR 94:09(2).

(A.322-323).

Moreover, since Commercial was plainly aware of its duties under 211 CMR 94:09(2), and the attendant penal-ties for its failure to comply therewith, its decision to ignore those responsibilities was “knowing” within the meaning of G.L.c. 93A, Section 9(3), mandating double damages(A.323). But the trial judge ruled that while Commercial's violations of 211 CMR 94:09(2) were “knowing,” they were not “egregious” and therefore did not warrant the imposition of treble damages upon Commercial(A.323).

In view of the jury's determination that Lord's failure to have his newly acquired 1987 Nissan inspected timely and prior to the accident was not the fault of Commercial, the trial judge further ruled that while Commercial's failure to issue the required notice of sus-pension of physical damage insurance to Lord within thirty days of the effective date of coverage was a vio- lation of Chapter 93A, Lord had not met his burden of proving that harm befell him as a result of that viola-tion(A.322). Accordingly, the lower court ruled that minimal damages of $25.00 were in order(A.322).

Upon these findings and rulings, an order for judg-ment entered in Docket No. 95-2721 in Lord's favor on Count IV of his second amended complaint (for violation of Chapter 93A) in the amount of $50.00 plus reasonable attorney's fees(A.323); judgment entered for Commercial and Westwood on all other counts(A.323). As for Superior Court Docket No. 96-930, judgment was to enter for Com-mercial and Westwood on Count I of the complaint and for Lord on Count II in the amount of $50.00 plus his rea-sonable attorney's fees(A.323-324).

In the aftermath of the trial judge's direction for the entry of judgment, Commercial moved for partial re-consideration of the Court's findings of fact, rulings of law and order dated July 22, 1997(A.4;325-330). For his part, Lord moved for the partial reconsideration of the earlier orders of van Gestel, J., dated February 28, 1997, denying class certification as well as his subse-quent order of clarification of April 16, 1997(A.4;333-334).

In addition, Lord moved for a permanent injunction ordering Commercial to reprogram its computer to comply with the notice requirements of 211 CMR 94:09 by substituting the number 20 for the number 28 which controls the mailing of notices of suspension of physical damage coverage so that the amended computer program would result in the mailing of suspension notices after the 21 st day from the date of coverage(A.4-5;335-336).

Lord also moved for the award of attorney's fees in the amount of $43,556.50 together with his costs of $2,528.74 as well as such other attorney's fees which he may incur on behalf of similarly situated plaintiffs (A.4;337-364). In support of this motion, Lord attached his itemized fees as well as supporting affidavits and asserted that he has succeeded in this “test case” on the merits of his claim that Commercial's conduct violated Chapter 93A(A.337-364). Commercial opposed this motion (A.365-374).

After hearing the parties on their respective post-trial motions, Judge Butler allowed Commercial's motion for partial reconsideration of the findings of fact, rulings of law and order to the extent that she decreased the statutory damage award to Lord from $50.00 to $25.00 (A.5; 325). The lower court also denied Lord's motion for partial reconsideration of Judge van Gestel's prior orders of February 28, 1997, as clarified on April 16, 1997, denying class certification(A.4;333).

Judge Butler further denied Lord's motion for a permanent injunction without explanation and then allowed Lord his attorney's fees but only in the amount of $9,000 with no findings of fact being made to support this result(A.4;335;337).

After a judgment entered consistent therewith in the consolidated actions, these appeals by Lord, Commercial and Westwood followed(A.5-8;11-14;375-383).

Argument.

1. The Motion Judge Erred In Denying Lord's Motion For Class Certification .

Lord has reproduced in his record appendix all the relevant pleadings, the parties' respective moving docu-ments and all of the findings and rulings of law made by the motion judge as well as the trial court. This Court therefore has before it a sufficient record to review and decide every relevant question of law, fact and discre-tion raised by this appeal. Felton v. Felton , 383 Mass. 232, 239(1981) quoting Schuler v. Schuler , 382 Mass. 366, 368(1981) and Krokyn v. Krokyn , 378 Mass. 206, 208(1979).

While Judge Butler's findings of fact will stand unless any of them is clearly erroneous within the meaning of Mass. R. Civ. P. 52(a), the reasonable inferences drawn from those findings are open for this Court's determination and the inferences drawn by the trial judge are entitled to no weight in this tribunal.

National Medical Care, Inc. v. Ziegelbaum , 18 Mass. App. Ct. 570, 574(1984) quoting Malone v. Walsh , 315 Mass. 484, 490(1944). Accordingly, this Court may find addi-tional facts consistent with but beyond those findings made by the trial judge. Blackwell v. E.M. Helides, Inc., Jr. , 368 Mass. 225, 226(1975). Binder v. Binder , 7 Mass. App. Ct. 751, 755(1979).

As far as the rulings of law made by either the motion judge or the trial court are concerned, this Court is not bound by them in any way. Simon v. Weymouth Agricultural & Industrial Soc. , 389 Mass. 146, 148-149(1993). Newburyport Soc'y For the Relief of Aged Women v. Noyes , 287 Mass. 530, 532-533(1934). See Greenfield Country Estates Tenants Association, Inc. v. Deep , 423 Mass. 81, 82 (1996). It may therefore vacate the judgment below if any of the rulings below is tainted in any respect by an error of law. Bowman v. Heller , 420 Mass. 517, 522 n.6 (1995). Powers v. Freetown-Lakeville Regional Sch. Dist. Comm ., 392 Mass. 656, 659(1984).

With this standard of review in mind, Lord submits that the motion judge erred in denying his motion for class certification. Lord's presentation in support of his motion satisfied every one of the criteria contained in G.L.c. 93A, Section 9(2), and Mass R. Civ. P. 23 for prosecuting this consumer protection matter as a class action. However, Judge van Gestel's analysis of these criteria for class certification was incomplete; and his denial relied upon considerations having little to do with the propriety of permitting Lord and his principal class to proceed against Commercial for implementing a system for suspending the physical damage coverage of its policyholders upon a computer program which was clearly at odds with the language, intent and purpose of G.L.c. 175, Section 113S and 211 CMR 94:00. This Court should therefore vacate and reverse this ruling and enter a new judgment certifying Lord's class and allowing him to pursue post-trial relief on behalf of the class and sub-class identified in his motion; or remand the matter to the Superior Court Department for the entry of such a new judgment.

As an initial matter, it is true that the judge below possessed broad discretion under Rule 23 in deter-mining whether an action should be maintained as a class action. Berry v. Town of Danvers , 34 Mass. App. Ct. 507, 514-515(1993) citing Brophy v. School Comm. of Worcester , 6 Mass App. Ct. 731, 735(1978). That discretion, however, is not unlimited; it must be exercised in accord with the purposes sought to be achieved by class actions, i.e., a common interest, a common grievance and relief requested which is beneficial to all those whom the plaintiff proposes to represent so that a multiplicity of suits is avoided. Sniffin v. Prudential Ins. Co. of America , 11 Mass. App. Ct. 714, 723-724(1981). Spear v. H. V. Greene Co. , 246 Mass. 259, 266-267(1923).

Thus in deciding whether a suit should proceed as a class action, the lower court must carefully apply the criteria set forth in Rule 23 to the facts of the case. Sniffin , 11 Mass. App. Ct. at 724. See also Berry , 34 Mass. App. Ct. at 514 n.7. As Professor Moore noted in his treatise,

if [the court] fails to [carefully apply Rule 23's criteria to the facts of the case,] its determination is subject to reversal by the appellate court....On the other hand, where the trial court does apply the Rule's criteria to the facts of the case, the trial court has broad discretion in determining whether the action may be maintained as a class action and its determination should be given great respect by a reviewing court.

Katz v. Carte Blanche Corporation , 496 F.2d 747, 757(3rd Cir.1974)( en banc ) quoting 3B, Moore's Federal Practice at 1104-1105(2d ed. 1969). See Sniffin, supra . Accord-ingly, in order for the lower court to enjoy the broad discretion he possessed in deciding whether to certify Lord's class, he must have carefully applied all of Rule 23's criteria to the facts of Lord's case. Berry, supra . Sniffin, supra .

In doing so, Judge van Gestel was bound also to apply that criteria in light of the language of G.L.c. 93A, Section 9(2), enacted prior to Rule 23's adoption, which itself authorizes class actions for violations of the Consumer Protection Act with “similarly situated” plaintiffs who have suffered “similar injury.” That is, class actions are often the “last barricade” of consumer protection because individual plaintiffs cannot, will not and ought not to be required to pursue what would often be trivial relief; and the consumer class action is the best vehicle to remedy small consumer frauds to large groups while serving as a deterrence to the wrongdoer. Eshaghi v. Hanley Dawson Cadillac Co. , 574 N.E.2d 760, 766(Ill. App.1991). The encouragement of that interest was therefore a legitimate consideration for the lower court in its administration of Rule 23 in the context of this consumer protection case. Katz , 496 F.2d at 761.

In Baldassari v. Public Finance Trust , 369 Mass. 33, 40-41(1975), the High Court further observed that Section 9(2)'s class action language “has a more mandatory tone” in favor of certification than Rule 23 and that judges considering class certification in such cases must bear in mind that Chapter 93A “was designed to meet a pressing need for an effective private remedy for consumers and that “traditional technicalities are not to be read into the statute in such a way as to impede the accomplishment of substantial justice.” Id . In Fletcher v. Cape Cod Gas Co. , 394 Mass. 595, 605-607(1985), it was further held that a motion has discretion under Section 9(2) to determine whether its requirement of “similarity” had been satisfied; but it repeated Baldassari's admonition that this discretion should be exercised with a view toward effectuating the purposes of the Consumer Pro-tection Act by allowing certification. Id .

Accordingly, the test for class certification for Lord's action is composed of the four elements of Rule 23(a) together with the two factors of similarity iden-tified in G.L.c. 93A, Section 9(2), impressed with the admonitions in both Baldassari and Fletcher that the discretion in this consumer protection case should be exercised with a bias toward class certification. Lord submits that he adduced sufficient facts before Judge van Gestel to satisfy these criteria, that the lower court did not “carefully apply,” Sniffin , 11 Mass. App. Ct. at 724, these criteria to the facts of this case, that it applied extraneous considerations to deny class certification and that it therefore abused its discretion or erred as a matter of law in denying class certifi-cation for this action.

Under Rule 23(a), the class must be “numerous,” there must be common questions of law and fact, the claims of Lord must be “typical,” and he must “fairly and adequately protect the interests of the class.” See Carpenter v. Suffolk Franklin Savings Bank , 370 Mass. 314, 318(1976). In addition, under Section 9(2), Commer-cial's challenged conduct must have caused “similar injury to numerous other persons similarly situated.” In the first place, Lord's presentation satisfied the numerosity requirement. He adduced sufficient proof through discovery that there were approximately 2,276 members of the class who had (a) purchased automobile insurance from Commercial for private passenger vehicles which were subject to inspection pursuant to G.L.c. 175, Section 113S(c) and 211 CMR 94:00; (b) failed to comply with the mandatory pre-insurance inspection pursuant to 211 CMR 94:00 within the time period prescribed; and (c) were not provided with notice pursuant to G.L.c. 175, Section 113S, and 211 CMR 94:09(2) that their physical damage insurance coverage had been suspended(A.38-39).

Second, there were questions of law and fact common to the class. The gravamen of Lord's complaint, as it emerged through discovery, was that Commercial had pro-grammed its computer to print out notices of suspensions on the 28 th day of the 30-day notice period so that the earliest it provided notice to its policyholders was on or after the deadline set by 211 CMR 94:09(2). This was a systemic, documented failure by Commercial to comply with its regulatory obligations which affected all members of the class, arose from the same flawed, computer-based policy which reached every class member and manifested itself in obvious class-wide results. The entire principal class was therefore bound together by a common legal and factual thread.

Even with the sub-class of plaintiffs, i.e., those who had not obtained a pre-insurance inspection; were not given the required notice of physical damage suspension by Commercial; were then involved in an accident and/or placed claims for physical damage to their vehicles; and were then denied coverage by Commercial for such damage or received no payment on the claim, Commercial concedes that it was its “custom” not to give them notice of its suspension of physical damage coverage for their vehicles based upon their noncompliance with the pre-insurance inspection regime. This likewise was a systemic, docu-mented failure by Commercial to comply with its regulatory obligations, affecting all members of the sub-class, arising from a flawed “custom” or policy which reached every sub-class member and manifested itself in obvious class-wide results. The entire sub-class as well was bound together by a common legal and factual thread.

“[E]ven one common question of law or fact may be found to predominate over individual questions so as to warrant certification of a class action.” Fletcher , 394 Mass. at 603 citing Ramos v. Registrars of Voters of Norfolk , 374 Mass. 176, 179-180(1978). The resolution of whether Commercial had wrongfully failed to give its policyholders timely notice of its suspension of physical damage coverage or whether it had wrongfully refused to provide coverage because of noncompliance with the pre-insurance inspection regime provides a definite “signal of the beginning of the end” to this litigation for the entire class and sub-class, id . citing Mertens v. Abbott Laboratories , 99 F.R.D. 38, 41(D.N.H.1983), and makes the wrong suffered “subject to redress by some common relief beneficial to all.” Spear v. H. V. Greene Co. , 246 Mass. at 266.

Thirdly, for the same reasons, Lord's claims were typical of the claims of both the principal class as a whole and the sub-class as a whole. Not only was he not given timely notice by Commercial of its suspension of physical damage coverage for his vehicle in time to do him any good (the principal class) but also he was thereafter denied coverage for damage to his vehicle or received no payment on his claim because he had not complied with the pre-insurance inspection process. A plaintiff's claim is typical “if it arises from the same event or practice or course of conduct that gives rise to a claim of another class member's where his or her claims are based on the same legal theory.” Stewart v. Rubin , 948 F. Supp. 1077,1088(D.D.C. 1996) quoting EEOC v. Printing Industry , 92 F.R.D. 51, 54(D.D.C.1981) and 1 Newberg, Class Actions , Section 1115f at 191(1977). Spencer v. Central States Pension Fund , 778 F. Supp. 985, 989-990(N.D. Ill. 1991). Lord's grievances are typical of the class' claims because both challenge Commercial's actions and course of conduct in failing to give timely notice of its suspension of insurance coverage as well as its denial of coverage in the aftermath of a policy-holder's failure to comply timely with the pre-insurance inspection process.

In this regard it is not necessary that Lord's factual circumstances be completely identical to the entire class or sub-class or that they suffer a “joint wrong,” as suggested early on in Spear v. H. V. Greene Co. , 246 Mass. at 268. Siegel v. Chicken Delight, Inc., 271 F. Supp. 722,726(N.D. Ca. 1967). Instead, in Massa-chusetts, it is only required now that the factual underpinnings for Lord's claim be similar to the class as a whole, i.e., possess a common nucleus of operative facts, in order for his claims to be sufficiently “typical” for purposes of Rule 23. Baldassari v. Public Finance Trust , 369 Mass. at 40. Brophy v. School Committee of Worcester , 6 Mass. App. Ct. 731, 736(1978). G.L.c. 93A, Section 9(2) (“ similar injury to numerous other persons similarly situated”)(emphasis supplied). Moreover, it is irrelevant for class certification purposes that damage calculations may differ slightly for different members of the class or sub-class or that Lord's policy was in “cancellation mode” for his nonpayment of premium. His fundamental claim, sufficient-ly similar to the class and sub-class, is that he and at least 2,275 members of the class were harmed by Commercial's flawed and unlawful computer program, one which proximately caused its untimely notice to these policyholders of its suspension of physical damage insurance coverage as well as its denial of such insurance coverage in the aftermath of these policyholder's failure to comply timely with the pre-insurance inspection process. See Alpern v. Utilicorp United, Inc. , 84 F.3d 1525, 1540(8th Cir. 1996).

Fourth, under Rule 23(a)(4), the unquestioned qualifications of Lord's experienced counsel to conduct this litigation were fully set out for the motion judge.

Lord's counsel was Senior Trial Counsel at the Staff Counsel's Office of Commercial from 1985 through 1987; Lord submitted a declaration stating that he understood the nature of this action and his responsibilities as the class representative; and there was no showing of any antagonism between Lord and the class he sought to represent.

Finally, for the purposes of G.L.c. 93A, Section 9(2), and for the reasons already identified, Lord's injuries and his resulting claims against Commercial were sufficiently similar to the injuries sustained by the similarly situated class and sub-class defined by his pleadings. See Sniffin , 11 Mass. App. Ct. at 724-725.

Instead of carefully measuring this showing against all of the abovementioned criteria for class certifi-cation in light of the purposes of the Consumer Protec-tion Act, the motion judge denied certification based only upon the thin reeds of Lord's status as a third-year law student, his supposed inability to finance this class action suit, a surmise about the motivation in seeking class action status and the possible unfairness of bringing such an action against Westwood as well as Commercial(A.306-307). Lord submits that this unduly sparse analysis by the lower court of his class certification motion was wrong as a matter of law, incomplete in its scope and therefore an abuse of the discretion warranting reversal by this Court.

Even if these innocuous reasons relied upon by Judge van Gestel in his ruling to deny class certification were determinative (which Lord denies), they were without foundation. Lord's ability to shoulder the costs of this litigation was never seriously questioned. Moreover, Commercial has never persuasively demonstrated that Lord is either unwilling or unable to pay his pro rata share of the costs of litigation, or that he cannot finance this litigation in its entirety. As such, Lord's supposed financial inability to fund this suit is irrelevant and the motion judge was wrong to rely thereon for denying Lord's class certification motion. In Re VMS Securities Litigation , 136 F.R.D. 466, 479(N.D. Ill. 1991). Kaplan v. Pomerantz , 131 F.R.D. 118,124-125(N.D. Ill 1990). See Coggins v. New England Patriots Football Club, Inc. , 397 Mass. 525, 537-538(1986).

Nor was there any reason to deny Lord's motion based upon an implied improper motivation in pursing his claim or upon his counsel's unfounded inability or inexperience to pursue this litigation to its conclusion. Carpenter v. Hall , 311 F. Supp. 1099, 1114(S.D. Tex. 1970). Contrast Johnson v. Shreveport Garment Co. , 422 F. Supp. 526, 534-535(W.D. La. 1976).

For all of these reasons, then, the motion judge erred as a matter of law in denying Lord's motion for class certification.

2. The Trial Judge Erred In Denying Lord's Motion For Partial Reconsideration of the Order of February 27, 1997 , As Clarified on April 16, 1997 , Denying His Earlier Motion For Class Certification.

After hearing all of the evidence in this “test case,” the trial judge rightly found that Commercial was required by 211 CMR 94:09(2) to send Lord a notice of suspension of its physical damage coverage for his vehicle between December 5, 1991, and December 14, 1991, and that it failed to do so (A.317-318). She further determined that Commercial's conceded violations of 211 CMR 94.09(2) amounted to violations of G.L.c. 176D, and were therefore deceptive acts or practices within the meaning of 211 CMR 94:12(1), G.L.c. 176D, Section 3, and G.L.c. 93A, Sections 2 and 9(A.321-322). As she deter-mined, Commercial's violations “came about because of [its] practice of not sending out notices once a notice of policy cancellation was outstanding for nonpayment of premium”(A.322). While Commercial's custom or practice was “perhaps reasonable from a business standpoint,” the lower court ruled that there was no specific statute, regulation or any other authority which excused it

from full compliance with 211 CMR 94:09(2) once an insured was notified of imminent full policy cancellation (as opposed to partial coverage suspension) unless overdue premium[s] were paid. The provisions of G.L.c. 175, Section 113A, the strict statutory scheme for cancellation of policies due to nonpayment of premium do not afford refuge from the plain and compelling language of 211 CMR 94:09(2).

(A.322-323).

Having found that Commercial had committed an unfair and deceptive act or practice by sending out its suspension notice to Lord in a manner which was untimely for purposes of 211 CMR 94:09(2), an order for judgment entered in Docket No. 95-2721 in Lord's favor on Count IV of his second amended complaint (for violation of Chapter 93A) in the amount of $50.00 plus reasonable attorney's fees(A.323). As for Superior Court Docket No. 96-930, judgment entered for Lord on Count II in the amount of $50.00 plus his reasonable attorney's fees(A.323-324).

With Lord prevailing on his fundamental claim (and that of his putative principal class) that Commercial had committed an unfair and deceptive act or practice by programming its computer to print out notices of suspensions on the 28 th day of the 30-day notice period so that the earliest it provided notice to its policy-holders was on or after the deadline set by 211 CMR 94:09(2), when such notice could do no good for any policyholder, the class of plaintiffs entitled to relief had crystallized sufficiently for Judge Butler to recon-sider the issue of class certification.

Indeed, the logic of a “test case” involving just one plaintiff is that the issue of class certification may have to await a full explication of the facts through trial. Once the evidence is heard and findings have entered, a ruling on certification will have a solid foundation in fact.

Conclusion.

Respectfully submitted,