RIVER FARM REALTY TRUST; PAUL R. DERENSIS; LINDA DERENSIS, Plaintiffs, Appellants,
FARM FAMILY CASUALTY INSURANCE COMPANY, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S. District Judge]
T. Hargrove, with whom Brooks & DeRensis PC was on brief,
William A. Schneider, with whom Morrison Mahoney LLP was on
brief, for appellee.
Torruella, Lynch, and Kayatta, Circuit Judges.
Farm Realty Trust, Paul DeRensis, and Linda DeRensis
("River Farm") sued their home insurer, Farm Family
Casualty Insurance Company ("FFI"), alleging breach
of contract and violations of Massachusetts General Laws
chapters 93A and 176D in how the insurer handled their claim
for residential property damage. The district court entered
summary judgment for the insurer, concluding that, on this
record, no reasonable jury could find that FFI violated
chapter 176D or was in breach of the policy. We affirm.
we are reviewing the grant of summary judgment, we take all
inferences from the facts in favor of River Farm.
Carlson v. Univ. of New Eng., 899 F.3d 36,
43 (1st Cir. 2018). We add that there are no material facts
Farm is a realty trust which holds title to 262 South Main
Street in Sherborn, Massachusetts. Paul and Linda DeRensis
reside on this property. In October 2014, FFI issued Special
Farm Package "10" to River Farm Realty Trust for
the policy period of November 15, 2014, to November 15,
policy provides that, in the event of a covered property
loss, FFI would pay the least of the following:
(a) the applicable limit of liability; (b) an amount not
greater than [the insured's] interest in the property;
(c) the cost of repairing or replacing the property with
materials of equivalent kind and quality to the extent
practicable; (d) the amount computed after applying the
deductible or other limitation applicable to the loss; or (e)
the ACTUAL CASH VALUE of the property at the time of loss
(except as provided under the Replacement Cost Provision, if
policy defines "actual cash value" as "the
amount it would currently cost to repair or replace the
covered property with new material of like kind and quality,
less allowance for physical deterioration and depreciation,
including obsolescence." The liability limit under the
policy was $1, 263, 807 in total, and $729, 987 was the limit
of liability for the River Farm residence at 262 South Main
policy also contained an amendment that was specific to
Massachusetts. Under this amendment, the insured must provide
the insurer with a "signed, sworn statement in proof of
loss." That proof of loss triggers the obligation of the
insurer, within thirty days of the insured submitting this
statement, to "either pay the amount for which it shall
be liable, which amount if not agreed upon, shall be
ascertained by award of referees . . . or replace the
property with other of the same kind and goodness." If
the insurer fails to comply with the policy within thirty
days of receiving the statement of loss, it is liable for
"the payment of interest to the [insured] at a rate of
one percent over the prime interest rate on the agreed
Massachusetts amendment to the policy also allowed each of
the insured and the insurer to seek a "Reference"
if they disagreed as to the amount of loss. Massachusetts law
requires insurance contracts to include this procedure.
See Mass. Gen. Laws ch. 175, §
The award selected by a majority of the referees "shall
be conclusive and final upon the parties as to the amount of
loss or damage."
February 2015, ice dams formed at the River Farm property.
Due to the thawing and refreezing of the ice dams through
February and early March, water leaked into the residence.
The DeRensises first contacted FFI by phone on an unspecified
date around March 3, 2015, to notify it of the damage to the
River Farm residence but kept no documentation of the call.
FFI asserts that it has no formal record of such a call but
acknowledges that notice of damage to the residence was
April 27, 2015, Paul DeRensis emailed FFI about a separate
open claim that River Farm had filed with FFI. That same day,
Paul DeRensis received an email from Mark Chilton, an
adjuster from FFI who handled claims made by the DeRensises
under different FFI policies. The email stated:
I must apologize. Unfortunately when your claims arrived at
Farm Family they were set up as one singular claim where in
fact there are two separate and distinct claims being
asserted. Once I had recognized the issue of two claims and
separated them a record keeping issue came to light. . . .
[T]he independent claim numbers became interchanged. As you
can see one minor issue led to a number of problems. . . . I
will work to see you receive our coverage determination ASAP.
Again, I apologize for the confusion and delay.
a week, on May 4, 2015, FFI assigned Scott Howard, a Senior
Claim Representative, to the River Farm property damage
claim. That same day, Howard sent Paul DeRensis a letter
acknowledging receipt of the claim and asking Paul DeRensis
to give him a call if he had any concerns. Also on the same
day, Howard selected Dineley Claims Services, a Massachusetts
adjustment company that he had used in the past, to handle
the estimates needed. Dineley Claims Services assigned
adjuster Mark Whidden to the claim. Howard told Paul DeRensis
that FFI would be sending a representative to the property.
20, 2015, Whidden inspected the residence in the presence of
Paul DeRensis. Whidden prepared an estimate of the damage and
mailed it to the DeRensises in June 2015. Whidden estimated
that the loss to the River Farm residence, less the
deductible and depreciation, was $17, 825.95. Both River Farm
and the insurer were given a copy of this estimate. The
estimate included a statement that the adjuster had
"reached an agreement of scope for the repairs with the
insured as viewed at [the] inspection."
Farm did not immediately notify the insurer or adjuster that
it disputed this estimate in whole or in part. Nor did River
Farm inform either the insurer or the insurer's appraiser
that River Farm intended to contact contractors to get
independent estimates. Neither the insurer nor its adjuster
received any response to Whidden's estimate for close to
November 13, 2015, Linda DeRensis faxed a letter to Whidden,
stating that the DeRensises had consulted with three local
contractors, each of whom examined different aspects of the
damage, and "discovered that the estimate [Whidden]
provided [was] not consistent with local contractors'
estimates." That letter contained estimates of a total
loss of $154, 769.93. This letter was the first notice of any
disagreement by River Farm as to the insurer's estimate
of the recoverable loss.
insureds do not allege that Howard ever told them to go hire
these contractors. At deposition, Linda DeRensis stated that
she had not invited either Whidden or Howard to the property
to accompany the contractors.
appears that Dineley Claims Services' records show
receipt of the DeRensises' letter around November 16,
2015. When Whidden had not immediately replied to the letter,
Linda DeRensis called Whidden on an unspecified date between
November 13 and November 24.
received the November 13 letter on November 24 and Howard
immediately attempted to contact the DeRensises. That same
day, Howard emailed Paul DeRensis that (1) he had received
the contractor estimates in the November 13 letter, (2) he
had tried unsuccessfully to reach Paul DeRensis by phone
earlier that day and left him voicemail messages, and (3) he
requested a call to "see what we can do to get this
resolved for you." Paul DeRensis replied by email on
that same day stating:
Given how badly this claim handling has been botched, I am
consulting an attorney this morning, not withstanding the
requests from the adjuster to "start over" and
forget the past. . . . Every contractor we had to on our own
find to provide real estimates of this loss told us that the
adjusters were not acting in good faith, and from recent
conversations with them they present as basically scam men. .
. . I understand that in Massachusetts we may be entitled to
treble damages arising out of the bad faith botch up, plus
legal fees, so your exposure is well over a half million and
was the first written notice to the insurer of any claim that
its adjuster had acted in bad faith. Thereafter, the insurer
communicated with River Farm's attorney. On November 24,
Attorney James Hargrove emailed Howard to inform him that he
would be representing the DeRensises and stated that he hoped
to speak about the matter the following week.
November 23, Linda DeRensis sent an email to Richard Dineley
thanking him for taking her call, reiterating her
dissatisfaction with Whidden, and stating that Whidden's
estimate did not reflect the damage done to the River Farm
residence. Within two days, at the request of Linda DeRensis,
on November 25, 2015, Dineley assigned the DeRensises'
claim to a new adjuster. On December 1, 2015, Dineley sent
another email to Linda DeRensis asking her to contact an
adjuster named "Paul." But then, on December 2,
2015, Dineley explained he had made a mistake and confused
her claim with the claim of a different "Linda,"
and told her that he had assigned Bryan Grandmont to the
River Farm claim.A few minutes later, Grandmont emailed
Linda DeRensis that he was waiting for her attorney's
contact information to proceed with the claim.
Farm does not dispute that between November 24, 2015, and
February 16, 2016, Attorney Hargrove corresponded with
Howard, and vice versa, mostly via email and
phone. The plaintiffs say that their claim
was not resolved during this period from November to February
because FFI asked them to get a new estimate of the loss to
the River Farm residence.
emails reveal that on December 3, 2015, Attorney Hargrove
told Howard that he was waiting on a new estimate from a
local contractor. Howard replied the same day and told
Attorney Hargrove to contact him whenever he was ready to
discuss the claim. Howard and Attorney Hargrove then set up a
phone conversation on December 4, 2015. On December 17, 2015,
Howard emailed Attorney Hargrove to follow up on their phone
conversation and to ask if the plaintiffs had received the
new estimate. Attorney Hargrove responded via email the same
day and stated that he had not yet received the estimate.
Howard again followed up via email on January 29, 2016, to
check on the status of the new estimate.
estimate was sent to Howard until February 16, 2016, when
Attorney Hargrove emailed Howard a "preliminary
statement of loss and associated estimates," which
claimed the loss was $236, 438. This was a $81, 668.07
increase over the insured's estimate of loss of $154,
769.93 three months before.
same day, Howard acknowledged receipt of the estimate and
then contacted Attorney Hargrove on February 24, 2016, to set
up a time to discuss the claim. Given the increase in the
insured's estimate, FFI requested that its estimator
reinspect the River Farm residence. On February 29, 2016,
Howard confirmed that his independent adjuster, Grandmont,
would be present at the second inspection.
second inspection by the insurer's agent took place on
March 2, 2016, within fifteen days of the date of Attorney
Hargrove's new estimate. Present at this inspection were
Howard, Grandmont, Linda DeRensis, Attorney Hargrove, and
contractor Lincoln Barber.
March 18, 2016, FFI received and sent to Attorney Hargrove
Grandmont's new, increased estimate for FFI, which
determined that the loss to River Farm (but not including the
roof damage),  less the deductible and depreciation,
was $28, 005.21. FFI then issued payment to the DeRensises
for $28, 005.21. The DeRensises disagreed with this amount
and on March 28, 2016, Attorney Hargrove sent a letter to