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Carlo Zalewski crashed his forty-ton tanker-trailer, filled with liquid asphalt, into Marcia’s Toyota.  The impact threw Marcia’s car one hundred feet down into an embankment ditch and headfirst into a large tree.




I was struck with the thought that without money from Zalewski’s insurance carrier and without excellent health care insurance, how could Marcia, or any blameless victim, receive the best medical care after a catastrophic injury?  For a blameless victim without the financial resources for home modifications and transportation, without health care insurance, and without compensation for the lost wages of a patient advocate who was a spouse, Zalewski’s insurance carrier would be able to exert enormous, unrelenting financial pressure on us.



Spinal Fusion Surgery—Report of Operation.  “Midline incision from T-6–L-3; midline fascia was totally ripped in half by trauma.  In fact, a finger can be placed down between the spinous process of what appeared to be T-12 and T-11 and perhaps L-1 right through the subcutaneous tissue.  In any case, the remaining spinal processes from L-2 up to T-9 were stripped of surrounding soft tissue and muscle.  Drill used to locate screws on vertebra and attach two titanium rods.”



Almost immediately, however, I realized how utterly unprepared I was to take care of her, now that she was home.



“If Zurich would give us some money, we could have someone on the weekend care for me so you don’t have to.”




At seven forty-five, Marcia was on the commode.  At ten thirty, she was back in bed.  She had developed some new blisters around the anus, several of which looked like they could open at any time.  I had the unpleasant duty of telling her that she needed to stay in bed all day.  She was so unhappy.  I had to give her a Valium to calm her down.  She said those words again:  “I feel like dying.”  It was so sad.




“This defendant made a mistake.  We all make mistakes.  I am sure there is not anything I can do to make it worse for him.  Beyond that, there is not much I can do here. Mr. Zalewski in this matter, Docket Number 0257CR0260, on the charge of negligent operation of a motor vehicle, the matter is ‘Continued Without a Finding’ for two years to November 25, 2004.”




 “A few weeks ago, I called you to advise that we were offering up our $2,000,000 policy limits.  I did not state that Zurich North America was in any way relinquishing our defense obligations to the insured pursuant to the guidelines of the Business Auto Policy.  However, as you know, we are offering up the full limits of our auto policy based on the exposure of this case, and the insured is anxious for you to take a position so a response can be made to the demand previously presented on behalf of the plaintiff.  Regardless of whether or not you have our position in writing, you are fully aware of our assessment in this matter and should have no problem of proceeding accordingly in the best interests of our mutually insured.”




"AIG, in short, runs afoul of Chapter 176D, ¶(9)(f) by failing to respond substantively to underlying plaintiffs’ settlement demand.  You advised that AIG cannot violate this statute because the insurer fully protects the interests of its insured, BMCA.  AIG’s statutory obligations, however, run not only to its policyholder but also directly to the underlying claimants."




"Your Honor, it appears that this entire case against Zurich is about time and timing.  It is not a case about Zurich appealing a verdict.  It is not a case about Zurich forcing people to go through unnecessary depositions or forcing them to testify at trial.  It is a question of when Zurich took steps to effectuate settlement in accordance with Chapter 176D.  Zurich first received notice of the Rhodes claim in August of 2002."




“We (Zurich) know plaintiffs would never have accepted Zurich’s $2 million if it was offered the day after the accident, six months after the accident, a year after the accident, or even beyond that.”




“She was a blameless victim, you know, whose entire life was changed.”



"This Court finds that Zurich did not violate its duty as the primary insurer under M.G.L. c. 176D  to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.”



"This Court finds that AIG, after the issuance of the final judgment, violated their duty as the excess insurer under M.G.L. c. 176D to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear”



“Conclusion.  We recognize that $22 million in c. 93A damages is an enormous sum, but the language and history of the 1989 amendment to c. 93A leave no option but to calculate the double damages award against AIGDC based on the amount of the underlying tort judgment".



“The record also supports the judge’s determination that Zurich, the primary insurer, satisfied its duty to effectuate settlement by tendering the policy limits to AIGDC, where it was clear that the case would not settle for an amount within the primary policy limits, necessitating the involvement of the excess insurer.”





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