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Where plaintiff insurers seeking a declaratory judgment under G.L.c. 176D have moved to compel production of case assessment materials including information from jury consultants and focus groups, that motion should be denied because the requested documents and materials have no potential relevance.

“John Rooney was severely injured in 2014 while working on the reconstruction of the Longfellow Bridge, which crosses the Charles River between Boston and Cambridge. In Rooney’s underlying personal injury lawsuit against the general contractor, a jury awarded compensatory damages of $26 million. Judgment entered in August 2021 for roughly $45.5 million, including interest and costs.

“Peerless Insurance Company, Liberty Mutual Insurance Company, and Ohio Casualty Insurance Company (the ‘Liberty Insurers’) provided liability insurance coverage to the general contractor under several policies. Other insurers (the ‘AIG Insurers’) had provided additional excess liability coverage. Rooney ultimately settled the underlying claims for $27 million, with $19.5m being paid by the Liberty Insurers and $7.5 million by the AIG Insurers.

“After Rooney threatened to sue the Liberty Insurers for allegedly failing to make a reasonable settlement offer before trial in the underlying case, in violation of G.L.c. 176D, §3(9)(f), the Liberty Insurers filed this action seeking a declaratory judgment that they are not liable to Mr. Rooney under G.L.c. 93A because they ‘reasonably determined that liability was not reasonably clear.’ Rooney asserts counterclaims that the Liberty Insurers committed unfair settlement practices in violation of G.L.c. 176D by failing to make a reasonable settlement offer once liability became reasonably clear, and also by not reasonably and promptly investigating Rooney’s claim. Rooney seeks treble damages plus attorneys’ fees and costs.

“The Liberty Insurers have now moved to compel production of case assessment materials prepared by Rooney’s trial counsel in connection with the underlying personal injury action, ‘including information from jury consultants and focus groups.’ …

“If focus group results obtained and other case assessments performed by plaintiffs’ counsel in a personal injury case are not shared with the defendant or their insurer, then those materials have no possible bearing on whether the facts known or available to the insurer showed the liability was reasonably clear. … Assessments and information that the insurer knew nothing about and could not have obtained at the time are irrelevant.

“For this reason, the Liberty Insurers have not shown that they are entitled to compel Rooney to produce such materials in this case.

“To the extent the Liberty Insurers are suggesting that they are entitled to learn whether Rooney likely would have accepted some settlement offer before the underlying case went to trial, that too is not relevant. …”

Peerless Insurance Company, et al. v. Rooney (Lawyers Weekly No. 09-051-24) (3 pages) (Salinger, J.) (Suffolk Superior Court) (Docket No. 2284CV00652-BLS2) (May 24, 2024).

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