United States Court of Appeals For the First Circuit

No. 19-1212

CLARENDON NATIONAL INSURANCE COMPANY,

Plaintiff, Appellant,

v.

PHILADELPHIA INDEMNITY INSURANCE COMPANY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Torruella, Lynch, and Kayatta, Circuit Judges.

John W. Dennehy, with whom Dennehy Law was on brief, for appellant. David W. Zizik, with whom Sulloway & Hollis PLLC was on brief, for appellee.

April 1, 2020 TORRUELLA, Circuit Judge. In this diversity case,

Clarendon National Insurance Company ("Clarendon") appeals the

district court's entry of summary judgment against its claim that

Philadelphia Indemnity Insurance Company ("Philadelphia") breached

its contract with Lundgren Management Group, Inc. ("Lundgren")

when Philadelphia declined to tender a defense to Lundgren, whom

Philadelphia had insured from 2007 to 2008. Lundgren had assigned

these claims to Clarendon. The district court determined that

because the property damage allegations were excluded by the prior

policy period exclusion, the complaint did not give rise to a duty

to defend. Furthermore, Clarendon challenges the summary

dismissal of its additional claims for contribution and alleged

violations of Massachusetts General Laws, chapters 93A and 176D,

which the district court concluded should also be dismissed because

they were premised on the incorrect notion that Philadelphia had

breached its duty to defend. After careful consideration, we

affirm.

I. Background

A. Factual Background

Clarendon, a New York corporation, provided indemnity

insurance to Lundgren, a building management corporation, from

June 24, 2004, to June 24, 2005. Subsequently, Philadelphia, a

Pennsylvania corporation, provided insurance for Lundgren from

-2- September 1, 2007, to September 1, 2008. Philadelphia's insurance

policy with Lundgren contained the following provision that

excludes coverage for damage beginning prior to the inception of

the insurance policy:

b. This insurance applies to "bodily injury" and "property damage" only if: . . . . (3) Prior to the policy period, no insured listed . . . and no "employee" authorized by you to give or receive notice of an "occurrence" or claim, knew that the "bodily injury" or "property damage" had occurred, in whole or in part. If such a listed insured or authorized "employee" knew, prior to the policy period, that the "bodily injury" or "property damage" occurred, then any continuation, change or resumption of such "bodily injury" or "property damage" during or after the policy period will be deemed to have been known prior to the policy period.

On February 12, 2009, Denise Doherty ("Doherty"), a

resident in a Lundgren-managed building, filed a complaint in the

Superior Court for Suffolk County, Massachusetts, against the

Admirals Flagship Condominium Trust ("Admirals"), certain named

trustees of Admirals, Lundgren, and Construction by Design, LTD

("CBD"). In the complaint, Doherty asserted negligence claims

against Lundgren stemming from alleged water infiltration into her

condominium. On April 29, 2009, Doherty filed an amended

complaint that proffered new factual information and asserted

additional claims of misrepresentation, nuisance, trespass, and

breach of contract under Massachusetts law ("the Underlying

Complaint").

-3- According to the Underlying Complaint, in February 2002,

Doherty purchased a condominium unit in a building owned by

Admirals. Admirals contracted with Lundgren to serve as the

property manager of the building. In turn, Lundgren contracted

CBD to maintain and repair the building. "During the year 2004[,]

leaks developed in the roof above [Doherty's] unit and/or the

exterior area of the structure just below the roof line." Doherty

alleged that subsequent repairs to the ceiling were "not made in

a timely or appropriate manner." In 2005, a Lundgren employee

notified Doherty that the threshold leading to her condominium's

deck was rotting. In February 2006, Doherty discovered a mushroom

and water infiltration on "said threshold" and notified Lundgren.

At that time, Lundgren asked CBD to replace the rotting threshold.

According to Doherty, CBD "did not do this repair in a timely

manner and left the debris exposed in [her] bedroom."

On March 10, 2006, Gordon Mycology Laboratory, Inc.,

hired by Lundgren to conduct mold testing, "issued a report

disclosing the presence of hazardous mold in unsafe levels in

[Doherty's] unit caused by water intrusions and chronic dampness."

Doherty complained that although Lundgren had assured her that the

mold problem would be resolved, the cleanup was "ineffectual."

According to Doherty, "Lundgren . . . promised [her] that [CBD]

would stop the leaks into the unit but it [did] not [do] so." On

-4- September 2, 2008, Doherty's doctor ordered her to leave the

condominium and not to return unless the mold was eliminated and

the leaks were repaired.

Doherty alleged that she suffered damages as a result of

the defendants' actions, including adverse health effects, loss of

personal belongings, loss of her home, loss of value to her

condominium unit, and loss of income.

On June 30, 2009, shortly after the Underlying Complaint

was filed, Lundgren tendered the defense of the Underlying

Complaint to Philadelphia. In a letter dated July 24, 2009,

Philadelphia denied coverage. It stated that "there are no

allegations in the complaint that occurred within our policy

period." In addition, it stated that the "damages sought in this

matter pertain to exposure to mold," yet, "the policy specifically

excludes 'property damage' . . . and any damages that result from

'fungi' as defined in the policy" 1 (hereinafter the "mold

exclusion"). Clarendon, on the other hand, financed the defense

of Lundgren with a Reservation of Rights to exclude mold and fungus

damage.

1 The policy defined "fungi" as "any type or form of fungus, including mold or mildew and any mycotoxins, spores, scents or byproducts produced or released by fungi."

-5- On October 7, 2014, North American Risk Services,

Clarendon's third-party claims administrator, demanded that

Philadelphia contribute to the cost of defending Lundgren. After

the Doherty case eventually settled, Philadelphia again denied

Clarendon's claim for contribution in a letter dated November 3,

2014, admitting that "potentially" the mold exclusion did not apply

to the allegations in the Underlying Complaint, but insisting that

"the alleged damage occurred prior to the inception of

[Philadelphia]'s policy, . . . during the Clarendon policy period."

On or about March 17, 2015, Clarendon received an assignment from

Lundgren of all the claims arising from the Doherty matter.

B. Procedural Background

On November 29, 2017, Clarendon filed suit against

Philadelphia in the Superior Court for Suffolk County,

Massachusetts, based upon Philadelphia's denial of coverage to

Lundgren. Clarendon brought three claims: "Contribution"

(Count I), "Breach of Contract" (Count II), and "93A/176D

Violations" (Count III). In essence, Clarendon's complaint stated

that Philadelphia breached its contract with Lundgren when it

"improperly denied coverage for defense and indemnity," failed to

contribute "its pro rata share for either coverage," and "failed

to investigate the matter." On December 21, 2017, Philadelphia

removed the case to the United States District Court for the

-6- District of Massachusetts.

The parties agreed to discovery in phases. Discovery

Phase I was for the purpose of collecting information related to

Philadelphia's duty to defend Lundgren, and later phases were

scheduled for remaining issues in the case. On May 21, 2018,

Philadelphia served its Rule 26(a)(1) initial disclosures on

Clarendon. Clarendon did not provide its initial disclosures and

did not conduct any discovery. Philadelphia then filed a motion

for summary judgment on July 2, 2018, which Clarendon opposed. On

January 8, 2019, the district court granted summary judgment for

Philadelphia on all claims. Clarendon Nat'l Ins. Co. v. Phila.

Indem. Ins. Co., No. 17-12541,

, at *4 (D. Mass.

Jan. 8, 2019). Regarding the breach of contract claim -- which

was premised on the allegations that Philadelphia breached its

contract with Lundgren when it "improperly denied coverage for

defense and indemnity" -- the court noted that Philadelphia's

policy only covered damages caused by "bodily injury" or "property

damage" that occurred during the policy period, and that did not

result from the "continuation, change or resumption" of "bodily

injury" or "property damage" "deemed to have been known prior to

the policy period." Id. at *3 (citation omitted). The court

further noted that the Underlying Complaint alleged damages that

began in 2004, "well before the beginning of Philadelphia's policy

-7- period on September 1, 2007," and continued throughout the years.

Id. Accordingly, the court concluded that the damages were not

covered by Philadelphia's policy. Id.

The court also rejected Clarendon's contention that the

Underlying Complaint could be read to suggest that the original

leaks arising prior to the policy period were adequately repaired

and "new leaks" had arisen during the period of Philadelphia's

policy, reasoning that the Underlying Complaint clearly states

that "the leaks and resulting problems were continuous throughout

the relevant period," and "Philadelphia's policy also excludes

coverage for damage that resumes during the policy period if the

damage began and was known before the period." Id. Furthermore,

the court noted that the Underlying Complaint "does not allege

that Lundgren's repair efforts were ever successful at abating the

leaks entirely, [or] even temporarily, such that leaks occurring

during the policy period could have been considered new leaks."

Id. The court concluded that, because the Underlying Complaint

did not contain allegations "'reasonably susceptible of an

interpretation that they state' a claim covered by Philadelphia's

policy," Philadelphia did not have a duty to defend or indemnify

its insured and, thus, Clarendon's breach of contract claim failed.

Id. at *4 (quoting Cont'l Cas. Co. v. Gilbane Bldg. Co.,

(Mass. 1984)).

-8- Finally, the court held that Clarendon's additional

claims for contribution and under Massachusetts General Laws,

chapters 93A and 176D also failed because they were premised on

the incorrect notion that Philadelphia had breached its duty to

defend and indemnify Lundgren in the Doherty case.

Accordingly, the court entered summary judgment dismissing

Clarendon's complaint.

On January 17, 2019, Clarendon moved for

reconsideration, which the district court denied on January 24,

2019. Clarendon Nat'l Ins. Co. v. Phila. Indem. Ins. Co., No. 17-

12541,

, at *2 (D. Mass. Jan. 24, 2019).

Thereafter, on February 25, 2019, Clarendon filed a timely notice

of appeal.2

II. Discussion

We review a district court's grant of summary judgment

de novo, construing the record in the light most favorable to the

nonmovant and resolving all reasonable inferences in that party's

favor. Ocasio-Hernández v. Fortuño-Burset,

(1st Cir.

2 Although Clarendon's notice of appeal included the court's ruling on its Motion for Reconsideration, Clarendon failed to meaningfully discuss that ruling in its appellate briefs. As such, any arguments regarding the court's ruling on its Motion for Reconsideration are waived. United States v. Zannino,

(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

-9- 2015); Mesnick v. Gen. Elec. Co.,

(1st Cir. 1991)

(quoting Griggs-Ryan v. Smith,

(1st Cir. 1990)).

Summary judgment may be granted only when "there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Ameen v. Amphenol Printed Circuits,

Inc.,

(1st Cir. 2015) (quoting Barclays Bank PLC

v. Poynter,

(1st Cir. 2013)). The party opposing

summary judgment "bears 'the burden of producing specific facts

sufficient to deflect the swing of the summary judgment scythe.'"

Theidon v. Harvard Univ.,

(1st Cir. 2020)

(quoting Mulvihill v. Top-Flite Golf Co.,

(1st

Cir. 2003)). "For this purpose, [it] cannot rely on 'conclusory

allegations, improbable inferences, acrimonious invective, or rank

speculation.'"

(quoting Ahern v. Shinseki,

(1st Cir. 2010)).

A. Duty to Defend

On appeal, Clarendon argues that the district court

erred in its interpretation of Massachusetts law and its dismissal

of Clarendon's breach of contract claim, which Clarendon contends

was premised on the alleged breach of Philadelphia's duty to defend

Lundgren. Specifically, citing Metropolitan Property and Casualty

Insurance Company v. Morrison,

(Mass. 2011)

("Metropolitan"), Clarendon posits that under Massachusetts law,

-10- "there is no requirement that the facts alleged in the complaint

specifically and unequivocally make out a claim within the

coverage."

at 667 (quoting Billings v. Commerce Ins. Co.,

(Mass. 2010)). Instead, according to

Clarendon, a duty to defend should be found unless "the express

language in the complaint unequivocally demonstrate[s] that the

insurer does not owe coverage." And, here, its argument goes, the

Underlying Complaint's generalized allegations "can be read to

infer coverage," thus triggering Philadelphia's duty to defend

Lundgren in the suit.

In support of the contention that the Underlying

Complaint is reasonably susceptible to an interpretation entailing

coverage, Clarendon argues that the Underlying Complaint specifies

the date for only one leak: a "leak near a roofline," which

occurred "in 2004." It emphasizes that there is no "specific

information as to the time and the location of other leaks," and

that the Underlying Complaint fails to provide information about

"when each leak occurred, what measures were taken to repair them,

and whether any of the repairs were effective." Thus, in

Clarendon's view, the Underlying Complaint's assertion of "several

leaks" suggests that there were multiple issues over time.

Accordingly, this assertion is reasonably susceptible to an

interpretation in which "a new leak occurr[ed] during

-11- Philadelphia's policy period." It further argues that even if the

exact same 2004 leak resumed after CBD repaired it, "[a] reasonable

inference is that Lundgren would anticipate the repairs to be

corrected and would not know that they would reoccur after repairs

were undertaken."

In addition, Clarendon posits that Philadelphia, as an

insurer, had an independent duty to investigate the "claim or loss"

regardless of the language in the Underlying Complaint. To comply

with that duty, Clarendon asserts that Philadelphia should have

"take[n] steps to obtain a copy of the [original] complaint" and

should have "sp[oken] to its insured." According to Clarendon,

Philadelphia's failure to investigate, to file an interpleader

action, and to draw inferences in favor of the insured, together

warrant a "remand[] in its entirety" because each of those failures

amounts to a breach of the duty to defend.

Finally, Clarendon argues that Philadelphia should be

estopped from denying coverage by relying on the "known loss"

justification -- the policy provision establishing that damages

occurring during the policy period are not covered if they result

from the "continuation, change or resumption," of damages known

prior to the policy period -- because, according to Clarendon,

Philadelphia did not rely on those grounds to deny coverage in

2009 when it initially considered Lundgren's claim. Clarendon

-12- posits that, because Philadelphia denied coverage in 2009 based on

the "mold exclusion" and improperly induced reliance on this

exclusion, Philadelphia cannot now shift its denial justification

to an "entirely new" "known loss" justification in its 2014 letter.

According to Clarendon, Philadelphia should have initially

defended its insured and then sought a declaratory judgment on its

lack of coverage claim. We address each argument in turn.

The parties agree that Massachusetts law governs. Under

Massachusetts law, an insurer's duty to defend "is determined based

on the facts alleged in the complaint, and on facts known or

readily knowable by the insurer that may aid in its interpretation

of the allegations in the complaint." Metropolitan,

; Bos. Symphony Orchestra, Inc. v. Commercial Union Ins.

Co.,

(Mass. 1989). To establish an insurer's

duty to defend and investigate allegations against an insured, a

plaintiff must demonstrate that the "allegations in [the

underlying complaint] are reasonably susceptible of an

interpretation that states or roughly sketches a claim covered by

the policy terms." Metropolitan,

(quoting

Billings,

). The underlying complaint need not

"unequivocally make out a claim within the coverage," but rather,

"need only show, through general allegations, a possibility that

the liability claim falls within the insurance coverage,"

-13- Billings,

(quoting Sterilite Corp. v. Cont'l

Cas. Co.,

(Mass. App. Ct. 1983)), regardless

of "the possibility that the underlying claim may ultimately fail,

or that the merits of the claim are weak or frivolous." Holyoke

Mut. Ins. Co. in Salem v. Vibram USA, Inc.,

(Mass. 2018). Where there is uncertainty "as to whether the

pleadings include or are reasonably susceptible to an

interpretation that they include a claim covered by the policy

terms," the uncertainty "is resolved in favor of the insured," and

the insurer's duty to defend will attach "until [the insurer]

obtains a declaratory judgment of no coverage." Deutsche Bank

Nat'l Ass'n v. First Am. Title Ins. Co.,

, 642 (Mass.

2013).

However, where the allegations within the underlying

complaint "lie expressly outside the policy coverage and its

purpose," an insurer is relieved of its duty to defend and

investigate. Metropolitan,

(quoting Herbert A.

Sullivan, Inc. v. Utica Mut. Ins. Co.,

, 531

(Mass. 2003)). Additionally, "[e]ven where the allegations in the

complaint state or roughly sketch a claim covered by" an insured's

policy, no duty to defend and investigate arises if "there is

'undisputed, readily knowable, and publicly available information'

in court records that demonstrates that the insurer has no duty to

-14- defend" and if "there is 'an undisputed extrinsic fact that takes

the case outside the coverage and that will not be litigated at

the trial of the underlying action.'"

(quoting Billings,

n.8, 205). Moreover, although an initial

complaint may contain allegations which give rise to a duty to

defend, the duty no longer exists when the complaint is amended to

remove the triggering allegations. See Herbert A. Sullivan, Inc.,

788 N.E.2d at 531.

A close read of the Underlying Complaint and the record

shows that the district court did not err by granting summary

judgment for Philadelphia on the duty to defend issue. Examined

according to Massachusetts law, the allegations in the Underlying

Complaint are not "reasonably susceptible of an interpretation

that states or roughly sketches a claim covered" by Philadelphia's

policy. Metropolitan,

(quoting Billings,

). The parties do not dispute that Philadelphia's

policy expressly excludes coverage for property damage known prior

to Philadelphia's period of coverage. To establish that the

Underlying Complaint "roughly sketches" a potentially covered

event, Clarendon points to small differences in grammatical

structure between paragraphs and ambiguities arising from missing

information about the time and place of various leaks. Neither

of these assertions give rise to a rough sketch of a covered claim.

-15- Clarendon's reliance on the use of the word "leak" (in

singular) in paragraph seventeen of the Underlying Complaint to

suggest that the use of the term "leaks" in other paragraphs3 could

reasonably be interpreted as referencing new distinct leaks

arising from different structural problems is inconsistent with a

reading of the Underlying Complaint as a whole. Paragraph sixteen

of the Underlying Complaint clearly states that "[d]uring the year

2004 leaks developed in the roof above [Doherty's] unit and/or the

exterior area of the structure just below the roof line."

(Emphasis added). The Underlying Complaint then goes on to discuss

the water infiltration problems caused by these "leaks" that

started in 2004, including the fact that "[t]he roof leak caused

ceiling cracks and loosening plaster in [Doherty's] unit," as

stated in paragraph seventeen. Contrary to Clarendon's

contentions, the fact that the Underlying Complaint does not

mention the precise location, time, and repairs undertaken is

insufficient to show that Doherty's claim "possib[ly] . . . falls

within the insurance coverage." See Billings,

.

The Underlying Complaint unambiguously indicates that the 2004

repairs were not made in an "appropriate manner," and that Doherty

had continued to request "complete repair of all leaks . . . to no

3 See Underlying Complaint at ¶¶ 16, 24, 26, and 27 ("leaks"); 17 ("leak"); 28 ("all leaks").

-16- avail." See Underlying Complaint at ¶¶ 17 and 28. Further, it

references "chronic dampness" occurring at least as early as

March 10, 2006, before the inception of Philadelphia's policy.

See Underlying Complaint at ¶¶ 23 and 28. Nothing in the Underlying

Complaint is reasonably susceptible to an interpretation in which

the leaks were resolved prior to the inception of Philadelphia's

policy. Clarendon, therefore, has failed to show that the

Underlying Complaint provides the "rough sketch" of a covered event

necessary to trigger the duty to defend. Metropolitan,

.4

Furthermore, contrary to Clarendon's contentions,

Philadelphia did not have an independent duty to investigate claims

4 Although its arguments are not a model of clarity, Clarendon also seems to suggest that Lundgren could rely on CBD to resolve the leaks, negating its knowledge of a problem, and thus each resumption would be a "new leak" or new "property damage" under the policy. This argument, however, is not consistent with the plain terms of the insurance policy, which provides in relevant part: "If such a listed insured or authorized 'employee' knew prior to the policy period, that the 'bodily injury' or 'property damage' occurred, then any continuation, change or resumption of such 'bodily injury' or 'property damage' during or after the policy period will be deemed to have been known prior to the policy period." There is no dispute that the Underlying Complaint alleges that Lundgren initially knew about the property damage and made representations about their repair. See Underlying Complaint at ¶¶ 18, 24. Regardless of its reliance on CBD to effectuate repairs and whether Lundgren knew or reasonably believed them to be effective, under the plain terms of the policy, the damages would be a "resumption of such 'property damage'" of which Lundgren was initially aware.

-17- that were not reasonably susceptible of an interpretation that

states or roughly sketches a claim covered by its policy. See

("[W]hen the allegations in the underlying complaint

'lie expressly outside the policy coverage and its purpose, the

insurer is relieved of the duty to investigate.'" (quoting

Billings,

)); see also Nascimento v. Preferred

Mut. Ins. Co.,

(1st Cir. 2008). While Clarendon

is correct that Massachusetts law does look to facts "known or

readily knowable by the insurer" as well as to the underlying

complaint to determine whether a duty to defend has been triggered,

information that is "readily knowable" is distinct from the duty

to investigate. Metropolitan,

-68 (quoting

Billings,

). This Court has held that

information known or readily knowable does not independently

trigger the duty to defend under Massachusetts law when the

complaint does not "adumbrate a claim." Open Software Found.,

Inc. v. U.S. Fidelity & Guar. Co.,

(1st Cir.

2001) (internal quotation marks omitted) ("Massachusetts courts

generally use extrinsic facts . . . to aid interpretation of the

complaint, and not as independent factual predicates for a duty to

defend. . . . We do not consider them as independent grounds for

a duty to defend."); accord Bos. Symphony,

.

Philadelphia therefore did not breach either its duty to

-18- investigate or its duty to defend Lundgren.

Finally, we refuse to address, on waiver grounds, the

merits of Clarendon's argument that Philadelphia is estopped from

relying on the "known loss" justification to deny coverage because,

according to Clarendon, Philadelphia changed its grounds for

denial of coverage between 2009 and 2014. Contrary to its

contentions, Clarendon did not properly raise that claim in the

district court. While Clarendon may have flagged discrepancies

between the 2009 and 2014 denial-of-coverage letters in the

district court, it never affirmatively linked these discrepancies

to an estoppel argument nor explained how they resulted in

Lundgren's reliance. A litigant's mere mentioning of facts that

could potentially make up a claim is insufficient to effectively

raise the argument. United States v. Slade,

(1st Cir. 1992) ("Passing allusions are not adequate to preserve

an argument in either a trial or appellate venue.").

B. Claims for contribution and for alleged violations of Massachusetts General Laws, chapters 93A and 176D

Next, Clarendon challenges the district court's entry of

summary judgment dismissing its contribution claim (Count I) and

its claim for alleged violations of Massachusetts General Laws,

chapters 93A and 176D (Count III).5 Despite mentioning in its

5 Clarendon interchangeably refers to "consumer protection claim"

-19- opening brief's statement of the case that it was seeking appellate

review of the dismissal of its contribution claim, Clarendon did

not discuss this elsewhere in its briefs. We thus deem the

contribution claim waived. See United States v. Zannino,

(1st Cir. 1990). Even if not waived, Clarendon's challenge

to the summary dismissal of its contribution claim would fail

inasmuch as it was premised on the incorrect notion that

Philadelphia had breached its duty to defend and to indemnify

Lundgren in the Doherty case and thus needed to proportionately

contribute to Clarendon, who had satisfied an obligation common to

both Clarendon and Philadelphia. See Ins. Co. of the State of Pa.

v. Great N. Ins. Co.,

(Mass. 2016) ("Under

the doctrine of equitable contribution, where multiple insurers

provide coverage for a loss of an insured, an insurer who pays

more than its share of the costs of defense and indemnity may

require a proportionate contribution from the other coinsurers.").

We now turn to the remaining claim. Clarendon first

argues that the district court improperly dismissed its claim for

alleged violations of Massachusetts General Laws, chapters 93A and

176D because "Philadelphia's Motion for Summary Judgment did not

seek dismissal of [that] claim" and, thus, "Clarendon was not

and "bad faith claim" to describe Count III.

-20- afforded an opportunity to oppose [its] dismissal." In addition,

Clarendon claims that if Philadelphia had conducted an

investigation, "it would have learned that Lundgren did not 'know'

of an ongoing loss at the time [that] the [Underlying] Complaint

was filed because CBD had undertaken repairs and abated several

issues." It asserts that the Underlying Complaint "includes

allegations of personal property damage caused by water alone,

which would not result in the personal property damage being

excluded by the mold exclusion." It maintains that both the

failure to investigate and the 2009 denial on the basis of the

mold exclusion constitute bad faith that survives regardless of

whether Philadelphia had a duty to defend. We address Clarendon's

procedural and substantive challenges in turn.

Contrary to Clarendon's contentions, in its motion for

summary judgment, Philadelphia did request the dismissal of

Clarendon's claim for alleged violations of Massachusetts General

Laws, chapters 93A and 176D.6 Specifically, it stated:

"Phase 1" is intended to focus on the duty to defend issue. However, because [Philadelphia] had no duty to defend the insureds in the underlying Suffolk Superior Court action, Clarendon's claims against [Philadelphia] in the other two counts (for equitable contribution and alleged violations of Chapter 93A/176D) fail as a matter of law, and should also be dismissed.

6 So did Philadelphia request the dismissal of Clarendon's contribution claim.

-21- Philadelphia also briefed the issue in its memorandum of law in

support of summary judgment. There, Philadelphia stated that if

the district court were to grant summary judgment as to the duty

to defend issue, then:

[A]s a matter of law Clarendon cannot prove that it is entitled to "contribution" as alleged in Count I, or that [Philadelphia] violated M.G.L. ch. 93A or 176D [ ] as alleged in the third count . . . of Clarendon's Complaint. The Court should therefore grant summary judgment and dismiss the Plaintiff's Complaint in its entirety.

Philadelphia then proceeded to discuss why those two claims failed

as a matter of law. The issue was thus squarely before the

district court, and Clarendon had the opportunity to address it.

In fact, Clarendon did address Philadelphia's arguments in its

opposition to summary judgment, including the merits of its claim

for alleged violations of chapters 93A and 176D.7 Accordingly,

Clarendon's contention that the district court abused its

discretion in dismissing Count III without giving it an opportunity

to oppose such dismissal lacks merit.

We now turn to Clarendon's substantive challenge.

Massachusetts General Laws chapter 176D, section 2 prohibits

insurance providers from engaging in "an unfair method of

7 Clarendon also addressed the merits of its contribution claim, stating that "[t]he contribution claim [Count I] survives the Motion because the defense is based upon Philadelphia's [duty to defend] argument succeeding, and that argument fails."

-22- competition or an unfair or deceptive act or practice in the

business of insurance," while section 3(9) provides specific

instances of conduct that violate this mandate.8 Mass. Gen. Laws

ch. 176D, §§ 2, 3(9). Massachusetts General Laws chapter 93A, the

Massachusetts Consumer Protection Law, prohibits "[u]nfair methods

of competition and unfair or deceptive acts or practices in the

conduct of any trade or commerce," Mass. Gen. Laws ch. 93A, § 2(a),

and "provides a cause of action for business plaintiffs injured by

unfair trade practices," Brazas Sporting Arms, Inc. v. Am. Empire

Surplus Lines Ins. Co.,

(1st Cir. 2000); Mass. Gen.

Laws ch. 93A, § 11.9 "For a consumer plaintiff, a violation of

8 Neither party specifically points to a provision in chapter 176D, section 3, for the purpose of this appeal. Presumably, Clarendon's claims arise under sections 3(9)(a) (prohibiting "misrepresenting pertinent facts or insurance policy provisions relating to coverages at issue") and 3(9)(n) (prohibiting "failing to provide promptly a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim"). 9 Mass. Gen. Laws ch. 93A, § 11 states that:

Any person who engages in the conduct of any trade or commerce and who suffers any loss of money or property, real or personal, as a result of the use or employment by another person who engages in any trade or commerce of an unfair method of competition or an unfair or deceptive act or practice declared unlawful by section two or by any rule or regulation issued under paragraph (c) of section two may, as hereinafter provided, bring an action in the superior court . . . whether by way of original complaint, counterclaim, cross-claim or third-party action for damages and such equitable relief, including an injunction, as the

-23- chapter 176D, section 3(9) constitutes a violation of chapter 93A,"

whereas "a plaintiff engaged in 'trade or commerce,' [such as

Clarendon,] may only use a violation of chapter 176D as evidence

of a chapter 93A violation." River Farm Realty Tr. v. Farm Family

Cas. Ins. Co.,

(1st Cir. 2019) (citing Polaroid

Corp. v. Travelers Indem. Co.,

(Mass. 1993)).

Under both chapter 176D and chapter 93A, insurers are "held to the

duty of good faith and fair dealing." McGovern Physical Therapy

Assocs., LLC v. Metro. Prop. & Cas. Ins. Co.,

(D. Mass. 2011). To establish a claim of bad faith, a plaintiff

must produce factual evidence of the defendant's knowledge and

intent. O'Leary-Alison v. Metro. Prop. & Cas. Ins. Co.,

(Mass. App. Ct. 2001). Although an insurer's

denial of coverage based on an unreasonable interpretation of

policy terms may constitute bad faith, "plausible, although

ultimately incorrect" interpretations of an insured's policy

coverage do not. See Bos. Symphony,

.

Clarendon's claim is premised on Philadelphia's alleged

failure to investigate the allegations in the Underlying Complaint

and to adequately inform its insured of the basis for the denial.

We have already rejected Clarendon's failure to investigate claim.

We now similarly reject Clarendon's contention that Philadelphia

court deems to be necessary and proper.

-24- failed to adequately inform its insured of the basis for its denial

of coverage. We note that in its 2009 letter, Philadelphia

grounded its denial not only on the mold exclusion, but also on

the fact that the allegations included in the Underlying Complaint

had occurred outside of the coverage period. It advised that

"there are no allegations in the complaint that occurred within

our policy period." That, by itself, dooms Clarendon's contentions

that Philadelphia violated Mass. Gen. Laws chs. 93A and 176D. See

Manganella v. Evanston Ins. Co.,

(1st

Cir. 2012) (holding -- where the insurer had denied coverage on

one ground, but the denial letter "also adverted, without

elaboration," to a policy exclusion -- that because the

"[insurer's] denial of coverage was justified by the [policy]

[e]xclusion, [plaintiff's] claims [for alleged violations of Mass.

Gen. Laws chs. 93A and 176D could] not proceed under the theory

that the denial of coverage was wrongful"); Bos. Symphony,

(no 93A violation where disclaimer of coverage was

incorrect but not "unreasonable," nor in "bad faith" or for

"ulterior motives"); Gulezian v. Lincoln Ins. Co.,

(Mass. 1987) ("An insurance company which in good faith denies

a claim of coverage on the basis of a plausible interpretation of

its insurance policy is unlikely to have committed a violation of

[Mass. Gen. Laws ch.] 93A"); see also Brazas Sporting Arms,

-25-

("Where . . . the insurer properly denied coverage,

there can be no violation of chapter 176D."). Accordingly, the

district court did not err in granting summary judgment against

Clarendon on its claim for alleged violations of chapters 93A and

176D.

III. Conclusion

For the foregoing reasons, we affirm the district

court's summary judgment order.

Affirmed.

-26-