United States Court of Appeals For the First Circuit

No. 19-1719

ALTHEA JOHNSON, individually and as Heir and Natural Guardian of Carlton Johnson; CARLTON JOHNSON,

Plaintiffs, Appellants,

v.

HORACE JOHNSON; STATE ROAD AUTO SALES, INC.; ARBELLA MUTUAL INSURANCE COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

[Hon. John J. McConnell, Jr., U.S. District Judge]

Before

Thompson, Stahl, and Barron, Circuit Judges.

Ronald J. Resmini, with whom Law Offices of Ronald J. Resmini, Ltd. was on brief, for appellants.

Thomas A. Pursley, with whom Stephen E. Navega, II and Lynch & Lynch were on brief, for appellee Arbella Mutual Insurance.

Lisa De Mari, with whom Heffernan & De Mari, P.C. was on

 While this case was argued to a panel that included Judge Stahl, he did not participate in the issuance of this opinion. The remaining two panelists therefore issued this opinion pursuant to

(d). brief, for appellees Horace Johnson and State Road Auto Sales.

January 19, 2022 THOMPSON, Circuit Judge. This case has its genesis in

a car accident involving Horace Johnson ("Horace"), the driver,

and Horace's cousin, Carlton Johnson ("Carlton"), the sole

passenger in the car Horace was driving.1 A lawsuit against Horace,

his insurer, and the company from which Horace had leased the

vehicle followed;2 Carlton and Carlton's mother, individually and

on Carlton's behalf, sued to recover damages for the serious

injuries Carlton sustained in the accident.3 The United States

District Court for the District of Rhode Island granted summary

judgment on all claims, and Carlton appealed. The case was briefed

and argued to us in due course on February 4, 2020. As we'll

explain in more detail in the pages to come, a critical component

of one of the appellate issues concerned an important and unsettled

matter of Rhode Island law, so on March 13, 2020, we certified a

question to the Rhode Island Supreme Court pursuant to Rule 6 of

Rhode Island's Rules of Appellate Procedure. See Johnson v.

Johnson,

(1st Cir. 2020), certified question

1For clarity, we use the parties' first names throughout our opinion; as always, we mean no disrespect. 2 The case began in the Rhode Island state court system, but

the defendants (appellees here) removed it to federal court pursuant to

, 1441. 3 Carlton's mother, Althea (who is referred to in this record

as both "Althea" and "Altima"), sought to recover damages in her individual capacity via loss of consortium and intentional infliction of emotional distress claims. Those claims were dismissed below, but their dismissal is not challenged on appeal. In today's opinion, for the sake of simplicity, we refer to appellants collectively as "Carlton."

- 3 - answered, No. 2020-105-M.P.,

(R.I. Dec. 20, 2021).

On December 20, 2021, the Rhode Island Supreme Court supplied its

answer. See Johnson,

, at *5. Equipped with that,

we are now in a position to render our opinion on Carlton's appeal.

In doing so, we'll follow our customary route of laying

out the relevant facts of the case (reproduced here based in large

part on our Certification Order), explaining what happened below,

then tackling the arguments advanced on appeal. Here's the

spoiler, though: This will be an affirmance across the board.

FACTS AND TRAVEL

The facts in this case are not contested; regardless, we

always recount them in the light most favorable to the nonmovant

(here, that's Carlton), and we will "resolv[e] all reasonable

inferences in his favor, consistent with record support."4 Brader

v. Biogen Inc.,

(1st Cir. 2020).

On December 17, 2017, Horace, a Massachusetts resident,

was driving in Providence, Rhode Island with Carlton, a Rhode

Island resident who was then 28 years old, as Horace's passenger.

The car struck a utility pole, and both Horace and Carlton were

4 We pause to observe what, exactly, the scope of the record actually is here. On appeal, Carlton submitted and refers to materials that were not part of the summary-judgment record below. We look only to the record as it appeared before the district court. See, e.g., CMI Cap. Mkt. Inv., LLC v. Gonzalez-Toro,

(1st Cir. 2008) (explaining that "on appeal from summary judgment, we consider the same record that was before the district court").

- 4 - seriously injured. Horace was driving a car leased to him by State

Road Auto Sales ("State Road"), and he was insured by Arbella

Mutual Insurance Company ("Arbella") under an automobile insurance

policy that provided a limit of $100,000 of bodily injury coverage

for guest occupants injured in accidents outside Massachusetts.5

On January 25, 2018, just over a month after the December

car accident, Carlton's counsel sent an "Asermely Demand" letter

to Arbella demanding a settlement for his bodily injury claims at

the $100,000 policy limit. In the demand letter, Carlton cited

Rhode Island's Rejected Settlement Offer Interest Statute, R.I.

Gen. Laws §§ 27-7-2.1 & 27-7-2.2, as well as Asermely v. Allstate

Ins. Co.,

(R.I. 1999), and DeMarco v. Travelers Ins.

Co.,

(R.I. 2011), and he indicated he would accept the

policy limit (assuming it was indeed the maximum insurance

available under Carlton's coverage). Arbella investigated, then,

in a letter dated February 28, 2018, more than thirty days later,

Arbella sent a response to Carlton's counsel in which Arbella

accepted Carlton's demand to settle for the policy limits of

$100,000.

Very soon after that, though, on March 6, 2018, Carlton

and his mother filed a complaint (initially in Rhode Island state

court, as previously mentioned) in which they alleged three counts,

5 We will sometimes refer to Horace, Arbella, and State Road collectively as "the appellees," when appropriate.

- 5 - two of which are pertinent to this appeal:6 Count I pointed to

the negligence of the appellees and sought damages for Carlton's

"severe personal injuries," which required hospitalization,

medical treatment, home health care, rehab, lost wages, loss of

consortium, permanent injuries, and loss of earning capacity; and

Count III alleged that Arbella disregarded Rhode Island insurance

settlement law, and that it violated and breached various aspects

of Massachusetts insurance settlement law, too.

In time, the appellees moved for summary judgment,

arguing, inter alia, that Arbella and Carlton had entered into a

binding settlement agreement, Rhode Island General Laws Section

27-7-2.2 (which requires that a "written [settlement] offer shall

be presumed to have been rejected if the insurer does not respond

in writing within a period of thirty (30) days") did not apply

because Carlton hadn't filed a civil action before the settlement

agreement was formed, and Arbella had not engaged in any deceptive

or unfair practices. In his opposition, Carlton, of course, took

the opposite stance on all of this.

In granting the summary-judgment motion in the

appellees' favor, as is relevant to our tasks today, the district

court rejected Carlton's argument that Section 27-7-2.2 rendered

Arbella's acceptance of the settlement offer invalid because it

6 Count II staked out Althea's claims, but, as previously mentioned, the dismissal of those claims wasn't challenged here.

- 6 - occurred more than the statutorily prescribed thirty days after

the offer. See Johnson v. Johnson, No. CV 18-212-JJM-PAS,

, at *3 (D.R.I. July 8, 2019). Rather, the district court

determined that the statute's "[i]n any civil action" language

requires that a legal proceeding in court needs to be underway to

trigger the statute's application.

Since Carlton did not

file suit until after the settlement-offer-and-acceptance episode,

the district court reasoned, the statute did not apply, and the

parties had otherwise entered into a valid settlement contract for

policy limits, meaning Carlton's Count I claims could not be

brought in court.

As to Count III's various Rhode Island and Massachusetts

state law unfair insurance practices allegations, the district

court was similarly unpersuaded. There was no Rhode Island state

law claim under Asermely,

, the district court

explained: "[A]lthough it requires insurance companies to

'consider seriously a plaintiff's reasonable offer to settle

within the policy limits' as part of their fiduciary duty, it is

clear here that Arbella did seriously consider Carlton's offer as

they ultimately accepted it about two and a half months after the

collision and thirty-two days after receiving the demand."

So, "[b]y settling with Carlton for the policy limit a few months

after the accident date, and a month after the initial demand

. . . , Arbella engaged in timely and meaningful settlement

- 7 - negotiations and thus fulfilled their common law and statutory

duties."

Carlton's claim based on Massachusetts state law

unfair settlement practices met a similar fate, with the district

court reasoning that the record was devoid of the requisite pre-

suit written demand for relief.

at *4 (citing Mass. Gen. Laws

ch. 93A, § 9(3) ("At least thirty days prior to the filing of any

such action, a written demand for relief . . . reasonably

describing the unfair or deceptive act or practice relied

upon . . . shall be mailed or delivered to any prospective

respondent.")).

Dissatisfied, Carlton timely appealed.

STANDARD OF REVIEW

"Our review of the district court's grant of summary

judgment is de novo." Brader,

. "A moving party is

to be spared a trial when there is no genuine issue of any material

fact on the record and that party is entitled to judgment as a

matter of law."

(quoting Murray v. Warren Pumps, LLC,

(1st Cir. 2016)); see also Fed. R. Civ. P. 56(a). "To

avoid 'the swing of the summary judgment scythe,' the nonmoving

party must adduce specific facts showing that a trier of fact could

reasonably find in his favor."

(quoting Mulvihill v. Top-

Flite Golf Co.,

(1st Cir. 2003)). "The nonmovant

cannot rely on 'conclusory allegations, improbable inferences, and

- 8 - unsupported speculation.'"

(citing Medina-Munoz v. R.J.

Reynolds Tobacco Co.,

(1st Cir. 1990)).

DISCUSSION

Carlton's arguments as to how the district court mis-

stepped fall under three primary headers: (1) Section 27-7-2.2

applies here, so there's no valid settlement contract and Carlton's

claims against the appellees should proceed to trial; (2) even if

Section 27-7-2.2 doesn't apply, there was a meeting of the minds

between the parties that Arbella's failure to accept Carlton's

demand within thirty days would revoke that demand; and (3)

Carlton's claim that Arbella engaged in unfair and deceptive

insurance and settlement practices was not procedurally barred

because he sent the requisite notice. We take these in turn.

1. R.I. Gen. Laws § 27-7-2.2

Carlton's first argument as to why the parties aren't

bound by a valid settlement contract succeeds or fails based on

the applicability of Section 27-7-2.2, which reads:

In any civil action in which the defendant is covered by liability insurance and in which the plaintiff makes a written offer to the defendant's insurer to settle the action in an amount equal to or less than the coverage limits on the liability policy in force at the time the action accrues, and the offer is rejected by the defendant's insurer, then the defendant's insurer shall be liable for all interest due on the judgment entered by the court even if the payment of the judgment and interest totals a sum in excess of the policy coverage limitation. This written offer shall be presumed to have been rejected if the insurer does not respond in writing within a period of thirty (30) days.

- 9 - R.I. Gen. Laws § 27-7-2.2. Carlton urges that the district court's

analysis of the statute was wrong. To Carlton's thinking, the

parties never entered into a valid settlement contract: Section

27-7-2.2 applies, and it renders the settlement contract

unenforceable because Arbella failed to accept his settlement

offer within the thirty-day window the statute lays out. Under

Carlton's construction, the statute applies even though he hadn't

filed a complaint because "'any civil action' means from the time

a torts or contracts-based cause of action begins to accrue" (he

did not propose this definition to the district court). And he

says the Rhode Island Supreme Court's jurisprudence has assumed

applicability of the statute to matters like his, pointing to cases

involving a pre-suit settlement offer, followed by an insurer's

failure to respond in writing within the thirty-day window. See,

e.g., Summit Ins. Co. v. Stricklett,

(R.I. 2019);

DeMarco,

.

The appellees, naturally, insist that the district court

got it right in concluding that the statute is inapplicable: The

statute requires that a civil action must be underway, and because

no lawsuit had been filed at the time the parties' settlement

correspondence was playing out, Arbella simply was not bound by

the statute's thirty-day deadline. According to the appellees,

this means the offer and Arbella's acceptance were valid under

- 10 - Rhode Island law, and the enforceable settlement agreement that

resulted categorically bars Carlton from pursuing his claims in

court.

Plainly, who is correct about the statute's

applicability comes down to the definition of "[i]n any civil

action" as it appears in Section 27-7-2.2. But because Rhode

Island's case law had not yet explicated the meaning of that phrase

in this context, and "[b]ecause the Rhode Island Supreme Court is

the ultimate arbiter of matters of Rhode Island law," we sought

that court's "guidance," W. Rsrv. Life Assur. Co. of Ohio v. ADM

Assocs., LLC,

(1st Cir. 2013); R.I. Sup. Ct. R.

6, by certifying our definitional question: "What is the

definition of 'civil action' in R.I.G.L. § 27-7-2.2?", Johnson,

.

The Rhode Island Supreme Court's clear answer to that

question makes short work of our analysis on Carlton's argument

here. Indeed, the Court carefully considered the parties'

positions, surveyed Rhode Island case law, and reviewed the statute

in question, Johnson,

, at *3, *4, before

"answer[ing] the certified question as follows: The term 'civil

action' in G.L. 1956 § 27-7-2.2 refers to a judicial proceeding

which is commenced by the filing of a complaint and all other

- 11 - required documents together with the fees prescribed by law," id.

at *5.

Accordingly, Carlton is incorrect. No judicial

proceeding -- replete with complaint-filing, other documents, and

fees -- had been commenced at the time of Arbella's acceptance of

the settlement offer, so Section 27-7-2.2 is inapplicable.7 We

affirm the district court's grant of summary judgment on this

point.

2. Meeting of the Minds

Carlton has a somewhat different -- albeit cursorily

offered -- reason in the alternative why the district court

shouldn't have granted summary judgment on the issue of the

7 Carlton acknowledges as much in a document (styled as a petition) he filed swiftly on the heels of the Rhode Island Supreme Court's opinion answering our question. While we're on the topic of that petition, we note that, in it, Carlton requested that we schedule a hearing for further discussion or argument. But nothing in the Rhode Island Supreme Court's decision is unclear, as Carlton himself seems to acknowledge, and we see no need for any further appellate proceedings or submissions on this score. The petition also points to a footnote in the Rhode Island Supreme Court's decision that observes that neither its well-known Asermely,

, decision nor Asermely's progeny are implicated in the Johnson matter. Johnson,

, at *4 n.6. According to Carlton, this has bearing on our de novo review of his appeal. To the extent he means that footnote's mention of Asermely has anything to do with the applicability of Section 27- 7-2.2, he is wrong. To the extent his point is that the Court's mention of Asermely somehow entitles him to additional argument before us, we disagree. And, to the extent he is simply reminding us that Asermely generally is part of other arguments he advances on appeal, we'll get to that shortly.

- 12 - existence of the valid settlement contract: even if Section 27-

7-2.2 doesn't apply (and, as we've said, it does not), he says

there is a genuine issue of material fact regarding whether there

was a meeting of the minds between Arbella and Carlton that "a

thirty-day time limit was in effect." Over the course of a section

header and a few sentences in his brief to us on appeal, he says

as much, adding that the Asermely demand letter's reference to

Section 27-7-2.2 "activated" that thirty-day "deadline."

It's unclear to us how a demand letter's unilateral

mention of an inapplicable statute that happens to contemplate a

thirty-day response period would somehow amount to a meeting of

the minds that a thirty-day deadline was "activated." And the

demand did not mention a deadline (a thirty-day one or otherwise)

for responding. Carlton does not point us to any case law to

support his legal theory, nor does he point to facts in the record

before us that would allow a trier of fact to reasonably find that

he is correct about this proposition. See, e.g., Brader,

;

("The nonmovant cannot rely on 'conclusory allegations,

improbable inferences, and unsupported speculation.'" (quoting

Medina-Munoz,

)).

We need not wrestle with it. By our lights, this

particular way of arguing "no settlement contract" is being debuted

on appeal; we discern no clear mention of it in Carlton's papers

- 13 - below or in the transcript of the summary-judgment hearing.8 "The

Federal Reporter is brimming with opinions from us saying things

like: 'arguments not seasonably advanced below cannot be raised

for the first time on appeal.'" Reyes-Colón v. United States,

(1st Cir. 2020) (quoting Eldridge v. Gordon Bros. Grp.,

L.L.C.,

(1st Cir. 2017)); see also McCoy v. Mass.

Inst. of Tech.,

(1st Cir. 1991) (collecting cases)

("It is hornbook law that theories not raised squarely in the

district court cannot be surfaced for the first time on appeal.").

"And [Carlton] ma[de] no effort to fit [his] situation

within the 'narrowly configured and sparingly dispensed'

exceptions to the raise-or-waive rule (as it is known)" -- in fact,

he doesn't acknowledge the argument's newness. Reyes-Colon,

(quoting Daigle v. Me. Med. Ctr., Inc.,

(1st Cir. 1994)); see also B & T Masonry Const. Co. v. Pub.

Serv. Mut. Ins. Co.,

(1st Cir. 2004) (recognizing

"that an appellate court has the authority, in its discretion, to

consider theories not articulated below," but emphasizing "that

exceptions of this kind . . . should be few and far between" --

8 The summary-judgment hearing did discuss the thirty-day period quite a bit, but in connection to Section 27-7-2.2 and its applicability. Indeed, the thrust of Carlton's argument always had been that the statute and its thirty-day deadline applied, and Arbella blew that statutorily prescribed deadline. On this record, it's unclear where else the demand's supposed thirty-day period would have come from.

- 14 - "[t]he typical case involves an issue that is one of paramount

importance and holds the potential for a miscarriage of justice"

(quotation marks and citations omitted)).

True, the general issue of whether Arbella and Carlton

had formed a valid settlement agreement certainly is something

Carlton hotly contested below. But he did not do so by advancing

this particular argument. See, e.g., Emps. Ins. Co. of Wausau v.

OneBeacon Am. Ins. Co.,

(1st Cir. 2014)

(instructing that "theories not squarely presented below typically

cannot be advanced here," and holding that "[w]hen a party places

an issue as broad as 'contract interpretation' before the

[district] court, it does not thereby preserve every argument that

might fall under that rubric" (citations omitted)); United States

v. Slade,

(1st Cir. 1992) (emphasizing that "a

party is not at liberty to articulate specific arguments for the

first time on appeal simply because the general issue was before

the district court").

Thus, this argument is not properly before us, and we

need say no more.

Taken together, our rejection of these two appellate

arguments prompts our affirmance of the district court's summary-

judgment conclusion that an enforceable settlement agreement

existed, Carlton is bound by it, and thus his Count I allegations

cannot proceed.

- 15 - 3. Insurer Bad Faith Claims

Carlton's final argument on appeal concerns his insurer

bad faith claims, raised in Count III of his complaint: first, a

common-law claim under Rhode Island law as set forth in Asermely;

and second, a statutory claim under Massachusetts Chapter 93A. He

tells us both of these should have survived summary judgment.

First, Carlton contends that, under Rhode Island law,

Arbella engaged in bad faith in its handling of Carlton's demand.

But we have no need to field this argument -- its underpinnings

are either beyond our reach (to support his contention, Carlton

says knowledge of insurance agents can be imputed to the insurer

as a whole, but he's referring in part to facts beyond the summary-

judgment and appellate record) or flawed as a matter of law (he

premises this theory on the February 28 acceptance being untimely,

but we've already said it wasn't).

Second, Carlton's complaint alleges that Arbella

violated various unfair claim settlement practices delineated in

sections of Massachusetts General Laws chapter 176D -- and, due to

those violations, Carlton has a claim for unfair business practices

under Massachusetts General Laws chapter 93A, section 9. The

district court concluded that Carlton was "barred from bringing a

93A claim," though: "93A requires a prospective consumer plaintiff

to send a written demand for relief to the business accused of

unfair business practices at least thirty days before the filing

- 16 - of the action. Mass. Gen. Laws ch. 93A, § 9(3). There is no

record here of any such pre-suit communication." Johnson,

at *4.

According to Carlton, that conclusion is wrong because,

in his telling, his January 25, 2018 demand letter was the

requisite 93A demand letter and the district court was wrong to

"disregard" it as noncompliant with 93A's prerequisites. He urges

that it wasn't necessary to include the phrase "93A Demand"

anywhere in the letter, and the letter sufficiently describes

Carlton's injuries and otherwise meets the requirements as set out

in the statute.

But, as best we can tell, Carlton never told the district

court he believed his Asermely demand constituted a Chapter 93A

letter. Rather, this appears to be another debuted-on-appeal

argument with no attempt made to show that it fits the raise-or-

waive exceptions we so sparingly deploy, and this is problematic

for the reasons we've already explained in detail supra. See,

e.g., Reyes-Colón,

; B & T Masonry Const. Co.,

. Accordingly, we do not need to reach it.

Even if were to assume favorably to Carlton that he did

manage to put this squarely before the district court, our review

would not provide him the win he seeks. That is because the

Asermely demand letter did not meet Chapter 93A's requirements.

- 17 - In Massachusetts, a prospective defendant needs to be

put on "warning that the claimant intends to invoke the heavy

artillery of c. 93A, i.e., multiple damages and the imposition of

counsel fees," and this is why 93A demand letters must meet certain

requirements. Cassano v. Gogos,

(Mass. App.

Ct. 1985) (enumerating six factors to be searched for when

reviewing would-be Chapter 93A demand letters: express reference

to 93A; express reference to the consumer protection act; an

"assertion that the rights of the claimants as consumers have been

violated"; an "assertion that the defendant has acted in an unfair

or deceptive manner (G.L. c. 93A, § 2[a])"; "any reference that

the claimants anticipate a settlement offer within thirty days";

or an "assertion that the claimant will pursue multiple damages

and legal expenses, should relief be denied"). The Cassano court

was clear that, "in order to qualify as a written demand under c.

93A, a letter must, in addition to defining the injury suffered

and the relief sought, mention at least one of the six factors we

have enumerated (or contain some other signal which will alert a

reasonably perceptive recipient)." Id. But there, the letter

purporting to be a Chapter 93A demand was inadequate -- it "managed

to set forth in part the plaintiffs' grievances" and generally

communicated "what they expected the defendant to do about them,"

but overall it failed to "characterize[] the claim as one under

the consumer protection statute[,]" id. at 650, and neglected to

- 18 - include any one of the six enumerated factors, id. at 651. See

also Passatempo v. McMenimen,

(Mass. 2012)

(endorsing Cassano's test for 93A demand letters and finding that

"the trial judge correctly dismissed the G.L. c. 93A claims" in

part because the demand letter "failed to identify or describe any

unfair or deceptive act or practice") (citing Cassano,

); see also Mass. Gen. Laws ch. 93A, § 9 (requiring on its

face that the "written demand" must "reasonably describ[e] the

unfair or deceptive act or practice relied upon and the injury

suffered").

Here, Carlton's demand letter similarly falls flat as a

matter of law on the Chapter 93A front in a few ways. For one

thing, it refers to Rhode Island law, making no mention of

Massachusetts law. And moreover, it makes no reference to Chapter

93A (contrary to Carlton's assertion otherwise, stating "93A" is

a factor here), nor does it mention a thirty-day deadline, multiple

damages or legal fees, any alleged unfair or deceptive practice by

Arbella, any purported violation of Mass. Gen. Laws ch. 176D, or

any other allegation of insurer misconduct. See Cassano,

. Rather, the letter demanded settlement for the

$100,000 policy limits and indicated that, if the policy-limits

demand was rejected, Rhode Island law would provide a remedy.

The cases Carlton cites on appeal in support of the

proposition that his demand met the requirements of a 93A demand

- 19 - letter don't support his claim. The demand letter in Richards v.

Arteva Specialties S.A.R.L., for example, "explicitly alleg[ed]"

the defendants' "unfair or deceptive act or practice" by describing

the "details of" an alleged conspiracy.

(Mass. App. Ct. 2006). And, in Gore v. Arbella Mut. Ins. Co., the

demand letter "demand[ed] that [the insurer] tender the $20,000

policy limits within thirty days," which, as we've just observed,

Carlton's demand letter did not do.

(Mass.

App. Ct. 2010).

And so, with no requisite Chapter 93A demand for relief

in play, the district court was right to grant summary judgment as

to Carlton's Chapter 93A claim as well.

CONCLUSION

For these reasons, we affirm the district court's entry

of summary judgment. Each side shall bear its own costs.

- 20 -