United States Court of Appeals For the First Circuit

No. 22-1074

PETER GOTTLIEB, individually and on behalf of all persons similarly situated,

Plaintiff, Appellant,

v.

AMICA MUTUAL INSURANCE COMPANY,

Defendant, Appellee.

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

[Hon. Denise J. Casper, U.S. District Judge]

Before

Kayatta, Lipez, and Thompson, Circuit Judges.

John Peter Zavez, with whom Noah Rosmarin, Brendan M. Bridgeland, and Adkins, Kelston & Zavez, P.C., were on brief, for appellant. Christopher Michael Reilly, with whom Laura Meyer Gregory, Anthony Antonellis, and Sloane and Walsh, LLP, were on brief, for appellee.

December 30, 2022 KAYATTA, Circuit Judge. Peter Gottlieb claims that the

price he agreed to pay Amica Mutual Insurance Company to insure

his home was $16 too high because it was based on an excessive

coverage limit. Claiming as well that other Amica insureds paid

too much to insure their homes, he filed this putative class

action. After the district court dismissed part of Gottlieb's

complaint for failure to state a claim and entered summary judgment

disposing of the remainder of his claims, he filed this appeal.

For the following reasons, we affirm the judgments of the district

court.

I.

Gottlieb owns a home in Burlington, Massachusetts. In

2015, he purchased a homeowners insurance policy from Amica that

covered him from March 10, 2015, through March 10, 2016. The

coverage limit for replacing his house in the event of a loss was

$311,000, for which Gottlieb paid a $730 premium. The policy also

contained an endorsement providing additional coverage of up to

130% of the coverage limit if Gottlieb agreed to certain

conditions, including that Amica could adjust the coverage limit

and the premium "in accordance with" "property evaluations [Amica]

make[s]" and "[a]ny increases in inflation." The policy contained

no other language allowing Amica to increase coverage limits.

No loss occurred during the one-year term of the policy.

With the expiration of the policy term approaching, Amica sent

- 2 - Gottlieb a proposed renewal policy, which contained the same

endorsement, along with a cover letter. The proposed premium for

the renewal policy was $795 ($65 more than the premium for the

original policy). Sixteen dollars of the increase was due to a

higher coverage limit for Gottlieb's house ($321,000 versus

$311,000). Amica arrived at that coverage limit based on a

multiplier calculated by a company called E2Value, Inc., which

projected costs for Gottlieb's zip code based on various data

sources. The rest of the increase in the premium was due to

changes in the base rate and other changes in Amica's public rate

filing.

The cover letter accompanying the renewal pointed out

that the increased coverage limit was partially attributable to

higher reconstruction costs, which it stated had "risen steadily

since [Amica's] last survey of [Gottlieb's] home," along with

"various other factors . . . that impact the dwelling amount."

The letter noted that Gottlieb was ultimately responsible for

determining the proper dwelling limit for his home. After calling

Amica to clarify how much coverage he would get under the

endorsement, Gottlieb accepted the 2016-2017 renewal policy, and

Amica issued the policy.

Gottlieb then sued Amica, claiming that the increased

coverage limit on his house and premium in the 2016-17 violated

the terms of his contract with Amica. Gottlieb argues that the

- 3 - endorsement in his original policy limited how Amica could set the

coverage limit in the renewal policy; namely, Amica could change

the original limit only if it did a new home inspection, or

accounted for an increase in inflation. Because Amica did not

reinspect Gottlieb's home and because his coverage limit allegedly

increased more than the rate of inflation, Gottlieb contends that

Amica breached the policy.

Gottlieb also argues that even if Amica did not

explicitly breach the policy, it breached the implied covenant of

good faith and fair dealing. In his view, Amica acted in bad faith

by adjusting his coverage limit based on impermissible factors

(including projected future inflation and reconstruction costs),

attempting to rewrite the contract, and deceiving him about why

the limit was increasing. As to the claimed deception, Gottlieb

contends that Amica lied to him by stating in the cover letter

that one reason for the proposed increase in his dwelling limit

was a rise in reconstruction costs. According to Gottlieb, those

costs had not increased, or at least not as much as reflected in

the proposed increase to Gottlieb's coverage; thus, Gottlieb

contends Amica's statement was untrue and deceptive. As a result

of this allegedly fraudulent adjustment to his coverage limit,

Gottlieb asserts that Amica sold him illusory coverage he could

never use, because Amica would never pay more than actual

replacement costs and his replacement costs would always be less

- 4 - than Amica's estimate. Because Amica received the benefit of

Gottlieb's additional premium but provided no additional practical

benefit to Gottlieb, he argues, he is also entitled to relief for

unjust enrichment, money had and received, and violation of

Massachusetts law prohibiting deceptive business practices, Mass.

Gen. L. c. 93A ("Chapter 93A").

Gottlieb filed his complaint in Middlesex Superior

Court. Amica then removed the case to the United States District

Court for the District of Massachusetts. The district court

dismissed the breach of contract and implied covenant of good faith

and fair dealing claims. The court found that the 2015-16 and

2016-17 policies were two separate contracts, so setting the

initial coverage limit in the latter could not have violated the

former. Moreover, the initial contract imposed no restrictions on

how the new coverage limit in the renewal contract could be set.

Likewise, the court ruled, no covenant of good faith and fair

dealing extended or created a freestanding obligation to use the

within-term rules contained in the first policy for selecting the

starting point of the renewal policy. Following discovery and an

amendment to the complaint, the district court granted summary

judgment for Amica on the unjust enrichment, money had and

received, and Chapter 93A claims. The court found that the

equitable claims were unavailable because there was an adequate

remedy at law and a valid contract. It also concluded that there

- 5 - was no Chapter 93A violation because although Gottlieb had been

charged a higher premium, he had received the benefit of additional

coverage. Gottlieb appeals from both the denial of the motion to

dismiss and the grant of summary judgment for Amica.

II.

We review a district court's grant of a motion to dismiss

de novo. Legal Sea Foods, LLC v. Strathmore Ins. Co.,

(1st Cir. 2022). In doing so, we take all of Gottlieb's

well-pled allegations as true and view the facts in the light most

favorable to him.

We affirm if, having done so, the complaint

does not provide "enough factual detail to make the asserted claim

plausible on its face."

(internal quotation marks

omitted) (quoting Cardigan Mountain Sch. v. N.H. Ins. Co.,

(1st Cir. 2015)). We also review a district court's

grant of summary judgment de novo, drawing all inferences in favor

of Gottlieb. Noonan v. Staples, Inc.,

(1st Cir.

2009). Following the lead of both parties, we apply Massachusetts

law.

A.

Gottlieb's breach of contract claim begins with the

original policy's limitation on Amica's unilateral ability to

change the coverage limit of $311,000 and the corresponding premium

upon which the parties had agreed when they entered the contract.

Such a limitation makes sense: A homeowner who agrees to receive

- 6 - one year of coverage for a set premium hardly expects that, during

that year, the insurer could jack up the premium for that year's

coverage beyond that to which the homeowner agreed by declaring a

unilateral increase in the coverage limit.

Amica, though, did no such thing. After agreeing to

issue the original policy with a one-year term, Amica provided a

full year of coverage for the agreed-upon premium without making

any adjustments that would increase the premium (even those that

would have been allowed under the policy endorsement). Had the

parties gone their separate ways upon expiration of the policy, it

is clear that no breach could have been claimed.

The parties did not go their separate ways. Instead,

they entered into a new policy -- the renewal policy. In so doing,

they agreed upon a new, slightly higher coverage limit of $321,000

(as compared to $311,000 in the prior year) and a corresponding

premium of $795. During the term of that renewal policy, Amica

never sought to charge Gottlieb more than that agreed-upon $795.

Nor did it ever deny him any promised coverage.

Gottlieb nevertheless contends that Amica wronged him

when it proposed a coverage limit of $321,000 in negotiating the

renewal policy. His principal argument is that the limitation for

adjusting the coverage limit in the original policy applied to the

setting of the coverage limit in the renewal policy. Like the

district court, we disagree.

- 7 - The 2015-16 policy was a separate contract from the 2016-

17 renewal. See Epstein v. Nw. Nat'l Ins. Co.,

, 750–

51 (Mass. 1929) (renewal policies are new contracts). Nothing in

the 2015-16 policy's terms indicated that anything in that policy

prevented Amica from proposing a new coverage limit for the 2016-

17 policy. Gottlieb attempts to evade this hole in his breach of

contract claim by highlighting abstract references to renewal

policies in the 2015-16 agreement.1 He claims that these

references show that his initial policy governed the terms of any

renewal. But the references to renewals govern different

procedures for canceling the contract depending on whether the

contract is an initial policy or a renewal. They do not suggest

that the first policy governs any future renewals. Rather, they

simply indicate that some terms of a particular policy apply

differently depending on whether the policy itself is a renewal or

an initial policy.

Nor does it help Gottlieb that the cover letter

accompanying the proposed renewal policy referred to the new

1 For example, the policy provides that it may be cancelled for certain reasons "[w]hen this policy has been in effect for 60 days or more, or at any time if it is a renewal with us." Other references to renewal or nonrenewal indicate what will happen if there is a nonrenewal, e.g., "[i]f we decide to cancel or not renew this policy, that loss payee will be notified in writing," and procedures for renewal or nonrenewal, e.g., "[o]rdinarily we will renew this policy automatically" and "[w]e may elect not to renew this policy . . . by delivering to you . . . written notice."

- 8 - coverage limit as an adjustment. That reference says nothing about

whether the initial policy itself limited Amica in setting the

coverage limit for a subsequent policy. The language in the cover

letter sent along with the renewal policy does not turn the

renewal, which is clearly a new policy, into an "adjust[ment]" as

that phrase is used in the language of the endorsement in the first

policy.

Gottlieb also claims in passing that "[t]he Homeowners

Information Insurance Digest included in Plaintiff's policy also

expressly provides the terms of the Endorsement apply to renewal

policies." In describing various coverage options, the Digest

(which is not a part of the contract) states that policyholders

will get the benefit of the endorsement's increased coverage if

they "[a]llow [Amica] to issue your policy (and subsequent

renewals) in accordance with a current property evaluation."

Gottlieb did not mention this Digest in either his initial or

amended complaint, nor did he mention it in his briefing on the

motion to dismiss. As such, we consider it waived when evaluating

his appeal of the district court's decision on the motion to

dismiss. See, e.g., P.R. Hosp. Supply, Inc. v. Bos. Sci. Corp.,

(1st Cir. 2005). Even if we were to consider

Gottlieb's argument, we see no breach of contract. The Digest's

language does not require Amica to base the premium of a renewal

policy on a current property evaluation. Rather, it states that

- 9 - an insured will get the benefit of the endorsement if they "comply

with" three conditions, including "[a]llow[ing] [Amica] to issue

[the] policy (and subsequent renewals) in accordance with a current

property evaluation." That the insured may allow Amica to do that

does not mean that Amica must do it.

In sum, because the original policy did not limit Amica's

freedom in proposing a coverage limit for the renewal policy,

Gottlieb's breach of contract claim fails. Gottlieb was not

entitled under the initial contract to a proposed renewal coverage

limit reflecting only inflation or a new property evaluation.2

B.

Gottlieb's claim for breach of the implied covenant of

good faith and fair dealing fares no better. The covenant of good

faith and fair dealing is implied in all contracts under

Massachusetts law. Guldseth v. Fam. Med. Assocs. LLC,

(1st Cir. 2022). It provides that "neither party shall

do anything that will have the effect of destroying or injuring

the right of the other party to receive the fruits of the

contract." Latson v. Plaza Home Mortg., Inc.,

(1st Cir. 2013) (quoting Anthony's Pier Four, Inc. v. HBC Assocs.,

(Mass. 1991)). The implied covenant is not,

however, a catch-all for altering the terms or scope of a contract.

2 We therefore do not address Gottlieb's various claims that Amica used the wrong measure of inflation.

- 10 - "Because the implied covenant is all about the expectations

concerning the obligations actually in the contract, the scope of

the covenant is only as broad as the contract that governs the

particular relationship." Guldseth,

; see also Uno

Rests, Inc. v. Bos. Kenmore Realty Corp.,

(Mass. 2004) ("The covenant may not, however, be invoked to create

rights and duties not otherwise provided for in the existing

contractual relationship, as the purpose of the covenant is to

guarantee that the parties remain faithful to the intended and

agreed expectations of the parties in their performance.").

As we concluded above, the limitation on Amica's changes

to the dwelling limit during the term of the original policy did

not apply to the setting of the initial coverage limit in the

renewal policy. Given that conclusion, Gottlieb cannot claim to

have had any reasonable expectation to the contrary. Guldseth, 45

F.4th at 537–38. The covenant of good faith and fair dealing

therefore does not secure this benefit that the contract never

guaranteed in the first place. Nor did Amica do anything to

deprive Gottlieb of the reasonably expected benefits of the policy.

Gottlieb lists several other acts that he contends show

that Amica breached the implied covenant of good faith and fair

dealing. As an initial matter, some of these contentions have no

footing in either the complaint or the response filed in the

district court to the motion to dismiss, so those arguments are

- 11 - not part of our review of the dismissal of Gottlieb's claim for

breach of the implied covenant of good faith and fair dealing.

But the rest merely restate Gottlieb's claim that the contract

guaranteed a specific methodology to set his renewal coverage

limit, and that Amica failed to follow that methodology. Having

rejected the first premise, we also reject the second.

In particular, we do not find (as Gottlieb argues) that

any contractual language obligated Amica to set Gottlieb's

coverage limit for an upcoming policy year based only on "current"

inflation (i.e., not based on any projection of future inflation).

Gottlieb points to the language in the endorsement allowing Amica

to increase the Coverage A limit based on "any increases in

inflation," but the word "current" does not appear in this excerpt.

He also points to the Digest, which he says requires Amica to issue

the Coverage A limit in accordance with "'current' reconstruction

costs." But as we have already concluded, the Digest does not

require Amica to do anything. And the absence of any restriction

on Amica's ability to use future projections in calculating

coverage limits makes sense, because Amica must insure the covered

dwelling up to the end of the coming policy year. So we cannot

say it was a breach either of the contract or the implied covenant

of good faith and fair dealing for Amica to set the limit using a

projection for the anticipated year.

- 12 - Finally, Gottlieb contends that Amica sold him illusory

coverage that he could never use. We will address this argument

in analyzing Gottlieb's remaining claims, to which we turn next.

We begin with Gottlieb's claims for unjust enrichment and money

had and received, and then move to his claim for unfair trade

practices in violation of Chapter 93A.

C.

Gottlieb's equitable claims must fail as well.

Massachusetts law "does not allow litigants to override an express

contract by arguing unjust enrichment." Reed v. Zipcar, Inc.,

(D. Mass. 2012) (quoting Platten v. HG Bermuda

Exempted Ltd.,

(1st Cir. 2006)); Guldseth,

(unjust enrichment not available as a remedy when a

valid contract governs the relationship between the parties and

sets out their obligations). This also applies to money had and

received claims, which have "the same elements" as unjust

enrichment, but are limited to enrichment by money or its

equivalent. Jelmoli Holding, Inc. v. Raymond James Fin. Servs.,

Inc.,

, 17 n.2 (1st Cir. 2006). Despite Gottlieb's

argument to the contrary, the policy plainly governs the

relationship between the parties and the subject matter of the

dispute (Gottlieb's premium), so Gottlieb's equitable claims are

foreclosed here.

- 13 - D.

That leaves Gottlieb's Chapter 93A claim. Chapter 93A

prohibits unfair or deceptive acts or practices in trade and

commerce. In determining whether a practice is unfair, courts

look to "(1) whether the practice . . . is within at least the

penumbra of some common-law, statutory, or other established

concept of unfairness; (2) whether it is immoral, unethical,

oppressive, or unscrupulous; [and] (3) whether it causes

substantial injury to consumers (or competitors or other

businessmen)." Mass. Eye & Ear Infirmary v. QLT Phototherapeutics,

Inc.,

, 243 (1st Cir. 2005) (alterations in original)

(quoting PMP Assocs., Inc. v. Globe Newspaper Co.,

(Mass. 1975)). Courts consider "[a]n act or practice . . .

deceptive if it 'has the capacity to mislead consumers, acting

reasonably under the circumstances, to act differently" than they

otherwise would have. Tomasella v. Nestlé USA, Inc.,

(1st Cir. 2020) (quoting Aspinall v. Philip Morris Cos.,

, 488 (Mass. 2004)). To succeed on a claim based on a

deceptive act or practice, a consumer must show "(1) a deceptive

act or practice on the part of the seller; (2) an injury or loss

suffered by the consumer; and (3) a causal connection between the

seller's deceptive act or practice and the consumer's injury."

(quoting Casavant v. Norwegian Cruise Line, Ltd.,

(Mass. App. Ct. 2009)). Importantly, in order to obtain

- 14 - relief under this statute for either an unfair or a deceptive act,

plaintiffs must show that they were injured by the conduct at

issue, and that the conduct caused some loss beyond the mere fact

that a violation occurred. Shaulis v. Nordstrom,

(1st Cir. 2017); Hershenow v. Enterprise Rent-A-Car Co. of Bos.,

, 528 (Mass. 2006).

The only arguably deceptive statement by Amica to which

Gottlieb points is Amica's statement that "[r]econstruction costs

have risen steadily since our last survey of your home." Gottlieb

claims that Amica's consultant reported a decrease in costs rather

than an increase, rendering false the statement that costs had

risen, and the district court credited this statement in its order

on the motion granting summary judgment. Thus, Amica's statement

in the cover letter that reconstruction costs had "risen steadily"

may well have been deceptive.3

3 Gottlieb also claims that Amica's statements in the cover letter to him would violate Massachusetts General Laws Chapter 176D, § 3(1)(a), which classifies "[m]isrepresent[ing] the benefits, advantages, conditions, or terms of any insurance policy" as an "unfair or deceptive act[] or practice[] in the business of insurance." The district court correctly noted that there is no private right of action for violations of Chapter 176D, § 3(1)(a). However, courts have held that plaintiffs may "attempt to state a claim under Chapter 93A, section 2 by alluding to conduct that is impermissible under chapter 176D." United States ex rel. Metric Elec., Inc. v. Enviroserve, Inc.,

(D. Mass. 2003) (quoting M. DeMatteo Constr. Co. v. Century Indem. Co.,

(D. Mass. 2001)); see also M. Dematteo Constr. Co.,

(concluding that although there is no private right of action under Chapter 176D, that does not end the inquiry as to whether a plaintiff can recover

- 15 - However, Gottlieb has not shown that he was injured by

this statement. He argues that he has been injured because the

higher coverage he purchased was illusory. Amica, he claims,

overestimated his reconstruction costs and charged him a

correspondingly higher premium, but would only ever pay actual

reconstruction costs far below this overestimate. It could

therefore pocket the difference, enriching itself and harming

Gottlieb. He asserts that Amica would never pay the full amount

of the coverage limit, because the actual reconstruction costs

would never be that high. In so arguing, however, Gottlieb assumes

that Amica's very first estimate of reconstruction costs was

correct, and that such costs not only decreased during the year

covered by that policy (or, at the very least, increased less than

the increase represented by the new coverage limit), but could not

possibly rise during the year to be covered by the second policy.

Without evidence that such a risk was essentially nonexistent at

the time of contracting, he cannot prove that insurance coverage

protecting him from that risk was illusory. And Gottlieb has

failed to show that he was entitled to a policy accounting only

for changes in costs in the previous year, as opposed to changes

through the upcoming year for which he would be insured.

under Chapter 93A for a violation of Chapter 176D). However, we decline to determine whether Amica's statements would violate Chapter 176D, § 3(1)(a) because Gottlieb's failure to show injury would nonetheless prove fatal to a Chapter 93A claim.

- 16 - Gottlieb attempts to sidestep the gap in his evidence by

claiming that the approximately $16 increase in his premium

resulting from the allegedly wrongfully calculated increase in his

Coverage A liability limit represents his damages from Amica's

wrongful acts. But this merely states the amount by which his

premium increased due to the higher coverage limit. It does not

itself show why Amica's estimate was so high that it would never

have to pay the full amount of the coverage limit.

The closest Gottlieb comes to estimating what his

coverage limit should have been is to assume that his "correct"

reconstruction costs were the original coverage limit, to which he

adds "any increase due to inflation allowed under the terms of the

Policy." But as we have already explained, Gottlieb is not

entitled to such a calculation under the Policy. And there is no

evidence that this calculation would have produced the "true" cost

of reconstruction.

Gottlieb also points to Amica's rate filing with the

Massachusetts Department of Insurance, which reported a "premium

trend factor" of approximately 1%. At oral argument, Gottlieb's

counsel argued that this estimate premium trend factor represented

inflation, and he pointed out that it was far lower than the amount

by which Gottlieb's premium had increased. This argument was

raised for the first time on reply, and thus, absent exceptional

circumstances, we consider it waived. See, e.g., Alamo-Hornedo v.

- 17 - Puig,

(1st Cir. 2014). We see no exceptional

circumstances here. Moreover, Amica's counsel explained that the

premium trend factor measures Amica's losses across the board,

rather than general reconstruction cost increases or inflation.

We cannot find any indication in the record that this premium trend

factor estimates inflation. And, in any event, evidence that

replacement costs may have increased less than Amica's estimate

does not suffice to show that Gottlieb's coverage limit was so

high as to provide illusory coverage.

Finally, to the extent Gottlieb argues that he was

fraudulently induced to renew the policy based on the deceptive

statement that reconstruction costs had risen, he has not pointed

to any evidence that he would have done anything differently, such

as seeking alternative coverage or forgoing coverage altogether

absent this statement.

In sum, we are unable to conclude that Amica by deception

sold Gottlieb coverage he could never use. He has thus not shown

that he was injured as required for a 93A claim.

III.

For the foregoing reasons, we affirm the orders of the

district court.

- 18 -