Issue: In Massachusetts, what constitutes a reasonable offer under Chapter 93A?
| Area of Law: | Litigation & Procedure |
| Keywords: | Reasonable offer; Demand letter and response; Pre-litigation notice |
| Jurisdiction: | Massachusetts |
| Cited Cases: | 36 Mass. App. Ct. 411; 664 N.E.2d 858; 404 N.E.2d 1265; 322 N.E.2d 768; 10 Mass. App. Ct. 1; 467 N.E.2d 443; 638 N.E.2d 927; 448 N.E.2d 405 |
| Cited Statutes: | Chapter 93A; Mass. Gen. Laws ch. 111, '' 190C199A |
| Date: | 01/01/2001 |
The purpose of the demand letter and response is two-fold. First, it is intended Ato encourage negotiation and settlement by notifying prospective defendants of claims arising from allegedly unlawful conduct.@ Slaney v. Westwood Auto, Inc., 366 Mass. 688, 322 N.E.2d 768, 779 (1975). Pre-litigation notice gives the potential defendant a chance to investigate the claim and make reparations, if appropriate. Id., 322 N.E.2d at 779. Second, the letter Aoperate[s] as a control on the amount of damages which the complainant can ultimately recover if he proves his case.@ Id.
Whether an offer made under ch. 93A is reasonable, of course, is a question of fact, Adetermined in light of the terms of the demand and all the attendant facts and circumstances.@ Patry v. Harmony Homes, Inc. (Patry I), 10 Mass. App. Ct. 1, 404 N.E.2d 1265, 1268 (1980), on remand, 15 Mass. App. Ct. 701, 448 N.E.2d 405 (1983) (Patry II). The defendant has the burden of proof. Id., 404 N.E.2d at 1268. Generally, a defendant must prove that in making the responding offer, it Adid not act deliberately to derail the settlement process.@ Parker v. D=Avolio, 40 Mass. App. Ct. 394, 664 N.E.2d 858, 860 (1996). That is, Aa wrongdoer >ought not wear out the claimant by unduly delaying settlement= when liability, including causation and damages, is clear or highly likely.@ Id. (quoting Miller v. Risk Mgmt. Fdn. of […]