Mass. High Court Upholds Consent-to-Settle Clause in Malpractice Policy

By | December 20, 2019

The Supreme Judicial Court sided with CNA subsidiary Continental Casualty Co. in an engineering malpractice lawsuit brought by homeowners Douglas and Kristen Rawan against Kanayo Lala. The couple claimed that the carrier had violated a state law that requires insurers to make a prompt, fair and equitable settlement by complying with policy language that required Lala’s consent to any settlement.

The high court said in its 7-0 decision that such consent-to-settle clauses were included in malpractice policies long before the state legislature adopted the 1979 statute that allows claimants to file suits against insurers for refusing to settle.

The high court said the onus properly belongs on the policyholder — not the insurer — if the policyholder obstinately refuses to settle a claim.

“Those unreasonable insureds can and should be held to account at trial and suffer the possibility of large, multiple damages awards,” the opinion says. “The claimant also is in no worse a position than he or she would have been if the professional had not purchased insurance. Such insureds, arguably, are the type who would not buy insurance in the first place if they could not control the decision to settle.”

The case has been widely anticipated by insurance litigators since the Supreme Judicial Court decided to bypass an intermediate appellate court and place Rawan’s appeal on directly onto its docket. The Massachusetts Defense Lawyers Council, American Property and Casualty Insurance Association and the American Council of Engineering Companies of Massachusetts intervened in the litigation.

The Rawans in 2005 hired Lala, a registered professional engineer, to design structural members for their new home in Westborough. Lala underestimated the building loads and stresses, which caused what the couple’s attorney said was “ongoing deterioration,” meaning it was growing worse over time.

The Rawans filed suit in 2011 against Lara and Continental. They asked for more than $1.3 million, but Lara refused to offer more than $100,000, even after Continental told him he faced a potential seven-figure settlement.

A Superior Court jury found Lara liable for the Rawans’ claim and awarded $400,000 for damages, plus an additional $20,000 for violating the state law that requires prompt settlements. The judge increased that punitive award to $40,000.

Continental paid the plaintiffs $141,435.98 of that amount, which was what was left within its policy limit after paying defense costs. Lala paid the rest of the award out of his own pocket.

The Lalas then amended their complaint against Continental, alleging that the insurer had violated General Laws 93A and 176D, which require prompt settlements. The Superior Court granted summary judgment in favor of the insurer.

The high court affirmed that ruling. The court noted that professional liability insurance is voluntary and freedom of contract applies absent a legislative direction to the contrary. Such clauses also serve valuable purposes in the professional liability context, the court said.

But insurers cannot completely rely on consent-to-settle clauses. The high court said “negotiations must be conducted in good faith, and without negligence, …regardless of whether or not the insured eventually will consent.”

In an analysis of the case, insurance attorney Owen Gallagher of the ForbesGallagher law firm said the decision offers an important lesson to professionals who buy errors and omissions coverage. He said they “should listen to their trusted insurance advisers, and buy liability limits two to three times larger than they imagine they might need. Then, preferably, buy additional defense outside limits coverage to augment their liability limit.”

About Jim Sams

Sams is editor of ClaimsJournal.com, the online resource and daily newsletter for property/casualty insurance claims professionals. ClaimsJournal is a member of the Wells Media Group. Sams can be reached at jsams@wellsmedia.com More from Jim Sams

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