April 2, 2015
This case should interest students of Legislative Drafting and anyone who has ever had the urge to sue an insurance company. It is possible that somewhere (perhaps Antarctica) lives someone (saint or blessed) who falls into neither category.
In 2012 a jury awarded Robert Chiulli damages of more than $4 million for injuries he sustained in a Boston restaurant. Prior to the trial, the restaurant’s insurance company, Liberty Mutual, did not offer to settle. So after winning his lawsuit, Mr. Chiulli sued Liberty Mutual under Chapter 176D, the Massachusetts law that requires insurance companies to make a reasonable offer when liability has become reasonably clear. The Appeals Court has just decided that his case can go forward, despite a novel and imaginative argument from the insurance company’s lawyers, which went as follows:
Letting Mr. Chiulli sue Liberty Mutual would violate the anti-SLAPP statute because the company’s decision to opt for trial rather than settle constituted a “petitioning activity.”
To the lawyer who came up with that one, I tip my hat in salute. The Appeals Court expressed no such admiration for the argument, however, and held that accepting it would “effectively gut c. 176D.”
The abbreviation “SLAPP” stands for Strategic Lawsuits Against Public Participation. The “anti” speaks for itself. Strategic lawsuits against public participation are lawsuits that the Legislature enacted the anti-SLAPP statute to prevent. At the heart of the law lies the notion that people in a self-governing republic should be free to engage in petitioning activities, such as lobbying and voicing opinions at public meetings, without fear of their opponents using the legal system to silence them. So it was a stretch (albeit an admirable one, in my opinion) to turn to the anti-SLAPP statute as a means for an insurance company to fend off a Chapter 176D action.
For any past or future Legislative Drafting students of mine, the rule of statutory construction worthy of your attention appears on page 14 of the decision. It has to do with the timing of the enactment of the anti-SLAPP statute in relation to Chapter 176D. First came Chapter 176D in 1972. Then, 22 years later in 1994, came the anti-SLAPP statute. Does the fact that the Legislature enacted the anti-SLAPP statute after Chapter 176D mean that it intended to undo Chapter 176D? No, said the Appeals Court, quoting from a 2010 decision by the Supreme Judicial Court:
“When construing two or more statutes together, we are loath to find that a prior statute has been superseded in whole or in part in the absence of express words to that effect or of clear implication.”
So a newer statute does not supersede an older old one unless the Legislature says so expressly or by implication. Most of the time, anyway (note the phrase “we are loath to” as opposed to “we will never, ever, under any circumstances”). One option for drafters who wish for greater clarity and certainty is to include a clause similar to that which appears in section 1-105 of the Massachusetts Uniform Probate Code. If you’re into this sort of thing, or somewhat curious, just click the link.
Mr. Chiulli’s case against Liberty Mutual is not over, but it has survived the anti-SLAPP guillotine.