In an action arising from a skiing accident occurring at Jiminy Peak Ski Area wherein a six (6) year old skier was injured after being struck by snowboarder, the injured minor plaintiff and his father filed a claim against the snowboarder’s homeowner’s carrier under G.L. c. 93A for failure to make a reasonable settlement offer after liability had become clear. The underlying tort claim against the snowboarder had settled prior to the trial of the 93A claim. The snowboarder was insured under a homeowner’s policy issued to his mother. The matter was tried, jury-waived, in Berkshire Superior Court. Attorneys David Hassett and Scott Ober defended the defendant insurer, arguing that the adjuster had investigated the matter and determined that the witness statements conflicted as to the happening of the accident. Further, contrary to the plaintiff’s allegations that the adjuster had at one point conceded liability, the defense argued that the adjuster had never done so. The plaintiff asserted that the snowboarder was clearly 100% liable for the accident based upon the provisions of the ski statute, G.L. c. 143, § 71O. The defense argued that the ski statute did not apply to snowboarders and that the willful, wanton and reckless standard, as opposed to simple negligence standard, applied to personal injury cases arising out of an athletic event such as skiing. Moreover, the defense argued that even if the adjuster’s assessment of liability had been erroneous, his actions did not constitute bad faith or a violation of G.L. c. 176D. Superior Court Judge Daniel Ford agreed, stating that there was no persuasive evidence of any bad faith on the insurer’s part and that a “mere mistake in the evaluation of a claim, i.e. bad judgment, does not constitute bad faith.” Judgment was entered in favor of the defendant insurer.
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