Recent Mass. Chapter 93A Case Highlights Key Distinctions Between Sections 9 And 11

In Sentinel Ins. Co., Ltd. v. Broan-Nutone, LLC, 2025 U.S. Dist. LEXIS 184988, the plaintiff (the Insurer), as subrogee of the Assembly of Christians Gospel Hall Association (the Insured), brought a products liability claim against Broan after a ventilation fan allegedly caused a fire that damaged the Insured's property. The Insured asserted breach of warranty, negligence, and Chapter 93A claims under both Section 9 and Section 11. After discovery ended, Broan moved for partial summary judgment on both the Chapter 93A claims, among other things.

The court granted summary judgment for Broan on the Chapter 93A claims. In doing so, the court first drew an important distinction between Section 9 and Section 11 claims, because the Insured had not sent a pre-suit demand letter. As the court noted, Section 9 applies to consumer claims and requires a demand letter before filing suit, unless the defendant does not maintain a place of business or assets in Massachusetts. Section 11, which does not require the sending of a pre-suit demand letter, applies to business claims if the unfair acts or practices occurred "primarily and substantially" within the commonwealth. The Insurer initially based its claim on Section 11 but later switched, arguing that Section 9 should apply because the Insured is a church corporation and not a business within the meaning of Chapter 93A.

As to Section 11, the court found that the "center of gravity" of the alleged unfair conduct (design, manufacture, testing, and sale of the fan) occurred outside Massachusetts. The place of injury (the fire in Massachusetts) was not sufficient to establish that the actionable conduct occurred "primarily and substantially" within the Commonwealth and, therefore, the Insured could not sustain a Section 11 claim.

As to Section 9, the court concluded that the complaint did not allege facts showing Broan lacked a place of business or assets in Massachusetts, which is necessary to invoke the exception to the demand letter requirement. The Insurer conceded this fact and suggested that it would seek leave to file an amended complaint, but the court noted this would be difficult given the late stage of litigation. As the court explained: "The Court is not today deciding if such a motion for leave to file an amended complaint would be viable but notes that this case was removed to this Court 28 months ago on April 10, 2023, discovery closed 5 months ago on March 10, 2025, and this matter is scheduled for trial on November 17, 2025." As a result, the court held that the Insurer's Chapter 93A claim failed under both Section 9 and Section 11. This case demonstrates the differences between Section 9 and 11 and the importance of making sure the claimant is proceeding under the correct section and satisfies the requirements for the chosen section. It also highlights a potential defense strategy of waiting to seek summary judgment on the claim after discovery ends and when a claimant's proof fails to satisfy those requirements.

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