Whether double or treble damages under c. 93A must be awarded individually against each defendant, or may be awarded jointly and severally.

The plaintiff was a tenant in the defendants’ apartment building. The two landlords (father and son) had made substantial modifications to the building without appropriate building permits and inspection. As a result, the apartment leaked and grew mold, and the tenant eventually moved out with health complaints.

A jury found that the landlords had been negligent in failing to obtain permits and in subsequent efforts, and awarded actual damages of over $700,000, joint and several. The jury further found that the landlords’ conduct constituted a willful unfair trade practice, in violation of G.L. c. 93A, § 9. The judge agreed, and ordered double punitive damages, also joint and several. The judge declined the plaintiff’s request to award double punitive damages individually against each defendant. (In other words, the judge ordered the two defendants together to pay $700,000 in actual damages and $700,000 in punitive, instead of $700,000 actual damages together and $700,000 each in punitive.)

The landlords appealed the jury award, and the tenant cross-appealed on the judge’s decision not to award individual punitive damages. The SJC transferred the case sua sponte from the Appeals Court.

The judge awarded double damages pursuant to the 93A statute requiring that, “if the court finds for the petitioner, recovery shall be in the amount of actual damages or twenty-five dollars, whichever is greater; or up to three but not less than two times such amount if the court finds that the use or employment of the act or practice was a willful or knowing violation.” G.L. c. 93A, § 9(3).

The question is what should happen, as in this case, when multiple defendants are jointly and severally liable. In one view, total recovery for the petitioner should be two to three times actual damages, and defendants should share the punitive award (joint liability). In the other view, total recovery from each defendant should be two to three times total actual damages, depending on that defendant’s culpability (individual liability).

In International Fidelity Insurance Co. v. Wilson, the SJC determined that each defendant should be individually liable for double or treble damages, reasoning that the language was inconclusive; that the Legislature’s intent was most likely to provide for individual liability, analogizing to punitive damages under the wrongful death statute; and that individual liability served the statute’s intent of encouraging settlement, and punishing each defendant in relation to their culpability. 387 Mass. 841, 853-859 (1983).

The landlords argue that the judge should have freedom to decide between joint and individual punitive damages; International does not explicitly exclude joint liability, and that the Court has recognized judges’ discretion to award joint punitive damages in other contexts, such as where one defendant’s wrongful act was through the other defendant as agent. Augat, Inc. v. Aegis, Inc., 417 Mass. 484, 486 (1994).

The Legislature apparently did not consider the potential for joint and several damages in drafting ch. 93A; it is hard to reconcile the goal of recovering two to three times actual damage with the goal of punishing each defendant individually. The most natural approach would be to apportion actual damages between defendants, and then award double or treble damages on each defendant’s share based on culpability. With no means apparently provided to apportion damages, however, the options seem to be to grant a single joint punitive award, or grant individual punitive awards based on the entire measure of damages. Both approaches will be inequitable at least some of the time. Given that the statute does not explicitly require one or the other, it makes sense to uphold the trial judge in this case and give trial judges discretion to choose between them.

As a mathematical side note, there are cases where the individual liability approach appears to directly contradict the statute. Suppose three defendants share a $1,000 actual damages award (and ultimately pay $333 each). The judge awards individual double damages for willful violation, so each defendant individually owes an additional $1,000. The result is that each defendant will have paid $1,333—which is 1.333 times actual damages, or 4 times their share of actual damages. The plaintiff will have received $4,000, or four times actual damages. In no sense is this recovery “up to three but not less than two times” actual damages, as required by the statute.