MEMORANDUM AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

F. DENNIS SAYLOR, IV, District Judge.

In May 2008, the apartment building in which plaintiffs lived was destroyed by fire. Plaintiffs Gayle Gardner, Crystal Caissie, Louise Felteau, Maria Iocco, Tanya Pulisciano, and Charles and Rebecca Varnes had purchased insurance from defendant First American Property & Casualty Insurance Company through a program under which they were added as additional insureds to the policy of the landlord, defendant Simpson Financing Limited Partnership. Plaintiffs each brought separate actions against Simpson, First American, and an insurance agent, defendant Multifamily Community Insurance Agency, Inc. ("MCIA").

Defendants have moved for partial summary judgment. For the reasons stated below, summary judgment will be granted in part and denied in part.

I. Factual Background

The facts are stated in the light most favorable to the plaintiffs unless otherwise noted.1

Simpson Financing Limited Partnership is the owner of an apartment complex in Peabody, Massachusetts, known as "Highlands at Dearborn." (Pressley Aff. ¶ 11). As of May 2008, the complex included a building at 8 Ashford Trail. (Id.).

First American Property & Casualty Insurance Company is an insurance company licensed to issue property and casualty insurance, including homeowner's and renter's insurance, in Massachusetts. (Court Aff. ¶¶ 3-4). MCIA is an authorized agent of First American in Massachusetts. (Id. ¶ 6).

Plaintiffs rented units or renewed leases for units in 8 Ashford Trail on various dates between August 2007 and March 2008.2 Each plaintiff signed a lease (or a renewal to their lease) that included an addendum concerning liability insurance. (Gardner Dep. at 54-55; Caissie Dep. at 37-38; Felteau Dep. at 10, 35; Iocco Dep. at 38; Pulisciano Dep. at 28; C. Varnes Dep. at 20). Paragraphs 2 through 4 of the addendum state as follows:

(Liability Insurance Lease Add., First American/MCIA Mem. Ex. 11). The lease agreements did not require any tenant to purchase property or contents (as opposed to liability) coverage.

Prior to entering into their leases, Simpson's leasing agent advised plaintiffs that they were required to have renters' insurance to rent the unit. The agent advised them to participate in the Registry TLC Program. (Gardner Aff. ¶¶ 4-5; Caissie Aff. ¶¶ 4-5; Felteau Aff. ¶¶ 4-5; Iocco Aff. ¶¶ 4-5; Pulisciano Aff. ¶¶ 4-5; C. Varnes Aff. ¶¶ 4-5; R. Varnes Aff. ¶¶ 4-5).4

The Registry TLC Program is a program offered by First American whereby renters can obtain insurance. Simpson is the named insured on a Master Policy of "Landlord-Placed Liability Coverage (Contents Optional)" ("Landlord Master Policy") issued by First American. (Court Aff. ¶¶ 11-13, Ex. 1). Renters who participate in the program are not issued entirely separate policies; instead, Simpson adds residents who choose to participate in the Registry TLC Program to the policy as additional insureds. (Id. ¶ 15, Ex. 1). Whenever Simpson adds a resident to the Landlord Master Policy, First American bills Simpson for the additional cost of insuring a tenant. (Id. ¶¶ 15, 21, Exs. 1, 2). The program gives residents the option of purchasing only liability coverage or adding contents coverage for an additional charge. (See Felteau Dep. at 19-20). The cost of the program is then added to the residents' monthly rent. (See id.; Pressley Aff. ¶ 33).5

Plaintiffs elected to participate in the program. Accordingly, upon executing or renewing their leases, Simpson added plaintiffs to the Landlord Master Policy. (Court Aff. ¶ 26). Gardner, Caissie, Felteau, and Charles and Rebecca Varnes obtained $25,000 of liability coverage and $15,000 of contents coverage. (Id. ¶¶ 28, 34, 39, 49). Pulisciano and Iocco obtained only liability coverage. (Id. ¶¶ 44, 53).6 After each plaintiff signed their lease or lease extensions, and signed up for the Registry TLC program, First American sent them a letter. The letter stated:

(Id. ¶ 17, Exs. 3, 4, 5, 6, 7, 8, 9).7 A page entitled "Evidence of Insurance" that contained information applicable to each individual plaintiff was attached to the letter. (Id.; see also id. ¶ 16). The bottom of the Evidence of Insurance page stated, in all capital letters:

(Id., Exs. 3, 4, 5, 6, 7, 9). Plaintiffs paid their insurance premiums under the Registry TLC Program by paying extra amounts to Simpson along with their rent. (Pl. Affs. ¶ 12; see also Felteau Dep. at 20).8

Some plaintiffs believed that they had purchased their own renters' insurance policy through Simpson; they did not understand that they were added to the Landlord Master Policy. (Pl. Affs. ¶¶ 11, 13).9 When signing the lease, some plaintiffs contend that they were not given an opportunity to purchase renter's insurance other than through the Registry TLC program and they were not aware (or it did not occur to them) that they could purchase additional insurance after entering into the lease. (Pl. Affs. ¶¶ 7, 9).10

On May 28, 2008, the building plaintiffs lived in at 8 Ashford Trail was destroyed when bark landscaping mulch used on the property caught fire. (Gardner Compl. ¶¶ 41-45). First American, in accordance with the terms of the insurance policy, paid Gardner, Caissie, Felteau, and Varnes $15,000 for property damage due to the fire. (Gardner Dep. at 68; Caissie Dep. at 51; Felteau Dep. at 43; C. Varnes Dep. at 26; R. Varnes Dep. at 45; see also, e.g., Gardner's Resp. to First American's Interrog. No. 21 ("I do not contend that [First American] failed to pay all sums do to me under the insurance policy.")).

II. Procedural Background

Plaintiffs brought separate actions in the Massachusetts Housing Court, Northeast Division, against defendants alleging negligence, negligent infliction of emotional distress, intentional and negligent misrepresentation, breach of contract, breach of the covenant of quiet enjoyment, nuisance, and violation of Mass. Gen. Laws ch. 93A. On October 26, 2009, defendants removed the actions to this Court on the basis of diversity of citizenship. The actions were then consolidated.

All three defendants have moved for summary judgment as to Count 3, alleging intentional misrepresentation; Count 4, alleging negligent misrepresentation; Counts 5, 10 [sic], and 11, alleging breach of contract; and Counts 7, 9, and 10, alleging violation of 93A. Simpson has moved for summary judgment as to the claims of Iocco and Charles and Rebecca Varnes in Count 2, alleging negligent infliction of emotional distress, and Count 8, alleging nuisance.11 For the following reasons, the motions will be granted in part and denied in part.

III. Legal Standard

Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Balser v. Int'l Union of Elec., Elec., Salaried, Mach. & Furniture Workers (IUE) Local 201, 661 F.3d 109, 118 (1st Cir. 2011). "Essentially, Rule 56[] mandates the entry of summary judgment `against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Coll v. PB Diagnostic Sys., 50 F.3d 1115, 1121 (1st Cir. 1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In making that determination, the Court views "the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009). When "a properly supported motion for summary judgment is made, the adverse party `must set forth specific facts showing that there is a genuine issue for trial.'" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). The non-moving party may not simply "rest upon mere allegation or denials of his pleading," but instead must "present affirmative evidence." Id. at 256-57; Balser, 661 F.3d at 118 ("To defeat a motion for summary judgment, the non-movant must tender significant probative evidence . . . . Brash conjecture, coupled with earnest hope that something concrete will eventually materialize, is insufficient to block summary judgment." (citation and quotations omitted)).

IV. Analysis

A. Intentional and Negligent Misrepresentation (Count 3)

To prove intentional misrepresentation in Massachusetts, "the plaintiff, at a minimum, must establish that the defendant `made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon, and that the plaintiff reasonably relied upon the representation as true and acted upon it to his damage.'" Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 458 (2002) (quoting Danca v. Taunton Sav. Bank, 385 Mass. 1, 8 (1982)); Aliberti v. GMAC Mortg., LLC, 779 F.Supp.2d 242, 248 (D. Mass. 2011). The plaintiff need not show "actual intent to deceive on the part of the defendants"; it is sufficient to show that defendants made a statement that they knew was false and that the statement was not a simply a matter of opinion. Russell, 437 Mass. at 458-59 (quoting Powell v. Rasmussen, 355 Mass. 117, 118 (1969)).

To prove negligent misrepresentation in Massachusetts, plaintiffs must allege that defendant "`(1) in the course of his business, (2) supplied false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance on the information, and that he (6) failed to exercise reasonable care or competence in obtaining or communicating the information.'" Braunstein v. McCabe, 571 F.3d 108, 126 (1st Cir. 2009) (quoting Gossels v. Fleet Nat'l Bank, 453 Mass. 366, 902 (2009)). "A claim of negligent misrepresentation is ordinarily one for the jury, unless the undisputed facts are so clear as to permit only one conclusion." In re TJX Cos. Retail Sec. Breach Litig., 524 F.Supp.2d 83, 91 (D. Mass. 2007) (quoting Nota Constr. Corp. v. Keyes Assocs., 45 Mass.App.Ct. 15, 20 (1998)).

Under Fed. R. Civ. P. Rule 9(b), misrepresentation must be pleaded with specificity. Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 29-30 (1st Cir. 2004); International Floor Crafts, Inc. v. Adams, 477 F.Supp.2d 336, 341 (D. Mass. 2007); see also North Am. Catholic Educ. Programming Found., Inc. v. Cardinale, 567 F.3d 8, 15-16 (1st Cir. 2009).12 To satisfy this requirement, the complaint must "specify the who, what, where, and when of the allegedly false or fraudulent representation." Alternative Sys. Concepts, Inc., 374 F.3d at 29; Adams, 477 F. Supp. 2d at 341 ("[A] claimant alleging fraud or mistake must provide particulars as to the time, place and content of the alleged false or fraudulent misrepresentation.").

Defendants contend that the complaints do not allege misrepresentation with the particularity required by Rule 9(b). The complaints allege that employees of Simpson represented to plaintiffs that they were required to purchase insurance through the Registry TCL program, although they were not in fact required to do so. They also allege that First American represented that their insurance would cover plaintiffs' losses and it did not. As a consequence, plaintiffs opted into the Registry TLC program rather than purchasing different insurance that would have sufficiently covered their losses. (See, e.g., Gardner Compl. ¶¶ 79-80, 82, 92-97). Those allegations are sufficiently specific to satisfy Rule 9(b). Alternative Sys. Concepts, Inc., 374 F.3d at 30.

However, plaintiffs have not adduced any evidence through discovery that any defendants actually made a false statement. The evidence shows that representatives of Simpson told plaintiffs that they were required to have liability insurance, and that if they did not already have insurance that they could participate in the Registry TLC program to satisfy that requirement.13 None of those representations were false.14 The lease required plaintiffs to purchase liability insurance, and the Registry TLC program satisfied that requirement.15 There is no evidence that First American or MCIA made any kind of representation concerning the sufficiency of the coverage. Furthermore, plaintiffs testified that First American paid the policy amounts according to the terms of the Registry TLC program. (Gardner Dep. at 54, 68; Caissie Dep. at 33, 51, 93; Felteau Dep. at 43; Iocco Dep. at 61-62; C. Varnes Dep. at 26; R. Varnes Dep. at 45).

Plaintiffs also contend that Simpson violated various Massachusetts statutes by, among other things, selling insurance without a licensed and by failing to assess their insurance needs. Even assuming Simpson had an obligation to follow these laws and failed to do so, such a failure was not a misrepresentation on Simpson's part.16 Plaintiffs have not presented any evidence that representatives of Simpson claimed to be a license insurance agent or claimed they were selling insurance to plaintiffs.17 The evidence produced only indicates that Simpson's representatives advised plaintiffs to participate in the Registry TLC program, and, pursuant to that program, Simpson added plaintiffs to the Landlord Master Policy. Accordingly, defendants' motion for summary judgment as to the claims of intentional and negligent misrepresentation will be granted.

B. Breach of Contract (Counts 5, 10 [sic], and 11)

In order to prove breach of contract in Massachusetts, plaintiffs must show "that there was a valid contract, that the defendant breached its duties under its contractual agreement, and that the breach caused the plaintiff damage." Guckenberger v. Boston Univ., 957 F.Supp. 306, 316 (D. Mass. 1997) (citations omitted); accord Michelson v. Digital Fin. Servs., 167 F.3d 715, 720 (1st Cir. 1999). The elements of a valid contract are an offer, acceptance, and an exchange of consideration or a meeting of the minds. See Vadnais v. NSK Steering Sys. Am., Inc., 675 F.Supp.2d 205, 207 (D. Mass. 2009).

Plaintiffs contend that Simpson, acting as an agent for First American and MCIA, contracted to provide plaintiffs with "sufficient insurance." (See, e.g., Gardner Opp. to Simpson at 12).18 Despite this, the Registry TLC plan only covered liability and $15,000 of contents coverage, and First American has only paid $15,000 in property damage to plaintiffs Gardner, Caissie, and Felteau, and to the Varneses.19 Plaintiffs do not contend that any of the defendants breached the express terms of the lease or of the insurance policy, and they agree that First American has paid the amounts required under the policy. However, plaintiffs argue that "the strict terms of the contract are not to be applied" because defendants treated the Registry TLC program as satisfying the lease requirement that plaintiffs obtain renter's insurance. (See, e.g., id.). In essence, plaintiffs contend that because the lease required plaintiffs to have renter's insurance, and Simpson treated the Registry TLC program as satisfying that requirement of the lease, there was a contractual obligation to insure plaintiffs adequately against the loss of their personal property.

As an initial matter, there is nothing in the lease documents, nor is there any other evidence, to indicate that Simpson agreed to ensure that plaintiffs had "sufficient" insurance coverage of their personal property or the contents of their apartments. Both the lease and the addendum expressly state that Simpson does not maintain insurance coverage for the personal property of the tenants and encouraged tenants to obtain such coverage on their own. (Lease ¶ 8, Lease Add. ¶ 2, First American/MCIA Mem, Ex. 11). Moreover, plaintiffs testified that they understood that they were obtaining $15,000 in contents coverage. (Gardner Dep. at 54, 59; Caissie Dep. at 33, 93; Felteau Dep. at 43; C. Varnes Dep. at 20).20

Furthermore, the lease did not require plaintiffs to purchase contents coverage. Rather, plaintiffs were only required to "purchase and maintain personal liability insurance covering you, your occupants and guests, for personal injury and property damage any of you cause to third parties (including damage to our property), in a minimum policy coverage amount of $25,000.00." (Lease Add. ¶ 3, First American/MCIA Mem, Ex. 11). Nothing in the lease or its addenda required plaintiffs to purchase insurance to cover their personal property (although the lease encouraged them to do so). The insurance coverage plaintiffs obtained through the Registry TCL program provided $25,000 in liability coverage. Thus, even if there were a contract requiring Simpson provide coverage sufficient to satisfy the insurance requirement in the lease, Simpson did not breach that contract.

Plaintiffs also contend that a contract to insure all of their personal property loss exists by operation of Mass. Gen. Laws ch. 175, § 193. Section 193 states:

Mass. Gen. Laws ch. 175, § 193. As an initial matter, plaintiffs do not appear to contend that the insurance policy they entered into is not valid or binding, only that they thought that the policy provided more coverage than it did. Section 193 does not expand otherwise legal and valid insurance contracts. "Rather, § 193 validates illegally issued policies for the limited purpose of protecting the issuer's insureds." Clarendon Nat'l Ins. Co. v. Amica Mut. Ins. Co., 441 Mass. 248, 256 (2004). Moreover, and in any event, to the extent that plaintiffs may contend that the insurance policy is invalid because Simpson's employees were not licensed insurance agents, there is nothing in Chapter 175 that entitles plaintiffs to contents coverage beyond the $15,000 that First American paid. To be sure, under § 193, "the rights, duties and obligations of the parties [to the policy] shall be determined by [Mass. Gen. Laws. ch. 175]," and, therefore, an insurer can be "liable on a contract different from that made by it." Id. at 254 (quoting Hewins v. London Assurance Corp., 184 Mass. 177, 184 (1903)). However, there do not appear to be any provisions of the insurance policies that are inconsistent with Chapter 175, and therefore the Court will give full effect to all of the provisions of the policies. See id.21

Accordingly, defendants' motion for summary judgment as to the breach of contract claims will be granted.

C. Violation of Mass. Gen. Laws 93A (Counts 7, 9, and 10)

Chapter 93A prohibits "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce." Mass. Gen. Laws ch. 93A § 2. "[A] cause of action under c. 93A is `not dependent on traditional tort or contract law concepts for its definition'" and "is not subject to the traditional limitations of preexisting causes of action." Kattar v. Demoulas, 433 Mass. 1, 12-13 (2000) (citations omitted). However, the plaintiff must demonstrate that "the defendant[s'] actions fell within at least the penumbra of some common-law, statutory, or other established concept of unfairness, or were immoral, unethical, oppressive or unscrupulous." Egan v. Athol Mem. Hosp., 971 F.Supp. 37, 47 (D. Mass. 1997) (quoting Damon v. Sun Co., Inc., 87 F.3d 1467, 1484 (1st Cir. 1996)); VMark Software v. EMC Corp., 37 Mass.App.Ct. 610, 620 (1994); Massachusetts Sch. of Law v. ABA, 142 F.3d 26, 42 (1st Cir. 1998) ("[T]he conduct must at least come within shouting distance of some established concept of unfairness.").22

In addition to alleging breach of contract and misrepresentation, the complaints allege that Simpson violated various Massachusetts statutes regulating insurance agents and brokers and residential landlords.23 Specifically, plaintiffs allege that Simpson violated Mass. Gen. Laws ch. 175 §§ 3, 98, 170, 177A-177D, 181, 194, 19; Mass. Gen. Laws ch. 176D § 3(10); and Mass. Gen. Laws ch. 186 §§ 15, 15B.

Plaintiffs have not produced any evidence to show that Mass. Gen. Laws chapters 175 and 176D apply to Simpson. Simpson is not an insurance agent or broker, and did not sell plaintiffs insurance.24 Moreover, plaintiffs have not alleged or presented any evidence that Simpson was paid to provide insurance advice or otherwise publicly held itself out as an "insurance adviser." See Mass. Gen. Laws ch. 175 § 177A.25

Plaintiffs also contend that Simpson violated Mass. Gen. Laws ch. 186 §§ 15, 15B. Specifically, plaintiffs argue that by requiring them to purchase liability insurance, the lease illegally required them to indemnify their landlord. See Mass. Gen. Laws ch. 186 § 15 ("Any provision of a lease or other rental agreement relating to real property whereby a lessee or tenant enters into a . . . contract . . . the effect of which is to indemnify the lessor or landlord . . . from any omission, fault, negligence or other misconduct of the lessor or landlord . . . shall be deemed to be against public policy and void."). However, "an agreement in a lease that the tenant indemnify or hold harmless the landlord is distinct from an agreement to purchase insurance on the landlord's behalf, which covers the liability of both in the event of a negligently caused injury." Norfolk & Dedham Mut. Fire Ins. Co. v. Morrison, 456 Mass. 463, 473 (2010); accord Great N. Ins. Co. v. Paino Assocs., 364 F.Supp.2d 7, 23 (D. Mass. 2005); see also Peterson v. Silva, 428 Mass. 751, 753 (1999).26

Plaintiffs also contend that Simpson violated Mass. Gen. Laws ch. 186 § 15B by charging them the increased cost of Simpson's insurance premiums after adding them to the Landlord Master Policy. Section 15B(b) states:

Mass. Gen. Laws ch. 186 § 15B(b). Plaintiffs correctly state that § 15B is unambiguous and that strict compliance is required. Hermida v. Archstone, 2011 WL 5925529, at *3-*4 (D. Mass. Nov. 29, 2011) (charging an amenity use fee violates § 15B(b)). However, as discussed, Simpson could legally require that plaintiffs purchase liability insurance. See Peterson, 428 Mass. at 754 ("Prospective tenants ordinarily rely upon the owner of the dwelling to provide fire protection for the realty (as distinguished from personal property) absent an express agreement otherwise. . . . [The landlord] could have insisted that the [tenants] maintain fire insurance." (emphasis added) (citation omitted)). Thus, plaintiffs would have paid the cost of insurance premiums even if Simpson did not offer the Registry TLC program. Unlike a landlord charging tenants an additional amenity-use fee, by maintaining the Master Insurance Policy and adding tenants to it through the Registry TLC program, Simpson was providing an additional service to help tenants comply with a term of their leases. The legislature designed § 15B primarily to protect the interests of tenants. Hermida, 2011 WL 5925529, at *4; see also Taylor v. Burke, 69 Mass.App.Ct. 77, 84 (2007). It would elevate form over function and undercut these legislative concerns to say that Simpson violated the statute by making it more convenient for tenants to meet their requirements under the lease.27 Accordingly, defendants' motion for summary judgment as to plaintiffs' chapter 93A claims will be granted.

D. Nuisance (Count 8)

The complaints include a nuisance claim against Simpson for creating a dangerous condition on the property by using flammable bark mulch. "A private nuisance is actionable when a property owner creates, permits, or maintains a condition or activity on his property that causes a substantial and unreasonable interference with the use and enjoyment of the property of another." Doe v. New Bedford Hous. Auth., 417 Mass. 273, 288 (1994) (emphasis in original); Morash & Sons v. Commonwealth, 363 Mass. 612, 616 (1973). Thus, a nuisance claim requires two separately owned parcels of real property. Doe, 417 Mass. at 288-289 ("[A]lthough a tenant has a sufficient interest in rented property to bring a nuisance suit for interference with that property, the suit can be brought only against the owner of some other piece of property." (citation omitted)).

Simpson is not alleged to own another property on which there is a condition or activity that interferes with plaintiffs' enjoyment of their apartments. Moreover, Simpson is plaintiffs' landlord. As a general matter, "a tenant cannot sue his own landlord for a nuisance on the property that the tenant rents from the landlord." Id. "A suit for breach of the covenant of quiet enjoyment is the proceeding a tenant may bring against his landlord for interference with the use and enjoyment of the rented property." Id at 289 n.16. The nuisance claim against Simpson will therefore be dismissed.

E. Negligent Infliction of Emotional Distress (Count 2)

Plaintiffs also assert a claim of negligent infliction of emotional distress against Simpson. Simpson has moved for summary judgment as to the claims of Iocco and Charles and Rebecca Varnes. To recover for negligent infliction of emotional distress ("NIED") in Massachusetts, a plaintiff must prove "(1) negligence; (2) emotional distress; (3) causation; (4) physical harm manifested by objective symptomatology; and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case." Payton v. Abbott Labs, 386 Mass. 540, 557 (1982). "A successful negligent infliction of emotional distress claim . . . must do more than allege mere upset, dismay, humiliation, grief and anger." Sullivan v. Boston Gas Co., 414 Mass. 129, 137 (1993) (internal citation and quotation marks omitted). Rather, a plaintiff must present "enough objective evidence of harm to convince a judge that their claims present a sufficient likelihood of genuineness to go to trial." Id. at 137-38.

When asked in his deposition about physical signs or symptoms of his emotional distress, Charles Varnes testified that he has never sought medical treatment, and the only things that bother him are the loss of his dogs and that whenever he hears fire trucks, he thinks it may be related to his house. Similarly, Rebecca Varnes testified that as a result of the fire she sometimes feels anxious when she leaves her house and when she sees emergency vehicles. These are not the sort of symptoms that "present enough evidence of physical harm to corroborate a mental distress claim." See, e.g., id. at 138-39 (listing symptoms such as "severe headaches, occasional suicidal thoughts, sleep disorders, reduced libido, fatigue, stomach pains, and loss of appetite [as] sufficient physical symptoms of emotional injury to send a case to trial"); Bernard v. Cameron & Colby Co., 397 Mass. 320, 323 (1986).28

In her affidavit, Iocco states that as a result of the fire, she has suffered depression and debilitating headaches. However, she also suffered from these symptoms before the fire. (Iocco Dep. at 47-48, 58). She contends that her current symptoms were caused by the fire and are distinct from those she suffered from before the fire. (Iocco Aff. ¶ 25). Although she has not presented any expert or other evidence beyond her affidavit to show causation, these symptoms are sufficient for the claim to survive summary judgment. Sullivan, 414 Mass. at 138-39 (stating "symptoms such as headaches or diarrhea, as well as ailments which impair a person's daily life" satisfy the physical manifestation requirement). Whether the fire aggravated Iocco's depression and headaches is a question that can capably be determined by the jury. Cf. Anderson v. W.R. Grace & Co., 628 F.Supp. 1219, 1227 (D. Mass. 1986) ("Where . . . the harm is not obvious to the layman, its existence may not be demonstrated solely by the complaints of the alleged victim; it must also be `substantiated by expert medical testimony.'" (emphasis added)).

Accordingly, summary judgment will be denied as to the NIED claims of Iocco and granted as to the NIED claims of Charles and Rebecca Varnes.

V. Conclusion

For the foregoing reasons, the motions of First American and MCIA for summary judgment are GRANTED. Simpson's motions for summary judgment is GRANTED as to Counts 3, 4, 5, 7, and 8; GRANTED as to the claims of Charles and Rebecca Varnes in Count 2; and DENIED as to the claims of Maria Iocco in Count 2.

So Ordered.