Barnette v. Commercial Union Insurance

55 Mass. App. Dec. 3
CourtMassachusetts District Court, Appellate Division
DecidedJune 25, 1974
DocketNo. 351086
StatusPublished
Cited by9 cases

This text of 55 Mass. App. Dec. 3 (Barnette v. Commercial Union Insurance) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnette v. Commercial Union Insurance, 55 Mass. App. Dec. 3 (Mass. Ct. App. 1974).

Opinion

Lewiton, C.J.

This is an action of contract in which the plaintiff sued to recover personal injury protection benefits, costs and reasonable attorney’s fees under a motor vehicle insurance policy issued by the defendant, covering expenses for necessary and reasonable medical services incurred by the plaintiff as a result of injuries sustained by him in a motor vehicle accident. During the pendency of the [5]*5action, the plaintiff, purporting to act pursuant to G.L. c. 233, § 19G,1 filed affidavits of a physician and a hospital representative as to charges for medical services claimed to have been rendered to the plaintiff. Thereafter, and before the case was scheduled for trial, th defendant moved to strike such affidavits, on the ground that § 79 G is inapplicable to the instant action, which is one of contract. This motion was allowed, and the affidavits were ordered stricken. Thereupon the justice taking this action certified that “the granting of defendant’s motion to strike so affects the merits of the controversy that it ought, in justice, to be determined by the Appellate Division before further proceedings are had”, reported his decision on the motion to the Appellate Division for its determination, and stayed all further proceedings in the case. G.L. c. 231, § 108.

At the outset, we are confronted with the question of whether we should now review the reported issue, which resolves itself [6]*6essentially to a question as to the admissibility of evidence which may be offered at the trial of this case on its merits. The Supreme Judicial Court has stated on many occasions with reference to reports by judges under statutes 2 comparable to that under which the report here was made to us, that “interlocutory matters should be reported only where it appears that they present serious questions likely to be material in the ultimate decision and that subsequent proceedings in the trial court will be substantially facilitated by so doing.” Commonwealth v. Henry’s Drywall, Inc,. Mass. Adv. Sh. (1972) 1689, 1693; Bendslev v. Commissioner of Public Safety, 328 Mass. 443, 445; John Gilbert Jr. Co. v. C. M. Fauci Co., 309 Mass. 271, 273; John Hetherington & Sons, Ltd. v. William Firth Co., 212 Mass. 257, 259; See Re Vautier, 340 Mass. 341, 344; Angoff v. Angoff, Mass. App. Adv. Sh. (1973) 119, 121. Notwithstanding that a report of such interlocutory matters is authorized by statute, the Supreme Judicial Court “as-9, matter of discretion will postpone decision of issues thus reported until appellate review after trial, where such action seems more appropriate as a matter of judicial administration. There should be no report to such a report except on issues of substantial significance.” Commonwealth v. Benjamin, 358 Mass. 672, 673, fn. 1. [7]*7This Appellate Division may likewise review the exercise of discretion by a single justice in reporting, prior to trial, decisions on interlocutory matters, and may decline to pass on the reported issues if it appears that such issues do not meet the aforementioned standards. Cf. John Hetherington & Sons, Ltd. v. William Firth Co., 212 Mass. 257, 259; Commonwealth v. Henry’s Drywall, Inc., Mass. Adv. Sh. (1972) 1689, 1693.

Were the question reported in this case a routine issue of admissibility of evidence, or even a unique question of admissibility, we would not hesitate to defer a decision on it until completion of the trial of the case. At that time, any and all questions of law properly reported to us could be reviewed. However, it is urged upon us that the issue here reported is one which has arisen on several occasions in other cases in this and other courts, and is likely to arise with even greater frequency as the provisions of the “no-fault” motor vehicle insurance law become applicable to increasing numbers of situations developing out of injuries arising from the operation of motor vehicles in this Commonwealth. Solely on the basis of this consideration, and without thereby being deemed to have established a precedent for reviewing other interlocutory rulings on questions of evidence, we proceed to consider the applicability of G.L. c. 233, § 79G to actions of contract brought to en[8]*8force the liability of insurers for medical expenses under personal injury protection policies issued pursuant to G.L. c. 90, § 34A.

Such an insurance policy must provide, subject to provisions not here material, that the insurer thereunder will pay the named insured all reasonable expenses incurred by him for necessary medical and hospital services rendered to him in connection with injuries sustained as a result of the operation of a motor vehicle within the Commonwealth. § 34M of chapter 90 of the General Laws provides for prompt payment of personal injury protection benefits and provides further that in “any case where benefits due and payable remain unpaid for more than thirty days, any unpaid party shall be deemed a party to a contract with the insurer responsible for payment and shall therefore have a right to commence an action in contract for payments of amounts therein determined to be due in accordance with the provisions of” said chapter 90. The instant action was brought pursuant to the foregoing provisions.

In our opinion, G.L. c. 233, § 79G is inapplicable to this case. By its very terms, that section applies to “an action of tort for personal injuries, or for consequential damages arising therefrom.” 3

It is an accepted canon of statutory construction that meaning and effect must be [9]*9given, if at all possible, to all of the words in a statute, and that none be treated as superfluous. Chatham Corp. v. State Tax Commission, Mass. Adv. Sh. (1972) 1297, 1299-1300; Commonwealth v. McMenimon, 295 Mass. 467, 469. If § 79G were to be constrtied as being applicable to actions of contract as well as to actions of tort, as urged by the plaintiff here, no effect would be given to the words “of tort” in the introductory phrase in the section. The intent of the legislature to limit to actions of tort the admissibility of sworn itemized bills for medical or hospital services is made clear by the language of the statute as enacted. Had the Legislature intended the provisions of this section to be applicable to actions of contract, as well as to actions of tort, it could easily have so provided in express terms, as it did in other sections of chapter 233 of the General Laws, enacted many years prior to the enactment of §79 G. Thus, in §79B of that chapter, the Legislature provided that certain statments of facts should be admissible “in civil cases”, a phrase descriptive of contract, as well as tort, actions. In § 790, certain other statments of fact or opinion were made “admissible in actions of contract or tort for malpractice, error . . .”. If we were j to construe the limited language of § 79 G as broadly as urged by the plaintiff, we would be indulging in judicial legislation rather than in statutory interpretation. Cf. Boston Five [10]*10Cents Savings Bank v. Assessors of Boston, 317 Mass. 694, 701; Commonwealth v. Horton, -Mass. - (April 23, 1974) (Opinion by Wilkins, J., at page 12).

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Bluebook (online)
55 Mass. App. Dec. 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnette-v-commercial-union-insurance-massdistctapp-1974.