Boffoli v. Premier Insurance

880 N.E.2d 826, 71 Mass. App. Ct. 212, 2008 Mass. App. LEXIS 174
CourtMassachusetts Appeals Court
DecidedFebruary 15, 2008
DocketNo. 06-P-1757
StatusPublished
Cited by12 cases

This text of 880 N.E.2d 826 (Boffoli v. Premier Insurance) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boffoli v. Premier Insurance, 880 N.E.2d 826, 71 Mass. App. Ct. 212, 2008 Mass. App. LEXIS 174 (Mass. Ct. App. 2008).

Opinion

Smith, J.

In October of 2000, the plaintiff, Susan Boffoli, brought an action in the Westborough Division of the District Court Department alleging that the defendant, Premier Insurance Company (Premier), violated its contractual obligations by failing to pay her personal injury protection (PIP) claim pursuant to G. L. c. 90, § 34M. Following a bench trial, the judge found for the plaintiff. Premier removed the case to Superior Court in 2002; in October of 2005, a judge, sitting without a jury, heard the matter. The judge ruled that the plaintiff was not entitled to PIP benefits because she failed to present a completed [213]*213PIP application “as soon as practicable” as required by the statute and that her failure to file the application was a failure to cooperate with Premier as required by the automobile policy. The plaintiff filed a timely appeal.

General Laws c. 90, § 34M, third par., inserted by St. 1970, c. 670, § 4, provides in pertinent part:

“Claim for benefits due under the provisions of personal injury protection . . . shall be presented to the company providing such benefits as soon as practicable after the accident occurs from which such claim arises, and in every case, within at least two years from the date of the accident.... Noncooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section and failure of an insurer to pay benefits in the event of such noncooperation shall not in any way affect the exemption from tort liability granted herein.”

We summarize the judge’s findings of fact. On January 31, 1999, the plaintiff was involved in a motor vehicle accident. Premier insured the plaintiff under a standard Massachusetts automobile insurance policy which provided PIP benefits. In February of 1999, plaintiff’s counsel notified Premier that he was representing the plaintiff and requested an application for PIP benefits.

On February 16, 1999, Premier sent the plaintiff’s attorney a PIP application and a letter stating that the plaintiff was “required by law to present any claim for PIP benefits as soon as practicable after the accident.” The letter further notified plaintiff’s attorney that in order “[t]o initiate your claim and to enable us to begin the process of determining your eligibility for PIP benefits, complete the enclosed form ... as soon as possible. . . . Please do not delay in completing and returning this form, since failure to submit it in a prompt manner will impede our ability to evaluate your claim and adversely affect your eligibility for PIP benefits.”

On March 22, 1999, Premier sent a second letter to the plaintiff’s attorney informing him that they had not received the plaintiff’s PIP application and stating that “[fjailure to cooper[214]*214ate [in submitting the application] will result in the denial of your client’s PIP claim.”

Thirty days later, on April 22, 1999, Premier sent plaintiff’s counsel a certified letter notifying him that the plaintiff’s “failure to return ... a completed PIP application constitutes noncooperation and, accordingly, warrants denial of her claim.” The letter stated that Premier would afford a final opportunity for the plaintiff to present her claim if she returned the enclosed application within one week of receipt of the letter. The plaintiff’s attorney received the third letter on April 26, 1999.

On May 14, 1999, Premier sent plaintiff’s counsel a letter denying the plaintiff’s PIP claim for failing to return the application and not cooperating with the investigation. Plaintiff’s counsel sent Premier a partially completed PIP application on June 4, 1999. On June 16, 1999, Premier again denied the plaintiff any PIP coverage due to her noncooperation.

In the trial before the judge in Superior Court, the plaintiff argued that Premier must demonstrate that it was prejudiced by the late filing of the PIP claim. The judge noted that Premier did not offer any evidence that it suffered prejudice from the late filing of the application but ruled, nevertheless, that “(1) [the plaintiff] did not file a completed PIP application as soon as was practical in the circumstances of her case; (2) Premier gave her ample time to do so and ample warning of the consequences if she did not; and (3) her failure to file a timely application was a failure to cooperate as required by the standard Massachusetts auto policy.” The judge ruled that the plaintiff was not entitled to PIP benefits.

On appeal, the plaintiff does not challenge the judge’s ruling that she did not present her PIP application “as soon as practicable.” She claims, however, that because she did submit her application within two years of the accident, Premier was required to show actual prejudice as a result of the late submission before it could legitimately deny benefits. Because the judge found that Premier did not demonstrate any prejudice, the plaintiff argues Premier improperly denied her PIP benefits.

We start our analysis by noting that G. L. c. 90, § 34M, does not contain language that requires prejudice to be shown by the insurer if the insured does not return the application for PIP [215]*215benefits “as soon as practicable” after the accident. The plaintiff, however, points to G. L. c. 175, § 112, and argues that by the terms of that statute, Premier had to show that it was prejudiced by the late filing of the PIP application.

General Laws c. 175, § 112, as amended by St. 1977, c. 437, requires that an insurance company providing motor vehicle insurance against liability to another cannot “deny insurance coverage to an insured because of failure of an insured to seasonably notify an insurance company of an occurrence, incident, claim or of a suit founded upon an occurrence, incident or claim, which may give rise to liability insured against unless the insurance company has been prejudiced thereby.” Therefore, according to the plaintiff, because Premier did not demonstrate prejudice by the late filing of the PIP application, it could not cancel those benefits.

However, G. L. c. 175, § 112, does not apply to PIP claims, but, rather pertains to liability coverage. The Supreme Judicial Court dealt with a situation analogous to that presented here in Goodman v. American Cas. Co., 419 Mass. 138, 141-142 (1994) (Goodman). In that case the court considered whether an insurer may deny coverage for underinsured motorist benefits because of late notice without proof of prejudice. The court held that the prejudice requirement in G. L. c. 175, § 112, did not explicitly apply to uninsured and underinsured claims. Ibid. The court reasoned that underinsured coverage was not “liability insurance” under G. L. c. 175, § 112, because “[ujninsured and underinsured motorist claims are made to one’s own insurer,” and because such coverages do not provide protection to an insured against liability to a third party. Ibid.

The court held, however, that “[w]e are aware of no distinction . . . between liability coverage and uninsured or under-insured motorist coverage that would call for the application of a different rule concerning the question whether the insurer must prove that late notice to it was, prejudicial.” Ibid. The court therefore extended the prejudice requirement to the late filing of notice for uninsured and underinsured claims reasoning that “[a] requirement that an insurer must prove that it was prejudiced by [216]

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Cite This Page — Counsel Stack

Bluebook (online)
880 N.E.2d 826, 71 Mass. App. Ct. 212, 2008 Mass. App. LEXIS 174, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boffoli-v-premier-insurance-massappct-2008.