Bohorquez v. Metropolitan Property & Casualty Insurance

2000 Mass. App. Div. 226, 2000 Mass. App. Div. LEXIS 84
CourtMassachusetts District Court, Appellate Division
DecidedAugust 10, 2000
StatusPublished
Cited by5 cases

This text of 2000 Mass. App. Div. 226 (Bohorquez v. Metropolitan Property & Casualty 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
Bohorquez v. Metropolitan Property & Casualty Insurance, 2000 Mass. App. Div. 226, 2000 Mass. App. Div. LEXIS 84 (Mass. Ct. App. 2000).

Opinion

Coven, J.

This is a Dist./Mun. Cts. R. A. D. A., Rule 8C, appeal by the defendant-insurer of the entry of summary judgment for the plaintiff on her G.L.c. 90, §34M claim for Personal Injury Protection (“PIP”) benefits.

The record indicates that on March 14, 1997, plaintiff Marta Bohorquez was struck by a car as she crossed the street in the crosswalk at the intersection of Harvard Street and Commonwealth Avenue in Allston. She sustained serious injuries which included a fractured left elbow and a permanent partial loss of function in her left arm. The driver of the car stopped, exited the vehicle, quickly checked on the plaintiff and then drove away without identifying himself. The plaintiff could later describe him only as thin and male. A witness wrote down the license plate number of the car which had hit the plaintiff and gave the number to her at the scene. The identity of that witness was never learned.

A check of Registry of Motor Vehicle records revealed that the car which struck the plaintiff was owned by one George Thompson and insured with defendant Metropolitan Property & Casualty Insurance Co. (“Metropolitan”). On April 10, 1997, the plaintiff submitted a PIP claim to Metropolitan, and the insurer immediately began an investigation. Four months later, on August 15, 1997, the plaintiff forwarded $17,197.00 in medical bills and records to the defendant. On October 13, 1997, Metropolitan denied the plaintiffs PIP claim on the grounds that its insured, George Thompson, had denied any involvement in the hit and run injury to the plaintiff; and that after canvassing the accident area, Metropolitan was unable to locate any witness to the incident. The plaintiff commenced this action on October 24,1997.

In December of 1998, the plaintiff served deposition subpoenas upon George Thompson, his wife Marjorie, and their son, Jason. Apparently prompted by the threat of being deposed, George Thompson finally came forward on December 31, 1998 and informed Metropolitan that he and his family had lied in their statements to the insurer, and that his son Jason was in fact the driver of the car which struck the plaintiff. On the same day, Metropolitan issued a check payable to the plaintiff in the maximum PIP benefit amount of $8,000.00.

The plaintiff was able to learn through discovery that well prior to her commencement of this suit, Metropolitan’s own investigation had resulted in the collection of patently conflicting statements by all three Thompsons. On August 11, 1997, Jason Thompson had admitted in a telephone interview with a Metropolitan investigator that on March 14,1997, the date of the plaintiffs accident, he had in fact driven his father’s car to work at a location not far from the accident site, and [227]*227that he was involved in an automobile accident. Jason claimed, however, that his accident occurred on North Harvard Street, that he exchanged papers with the other driver, and that he told his mother later that day that he had been in an accident with his father’s car. Jason’s mother, Marjorie, had previously informed a Metropolitan representative in a May 2,1997 interview that only she and her husband had driven the car on March 14, 1997, and that her husband had been in a car accident earlier that day with someone other than the plaintiff. Marjorie also claimed that the damage to the car resulted from vandalism which occurred in a mall parking lot while she was inside shopping during the evening hours of March 14,1997. The Thompsons in fact filed an insurance claim with Metropolitan for the damaged windshield.

The record is devoid of any evidence that Metropolitan ever investigated or attempted to verify George Thompson’s alleged accident with another driver on March 14,1997, Jason Thompson’s alleged accident with still a different driver in the same car on the same day, or even Marjorie Thompson’s claim of vandalism to the same car on the same date. Further, there is no indication that Metropolitan even conducted second interviews with any of the Thompsons to resolve the glaring contradictions in their stories. Metropolitan instead accepted their conflicting statements at face value, and denied the plaintiff’s statutory claim.

1. One month after the Thompson confession and Metropolitan’s payment of full PIP benefits to the plaintiff, Metropolitan filed a motion for summary judgment.1 The sole issue presented by that motion and the plaintiffs subsequent cross-motion was whether PIP payments had remained due and payable for more than thirty days prior to the October 14,1997 filing of this action so as to have entitled the plaintiff to recover costs and attorney’s fees pursuant to G.L.c. 90, §34M. The statute provides, in relevant part:

Personal injury protection benefits and benefits due from an insurer... shall be due and payable as loss accrues, upon receipt of reasonable proof of the fact and amount of expenses and loss incurred.... In any case where benefits due and payable remain unpaid for more than thirty days, any unpaid party ... shall... have a right to commence an action in contract. ... If the unpaid party recovers a judgment for any amount due and payable by the insurer, the court shall assess against the insurer in addition thereto costs and reasonable attorney’s fees.

Metropolitan argues that PIP benefits never remained unpaid for thirty days because it made full payment of the plaintiffs claim on the same date the benefits became due and payable; namely, December 31, 1998, when Metropolitan received unimpeachable proof, in the form of the Thompson confession, that the plaintiffs injuries were caused by its insured. In denying Metropolitan’s summary [228]*228judgment motion, the court ruled:

The defendant, however, should have recognized the remarkable coincidence of the Thompsons’ multiple other accidents on March 14,1997, and the inconsistencies in the stories of the family members and either paid the plaintiffs claim or conducted a more through investigation, which would have exposed the Thompsons’ lies. The shoddiness of the defendant’s investigation is comparable to the insurer’s sloppy record keeping in Fascione v. CNA Ins. Co.... I therefore find that the PIP benefits were due within thirty days of August 15,1997, when the plaintiff submitted all of her medical bills.

The court entered summary judgment for the plaintiff in the amount of interest on the PIP benefits which remained unpaid from August 15, 1997 to December 31, 1998, plus reasonable attorney’s fees and costs. See Fascione v. CNA Ins. Cos., 1997 Mass. App. Div. 132, 133-134.

There was no error.

2. On the undisputed material facts of this case, the question of when there was reasonable proof of the plaintiffs loss so as to have rendered PIP benefits due and payable under G.L.c. 90, §34M was one of law for the motion judge. See generally Lexington v. Bedford, 378 Mass. 562, 566 (1979). See also Royal-Globe Ins. Co. v. Craven, 411 Mass. 629, 632 (1992).

Metropolitan argues that in filing only the identification by an unknown witness of Thompson’s license plate number, the plaintiff failed to submit reasonable proof of loss before August 15,1997. Metropolitan relies on our statement in Brito v. Liberty Mut. Ins. Co., 1996 Mass. App. Div. 63, that reasonable proof of loss under §34M requires “some form of ‘independent evidence’...

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Cite This Page — Counsel Stack

Bluebook (online)
2000 Mass. App. Div. 226, 2000 Mass. App. Div. LEXIS 84, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohorquez-v-metropolitan-property-casualty-insurance-massdistctapp-2000.