Brito v. Liberty Mutual Insurance

1996 Mass. App. Div. 63
CourtMassachusetts District Court, Appellate Division
DecidedApril 12, 1996
StatusPublished
Cited by8 cases

This text of 1996 Mass. App. Div. 63 (Brito v. Liberty Mutual 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
Brito v. Liberty Mutual Insurance, 1996 Mass. App. Div. 63 (Mass. Ct. App. 1996).

Opinion

Sherman, PJ.

This is a G.L.c. 90, §34M action to recover Personal Injury Protection (“PIP”) benefits, costs and attorney’s fees for the defendant’s alleged failure to make timely payment of the plaintiff’s claim for medical expenses incurred after she was struck by a vehicle driven by Richard Williams (“Williams”), the defendant’s insured.

After trial, judgment was entered for the defendant, Liberty Mutual Insurance Company.2 Pursuant to Dist./Mun. Cts. R. A D. A, Rule 8C, the plaintiff has appealed the court’s rulings of law and its denial of her motion for a new trial.

The accident in question occurred on January 12, 1993. The then twelve year old plaintiff proceeded to cross the street with the light as Williams was making a left turn in her direction. Williams did not see the plaintiff until just before the accident, but was able to stop his vehicle just as he reached the plaintiff. The car lightly struck the plaintiff on both knees. The impact was not sufficient even to knock the plaintiff down, and she proceeded unassisted to cross the street. Athough the plaintiff stated that she was not injured, passersby called an ambulance and the plaintiff was taken to Cambridge Hospital. All x-rays were negative, and there was no indication of swelling, bruising, cuts, abrasions or injury of any kind. The plaintiff had been treated for at least two years prior to the accident for knee and back pain. The trial judge found that the accident temporarily exacerbated the plaintiff’s pre-existing knee condition, but that she had fully recovered by the time of trial and required no additional treatment.

Williams filed a motor vehicle accident report on January 15, 1993, and duly notified defendant Liberty Mutual, his insurer. After several unsuccessful efforts, the defendant finally contacted the plaintiff on February 12, 1993. The plaintiff’s mother indicated that she had received only one bill from Cambridge Hospital which she could not locate.

By letter dated April 13,1993, plaintiff’s counsel notified the defendant that he had been retained, and requested a PIP benefits claim form. Three months later, on July 19,1993, the defendant received a completed application for PIP benefits from plaintiff’s counsel. The application briefly described the accident and the plaintiff’s “injuries” indicated that she had been treated at Cambridge Hospital and the Khalsa Chiropractic Office (“Khalsa”), and stated that the plaintiff’s medical bills exceeded $1,368.00. The seven bills attached to the plaintiff’s application totalled only $1,313.27. Six of these were from Cambridge Hospital and one was [64]*64from Khalsa.

The first Cambridge Hospital bill for $567.81 clearly covered emergency room services rendered to the plaintiff on the day of the January 12,1993 accident. On July 20,1993, the next day after receiving the plaintiffs PIP application, the defendant issued payment for the $567.81 Cambridge Hospital bill. As to the remaining bills,3 the defendant requested by letter dated July 20,1993 that plaintiffs counsel forward copies of Cambridge Hospital and Khalsa treatment and examination reports. Correspondence by plaintiffs attorney dated August 2 and August 13, 1993 indicate that certain unidentified reports or records as well as additional Khalsa bills were forwarded to the defendant.

On August 13,1993, the defendant notified both the plaintiff and her attorney that an independent medical examination (“IME”) of the plaintiff had been scheduled for August 23,1993 in Winchester, Massachusetts. On August 16,1993, plaintiffs counsel cancelled the IME on the grounds that the plaintiff could not afford the costs of transportation to Winchester from her home in Cambridge. On August 18.1993, the defendant asserted its right to an IME of the plaintiff and offered to reschedule. The IME was subsequently slated for September 1, 1993 in Cambridge to accommodate the plaintiff, but plaintiffs counsel again cancelled the appointment. The IME was finally rescheduled and conducted on September 8, 1993. While the parties were negotiating an IME date, the plaintiff commenced this G.L.c. 90, §34M action to recover for the defendant’s failure to commence payment of PIP benefits within thirty days of receipt of medical bills.

The plaintiff also continued in the interim to forward additional bills. On September 1 and 3, 1993, the defendant received New England Medical Center bills totalling $393.00 for services provided on March 31 and April 14,1993. The plaintiff also sent a $95.00 bill from a Dr. Fernandez for his examination of the plaintiff on April 7,1995. On September 2,1993, the defendant received additional Khalsa bills. Repeated requests to plaintiffs counsel were made during this period for copies of medical reports and records detailing the services which had been billed.

The IME report was released to the parties at the end of September. On October 1,1993, the defendant issued a PIP benefits check to the plaintiff in the amount of $1,409.13 which included payment of $333.13 in Cambridge Hospital bills, $95.00 on the Fernandez bill, $375.00 for Khalsa invoices and $606.00 for New England Medical Center charges.4 On October 28, 1993, the defendant issued a third check to the plaintiff in the amount of $61.33 which it designated as the balance of the Cambridge Hospital bill.

On December 6, 1993, plaintiffs counsel forwarded a $350.00 Cambridge Orthopedic Center bill to the defendant, which the defendant paid on December 15.1993. The plaintiffs final submission of medical bills for additional Khalsa treatments was received by the defendant on December 23,1993.

The trial judge found that the defendant had properly required an IME, had made timely payment of medical bills submitted by the plaintiff, had continued to issue payments even after commencement of this suit, and believed at the time of [65]*65trial in February, 1995 that no PIP benefits remained due and payable to the plaintiff. The court ruled, inter alia, that “[p]laintiff commenced this suit before the IME with the chiropractor occurred. Plaintiff cannot establish that Defendant failed to comply with its requirements under the statute.”

1. It is essential to note at the outset that at the time the plaintiff commenced this suit on August 24,1993, she had no actionable G.L.c. 90, §34M claim against the defendant for unpaid PIP benefits. The gravamen of her complaint that the defendant was unconditionally obligated to pay all medical bills within exactly thirty days of receipt was devoid of merit and inconsistent with the letter and intent of the statute in question.'

It has been stated that G.L.c. 90, §34M creates a right of action for the non-payment of valid claims for PIP benefits with the prescribed thirty day period. See Dodd v. Commercial Union Ins. Co., 373 Mass. 72, 77 (1977). The relevant language of §34M provides:

Personal injury protection benefits ... 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 therefore have a right to commence an action in contract for payment of amounts therein determined to be due in accordance with provisions of this chapter...

Construing this provision in accordance with the ordinary meaning of the language used, Scheffler’s Case, 419 Mass. 251.

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Bluebook (online)
1996 Mass. App. Div. 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brito-v-liberty-mutual-insurance-massdistctapp-1996.