Cacciola v. Liberty Mutual Insurance

2000 Mass. App. Div. 174, 2000 Mass. App. Div. LEXIS 65
CourtMassachusetts District Court, Appellate Division
DecidedJune 22, 2000
StatusPublished
Cited by1 cases

This text of 2000 Mass. App. Div. 174 (Cacciola 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
Cacciola v. Liberty Mutual Insurance, 2000 Mass. App. Div. 174, 2000 Mass. App. Div. LEXIS 65 (Mass. Ct. App. 2000).

Opinion

Hershfang, P.J.

Counsel for Rosa Cacciola (“plaintiff”) claims he expended $12,435 in lawyers’ time to recover, at best, $1,485 of personal injury protection (“P.I.P.”) benefits. Of that sum, $1,410 was for physical therapy services. Plaintiff was unsuccessful on that physical therapy portion of her claim and has sought no review of that determination. Rather, having been successful in her claim for her unreimbursed co-payment on the cost of an ambulance, $75 plus interest, plaintiff has appealed, asserting in a seven page, unnumbered brief that she “is aggrieved by the award of only $665.30 in attorney’s fees.” In addition, and although there was no request for a ruling on the issue and plaintiffs “Expedited Appeal” statement at most sideswipes it, plaintiff apparently claims the trial judge erred as a matter of law in not finding a so-called chapter 93A violation. We find no error and dismiss the appeal.

The Background

We summarize and take note of the background we think pertinent.

Plaintiff was injured while a passenger in a motor vehicle insured by Liberty Mutual Insurance Company (“defendant”). She also had Blue Cross/Blue Shield (“Blue Cross”) health insurance. Under the P.I.P. provisions of defendant’s policy, G.L.c. 90, §§34A-34N, plaintiff filed claim against defendant seeking reimbursement of over $5,000 for medical treatment and physical therapy costs.

From the “Decision” of the trial judge we learn the following:

The defendant... promptly paid the first $2,000.00 of medical bills submitted to it on the plaintiffs behalf. [Defendant] then notified all providers that the $2,000.00 limit had been reached, and that all other bills should be submitted to [Blue Cross].
[Blue Cross]... paid the bills submitted by its own providers on [plaintiffs] behalf, and all of her ambulance bill minus the deductible of $75.00. [Blue Cross] would have [paid] bills submitted from outside providers if they had been approved in advance, and ... [if] accompanied by checks showing that the plaintiff had paid for their services.

The trial judge determined that plaintiff had not complied with these requirements and ruled that a “claimant who ignores the obligations of her own health insurance policy [and is denied Blue Cross reimbursement because of her failure to obtain pre-approval for physical therapy cannot recover under P.I.P., since] [d]oing so would vitiate the statutory requirement of the coordination of benefits which the [Supreme Judicial Court] has described as ‘the predominant purpose of §34A.’ See Dominguez v. Liberty Mutual Insurance Company, 429 Mass. 112, 117 (1999).” Plaintiffs claim under P.I.P. for reimbursement of her physical therapy costs was thus denied.

The result was different, however, with respect to plaintiffs claim for reim[175]*175bursement for the $75 co-payment for ambulance services. With respect to defendant’s contention that plaintiff failed to file ■ a group health affidavit form confirming she had Blue Cross coverage, the trial judge noted that “[defendant] has established at trial that it was fully aware of [plaintiffs] private health insurance coverage when it notified all providers that their bills should be forwarded to [Blue Cross].” Plaintiff subsequently moved to amend the judgment by adding attorney’s fees, and the judge awarded $665.30. Under G.L.c. 90, §34M, a party who recovers judgment for any P.I.P. sum due and payable by the insured is entitled to “reasonable attorney’s fees.” We turn now to plaintiffs two contentions on appeal.

The “Inadequate” Award of a Counsel Fee

As noted, plaintiff does not contest the denial of the physical therapy cost claim, but her counsel claims he is “aggrieved” by what he views as the inadequate award of counsel fees, “only $665.30,” almost nine times the amount he successfully recovered.

In asserting her claim, plaintiff acknowledges the wispy reed on which it rests. Thus, her counsel in her Notice of Appeal1 frames the issue of law thus: ‘Whether the plaintiff who is [successful only] in obtaining part of the medical expenses claimed under P.I.P. also recovers reasonable attorney fees incurred in the same action related to the unsuccessful pursuit of the other medical expenses claimed by them (sic) under P.I.P.” In her brief, plaintiff poses the issue verbatim the same way.

Plaintiffs counsel cites no case or other authority (and we are unaware of any2) in support of his most remarkable proposition — that the opposing party must pay for counsel fees even when that opposing party is successful. We are hardly surprised at plaintiffs coming up empty on that claim. What encouragement to wasteful work that would be! Moreover, see Simon v. Solomon, 385 Mass. 91, 113 (1982) Qudge may exclude from consideration of an appropriate attorney’s fee award “duplicative and unnecessary work, and work spent on a [claim resulting in a directed verdict for the opposing side].”); see, also, Hanover Ins. Co. v. Sutton, 46 Mass. App. Ct. 153, 176, further appellate review denied, 429 Mass. 1105 (1999) (‘The amount of a reasonable attorney’s fee, awarded on the basis of statutory authority, is largely discretionary with the judge, who is in the best position to determine how much time was reasonably spent on a case, and the fair value of the attorney’s services.”).

Plaintiffs counsel also takes issue with what he perceives was the method the trial judge used in arriving at the amount of counsel fees awarded. Although plaintiffs brief is far from clear on the subject, we believe that it argues thus: Of the $1,485 sought, plaintiff recovered $75, approximately five percent. Of the $12,435 in attorney’s fees sought, $665.30 was allowed, again about five percent. This contention assumes the trial judge accepted plaintiffs affidavit at face value, but the “Affidavit of Fees” is deficient in several respects. It apparently was executed by an attorney who is said to have performed less than one-third of the work for which the claim is made and is signed “to the best of [his] knowledge.” Without detailing anything, it simply lists the names of four lawyers and one paralegal, a [176]*176number of hours and an hourly charge for each. Moreover, an affidavit, though uncontested, need not be accepted. Kahn v. Pacific Mills, 311 Mass. 588, 590 (1942). Plaintiffs contention further assumes the trial judge concluded that the approximately 72 attorney hours claimed to have been spent was appropriately spent. We ignore these contentions since none of these assumptions is supported in the record of this Expedited Appeal. See Hayes v. Retirement Bd., 425 Mass. 468, 474 n.4 (1997) (Court declined to consider one of plaintiffs arguments because of plaintiffs failure to cite anything in the record to support his allegation).3 Moreover, we view it outside the appellate process either to speculate on or second-guess the trial judge’s mental processes any more than would be appropriate in the case of a jury’s determination of damages. See Cassamasse v. J.G. Lamotte & Son, Inc., 391 Mass. 315, 317-318 (1984) (“Juror testimony concerning the mental processes of jurors during deliberations, such as testimony that the jurors did not follow the judge’s instructions, or that they misunderstood the legal consequences of their verdict, or that they were influenced by matters not in evidence, is not permitted to impeach a verdict.”);

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Cite This Page — Counsel Stack

Bluebook (online)
2000 Mass. App. Div. 174, 2000 Mass. App. Div. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cacciola-v-liberty-mutual-insurance-massdistctapp-2000.