Chhoeun Ny v. Metropolitan Property & Casualty Insurance

746 N.E.2d 578, 51 Mass. App. Ct. 471
CourtMassachusetts Appeals Court
DecidedMay 7, 2001
DocketNo. 99-P-90
StatusPublished
Cited by10 cases

This text of 746 N.E.2d 578 (Chhoeun Ny v. Metropolitan Property & Casualty 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
Chhoeun Ny v. Metropolitan Property & Casualty Insurance, 746 N.E.2d 578, 51 Mass. App. Ct. 471 (Mass. Ct. App. 2001).

Opinion

Gillerman, J.

The plaintiffs (Ny and Noeun) were injured in an automobile accident on December 12, 1993. The vehicle in which they were injured was insured by the defendant, and they brought separate small claims actions to recover personal injury protection (PIP) benefits from the defendant. The cases were transferred to the regular civil docket of the Lowell Division of the District Court Department and thereafter consolidated. In September, 1998, the appellate division reversed an award of $1 [472]*472in nominal damages and $17,592 in attorney’s fees and entered final summary judgment in favor of the defendant. The plaintiffs appealed. The appeal brings forward an unresolved issue regarding attorneys’ fees in proceedings for the recovery of PIP benefits.

At our request, the parties filed an agreed chronology of events, from which we have taken the following material facts.2

As to the plaintiff Ny: On the day of the accident, Ny was treated at Saints Memorial Medical Center (Medical Center). Thereafter, he was treated by Dr. Donn Paul Rademacher on three occasions in 1993, and by Dr. Edmund Quinn once in January, 1994. On May 16, 1994, the defendant received Ny’s bills and records from the Medical Center and from Dr. Quinn. On May 20, 1994, Ny filed an application for PIP benefits with the defendant. On June 20, 1994, the defendant received Ny’s bills and records of his treatment from Dr. Rademacher.

On May 31, 1994, the defendant notified Ny in writing that (i) it had reviewed the bill of the Medical Center (see note 5, infra), as a result of which it had paid $266 of the Medical Center’s $352 bill for Ny’s treatment, leaving an unpaid balance of $86, and (ii) that it had reviewed Dr. Quinn’s $357 bill, and had paid him $252, leaving an unpaid balance of $105. On July 8, 1994, the defendant paid Dr. Rademacher $287 of his $356 bill, leaving a balance of $69, and it notified Ny in writing the amount it had paid Dr. Rademacher as result of a review of Dr. Rademacher’s bills.

As to the plaintiff Noeun: He received treatment from the Medical Center on the day of the accident, December 12, 1993. On June 20, 1994, Noeun filed his application for PIP benefits. On the same date, the defendant received the Medical Center’s bills and records in the amount of $1,036, of which it paid $582 on July 8, 1994, leaving an unpaid balance of $454. Also on July 8, 1994, the defendant notified Noeun of the amount paid to the Medical Center, and that it was the result of a review of the Medical Center’s bill.

[473]*473It does not appear that the providers,3 at any time, made demand upon the plaintiffs for payment of the balance of their bills, nor does it appear that the plaintiffs, at any time, had reason to believe that they were at risk regarding the unpaid portion of the bills of their providers.

On May 12, 1995, Ny and Noeun each filed a small claims action against the defendant for the unpaid balances due their providers, and for attorney’s fees. Over a year later, Dr. Rademacher (on September 19, 1996), Dr. Quinn (on October 17, 1996), and the Medical Center (on November 7,1996), signed a general release of all claims in favor of Ny and the defendant. The release of the Medical Center was also in favor of Noeun. None of the three releases recited a consideration; each release recited that there had been no “promise or inducement” for the release. The releases were solicited by the defendant, apparently without prior notice to the plaintiffs.

Following the execution of the three releases, the defendant filed a motion for summary judgment on November 18, 1996, and the plaintiffs filed a cross-motion for summary judgment on November 20, 1996. A final judgment was entered in the District Court on September 15, 1997, awarding the plaintiffs $1 in nominal damages and $17,592 in attorney’s fees. Upon appeal to the Appellate Division, the judgment was reversed and summary judgment was entered in favor of the defendant on September 8, 1998. The plaintiffs appealed. We affirm.

The dispositive issue is whether, under the provisions of G. L. c. 90, § 34M, fourth par., which we set out in the Appendix, the plaintiffs are entitled to damages and attorney’s fees and costs.4

Discussion. General Laws c. 90, § 34M, provides that an insurer is obligated to pay PIP benefits, in full, within thirty days following receipt of “reasonable proof of the fact and [474]*474amount of expenses and loss incurred . . . .’’In Brito v. Liberty Mut. Ins. Co., 44 Mass. App. Ct. 34, 37 (1997), we approved the Appellate Division’s description of the potential consequences of an insurer’s failure to make timely payment: “Delay [in payment] . . . beyond [the thirty days] automatically exposes the insurer to increased liability in the form of litigation costs, interest and attorney’s fees under Section 34M

5)

It is undisputed that the defendant did not pay the plaintiffs’ providers in full within the required thirty days nor, indeed, at any time thereafter.5 Instead, each provider signed a general release in favor of the defendant and the plaintiffs.

The plaintiffs, correctly, do not dispute the finality of the releases. See note 4, supra. Each provider acknowledged that he or it was releasing both the defendant and the plaintiffs with respect to a “disputed claim” of the provider for the unpaid balance of his or its bill, thereby bringing the unpaid balance to zero. In this fashion, the defendant, almost three years after the medical services were rendered and more than one year after the plaintiff brought suit, had obtained the acknowledgment of each provider that the payments previously made constituted payment in full. It is this long-delayed disposition of the outstanding bills of the providers — far beyond the permitted thirty-day period — that forms the basis of the plaintiffs’ claims to interest. In this connection, we note that there is nothing in the record suggesting that the defendant, at any time, offered to indemnify the plaintiffs should any provider make claim against either of them for the unpaid balance, and no such claim is made in the defendant’s brief.6

Section 34M provides that “any unpaid party shall. . . have [475]*475a right to commence an action in contract for payment of [PIP benefits] . . . determined to be due . . . [and] [i]f 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” (emphasis added). The plaintiffs argue that, as persons entitled to the PIP benefits, they were “unpaid parties” once their medical bills were not paid in full for thirty days and continuing to the date of the releases. Thus, the argument continues, they were entitled to a judgment for unpaid interest on the overdue amounts, and, as a result of that entitlement, they were then entitled to the attorney’s fees awarded in the District Court, as provided in § 34M. 7

We do not agree that the plaintiffs were entitled to a judgment for interest as an “amount due and payable by the insurer” under § 34M.

The intended beneficiaries of § 34M include persons injured by the insured vehicle, and those who provide them with medical treatment.

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Bluebook (online)
746 N.E.2d 578, 51 Mass. App. Ct. 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chhoeun-ny-v-metropolitan-property-casualty-insurance-massappct-2001.