Creswell v. Medical West Community Health Plan, Inc.

1 Mass. L. Rptr. 21
CourtMassachusetts Superior Court
DecidedJanuary 7, 1993
DocketNo. 92-1007
StatusPublished

This text of 1 Mass. L. Rptr. 21 (Creswell v. Medical West Community Health Plan, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Creswell v. Medical West Community Health Plan, Inc., 1 Mass. L. Rptr. 21 (Mass. Ct. App. 1993).

Opinion

Moriarty, J.

This is a civil action in which the plaintiff seeks a judgment declaring, in effect, that the defendant is precluded by the provisions of G.L. c. 90, §34A from asserting any lien pursuant to the provisions of G.L. c. 111, §70A against the proceeds of a civil action brought by her against a third party alleging negligence in the operation of a motor vehicle. Hie case is presently before me on the defendant’s motion for summaiy judgment. The following facts appear to be undisputed.

The defendant. Medical West Community Health Plan, Inc. (Medical West), is a health maintenance [22]*22organization (HMO) operating under the provisions of G.L. c. 176G. The plaintiff Creswell is a member of that organization.

On or about October 13, 1989, Creswell was involved in a two-car motor vehicle accident in which she sustained personal injuries. The operator of the other vehicle was one George Wallis.

Creswell's motor vehicle was insured pursuant to the provisions of G.L. c. 90, §§34A-34Q, and her insurer paid her medical expenses resulting from her said injuries to the extent of $2,000.00. The balance of the cost of her medical treatment has been borne by the defendant.

The plaintiff has brought a civil action against Wallis seeking damages for the personal injuries sustained by her in the said accident. The defendant has filed a notice of lien with Creswell, her attorney, Wallis, and Wallis’s insurance carrier pursuant to the provisions of G.L. c. 111, §70B. Section 70B provides the method for asserting and perfecting the statutory lien provided to hospitals, health maintenance organizations and medical or dental service organizations by G.L. c. 111, §70A

G.L. c. 111, §70A provides in pertinent part as follows:

. . . any health maintenance organization which has furnished health services ... to a person injured in ... an accident (that is not covered by the workmens’ compensation act) shall, .. . have a lien for such benefits, upon the net amount payable to such injured person . . . from another person as damages on account of such injury.

Were it not for the provisions of G.L. c. 90, §34A, that section would clearly establish the lien that the defendant seeks to assert. The plaintiff contends, however, that the third sentence of a paragraph inserted at the end of the definition of “Personal injury protection” set forth in Section 34A by St. 1988, c.273, §16, effectively nullifies G.L. c. 111, §70A, at least insofar as it would otherwise apply in her case.

Our Compulsory Motor Vehicle Liability Insurance statutes (G.L. c.90, §§34A-34Q) have never been a model of clarity. They are even less so since the 1988 amendment. An understanding of the issue involved in this case requires a comparison of the pre-1988 provisions of the statute with its amended provisions.

Prior to January 1, 1989 (the effective date of the 1988 amendment), the definition of “personal injury protection" (PIP) set forth in §34A could be paraphrased as describing those provisions of a motor vehicle liability insurance policy or bond which provided for payment to the named insured (and others) of all reasonable expenses incurred within two years from the date of an accident, for necessary medical, surgical, x-ray and dental services, and, in the case of gainfully employed persons, of an amount not to exceed 75% of their lost earnings, “without regard to negligence or gross negligence or fault of any kind, to the amount or limit of at least two thousand dollars.”

Section 34M of Chapter 90 provided (in its second paragraph) that an owner, registrant, operator or occupant of a motor vehicle to which PIP benefits applied who would otherwise be liable in tort was to be exempt from tort liability for damage because of bodily injury to the extent that the injured party was entitled to recover PIP benefits from his insurer.

As a matter of procedure. Section 34M provided that if a person claiming or entitled to PIP benefits brought an action of tort against the owner or operator of a vehicle registered in the commonwealth (and hence covered by PIP), PIP payments that would otherwise be due to such person would not become payable until a settlement was reached or a final judgment rendered, and the amounts then due would be reduced to the extent that damages for expenses or loss otherwise recoverable as a PIP benefit were included in the settlement or judgment.

Section 34M also provided (in its fifth paragraph) that the insurer paying PIP benefits would be sub-rogated “to that exact extent” and could bring an action in tort against any person who was not exempt from liability under the provisions of the second paragraph. In the case of a person who was exempt from liability under the provisions of the second paragraph, it provided such an insurer with the right to make a claim1 for all expenses it incurred on account of such payment, including the net amount of the benefits paid, against any other insurer of a motor vehicle whose owner or operator would, except for the exemption from tort liability provided by the second paragraph, be liable in tort for such damages — but provided that determination of entitlement to maintain such a claim would be made by agreement of the parties or by arbitration rather than by a tort action.

The sixth paragraph of Section 34M permitted an insured to choose a “deductible” if he wished to avoid the cost of such coverage, and hence to reduce or even eliminate the amount of PIP benefits available to him. He could choose a deductible in the amount of $100, $250, $500, $1,000 or $2,000 at his option.

The 1988 amendment (Chapter 273, §15) increased the mandatoiy amount of PIP benefits from $2,000.00 to $8,000.00, but did not change the types of expenses and losses that were to be included in PIP benefits. It accomplished that change by simply striking from the definition of “personal injuiy protection" found in Section 34A the expression, “to the amount or limit of at least two thousand dollars,” and substituting therefor the expression, “to the amount or limit of at least eight thousand dollars.”

[23]*23The 1988 amendment (Chapter 273, §16) then added the following paragraph to the definition of PIP benefits.

Notwithstanding the foregoing, personal injury protection provisions shall not provide for payment of more than two thousand dollars of expenses incurred within two years from the date of accident for medical, surgical, X-ray and dental services, including prosthetic devices and necessary ambulance, hospital, professional nursing and funeral services if, and to the extent that, such expenses have been or will be compensated, paid or indemnified pursuant to any policy of health, sickness or disability insurance or any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental or other health care services. No policy of health, sickness or disability insurance and no contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental or other health care services, shall deny coverage for said expenses because of the existence of personal injury protection benefits.

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Related

Morin v. Massachusetts Blue Cross, Inc.
311 N.E.2d 914 (Massachusetts Supreme Judicial Court, 1974)
Surrey v. Lumbermens Mutual Casualty Co.
424 N.E.2d 234 (Massachusetts Supreme Judicial Court, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
1 Mass. L. Rptr. 21, Counsel Stack Legal Research, https://law.counselstack.com/opinion/creswell-v-medical-west-community-health-plan-inc-masssuperct-1993.