Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Grp.

• Decision Date: 15 October 2014
• Docket Number: SJC–11561.
• Citation: 17 N.E.3d 1056,469 Mass. 800
• Parties: BARRON CHIROPRACTIC & REHABILITATION, P.C. v. NORFOLK & DEDHAM GROUP.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

469 Mass. 800

17 N.E.3d 1056

BARRON CHIROPRACTIC & REHABILITATION, P.C.

v.NORFOLK & DEDHAM GROUP.

SJC–11561.

Supreme Judicial Court of Massachusetts, Norfolk.

Submitted May 5, 2014.

Decided Oct. 15, 2014.

Francis A. Gaimari (Robert N. Fireman & Stephen B. Byers with him), Needham, for the plaintiff.

Joseph R. Ciollo, Boston (Michael L. Snyder with him) for the defendant.

E. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief.

Christopher M. Mountain, for American Insurance Association & others, amici curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.¹

Opinion

LENK

, J.

The personal injury protection (PIP) provision of the automobile insurance statute permits an unpaid party to bring an action for breach of contract against an automobile insurer if the latter has not paid PIP benefits for more than thirty days after those benefits became due and payable. G.L. c. 90, § 34M

, fourth par. If the unpaid party receives a judgment for any amount due and payable by the insurer, it also may recover its costs and reasonable attorney's fees. The primary question before us is whether an unpaid party who has brought suit and thereafter refused the insurer's tender of amounts due and payable, made prior to the entry of judgment, may proceed with the suit and, if successful, obtain a judgment for those amounts as well as its costs and attorney's fees. We conclude that it may proceed with the action under G.L. c. 90, § 34M.

1. Background. The plaintiff, Barron Chiropractic & Rehabilitation, P.C. (Barron), provided chiropractic services to Nicole Jean–Pierre following her automobile accident on August 20, 2008. Jean–Pierre was injured while driving a vehicle insured by the defendant Norfolk & Dedham Group (Norfolk) pursuant to G.L. c. 90, § 34A

, which requires compulsory motor vehicle liability insurance, including PIP benefits.² See G.L. c. 90, §§ 34A, 34M.

Norfolk received notice of the accident on August 22, 2008, and, on October 10, 2008, received Jean–Pierre's application for PIP benefits.³ Shortly thereafter, pursuant to its contractual right under the terms of Jean–Pierre's insurance policy, as well as language in the PIP provision, Norfolk requested that Jean–Pierre

undergo an independent medical examination (IME)⁴ by Kevin Morgan, a licensed chiropractor of its selection. On October 27, 2008, Morgan submitted his IME report to Norfolk. The report stated that, while treatments up to the date of the IME had been appropriate, Jean–Pierre had reached “maximum therapeutic benefit.” Based on this report, Norfolk concluded that treatments Barron provided Jean–Pierre after the date of the IME were unreasonable and unnecessary. A few days thereafter, Norfolk provided Jean–Pierre's counsel with a copy of the report.

Approximately nine months later, on July 27, 2009, Norfolk received a response to Morgan's IME report from Scott Hayden, a licensed chiropractor and a Barron employee. Hayden disagreed with Morgan's conclusion that Jean–Pierre had reached a medical end result at the time of the IME, stating instead that proper rehabilitation had required nine treatment visits after that date. On August 17, 2009, Morgan sent Norfolk an addendum to his initial IME report, indicating that Hayden's rebuttal had not altered his assessment of Jean–Pierre's care, and stating further that subsequent care offered by Barron, while “within acceptable care guidelines” and “reasonable and necessary,” appeared aimed largely at preexisting conditions.

As an additional component of its investigation of Jean–Pierre's claim, Norfolk sent Barron's billing statements to BME Gateway (BME), an independent third party, for financial analysis. BME uses a computer database to determine whether a medical provider has sought fees that are usual, customary, and reasonable within a particular geographic region.

Barron submitted a bill to Norfolk seeking $3,940 in payment for its treatment of Jean–Pierre. Upon review, Norfolk concluded that it was not liable for the entirety of this requested amount. Based on BME's assessment, Norfolk deducted $64.05 from Barron's bill, allowing only $3,875.95 on that ground. In reliance on Morgan's IME report, Norfolk also limited its payment to service provided prior to the date of the IME, declining to pay a further $1,480 in charges for treatment occurring after October 27, 2008. In total, Norfolk determined that it was liable for only $2,395.95 of Barron's submitted fees, resulting in a disputed amount of $1,544.05.

On November 25, 2009, more than one year after Jean–Pierre had submitted her application for PIP benefits, Barron filed a complaint in the District Court.⁵ Barron sought payment of $1,544.05, plus interest, attorney's fees, and costs pursuant to G.L. c. 90, § 34M

; multiple damages and attorney's fees pursuant to G.L. c. 93A, § 11, for alleged unfair or deceptive practices regarding Jean–Pierre's insurance claim; and multiple damages and attorney's fees pursuant to G.L. c. 93A, §§ 9 and 11, for violations of G.L. c. 176D, § 3(9), which prohibits insurers from engaging in unfair settlement practices.

At some point prior to trial, Norfolk learned that Morgan's fee to appear as an expert witness was $500 per hour, with a minimum of five hours to be billed.⁶ Although still maintaining that it did not owe Barron any additional payments, Norfolk determined that its anticipated litigation costs would exceed the amount of the disputed medical fees by a substantial sum. Accordingly, on September 28, 2010, six days prior to the second scheduled trial date,⁷ Norfolk sent Barron a check for $1,544.05 with an attached check stub that stated “full and final settlement for Nicole Jean Pierre.” Norfolk included a letter stating that its payment was made pursuant to Fascione v. CNA Ins. Cos., 435 Mass. 88, 754 N.E.2d 662 (2001)

( Fascione ); the letter requested that Barron sign an acknowledgment of the receipt of final payment and file a stipulation of dismissal in the District Court as to its claims under the PIP provision. On October 12, 2010, Barron's counsel returned the check to Norfolk's counsel with a letter stating, “Your client's offer of settlement is rejected.”

Norfolk then filed a motion for summary judgment as to both the G.L. c. 90, § 34M

, and G.L. c. 93A claims, supported by an affidavit from its claims supervisor, as well as by relevant medical records and BME's financial analysis. Barron filed an opposition, but neither alleged that any issues of material fact remained in dispute, nor included any counter affidavits or other documents

indicating any factual dispute. A District Court judge granted Norfolk's motion for summary judgment, and on Barron's appeal, the Appellate Division of the District Court affirmed the judgment. Barron appealed, and we granted Norfolk's subsequent application for direct appellate review.

2. Discussion. Summary judgment is appropriate where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Community Nat'l Bank v. Dawes, 369 Mass. 550, 553, 340 N.E.2d 877 (1976)

. If the moving party, in its pleadings and supporting documentation pursuant to Mass. R. Civ. P. 56(c), as amended, 436 Mass. 1404 (2002), asserts the absence of any triable issue, the nonmoving party must respond and make specific allegations sufficient to establish a genuine issue of material fact. Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777–778, 991 N.E.2d 1086 (2013). Pederson v. Time, Inc., 404 Mass. 14, 16–17, 532 N.E.2d 1211 (1989). Bare assertions made in the nonmoving party's opposition will not defeat a motion for summary judgment. O'Rourke v. Hunter, 446 Mass. 814, 821, 848 N.E.2d 382 (2006). Mass. R. Civ. P. 56(e), 365 Mass. 824 (1974) (“A party may not rest upon the mere allegations or denials of his pleading”). We review the disposition of a motion for summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007).

Barron contends that summary judgment was inappropriate as to its claim under § 34M

. Because Barron declined Norfolk's late tender, made on the eve of trial, it remained an “unpaid party” pursuant to § 34M, and was entitled to seek a judgment for benefits due and payable. Relying on Fascione, supra, Norfolk maintains that it was entitled to summary judgment once it tendered a complete payment of benefits owed, notwithstanding Barron's rejection of that tender. Because we conclude, for the reasons set forth below, that Barron was permitted to refuse Norfolk's tender and pursue its suit, the order granting Norfolk's motion for summary judgment on the G.L. c. 90, § 34M

, claim must be vacated and the case remanded for trial.

Barron also contests the entry of summary judgment for Norfolk as to the G.L. c. 93A claims. In its opposition to Norfolk's motion, however, Barron did not allege the existence of any factual disputes and submitted no documentation that might reveal such disputes. See Mass. R. Civ. P. 56(e)

(“[A]n adverse party [to a motion for summary judgment] ... must set forth specific facts [in its affidavits and pleadings] showing that there is

a genuine issue for trial”). Accordingly, we affirm the order granting Norfolk's motion for summary judgment on the G.L. c. 93A claims.

a. Claim under G.L. c. 90, § 34M

. The PIP provision, G.L. c. 90, § 34M, specifies that an “unpaid party,” that is, a claimant whose PIP benefits remain unpaid for more than thirty days after those benefits become “due and payable,” shall have the right to bring an action in contract against an insurer to recover those benefits, as well as attorney's fees and costs should the unpaid party prevail.⁸ Under common-law principles of contract, which we have deemed applicable to “action[s] in contract” under § 34M, see Boehm v. Premier Ins. Co., 446 Mass. 689, 691, 846 N.E.2d 1145 (2006) (Boehm ), a plaintiff may reject a defendant's disputed tender of...