Brito v. Liberty Mut. Ins. Co., 96-P-864

• Decision Date: 12 December 1997
• Docket Number: No. 96-P-864,96-P-864
• Citation: 687 N.E.2d 1270,44 Mass.App.Ct. 34
• Parties: Isaura BRITO 1 v. LIBERTY MUTUAL INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

Page 1270

687 N.E.2d 1270

44 Mass.App.Ct. 34

Isaura BRITO ¹ v. LIBERTY MUTUAL INSURANCE COMPANY.

No. 96-P-864.

Appeals Court of Massachusetts Middlesex.

Argued Oct. 9, 1997.

Decided Dec. 12, 1997.

Miles Siegel, Boston, for plaintiff.

David Hartigan, for defendant.

Before PERRETTA, DREBEN and PORADA, JJ.

DREBEN, Justice.

This appeal by the plaintiff concerns the interpretation of G.L. c. 90, § 34M. The plaintiff, a pedestrian hit by an automobile, argues that that statute unconditionally requires the insurer of the automobile's driver to pay all medical benefits within thirty days of the submission of the bills to the insurer. The defendant, whose contentions were upheld by a District Court judge and on appeal by the Appellate Division, argues that benefits are due and payable only upon reasonable and prompt substantiation of the claims. We agree that the statute entitled the insurer in this case to reasonable substantiation of the claims, more particularly, an independent medical examination.

There is no contention by the plaintiff that the actions of the insurer were unreasonable. Indeed, on the judge's findings ² and the evidence, the plaintiff could not argue otherwise. The judge found that the plaintiff was struck lightly in both knees by an automobile driven by the defendant's insured but was not knocked down, that she had a preexisting knee injury for which she had received treatment, that the accident exacerbated that injury, and that the X-rays taken at the hospital where she received emergency care were "negative."

On July 19, 1993, the insurer received bills from the plaintiff for emergency room hospital services on the date of the accident (January 12, 1993), five other hospital bills for services between January 15 and April 7, 1993, and a chiropractor's bill for services rendered between May 28, 1993 and June 1, 1993. Upon receipt of the bills, the insurer, on July 20, paid the hospital bill for emergency room services but wrote to the plaintiff's attorney asking for reports from the hospital for the later services and for a report from the chiropractor concerning his initial examination. On August 13, after receiving additional records, the insurer wrote to the plaintiff asking her to appear at a medical examination on August 23, 1993. She demurred on the ground that she was unable to get to Winchester, the place of the exam, and after a postponement by the plaintiff, the medical exam was held on September 8, 1993. Additional bills were sent to the insurer, and after the examination most, if not all, were paid.

In the meantime, on August 25, 1993, the plaintiff filed this action alleging, inter alia, that since more than thirty days had passed since receipt by the defendant of the PIP (personal injury protection) benefits application and the $1,193.27 in billings, the defendant insurer had acted in violation of G.L. c. 90, § 34M.

1. The plaintiff's argument that the insurer may not request a physical exam by an insurer-selected physician prior to making payment, or must have the examination completed within thirty days of receipt of the bills, requires an analysis of G.L. c. 90, § 34M. We underline for emphasis certain terms of the statute and set forth a fuller excerpt of the provision in the margin. ³ The statute provides that personal injury protection benefits "shall be due and payable ... upon receipt of reasonable proof of the fact and amount of expenses ... incurred.... In any case where benefits due and payable remain unpaid for more than thirty days, any unpaid party shall ... have a right to commence an action in contract for payment" and may recover reasonable attorney's fees. Claims for benefits shall include a written description of the "nature and extent of injuries sustained, treatment received ... and such other information as may assist in determining the amount due and payable." The statute requires the injured person to "submit to physical examinations by physicians selected by the insurer as often as may be reasonably required and shall do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due."

By using the term "reasonable proof" and by authorizing an independent medical examination as "reasonably required," the statute, contrary to the plaintiff's assertion, permits the insurer, where it has reason to doubt its liability, to require a medical examination by its own physician to assist in determining the "amounts due." The insurer is not required to pay unexplained medical bills merely on the unsubstantiated assertion by the claimant that they represent reasonable and necessary treatment for injuries caused by the accident. As the Appellate Division stated:

"The insurer remains obligated to make full PIP payments within thirty days of receipt of medical reports, hospital or treatment records, IME [independent medical examination] findings or other proof of a claim which could objectively be considered 'reasonable', and which in most cases can be promptly submitted by the claimant. Delay or demand beyond that point automatically exposes the insurer to increased liability in the form of litigation costs, interest and attorney's fees under Section 34M...."

There was here no unreasonable delay, and the insurer was warranted in seeking an independent examination in view of the minor nature of the impact (the plaintiff was not knocked down), the negative X-rays, and the plaintiff's prior knee injuries.

To hold, as the plaintiff contends, that the insurer is obligated to pay medical bills before the examination and report authorized by the statute would nullify the statutory procedure for determining the amounts due. ⁴ Nor is it reasonable, in view of doctors' schedules, to expect the medical examination and report to take place within the thirty-day period.

A number of jurisdictions having similar statutes authorize the insurer to conduct medical examinations if the insurer's request is reasonable. Jowers v. Nationwide Ins. Co., 832 F.2d 1246, 1251-1252 (11th Cir.1988) (applying Georgia law); Hudson v. Omaha Indem. Co., 183 Ga.App. 847, 849, 360 S.E.2d 406 (1987); Neal v. State Farm Mut. Ins. Co., 529 N.W.2d 330, 333 (Minn.1995). See Huntt v. State Farm Mut. Auto. Ins. Co., 72 Md.App. 189, 194-196, 527 A.2d 1333 (1987) (upholding insurer's requiring a medical examination where policy provision, but not the statute, authorized such examination). See generally 5 Long, The Law of Liability Insurance § 28.14, at 121 (1997) ("The insured may be required to submit to a medical examination as a prerequisite for the recovery of personal injury protection benefits").

2. The plaintiff also argues that the trial judge's findings with respect to the defendant's payment of outstanding bills were clearly erroneous. The judge found that

"[a]t the time of trial, Defendant believed that it had paid all of Plaintiff's PIP claim. The trial revealed the possibility that some PIP claims may be outstanding. Defendant has expressed a willingness to consider any outstanding PIP claims which were previously unknown to it."

In denying a ruling requested by the plaintiff that "there is no evidence that receipt of all checks from the Defendant were accepted in full payment of sums incurred for medical services," the judge explained:

"Defendant attempted to pay all claims for PIP. To the extent that it has not done so, this resulted from confusion concerning the amounts due."

In response to one of the defendant's requests for rulings, the judge also found that on October 1, 1993, after receiving the report of the independent chiropractic exam, the...