Chervin v. Travelers Ins. Co.

• Decision Date: 26 December 2006
• Citation: 448 Mass. 95,858 N.E.2d 746
• Parties: Paul N. CHERVIN v. THE TRAVELERS INSURANCE COMPANY & another.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

858 N.E.2d 746

448 Mass. 95

Paul N. CHERVIN v. THE TRAVELERS INSURANCE

COMPANY & another.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued November 6, 2006.

Decided December 26, 2006.

Stanley W. Wheatley for the plaintiff.

Thomas F. Maffei (Scott McConchie with him), Boston, for The Travelers Insurance Company.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, SOSMAN, & CORDY, JJ.

GREANEY, J.

The background of this appeal, in brief outline, is as follows. The Travelers Insurance Company (defendant) paid a lump-sum settlement of $775,000 on the workers' compensation claim of Edward Mosher, and then commenced a medical malpractice subrogation action under G.L. c. 152, § 15, against Paul N. Chervin (plaintiff), a neurologist, claiming that he failed to render appropriate medical care to Mosher, thereby making him liable for the accident in which Mosher was seriously injured. The subrogation action concluded with a judgment in the plaintiff's (Chervin's) favor (dismissed with costs), and he then commenced this action against the defendant and its attorney Richard J. Sullivan claiming that their actions in filing the medical malpractice subrogation action constituted malicious prosecution, abuse of process, and a violation of G.L. c. 93A, §§ 2 and 11. A judge in the Superior Court granted the defendants' motions for summary judgment. The plaintiff appealed from the termination of his malicious prosecution and G.L. c. 93A claims.² The Appeals Court, in a divided decision, upheld the summary judgment on the malicious prosecution claim and concluded that it was unnecessary to address the G.L. c. 93A claim. Chervin v. Travelers Ins. Co., 65 Mass.App.Ct. 394, 395 n. 2, 405, 840 N.E.2d 983 (2006). We granted the plaintiff's application for further appellate review. We reverse the judgment on the malicious prosecution claim and affirm the judgment on the G.L. c. 93A claim.

Because the case is one of summary judgment, we summarize the facts in the light most favorable to the nonmoving party, the plaintiff. G.S. Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 263, 571 N.E.2d 1363 (1991), and cases cited. In July, 1995, Dr. Howard Richter, a primary care physician, referred his patient, Mosher, who had suffered a seizure, to the plaintiff for neurological evaluation and treatment. The plaintiff saw Mosher on several occasions between August, 1995, and February, 1996. On July 9, 1996, over four months after his last visit to the plaintiff, Mosher, who was working, was involved in a single-vehicle automobile accident that left him a quadriplegic.

The defendant was the workers' compensation insurer for Mosher's employer. After the defendant denied Mosher's claim for workers' compensation benefits, Mosher commenced a proceeding at the Department of Industrial Accidents. Mosher was represented by attorney Martin Schneider. The defendant was represented by Terrance Reilly, an attorney employed by it.

The workers' compensation proceedings lasted over two years. Throughout that time, the defendant argued that Mosher's injuries were not work related because the accident had occurred on his way to a medical appointment, and it asserted a defense under G.L. c. 152, § 27, claiming that Mosher's injuries were the result of his own wilful misconduct in failing to follow Richter's, and the plaintiff's, instructions to take Dilantin (an antiseizure medication) and not consume alcoholic beverages.³ In support of its § 27 defense, the defendant obtained an expert opinion from a neurologist that stated:

"Having reviewed the available medical records regarding Edward Mosher at your request, he has quite a significant history of alcohol abuse to an estimated six bottles of whiskey per week, as much as a gallon a day over weekends .... An addendum to his history and physical dated July 9, 1996 indicates that according to his wife, he was a heavy, heavy alcohol user with frequent seizures related to the alcohol use. The day of the accident was his first day back at work after heavy alcohol use for a week while on vacation. In these regards, it seems a distinct probability that his accident was not work related, instead due to a pre-existing seizure disorder for which he was noncompliant with medication, with recent alcohol use probably contributing...."

The defendant obtained a second opinion from a different neurologist:

"In summary, Mr. Mosher's motor vehicle accident of 7/9/96 was due to his noncompliance with medication instructions to use Dilantin, and physician instructions to avoid alcohol, resulting in a seizure.... If Mr. Mosher had been compliant with his medication, and had followed instructions regarding abstinence from alcohol, it is my opinion, within reasonable medical certainty, that his seizure disorder would have been well controlled, and that the motor vehicle accident, and related injuries would not have occurred."

In April, 1999, the defendant and Mosher were engaged in settlement negotiations.⁴ Schneider raised the possibility of a third-party medical malpractice action against Richter and the plaintiff. On April 22, 1999, Reilly sent a memorandum to the defendant's workers' compensation case manager, Dennis Dunn, concerning settlement and any lien the defendant might acquire with respect to a possible third-party claim. In that memorandum, Reilly informed Dunn that "five attorneys who practice in the medical malpractice field have rejected the case." Reilly stated, "I do not think that the third party claim is viable in the first place." Reilly also stated, "I do not think that the employee has a chance to succeed in a third party action."

In May, 1999, the defendant settled Mosher's workers' compensation claim for $775,000. On June 15, 1999, Schneider informed Reilly that he "finally" had found an attorney, Linda Abrahams, willing to take the third-party claim, but that Mosher did not want to pursue it. Reilly notified Dunn of these developments, advising him that the statute of limitations would run on July 8, 1999, and that the defendant could bring a subrogation claim in Mosher's name.

The defendant transferred the file from Dunn to Teresa Pacheco, a claim representative in its subrogation unit. Pacheco reviewed the medical records (but nothing else) in the defendant's workers' compensation file on Mosher, and read the computerized claim notes (which included references to the § 27 defense and the text of Reilly's April 22, 1999, memorandum to Dunn). Pacheco spoke with Dunn who referred her to Reilly who, in turn, referred her to Schneider. On July 1, 1999, Pacheco spoke with Schneider. Schneider stated that he had had six lawyers review Mosher's case for possible medical malpractice. Four of the lawyers expressed their opinions that, even if Mosher's doctors had intervened correctly, the accident still would have occurred, and another lawyer rejected the case because of Mosher's lack of cooperation. Pacheco told Schneider that, if the defendant went forward with the third-party action, it would need Mosher's involvement. Schneider told Pacheco that Mosher did not want to pursue the claim at that time, but that Schneider felt he would "be able to talk him into cooperating" in the future.

Pacheco then spoke with Abrahams. Pacheco had never heard of Abrahams and knew nothing about her background or whether she was qualified to evaluate a medical malpractice claim. According to Pacheco's claim notes, Abrahams told Pacheco that she had discussed the claim with an "expert" on a "preliminary basis" and the expert stated that "certain protocols should have been taken (detox, revoke license and family involvement) and this was not done." Abrahams did not identify the expert for Pacheco or state the expert's qualifications or information on which the expert relied. Abrahams opined that the defendant's chances of success on a medical malpractice claim were slightly over fifty per cent.

Another employee in the subrogation unit, Maureen Bolger, also reviewed the claim notes in the file and spoke with Pacheco, who told her that Abrahams had said the case had merit. Bolger understood Abrahams to have expertise in medical malpractice claims.⁵ On July 6, 1999, after discussions with the defendant's regional manager of subrogation, Ted Moscala, Bolger and Moscala made the decision to file the medical malpractice suit. According to Bolger's claim note, the decision to sue was "based on the paids," namely, the large settlement amount paid to Mosher. In her deposition, however, Bolger stated that the decision to file the medical malpractice action against the plaintiff "was based on what had developed in the file." Also according to Bolger's claim note, Bolger and Moscala sought to engage counsel (Abrahams) on a basis that would allow the defendant to abandon the claim at any time. They envisioned that Abrahams would work with one of the defendant's subrogation panel lawyers, Richard J. Sullivan, in a cocounsel arrangement.

The next day, Bolger made contact with Sullivan. Sullivan specifically asked Abrahams what should be done in light of the facts that the defendant lacked an expert opinion and the statute of limitations was about to run. Abrahams told Sullivan that it was her practice in these circumstances to file the complaint, but to withhold service until she obtained an expert opinion. According to Bolger's claim note, Sullivan then called Bolger, and they decided to go ahead. Bolger's claim note entry states: "Counsel will forward records for a review by an[ ] expert and if opinion is favorable, we will serve complaint."

On July 8, 1999, the defendant filed a complaint in Mosher's name against the plaintiff and Richter in the Superior Court. The complaint was drafted by Abrahams, but signed and filed by Sullivan. Abrahams declined the cocounsel arrangement. The defendant never obtained an expert willing to give an opinion in support of the claim. The defendant, however, served the...