Columbia Chiropractic Group, Inc. v. TRUST INSURANCE COMPANY

• Decision Date: 08 July 1999
• Citation: 430 Mass. 60,712 NE 2d 93
• Parties: COLUMBIA CHIROPRACTIC GROUP, INC. v. TRUST INSURANCE COMPANY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

430 Mass. 60

712 NE 2d 93

COLUMBIA CHIROPRACTIC GROUP, INC.¹ v. TRUST INSURANCE COMPANY.

Supreme Judicial Court of Massachusetts, Suffolk.

May 7, 1999.

July 8, 1999.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.

Vincent L. DiCianni (Carlene A. Pennell with him) for the plaintiff.

John D. Boyle (A. Peter Leary with him) for the defendant.

WILKINS, C.J.

The plaintiff Columbia Chiropractic Group, Inc. (Columbia), commenced this action against Trust Insurance Company (Trust) to collect amounts that Columbia alleged were due to it for medical services provided to insureds covered under motor vehicle insurance policies issued by Trust who sustained personal injuries in motor vehicle accidents. Trust asserted by counterclaim that Columbia had engaged in unfair and deceptive billing practices in violation of G. L. c. 93A, §§ 2 and 11, in submitting the bills for medical services that were the subject of Columbia's complaint. Trust alleged that Columbia provided excessive treatment and issued excessive bills, thereby allowing some insureds to incur chiropractic bills in excess of the tort threshold of G. L. c. 231, § 6D.

The case was tried to a jury, with the judge reserving G. L. c. 93A claims for his decision. In a special verdict, the jury answered that Trust neither failed to pay medical bills for reasonable and necessary treatment nor committed unfair acts or practices in its handling of the medical bills submitted by Columbia. On the other hand, the jury found that Columbia had committed "unfair or deceptive acts or practices in submitting unreasonable or unnecessary medical bills to [Trust]." The jury further concluded, however, that Trust had sustained no damages as a result of Columbia's unfair or deceptive acts or practices.

In deciding Trust's counterclaim founded on G. L. c. 93A, the judge rejected the jury's conclusion that Trust had sustained no damages as a result of Columbia's violation of G. L. c. 93A and awarded Trust both its costs "for experts used in this litigation to refute [Columbia's] claims" and the fees and expenses of counsel in this case. He accepted the jury's advisory opinion that the conduct of Columbia "in presenting and litigating unreasonable or unnecessary bills in violation of G. L. c. 93A was willful or knowing." He, therefore, doubled the total of the expense of experts and the fees and expenses of counsel. Columbia appealed, and we granted its application for direct appellate review. We affirm the judgment.

1. Columbia argues, for the first time on appeal, that Trust's G. L. c. 93A claim should be dismissed pursuant to the doctrine of primary jurisdiction. Columbia asserts that Trust's claim alleges violations of regulations of the Board of Registration of Chiropractors (board) and that the board should, in the first instance, deal with such allegations. We disagree. This is not a case in which the proper allocation of responsibilities between the courts and an administrative agency calls for judicial forbearance until agency action has occurred.² See Murphy v. Administrator of the Div. of Personnel Admin., 377 Mass. 217, 221 (1979).

The doctrine of primary jurisdiction applies to regulatory matters specifically entrusted to a particular agency and to matters involving technical questions of fact uniquely within agency expertise and experience. See Casey v. Massachusetts Elec. Co., 392 Mass. 876, 879 (1984); Murphy v. Administrator of the Div. of Personnel Admin., supra at 221. If an agency has the regulatory power to afford a plaintiff relief, exhaustion of the possibility of remedial agency action should ordinarily precede independent action in the courts. See Nelson v. Blue Shield of Mass., Inc., 377 Mass. 746, 752 (1979). Primary jurisdiction is, however, a doctrine exercised in the discretion of the court. See Leahy v. Local 1526, Am. Fed'n of State, County, & Mun. Employees, 399 Mass. 341, 349-350 (1987).

The claim that a G. L. c. 93A violation cannot be advanced directly in a court of law based on a violation of a regulatory agency's regulations lacks merit. Columbia makes no attempt to explain how the board could grant Trust relief under G. L. c. 93A or otherwise. The board has no authority to award G. L. c. 93A damages, and the question of G. L. c. 93A relief has not been committed to it. See G. L. c. 112, § 61. The board has, moreover, no jurisdiction over Columbia, which is not a licensed chiropractor. The question whether Columbia submitted unreasonable bills to Trust, based on the furnishing of unneeded chiropractic services or an overcharging for such services, is not a complicated issue calling for agency expertise. See Vieira v. Schupp, 383 Mass. 739, 743 (1981) (reasonableness and necessity of medical bills appropriately for trier of fact); Victum v. Martin, 367 Mass. 404, 410 (1975) (same). See also Fishman v. Brooks, 396 Mass. 643, 649-650 (1986) (question whether disciplinary rule was violated within province of jury). We see no merit in Columbia's belated assertion that Trust may not press its claim of unfair or deceptive acts or practices based on the very facts that are in dispute in the claims that Columbia asserts against Trust. All claims arising out of the same facts should be heard, where possible, in the same proceeding. See Mass. R. Civ. P. 13 (a), as amended, 423 Mass. 1405 (1996).

2. The judge properly allowed Trust to recover its counsel fees and expenses and expert witness expenses in this case as damages in its G. L. c. 93A counterclaim against Columbia. The judge was not bound by the jury's advisory special verdict that Columbia's G. L. c. 93A violation caused Trust no damages. See Linkage Corp. v. Trustees of Boston Univ., 425 Mass. 1, 22 n.31, cert. denied, 522 U.S. 1015 (1997), and cases cited. He concluded that the advisory verdict was not well founded and, therefore, allowed Trust the cost of defending against Columbia's unwarranted claims.

Columbia does not challenge the judge's finding that its G. L. c. 93A violations were wilful and knowing, a precondition to doubling any damages found. G. L. c. 93A, § 11. Columbia does, however, challenge the lawfulness of granting Trust damages based on its litigation expenses incurred in defending Columbia's action. It argues that there simply were no G. L. c. 93A, § 11, damages to double and, in such a case, a plaintiff is not entitled to attorney's fees, as damages or otherwise. See Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 718 (1989).

The judge accepted the jury's finding that Columbia "committed unfair or deceptive acts or practices in submitting unreasonable or unnecessary medical bills to" Trust. It follows that the judge could properly conclude that Columbia's attempt to collect the amount of those inappropriate bills was an unfair act or practice. Columbia's conduct caused Trust to incur compensable litigation expenses in defense of the claim. See International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 850 (1983). If a violation of G. L. c. 93A, § 11, forces another to incur attorney's fees, those fees are a loss of money or property and may be recovered as G. L. c. 93A damages. See Jet Line Servs., Inc. v. American Employers Ins. Co., supra at 718. Because Trust's litigation expenses were actual damages (a "loss of money") caused by the G. L. c. 93A violation, those expenses were recoverable, and, because Columbia's violation was wilful and knowing, the judge was warranted in doubling them. See G. L. c. 93A, § 11.

Trust's allegation that Columbia had no right to recover on its claim was based on the same facts that Trust relied on asserting its G. L. c. 93A claim. There was no need, therefore, to apportion Trust's counsel fees between the two claims. See Wasserman v. Agnastopoulos, 22 Mass. App. Ct. 672, 682 (1986).

3. Columbia asserts that G. L. c. 90, § 34M, required Trust to pay Columbia's claims "within ten days or give written notice of its intent not to make such payments, specifying reasons for said nonpayment."³ Trust did not pay any...