Korn v. Paul Revere Life Ins. Co.

• Decision Date: 13 March 2013
• Docket Number: No. 12–P–432.,12–P–432.
• Citation: 83 Mass.App.Ct. 432,984 N.E.2d 882
• Parties: Lawrence D. KORN v. The PAUL REVERE LIFE INSURANCE COMPANY.
• Court: Appeals Court of Massachusetts

83 Mass.App.Ct. 432

984 N.E.2d 882

Lawrence D. KORN

v.The PAUL REVERE LIFE INSURANCE COMPANY.

No. 12–P–432.

Appeals Court of Massachusetts, Worcester.

Argued Jan. 16, 2013.

Decided March 13, 2013.

Jonathan M. Feigenbaum, Boston, for the plaintiff.

Joseph M. Hamilton (David L. Fine with him), Westborough, for the defendant.

Present: KANTROWITZ, MEADE, & AGNES, JJ.

MEADE, J.

Lawrence D. Korn, a resident of the State of Michigan, appeals from an order that granted summary judgment to The Paul Revere Life Insurance Company (Paul Revere) on res judicata grounds. On appeal, Korn claims his present claim was not barred by claim preclusion, and the judge erred in granting the motion for summary judgment. We affirm.

[83 Mass.App.Ct. 433]1. Background. In 1988, Paul Revere issued a disability policy to Korn that would provide Korn, an attorney, with monthly payments in the event he became occupationally disabled and was unable to perform the “important duties of [his] occupation.” In 2000, Korn claimed that psychiatric problems, depression, and memory problems led him to abandon his law practice. In October of that year, Korn filed a claim for benefits under the disability policy. In 2001, Paul Revere denied Korn's claim on two grounds: first, the evidence provided did not support Korn's claim that he was unable to work, and second, Korn had not satisfied the proof-of-loss requirement because he failed to submit the information Paul Revere had requested.

a. Federal court. In 2004, Korn brought suit in the United States District Court for the Eastern District of Michigan (District Court) against Paul Revere for breach of contract, claiming that Paul Revere wrongfully withheld disability benefits that were due under the policy. In 2005, a District Court judge initially allowed Paul Revere's motion to dismiss the suit as untimely under a contractual limitation period. In 2007, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit), in an unpublished decision, reversed in part and remanded the case to the District Court. On remand, the District Court required that discovery be completed by September 30, 2008, and that all pretrial motions be filed by October 30, 2008.

While the case was on appeal in 2005, the insurance regulators of all fifty States conducted an investigation into questionable claims-handling practices of various insurance companies, including Paul Revere. The investigation resulted in a regulatory settlement agreement (RSA) between the regulators and the targeted insurance companies, in which the companies agreed to heightened claims assessment requirements and to reevaluate certain claims that had previously been denied.

On October 30, 2008, Paul Revere moved for summary judgment in District Court, claiming that Korn had failed to provide adequate proof of loss to qualify for benefits and that Paul Revere was therefore entitled to judgment as a matter of law. On November 13, 2008, Korn moved for leave to amend his complaint to state an additional breach of contract claim based on Paul Revere's alleged breach of the RSA between it and the insurance regulators of various States, an agreement to which Korn contends he is a third-party beneficiary. On December 31, 2008, the District Court denied Korn's motion to amend and granted Paul Revere's motion for summary judgment. Korn appealed the denial of both orders to the Sixth Circuit, which affirmed the decision of the District Court in all respect in an unpublished decision dated June 25, 2010. Korn v. Paul Revere Ins. Co., 382 Fed.Appx. 443 (6th Cir.2010) (Korn I ).

On the merits, the Sixth Circuit concluded that Korn did not adequately document his claimed disability and loss of income and that Paul Revere did not breach the policy by so deciding. As to Korn's motion to amend, the court concluded that Korn had failed to show “good cause” or “excuse” for his late request. The court held that the RSA—the contract on which Korn's proposed amendment is based—had been publicly available since its implementation in January of 2005. The court also held that “Korn was clearly aware of the RSA when he asked [a Paul Revere employee] about it in her deposition on October 23, 2008.... Yet Korn did not move to add his claim for breach of the RSA until November 13, 2008, forty-four days after the close of discovery and fourteen days after the deadline for filing pretrial motions requiring extensive briefing. Because Korn [did] not explain his delay in moving to amend, Korn [did not satisfy] the ‘good cause’ requirement.”

Similarly, because Korn did not explain why, after receiving actual knowledge of the RSA, he waited to seek leave to amend until after the expiration of the discovery and motion-filing deadlines, the court held that Korn did not satisfy “the requirement imposed by the scheduling order that motions to amend the complaint ‘be made promptly after receipt of the information upon which the proposed amendment is based.’ ” In the end, the court determined that the District Court's denial of the motion to amend was not an abuse of discretion.

b. State court. In April, 2010, while Korn's appeal of Korn I was pending in the Sixth Circuit, Korn filed the instant matter in the Superior Court ( Korn II ). In this complaint, Korn alleged the same claim that he unsuccessfully attempted to add to his suit in District Court in Michigan, i.e., that Paul Revere had breached the RSA by, essentially, failing to notify him that he could have his disability claim denial reconsidered. Paul Revere moved for summary judgment, generally contending that the Sixth Circuit decision in Korn I precluded Korn's present claim. The judge granted summary judgment to Paul Revere, and Korn appeals.

2. Discussion. a. Standard of review. Summary judgment is proper where there is no genuine issue of material fact, and when viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, 575 N.E.2d 734 (1991); Boazova v. Safety Ins. Co., 462 Mass. 346, 350, 968 N.E.2d 385 (2012); Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). “[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in [rule] 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.” Kourouvacilis v. General Motors Corp., supra. Our review is de novo, see Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n. 1, 686 N.E.2d 1303 (1997); we consider the record and the legal principles involved without deference to the judge's reasoning. See Clean Harbors, Inc. v. John Hancock Life Ins. Co., 64 Mass.App.Ct. 347, 357 n. 9, 833 N.E.2d 611 (2005).

b. Choice of law. The parties disagree as to the applicable law in the circumstances of this case. Korn utilizes Massachusetts res judicata law to fashion his argument that it was error to allow Paul Revere summary judgment. Paul Revere and the Superior Court judge analyzed the claim under Michigan law because “in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits.” Taylor v. Sturgell, 553 U.S. 880, 891 n. 4, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008). While Korn I was a diversity action brought pursuant to 28 U.S.C. § 1332(a)(1), Korn II, brought in Superior Court, is not. “When a State court is faced with the issue of determining the preclusive effect of a Federal court's judgment, it is the Federal law of res judicata which must be examined.” Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 449, 440 N.E.2d 1164 (1982). See Aronovitz v. Fafard, 78 Mass.App.Ct. 1, 5, 934 N.E.2d 851 (2010); Restatement (Second) of Judgments § 87 (1982).¹

In Federal court, “[t]he preclusive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as ‘res judicata.’ Under the doctrine of claim preclusion, a final judgment forecloses ‘successive litigation of the very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’ ” Taylor v. Sturgell, 553 U.S. at 892, 128 S.Ct. 2161, quoting from New Hampshire v. Maine, 532 U.S. 742, 748, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (footnote omitted). See Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (under claim preclusion, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action”). “Issue preclusion, in contrast, bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim.” Taylor, supra, quoting from New Hampshire, supra at 748–749, 121 S.Ct. 1808. These two doctrines protect against “the expense and vexation attending multiple lawsuits, conserv[e] judicial resources, and foster [ ] reliance on judicial action by minimizing the possibility of inconsistent decisions.” Montana v. United States, 440 U.S. 147, 153–154, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). See Allen v. McCurry, supra.²

Under Federal law, the three elements of claim preclusion are “(1) a final judgment on the merits in an earlier proceeding, (2) sufficient identicality between the causes of action asserted in the earlier and later suits, and (3) sufficient identicality between the parties in the two actions.” Hatch v. Trail King Indus., Inc., 699 F.3d 38, 45 (1st Cir.2012). See Kobrin v. Board of Registration in Med., 444 Mass. 837, 843, 832 N.E.2d 628 (2005) (same elements apply under Massachusetts law). Only the first element...