Pinnick v. Cleary

Decision Date29 June 1971
Citation360 Mass. 1,42 A.L.R.3d 194,271 N.E.2d 592
Parties, 42 A.L.R.3d 194 Milton PINNICK v. Carl CLEARY.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Frederick S. Pillsbury, Springfield (Alexander J. Cella and Robert Cohen, Boston, with him), for plaintiff.

Herbert P. Wilkins, Boston (Donald H. Carvin, Jeffrey Swope and Acheson H. Callaghan, Jr., Boston, with him), for defendant.

Walter H. Mayo, III, Asst. Atty. Gen. (James P. Kiernan, Asst. Atty. Gen., with him), for the Attorney General.

John G. Ryan, Hingham, for The Massachusetts Assn. of Independent Insurance Agents & Brokers, Inc.; Richard K. Donahue, Lowell, and Richard N. Pearson, Boston, for Massachusetts Bar Assn.; Richard M. Markus, Cleveland, Ohio, and William Schwartz, Boston, for American trial Lawyers Assn.; Paul A. Tamburello, Pittsfield, for American Trial Lawyers Assn. Massachusetts Chapter, Inc.; and Archibald Cox, Washington, D.C., and Philip B. Heymann, Cambridge, for American Mutual Insurance Alliance and American Insurance Assn., amici curiae, submitted briefs.


REARDON, Justice.

This bill for declaratory relief comes to us on a reservation and report from the single justice. It presents a multifaceted attack on the constitutionality of St.1970, c. 670, which amends in part chapters 90, 175, and 231 of the General Laws, and which establishes a modified system of compensation through their own insurers for victims of automobile accidents regardless of fault. 1 The plaintiff has raised and argued a number of issues which are not presented by what appears in the record. We realize that where questions of pressing public importance are involved we may in our discretion express our opinion on matters fully argued even though they are not essential to disposition of the exact controversy before the court. School Committee of Boston v. Board of Educ., 352 Mass. 693, 697, 227 N.E.2d 729. However, such issues raised here by the plaintiff call for interpretation of terms and provisions of c. 670 which are not self-explanatory and which are not called into question at all by the record. It is inevitable that this first legislative attempt at a fundamental alteration and modernization of an important segment of the common law of torts will generate many problems arising out of such provisions. We cannot deal with these problems in the abstract and refrain therefore from dealing with c. 670 in its effects beyond the set of facts before us.


The facts of the case are not disputed. The plaintiff, a resident of Massachusetts, is the owner of a motor vehicle duly registered under the laws of the Commonwealth and insured under a policy which includes personal injury protection benefits as defined in St.1970, c. 670. The policy was not subject to the optional deductible endorsement (deductible) provided in c. 670. While he was driving his car on a public way in Boston early on the morning of January 3, 1971, two days after the effective date of that statute, he was involved in an accident which was caused exclusively by the negligence of the defendant. The car the defendant was driving was owned by one Daniel Mack, and was also covered by an insurance policy which included personal injury protection benefits as defined in c. 670.

As a result of the accident, the plaintiff suffered injuries which included a bone contusion of the left owner scapula, a contusion and sprain of lower scapula muscles on both sides, and a severe low back sprain with radiation of pain into the lower right extremity. He incurred $115 in reasonable and necessary medical expenses for treatment of these injuries. Although he had no medical insurance in his own name, he was covered by a policy issued to his wife which provided for reimbursement of his medical expenses over $100. The entire $115 would have been recoverable in a traditional common law tort action against the defendant, as well as $800 for his pain and suffering.

Due to the accident the plaintiff lost in addition seventy-three hours from his position with the United States Post Office. His salary in this position was $176,77 a week, a figure which also represents his average weekly wages for the year preceding the accident. He received his usual salary for the entire period of his absence, however, due to the paid sick leave and annual leave to which he was entitled. His accumulated paid sick leave of forty hours was exhausted in the process, and his paid annual leave was reduced by thirty-three hours.

The plaintiff also held a second job at the time of the accident which paid him at the rate of $96.25 a week. This amount was his average weekly wage for that job for the year preceding the accident. The accident caused him to miss twelve days from this work, for which he was not compensated. In a tort action at common law, on these facts the plaintiff could have recovered $650 from the defendant for loss of earning capacity. His total recovery in tort against the defendant, including general and special damages, would therefore have been $1,565 ($115 $650 $800).

The plaintiff made demand on the defendant for reasonable compensation in accordance with the recoverable elements of damage at common law as outlined above. The defendant refused, raising as a defence c. 670 which, inter alia, exempts a tortfeasor from liability up to $2,000 to the extent the claimant is entitled to personal injury protection benefits from his own insurer. The defendant also noted that in the circumstances of his case the plaintiff was not entitled to any damages for pain and suffering under c. 670, although he retained his right to sue in tort for other elements of damage not covered by the personal injury protection benefits.

The plaintiff in this bill claims that this operation of c. 670 deprives him unconstitutionally of his right to full recovery in tort. He has supported this claim by an exceedingly prolix brief of 373 pages, the contentions of which are aided by amicus briefs filed with us by the American Trial Lawyers Association, the Massachusetts chapter of that organization, and the Massachusetts Bar Association. Supporting the law we have, in addition to the defendant's brief, arguments in behalf of the constitutionality of c. 670 submitted by the American Mutual Insurance Alliance and American Insurance Association, the Massachusetts Association of Independent insurance Agents and Brokers, Inc., and the Attorney General acting pursuant to G.L. c. 231A, § 8.


The briefs before us, even those aligned on the same side of the case, reveal divergent views on how c. 670 operates. Accordingly, we believe it advisable to summarize the basic structure of the statute. In so doing we will not attempt a comprehensive description of its scope and operation, for much of that, as we have indicated, is irrelevant for our present purposes. We wish rather at this juncture to draw attention first to the difference in the legal position of the injured party under c. 670 from his position at common law, and, secondly, to the practical consequences of the statute on him, taking into consideration the interaction of various forms of compulsory and optional insurance with c. 670.

Those who challenge c. 670 have attributed to it not only a drastic stripping of legal rights but also, in its practical effect, a substantial diminution of the damages which the average non-negligent accident victim may reasonably expect. Analysis demonstrates, on the contrary, that the Legislature has acted with extreme caution in altering prior legal rights, changing in only one respect the elements of damage which are recoverable by the victim. As to the practical effect of c. 670, it appears that the statute affords the citizen the security of prompt and certain recovery to a fixed amount of the most salient elements of his out-of-pocket expenses and an increased flexibility in avoiding duplicate coverage, at double premiums, for the same expenses. In return for this he surrenders the possibly minimal damages for pain and suffering recoverable in cases not marked by serious economic loss or objective indicia of grave injury and the outside chance that through a generous settlement or a liberal award by a judge or jury in such a case he may be able to reap a monetary windfaull out of his misfortune. 2

The key concept embodied in c. 670 is that of personal injury protection insurance, which is required of all owners of motor vehicles registered in Massachusetts. Under this coverage, personal injury protection benefits are paid by the insurer, as the expenses they cover accrue, to the insured, members of his household, authorized operators or passengers of his motor vehicle including guest occupants, and any pedestrians struck by him, regardless of fault in the causation of the accident. 3 Limited in amount to $2,000, the benefits cover largely the same items of medical expenses covered before by optional medical payments insurance, with the exception that expenses incurred within two years of the accident are included as opposed to the one year period generally covered in optional insurance. Personal injury protection covers in addition, however, two other types of out-of-pocket expenses. The first and less significant of these is 'payments in fact made to others, not members of the injured person's household and reasonably incurred in obtaining from those others ordinary and necessary services in lieu of those that, had he not been injured, the injured person would have performed not for income but for the benefit of himself and/or members of his household.' The second is seventy-five per cent of the actual lost wages of the injured party, calculated on the basis of his average weekly wage during the year preceding the accident. If the victim was unemployed, he is entitled to the same percentage of wages h...

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