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Duffy v. Amica Mutual Insurance Co.

Appeals Court of Massachusetts

April 8, 2016

John Duffy, D.C.
v.
Amica Mutual Insurance Co

         Argued January 11, 2016.

          Middlesex. Civil action commenced in the Lowell Division of the District Court Department on May 14, 2010.

         The case was heard by J. Elizabeth Cremens, J., on motions for summary judgment.

          Decision and order of the Appellate Division affirmed.

          Francis A. Gaimari for the plaintiff.

          Charles G. Devine, Jr. for the defendant.

         Present: Katzmann, Milkey, & Hanlon, JJ.

          OPINION

          [48 N.E.3d 469] Katzmann, J.

          This appeal presents the principal question whether summary judgment was appropriately allowed against a health care provider which, though having failed to coordinate benefits between the insured's auto insurer and the insured's health insurer, claimed entitlement to unpaid Personal Injury Protection (PIP) benefits under the compulsory motor vehicle liability insurance scheme contained in G. L. c. 90, § § 34A-34Q.[1]

Page 298

          The plaintiff, John Duffy, D.C., a corporation providing chiropractic services (we refer to the corporation and the individual as Duffy),[2] appeals from a decision and order of the Appellate Division of the District Court affirming a summary judgment granted by a District Court judge to the defendant, auto insurer Amica Mutual Insurance Company (Amica), on Duffy's action for recovery of $394.44 in PIP benefits. Duffy had treated Amica's insured, Sandra Cormier, and he alleges that the PIP benefits were due him as an unpaid party pursuant to G. L. c. 90, § 34M.[3] He also claims that he was entitled to recover damages and attorney's fees and costs pursuant to G. L. c. 90, § 34M, and G. L. c. 93A, § 11.[4] We affirm.

          Discussion.

          "We review the disposition of a motion for summary judgment de novo ... to determine whether all material

Page 299

facts have been established such that the moving party is entitled to judgment as a matter of law[; ] ... [w]e construe all facts in favor of the nonmoving party, ... and we may consider any grounds that support the motion judge's ruling." American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG., 468 Mass. 109, 113, 9 N.E.3d 289, [48 N.E.3d 470] cert. denied, 135 S.Ct. 871, 190 L.Ed.2d 703 (2014) (quotations and citations omitted).

         The essence of the parties' dispute is the question whether Amica's obligation to pay unpaid portions of Duffy's bills was ever triggered. Amica initially denied all payments to Duffy in September and October, 2005, on the basis of an independent medical examination (IME)[5] conducted by an orthopedic surgeon, which indicated that Cormier would not need further professional medical care beyond a date roughly one month before she began treatment with Duffy. Although the initial $2,000 in PIP benefits available under the insurance contract[6] had also already been exhausted at this point, Amica did not directly so inform Duffy. However, Amica had previously advised Cormier and her counsel of this development on July 22, 2005, one month before Cormier began treatment with Duffy.

         1. Coordination of benefits.

         Quite apart from its reliance on the IME as a basis for denying payment to Duffy, Amica contends that its duty to pay Duffy was never triggered in any event be-

Page 300

cause Duffy failed to coordinate benefits between Amica and Cormier's health insurer. See note 1, supra ; Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115, 706 N.E.2d 647 (1999) ( " [G. L. c. 90, § ] 34A, by it terms, expresses a legislative recognition that available health insurance reduces the cost of motor vehicle insurance by eliminating the need for additional PIP coverage, and codifies a legislative mandate that claimants utilize existing health insurance for medical expenses which exceed the $2,000 limit on an automobile insurer's PIP liability" ); Mejia v. American Cas. Co., 55 Mass.App.Ct. 461, 462 n.2, 466, 771 N.E.2d 811 (2002). Duffy counters that Amica did not advise him directly in 2005 that ...


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