John Duffy, D.C.
Amica Mutual Insurance Co
January 11, 2016.
Middlesex. Civil action commenced in the Lowell Division of
the District Court Department on May 14, 2010.
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.
Katzmann, Milkey, & Hanlon, JJ.
N.E.3d 469] Katzmann, J.
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, §
plaintiff, John Duffy, D.C., a corporation providing
chiropractic services (we refer to the corporation and the
individual as Duffy), 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. 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. We affirm.
"We review the disposition of a motion for summary
judgment de novo ... to determine whether all material
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).
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) 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 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.
Coordination of benefits.
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-
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