April 11, 2017
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT AND DEFENDANT'S CROSS MOTION
FOR SUMMARY JUDGMENT
Honorable Shannon Frison, Justice of the Superior Court.
plaintiff, Amica Mutual Insurance Company ("
plaintiff"), filed this declaratory judgment action
against its insured, Amanda Olmo (" defendant"),
seeking a declaration of the parties' rights and
obligations under the defendant's Massachusetts
Automobile Insurance Policy (the " policy") and the
Personal Injury Protection (" PIP") statute, G.L.c.
90, § 34M (" PIP statute"). The plaintiff
seeks an order declaring that: (1) the defendant is required
to submit to a physical examination with a physician selected
by the plaintiff; (2) the defendant's attorney has no
absolute right to attend or create an audio/visual record of
the examination; (3) the defendant's failure to attend a
previously scheduled examination was without proper legal
justification; and (4) the defendant's failure to attend
the examination amounted to noncooperation, constituting a
breach of the policy and the PIP statute, and entitled the
plaintiff to deny the defendant's request for PIP
coverage. The defendant seeks a declaration that: (1) she is
entitled to have counsel present and/or create an
audio/visual record of the physical examination; (2) she did
not refuse to attend the previously scheduled examination;
and (3) she cooperated with the plaintiff's investigation
of her PIP claim.
15, 2015, this matter came before the court on the
plaintiff's motion for summary judgment and the
defendant's cross motion for summary judgment. On June
16, 2015, both motions were denied. On April 4, 2017, this
matter again came before the court for a hearing on the
parties' renewed motions for summary judgment. The
renewed motions were filed because additional discovery had
produced evidence to resolve the material facts that the
court had previously indicated were in dispute. Both parties
agree that there are no material facts in dispute and that
only issues of law remain. After hearing and review of the
parties' submissions, for the reasons that follow, the
plaintiff's motion for summary judgment is
DENIED, and the defendant's cross motion for
summary judgment is ALLOWED .
following undisputed takes are taken from the summary
judgment record with certain additional facts reserved for
plaintiff is an automobile insurance company, which issued
the defendant an automobile insurance policy effective
September 23, 2013 through September 23, 2014. On April 28,
2014, the defendant submitted to the plaintiff an application
for PIP benefits as a result of injuries she sustained in a
motor vehicle accident. Pursuant to the policy and the PIP
statute, the plaintiff notified the defendant and her
attorney, Ryan Alekman (" Attorney Alekman"), that
it had scheduled an Independent Medical Examination ("
IME") of the defendant for May 12, 2014, with Dr. Steven
Silver in Springfield, Massachusetts. On May 5, 2014,
Attorney Alekman sent the plaintiff a letter indicating that
he would be sending a representative from his office to
audio/video record the IME with Dr. Silver. The plaintiff
then contacted Dr. Silver's office, Quality Medical
Evaluations, Inc. (" QME"), and spoke with a QME
employee, who indicated that Dr. Silver would not allow an
attorney to be present or permit an audio/visual recording of
the examination. The plaintiff informed Attorney Alekman of
QME's policy, and in response, Attorney Alekman indicated
that the defendant would not attend the May 12th IME.
defendant did not appear at the May 12th IME. As a result,
the plaintiff rescheduled the examination with Dr. Silver for
May 19, 2014. The plaintiff also informed the defendant that
her attorney could not attend the examination and that the
examination could not be recorded. The defendant did not
appear at the May 19th IME. As a result, the plaintiff denied
the defendant's request for PIP benefits on the ground
that she breached the cooperation clause of the policy.
Standard of Review
Summary judgment shall be granted when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. Mass.R.Civ.P. 56(c);
Kourouvacilis v. General Motors Corp., 410 Mass.
706, 714, 575 N.E.2d 734 (1991). The moving party bears the
burden of affirmatively demonstrating the absence of a
triable issue. Pederson v. Time, Inc., 404 Mass. 14,
17, 532 N.E.2d 1211 (1989). The moving party may satisfy this
burden by submitting affirmative evidence negating an
essential element of the opposing party's case or by
demonstrating that the opposing party has no reasonable
expectation of proving an essential element of his case at
trial. Flesner v. Technical Commc'ns Corp., 410
Mass. 805, 809, 575 N.E.2d 1107 (1991);
Kourouvacilis, 410 Mass. at 716. Once the moving
party establishes the absence of a triable issue, the party
opposing the motion must respond with evidence of specific
facts establishing the existence of a genuine dispute.
Pederson, 404 Mass. at 17. The opposing party cannot
rest on its pleadings and mere assertions of disputed facts
to defeat the motion for summary judgment. LaLonde v.
Eissner, 405 Mass. 207, 209, 539 N.E.2d 538 (1989).
deciding a motion for summary judgment, the court considers
pleadings, deposition transcripts, answers to
interrogatories, admissions on file, and affidavits.
Mass.R.Civ.P. 56(c). The court reviews the evidence in the
light most favorable to the nonmoving party but does not
weigh evidence, assess credibility, or find facts.
Attorney Gen. v. Bailey, 386 Mass. 367, 370, 436
N.E.2d 139 (1982). Where, as here, the court is presented
with cross motions for summary judgment, the standard of
review is identical for both motions. Epstein v. Board of
Appeals of Boston, 77 Mass.App.Ct. 752, 756, 933 N.E.2d
to the defendant's policy, she " must cooperate with
[the plaintiff] in the investigation, settlement and defense
of any claim . . . Failure to cooperate with [the plaintiff]
may result in the denial of the claim." The PIP statute
also requires the defendant to " submit to physical
examinations by physicians selected by the insurer as often
as may be reasonably required and . . . do all things
necessary to enable the insurer to obtain medical reports and
other needed information to assist in determining the amounts
due." G.L.c. 90, § 34M. Here, the plaintiff argues
that the defendant's failure to ...