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Amica Mutual Insurance Co. v. Olmo

Superior Court of Massachusetts, Worcester

April 10, 2017

Amica Mutual Insurance Company
v.
Amanda Olmo No. 136863

          Filed 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.

         The 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.[1]

         On May 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.[2] 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 .

         BACKGROUND

         The following undisputed takes are taken from the summary judgment record with certain additional facts reserved for later discussion.

         The 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.

         The 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.

         DISCUSSION

         I. 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).

          When 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 972 (2010).

         II. Analysis

         Pursuant 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 ...


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