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DeOliveira v. Liberty Mutual Insurance Co.

Superior Court of Massachusetts, Suffolk, Business Litigation Session

September 29, 2017

Monica DeOliveira [1]
Liberty Mutual Insurance Company


          Edward P. Leibensperger, Justice

         Plaintiff, Monica DeOliveira, seeks to recover from her automobile insurer, defendant, Liberty Mutual Insurance Company (Liberty), under a Massachusetts Automobile Insurance Policy (Policy). DeOliveira alleges that Liberty improperly failed to pay benefits under the Medical Payments (MedPay) provision of the Policy. DeOliveira's Second Amended Complaint (Complaint) asserts three claims against Liberty: breach of contract (Count I), declaratory judgment (Count II), and violation of G.L.c. 93A (Count III).[2] Liberty moves to dismiss all three claims for failure to state a claim upon which relief can be granted under Mass.R.Civ.P. 12(b)(6).[3] For the reasons stated below, Liberty's motion to dismiss is denied.


         The facts as revealed by DeOliveira's Complaint are as follows.

         DeOliveira is a resident of Worcester, Massachusetts. Liberty is a Massachusetts corporation with a principal place of business in Boston, Massachusetts.

         On October 28, 2010, DeOliveira purchased the Policy from Liberty. The Policy is attached to the Complaint as Exhibit A. The Policy includes up to $8,000 in personal injury protection (PIP) benefits. It also includes an optional coverage for up to $5,000 in MedPay benefits. DeOliveira paid an additional premium of $10 per vehicle for two vehicles for the MedPay coverage.

         The Policy's MedPay provision (Part 6) stales, in part: " Under this Part, we will pay reasonable expenses for necessary medical and funeral services incurred as a result of an accident. We will pay for expenses resulting from bodily injuries to anyone occupying your auto at the time of the accident." In addition, the MedPay provision states that: " We will not pay under this Part for any expenses that are payable, or would have been payable except for the deductible, under the PIP coverage of this policy or any other Massachusetts auto policy."

         The Policy's PIP provision provides coverage for three kinds of benefits: (1) medical expenses, (2) lost wages, and (3) replacement services. The PIP provision also states, in part:

Some people have a policy of health, sickness, or disability insurance or a contract or agreement with a group, organization partnership or corporation to provide, pay for, or reimburse the cost of medical expenses (" health plan" ). If so, we will pay up to $2,000 of medical expenses for any injured person. We will also pay medical expenses in excess of $2,000 for such injured person which will not be paid by a health plan. Medical expenses must be submitted to the health plan to determine what the health plan will pay before we pay benefits in excess of $2,000 under this Part. We will not pay for medical expenses in excess of $2,000 that the health plan would have paid had the injured person sought treatment in accordance with the requirements of the health plan. In any case, our total payment for medical expenses, lost wages and replacement services will not exceed $8,000.

         On June 7, 2011, DeOliveira operated a motor vehicle that was involved in a collision. She suffered personal injuries as a result of the collision. As a result of the collision, DeOliveira received reasonable and necessary medical care and treatment for personal injuries, the cost of which totaled $4,004.30. She notified Liberty of the loss and submitted her medical bills to Liberty. Liberty paid DeOliveira $2,000 in PIP benefits. On October 25, 2011, Liberty issued a PIP exhaustion letter to DeOliveira, which is attached to the Complaint as Exhibit C. The PIP exhaustion letter states, in part:

Please be advised that the $2,000,00 Personal Injury Protection coverage on this claim has been exhausted. Please submit all outstanding medical bills to your private health carrier.
If your health carrier denies payment or only pays a portion of the bill, please forward a copy of their explanation of benefits to the address listed in the letterhead so that I may review it for any necessary payments.

         DeOliveira submitted reasonable and necessary medical bills and expenses totaling $2,004.30 to her health insurance carrier, Fallon Community Health Plan (Fallon). DeOliveira's health insurance policy with Fallon did not contain a provision deferring to payment under the MedPay provision of her Policy. Fallon paid the $2,004.30 in medical bills and expenses.

         On April 23, 2012, Fallon asserted a statutory lien of $791.49 against DeOliveira's third-party personal injury claim ...

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