DeOliveira v. Liberty Mutual Insurance Company (Lawyers Weekly No. 09-016-17)

No. 17-00218-BLS1
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.
1 On behalf of herself and all others similarly situated.
2 DeOliveira filed a Motion for Leave of Court to File a Second Amended Complaint on
August 16, 2017, after the parties filed their memoranda on Liberty’s motion to dismiss. On
August 18, 2017, this court allowed DeOliveira to file the Second Amended Complaint and
noted that if new allegations in that version of the Complaint required supplemental briefing, the
parties could file written memoranda on the date of the oral argument on the motion to dismiss.
The parties declined to file supplemental memoranda.
3 Liberty also moves to dismiss on the ground of insufficiency of service of process. The
motion to dismiss on that ground is denied. On April 18, 2017, DeOliveira filed a motion to
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) states, 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
extend the date for service of process that was allowed by the court (Kaplan, J.).
$ 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 arising from the collision (Fallon lien).
Over a year later, on September 3, 2013, DeOliveira settled her personal injury claim with
the tortfeasor involved in the June 7, 2011 collision. The tortfeasor paid DeOliveira as a result of
the settlement. Shortly thereafter, DeOliveira paid the Fallon lien, in full, from proceeds she
received from the settlement.
On August 29, 2013, DeOliveira sought payment from Liberty under the terms and
conditions of the Policy’s MedPay provision. The Fallon lien was itemized to indicate the bills
that Fallon paid. DeOliveira asserted that the medical bills and expenses in excess of $ 2,000 that
were covered by Fallon and not payable under the PIP provision of the Policy were covered
under the MedPay provision. Complaint at paras. 36-37. Liberty, however, refused to pay
DeOliveira under the MedPay provision of the Policy.
On January 20, 2017, DeOliveira filed this action against Liberty. DeOliveira claims that
Liberty breached the Policy by failing to provide her with MedPay coverage and that this conduct
violated Chapter 93A. She brings this putative class action on behalf of herself and all persons
similarly situated. She seeks to define the class as, “all persons who purchased one of
Defendant’s Massachusetts automobile insurance policies with MedPay coverage and/or were
covered under one of Defendant’s Massachusetts automobile insurance policies with MedPay
coverage who sustained personal injuries and incurred medical bills and expenses as a result of
an automobile accident and reached the $ 2,000 initial PIP exhaust[ion] level.”
To survive a motion to dismiss, the plaintiff’s “[f]actual allegations must be enough to
raise a right to relief above the speculative level . . . [based] on the assumption that all the
allegations in the complaint are true (even if doubtful in fact) . . . .” Iannacchino v. Ford Motor
Co., 451 Mass. 623, 636 (2008), citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-1965
(2007). In other words, “[w]hile a complaint attacked by a . . . motion to dismiss does not need
detailed factual allegations . . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions . . . .” Iannacchino, 451 Mass.
at 636, quoting Bell Atl. Corp., 127 S. Ct. at 1966. Dismissal under Mass. R. Civ. P. 12(b)(6) is
proper where a reading of the complaint establishes beyond doubt that the facts alleged do not
support a cause of action which the law recognizes, such that the plaintiff’s claim is legally
insufficient. Nguyen v. William Joiner Center for the Study of War and Social Consequences,
450 Mass. 291, 295 (2007).
DeOliveira’s Complaint asserts substantially similar facts and claims to those presented
in a case in which the Appeals Court affirmed, in an unpublished Rule 1:28 decision, a decision
of the District Court in favor of the insured. Kirby v. Liberty Mutual Ins. Co., 89 Mass. App. Ct.
1136, 2016 WL 4162351, at *1-*3 (August 5, 2016) (Rule 1:28), rev. den., 476 Mass. 1106
(Nov. 30, 2016). In Kirby, the plaintiff sustained injuries in an automobile accident and incurred
$ 13,387.56 in medical expenses. Id. at *1. At the time of the accident, plaintiff was insured
under a health insurance policy and a Massachusetts automobile policy issued by Liberty that
provided $ 8,000 in PIP benefits and $ 5,000 in MedPay coverage. After the accident, Liberty
notified plaintiff that her $ 2,000 in PIP coverage was exhausted and that she should submit all
outstanding medical bills to her health insurance provider.4 As a result, her health insurer paid
$ 4,956.67 in additional medical expenses. The health insurer executed a lien for that amount in
the civil action that Kirby filed against a third-party tortfeasor. Plaintiff later paid $ 4,956.67 to
her health insurer to satisfy and release the lien. Thereafter, plaintiff submitted a claim to Liberty
4 Liberty paid a total of $ 3,283.92 in PIP benefits for medical expenses that plaintiff
incurred–$ 2,000 in initial PIP benefits and $ 1,283.92 in PIP benefits to cover copayments and
other medical expenses denied by plaintiff’s health insurer.
under the MedPay portion of her automobile insurance policy for reimbursement of the
$ 4,956.67. Liberty refused coverage under MedPay, and plaintiff filed suit for breach of contract
against Liberty in the District Court. After a hearing, a District Court judge allowed plaintiff’s
motion for summary judgment, and Liberty appealed to the Appellate Division of the District
Court, which affirmed the summary judgment ruling in favor of plaintiff. See Kirby v. Liberty
Mutual Ins. Co., 2014 Mass. App. Div. 190 (Sept. 25, 2014). Liberty appealed, and the Appeals
Court affirmed. See Kirby v. Liberty Mutual Ins. Co., 2016 WL 4162351 at *1. The Appeals
Court noted that the case was governed in all material respects by Golchin v. Liberty Mut. Ins.
Co., 460 Mass. 222 (2011) (Golchin I ), and Golchin v. Liberty Mut. Ins. Co., 466 Mass. 156
(2013) (Golchin II ). Kirby v. Liberty Mutual Ins. Co., 2016 WL 4162351 at *2 (discussing
Golchin I and Golchin II). Ultimately, the Appeals Court concluded that plaintiff was entitled to
MedPay benefits because she “incurred” the $ 4,956.67 in expenses and PIP benefits in excess of
the $ 2,000 paid were not available to her. Id. at *2-*3.
DeOliveira pleads facts in her Complaint that are closely similar to the factual scenario in
Kirby.5 In light of Kirby, 6 which I find persuasive, I conclude that DeOliveira’s Complaint
properly asserts claims for breach of contract, declaratory judgment, and violation of Chapter
5 Here, as in Kirby, DeOliveira asserts in her Complaint that she “incurred” additional
medical expenses after her PIP benefits were exhausted or unavailable. See Kirby v. Liberty
Mutual Ins. Co., 2016 WL 4162351 at *1-*2. See also Golchin II, 466 Mass. at 163
(determining that medical expenses were clearly “incurred” within plain language of auto policy,
first by plaintiff’s health insurer, and later when plaintiff satisfied lien placed by her health
insurer, and thus, plaintiff was entitled to recover MedPay benefits under auto policy).
6 As Kirby progressed through the courts, a total of seven judges agreed that Liberty was
liable for breach of contract by failing to provide plaintiff with MedPay coverage.
93A.7 See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008) (noting that an unpublished
memorandum and order issued pursuant to Appeals Court Rule 1:28 has persuasive, but not
precedential, authority). See also Bonin v. Amica Mutual Ins. Co., SUCV2014-04073-BLS2,
slip. op at 1 (Mass. Super. Ct. Sept. 9, 2015) (Sanders, J.) (denying defendant insurer’s motion to
dismiss claims for breach of contract and violation of Chapter 93A based on failure to provide
MedPay coverage under automobile insurance policy). Accordingly, Liberty’s motion to dismiss
is denied.
Defendant Liberty Mutual Insurance Company’s Motion to Dismiss is DENIED.
By the Court,
Edward P. Leibensperger
Justice of the Superior Court
Dated: September 29, 2017
7 At oral argument, counsel for Liberty acknowledged that I would have to disagree with
the reasoning in Kirby to grant Liberty’s motion to dismiss. I do not disagree.

Full-text Opinions