Commerce Insurance Company, Inc. v. Alvarado, et al. (Lawyers Weekly No. 11-060-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1063 Appeals Court COMMERCE INSURANCE COMPANY, INC. vs. JULIO ALVARADO & another.[1] No. 12‑P‑1063. Hampden. February 4, 2013. ‑ May 14, 2013. Present: Cypher, Kantrowitz, & Fecteau, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Motor vehicle personal injury protection benefits, No‑fault insurance. Civil action commenced in the Superior Court Department on February 8, 2010. The case was heard by C. Jeffrey Kinder, J., on motions for summary judgment. Robert A. DiTusa for the defendant. John F. Hurley, Jr., for the plaintiff. KANTROWITZ, J. In this appeal, concerning personal injury protection (PIP) benefits, we are faced with the issue whether motorists insured by out-of-State policies are entitled to rights that are superior to those of motorists insured by policies issued in the Commonwealth. We hold that they are not. Background. On January 17, 2009, David Allen, whose automobile was insured by the plaintiff Commerce Insurance Company, Inc. (Commerce), was involved in a collision in Holyoke with an automobile driven by Julio Alvarado (Julio) and in which Maria Alvarado (Maria) was a passenger. Maria owned the automobile, which was registered in New York and insured under a New York policy through Peerless Insurance Co. (Peerless). The Alvarados suffered injuries and received PIP no-fault benefits from Peerless, which provided coverage of up to $ 50,000 per person for medical bills and lost wages for occupants of vehicles insured in New York. In settlement discussions, a dispute arose between the parties as to whether Commerce was entitled to an offset, pursuant to G. L. c. 90, § 34M, for the PIP no-fault benefits that the Alvarados received under the New York policy. Commerce filed an action in Superior Court against the Alvarados seeking a declaratory judgment to ascertain the answer. Both Commerce and the Alvarados filed motions for summary judgment. Commerce prevailed, with the motion judge concluding: “The Alvarados received no-fault benefits under the New York [automobile] policy that compensated them for the same type of expenses that Massachusetts PIP benefits would have covered. It would therefore run contrary to the legislative purpose of § 34M to conclude that Allen’s exemption from tort liability is unavailable merely because Maria Alvarado’s policy was issued in New York” (footnote omitted). On appeal, the Alvarados argue that the judge erred […]