Skiffington v. Liberty Mutual Insurance Company (Lawyers Weekly No. 11-027-18)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; SJCReportersjc.state.ma.us 17-P-425 Appeals Court ANN SKIFFINGTON vs. LIBERTY MUTUAL INSURANCE COMPANY. No. 17-P-425. Hampden. November 9, 2017. – March 8, 2018. Present: Meade, Shin, & Ditkoff, JJ. Motor Vehicle, Insurance. Insurance, Motor vehicle insurance, Construction of policy, Coverage, Settlement of claim, Amount of recovery for loss. Civil action commenced in the Superior Court Department on January 25, 2016. A motion to dismiss was heard by Constance M. Sweeney, J. Matthew T. LaMothe for the plaintiff. Daniel P. Tighe for the defendant. SHIN, J. Following a motor vehicle accident, the plaintiff, a third-party claimant, received reimbursement from Liberty Mutual Insurance Company (Liberty Mutual) for the loss of her vehicle. She then sought additional payment for (1) costs arising from loss of use of her vehicle, even though she was unable to produce any documentation to Liberty Mutual that she had paid for substitute transportation, and (2) her title and registration fees and the residual value of her inspection sticker. When Liberty Mutual denied liability for these claims, the plaintiff brought this putative class action, seeking declaratory relief under G. L. c. 231A and damages for unfair claim settlement practices under G. L. c. 93A, § 9, and G. L. c. 176D, § 3(9). On Liberty Mutual’s motion, a Superior Court judge dismissed the complaint in its entirety under Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and the plaintiff appeals. As we conclude that the plaintiff has failed to allege compensable damages, we affirm, modifying the judgment to declare the rights of the parties. Background. We accept the allegations of the amended complaint as true for purposes of this appeal. See Goodwin v. Lee Pub. Schs., 475 Mass. 280, 284 (2016). In October of 2015, the plaintiff’s 2005 Nissan Altima was struck by a driver whose vehicle was insured by Liberty Mutual under a standard Massachusetts automobile policy.[1] The plaintiff’s vehicle was declared to be a total loss. After determining that its insured was responsible for the accident, Liberty Mutual reimbursed the plaintiff for the loss of her vehicle. The plaintiff then sent Liberty Mutual a demand letter under G. L. c. 93A, claiming that she was also entitled to payment for loss of use, title and registration fees, and the residual value of her inspection sticker. Liberty Mutual sent a letter in response detailing its rationale for denying the claims. […]
DeOliveira v. Liberty Mutual Insurance Company (Lawyers Weekly No. 09-016-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION No. 17-00218-BLS1 MONICA DEOLIVEIRA1 vs. LIBERTY MUTUAL INSURANCE COMPANY MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION TO DISMISS 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 BACKGROUND 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 […]
Liberty Mutual Insurance Co. v. Peoples Best Care Chiropractic and Rehabilitation, Inc., et al. (Lawyers Weekly No. 12-047-17)
COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT. 1684CV01239-BLS2 ____________________ LIBERTY MUTUAL INS. CO. v. PEOPLES BEST CARE CHIROPRACTIC AND REHABILITATION, INC.; PLEASANT VALLEY CHIROPRACTIC LLC; and RAGHUBINDER BAJWA, M.D., P.C. ____________________ MEMORANDUM AND ORDER ALLOWING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT This lawsuit concerns the rates that Liberty Mutual Insurance Company pays to chiropractic clinics under Personal Injury Protection (“PIP”) benefit provisions in personal automobile insurance policies. Liberty seeks a declaration that an Illinois court’s final judgment that approved the settlement of a nationwide class action regarding these rates is entitled to full faith and credit in Massachusetts and binds the three Defendants, who did not opt out of the Illinois proceeding and therefore are members of the plaintiff class in that case. Defendant Raghubinder Bajwa, M.D., P.C., was defaulted for failing to answer the complaint. Defendants Peoples Best Chiropractic and Rehabilitation, Inc. (“PBC”) and Pleasant Valley Chiropractic LLC (“PVC”) (collectively, the remaining “Defendants”) oppose Liberty’s request and assert counterclaims seeking to bar Liberty from implementing the settlement. The Court concludes that Liberty is entitled to summary judgment in its favor on all claims. With respect to Liberty’s affirmative claim, the Court concludes that there is an actual controversy between the parties and that the Illinois final order and judgment is entitled to full faith and credit in Massachusetts courts. In addition, Liberty is entitled to judgment as a matter of law on Defendants’ counterclaims. Defendants sought leave to conduct certain discovery before the Court decided Liberty’s summary judgment motion. The Court denies this request because none of the discovery sought by Defendants concerns any factual issue relevant to whether Liberty is entitled to summary judgment. 1. Factual Background. Liberty was the defendant in a multi-state class action filed in Illinois state court to challenge the way Liberty determines what rates it will pay to chiropractors and other medical care providers under the no-fault PIP – 2 – provisions of personal automobile insurance policies. The Illinois case was captioned Leonon Chiropractic Clinic, P.C. v. Liberty Mutual Insurance Company and docketed as Illinois Circuit Court for St. Clair County, no. 14-L-52. Liberty compares billed charges for medical treatment to a database of charges that Liberty believes are for similar services provided in the same geographic area. Since 2011 Liberty has done so using data maintained by a non-profit company called FAIR Health, Inc. Liberty generally refuses to pay rates any higher than the 80th percentile of similar charges according to the FAIR Health data. The plaintiffs in the Illinois case claimed that this practice was unlawful. The parties to the Illinois lawsuit entered into a Stipulation of Settlement in October 2014 that would resolve all claims on behalf of a proposed class. […]
Liberty Mutual Fire Insurance Company v. Casey, et al. (Lawyers Weekly No. 11-034-17)
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 16-P-32 Appeals Court LIBERTY MUTUAL FIRE INSURANCE COMPANY vs. RYAN CASEY & another.[1] No. 16-P-32. Essex. November 7, 2016. – March 29, 2017. Present: Cypher, Massing, & Sacks, JJ. Insurance, Homeowner’s insurance, Insurer’s obligation to defend. Intentional Conduct. Civil action commenced in the Superior Court Department on May 22, 2014. The case was heard by Robert A. Cornetta, J., on motions for summary judgment. Richard J. Fallon for Ryan Casey. Joseph M. Orlando, Jr., for Evan Williams. John P. Graceffa for the plaintiff. SACKS, J. Twice on the same evening, after consuming alcohol and marijuana, Ryan Casey attacked Evan Williams without warning, punching and kicking him in the face and causing him serious bodily injury. Casey later admitted that he “intend[ed] to touch” Williams, and that he understood, at least at the time of his deposition, that “[w]hen you hit somebody with a fist . . . you know you’re going to do some level of injury.” Williams subsequently made a claim under the homeowners insurance policy on Casey’s familial home. The insurer, Liberty Mutual Fire Insurance Company (Liberty Mutual), responded by commencing this action seeking a declaration that it had no duty to defend or to indemnify Casey, or to pay medical expenses for Williams, due to an exclusion in the policy for bodily injury “[w]hich is expected or intended by the insured.” On cross motions for summary judgment, a Superior Court judge ruled in favor of Liberty Mutual, concluding as a matter of law that Casey expected or intended to cause Williams bodily injury. Williams and Casey appeal, arguing that there is a genuine issue of material fact regarding Casey’s intent to injure.[2] We affirm. Background. We recount certain undisputed material facts from the summary judgment record, reserving for later discussion the facts concerning Casey’s intent. On the evening of June 26, 2013, Casey, then seventeen years old, attended the St. Peter’s fiesta celebration (fiesta) in Gloucester with two friends, Dylan Chaney and Forrest Turner. Prior to arriving, Casey had consumed alcohol and smoked marijuana.[3] At some point while at the fiesta, Casey encountered Williams, also seventeen years old, and the two left on foot in the company of Chaney and Turner, allegedly to go smoke marijuana.[4] After the group arrived at a remote location nearby, Casey […]
Chiulli v. Liberty Mutual Insurance, Inc., et al. (Lawyers Weekly No. 11-032-15)
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 14-P-430 Appeals Court ROBERT CHIULLI vs. LIBERTY MUTUAL INSURANCE, INC., & another.[1] No. 14-P-430. Suffolk. October 1, 2014. – April 2, 2015. Present: Rapoza, C.J., Katzmann, & Wolohojian, JJ. “Anti-SLAPP” Statute. Constitutional Law, Right to petition government. Practice, Civil, Motion to dismiss, Interlocutory appeal. Consumer Protection Act, Unfair or deceptive act, Insurance. Insurance, Unfair act or practice. Statute, Construction. Civil action commenced in the Superior Court Department on March 18, 2013. A special motion to dismiss was heard by Frances A. McIntyre, J. Myles W. McDonough for the defendant. Andrew M. Abraham (Thomas C. Thorpe with him) for the plaintiff. KATZMANN, J. The defendant, Liberty Mutual Insurance, Inc. (Liberty), appeals from the denial by a Superior Court judge of a special motion to dismiss pursuant to G. L. c. 231, § 59H, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, enacted to protect the constitutional rights of ordinary citizens to petition the government to redress their grievances.[2] The plaintiff, Robert Chiulli, having secured a large jury verdict against Liberty’s insured, filed the instant lawsuit alleging that the defendant had violated G. L. c. 93A and G. L. c. 176D by engaging in unfair and deceptive settlement practices, chiefly by refusing to provide Chiulli with a reasonable settlement offer once the insured’s liability became reasonably clear. Liberty argues that its pursuit of a jury trial on behalf of its insured is protected petitioning activity such that Chiulli’s complaint should be dismissed as “a retaliatory and punitive attack upon Liberty’s petitioning conduct.” Liberty urges that its actions are protected by petitioning immunity where “genuine issues of material fact existed in the underlying action against the insured.” Finally, it argues that application of c. 93A and c. 176D against it is an unconstitutional infringement of its State and Federal rights to a jury trial. It contends that c. 176D’s requirement that an insurer make a reasonable offer of settlement when liability is reasonably clear is the equivalent of a requirement that it forgo a jury trial and settle a tort action when there are disputes about its insured’s liability. We conclude that Liberty is not entitled here to the protections of the anti-SLAPP statute and that Liberty’s deployment of that statute would eviscerate the consumer protections embodied in c. 176D. We thus affirm the denial of its special motion […]
N.E. Physical Therapy Plus, Inc. v. Liberty Mutual Insurance Company (Lawyers Weekly No. 10-166-13)
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 SJC‑11284 N.E. PHYSICAL THERAPY PLUS, INC. vs. LIBERTY MUTUAL INSURANCE COMPANY. Essex. May 7, 2013. ‑ September 10, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Evidence, Hearsay, Judicial discretion, Medical bill. Practice, Civil, Judicial discretion, Motion in limine, Appellate Division: decision. Civil action commenced in the Lawrence Division of the District Court Department on June 4, 2008. The case was heard by Mark A. Sullivan, J. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Daniel P. Tighe (Douglas R. Tillberg with him) for the defendant. Francis A. Gaimari (Stephen B. Byers with him) for the plaintiff. The following submitted briefs for amici curiae: E. Michael Sloman for Automobile Insurers Bureau. Peter A. Biagetti & Andrew Nathanson for Fair Health, Inc. Paul R.Q. Wolfson, Shirley Cassin Woodward, & Dina B. Mishra, of the District of Columbia, & John J. Regan & Mark C. Fleming for American Insurance Association & others. David L. Arrington & Jodi L. Howick, of Utah, & Todd S. Holbrook & Jeffrey D. Adams for Mitchell International, Inc. LENK, J. After being billed by the plaintiff, N.E. Physical Therapy Plus, Inc. (NEPT), for certain medically necessary chiropractic services provided to the passenger of its insured, the defendant, Liberty Mutual Insurance Company (Liberty Mutual), maintained that the cost of those services was unreasonably high and thus refused to pay the full amount invoiced. At the ensuing trial on the dispute, Liberty Mutual sought to introduce statistical evidence from a commercial database to show that NEPT’s charges exceeded the eightieth percentile of reported charges for the same procedures and were thus unreasonable. Liberty Mutual claimed that the statistical evidence was admissible pursuant to G. L. c. 233, § 79B (§ 79B), which creates a limited exception to the hearsay rule for factual statements contained in commercial publications. Citing a decision of the Appellate Division of the District Court that concluded the same database was unreliable, a District Court judge denied Liberty Mutual’s motion to admit the database evidence. We are asked to determine whether a trial judge has discretion to consider the reliability of evidence offered under § 79B where the evidence otherwise satisfies the requirements of § 79B, and, if so, whether the judge here abused such discretion […]
Golchin v. Liberty Mutual Insurance Company (Lawyers Weekly No. 10-149-13)
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 SJC‑11305 DIANE GOLCHIN vs. LIBERTY MUTUAL INSURANCE COMPANY. Worcester. April 2, 2013. ‑ August 8, 2013. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Practice, Civil, Judgment on the pleadings. Contract, Insurance. Insurance, Motor vehicle insurance, Construction of policy, Medical supplementary coverage, Coverage. Civil action commenced in the Superior Court Department on September 30, 2008. The case was heard by John D. McCann, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Kenneth D. Quat (Elliot Beresen with him) for the plaintiff. Myles W. McDonough (Christopher M. Reilly with him) for the defendant. E. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. Timothy C. Kelleher, Michael C. Najjar, & J. Michael Conley, for Massachusetts Academy of Trial Attorneys, amicus curiae, submitted a brief. BOTSFORD, J. This is the second time this court has considered the present case. Again, the issue presented is whether a claimant may seek medical expense benefits under the “medical payments” coverage (MedPay) offered in a standard Massachusetts automobile insurance policy (auto policy) where those expenses were covered and paid under the claimant’s separate policy of health insurance. In Golchin v. Liberty Mut. Ins. Co., 460 Mass. 222, 236-237 (2011) (Golchin I), we reversed the order dismissing the complaint filed in the Superior Court by the claimant, Diane Golchin, against Liberty Mutual Insurance Company (Liberty Mutual), concluding that Golchin had alleged facts sufficient to raise an actionable right to relief. Today, we conclude that Golchin is entitled to the MedPay benefits provided by her auto insurance policy, notwithstanding that the medical expenses at issue were covered by and paid under a separate policy of health insurance. We therefore reverse the judgment of the Superior Court allowing Liberty Mutual’smotion for judgment on the pleadings.[1] 1. Background. We briefly summarize the facts that are pertinent to this appeal, as alleged in the complaint and contained in extrinsic documents introduced by the parties before the motion judge.[2] Golchin sustained significant personal injuries, resulting in medical expenses in excess of $ 100,000, when she was involved in a motor vehicle accident as an occupant of her husband’s car. The car was insured under an auto policy issued by Liberty Mutual […]
New England Insulation Company, Inc. v. Liberty Mutual Insurance Company (Lawyers Weekly No. 11-064-13)
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 11‑P‑1617 Appeals Court NEW ENGLAND INSULATION COMPANY, INC. vs. LIBERTY MUTUAL INSURANCE COMPANY. No. 11‑P‑1617. Suffolk. September 12, 2012. ‑ May 22, 2013. Present: Cohen, Rubin, & Carhart, JJ. Insurance, Comprehensive liability insurance, Coverage, Construction of policy. Contract, Insurance, Indemnity, Construction of contract. Indemnity. Asbestos. Civil action commenced in the Superior Court Department on July 13, 2010. A motion to dismiss was heard by Judith Fabricant, J. Elizabeth J. Stewart (Susan J. Baronoff with her) for the plaintiff. Kim V. Marrkand (Alec Zadek with her) for the defendant. COHEN, J. The central issue in this appeal is whether the pro rata time-on-the-risk allocation method adopted by the Supreme Judicial Court in Boston Gas Co. v. Century Indem. Co., 454 Mass. 337 (2009) (Boston Gas), should be applied to determine the extent of indemnity coverage owed by Liberty Mutual Insurance Company (Liberty) for claims brought against its insured, New England Insulation Company, Inc. (NEIC), for asbestos-related injuries. Procedurally, the appeal arises from the dismissal of NEIC’s complaint against Liberty, which, as pertinent here, sought damages and declaratory relief on the premise that the Boston Gas allocation method was not applicable because of differences in wording between the Liberty policies and those construed in Boston Gas. A judge of the Superior Court concluded that those differences were not significant and that Boston Gas was controlling. Accordingly, she dismissed the complaint for failure to state a claim upon which relief may be granted. See Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). NEIC appeals from the ensuing judgment, but argues error only in the judge’s determination (see note 2, supra) that Liberty did not breach its contractual duty to indemnify by deciding, in June, 2010, that it would apply the Boston Gas allocation method to future indemnity payments and allocate shares of losses to NEIC for periods when it did not have coverage. For the following reasons, we affirm. 1. Standard of review. Our review of the dismissal of a complaint pursuant to Mass.R.Civ.P. 12(b)(6) is de novo. Dartmouth v. Greater New Bedford Regional Vocational Technical High Sch. Dist., 461 Mass. 366, 373 (2012). “We accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff. We consider whether the factual allegations in the […]