Byron V. Hartunian, M.D., P.C. v. Pilgrim Insurance Company (Lawyers Weekly No. 11-152-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-8 Appeals Court BYRON V. HARTUNIAN, M.D., P.C. vs. PILGRIM INSURANCE COMPANY. No. 14-P-8. Middlesex. September 9, 2014. – November 24, 2014. Present: Kantrowitz, Grainger, & Hanlon, JJ. Insurance, Motor vehicle personal injury protection benefits, Settlement of claim, Unfair act or practice. Consumer Protection Act, Insurance, Unfair or deceptive act. Motor Vehicle, Insurance. Civil action commenced in the Cambridge Division of the District Court Department on November 7, 2008. The case was heard by Severlin B. Singleton, III, J. Joseph R. Ciollo for the defendant. Francis A. Gaimari for the plaintiff. GRAINGER J. A $ 990 dispute, reduced shortly before a bench trial in the District Court to a claim for $ 188.10, has resulted in an award totaling $ 25,343.53 against Pilgrim Insurance Company (Pilgrim).[1] Pilgrim now appeals from the decision and order of the Appellate Division of the District Court affirming the District Court judgment in favor of Byron Hartunian, M.D., P.C. (Hartunian), on his claim that Pilgrim unfairly delayed payment for orthopedic treatment rendered by Hartunian to the claimant under Pilgrim’s policy. We affirm. This case arises out of an April 4, 2007, automobile accident in which a passenger was injured, resulting in her need for medical treatment. The automobile in which she was a passenger was covered by a standard Massachusetts automobile insurance policy (auto policy) issued by Pilgrim. A personal injury protection (PIP) benefits application was received by Pilgrim approximately ninety days after the accident. Some ninety additional days thereafter Pilgrim received treatment records and bills from Hartunian for five different dates of treatment.[2] Pilgrim initially paid $ 515 to Hartunian, constituting payment for the first two treatment dates of May 15 and June 20, 2007. Thereafter, Pilgrim paid Hartunian an additional $ 495 for the remaining three treatment dates of July 19, August 14, and October 2, 2007. Although these two payments were intentionally $ 990 less than the total of Hartunian’s billings, Pilgrim did not notify Hartunian or his patient of its intention not to pay the $ 990 within ten days of the submission of the bills. Pilgrim based its nonpayment on its determination that the charges exceeded an amount that was reasonable in comparison to other medical providers in the same geographic area. After approximately twelvemonths of demanding payment to […]
Ari Weitzner, M.D., P.C. v. Cynosure, Inc.
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 13‑P‑264 Appeals Court ARI WEITZNER, M.D., P.C. vs. CYNOSURE, INC. No. 13‑P‑264. Middlesex. October 4, 2013. ‑ March 13, 2014. Present: Graham, Sikora, & Hanlon, JJ. Practice, Civil, Class action, Judicial discretion. Rules of Civil Procedure. Due Process of Law, Class action, Jurisdiction over nonresident. Superior Court, Jurisdiction. Civil action commenced in the Superior Court Department on May 24, 2005. A motion for class certification was heard by Joseph M. Walker, III, J., and entry of final judgment was ordered by him. Todd C. Bank (Christopher J. Marino with him) for the plaintiff. Richard M. Zielinski for the defendant. SIKORA, J. The plaintiff, Ari Weitzner, M.D., P.C. (Weitzner), brought a class action complaint in Superior Court for injunctive relief and damages against the defendant, Cynosure, Inc. (Cynosure). A judge denied class certification and subsequently entered judgment on the merits of Weitzner’s individual claims. Weitzner has appealed. He contends (1) that the judge wrongly denied certification of the proposed class of plaintiffs, and (2) that the judge should not have adjudicated the merits of his individual claims because the Superior Court lacked jurisdiction over allegations of damages below the level of $ 25,000. For the following reasons, we affirm. Background. The following facts emerge from the record as undisputed. Weitzner conducts an ophthalmology practice in Brooklyn, New York; Cynosure is a manufacturer of laser and light-based technology with a principal place of business in Massachusetts. Between April 7, 2004, and May 20, 2004, Cynosure sent Weitzner four unsolicited facsimile advertisements. On May 24, 2005, Weitzner filed the class action complaint in Superior Court alleging that Cynosure had violated the Telephone Consumer Protection Act of 1991 (TCPA), 47 U.S.C. § 227. The TCPA prohibits, inter alia, the transmission of unsolicited advertisements via facsimile. 47 U.S.C. § 227(b)(1)(C). Weitzner requested $ 1,500 in statutory damages for each violation of the TCPA and an order enjoining Cynosure from “continuing to send unsolicited facsimile advertisements.” See 47 U.S.C. § 227(b)(3). Three months later, in August of 2005, Cynosure voluntarily suspended its facsimile transmission program. In February of 2006, a judge denied Cynosure’s motion to dismiss the complaint. Weitzner subsequently ignored Cynosure’s offer to confess judgment on his individual claims. In April of 2008, Weitzner moved for certification of a nationwide class composed of: “[a]ll individuals […]
M.D. v. Department of Developmental Services, et al. (Lawyers Weekly No. 11-047-13)
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‑241 Appeals Court M.D.[1] vs. DEPARTMENT OF DEVELOPMENTAL SERVICES[2] & another.[3] No. 12‑P‑241. Middlesex. September 18, 2012. ‑ April 1, 2013. Present: Berry, Brown, & Agnes, JJ. Department of Developmental Services. Intellectually Disabled Person. Administrative Law, Hearing, Agency’s interpretation of statute, Substantial evidence. Notice. Civil action commenced in the Superior Court Department on March 25, 2011. The case was heard by Daniel M. Wrenn, J., on a motion for judgment on the pleadings. Stephen Michael Sheehy for the plaintiff. Timothy J. Casey, Assistant Attorney General, for the defendants. BROWN, J. The Fernald Developmental Center (FDC) will be closing as an Intermediate Care Facility for Persons with Mental Retardation (ICF). This policy decision removing a group of intellectually disabled individuals from that facility is no longer subject to review by the Federal courts. Born in 1943, M.D. is moderately intellectually disabled and suffers from severe mental illness. She is one of the last fourteen residents of FDC, where she has lived since 1985. At FDC, M.D. receives services and supports in accordance with the individual service plan (ISP) developed by her team. On May 28, 2010, the Department of Developmental Services (DDS) gave notice to M.D.’s guardians of its intentions to transfer her from FDC to the Wrentham Developmental Center (WDC), another ICF in the Commonwealth. This notice is required by G. L. c. 123B, § 3, inserted by St. 1986, c. 599, § 39, (transfer statute). Under the statute, M.D.’s guardians had forty-five days to object to the proposed transfer. The guardians objected, and DDS then referred the case to the Division of Administrative Law Appeals (DALA) for a hearing, in accordance with the statute. An evidentiary hearing was held before an administrative magistrate, who issued a decision that included detailed findings of fact. The administrative magistrate concluded that the transfer of M.D. to the WDC would result in improved services and quality of life and was in her best interest. The guardians then appealed the DALA decision in Superior Court. Review in that court was under G. L. c. 30A, § 14(7). The judge upheld DALA’s decision, and this appeal followed. This case involves the procedural schemes and safeguards associated with the transfer statute. For the reasons that follow, we hold that (1) the magistrate appropriately declined to consider […]
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