Posts tagged "Mutual"

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NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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.  […]

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Posted by Massachusetts Legal Resources - March 8, 2018 at 4:23 pm

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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 […]

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Posted by Massachusetts Legal Resources - October 5, 2017 at 4:32 pm

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Chamberland v. Arbella Mutual Insurance Company (Lawyers Weekly No. 11-077-17)

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-861                                        Appeals Court   HEATHER CHAMBERLAND  vs.  ARBELLA MUTUAL INSURANCE COMPANY.     No. 16-P-861.   Bristol.     February 1, 2017. – June 9, 2017.   Present:  Carhart, Massing, & Henry, JJ.[1]     Insurance, Underinsured motorist, Arbitration.  Contract, Insurance, Arbitration.  Waiver.  Collateral Estoppel.  Judgment, Preclusive effect.  Arbitration.  Practice, Civil, Summary judgment, Waiver.       Civil action commenced in the Superior Court Department on March 4, 2015.   The case was heard by Robert J. Kane, J., on motions for summary judgment.     Peter E. Heppner (Andrew Hart Lynch also present) for the defendant. Ronald J. Resmini for the plaintiff.     HENRY, J.  This case highlights the intricacies of the framework for underinsured motorist claims in Massachusetts, which provides that the insured and the insurer must either agree on the resolution of the claim or arbitrate.  The plaintiff, Heather Chamberland, pursued a lengthy civil action against the other driver involved in the underlying accident and obtained a large judgment and eventually a settlement in the amount of that driver’s policy limits.  Her underinsurance carrier, Arbella Mutual Insurance Company, was not a party to that action, though it consented to the settlement.  Chamberland then sought underinsured motorist coverage from Arbella, which invoked arbitration.  On cross motions for summary judgment, a  Superior Court judge held that Arbella’s invocation of arbitration was untimely, and thus Arbella had waived its right to arbitrate.  The motion judge further held that, as a result of the damages award that Chamberland had secured against the other driver at trial, Arbella was collaterally estopped from contesting issues of liability and damages in connection with Chamberland’s underinsurance claim.  Arbella appealed.  We reverse because, notwithstanding the significant amount of time that passed before Arbella’s demand for arbitration, Arbella did not act inconsistently with its statutory and policy-based right to arbitrate.  As such, there is no basis for a finding of waiver of that right. Background.  The following undisputed facts are drawn from the summary judgment record.  On July 16, 2007, Chamberland was injured in an accident while operating a motor vehicle insured under a policy issued by Arbella.  The other vehicle involved in the accident was operated by Dylon Maiorano and insured under a policy issued by Liberty Mutual Insurance Company.  Arbella was notified of the accident, and by October 3, 2007, confirmed in writing that Chamberland’s underinsurance (part […]

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Posted by Massachusetts Legal Resources - June 12, 2017 at 6:04 pm

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Chamberland v. Arbella Mutual Insurance Company (Lawyers Weekly No. 11-077-17)

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-861                                        Appeals Court   HEATHER CHAMBERLAND  vs.  ARBELLA MUTUAL INSURANCE COMPANY.     No. 16-P-861.   Bristol.     February 1, 2017. – June 9, 2017.   Present:  Carhart, Massing, & Henry, JJ.[1]     Insurance, Underinsured motorist, Arbitration.  Contract, Insurance, Arbitration.  Waiver.  Collateral Estoppel.  Judgment, Preclusive effect.  Arbitration.  Practice, Civil, Summary judgment, Waiver.       Civil action commenced in the Superior Court Department on March 4, 2015.   The case was heard by Robert J. Kane, J., on motions for summary judgment.     Peter E. Heppner (Andrew Hart Lynch also present) for the defendant. Ronald J. Resmini for the plaintiff.     HENRY, J.  This case highlights the intricacies of the framework for underinsured motorist claims in Massachusetts, which provides that the insured and the insurer must either agree on the resolution of the claim or arbitrate.  The plaintiff, Heather Chamberland, pursued a lengthy civil action against the other driver involved in the underlying accident and obtained a large judgment and eventually a settlement in the amount of that driver’s policy limits.  Her underinsurance carrier, Arbella Mutual Insurance Company, was not a party to that action, though it consented to the settlement.  Chamberland then sought underinsured motorist coverage from Arbella, which invoked arbitration.  On cross motions for summary judgment, a  Superior Court judge held that Arbella’s invocation of arbitration was untimely, and thus Arbella had waived its right to arbitrate.  The motion judge further held that, as a result of the damages award that Chamberland had secured against the other driver at trial, Arbella was collaterally estopped from contesting issues of liability and damages in connection with Chamberland’s underinsurance claim.  Arbella appealed.  We reverse because, notwithstanding the significant amount of time that passed before Arbella’s demand for arbitration, Arbella did not act inconsistently with its statutory and policy-based right to arbitrate.  As such, there is no basis for a finding of waiver of that right. Background.  The following undisputed facts are drawn from the summary judgment record.  On July 16, 2007, Chamberland was injured in an accident while operating a motor vehicle insured under a policy issued by Arbella.  The other vehicle involved in the accident was operated by Dylon Maiorano and insured under a policy issued by Liberty Mutual Insurance Company.  Arbella was notified of the accident, and by October 3, 2007, confirmed in writing that Chamberland’s underinsurance (part […]

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Posted by Massachusetts Legal Resources - June 9, 2017 at 10:07 pm

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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. […]

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Posted by Massachusetts Legal Resources - April 27, 2017 at 8:06 pm

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Holyoke Mutual Insurance Company in Salem, et al. v. Vibram USA, Inc. (Lawyers Weekly No. 12-031-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-2321 BLS1 HOLYOKE MUTUAL INSURANCE COMPANY IN SALEM and MARYLAND CASUALTY COMPANY vs. VIBRAM USA, INC. MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON RECOUPMENT AND RECOVERY OF DEFENSE COSTS INTRODUCTION This action arises out of a coverage dispute between the plaintiff insurance companies, Holyoke Mutual Insurance Company in Salem (Holyoke)1 and Maryland Casualty Company (Maryland) (individually an Insurer, and collectively the Insurers), and the defendant, Vibram USA, Inc. (Vibram). Each of the insurers issued commercial general liability policies to Vibram (or its affiliate) (the Policies).2 An action was filed against Vibram in the United States District Court for the Western District of Washington at Tacoma captioned: Tefere Abebe Bikila, and others, v. Vibram, case no. 3:15-cv-05082-RBL (the Underlying Action). Vibram asserted coverage under the Policies and tendered defense of the Underlying Action to the Insurers. The 1 Holyoke has been replaced as a plaintiff in this action by its successor, Country Mutual Insurance Company. For consistency, the court will continue to refer to it as Holyoke in this Memorandum of Decision and Order. 2 Holyoke issued policies to Vibram for several years, while Maryland issued policies to an affiliate of Vibram,Vibram Five Fingers, LLC. It is not necessary to distinguish between Vibram and its affiliate for the purposes of this motion, and the court will refer to them collectively as Vibram. Additionally, for purposes of this motion the relevant policy language in all of the policies is identical, and is it also unnecessary to distinguish among policy years. The court will therefore simply refer to the Holyoke and Maryland policies collectively as the Policies. 2 Insurers each sent a “reservation of rights” letter to Vibram in which they agreed to provide its defense to the claims asserted in the Underlying Action, but also maintained that coverage did not exist under the Policies and reserved their rights to bring a declaratory judgment action and seek reimbursement for defense costs advanced. The Insurers then filed this declaratory judgment action seeking a declaration that the claims asserted against Vibram in the Underlying Action are not covered under the Policies; Vibram counterclaimed for a declaration that they are. In a Memorandum of Decision and Order on Cross-Motions for Summary Judgment and Partial Summary Judgment originally issued on August 17, 2016 (the Decision), this court held that the Policies do not provide coverage for the claims asserted against Vibram in the Underlying Action and, accordingly, there is no duty to defend. The case is now before the court on cross-motions for summary judgment addressing the issues of recoupment of defense costs advanced or, conversely, recovery of defense costs incurred before […]

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Posted by Massachusetts Legal Resources - April 6, 2017 at 5:20 am

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Holyoke Mutual Insurance Company in Sale,, et al. v. Vibram USA, Inc. (Lawyers Weekly No. 12-031-17)

1 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 15-2321 BLS1 HOLYOKE MUTUAL INSURANCE COMPANY IN SALEM and MARYLAND CASUALTY COMPANY vs. VIBRAM USA, INC. MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT ON RECOUPMENT AND RECOVERY OF DEFENSE COSTS INTRODUCTION This action arises out of a coverage dispute between the plaintiff insurance companies, Holyoke Mutual Insurance Company in Salem (Holyoke)1 and Maryland Casualty Company (Maryland) (individually an Insurer, and collectively the Insurers), and the defendant, Vibram USA, Inc. (Vibram). Each of the insurers issued commercial general liability policies to Vibram (or its affiliate) (the Policies).2 An action was filed against Vibram in the United States District Court for the Western District of Washington at Tacoma captioned: Tefere Abebe Bikila, and others, v. Vibram, case no. 3:15-cv-05082-RBL (the Underlying Action). Vibram asserted coverage under the Policies and tendered defense of the Underlying Action to the Insurers. The 1 Holyoke has been replaced as a plaintiff in this action by its successor, Country Mutual Insurance Company. For consistency, the court will continue to refer to it as Holyoke in this Memorandum of Decision and Order. 2 Holyoke issued policies to Vibram for several years, while Maryland issued policies to an affiliate of Vibram,Vibram Five Fingers, LLC. It is not necessary to distinguish between Vibram and its affiliate for the purposes of this motion, and the court will refer to them collectively as Vibram. Additionally, for purposes of this motion the relevant policy language in all of the policies is identical, and is it also unnecessary to distinguish among policy years. The court will therefore simply refer to the Holyoke and Maryland policies collectively as the Policies. 2 Insurers each sent a “reservation of rights” letter to Vibram in which they agreed to provide its defense to the claims asserted in the Underlying Action, but also maintained that coverage did not exist under the Policies and reserved their rights to bring a declaratory judgment action and seek reimbursement for defense costs advanced. The Insurers then filed this declaratory judgment action seeking a declaration that the claims asserted against Vibram in the Underlying Action are not covered under the Policies; Vibram counterclaimed for a declaration that they are. In a Memorandum of Decision and Order on Cross-Motions for Summary Judgment and Partial Summary Judgment originally issued on August 17, 2016 (the Decision), this court held that the Policies do not provide coverage for the claims asserted against Vibram in the Underlying Action and, accordingly, there is no duty to defend. The case is now before the court on cross-motions for summary judgment addressing the issues of recoupment of defense costs advanced or, conversely, recovery of defense costs incurred before […]

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Posted by Massachusetts Legal Resources - April 3, 2017 at 4:31 pm

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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 […]

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Posted by Massachusetts Legal Resources - March 29, 2017 at 10:02 pm

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Duffy v. Amica Mutual Insurance Co. (Lawyers Weekly No. 11-041-16)

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-1707                                       Appeals Court   JOHN DUFFY, D.C.  vs.  AMICA MUTUAL INSURANCE CO. No. 14-P-1707. Middlesex.     January 11, 2016. – April 8, 2016.   Present:  Katzmann, Milkey, & Hanlon, JJ. Insurance, Motor vehicle personal injury protection benefits, Coordination-of-benefits clause, Unfair act or practice.  Contract, Insurance, Coordination of benefits clause.  Consumer Protection Act, Insurance.       Civil action commenced in the Lowell Division of the District Court Department on May 14, 2010.   The case was heard by J. Elizabeth Cremens, J., on motions for summary judgment.     Francis A. Gaimari for the plaintiff. Charles G. Devine, Jr. for the defendant.        KATZMANN, J.  This appeal presents the principal question whether summary judgment was appropriately allowed against a health care provider which, though having failed to coordinate benefits between the insured’s auto insurer and the insured’s health insurer, claimed entitlement to unpaid Personal Injury Protection (PIP) benefits under the compulsory motor vehicle liability insurance scheme contained in G. L. c. 90, §§ 34A-34Q.[1] The plaintiff, John Duffy, D.C., a corporation providing chiropractic services (we refer to the corporation and the individual as Duffy),[2] appeals from a decision and order of the Appellate Division of the District Court affirming a summary judgment granted by a District Court judge to the defendant, auto insurer Amica Mutual Insurance Company (Amica), on Duffy’s action for recovery of $ 394.44 in PIP benefits.  Duffy had treated Amica’s insured, Sandra Cormier, and he alleges that the PIP benefits were due him as an unpaid party pursuant to G. L. c. 90, § 34M.[3]  He also claims that he was entitled to recover damages and attorney’s fees and costs pursuant to G. L. c. 90, § 34M, and G. L. c. 93A, § 11.[4]  We affirm. Discussion.  “We review the disposition of a motion for summary judgment de novo . . . to determine whether all material facts have been established such that the moving party is entitled to judgment as a matter of law[;] . . . [w]e construe all facts in favor of the nonmoving party, . . . and we may consider any grounds that support the motion judge’s ruling.”  American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG., 468 Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014) (quotations and citations omitted). The essence of the parties’ dispute is the question whether Amica’s obligation to pay unpaid portions of Duffy’s bills was ever triggered.  Amica initially denied all […]

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Posted by Massachusetts Legal Resources - April 8, 2016 at 11:20 pm

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Hawley, et al. v. Preferred Mutual Insurance Company (Lawyers Weekly No. 11-146-15)

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-917                                        Appeals Court    LINDA HAWLEY & another[1]  vs.  PREFERRED MUTUAL INSURANCE COMPANY. No. 14-P-917. Hampden.     April 10, 2015. – September 16, 2015.   Present:  Cypher, Trainor, & Katzmann, JJ. Insurance, Reference process, Arbitration, Coverage, Water damage.  Contract, Insurance.  Consumer Protection Act, Insurance, Unfair act or practice.  Limitations, Statute of.  Practice, Civil, Statute of limitations, Consumer protection case.       Civil action commenced in the Superior Court Department on June 2, 2008.   The case was heard by Cornelius J. Moriarty, II, J.     James E. Grumbach for the plaintiffs. Jeffrey L. McCormick for the defendant.     KATZMANN, J.  This appeal arises from a dispute between an insurer and its insured, based on a denial of coverage for water damage, and largely concerns the question whether the insured’s mere request for a reference for arbitration pursuant to G. L. c. 175, § 99, Twelfth, as appearing in St. 1951, c. 478, § 1, operates to toll the statute of limitations period contained in § 99 and incorporated by the insurance policy.[2]  We conclude that it does not. On November 12, 2012, after a seven-day bench trial, a Superior Court judge issued a ruling in favor of the defendant, Preferred Mutual Insurance Company (Preferred), on a breach of contract claim and an unfair and deceptive insurance practicesclaim under G. L. c. 93A and G. L. c. 176D.  The decision was based on the grounds that the breach of contract claim was barred by the statute of limitations and that there were no facts to support the claim that Preferred acted unfairly or deceptively in denying the insurance claim or in its failure to proceed to reference.  A second amended judgment entered on February 11, 2013, and the insureds, Linda and Robert Hawley (the Hawleys), appealed.  We affirm on the grounds that (1) the breach of contract claim was filed outside the statute of limitations, as the request for reference did not toll the statute of limitations, and, even if it had, the complaint was not filed within a reasonable time after the denial of the request for reference; and (2) because the loss at issue did not fall within the policy, the c. 93A and c. 176D claims also fail. Background.  The facts as found by the Superior Court judge are as follows.  Linda Hawley owns the dwelling at issue and Robert Hawley manages it.  The dwelling is a […]

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Posted by Massachusetts Legal Resources - September 16, 2015 at 11:57 pm

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