Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group (Lawyers Weekly No. 10-171-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 SJC-11561 BARRON CHIROPRACTIC & REHABILITATION, P.C. vs. NORFOLK & DEDHAM GROUP. Norfolk. May 5, 2014. – October 15, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.[1] Insurance, Motor vehicle personal injury protection benefits, Unfair act or practice. Contract, Insurance. Practice, Civil, Summary judgment, Attorney’s fees. Consumer Protection Act, Insurance. Civil action commenced in the Dedham Division of the District Court Department on November 25, 2009. The case was heard by James J. McGovern, J., on a motion for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Francis A. Gaimari (Robert N. Fireman & Stephen B. Byers with him) for the plaintiff. Joseph R. Ciollo (Michael L. Snyder with him) for the defendant. E. Michael Sloman, for Automobile Insurers Bureau, amicus curiae, submitted a brief. Christopher M. Moutain, for American Insurance Association & others, amici curiae, submitted a brief. LENK, J. The personal injury protection (PIP) provision of the automobile insurance statute permits an unpaid party to bring an action for breach of contract against an automobile insurer if the latter has not paid PIP benefits for more than thirty days after those benefits became due and payable. G. L. c. 90, § 34M, fourth par. If the unpaid party receives a judgment for any amount due and payable by the insurer, it also may recover its costs and reasonable attorney’s fees. The primary question before us is whether an unpaid party who has brought suit and thereafter refused the insurer’s tender of amounts due and payable, made prior to the entry of judgment, may proceed with the suit and, if successful, obtain a judgment for those amounts as well as its costs and attorney’s fees. We conclude that it may proceed with the action under G. L. c. 90, § 34M. 1. Background. The plaintiff, Barron Chiropractic & Rehabilitation, P.C. (Barron), provided chiropractic services to Nicole Jean-Pierre following her automobile accident on August 20, 2008. Jean-Pierre was injured while driving a vehicle insured by the defendant Norfolk & Dedham Group (Norfolk) pursuant to G. L. c. 90, § 34A, which requires compulsory motor vehicle liability insurance, including PIP benefits.[2] See G. L. c. 90, §§ 34A, 34M. Norfolk received notice of the accident on August 22, 2008, and, on October 10, 2008, received Jean-Pierre’s application for PIP benefits.[3] Shortly thereafter, pursuant to its contractual right […]