2014 Mass. App. Div. 241

October 17, 2014 - December 2, 2014

Appellate Division Northern District

Court Below: District Court, Salem Division

Present: Swan, P.J., Coven & Crane, JJ.

Matthew T. LaMothe for the plaintiff.

Heath R. Walker for the defendant.

SWAN, P.J. On May 18, 2009, Amanda M. Anderson (“Anderson”) was injured in an automobile accident, and Lomibo, LLC, d/b/a All State Pain Treatment and Therapy Center (“Lomibo”), treated her injuries until July 30, 2009. Lomibo, as an unpaid party, billed the responsible insurer, Quincy Mutual Fire Insurance Company (“Quincy Mutual”) for personal injury protection (“PIP”) reimbursement of $4,141.00. Quincy Mutual requested an independent medical examination (“IME”) of Anderson; the IME report’s conclusion was that Anderson was “at a medical end result” as of July 1, 2009. Based on the “IME cutoff date,” Quincy Mutual paid Lomibo $3,561.00 for treatment up to July 8, 2009. Nearly four years later, on May 16, 2013, Lomibo sued Quincy Mutual for breach of contract and violation of G.L. c. 90, § 34M, for the balance of $580.00. On June 27, Quincy Mutual sent Lomibo a check for $580.00, and the parties agree that the tendered payment was rejected. Quincy Mutual moved for summary judgment on the ground that since payment had been tendered, Lomibo would be entitled to no further recovery. Both parties presented sworn evidence of, in Quincy Mutual’s case, the IME report and payments, and in Lomibo’s, bills and treatment notes. Lomibo has appealed from allowance of the motion.

The essential material facts presented here, namely, tender of a PIP payment by the insurer and rejection of the tender by the medical provider, are identical to those presented in Flax Pond Chiropractic Care v. Quincy Mut. Ins. Co., 2014 Mass. App. Div. 239, decided this date and in which summary judgment was vacated on the authority of Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 810-811 (2014), rev’g, in part, 2013 Mass. App. Div. 76. For the same reasons expressed therein, summary judgment must be vacated and the matter returned for trial.

Summary judgment for Quincy Mutual is vacated; the allowance of Quincy

Page 242

Mutual’s summary judgment motion is reversed, and this case is returned to the Salem District Court for trial.


[Note 1] Doing business as All State Pain Treatment and Therapy Center.

[Note 2] Also referred to as “Quincy Mutual Insurance Company” in the record and appellate pleadings.