2016 Mass. App. Div. 108

June 3, 2016 - September 27, 2016

Appellate Division Northern District

Court Below: District Court, Lowell Division

Present: Coven, P.J., Singh & Nestor, JJ.

Elizabeth H. Manos and Francis A. Gaimari for the plaintiff.

Dennis P. Flynn for the defendant.

SINGH, J. This is an appeal from the grant of summary judgment in favor of the defendant-insurer, Metropolitan Property & Casualty Insurance Company (“Metropolitan”), in a case brought by the plaintiff-health care provider, Fast Track Physical Therapy, Inc. (“Fast Track”), for the recovery of personal injury protection (“PIP”) insurance benefits allegedly owed to its patient by Metropolitan.

On March 20, 2008, there was an automobile accident involving an occupant of a motor vehicle insured by Metropolitan. The occupant obtained treatment from Fast Track, and Metropolitan paid out $2,000.00 in PIP benefits, pursuant to its obligations under the insurance policy. On July 21, 2008, however, Metropolitan indicated that no further payments would be forthcoming until it received a rejection or coordination of benefits statement from the patient’s primary health insurance carrier. Fast Track continued to present claims for payment associated with treatment of its patient, and on December 12, 2008, Metropolitan reiterated that no further payments would be made until it received a rejection or coordination of benefits statement. On April 3, 2014, Fast Track brought this action against Metropolitan to recover unpaid bills for treatment of its patient, pursuant to G.L. c. 90, § 34M.

Metropolitan moved for summary judgment on the basis that it had no obligation to make any further payments, because it had never received a rejection or coordination of benefits statement from the patient’s primary health insurance carrier. See G.L. c. 90, § 34A (PIP covers up to $8,000.00 in expenses, but will cover only first $2,000.00 if insured has health insurance that will cover expenses over $2,000.00). In support of its motion, Metropolitan submitted an affidavit of the keeper of the records of Metropolitan’s claim file regarding Fast Track’s claim. That affidavit states that “on or about April 17, 2008, Metropolitan was informed that [Fast Track’s patient] had a health insurance policy with Network Health.” The affidavit gives no further detail as to the source of the information or how Metropolitan learned of it. Nevertheless, Metropolitan took the position that, based on this information, it was entitled to await a rejection or coordination of benefits statement from Network Health before making any further payment to Fast Track.

As part of its opposition to summary judgment, Fast Track submitted an affidavit of counsel, averring that Fast Track had served upon Metropolitan “Plaintiff’s Requests for Admissions of Fact” on November 21, 2014, and had received no response as of

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February 19, 2015. In the attached Requests, Metropolitan was asked to admit that Fast Track’s patient “had no health insurance,” and that Metropolitan had received an affidavit to that effect. Fast Track argued that Metropolitan is deemed to have made this admission due to its failure to respond in a timely fashion. See Mass. R. Civ. P. 36(a) (matters within requests for admission are deemed admitted unless properly denied or objected to in timely fashion). Here, Metropolitan’s response was due within 30 days, yet it submitted no response at all. Thus, Metropolitan admitted that it was aware that Fast Track’s patient had no health insurance. If this was the case, it would have been required to make additional payments to Fast Track. Thus, the admission created a genuine issue of material fact in dispute, precluding summary judgment. See Mass. R. Civ. P. 56(c) (summary judgment to be rendered only where “pleadings, depositions, answers to interrogatories, and responses to requests for admission under Rule 36, together with the affidavits, if any, show that there is no genuine issue as to any material fact”). See also Ellis v. Safety Ins. Co., 41 Mass. App. Ct. 630, 633 n.5 (1996) (failure to respond to requests for admission resulted in issue being conclusively established, and effect of admission could not be negated by opposing affidavit on summary judgment); Energy N., Inc. v. Gelardi, 1991 Mass. App. Div. 150, 151-152 (contradictory statements in unanswered requests for admissions resulted in genuine issues of material fact in dispute, precluding summary judgment).

The summary judgment record does not reflect any attempt on the part of Metropolitan to answer the Rule 36 issue raised by Fast Track. The judge’s decision allowing summary judgment in favor of Metropolitan also makes no reference to the Rule 36 issue. Yet Metropolitan argues on appeal that we may infer, from the grant of summary judgment in its favor, that the judge allowed Metropolitan to be relieved of its admissions. See Mass. R. Civ. P. 36(b) (court on motion may permit withdrawal or amendment of admission). As Metropolitan failed to move for relief from its admissions or even address the issue raised on summary judgment, we cannot infer that the judge considered it at all.

Judgment is vacated, and the case is returned to the Lowell District Court for trial.