EMERSON HOSPITAL v. AMICA MUTUAL INSURANCE COMPANY

NESTOR, J. Katherine Young ("Young") was injured in a single-car automobile accident at 3:15 A.M. on October 12, 2006. L. A. Clayton ("Clayton"), a friend of Young, reported to Amica Mutual Insurance Company ("Amica") that Young's car had hydroplaned in the rain and hit a barrier on Route 2 in Concord. According to Clayton, Young received head and neck injuries and was transported to Emerson Hospital. She received treatment in the emergency room and was released.

Emerson Hospital submitted a bill in the amount of $1,749.18 for the treatment provided to Young. Amica initially had some difficulty contacting Young. Amica sent a personal injury protection ("PIP") application to Young on three separate dates, which were undeliverable because of an improper address.

Amica was able to determine two possible addresses for Young through the registry of motor vehicles. As a result of that search, Amica's adjustor spoke to Young by telephone and verified the address. Amica again sent her a request for a PIP application. Young did not return the application. Amica then sent a follow-up letter to Young. Amica enclosed an additional copy of a PIP application and indicated that medical bills could not be paid until the PIP application was completed and returned. Amica subsequently notified Emerson Hospital that it closed its file due to noncooperation by Young.

Emerson Hospital brought this action under G.L. c. 90, § 34M and G.L. c. 93A, § 11 for nonpayment of PIP benefits. Amica filed a motion for summary judgment, which was allowed on May 2, 2013. The Appellate Division vacated summary judgment in Amica's favor on March 28, 2014 and returned the case for trial.

The G.L. c. 90, § 34M claim was tried before a jury on March 19, 2015. [Note 2] The jury answered various special questions and found for Amica. Judgment entered on July 29, 2015. Emerson Hospital moved for judgment notwithstanding the verdict ("judgment n.o.v."). That motion was denied, and Emerson Hospital filed a notice of appeal.

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Emerson Hospital's appeal is based on the denial of its motion for directed verdict and its unsuccessful motion for judgment n.o.v.

The standard of review for the denial of a motion for directed verdict and a motion for judgment n.o.v. is identical. D'Annolfo v. Stoneham Hous. Auth., 375 Mass. 650, 657 (1978). The standard requires the reviewing court to apply the same standard as the motion judge, "taking into account all the evidence in its aspect most favorable to the [nonmoving party], . . . to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the [nonmoving party]." Tosti v. Ayik, 394 Mass. 482, 494 (1985), quoting Rubel v. Hayden, Harding & Buchanan, Inc., 15 Mass. App. Ct. 252, 254 (1983). Furthermore, we consider whether "anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn" in favor of the nonmoving party, here Amica. Poirier v. Town of Plymouth, 374 Mass. 206, 212 (1978), quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). See Kattar v. Demoulas, 433 Mass. 1, 8 n.5 (2000).

Amica was able to determine two possible addresses for Young through a query conducted through the registry of motor vehicles. Amica then sent a follow-up letter to Young. Amica enclosed an additional copy of a PIP application and indicated that medical bills could not be paid until the PIP application was completed and returned.

Emerson Hospital argues that Amica failed to establish that Young failed to cooperate with Amica in the handling of her PIP claim or, in the alternative, that Amica suffered any prejudice as a result of noncooperation. The facts, viewed in the light most favorable to Amica, however, support the jury's verdict that Young failed to cooperate and, as a result of that noncooperation, Amica was prejudiced.

General Laws c. 90, § 34M requires a claimant to "do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due." This obligation has been read to require a claimant to at least respond to an insurer's requests for information relevant to the PIP insurer's investigation of a claim. In a case involving an insurer's denial of a PIP claim for the claimant's failure to provide prior medical records or to provide HIPAA-compliant medical record release forms, the Appellate Division held that:

"General Laws c. 90, §§ 34A and 34M govern the defendant's obligations to substantiate a PIP benefits claim and investigate the causal connection between the claimed injuries and automobile accident. Section 34M requires a claimant to 'do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due.' The defendant was entitled to investigate whether the postaccident medical treatments were causally related to the automobile accident and, if so, to what extent pre-existing injuries may have contributed. Its investigation would have reasonably required an evaluation of the plaintiff's prior medical records. See Fox v. Rivera, No. 02-P-732, at 3 (Mass. App. Ct. Aug. 23, 2004) (unpublished Rule 1:28 decision); Babilonia v. Commerce Ins. Co., 2001 Mass. App. Div. 169, 170. The plaintiff was obligated to provide the defendant with the requested medical records or HIPAA-compliant medical authorizations and a list of her medical providers for a two-year period. The plaintiff's noncooperation precluded the defendant from being able to evaluate

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properly the plaintiff's medical condition and her claim. Her failure to do so constituted noncooperation in the investigation of her claim.

"The plaintiff's wilful failure to cooperate with the defendant's requests for information violated the express terms of G.L. c. 90, § 34M, which provides, in part, that '[n]oncooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section.'"

Anderson v. Plymouth Rock Assur. Corp., 2009 Mass. App. Div. 11, 12.

The insurer must prove that the claimant's failure to cooperate prejudiced its ability to evaluate properly the plaintiff's claim and to consider issues of causation, reasonableness, necessity, and whether the plaintiff's claim is specifically excluded from the policy. See Boffoli v. Premier Ins. Co., 71 Mass. App. Ct. 212 (2008). In the instant case, there was sufficient evidence supporting the jury's verdict of noncooperation.

The plaintiff also appeals on the basis that there is an inconsistent verdict based on Jury Questions 5 and 6. Question 5, to which the jury answered yes, provided:

"Did Emerson establish that a claim for PIP benefits was made by, or on behalf of, Ms. Young within two years of the accident, in that she provided sufficient information to enable Amica to properly investigate and process the claim?"

Question 6, to which the jury also answered yes, provided:

"Did Amica establish that Ms. Young failed to cooperate with Amica's investigation and processing of the PIP claim?"

These questions required the jury to determine two separate issues. Question 5 relates to whether a claim was brought within the two years as required. Question 6 is a simple, straightforward question to the jury determining whether Young cooperated with the defendant.

The trial judge instructed the jury on Question 5 as follows:

"So with respect to this, whether the claim was brought within two years as required, I want to again remind you that it is the plaintiff's burden to present within two years from the date of the accident a claim that includes certain information.

"The claim need not be on a particular form but the claim must include a written description of the nature and the extent of the injuries sustained, treatment received and contemplated, and such other information as may assist in determining the amount due and payable.

"And so at this point if you find that Emerson did establish a claim for PIP benefits within two years of the accident in that she provided sufficient information to enable Amica to properly investigate and process the claim then you go to the next question."

The jury was instructed on Question 6 with the following:

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"I also want to point out to you that the law, the statute as well as the insurance policy, obligates the insurer to substantiate a PIP benefits claim and to investigate the claim.

"They need to investigate the causal connection between the claimed injuries, the automobile accident. The law requires in this regard -- the insurance as well [sic] the law requires anyone claiming PIP benefits to do all things that are necessary to enable the insurer to obtain the necessary medical reports, the needed information to assist in determining the amount due.

"The insurer is entitled to investigate whether the post-accident medical treatments were causally related to the accident and, if so, to what extent any preexisting injuries may have -- the claimant is obligated to provided the insure [sic] requested medical records or a HIPAA compliant medical authorization and list of their medical providers.

"If the claimant's noncooperation precluded the defendant from being able to evaluate properly the plaintiff's medical condition and their claim then their failure to do so constitutes noncooperation in the investigation of the claim."

The plaintiff did not object to either of these jury instructions.

According to the PIP statute, a plaintiff must present a claim for PIP benefits as soon as practicable after the accident occurs from which such claim arises, and in every case, within at least two years from the date of accident, and shall include a written description of the nature and extent of injuries sustained, treatment received and contemplated, and such other information as may assist in determining the amount due and payable. G.L. c. 90, § 34M. After a claim has been brought, a claimant's duty to cooperate obligates her to "do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due." Id.

In the instant case, the jury could have concluded that the verbal report of Clayton, combined with the receipt of the medical records from Emerson Hospital, was sufficient to satisfy the requirements for making a claim and, thus, answered "Yes" to Question 5. The jury could also have reasonably answered "Yes" to Question 6 by finding that Young failed to cooperate by not completing and returning PIP forms after being requested to by the defendant, verbally by telephone and, subsequently, in writing to an address verified by Young.

The jury was properly instructed by the trial judge on Questions 5 and 6. The jury's answers on Questions 5 and 6 are not inconsistent with the evidence. Questions 5 and 6 are not inconsistent with each other. Each question requires the consideration of different legal issues and the application by the jury of separate and distinct facts.

The judgment entered in favor of the defendant is affirmed.