2016 Mass. App. Div. 95

June 3, 2016 - July 28, 2016

Appellate Division Northern District

Court Below: District Court, Lowell Division

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

In the Lowell Division, Justice: Crane, J. [Note 1]

Nancy Wheeler for the plaintiff.

Peter J. Riordan and Christina A. Madek for the defendant.

COVEN, P.J. A $780.00 claim for personal injury protection (“PIP”) benefits, brought by Dupilka Family Chiropractic (“Dupilka”) and transferred at the request of Metlife Auto and Home (“Metlife”) from the small claims session, resulted, after a jury-waived trial, in a judgment total of $25,317.64 against Metlife, including attorney’s fees. Metlife now appeals from the decision and order of the trial judge.

We summarize the extensive findings of the trial judge. This case arises out of an October 8, 2010, automobile accident in which Metlife’s insured was injured. The insured was treated by Dupilka between October 13, 2010, and January 24, 2011. All treatment was necessary and proper, and all charges were fair and reasonable. Metlife paid the first $2,000.00 of treatment expenses, and treatment bills were thereafter submitted to the insured’s health insurance provider, Harvard Pilgrim (“HP”), for payment. HP declined to pay for the services at issue in this case, hot and cold pack treatments. In denying payment, HP used a billing code that indicated “deny - payment included in the allowance of another service.” Metlife paid for ten dates of service, but declined to pay for the twenty-six dates of service at issue. Dupilka sought from Metlife $30.00 for each date of service, at a total of $780.00. Metlife declined, stating, “Please be advised that we are unable to consider payment for charges [for hot and cold pack treatments] since payment has already been considered by [HP] and included in the allowance of another service.” On each date of service for which a payment request was made, Dupilka also billed Metlife for chiropractic manipulation and electronic stimulation under different billing codes. Payment was made for the chiropractic treatment on some dates, but not others. The trial judge found that there was no evidence that the hot and cold pack treatments were included in any other services rendered, regardless of whether Metlife paid for them. Hot and cold pack chiropractic treatment, as referenced to and found by the trial judge, is expressly excluded from the payment policies of HP.

In addressing Metlife’s claims, the trial judge, through reference to the HP policy, rejected the argument that because the treatment was covered by HP, it was not responsible for the payment even if unreimbursed. Further, the argument that Dupilka’s claim constituted “balance billing” was also rejected.

Page 96

As its central theme in this appeal, Metlife argues that a PIP insurer should be allowed to rely upon an explanation of benefits denial by a health provider, and that to allow a judgment to stand that permits a court to “substitute its own assessment of health insurance coverage” “will create mischief, uncertainty and unpredictability” in the context of PIP claims and, as a result, “will have disastrous effects on the automobile insurance industry.” Secondarily, Metlife argues that the trial judge improperly shifted the burden of proof on the issue of nonpayment of services to Metlife.

We begin with the burden shifting argument and reject this claim. Metlife’s focus is upon the trial judge’s finding that there was no evidence that the hot and cold pack treatments were compensated or indemnified by HP. It is clear from the trial judge’s written decision that there was no shift in the burden. Dupilka sustained its burden. Provenzano v. Arbella Mut. Ins. Co., 2007 Mass. App. Div. 46, 47 (claimant has burden to prove nonpayment). Offered as an agreed-upon exhibit, the trial judge found that the hot and cold pack treatment was expressly excluded from HP’s Chiropractic Manipulation Services agreement. The trial judge juxtaposed this finding against Metlife’s assertion that the treatment was included in other compensated services. Dupilka sustained its burden, and it fell to Metlife to rebut the express exclusion. If an obtained service is not available under a health insurance plan, the PIP carrier is responsible for payment up to the statutory limit. Mejia v. American Cas. Co., 55 Mass. App. Ct. 461, 463 n.3 (2002).

We turn to the primary concern of Metlife and conclude that there exists “no mischief, uncertainty and unpredictability” in the context of the PIP claim at issue, nor will the result have “disastrous effects on the automobile insurance industry.” “The no-fault insurance scheme was designed to provide an expeditious and inexpensive method of reimbursing injured parties for their medical and other out-of-pocket expenses as well as to reduce the high costs of motor vehicle accidents. Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115 (1999). The statute provides that the PIP carrier will pay for the first $2,000.00 of medical treatment for an insured or claimant who has medical coverage. Section 34A of G.L. c. 90 ‘expressly limits PIP payments for medical expenses to $2,000.00 in cases where such expenses have been or will be paid under a health insurance policy.’” Salafia v. Hanover Ins. Co., 2006 Mass. App. Div. 188, 188-189, quoting Shah v. Liberty Mut. Ins. Co., 56 Mass. App. Ct. 903, 904 (2002). “The statute [also] makes the PIP carrier responsible for up to $6,000.00 in coverage after the initial $2,000.00 PIP payment is made if the injured person’s health insurance coverage does not apply.” Id. at 189. “The purpose of coordinating benefits in this fashion is two-fold: to leave the remaining $6,000 in PIP benefits available to be paid for lost wages, replacement services, and additional medical costs not covered by the health insurer, thereby maximizing the insured’s benefits under his policies; and to contain the costs of compulsory automobile insurance by allocating medical expenses above $2,000 to available health insurance” (citation omitted). Shah, supra. The burden of proof on the issue of coordination of benefits is upon the insured. Mejia, supra at 466. [Note 2]

Page 97

We accept Metlife’s position that it should be entitled to rely upon HP’s statement of disclaimer, but reject its implied position that the statement of rejection is conclusive. Here, it has been demonstrated that the express terms of the HP policy exclude coverage for hot and cold pack chiropractic treatment. “[T]he main objectives of the automobile insurance law, of which [PIP] is a critical part, were to reduce the amount of motor vehicle tort litigation, control the costs of automobile insurance, and ensure prompt payment of claimants’ medical and out-of-pocket expenses.” Fascione v. CNA Ins. Cos., 435 Mass. 88, 94 (2001). In this context, we find no merit to Metlife’s argument that the issue of payment needed to be first submitted to the HP grievance procedure. Metlife ignores in its arguments that hot and cold pack treatment was excluded from coverage. [Note 3]

Finally, Metlife argues that an award of $24,131.71 in attorney’s fees on a $780.00 claim is incongruous with the PIP statute’s requirement that only reasonable attorney’s fees may be awarded. [Note 4] The attorney’s fee award was determined after discovery and an evidentiary hearing at which Metlife’s counsel examined Dupilka’s counsel. In a six-page decision, the court reviewed the request and determined, under the lodestar analysis, [Note 5] that Dupilka was entitled to 73.9 hours of compensation at the rate of $325.00 per hour.

As to Metlife’s claim that the award was disproportionate to the recovery, Metlife has not persuaded us that the trial judge made clear error in the statement that “the defendant’s contentious litigation strategy on a matter that the plaintiff had commenced as a small claim matter produced much of the time that the plaintiff’s counsel was required to devote to this matter. Where the defendant and its counsel litigated this matter with little sense of proportion, they must now reap what they have sown.” Dupilka may file an appropriate motion in this Appellate Division for additional attorney’s fees incurred in this appeal, Fabre v. Walton, 441 Mass. 9, 10 (2004), within fourteen days of the date of this opinion. Metlife shall have fourteen days thereafter to respond.

So ordered.


[Note 1] The Honorable Daniel C. Crane recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 2] Metlife suggests that because Dupilka had access to HP’s members under a provider agreement between it and HP, Dupilka was “compensated” as that term is used in G.L. c. 90, § 34A, and, therefore, Metlife was not responsible for payment beyond $2,000.00. We reject a reading that would equate the word “compensation” with membership access.

[Note 3] Because the treatment at issue was not covered, there is no merit to Metlife’s argument that Dupilka was precluded under the provider agreement between it and HP from seeking further coverage from Metlife.

[Note 4] Dupilka has not appealed from the trial judge’s finding on the issue of attorney’s fees or that Metlife did not violate G.L. c. 93A. We therefore do not address issues raised by Dupilka as to the correctness of these rulings.

[Note 5] A fee calculated by multiplying the number of hours reasonably spent on the case times a reasonable hourly rate is generally referred to as a “lodestar” award. Fontaine v. Ebtec Corp., 415 Mass. 309, 324 (1993). See Stacy v. Zhao, 2013 Mass. App. Div. 59, 63 (“[T]he lodestar method of determining fees should govern unless there exist special reasons to employ another method.”).