2017 Mass. App. Div. 11

September 16, 2016 - January 5, 2017

Appellate Division Northern District

Court Below: District Court, Lowell Division

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

Stephen B. Byers, Francis A. Gaimari and Elizabeth H. Manos for the plaintiff.

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

NESTOR, J. On October 18, 2010, Moise Benjamin ("Benjamin") was involved in a minor motor vehicle accident. He reported that he was on Route 93 North in Quincy at about 6:10 A.M. Benjamin further reported that he started to slow down due to traffic congestion and was hit in the rear by another motor vehicle. Benjamin's vehicle was owned and insured by his wife, Marie Brisson-Casimir ("Brisson-Casimir"). Both Benjamin and Brisson-Casimir claimed that Brisson-Casimir was a passenger in the vehicle at the time of the accident. Subsequent investigation raised doubt on whether Brisson-Casimir was actually in the vehicle or whether she made that claim in an attempt to fabricate a personal injury claim.

An examination under oath ("EUO") was scheduled for both Benjamin and Brisson-Casimir on September 1, 2011. Both parties, on the advice of counsel, refused to answer any questions or produce any documents. The defendant, Metlife Auto and Home ("Metlife"), denied all the claims of both parties, based, inter alia, on noncooperation. The plaintiff, Performance Physical Therapy, Inc. ("Performance"), subsequently filed suit seeking payment for its treatment of Benjamin.

Performance originally filed suit in the small claims session in the Lowell District Court. The case was transferred to the regular civil docket. Performance sought personal injury protection ("PIP") coverage from Metlife on behalf of its insured, Benjamin.

On December 30, 2015, Metlife filed a motion for summary judgment. In support of that motion, Metlife ultimately filed three separate affidavits. Filed with the summary judgment motion was an affidavit from the defendant's attorney, Christina Madek ("Madek"), certifying that the exhibits attached to motion were true and accurate copies of various business records. On December 31, 2015, an additional affidavit signed by Joyce Warburton ("Warburton"), Metlife's claims adjuster, attesting to various documents, was filed with the motion as being accurate. On February 5, 2016, Metlife filed an affidavit of Attorney Glenda Ganem ("Ganem") further certifying that the documents attached to the motion were business records. She also attested to the accuracy of a copy of the transcript of the September 1, 2011 EUO. This affidavit avers that she was, in fact, present at the EUO.

A hearing on Metlife's motion for summary judgment was held on February 19, 2016. On that date, Performance filed its opposition and a motion to strike. Metlife,

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apparently having anticipated the filing of a motion on the date of the hearing, filed an opposition to Performance's motion to strike and filed a cross motion to strike Performance's opposition materials. Included in that opposition was a second affidavit of Warburton. Summary judgment entered for Metlife on March 2, 2016. No specific ruling was made on either motion to strike.

1. The trial judge properly entered summary judgment for Metlife because the affidavits and accompanying materials establish that Benjamin appeared for his EUO and refused to answer any questions. Benjamin was advised by counsel for Metlife that failure to testify at the EUO would result in the denial of all claims. There is no genuine issue of a triable fact regarding Benjamin's noncooperation.

Benjamin's failure to participate during his EUO was a breach of the insurance policy between him and Metlife. The standard Massachusetts automobile insurance policy, 2008 edition, was in place at the time of the accident and represented the contractual agreement between Benjamin and Metlife. It reads, in part:

"We may also require you and any person seeking payment under any part of this policy to submit to an examination under oath, at a place designated by us, within a reasonable time after we are notified of the claim."

Coverage is not triggered unless the insured cooperates, directing that:

"After an accident or loss, you or anyone else covered under this policy must cooperate with us in the investigation, settlement and defense of any claim or law suit. We must be sent copies of all legal documents in connection with the accident or loss. ...

"Failure to cooperate with us may result in the denial of the claim."

The policy requires cooperation and participation at an EUO before coverage is implicated.

Massachusetts appellate courts have routinely upheld this principle, ruling that "submission to an examination under oath is a condition precedent to recovery under an automobile insurance policy and the unexcused failure to submit to such examination constitutes a material breach of the insurance contract," which discharges the insurer's liability under the contract. Lorenzo-Martinez v. Safety Ins. Co., 58 Mass. App. Ct. 359, 362-363 (2003), citing Ellis v. Safety Ins. Co., 41 Mass. App. Ct. 630, 638-639 (1996), and Mello v. Hingham Mut. Fire Ins. Co., 421 Mass. 333, 336-337 (1995).

The materials submitted for the summary judgment motion also demonstrate that Benjamin failed to produce documents required by Metlife in connection with the EUO. There is, however, some rational basis to believe that the list of documents requested by Metlife is overly broad and potentially burdensome. Metlife requested the following of Benjamin and Brisson-Casimir:

-"A valid driver's license and/or other photographic identification;

-"All keys to the insured vehicle;

-"The insured vehicle's Certificate of Title, Registration, and Bill of Sale;

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-"All photographs of the vehicles, the scene, and related injuries and/or damages;

-"All police, ambulance, incident, fire department, tow and operator's reports;

-"All repair records and receipts for the insured vehicle as well as its complete maintenance history;

-"All records reflecting the purchase, ownership or use of the vehicle (s) for which your client, Marie Casimir, is making a claim or that was involved in the incident;

-"All records reflecting your client, Marie Casimir's financial condition for the calendar year 2009 to the present, including banking records, loan records, credit card records, federal and state tax returns, and any other records regarding debts or assets;

-"A complete list of the full names and professional designation of all persons who provided your clients with medical treatment for the October 18, 2010, incident;

-"Complete copies of all treatment and medical records, SOAP notes, itemized bills and reports for the claimed accident, as well as treatment records and reports for other medical conditions and/or other injuries sustained by your clients in the past five years;

-"Any and all documents and information between your clients and any insurance agency and/or representative;

-"Copies of all correspondence and statements of all potential witnesses. Please provide names, addresses, and telephone numbers;

-"Copies of all telephone records, including cellular telephone records, of your clients for the month of October, 2010, to the present; and

-"True copies of any and all policies of insurance held by your clients or any household members on the date of the incident."

Neither Benjamin nor his attorney objected to production of the documents at the EUO. Failure to produce requested documents in connection with an insurance claim is noncooperation and may warrant denial of a claim. Rymsha v. Trust Ins. Co., 51 Mass. App. Ct. 414, 417 (2001). [Note 1]

Performance is precluded from recovering PIP benefits because Benjamin failed to participate in the EUO and failed to cooperate in producing documents requested by Metlife. Section 34M of G.L.c. 90 states, "Noncooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section. ..." The Appeals Court has held that a medical provider pursuing a PIP action on behalf of a patient is subject to the same EUO and noncooperation defenses that the insurer would have if the patient sued the insurer directly. Electric Ins. Co. v. Fast Track Physical Therapy, Inc., No. 11-P-724 (Mass. App. Ct. March 8, 2012) (unpublished Rule 1:28 decision).

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2. In allowing Metlife's summary judgment motion, the trial judge did not act on Performance's motion to strike, effectively denying it. Rule 56(e) of the Mass. R Civ. P. states, in part:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein."

The plaintiff specifically sought to strike the following: affidavit of Joyce Warburton, paragraphs 6-12; Exhibits D, E, FI, F2, G, H, I, and J; and affidavit of Attorney Ganem, paragraph 4.

Paragraphs 6-12 of the Warburton affidavit simply reference Exhibits D, E, F1, F2, G, H, and I as true and accurate copies kept in good faith and in the ordinary course of business. For a writing to be admissible under G.L.c. 233, §78, the information contained in the document must have originated from an employee of the business with personal knowledge. Warburton avers in her affidavit that the above exhibits were being submitted in compliance with G.L.c. 233, §78 in that she is keeper of the records and the exhibits were kept in good faith and in the ordinary course of business.

Exhibit D was a notice for taking an EUO. Exhibit F2 was a second notice for an EUO. Exhibit G was a copy of the EUO transcript that Attorney Ganem participated in as counsel for Metlife.

Exhibits D and F2 were signed by Attorney Ganem. The EUO transcript was certified as a true and accurate copy by Attorney Ganem in her affidavit. Attorney Ganem further attested in her affidavit that the copies and the contents of the other exhibits were accurate. As a result, those exhibits met the standards of admissibility. See Roe v. Federal Ins. Co., 412 Mass. 43, 44 n.4 (1992) (affidavits made upon personal knowledge admissible); Cruickshank v. Commerce Ins. Co., 2004 Mass. App. Div. 103, 105 n.6 (copies must be sworn and certified); Sanabia v. Travelers Ins. Co., 1999 Mass. App. Div. 46, 48 (affiant must be competent; documents signed under pains and penalties of perjury are admissible and meet Mass. R Civ. P., Rule 56, requirements). Exhibit E is a letter from prior counsel to Metlife indicating that he is no longer representing Benjamin or Brisson-Casimir. Exhibit F1 is a letter from successor counsel advising Metlife that he now represents Benjamin and Brisson-Casimir. It is unclear from the record on what basis Performance sought to strike these exhibits, but accepting them or striking them would have no impact whatsoever on the motion for summary judgment. Exhibit H is a letter from Attorney Ganem to Attorney Ciccariello denying the claim. Exhibit I is a letter from Metlife to Performance denying the claim.

Exhibit J is a police report that indicates that Benjamin was the only occupant of the motor vehicle at the time of the accident. This police report is simply not material to issue of noncooperation.

Paragraph 4 of Attorney Ganem's affidavit is a recitation of the facts and circumstances of the EUO conducted by her on September 1, 2011. Attorney Ganem's affidavit certifying the accuracy of the exhibits and their contents renders Exhibits

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D, F2, G, and H and her affidavit admissible, regardless of any potential deficiencies in Warburton's affidavit.

There was no error in implicitly denying Performance's motion to strike. Metlife's summary judgment materials demonstrated that there is no genuine issue of triable fact as to Benjamin's noncooperation. The entry of summary judgment for Metlife is affirmed. [Note 2]


[Note 1] Because they did not object, we do not reach the question of whether these requests were reasonable under the circumstances of these claims.

[Note 2] Following Performance's filing of its appendix that included a filing not in the record (namely, an amended complaint), Metlife moved to strike the filing and for attorney's fees and costs, under Mass. R. Civ. P., Rule 11, connected with bringing the motion to strike. We allow the motion to strike, but deny the motion for fees and costs. Metlife has also moved, at the end of its appellee's brief, for appellate attorney's fees and costs for defending the appeal. Rule 25 of the Dist./Mun. Cts. R. A. D. A. allows for "damages" and costs if an appeal is frivolous or a party has acted in bad faith. See Marino v. Kandris, 1997 Mass. App. Div. 129, 131 (Rule 25 damages may include attorney's fees). An appeal is frivolous "[w]hen the law is well settled, when there can be no reasonable expectation of reversal." Avery v. Steele, 414 Mass. 450, 455 (1993), quoting Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984). We find that Performance's appeal is frivolous. Metlife is to file with this Division, and serve on Performance, its application and supporting affidavit detailing its appellate attorney's fees and costs within fourteen days of the date of the opinion. Performance may, within fourteen days thereafter, file with this Division, and serve on Metlife, any opposition to the amounts requested.