2017 Mass. App. Div. 134

October 7, 2016 - August 28, 2017

Appellate Division Western District

Court Below: District Court, Greenfield Division

Present: Hadley, P.J., McGill & Poehler, JJ.

James C. O'Sullivan for the plaintiff.

Brian A. Suslak and John P. Graceffa for the defendant.

POEHLER, J. The plaintiff-appellant, Hector Santiago ("Santiago"), appeals from a summary judgment awarded to the defendant-appellee, The Premier Insurance Company of Massachusetts, d/b/a Travelers of Massachusetts ("Travelers"). Summary judgment was awarded on the basis that Santiago had failed to file suit within the time allowed by the applicable statute of limitations. The parties have submitted an agreed statement of the case pursuant to Rule 8B of the District/Municipal Courts Rules for Appellate Division Appeal.

This case arises from a motor vehicle accident that occurred on December 19, 2010. Santiago was a passenger in a car insured by Travelers. After Santiago initiated his claim, Travelers made two attempts to obtain his examination under oath ("EUO"). Santiago refused both times. [Note 2] On June 20, 2011, Travelers wrote a seven-page letter to Santiago's counsel denying Santiago's personal injury protection ("PIP") and uninsured motorist ("UM") claims on the ground that Santiago had refused to cooperate in the investigation of the accident, specifically, that he would not submit to an EUO. [Note 3] The letter set forth the applicable portions of the insurance policy as well as case law. Written demands for settlement were thereafter made by Santiago's counsel on January 12, 2012 and April 3, 2012. In a written response on April 6, 2012, Travelers indicated that it had already denied Santiago's claims in its letter dated June 20, 2011.

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On August 2, 2013 and August 13, 2013, Santiago, through his attorney, made written demands to Travelers for relief pursuant to G.L. c. 93A and G.L. c. 176D based on Travelers's refusal to provide PIP and UM coverage. On August 30, 2013, Travelers responded to Santiago by again referencing the June 20, 2011 letter and pointing out that it had denied Santiago's PIP and UM claims in that letter due to Santiago's refusal to submit to an EUO.

On July 28, 2015, Santiago filed suit claiming violations of G.L. c. 93A and G.L. c. 176D for Travelers's failure to act reasonably promptly with respect to Santiago's claims and for failure to effect a prompt, fair, and equitable settlement after liability had become reasonably clear. Travelers moved for summary judgment on the grounds that the cause of action accrued on June 20, 2011 when it denied the claims, that the applicable statute of limitations was four years, and that Santiago had failed to file suit within the four-year period. The motion was allowed.

The issue presented in this appeal is whether there is a genuine issue of material fact as to when Santiago's cause of action accrued.

Actions brought pursuant to G.L. c. 93A and G.L. c. 176D must be commenced within four years after the cause of action accrues. G.L. c. 260, ยง 5A. A cause of action for purposes of these statutes accrues "when the plaintiff knew or should have known of appreciable harm resulting from the defendant's [actions]." International Mobiles Corp. v. Corroon & Black/Fairfield & Ellis, Inc., 29 Mass. App. Ct. 215 , 221 (1990).

Santiago first argues that the cause of action did not accrue until April 6, 2012 when Travelers wrote a letter again denying coverage and referencing and attaching its June 20, 2011 letter. [Note 4] The June 20, 2011 letter from Travelers to Santiago was very explicit. It was seven-pages long. One of the stated purposes of the letter was to notify Santiago of Travelers's decision to deny his PIP and UM claims. Several pages of the letter address Santiago's failure to appear for an EUO. The insurance policy provisions and case law requiring such cooperation are cited and discussed. The end of the letter states that Santiago's "failure to appear for his examination under oath upon request constitutes not only a breach of a condition precedent to recovery under the policy, but a breach of the cooperation clause as contained in the policy. Additionally, [Travelers's] investigation to date has determined that liability for [Santiago's] alleged loss is not reasonably clear. For all of the reasons described above, [Travelers] is denying . . . Santiago's, (PIP) and (UM) claims." This letter states very clearly that coverage is being denied, at least in part, because of Santiago's failure to submit to an EUO. He either knew or should have known at that time of harm resulting from the actions of Travelers. He did not thereafter submit to an EUO. With respect to the PIP and UM claims, the April 6, 2012 letter is simply a statement that those claims had already been denied in the June 20, 2011 letter.

Santiago next argues that he did not "discover" he was harmed until he found out sometime after April, 2012 that Travelers had settled an uninsured motorist claim with another passenger. He contends that this raises a question of fact as to when he knew or should have known he was harmed. There is no indication in the record that

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the other passenger refused to submit to an EUO. That was the stated reason why Santiago's claim was denied. Settlement between Travelers and the other passenger does not change the fact that Santiago's claim was denied on June 20, 2011.

Lastly, Santiago contends that Travelers acted fraudulently in denying his claim while settling the claim of another passenger and that the statute of limitations does not begin to run until that fraud is discovered, which Santiago contends was sometime after April, 2012. However, there is simply no evidence of any fraudulent conduct on the part of Travelers.

In conclusion, on June 20, 2011, Travelers wrote a letter to Santiago stating that it was denying his PIP and UM claims because he would not submit to an EUO. He never did submit to an EUO, and the position taken by Travelers never changed. The June 20, 2011 letter was the triggering event for the running of the statute of limitations. It was at that point that Santiago knew or should have known that Travelers was denying the claim based on his refusal to submit to an EUO and that he had been harmed. There is no genuine issue of material fact as to when the cause of action accrued.

For the above reasons, the judgment of the Greenfield District Court is affirmed.


[Note 1] Doing business as Travelers of Massachusetts.

[Note 2] Santiago's EUO was first scheduled for March 14, 2011 at the Greenfield house of correction. When a representative of Travelers appeared to take that EUO, Santiago informed him that he had hired an attorney. Travelers did not go forward with the EUO on that day. By letter dated March 29, 2011 to Santiago's attorney, Travelers requested to take Santiago's EUO. On May 5, 2011, Santiago's attorney responded that he would not produce Santiago for an EUO because he did not believe that it was required under the insurance policy or the law.

[Note 3] Travelers also denied any claim under the optional bodily injury provisions on the ground that the owner of the vehicle had made misrepresentations in her insurance application, specifically, she had not listed the operator as a customary operator and his operation increased the risk to Travelers. That portion of the denial is not at issue here.

[Note 4] Much of the appellant's brief deals with the issue of whether the insurance policy and case law require an individual who is making a claim (other than the insured) to submit to an EUO. The resolution of that question has no bearing on the statute of limitations issue.