2017 Mass. App. Div. 59

November 4, 2016 - February 24, 2017

Appellate Division Southern District

Court Below: District Court, Dedham Division

Present: Hand, P.J., Kirkman & Finigan, JJ.

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

Peter R. Houston and Jordan L Schwindt for the defendant.

KIRKMAN, J. Egleston Physical Therapy, Inc. ("Egleston") commenced this action to recover personal injury protection ("PIP") benefits, pursuant to G.L. c. 90, §34M, for chiropractic treatment provided to Jerry Ulysee ("Ulysee"), [Note 1] who was covered by an insurance policy issued by Progressive Direct Insurance Company ("Progressive"). Egleston also sought recovery pursuant to G.Lc. 93A, §11 and G.L. c. 176D, § 3 for Progressive's failure to settle the predicate claim. The claims were based on an allegation that Ulysee was injured in a motor vehicle accident on May 3, 2013, and required treatment from Egleston.

Progressive defended by challenging the need for treatment and refused payment because Ulysee failed to cooperate with Progressive's investigation of his claim and, more specifically, did not appear for an examination under oath ("EUO"). The failure to cooperate and submit to the EUO were raised as affirmative defenses in Progressive's answer to Egleston's complaint.

The case ultimately came before the Dedham District Court for a jury trial. Before the trial began, the trial judge allowed Progressive's motion to exclude certain medical records and bills offered by Egleston because of a failure to comply with the attestation requirements of G.L.c. 233, §79G. The trial then proceeded with Egleston calling one witness, a claims adjuster employed by Progressive. After that witness testified, Egleston rested. Progressive then moved for a directed verdict, pursuant to Mass. R. Civ. P., Rule 50(a), prior to its putting on a case.

The trial judge allowed the motion, and wrote the following finding in the margin of the motion: "Plaintiff has failed to satisfy the legal elements [and] has failed to show by [a] preponderance of the credible evidence that it is entitled to recover from Defendant's handling of the underlying claim, based on witness testimony [and] exhibits. [Note 2] Essentially, the trial judge entered a directed verdict at the close of the

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plaintiffs case, and before the defendant had rested, on the affirmative defense of noncooperation by the insured in breach of the insurance contract.

Pursuant to Mass. R. Civ. P., Rule 50(a), "[a] motion for a directed verdict can properly be granted 'only where, construing the evidence most favorably to the plaintiff, it is still insufficient to support a verdict in his favor.' The test to be applied in determining whether there was an issue of fact for decision by the jury is whether 'upon any reasonable view of the evidence, there is found a combination of facts from which a rational inference may be drawn in favor of the plaintiffs'" (citations omitted). Alholm v. Town of Wareham, 371 Mass. 621, 627 (1976). The judge is to make the decision "without weighing the credibility of the witnesses or otherwise considering the weight of the evidence." Bonin v. Chestnut Hill Towers Realty Corp., 392 Mass. 58, 71 (1984). See Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004).

Rule 50 is to be compared to Mass. R. Civ. P., Rule 41(b) (2), where a judge trying a case without a jury "is not limited to that standard of proof required for a directed verdict; rather, the judge is free to weigh the evidence and resolve all questions of credibility, ambiguity, and contradiction in reaching a decision" (citations omitted). Ryan, Elliott & Co. v. Leggat, McCall & Werner, Inc., 8 Mass. App. Ct. 686, 689 (1979).

In short, the assessment of witness credibility should be left to the jury. See Smith v. Ariens Co., 375 Mass. 620, 627-628 (1978) ("[T]he better procedure in a case in which it is a close question whether the standard for granting a directed verdict is met is to allow the matter to go to the jury. If the judge then decides that the jury's verdict cannot stand, a motion for judgment notwithstanding the verdict may be allowed. ... If the granting of the motion for judgment notwithstanding the verdict. is found to be erroneous on appeal, the jury's verdict can be reinstated, while the erroneous granting of the motion for a directed verdict requires a new trial" [citations omitted]).

In the present case, the trial judge conflated the standard for ending a case at the close of the plaintiffs case under Rule 50(a) with the dismissal allowed in a nonjury trial under Rule 41(b)(2). Moreover, the judge applied the wrong standard by making a finding on the "preponderance of the evidence" rather than in the more favorable light granted to the plaintiff by Rule 50(a). Finally, the trial judge based her decision on her factual finding that the insured failed to cooperate with the investigation of the claim. That finding relieved Progressive from shouldering its factual burden of proof on its affirmative defense as the defense had not rested when the motion was allowed. See Chaplain v. Dugas, 323 Mass. 91, 93 (1948) ("Whether the defendant was warranted in discharging the plaintiff before the expiration of the term of employment by reason of his conduct was an affirmative defence, the burden of proof of which rested upon the defendant; and, as an affirmative defence is commonly a question of fact, it rarely can be ruled as matter of law that it has been sustained.").

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Nevertheless, the burden on this Division has not been relieved. Regardless of the trial judge's reasons for granting Progressive's motion, we may uphold that decision if there is any valid ground on which the motion should have been granted. Alholm, supra at 625. We turn to the proof required by Egleston to recover on its claim and whether sufficient evidence was offered in this case for the jury to consider the claim.

In order for Egleston to recover against Progressive, it must prove four things: (1) an accident occurred, (2) a Massachusetts automobile liability policy issued by Progressive and covering the vehicle involved in the accident was in effect on the accident date, (3) Ulysee's injuries and his related treatment by Egleston were causally related to the accident, and (4) there are unpaid amounts due to Egleston for the treatment provided. Provenzano v. Arbella Mut. Ins. Co., 2007 Mass. App. Div. 46, 47. Our burden, then, is to "'view the evidence most favorable' to the plaintiff to determine '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 plaintiff"'" (citations omitted). Goldhor v. Hampshire College, 25 Mass. App. Ct. 716, 717 (1988). The record meets, albeit very simply and sparsely, the requirements for denying a request for a directed verdict on the plaintiffs case.

On the first element necessary for a successful claim, the PIP application that briefly described an accident was introduced through the claims adjuster. The only objection came to that evidence when the plaintiffs attorney tried to have the adjuster read the document to the jury. The objection was properly sustained because the unobjected-to hearsay document spoke for itself. Nevertheless, that element was satisfied for our purposes. The second element is similarly satisfied as there is no dispute by the parties that Ulysee was covered by a Progressive policy.

With regard to the third element, the PIP application, Egleston's treatment records, and an affidavit of an Egleston physical therapist describe injuries and treatment related to the accident. None of those documents were objected to at the trial. "Hearsay, once admitted, may be weighed with the other evidence, and given any evidentiary value which it may possess." Commonwealth v. Keevan, 400 Mass. 557, 562 (1987), quoting Mahoney v. Harley Private Hosp., Inc., 279 Mass. 96, 100 (1932). The evidence cannot now be disregarded by this Division. Id. Therefore, there was no reason to keep the jury from considering the bare, unsupported records that were introduced.

That leaves the final element. After a careful examination and analysis, the trial judge excluded bills that were offered to show unpaid amounts that were due. The exclusion was because the bills were not attested to by a physician (including a physical therapist) under G.L.c. 233, §79G. Apparently, the judge was given a stack of records and bills, some with an attestation from a physical therapist, and some that were not attested. Egleston argued that all the documents were attested to by the physical therapist. The record presented to this Division does not support that position. There was no error, therefore, by the trial court in excluding the bills from the jury.

Nevertheless, at the trial, a document entitled "explanation of benefits" was introduced by Egleston without any objection. The document was prepared by

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Progressive and lists Ulysee as the patient of Egleston with benefits totaling $2,410.00. The claims adjuster acknowledged that sum as the amount charged Progressive by Egleston on the claim. There is no argument the sum went unpaid.

Accordingly, we overturn the trial court's allowance of the motion for a directed verdict. The judgment is, therefore, set aside, and this case is returned back to the Dedham District Court for a new trial.


[Note 1] Mr. Ulysee's name appears in the trial transcript as "Ulysses."

[Note 2] The judge was more specific in her oral finding, that based on the evidence that came in with respect to Mr. Ulysses' violation of the insurance contract itself[,] [h]e did not present a valid claim on that issue under the terms of the policy. And there was no duty here on the part of Progressive to provide benefits to Mr. Ulysses based on the fact that he failed to comply with his obligation under that insurance contract to provide the information requested. The exhibits are clear with respect to the request for a[n] examination under oath, with request [sic] to specific documents that were never received.