2017 Mass. App. Div. 85

February 17, 2017 - May 8, 2017

Appellate Division Northern District

Court Below: District Court, Lowell Division

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

Francis A. Gaimari and Elizabeth H. Manos for the plaintiff.

Sara Gens Birenbaum for the defendant.

FLYNN, J. This is a case involving the claim of Chiropractic Care Centers, Inc. ("CCC") for payments of personal injury protection ("PIP") benefits by defendant Arbella Mutual Insurance Company ("Arbella") for services rendered to Arbella's insured, Janneth Arboleda ("Arboleda"). Arbella contends that Arboleda was noncooperative with its investigation into her insurance claims relating to an automobile accident on September 29, 2009 by failing to appear for an independent medical examination ("IME") that Arbella requested as part of the investigation. CCC contends that Arbella failed to introduce any admissible evidence of such noncooperation at trial. Arbella asserts that evidence of noncooperation was admitted at trial and provided a proper basis for the jury's finding for the defendant. We agree with Arbella and affirm.

Arbella denied CCC's claim for the balance due for services provided to Arboleda because of an alleged lack of cooperation for failure to attend an IME. Noncooperation is a defense to such payments, and failure to attend an IME constitutes noncooperation. See G.L. c. 90, § 34M ("The injured person shall submit to physical examinations by physicians selected by the insurer as often as may be reasonably required and shall do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due."); Barron Chiropractic & Rehabilitation, P.C. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2015 Mass. App. Div. 111, 113, quoting G.L. c. 90, § 34M ("The PIP statute specifically prov[id]es that the injured person making the claim 'shall submit to physical examinations by physicians selected by the insurer . . . and . . . [n]on-cooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section.'"); Wang v. Liberty Mut. Ins. Co., 2000 Mass. App. Div. 313, 314 ("Non-cooperation of an insured party constitutes a defense to the insurer in any action for PIP benefits."). CCC asserts that the trial court erred in admitting two documents in evidence: (1) a letter addressed to Arboleda, in care of her attorney, from Arbella's claim service specialist Thomas Martin, alerting her that she had missed a scheduled IME appointment and providing notice of a second appointment, and (2) a second letter to Arboleda, in care of her attorney, from Arbella's claim manager John Perlowski, indicating that PIP coverage would not be furnished as a result of her failure to appear at

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the IME appointment. CCC contends on appeal that the letters were inadmissible under the business records exception to the hearsay rule generally, and specifically, with respect to inadmissible hearsay within the document. As a result, CCC argues the jury may have improperly relied upon internal hearsay evidence in making its ruling in Arbella's favor. [Note 1]

CCC argues that the trial judge erred in overruling its objection to the admission of both letters. Prior to the introduction of each letter, Arbella set forth the predicate grounds for admission as a business record. Following Arbella's introduction of each letter, CCC's attorney objected, but did so without stating the specific ground of the objection. Both objections were overruled. In order to preserve a claim of error to exclude evidence, a party must, on the record, timely object and state the specific ground of the objection, unless it was apparent from the context. See Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 192 (2002), quoting Abraham v. City of Woburn, 383 Mass. 724, 726 n.1 (1981) ("It is black letter law that objections to evidence, or to any challenged order or ruling of the trial judge, are not preserved for appeal unless made in a precise and timely fashion, as soon as the claimed error is apparent, so as 'to afford the trial judge an opportunity to act promptly to remove from the jury's consideration evidence [or whatever else is claimed to have been improperly presented] . . . which has no place in the trial.'"). See also Mass. G. Evid. § 103(a) (2017). The record does not reflect any prior motion in limine or any discussion of these records prior to their introduction.

If we were to assume that CCC's objection to the admission of each letter was hearsay generally, the trial court properly overruled both objections, in that each letter was a business record. A writing, "made as a memorandum or record of any act, transaction, occurrence or event, shall not be inadmissible in any civil or criminal proceeding as evidence of the facts therein . . . if the court finds that the entry, writing or record was made in good faith in the regular course of business and before the beginning of the civil or criminal proceeding aforesaid and that it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter." G.L. c. 233, § 78. Each of the two letters meets these basic requirements; therefore, the trial judge properly overruled the hearsay objections under the business records exception to the hearsay rule.

It is apparent, on appeal, that CCC takes issue with the admission of the internal hearsay, which the jury were able to consider as a result of the admission of the letters. The problem, however, is that CCC failed to raise this specific objection at trial. "The purpose of requiring an objection is to afford the trial judge an opportunity to act promptly to remove from the jury's consideration evidence which has no place in the trial." Abraham, supra at 726 n.1. Because CCC failed to raise the specific objection, the trial judge was not afforded the opportunity to consider thoroughly the letters' admissibility. Absent that objection, "the hearsay

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evidence was properly admitted, and the jurors were entitled to give it such probative effect as they deemed appropriate." Id. [Note 2]

The judgment of the trial court is affirmed.


[Note 1] Absent a special verdict, we of course cannot determine whether the jury, in their finding for the defendant, even considered the defense of noncooperation in their decision in light of the plaintiff's burden of proof generally.

[Note 2] Assuming, for the sake of argument, that the letters or the particulars of their content had been improperly admitted, we note that there was still sufficient evidence heard at trial for a jury to conclude that Arboleda failed to appear at scheduled IME appointments. During the direct examination of Arbella's witness, the claims adjuster, Arbella's attorney asked, "[O]n what grounds was [the claim] denied?" The witness responded, "For noncooperation, not showing up for two scheduled IMEs." This statement, to which CCC's attorney did not object, provided sufficient evidence upon which a jury could conclude that Arboleda did not cooperate with Arbella's investigation.