LOMIBO, LLC [Note 1] v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY

CRANE, J. The plaintiff is a medical provider that brought claims for payment of personal injury protection benefits that the defendant motor vehicle insurer allegedly owed for treatment to its patients. It appeals from a summary judgment granted to the defendant because of noncooperation by the patients arising from their alleged failure to attend any examination under oath. We affirm the judgment.

The complaint alleges that the plaintiff provided services to two patients who were injured in the same accident on July 15, 2015. The plaintiff's claims were for breach of contract and violation of G.L. c. 90, § 34M, in separate counts. The lower court entered summary judgment for the defendant on both of these counts without stating any reason.

Facts. The patients, Priscilla Santana ("Santana") and Xavier Rios ("Rios"), were allegedly occupants in a car driven by Santana and owned by her mother, Amada Sanz ("Sanz"). The defendant insured Sanz under a standard Massachusetts automobile insurance policy. A car reported to be stolen allegedly struck the car driven by Santana. Sanz did not report to the defendant that anyone was injured in her initial report of the accident. A police report also recited that there were no injuries. Thereafter, on July 27, 2015, Santana called the defendant and reported that Rios had back pain but had not started treatment. On August 12, 2015, Rios first reported to the defendant that he was receiving treatment from a chiropractor whom he could not identify. On August 25, 2015, the plaintiff notified the defendant that it had been treating Santana and Rios from July 16 and 17, respectively.

Counsel for the defendant wrote to both patients and requested that they attend an examination under oath on October 14, 2015. At the request of the patients' attorney, the examinations were postponed until November 12, 2015. Before that date, the examinations were postponed again until December 17, 2015 because Rios was unavailable. Before December 16, 2015, the patients' attorney notified the defendant's counsel that he no longer represented them. On December 16, 2015,

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Sanz told defense counsel that Santana would not attend an examination under oath until she received a copy of her recorded statement. [Note 3] The defendant responded that the recorded statement would be made available immediately following the examination under oath. On January 21, 2016, counsel for the defendant agreed to reschedule the examinations under oath to February 12, 2016. On February 11, 2016, Santana told defense counsel that neither she nor Rios would appear for examination until they obtained new counsel.

On February 18, 2016, defense counsel wrote to both patients directly and requested that they or their new counsel contact the defendant's counsel by no later than February 29, 2016 to reschedule their statements under oath. This letter was sent by certified and first-class mail to the same addresses as the original correspondence to them before they were represented. None of the letters were returned. However, the return receipt from Santana showed delivery on March 4, 2016. No delivery receipt was ever received from Rios for his letter. There was no evidence that either patient made any response to this letter. On March 30, 2016, counsel for the defendant sent letters to Santana, Rios, and the plaintiff denying their claims because the patients failed to attend their examinations under oath or respond to the defendant's request to schedule the same. The affidavits submitted by the plaintiff do not contest any of these facts.

The plaintiff contends that it was error to grant summary judgment because the undisputed facts do not establish the defense of noncooperation because: 1) there was no substantial and material breach of the duty to cooperate and the defendant was not prejudiced; 2) the patients' failure to attend any examination under oath was not wilful and unexcused; and 3) the defendant acted in bad faith in attempting to examine the patients under oath.

Standard of review. Summary judgment shall be granted where there are no genuine issues as to any material fact and where the moving party is entitled to judgment as a matter of law. Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Mass. R. Civ. P. 56(c). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, "and [further,] that the moving party is entitled to a judgment as a matter of law." Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). "In reviewing the grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record . . . ." LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012).

Discussion. The plaintiff argues that the patients did not wilfully refuse to attend their examinations under oath without excuse because the defendant's representatives agreed to postpone the patients' attendance on the first four dates and the ensuing demand to reschedule with or without counsel followed by denial of the claims was unreasonable and made in bad faith. The plaintiff goes on to assert that a determination of whether conduct was reasonable or not presents a factual dispute not open to summary judgment. The defendant contends the undisputed facts establish that the failure of both patients to attend any of the scheduled

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examinations or to respond to the defendant's final request constituted a wilful and unexcused failure to attend, and the defendant was not required to establish prejudice by the failure to attend.

The plaintiff's argument that the defendant was required to establish a substantial and material breach that prejudiced the defendant fails. It does so because the patients' noncooperation involves a failure to attend an examination under oath, and not some other requirement or condition of the policy of insurance. Instead, "an insured's wilful, unexcused failure to submit to an examination under oath constitutes a breach of the standard automobile insurance contract resulting in forfeiture of coverage for uninsured motorist benefits without proof of actual prejudice resulting to the insurer's interests." Lorenzo-Martinez v. Safety Ins. Co., 58 Mass. App. Ct. 359, 364 (2003). This principle also applies to examinations under oath in claims for personal injury protection benefits. Boffoli v. Premier Ins. Co., 71 Mass. App. Ct. 212, 216 (2008).

The only remaining questions are whether either patient had an excuse that relieved either of them from submitting to an examination under oath and whether any failure to attend was wilful. The plaintiff argues that the patients never failed to attend any examination because the defendant agreed to each continuance of the date. We reject this argument. Santana called the defendant on February 11, 2016, the day before the fourth date scheduled for the examinations, to seek a fifth continuance so that she and Rios could obtain counsel. The defendant agreed to give the patients ten more days to obtain counsel and reschedule the examinations. Neither the patients nor any new counsel for them ever responded to reschedule before the final denial on March 30, 2016.

Before this, the defendant agreed to a continuance from December 17, 2015 to permit the patients to obtain new counsel. They still had not obtained new counsel by February 11, 2016. Earlier, the defendant had agreed to continuances requested by the patients to accommodate the schedule of their original counsel and because Rios was unavailable on another date. While the earlier continuances may have been agreed to by the defendant, the continuance from February 12, 2016 was not. Also, with all of the preceding continuances and no progress toward obtaining new counsel for almost two months, it was not unreasonable for the defendant to condition any continuance on contact from new counsel within a short period of time. The plaintiff argues that ten days was unreasonable and that Santana did not receive the defendant's letter dated February 18, 2016, until March 4, 2016. The plaintiff also argues that there was no evidence that Rios received the same letter at all.

The defendant did not send a final denial letter to the plaintiff and the patients until March 30, 2016. With all of the preceding continuances requested by the patients or their then counsel, it was reasonable for the defendant to deny the plaintiff's claims for failing to attend or respond to schedule their examinations under oath after almost another month of waiting for a response. The plaintiff did not raise the issue of lack of delivery of the February 18 letter to either patient before the trial court. Consequently, we do not address when or whether this letter was delivered to the patients in determining whether their failure to respond or attend was wilful. "An issue not raised or argued below may not be argued for the first time on appeal." Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County,

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N.A., 405 Mass. 420, 421 n.2 (1989). Consequently, by March 30, 2016, the patients had wilfully failed to respond or attend their examinations under oath.

It now remains to address whether their reasons not to attend were reasonable and warranted being excused. When the defendant sent its denial letter on March 30, 2016, they had both had more than three months to retain new counsel. It was no longer reasonable to permit the patients more time to delay indefinitely to retain counsel for an examination they were clearly trying to avoid.

The other excuse was that the defendant refused to provide Santana with a copy of her statement until after she testified under oath. There was no evidence that Rios or Santana ever personally requested any statements. [Note 4] It was the named insured Sanz, Santana's mother, who told a representative of the defendant that Santana and Rios would not testify before they received their statements. She did this on December 16, 2015. There is no evidence that Santana raised this objection when she spoke to a representative of the defendant on February 11, 2016, or any other time. Also, there is no evidence that Rios ever raised this objection either. Furthermore, there is no evidence Rios ever gave a statement or had any direct communication with the defendant's representatives about being examined under oath. Neither being the named insured on the policy of insurance nor being Santana's mother gives Sanz any authority to act on behalf of either Santana or Rios. The plaintiff cannot create an excuse for the patients' failure to attend or respond when neither of them objected to the defendant, either in person or through an authorized representative such as their counsel. For the same reasons, this did not constitute bad faith by the defendant as asserted by the plaintiff.

The defendant's motion for double costs and appellate attorney's fees is denied. See Avery v. Steele, 414 Mass. 450, 456 (1993).

Judgment affirmed.

So ordered.