EGELSTON PHYSICAL THERAPY, INC. vs. PROGRESSIVE DIRECT INSURANCE, INC.

BREEN, J. Egelston Physical Therapy ("Egelston" or "Appellant") filed an action seeking payment from Progressive Direct Insurance ("Progressive" or "Appellee") for Personal Injury Protection ("PIP") benefits for medical care provided to Sofia Gelibert. The Appellant moved for a directed verdict on the issue of "non-cooperation" and that was denied by the trial judge. A jury subsequently found that Ms. Gelibert did "fail or refuse to appear for an examination under oath that was reasonably requested by [the Appellee]." Accordingly, the trial judge entered a judgment for the Appellee. Appellant argues on appeal that the motion for directed verdict should have been allowed.

Background [Note 1]

On or about March 25, 2011, Sofia Gelibert was purported to have been in an accident while occupying a vehicle insured by Progressive. She subsequently sought medical treatment with Egelston in the amount of $1,245,00. Egelston was seeking payment from Progressive for the care it provided.

The matter was tried before a jury in the Roxbury Division of the Boston Municipal Court. Progressive presented an affirmative defense of non-cooperation. In support of that defense, Progressive presented testimony from a claims adjuster for them who was personally familiar with Ms. Gelibert's claim file. Through the adjuster, Progressive also introduced a letter of representation by an attorney named John Molloy on behalf of Ms. Gelibert. as well as subsequently received application for benefits and medical records from Ms. Gelibert. These items were received as business records of Progressive.

Progressive also introduced through this witness copies of letters sent to Attorney Molloy requesting for Ms. Gelibert to appear for an examination under oath (EUO). The witness testified about the manner in which those letters are maintained by Progressive. The particular letter that is of concern to the parties is one that is dated July 1, 2011. As both parties agree, the letter contained language within it that refers to persons other than Ms. Gelibert in the request to schedule an EUO for July 18, 2011, as well as information that related to Ms. Gelibert. The witness also testified under oath about other requests to schedule an EUO of Ms. Gelibert through Attorney Molloy, references to agreements about rescheduling her EUO, and ofherfailure to appear for any of the requested EUO dates.

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Egelston objected to the introduction of the letters to Attorney Molloy. The trial judge overruled the objection. At the close of the evidence, Egelston also moved for a directed verdict on the affirmative defense of non-cooperation on a variety of grounds. After a hearing, the tria1 judge denied that motion. Egelston now seeks to relitigate the denial of the motion for a directed verdict through this appeal.

Discussion

As a preliminary matter, the Appellee argues that the Appellant has waived its right to appeal the denial of the motion for a directed verdict because it did not subsequently file a motion for a judgment notwithstanding the verdict. In this matter, however, we find that the Appellant's detailed motion for a required finding on the matter of the Appellee's affirmative defense of non-cooperation preserved its right to appeal. See Mass. R. Civ. P., Rule 50(a); cf. Shafnacker v. Raymond James & Assoc., Inc., 425 Mass. 724, 733 (1997) (where party failed to state with particularity the grounds for its motion).

Appellant argues that the evidence presented by Appellee was insufficient to support its affirmative defense, and that the trial judge was incorrect in denying its motion. Appellant "contest[s] much of [the] evidence at trial, [but] it is outside our appellate function to reconcile conflicting evidence or consider issues of credibility." Windross v. Village Automotive Group, Inc., 71 Mass. App. Ct. 861, 870(2008) (citing Fox v. F & J Gattozzi Corp., 41 Mass. App. Ct. 581, 584 (1996) [Note 2]).

Pursuant to the Massachusetts PIP statute, a person claiming injuries in a PIP claim is mandated to cooperate with the insurance company and noncooperation shall be a defense to such a claim. MGL Ch. 90, Sec. 34M; Boffoli v. Premier Insurance Co., 71 Mass. App. Ct. 212 (2008); Chiropractic Care Centers, Inc. v. Arbella Mut. Ins. Co., 2012 Mass. App. Div. 177. Here, the Appellee presented evidence to the jury of what they believed was sufficient evidence of that noncooperation. Part of that evidence were business records, which the jury would have been permitted to give whatever weight it deemed worthy. See McLaughlin v. CGU Ins. Co., 445 Mass. 815, 819 (2006) (citing Beal Bank, SSE v. Eurich, 444 Mass. 813, 815-816 (2005)). The Appellant challenged that evidence at trial and also had an opportunity to make arguments about the sufficiency of the evidence, both at the stage of arguing for a motion for a required finding and in closing arguments to the jury. This Court is not in a better position than the trial judge or the jury to weigh the evidence that was presented at trial. The amount of weight and credibility to give that evidence is for the jury to decide. Gattozzi Corp., 41 Mass. App. Ct at 584. Ultimately, it was up to a jury to determine the factual question of whether Ms. Gelibert was represented by counsel and whether she failed to cooperate with Progressive. See White's Farm Dairy, Inc. v. De Laval Separator Co., 433 F.2d 63, 66 (1st Cir. 1970); Sterns v. Lieberman, 307 Mass. 77, 81 (1940).

"In reviewing the denial of [Appellant's motion] for a directed verdict ... we are required 'to construe the evidence in the light most favorable to the nonmoving

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party and disregard that favorable to the moving party.'" Windross at 870 (quoting O'Brien v. Pearson, 449 Mass, 377, 383 (2007)). A careful review of the record before this Court shows that the motion was properly denied by the trial judge.

Conclusion

The decision of the trial judge denying the motion for a directed verdict was proper and is supported by the evidence.

Judgment affirmed.