2019 Mass. App. Div. 147

November 14, 2019

Appellate Division Southern District

Court Below: District Court, New Bedford Division

Present: Finnerty, P.J., Pino & Campbell, JJ.

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

Marianna Flippo and Ian Bagley for the defendant.

PINO, J. This case arises from the plaintiff, Gary Alves, D.C. ("Alves"), seeking to recover an unpaid balance of $162.00 from the defendant, Vermont Mutual Insurance Company ("Vermont"), for reasonable and necessary medical treatment performed by him pursuant to G.L. c. 90, § 34M. A jury found in favor of Alves and awarded him $270.00. Following the jury's verdict, Vermont moved for a new trial pursuant to Rule 59 of the Massachusetts Rules of Civil Procedure and for judgment notwithstanding the verdict ("judgment n.o.v.") pursuant to Rule 50 of the Massachusetts Rules of Civil Procedure. The trial judge denied both of those motions. [Note 1]

Based on the testimony at trial, the jury could have found the following facts. Alves, a licensed chiropractor, rendered reasonable and necessary medical treatment to a Susan Serra ("Serra") for injuries sustained by her in a motor vehicle accident that occurred on August 28, 2013. The vehicle in which Serra was a passenger was insured by Vermont.

Pursuant to the subject policy of insurance, it provided for the statutory personal injury protection ("PIP") payment of $8,000.00 for reasonable expenses for necessary medical treatment. Following his treatment of Serra, Alves submitted a bill to Vermont for reasonable expenses for necessary medical treatment of her in the amount of $4,035.00. Thereafter, Vermont issued payment to Alves in the amount of $3,796.74, resulting in an unpaid balance of $238.26. Alves, subsequently, commenced a small claims action pursuant to G.L. c. 90, § 34M to collect the unpaid balance. Thereafter, Vermont filed a motion to transfer the small claims action to the regular civil docket, which motion was allowed.

Prior to the commencement of the small claims action, Alves, through his counsel Thomas Ambrose ("Attorney Ambrose"), requested payment of the outstanding balance by way of a letter to Vermont dated August 13, 2015. Vermont responded to that correspondence in a letter to Attorney Ambrose on or about August 17, 2015, requesting additional information. Thereafter, correspondence was exchanged

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between Attorney Ambrose and Vermont on sundry dates that included, but was not limited to, Alves's attempts to settle his unpaid balance claim and release issues. Those attempts to settle the claim culminated in Alves's making a fifteen-day time limit demand to Vermont by letter dated September 24, 2015 in which $162.00 was demanded "as full payment" of Alves's claim. On or about October 23, 2015, well in excess of the fifteen-day time limit demand, Vermont sent a letter to Attorney Ambrose in which Vermont set forth that it had been trying to settle the case by offering fifty percent of the outstanding balance or $135.00.

Following numerous correspondence between Attorney Ambrose and Vermont, Vermont forwarded a check to Attorney Ambrose in the amount of $162.00 on March 25, 2016, some six months after the September 24, 2015 fifteen-day time limit demand. The check contained language: "Susan Serra Settlement of Bal for Alves." Thereafter, the check was cashed by an unknown person.

With respect to the $162.00 payment by Vermont, Alves claimed that he was not paid by Vermont within the fifteen-day time limit demand made by Alves's attorney. Vermont claimed that the check in the amount of $162.00 forwarded to Alves's attorney after the expiration of the fifteen-day time limit coupled with the check having been cashed resulted in a full and final settlement of Alves's claim as a result of which Alves was not entitled to seek any additional moneys from Vermont.

Motion for judgment n.o.v. When considering a motion for judgment n.o.v., "the judge's task, 'taking into account all the evidence in its aspect most favorable to the plaintiff, [is] to determine whether, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, the jury reasonably could return a verdict for the plaintiff'" (citations omitted). Phelan v. May Dep't Stores Co., 443 Mass. 52, 55 (2004). A jury's verdict must be sustained if a plaintiff has presented any evidence from which the jury could have made their findings. Young v. Atlantic Richfield Co., 400 Mass. 837, 841 (1987). As demonstrated below, such is the case herein.

"Because the jury are a pillar of our justice system, nullifying a jury verdict is a matter for the utmost judicial circumspection." Cahaly v. Benistar Prop. Exch. Trust Co., 451 Mass. 343, 350 (2008). The judge will consider 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 nonmoving party. Phelan, supra, quoting Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). To be reasonable, the inference "must be based on probabilities rather than possibilities and cannot be the result of mere speculation and conjecture." Id., quoting McNamara v. Honeyman, 406 Mass. 43, 45-46 (1989). When reviewing a motion for judgment n.o.v., this Division applies the same standard as the motion judge. Id.

To prevail in his claim, Alves was required to establish that (1) an accident occurred; (2) the injuries suffered by Serra and Alves's treatment were causally related to the motor vehicle accident that occurred on August 28, 2013; (3) the vehicle in which Serra was a passenger was insured by Vermont and that the subject policy of insurance was in effect on August 28, 2013; and (4) Vermont had not paid the full amount due for the treatment provided by Alves. Advanced Spine Ctrs., Inc. v. Commerce Ins. Co., 2012 Mass. App. Div. 165, 166. See Provenzano v. Arbella Mut. Ins. Co., 2007 Mass. App. Div. 46, 47.

The evidence submitted by Alves satisfied each of the foregoing elements.

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Vermont did not argue during the trial that Alves failed to offer sufficient evidence on any of those elements. Instead, Vermont argued that it was entitled to a judgment n.o.v. because it had reached a "settlement agreement" with Alves prior to the commencement of the small claims action through which it paid Alves the $162.00.

Whether there was an accord and satisfaction is a question of fact on which Vermont had the burden of proof. Champlin v. Jackson, 313 Mass. 487, 489 (1943). The parties did not agree to any facts relating to the "accord and satisfaction" defense. As such, conflicting facts do not warrant an allowance of a motion for judgment n.o.v. even if there were much evidence that would have warranted a contrary finding by the jury; the court may not substitute its own judgment of the facts for that of the jury or consider the weight of the evidence or credibility of the witnesses. Tosti v. Ayik, 394 Mass. 482, 494 (1985); Chase v. Roy, 363 Mass. 402, 407 (1973).

During the trial, the jury heard exhaustive testimony from the sole witness, Vermont adjuster Jennifer Reddin, regarding the history of the parties' interactions with respect to the attempted resolution of Alves's claim and the $162.00 check. Unless evidence has prima facie or other recognized artificial force, the jury may disbelieve any evidence, even if wholly uncontroverted. Leigh v. Rule, 331 Mass. 664, 667 (1954).

The check contained no words of release or discharge. No evidence was offered as to the identity of the person or entity that cashed the check. Moreover, there was no evidence of any communication from Vermont, whether oral or written, setting forth that Alves's acceptance of the $162.00 would fully discharge the dispute as to what was owed for the bills relating to Serra's August 28, 2013 accident.

The jury was presented with a special verdict question of: "Did the Plaintiff and Defendant enter into a settlement agreement regarding the balance of unpaid medical bills for treatment provided to Susan Serra by the Plaintiff in connection with her accident of August 28, 2013?" The jury answered that question, "No." It follows, then, that based on sufficient evidence the jury chose to believe that the check containing the language "Susan Serra Settlement of Bal for Alves" did not constitute a full and final settlement of Alves's claim.

In addition, Vermont contends that it was entitled to a judgment n.o.v. because there was no evidence to support an inference that Alves might reasonably have cashed Vermont's check without knowing it had been sent for settlement purposes. Moreover, it argues that the evidence established that the parties agreed to settle Alves's claim prior to commencement of the small claims action. Again, the jury concluded, based on sufficient evidence, that the parties did not enter into a settlement agreement.

As previously stated, Alves's original claim against Vermont was $238.26, representing the difference of what was billed by him and what was owed by Vermont. [Note 2] Payment of a lesser sum in satisfaction of a larger overdue liquidated sum does not discharge the whole debt, or bar an action to recover the rest; the defendant claiming a discharge of liability bears the burden of proof. First Nat'l Bank of Boston v.

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Cartoni, 295 Mass. 75, 78 (1936).

Motion for new trial. [Note 3] "The standard that a trial judge is to apply on a motion for a new trial in a civil case is whether the verdict is so markedly against the weight of the evidence as to suggest that the jurors allowed themselves to be misled, were swept away by bias or prejudice, or for a combination of reasons, including misunderstanding of applicable law, failed to come to a reasonable conclusion." W. Oliver Tripp Co. v. American Hoechst Corp., 34 Mass. App. Ct. 744, 748 (1993). Whether to set aside a verdict because it is against the weight of the evidence is a question addressed to the discretion of the trial judge, whose decision will not be disturbed unless that discretion has been abused. Brunelle v. W.E. Aubuchon Co., 60 Mass. App. Ct. 626, 631 (2004).

In this case, we discern no abuse of discretion in the trial judge's denial of the defendant's motion. Based on the evidence presented during the trial, the judge was well-entitled to conclude that the jury's finding that Vermont failed to sustain its burden of proof that there was an accord and satisfaction between the parties by virtue of Alves's acceptance of the $162.00 check and that the check was cashed by Alves or by an authorized agent was not against the weight of the evidence.

Attorney's fees and costs. Alves, having prevailed, is entitled to recover his fees and costs pursuant to G.L. c. 90, § 34M. Alves may submit an application for fees and costs with supporting documentation within fourteen days of the date of this decision. Vermont shall have fourteen days thereafter to respond.

Judgment affirmed.


[Note 1] In its brief, Vermont seeks to have this Division review the denial of its motion for summary judgment on October 19, 2017. We need not consider that issue as the denial of a motion for summary judgment may not be reviewed on appeal after a trial on the merits. See Johnson v. Massachusetts Bay Transp. Auth., 418 Mass. 783, 785 (1994).

[Note 2] In its brief, Vermont took issue with the jury's award of $270.00 instead of the stipulated amount of $238.26, arguing that the verdict "suggests" that the jurors were not paying attention. That argument is misplaced as Vermont introduced evidence during the trial that the outstanding balance was $270.00.

[Note 3] In its brief, Vermont argues at great length that Alves's closing argument was improper and not based on the evidence. Although Vermont makes that argument, Vermont failed to object to any part of the closing argument "despite the well-established rule that a[n] . . . argument which is considered to be improper should be called to the attention of the trial judge at once." Fontaine v. Ebtec Corp., 415 Mass. 309, 317 (1993). The argument is waived, and "[w]e decline to exercise our discretion to consider the claim of error now argued." Id. See Zedros v. Kenneth Hudson, Inc., 11 Mass. App. Ct. 1007, 1008 (1981).