2019 Mass. App. Div. 27

April 13, 2018 - March 6, 2019

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Poehler & Stark, JJ.

Heather L. Zengilowski for the plaintiff.

Jodi Conners for the defendant.

HADLEY, P.J. In 2013, the plaintiff, Healing Hands Chiropractic, LLC ("HHC"), provided chiropractic care to Phat Truong ("Truong"), an individual who had been involved in an accident while operating a motor vehicle insured by the defendant, Commerce Insurance Company ("Commerce"). Commerce received an application for personal injury protection ("PIP") benefits from Truong's attorney. It also received a health carrier coverage statement from Truong that stated that Truong had health insurance with United Healthcare ("United"). The statement identified the policy number and the name of the policyholder.

Truong incurred chiropractic bills totaling $5,355. HHC submitted these bills and its records of the treatment it provided to Truong to Commerce for payment. Commerce paid the plaintiff $2,000 in PIP benefits, and sent HHC a letter advising it that any additional bills should be forwarded to United pursuant to G.L. c. 90, § 34A. Commerce further advised HHC that if Truong's health insurance carrier did not cover all of the additional bills, HHC was to forward documentation from the health insurance carrier with regard to any unpaid balances for which Truong was responsible. Commerce sent similar information to Truong's attorney.

HHC subsequently notified Commerce that a representative of the plaintiff had contacted United and had been told that Truong's health insurance was provided through an ERISA qualified plan. Commerce responded in writing, stating that it was waiting for United to forward a letter on this subject.

A few days later, Commerce received another letter from Truong's attorney with an attached letter from Truong's employer. In the letter, the human resources manager for Truong's employer stated that Truong "participates in the company sponsored medical insurance plan." The letter also stated that Truong's insurance provided through United is an ERISA qualified plan.

Commerce sent HHC another letter, again advising of the exhaustion of $2,000 in PIP benefits available for Truong's bills and stating that additional bills should be provided to Truong's health insurance company. The letter also stated that Commerce needed explanations of benefits ("EOBs") from United. Thereafter, HHC sent another letter to Commerce that stated that Truong was the beneficiary of an ERISA plan through United. HHC represented that this had been confirmed but that United could not produce a letter. HHC stated that either Commerce or Truong's attorney could contact United regarding the ERISA plan. The plaintiff also made

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demand for additional payments of PIP benefits for all of the treatment the plaintiff provided to Truong.

Commerce subsequently wrote to Truong's attorney and advised that Commerce had attempted to contact United to determine if Truong's policy was a self-funded ERISA plan. Commerce noted that it had requested the plan from United and that United did not have a phone number that would allow Commerce to contact it to verify any information. Commerce asked Truong's attorney to forward any information he or she received from United stating that the ERISA plan was a self-funded ERISA plan.

Two days later, HHC wrote to Commerce again and requested payment up to the $8,000 PIP limit of coverage. HHC advised Commerce that it had contacted United and had been told that that company did not send out letters. HHC advised Commerce that United invited the defendant to call and verify that the subject ERISA plan was self-funded. HHC provided the name of a contact person at United and a phone number that someone at Commerce could call to verify the claim that the plan that protected Truong was a self-funded plan. A few days later, Commerce wrote to HHC and to Truong's attorney, once again advising that an EOB from United was required.

On July 31, 2014, Commerce sent a letter to Truong's attorney stating that before it could pay more than $2,000 in PIP benefits, it required supporting documentation as outlined in Bulletin 1990-02 from the Massachusetts Commissioner of Insurance. In that bulletin, the Commissioner of Insurance noted that employers may claim exemption from state law because they administer self-funded employee benefit plans, but stated that not every employee benefit plan that claims exemption under ERISA is fully self-funded. The Commissioner stated that ERISA plans may contain valid language deferring primary coverage to an individual's automobile insurance carrier and that in such instances a PIP carrier will not be able to rely on the coordination of benefit provisions set out in G.L. c. 90, § 34A.

Commerce once again demanded a copy of the subject plan's coordination of benefits clause so that it could determine if it was "primary" for only the first $2,000 of PIP benefits or responsible for paying bills up to the $8,000 PIP limit. In October, 2014, HHC sent Commerce a final letter asserting that it had done everything possible to inform Commerce that Truong was covered by an ERISA plan. The plaintiff once again demanded payment for all of its chiropractic bills. No further payment was made by Commerce, and this suit followed.

In this action, the plaintiff alleges the defendant breached its contractual obligations and violated G.L. c. 90, § 34M by failing to pay all of the reasonable and necessary medical bills incurred in its treatment of Truong. Commerce moved for summary judgment based on the undisputed facts that neither Truong nor HHC submitted his medical bills to United, and Commerce never received an EOB form from United, from Truong, or from HHC showing any benefits were due and owing. In short, Commerce maintained that it was entitled to judgment as a matter of law because Truong and/or HHC had the obligation to coordinate benefits with Truong's health insurance carrier; this obligation was not fulfilled prior to commencement of the lawsuit; and therefore Commerce had no legal obligation to pay more than $2,000.

In its opposition to Commerce's motion for summary judgment, HHC asserted that Commerce was informed that Truong was enrolled in a qualified ERISA plan,

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and therefore, as a matter of law, pursuant to 29 U.S.C. § 1144(b)(B), he did not have health insurance available, and there was no obligation to coordinate benefits. HHC argued that submission of its bills to United would have been futile and Commerce was obligated to pay for all of Truong's reasonable and necessary medical bills up to the $8,000 limit.

The motion judge allowed Commerce's motion for summary judgment, noting that Commerce had requested but never received a copy of the subject plan provided by Truong's employer and it did not have plan language regarding coordination of benefits. Implicit in the judge's ruling is her determination that because Commerce was not provided with a copy of the subject plan, it could not make a determination as to whether it was responsible for paying anything more than $2,000 in benefits and, under these circumstances, Commerce's obligation to pay was never triggered.

We review the disposition of a motion for summary judgment de novo. In determining whether all material facts have been established such that the moving party is entitled to judgment as a matter of law, we construe all facts in favor of the nonmoving party, and we may consider any grounds that support the motion judge's ruling. American Int'l Ins. Co. v. Robert Seuffer GmbH & Co. KG, 468 Mass. 109, 113 (2014).

General Laws c. 90, § 34A states:

"[P]ersonal injury protection provisions shall not provide for payment of more than two thousand dollars of expenses incurred within two years from the date of accident for medical, surgical, X-ray and dental services, including prosthetic devices and necessary ambulance, hospital, professional nursing and funeral services if, and to the extent that, such expenses have been or will be compensated, paid or indemnified pursuant to any policy of health, sickness or disability insurance or any contract or agreement of any group, organization, partnership or corporation to provide, pay for or reimburse the cost of medical, hospital, dental or other health care services."

The statute was designed to "provide an inexpensive and uncomplicated procedure for obtaining compensation for injuries sustained in automobile accidents." Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115 (1999). Pursuant to the statute and the standard Massachusetts motor vehicle liability policy, the first $2,000 of accident-related medical bills are covered by the automobile insurer under PIP; medical bills from $2,000 to $8,000 are also payable under PIP, if the injured party does not have private health insurance. An automobile insurer is not required to pay for medical expenses between $2,000 and $8,000 as PIP benefits if the claimant's health insurer would have covered the medical services had the claimant sought treatment in accord with his health insurer's plan. Mejia v. American Cas. Co., 55 Mass. App. Ct. 461, 462 n.2 (2002).

Consistent with G.L. c. 90, § 34A, medical expenses in excess of $2,000 must first be submitted to the injured person's health insurer, if any, to determine what the health plan will pay. John Duffy, D.C. v. Amica Mut. Ins. Co., 89 Mass. App. Ct. 297, 299-300 (2016). Similarly, a health care provider such as HHC has to submit its bills to an identified health insurer and then resubmit any unpaid balances to the

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automobile insurer before an automobile insurer would have any obligation to pay. In this case, HHC was on notice of this coordination of benefits requirement from the outset, yet it failed to coordinate benefits.

As noted above, HHC asserts it would have been futile to send documentation concerning health insurance payments and coordination of benefits to United because United provided protection to Truong pursuant to an ERISA plan. In short, HHC asserts that it was clear there was no health insurance available and that Commerce's duty to pay its bills was triggered. In the alternative, HHC apparently asserts that it was error to allow Commerce's motion for summary judgment because there are at least genuine questions of fact in dispute as to whether Truong in fact had health insurance available to him pursuant to the ERISA plan, and whether Commerce properly investigated this issue.

We are not persuaded by these arguments. As reflected in Duffy, an injured person or a health care provider seeking payment of PIP benefits has a duty to coordinate benefits. Moreover, there was no evidence before the motion judge that would support HHC's argument that because United provided an ERISA plan, the $8,000 in PIP benefits available through the insurance policy issued by Commerce was primary. The bulletin from the Massachusetts Insurance Commissioner relied upon by Commerce correctly advises that ERISA plans may contain language that defers primary coverage for medical expenses to a motor vehicle insurer, but this is not a foregone conclusion. Commerce properly required a copy of the United plan so that it could make a determination as to whether it was obligated to pay HHC anything more than $2,000. As the party seeking benefits, HHC had the burden to coordinate benefits, and Commerce was not obligated to secure this information on its own. The only documentation supplied to Commerce was a copy of a letter from Truong's employer stating that Truong was the beneficiary of an ERISA qualified plan. Neither HHC nor Truong produced the subject plan or an EOB. Consequently, as was the case in Duffy, the duty to pay anything in excess of $2,000 never actually arose. There were no material facts in dispute, and Commerce was entitled to judgment as a matter of law.

The entry of summary judgment is affirmed.