2020 Mass. App. Div. 139

December 20, 2019 - September 30, 2020

Appellate Division Southern District

Court Below: District Court, Dedham Division

Present: Finnerty, P.J., Finigan & Cunis, JJ.

Brittany Pierce, Francis A. Gaimari, and Elizabeth H. Manos for the plaintiff.

Bruce Medoff and Jodi Conners for the defendant.

CUNIS, J. This is an appeal from a motion for summary judgment granted in favor of the defendant, Progressive Direct Insurance Company ("Progressive"). Progressive successfully argued that a party injured in an automobile accident failed to cooperate with its investigation of the claim, as required by G.L. c. 90, § 34M. The plaintiff, Mount Auburn Hospital ("MAH"), appeals the decision, claiming that noncooperation of the injured party is an issue of fact, and thus should not be resolved by summary judgment. We affirm and uphold summary judgment for Progressive.

On March 27, 2018, Progressive received notice of an automobile accident that had occurred on March 22, 2018, involving a Nissan Sentra operated by Natalia Zapata ("Zapata"), owned by Leonardo O'Campo ("O'Campo"), and insured by Progressive. Zapata was treated at MAH for injuries resulting from the accident. Patrick Callahan, the driver of the other vehicle involved in the accident, notified Progressive, and Progressive promptly [Note 1] began attempting to contact both O'Campo and Zapata by telephone, mail, and e-mail about the insurance claim. The correspondence to Zapata included an application for personal injury protection ("PIP") benefits. See G.L. c. 90, § 34M. [Note 2]

Progressive never received a response or completed PIP forms from either O'Campo or Zapata. Progressive did receive Zapata's medical bills from MAH on May 29, 2018. Progressive informed the hospital twice, on June 1 and June 7, 2018, that it would not be paying Zapata's medical bills because they had never received the completed PIP forms.

MAH filed a complaint on October 5, 2018, to recover the cost of Zapata's medical treatment and for damages under G.L. c. 93A, § 11. [Note 3] Progressive thereafter scheduled

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an examination under oath ("EUO") for January 3, 2019, for the purpose of gathering more information about Zapata's injuries. On December 26, 2018, Progressive received a letter from Matthew Krevat ("Krevat"), the attorney for both O'Campo and Zapata, informing Progressive that his clients would be withdrawing the insurance claim and would not be showing up to the EUO. Despite this, Progressive went ahead with the scheduled EUO, which neither O'Campo nor Zapata attended. [Note 4]

Progressive filed a motion for summary judgment on the ground that O'Campo and Zapata failed to cooperate, in violation of O'Campo's insurance policy and the PIP statute, G.L. c. 90, § 34M. A District Court judge granted Progressive's motion. MAH appealed, essentially arguing that noncooperation is an issue of fact, since there is an issue as to whether Progressive properly notified O'Campo and Zapata of their obligations under the PIP statute.

When reviewing a motion for summary judgment, it is well established that the moving party is entitled to summary judgment when, viewing the facts in the light most favorable to the nonmoving party, there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56; Lynch v. Crawford, 483 Mass. 631, 641 (2019). We review the grant or denial of summary judgment de novo, "because the record before us is the same as the record before the motion judge, and the decision is a matter of law rather than of discretionary judgment." Lynch, supra.

General Laws c. 90, § 34M requires that every motor vehicle liability policy provide PIP benefits to persons injured in an automobile crash. An injured person must submit a claim for PIP benefits as soon as practicable after an accident. Id. Insurers may require an injured person to submit to physical examinations by physicians selected by the insurer, in order to verify the injuries. Id. Indeed, an insurance company has the statutory obligation to "investigate the causal connection between the claimed injuries and the automobile accident." Anderson v. Plymouth Rock Assur. Corp., 2009 Mass. App. Div. 11, 12. It is the claimant's duty to "do all things necessary to enable the insurer to obtain medical reports and other needed information to assist in determining the amounts due." Id., quoting G.L. c. 90, § 34M. In other words, the insurance company has an obligation to investigate a claim, but the claimant likewise has an obligation to cooperate with the investigation. In a situation where the insurer is faced with noncooperation from a claimant, it is statutorily protected by the noncooperation defense.

Oftentimes an insurance company's assertion of a claimant's noncoopertion in a PIP case presents a question of fact and thus is not appropriate for summary judgment. Anderson, supra at 12. In this case, however, we agree with the trial judge and find no dispute as to the material facts.

The record establishes that O'Campo and Zapata did nothing to assist Progressive in processing the claim. Neither O'Campo nor Zapata bothered to report the accident to Progressive. In the months following the accident and before MAH filed the complaint, Progressive attempted to contact O'Campo thirteen times -- three times by mail, twice by e-mail, and eight times by telephone, but never received a

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response. On one occasion, O'Campo answered the telephone but hung up immediately upon the caller identifying himself as a representative from Progressive. Zapata similarly never responded to Progressive's inquiries. Progressive attempted to contact her six times by mail. In one mailing, Progressive included a PIP application for her to complete. She never returned the application. See Advanced Spine Ctrs., Inc. v. Amica Mut. Ins. Co., 2012 Mass. App. Div. 45 (summary judgment properly granted where injured party and her assignee medical provider failed to submit timely PIP application).

Finally, on December 26, 2018, Zapata's and O'Campo's intent not to cooperate with Progressive became abundantly clear -- and was essentially confirmed -- in the letter to Progressive from their attorney, Matthew Krevat, in which he tells Progressive that his clients would not be attending the scheduled EUO, that they were "withdrawing any and all claims relating to the 3/22/18 accident," and that Progressive was to have no further contact with them. See Morales v. Pilgrim Ins. Co., 58 Mass. App. Ct. 722, 725 (2003) (examination under oath serves as "an aid to the insurer's investigation of a claim," and noncooperation on part of claimants amounts to "forfeiture of coverage of their claims"); Lorenzo-Martinez v. Safety Ins. Co., 58 Mass. App. Ct. 359, 363 (2003) ("[A] wilful, unexcused refusal to submit to an examination under oath, without proof of actual prejudice to the insurer's interests resulting from the refusal, constitutes a material breach of the insurance contract discharging the insurer's liability under the contract.").

MAH makes much of the fact that the address Progressive initially used in its correspondence to Zapata was "12 Kushman St." in Revere, rather than the address Zapata provided to MAH, "12 Cushman Ave." There is no evidence, beyond MAH's speculative assertions in its opposition to the summary judgment motion and in its brief, that Zapata did not receive the initial correspondence. See Commonwealth v. Koney, 421 Mass. 295, 303-304 (1995) ("Proper mailing of a letter is prima facie evidence of receipt by the addressee."). Regardless, when Progressive sent a certified mail request for an EUO to Zapata at "12 Cushman Ave." on December 11, 2018, it received a response from Attorney Krevat two weeks later, essentially confirming that Zapata had no intent to cooperate with Progressive. To claim otherwise, or to claim that Zapata did not have adequate notice, is belied by the record and is disingenuous. See LaLonde v. Eissner, 405 Mass. 207, 209 (1989) (opposing party "cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment").

Regarding MAH's claims for violation of G.L. c. 93A, § 11, it argues on appeal that a factual dispute exists concerning whether Progressive failed to conduct a prompt, diligent investigation of the claim for PIP benefits. Zapata's failure to cooperate, however, prevents MAH from establishing that Progressive failed to conduct a prompt, diligent investigation. See Cambridge Pub. Health Comm'n v. Commerce Ins. Co., 2020 Mass. App. Div. (19-ADCV-133NO, May 26, 2020) (holding PIP insurer's failure to conduct reasonable, timely, and diligent investigation of provider's claim for PIP benefits was essential element of alleged violation of G.L. c. 93A, and that injured party's failure to cooperate prevented provider from establishing that insurer failed to conduct reasonable, timely, and diligent investigation).

Judgment affirmed.


[Note 1] Progressive's first written attempts to contact O'Campo and Zapata are dated April 4, 2018, thirteen days after the accident. In each of these letters, the claims representative states that he had been "unable to reach" O'Campo and Zapata, indicating that Progressive had made earlier attempts to contact them.

[Note 2] We note that G.L. c. 90, § 34M does not require any particular forms to be used, but only that the injured party fully cooperate with the insurer in processing the claim. See Advanced Spine Ctrs., Inc. v. Pilgrim Ins. Co., 2010 Mass. App. Div. 120, 121.

[Note 3] MAH has not appealed from the court's grant of summary judgment to Progressive on count 2 of the complaint for failure to pay medical payment benefits.

[Note 4] While Attorney Krevat's letter states that neither O'Campo nor Zapata would be attending the EUO, we recognize that only Zapata, as the injured party, had the statutory obligation to do so.