CAMBRIDGE PUBLIC HEALTH COMMISSION [Note 1] v. COMMERCE INSURANCE COMPANY

CRANE, J. The plaintiff, Cambridge Public Health Commission ("Cambridge"), is a medical provider that brought claims for payment of personal injury protection ("PIP") benefits that the defendant, Commerce Insurance Company ("Commerce"), a motor vehicle insurer, allegedly owed for treatment of injuries to Alexander Ramos ("Alexander") in an automobile accident. Cambridge appeals from a summary judgment granted to Commerce because of noncooperation by the patient arising from his alleged failure to attend any examination under oath. We affirm the judgment.

The complaint claims that Cambridge provided services to Alexander who was alleged to have been injured in an automobile accident on November 13, 2017. Cambridge's complaint asserts claims in four counts. The first is for breach of contract for failing to pay PIP benefits in violation of G.L. c. 90, § 34M. The second is for failure to pay medical payment benefits. The third and fourth counts allege violations of G.L. c. 93A, § 11 in separate counts. The lower court entered summary judgment for Commerce on all of these counts without stating any reason. Cambridge appeals from this decision on the counts for breach of contract for violation of G.L. c. 90, § 34M and for violation of G.L. c. 93A. It does not appeal from the decision on the medical payment benefits.

Cambridge contends that, on the current record, the question of whether an insurer's efforts to examine a claimant under oath are reasonable presents a factual dispute that prevents summary judgment. Cambridge also contends that because Alexander lived in Puerto Rico, it was unreasonable to require him to travel to Massachusetts to attend and testify at an examination under oath. Cambridge contends that its claims for violation of G.L. c. 93A could not be decided on summary judgment because it was Commerce's burden to show that no material facts existed concerning the reasonableness of Commerce's investigation and due diligence before denying the claim.

Commerce responds that the undisputed facts do not present any evidence that its efforts to obtain an examination under oath were unreasonable. It also contends that Alexander's residence in Puerto Rico did not excuse him from being examined under oath in Massachusetts, the alleged location of the accident and where he received the treatment that gives rise to these claims. Commerce also responds that it was entitled to judgment as a matter of law on the G.L. c. 93A claims because, under the

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circumstances, refusing to pay Cambridge's claim until Alexander was examined under oath was not an unfair practice prohibited by G.L. c. 93A, § 2. Therefore, it was entitled to judgment as a matter of law on these and all other claims.

1. Facts. Alexander and Eddie Ramos ("Eddie") were allegedly occupants in a car driven and owned by Eddie. Commerce insured Eddie under a standard Massachusetts automobile insurance policy.

On November 24, 2017, Eddie reported the accident to Commerce and that he and Alexander received treatment for injuries. Between November 27 and December 28, 2017, Commerce was on notice that Alexander was represented by original counsel. On February 1, 2018, Commerce was notified that Alexander was represented by successor counsel. Commerce immediately requested, through Alexander's counsel, that he provide a recorded statement. On February 9, 2018, Alexander's counsel told Commerce that he was out of the country, did not know when he would return, and would contact Commerce when he knew Alexander would be available. Thereafter, Commerce persistently communicated with the same counsel, who also represented Eddie, to obtain his recorded statement. Eddie provided a recorded statement on April 17, 2018, the day upon which counsel for Commerce wrote to

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counsel for both Alexander and Eddie to schedule an examination under oath of both on May 4, 2018.

Between May 3 and June 27, 2018, Commerce or its counsel scheduled no less than three other separate dates for Alexander to be examined under oath. The first two dates were postponed by agreement of counsel. Commerce's counsel rescheduled and convened Alexander's examinations under oath on June 13 and June 27, 2018. Alexander failed to attend at either of these. On July 11, 2018, Commerce notified Alexander's counsel in writing that his claim for PIP benefits for services rendered by Cambridge and others was denied for failure to attend his examination under oath. On July 12, 2018, Commerce notified Cambridge that its claims for treatment to Alexander were denied for reasons that could be obtained from Alexander's counsel. Finally, on July 20, 2018, Alexander's counsel told Commerce that Alexander was living in Puerto Rico. There is no dispute about these facts.

To summarize, Alexander never appeared to be examined under oath or be interviewed for a recorded statement. Eddie gave a recorded statement on April 17, 2018. There is nothing in the record about whether Alexander ever appeared for an independent medical exam that had been scheduled in December, 2017. The only other information Commerce had about Alexander's claim was a bill and treatment note from Cambridge for services on November 14, 2017. The bill was delivered to Commerce on December 14, 2017, and the treatment note on January 16, 2018. Alexander's counsel submitted a PIP benefits application to Commerce on June 13, 2018. Neither the application nor the treatment note contained any description of the events or location of the alleged accident.

2. 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). See SCA Servs., Inc. v. Transportation Ins. Co., 419 Mass. 528, 531 (1995).

As in this case, when the moving party does not bear the burden of proof at trial, the moving party must either (1) submit affirmative evidence negating an essential element of the nonmoving party's claim; or (2) demonstrate that the nonmoving party's evidence is insufficient to establish an essential element of its claim. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 715-716 (1991). It is only when the moving party has met this initial burden that the burden shifts to the nonmoving party to defeat summary judgment by "set[ting] forth specific facts showing that there is a genuine issue for trial." Id. at 716, quoting Mass. R. Civ. P. 56(e). The nonmoving party "cannot rest on his or her pleadings and mere assertions of disputed facts." LaLonde v. Eissner, 405 Mass. 207, 209 (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).

3. Discussion. A. Breach of contract. An insured's wilful, unexcused failure to submit to an examination under oath constitutes a breach of the standard Massachusetts automobile insurance contract resulting in forfeiture of coverage for PIP benefits without proof of actual prejudice resulting to the insurer's interests.

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Boffoli v. Premier Ins. Co., 71 Mass. App. Ct. 212, 216 (2008). However, an insured is relieved of his obligation to submit to an examination under oath if the request for the examination is not made within a reasonable time after the insurer receives notice of the insured's claim. Knight v. CNA Ins. Co., 2003 Mass. App. Div. 198, 200.

Cambridge contends that any determination of whether Commerce sought Alexander's examination under oath in a reasonable time presented a factual dispute that precludes summary judgment. "What is a reasonable time is usually a question of fact, but if the facts are not in dispute, it is a question of law. Powell v. Fireman's Fund Ins. Cos., 26 Mass. App. Ct. 508, 513 (1988). Determining what is a reasonable time involves examining 'the nature of the contract, the probable intention of the parties, and the attendant circumstances.' Plymouth Port, Inc. v. Smith, 26 Mass. App. Ct. 572, 575 (1988)." Lorenzo-Martinez v. Safety Ins. Co., 58 Mass. App. Ct. 359, 364-365 (2003).

Notwithstanding that the facts concerning the investigation are not in dispute, Cambridge claims it was unreasonable for Commerce to wait until April 17, 2018 to seek Alexander's examination under oath. This argument ignores all of Commerce's other efforts to obtain Alexander's and Eddie's recorded statements between February 1 and April 17, 2018. As early as February 1, 2018, Commerce asked counsel for both Eddie and Alexander to provide recorded statements. On February 9, 2018, Alexander's counsel told Commerce that he was out of the country, did not know when he would return, and would contact Commerce when he did. When Eddie finally provided a recorded statement on April 17, 2018, Commerce then took the next step of seeking an examination under oath of both Eddie and Alexander. The examination was continued by agreement of counsel on at least two occasions. Alexander's counsel appeared without him on June 13, and neither appeared on June 27, 2018. Counsel for Commerce was present at both with a court reporter and made a record.

Cambridge also claims that it was unreasonable not to excuse Alexander's attendance because he lived in Puerto Rico and was unable to attend or participate because of where he lived. [Note 2] Cambridge further asserts that it was unreasonable to require Alexander to attend an examination under oath in Massachusetts when his counsel asserted he was away or had traveled to Puerto Rico without offering him an opportunity to participate remotely from Puerto Rico.

It was not unreasonable for Alexander to be required to attend and testify in Massachusetts, the state where the accident was alleged to have occurred, where the treatment was provided by Cambridge, and where the policy of insurance was issued. Cohen v. Commercial Cas. Ins. Co., 277 Mass. 460 (1931). There is nothing in the record to demonstrate that Alexander was, or would be, available for examination under oath in Puerto Rico or anywhere else on any date or that Alexander or

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his counsel proposed any remote examination of him. [Note 3] There is no information about whether or when he might return to Massachusetts or any proposals to examine him under oath before a court reporter while he remained in Puerto Rico, using a video and audio communication link.

Based upon the foregoing undisputed facts, it was not unreasonable for Commerce to seek to examine Alexander under oath when and where it did. When Commerce sought the examination under oath, it had no information about the events and location of the alleged accident from any independent source. It was entitled to investigate Alexander's claim to obtain this information before taking a position on paying the claim. An insurer is not obligated to pay unexplained medical bills merely based on the unsubstantiated assertion they represent reasonable treatment of injuries caused by a motor vehicle accident. Brito v. Liberty Mut. Ins. Co., 44 Mass. App. Ct. 34, 37 (1997); Northshore Chiropractic v. Commerce Ins. Co., 2010 Mass. App. Div. 168. Because Alexander did not submit to an examination under oath and was not entitled to PIP benefits, nothing was due to Cambridge. There was no violation of G.L. c. 90, § 34M or breach of contract. Commerce was entitled to summary judgment on the count for breach of contract.

B. Violations of G.L. c. 93A. Turning to Cambridge's claims for violation of G.L. c. 93A, we conclude there was also no error in granting summary judgment on those.

Cambridge alleges that Commerce engaged in an assortment of claims handling conduct that constituted unfair or deceptive acts or practices prohibited by G.L. c. 93A, § 2. These allegations, in one count, generally allege that Commerce engaged in the following categories of unfair or deceptive conduct: violations of G.L. c. 90, § 34M; violations of G.L. c. 176D, § 3(9); and misconduct in determining the reasonableness and necessity of charges for services provided to Alexander. It also alleges that Commerce engaged in this conduct as a regular practice of its business. Another count alleges that Commerce engaged in the same conduct and because some of it was specifically prohibited by the provisions of G.L. c. 176D, § 3(9), it was a violation of G.L. c. 93A, § 2, permitting recovery under G.L. c. 93A, § 11. However, on appeal, as to both counts and all claims for violation of G.L. c.93A, Cambridge only argues that a factual dispute exists concerning whether Commerce failed to conduct a reasonable, timely, and diligent investigation of the claim for PIP benefits. We do not consider allegations of violation of G.L. c. 93A alleged in the complaint that have not been argued on appeal. "The Appellate Division need not pass upon questions or issues not argued in the brief." Dist./Mun. Cts. R. A. D. A. 16(a)(4). See Foley v. Lowell Sun Pub. Co., 404 Mass. 9, 11 (1989).

It is Cambridge's burden to establish that Commerce did not conduct a reasonable, timely, and diligent investigation of its claim for PIP benefits for treatment to Alexander. The affidavits of Commerce's adjuster and counsel demonstrate that Alexander's wilful and unexcused failure to attend his examination under oath was the reason for denying Cambridge's claim for PIP benefits. The affidavit of

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Alexander's counsel that he lived in Puerto Rico was Cambridge's only evidence and is insufficient to establish that Commerce failed to conduct a reasonable, timely, and diligent investigation of the claim. We have already ruled that Cambridge was not entitled to PIP benefits because of Alexander's failure to cooperate by submitting to an examination under oath, regardless of where he allegedly lived. Commerce's failure to conduct a reasonable, timely, and diligent investigation of Cambridge's claim for PIP benefits is an essential element of Commerce's alleged violation of G.L. c. 93A. Alexander's failure to cooperate prevents Cambridge from establishing that Commerce failed to conduct a reasonable, timely, and diligent investigation of Cambridge's claim for PIP benefits.

A violation of G.L. c. 93A requires evidence of something more than a breach of contract, rising to the level of intentional bad faith, calculated and knowing deception, extortionate tactics, or other similarly egregious conduct. See Massachusetts Employers Ins. Exch. v. Propac-Mass., Inc., 420 Mass. 39, 42-43 (1995); Lumbermens Mut. Cas. Co. v. Y.C.N. Trans. Co., 46 Mass. App. Ct. 209, 215 (1999). Cambridge has not presented any evidence that Commerce engaged in any conduct that could meet those standards. Consequently, Commerce was entitled to summary judgment on all of the claims for violation of G.L. c. 93A. Kourouvacilis, supra; Duffy v. Commerce Ins. Co., 2009 Mass. App. Div. 196, 196-197.

Commerce has argued that it is entitled to summary judgment because Cambridge may not obtain recovery under G.L. c. 93A, § 11 for violation of G.L. c. 176D, § 3(9)(d) (failure to conduct reasonable, timely, and diligent investigation of claim). Jet Line Servs., Inc. v. American Employers Ins. Co., 404 Mass. 706, 717 n.11 (1989). Because we have ruled that the evidence Cambridge presented was insufficient to establish that Commerce failed to conduct a reasonable, timely, and diligent investigation, we do not reach or address the argument.

Judgment affirmed.