2021 Mass. App. Div. 25

March 13, 2020 - February 26, 2021

Appellate Division Southern District

Court Below: District Court, Brockton Division

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

Mark Novinsky for the plaintiff.

Michael L. Snyder for the defendant.

CAMPBELL, J. The sole issue before this Appellate Division is whether it was error for the trial court to allow the defendant-insurer's motion to dismiss the plaintiff's complaint, where the plaintiff raised claims of negligent misrepresentation and violations of G.L. c. 93A and G.L. c. 176D, but where the defendant-insurer timely paid full personal injury protection ("PIP") benefits on the plaintiff's behalf.

In October of 2018, the plaintiff, Grisel Rosario ("Rosario"), filed a complaint against the defendant, Amica Mutual Insurance Company ("Amica"), alleging negligent misrepresentation and violations of G.L. c. 93A and G.L. c. 176D. On November 15, 2018, Amica filed a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6). A hearing was conducted on November 30, 2018. On December 20, 2018, the court allowed Amica's motion. Rosario timely appealed.

In her complaint, the contents of which are accepted as true for purposes of reviewing the allowance of the motion to dismiss, [Note 1] the plaintiff alleges the following. Rosario was injured in a motor vehicle accident on January 14, 2018. She was unable to work. Prior to the accident, she was a cashier at Shaw's Supermarket. Amica was liable for paying $8,000 in PIP benefits on her behalf.

A PIP adjustor for Amica provided false information to Rosario. [Note 2] She instructed Rosario to accumulate all her lost wages before submitting a PIP application. She told Rosario that if she did this, Amica would not pay PIP claims of her medical providers. Then, Rosario could claim the full $8,000 in PIP benefits as lost wages.

Rosario accumulated $8,000 in lost wages. She was in the process of filing a PIP application with Amica when she was informed that the full $8,000 in PIP benefits had been paid to her medical providers. As such, she did not receive any PIP benefits for her lost wages.

Rosario admits in her complaint that Amica paid full PIP benefits to her medical providers. Therefore, this Appellate Division must consider whether she suffered any compensable injury or damages as a result of Amica's handling of her insurance

Page 26


Massachusetts R. Civ. P. 12(b) provides that certain "defenses may at the option of the pleader be made by motion," including the defense of "(6) Failure to state a claim upon which relief can be granted." "A motion under Rule 12(b)(6), like the traditional demurrer, tests the legal sufficiency of the complaint, counterclaim, or cross-claim. It should be allowed if and only if 'it appears to a certainty that [the claiming pleader] is entitled to no relief under any state of facts which could be proved in support of the claim.' 2A Moore, Federal Practice 2245 (original emphasis)." Reporter's Notes to Rule 12 (1973).

This Appellate Division reviews the allowance of Amica's motion to dismiss de novo. A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 424 (2018), citing Galiastro v. Mortgage Elec. Registration Sys., Inc., 467 Mass. 160, 164 (2014), and Shapiro v. Worcester, 464 Mass. 261, 266 (2013). See Vigorito v. FMCI, LLC, 2020 Mass. App. Div. 16, 17.

General Laws c. 90, §§ 34A and 34M provide for PIP benefits for reasonable and necessary medical expenses and lost wages, up to $8,000. Section 34M, third par., states in relevant part: "Claim for benefits due under the provisions of personal injury protection . . . shall be presented to the company providing such benefits as soon as practicable after the accident occurs from which such claim arises, and in every case, within at least two years from the date of accident . . ." (emphasis added).

If a PIP claim is made for substantiated reasonable and necessary medical expenses and it is not paid within thirty days, the medical provider "'ha[s] a right to commence an action in contract for payment' and may recover reasonable attorney's fees." Brito v. Liberty Mut. Ins. Co., 44 Mass. App. Ct. 34, 36 (1997), quoting G.L. c. 90, § 34M.

The law mandates that when an automobile insurer is "in possession of all the information that [is] needed to process a PIP claim," Advanced Spine Ctrs., Inc. v. Pilgrim Ins. Co., 2010 Mass. App. Div. 121, 123, it do so. G.L. c. 90, § 34M. See Advanced Spine Ctrs., Inc., supra at 121-123. This mandate applies even in the absence of a complete PIP application or the noncooperation of an insured. Advanced Spine Ctrs., Inc., supra at 123. [Note 3] Therefore, Amica was legally obligated to pay valid PIP claims regardless of any representation to the contrary made by its PIP adjustor. Rosario's assertion that the $8,000 in PIP benefits should have been withheld from her medical providers so the money could be paid directly to her violates those principles.

A PIP adjustor for Amica could not agree to violate the mandates of Massachusetts law by withholding compensation to medical providers who submitted valid PIP claims. G.L. c. 90, § 34M. While courts do not go out of their way to discover an illegal element to an agreement, see Febonio v. Thelen, 2010 Mass. App. Div. 65, 66-67, citing Beacon Hill Civic Ass'n v. Ristorante Toscano, Inc., 422 Mass. 318, 320-321 (1996), and Nussenbaum v. Chambers & Chambers Inc., 322 Mass. 419, 422 (1948), "[courts] will not enforce an illegal contract." Pellegrino v. Springfield Parking Auth.,

Page 27

69 Mass. App. Ct. 94, 101 (2007), citing Arcidi v. National Ass'n of Gov't Employees, Inc., 447 Mass. 616, 619-620 (2006), and Tocci v. Lembo, 325 Mass. 707, 709-710 (1950). See also McLaughlin v. Amirsaleh, 65 Mass. App. Ct. 873, 880-881 (2006) ("[C]ontract in violation of law or public policy will not be enforced.").

As to her claim of negligent misrepresentation, Rosario cannot prove she suffered any damages. [Note 4] She received the contractual benefit of her bargain, as she admits in her complaint that Amica paid full PIP benefits on her behalf. Additionally, even if Rosario filed a completed PIP application and lost wage information with Amica as soon as practicable, it is speculative to assume she may have received even a portion of the PIP benefits instead of those benefits being paid to her medical providers. M.G. Perlin & J.M. Connors, Civil Procedure in the Massachusetts District Court § 7.27, at 244 (5th ed. 2018) (stating that "fact[s] contained in a complaint 'must be enough to raise a right to relief above the speculative level'" [citation omitted]). See generally Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). See also Bayless v. TTS Trio Corp., 474 Mass. 215, 223 n.13 (2016) (factual allegations in complaint cannot be merely consistent with entitlement to relief; they must plausibly suggest entitlement).

Where Rosario's claim of negligent misrepresentation cannot survive, her G.L. c. 176D and G.L. c. 93A claims for willful or knowing deceit also fail as she cannot prove the necessary elements. [Note 5] Cf. Kingsley v. Neumeier, No. 06-P-732 (Mass. App. Ct. Aug. 30, 2007) (unpublished Rule 1:28 decision) (where plaintiff failed to establish causal connection between defendant's alleged deceit and plaintiff's loss, mere possibility or conjecture they were related will not defeat summary judgment on claims of deceit, misrepresentation, and G.L. c. 93A).

The judgment of dismissal is affirmed.


[Note 1] See Bayless v. TTS Trio Corp., 474 Mass. 215, 223 n.13 (2016) (court takes as true for purposes of ruling on motion to dismiss allegations appearing in complaint and reasonable inferences drawn therefrom).

[Note 2] Amica accepts these facts as true only for the purpose of allowing this Appellate Division to review the propriety of the allowance of its motion to dismiss. It disputes the facts as they appear in the underlying complaint.

[Note 3] See Boffoli v. Premier Ins. Co., 71 Mass. App. Ct. 212, 216 (2008), citing Darcy v. Hartford Ins. Co., 407 Mass. 481, 489-491 (1990) ("As a general rule, breach of an insured's duty to cooperate does not permit an insurer to disclaim coverage absent a showing of prejudice.").

[Note 4] The elements of negligent misrepresentation are "that the defendant (1) in the course of his business, (2) supplie[d] false information for the guidance of others (3) in their business transactions, (4) causing and resulting in pecuniary loss to those others (5) by their justifiable reliance upon the information, and (6) with failure to exercise reasonable care or competence in obtaining or communicating the information" (emphasis added). O'Connor v. Merrimack Mut. Fire Ins. Co., 73 Mass. App. Ct. 205, 213 (2008), quoting Nota Constr. Corp. v. Keyes Assocs., Inc., 45 Mass. App. Ct. 15, 19-20 (1998).

[Note 5] There is no assertion in the complaint that a G.L. c. 93A demand letter was sent. A demand letter is not attached to the complaint. Entrialgo v. Twin City Dodge, Inc., 368 Mass. 812, 813 (1975) ("A [G.L. c. 93A] demand letter listing the specific deceptive practices claimed is a prerequisite to suit and as a special element must be alleged and proved."). See also Simas v. House of Cabinets Inc., 53 Mass. 131, 139-140 (2001). This too is fatal.