DEBORAH A. BUTLER v. KENNY KING
Plaintiff was pro se.
Paul S. Rainville and Casey L. McCaffrey for defendants.
FRASER, J. The plaintiff, Deborah Butler, sued the defendant, Kenny King, alleging that the defendant staged a motor vehicle accident between the parties and that he improperly filed a claim with the plaintiff's insurer for damage to his vehicle. The sole issue before this Appellate Division is whether it was error for the judge to dismiss the plaintiff's complaint upon motion by the defendant. The plaintiff posits that there exists a private cause of action under G.L. c. 266, § 111A and, further, that she pleaded, with particularity, a claim of fraudulent theft of property, thereby making dismissal pursuant to Mass. R. Civ. P. 12(b)(6) improper. Upon review, the decision of the motion judge is affirmed.
General Laws c. 266, § 111A criminalizes the act of presenting false insurance claims. [Note 1] See Commonwealth v. Williams, 63 Mass. App. Ct. 615, 617 (2005); Ellis v. Safety Ins. Co., 41 Mass. App. Ct. 630, 635 (1996). Section 111A does not provide a private right of action in its text. Id. Where a statute makes no provision for a private right of action, legislative intent controls on the issue. Juliano v. Simpson, 461 Mass. 527, 531 (2012), citing Loffredo v. Center for Addictive Behaviors, 426 Mass. 541, 543 (1998). Here, no intent to create a private right of action exists in its legislative history. G.L. c. 266, § 111A. Accordingly, the plaintiff's claim must be dismissed.
Turning to the second issue presented, we note that when fraud is alleged, it must be pleaded with particularity. Mass. R. Civ. P. 9(b). "At a minimum, a plaintiff alleging fraud must particularize the identity of the person(s) making the representation, the contents of the representation, and where and when it took place. In addition, the
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plaintiff should specify the materiality of the misrepresentation, its reliance thereon, and resulting harm." Equipment & Sys. for Indus., Inc. v. Northmeadows Constr. Co., 59 Mass. App. Ct. 931, 931-932 (2003). Here, the plaintiff made a conclusory statement that she believed the defendant staged the accident and that his financial instability provided motive for the staging. The plaintiff pointed to a default notice and sheriff's sale on property the defendant owned, filed one year post-collision, to support her contention. The plaintiff's blanket assertions fall short of the required particularized pleadings.
For the reasons stated above, the judgment of dismissal is affirmed.
FOOTNOTES
[Note 1] General Laws c. 266, § 111A reads in part:
"Whoever, in connection with or in support of any claim under any policy of insurance issued by any company . . . and with intent to injure, defraud or deceive such company, presents to it, or aids or abets in or procures the presentation to it of, any notice, statement, [or] proof of loss . . ., knowing that such notice, statement, [or] proof of loss . . . contains any false or fraudulent statement or representation . . . shall . . . be punished by imprisonment in the state prison for not more than five years or by imprisonment in jail for not less than six months nor more than two and one half years or by a fine of not less than $500 nor more than $10,000, or by both such fine and imprisonment in jail."