SCOTT PITTA v. HARVARD PILGRIM HEALTH CARE

FINIGAN, J. Scott D. Pitta ("Pitta") appeals the trial court's dismissal of his complaint against Harvard Pilgrim Health Care ("Harvard Pilgrim"). Pitta's claims against Harvard Pilgrim for unfair claims settlement practices, as defined in G.L. c. 93A and G.L. c. 176D, § 3(9), and for negligent infliction of emotional distress arose from the alleged failure of Harvard Pilgrim to timely pay a claim for medical services provided to Pitta following a trip to a hospital emergency room in October of 2019. It is undisputed that at all relevant times, Pitta was insured under a Harvard Pilgrim health insurance policy.

In response to Pitta's complaint, Harvard Pilgrim filed a motion to dismiss the complaint on the ground that Pitta failed to state a claim upon which relief could be granted, as required by Mass. R. Civ. P. 12(b)(6). A District Court judge allowed the motion without elaboration, and this appeal followed.

We review de novo the allowance of a motion to dismiss under Mass. R. Civ. P. 12(b)(6) for failure to state a claim. See Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011). We accept as true the allegations in the complaint and draw every reasonable inference in favor of the plaintiff. Id. To survive a motion to dismiss, "Factual allegations [in the complaint] must be enough to raise a right to relief above the speculative level." Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007).

Pitta's complaint, read together with the attachment to the complaint, makes the following allegations: on October 4, 2019, while insured by Harvard Pilgrim, Pitta sought medical treatment in the emergency room of the Brockton Hospital. Following his treatment, Pitta paid the copay required by his policy and provided the hospital with his Harvard Pilgrim insurance policy information. Approximately one month later, Pitta learned from the hospital's billing department that Harvard Pilgrim had refused to pay for the services rendered to Pitta. Pitta then contacted Harvard Pilgrim and was told Harvard Pilgrim had denied the claim under the mistaken belief Pitta was covered by a different insurer. Pitta then obtained documentation

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from the other insurer indicating the policy had expired roughly two months prior to Pitta's emergency room visit. Pitta sent evidence of the termination of the prior policy by facsimile transmission to Harvard Pilgrim in November of 2019.

The complaint goes on to allege that in the months that followed, Harvard Pilgrim continued to deny the claim on multiple occasions, ultimately refusing to reprocess the claim. In March of 2020, Pitta served Harvard Pilgrim with a written demand letter under G.L. c. 93A. While Harvard Pilgrim did not tender a settlement offer within thirty days of receiving the c. 93A demand letter, it did notify Pitta in June of 2020 that the claim had in fact been paid by two separate payments in March and April of 2020. Finally, the complaint alleged Harvard Pilgrim's negligence caused severe financial strain on Pitta and his family, resulting in a measurable and demonstrable increase in the severity of his general anxiety disorder.

Chapter 93A claim. General Laws c. 93A, § 2(a) prohibits "unfair or deceptive acts or practices in the conduct of any trade or commerce." General Laws c. 176D, § 3, in turn, defines "unfair or deceptive acts or practices in the business of insurance," which identifies certain "[u]nfair claim settlement practices," G.L. c. 176D, § 3(9), including "(a) [m]isrepresenting pertinent facts or insurance policy provisions relating to coverages at issue," "(b) [f]ailing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies," and "(n) [f]ailing to provide promptly a reasonable explanation of the basis in the insurance policy in relation to the facts or applicable law for denial of a claim." Id.

Our courts have held that Chapter 93A incorporates Chapter 176D, meaning where an insurer fails "to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear," the insurer, by definition, has violated the prohibition in Chapter 93A, § 2 against the commission of unfair or deceptive acts or practices. Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 564 (2001).

In his complaint, Pitta identifies a roughly six-month gap from when he was treated to the ultimate payment of the claim by Harvard Pilgrim. During that time, according to Pitta, he made multiple entreaties to Harvard Pilgrim to investigate his coverage further, to no avail. Pitta also alleged that he took it upon himself to obtain proof he was no longer covered by the prior policy and furnished that to Harvard Pilgrim, which likewise failed to trigger a payment of the claim.

Whether an insurance company's actions constitute an unfair claims settlement practice in violation of G.L. c. 93A and G.L. c. 176D is a fact-specific determination ordinarily left to the trier of fact, including what constitutes "unreasonable delay." See Doe v. Liberty Mut. Ins. Co., 423 Mass. 366, 371-372 (1996).

At the motion-to-dismiss stage, we find the complaint to be sufficient. There is no escaping the fact that Pitta received emergency room treatment on an outpatient basis while covered by a Harvard Pilgrim policy. It is also clear that despite taking the steps that any insured would take, e.g., providing the hospital with his insurance information and responding to Harvard Pilgrim's erroneous statement he was covered by another policy, months elapsed before the claim was paid and only after Pitta sent Harvard Pilgrim a G.L. c. 93A demand letter. While an insurance company is not held to a standard of "omniscience or perfection," we find that whether Harvard Pilgrim was inattentive or unreasonable in its investigation is a question for the fact finder. Bolden v. O'Connor Café of Worcester, Inc., 50 Mass. App. Ct. 56, 67 (2000). See Norfolk & Dedham Mut. Fire Ins. Co., 91 Mass. App. Ct. 413, 417 (2017). The fact

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that Harvard Pilgrim ultimately paid the claim in full and Pitta received reimbursement does not change the analysis. Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass. 813, 824 (2014) ("To the extent that a plaintiff already has received compensation for its underlying loss prior to the resolution of its G.L. c. 93A claim, such compensation has been treated as an offset against any damages ultimately awarded, rather than as a bar to recovery.").

Negligent infliction of emotional distress. In support of his claim of negligent infliction of emotional distress, Pitta alleged Harvard Pilgrim's actions caused severe financial strain on Pitta and his family, resulting in a measurable and demonstrable increase in the severity of his general anxiety disorder. To recover for the tort of negligent infliction of emotional distress, a plaintiff must prove (1) negligence, (2) emotional distress, (3) causation, (4) physical harm manifested by objective symptomatology, and (5) that a reasonable person would have suffered emotional distress under the circumstances of the case. Peyton v. Abbott Labs, 386 Mass. 540, 557 (1982).

In Sullivan v. Boston Gas Co., 414 Mass. 129, 135 (1993), the Supreme Judicial Court expanded the "physical harm" rule somewhat to include mental distress that produces physical symptoms. At the pleadings stage, a plaintiff need only to advance "enough objective evidence of harm to convince a judge that [his] claims present a sufficient likelihood of genuineness to go to trial." Id. 137-138. A plaintiff must provide objective corroboration of the emotional distress alleged and cannot rely solely on allegations of mere upset, dismay, humiliation, grief, and anger. Rodriguez v. Cambridge Hous. Auth., 443 Mass. 697, 702 (2005), citing Sullivan, supra at 137. Allegations of "minimal loss of sleep and appetite" cannot properly support a claim for negligent infliction of emotional distress, Vazquez v. Potter & Co., 2007 Mass. App. Div. 26, 30, but "continuing headaches and nausea" can. Pizzochero v. Vergados, 2007 Mass. App. Div. 141, 142.

Against this backdrop, we conclude that Pitta has asserted enough in his complaint to withstand Harvard Pilgrim's motion. In his complaint, Pitta asserts Harvard Pilgrim's negligence resulted in a "documentable increase in anxiety medication." A change in medication suggests more than "mere upset, dismay, humiliation, grief and anger." Sullivan, supra at 137. Expert medical testimony might be needed to make the necessary showing that Pitta suffered physical symptoms as a result of Harvard Pilgrim's negligence, but it is not mandatory. Id. at 138.

The allowance of the motion to dismiss is reversed. The case is returned to the Brockton District Court for trial.