LEO CYR & another vs. JOHN S. FARIAS.

REARDON, J. This matter is here on appeal from a decision and order of the Appellate Division of the District Courts, Southern District. The two plaintiffs, Leo and Lorraine Cyr, husband and wife, had brought an action in the Second District Court of Bristol in which they sought damages, including pain and suffering, for injuries sustained by Leo and by his wife Lorraine, as well as consequential damages for medical expenses sustained by Lorraine. A property damage count was waived. The action arose from an automobile accident which occurred on a public way in Westport, Massachusetts, on June 11, 1972. The District Court trial judge found for the plaintiffs and awarded them a total of $5,872. This sum included damages for pain and suffering although the medical expenses for Leo were $135 and for Lorraine $115.

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The plaintiffs at the time of the accident were residents of Rhode Island, traveling in a vehicle registered in that State, owned and operated by the plaintiff Leo. The defendant is a domiciliary of Massachusetts and is insured under a compulsory motor vehicle policy which included a personal injury protection policy conformable to the requirements of St. 1970, c. 670. Leo sustained injuries to his spine and a contusion of the left arm. He suffered about a month's total disability and five weeks' partial disability thereafter, his lost earnings amounting to $822. His wife suffered a variety of bruises in addition to a traumatic neurosis and total disability from the date of the accident to July 10, 1972. Her total wage loss was $300. It is evident from the trial judge's findings that he awarded $3,000 for pain and suffering to Leo, and $1,500 to Lorraine as a portion of the total damages which he assessed. The Appellate Division took the position that the disposition of the matter was governed by G. L. c. 231, Section 6D, which was inserted by St. 1970, c. 670, Section 5 (the so called "no-fault" law). [Note 1] The Appellate Division found this language to be "clear and unequivocal," concluding that the plaintiffs were subject to its provisions and not within any of the exceptions contained

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therein so that they could not recover for pain and suffering.

The findings were thus reduced by the Appellate Division to give Leo $957, that being the total of his medical expenses and lost wages, plus $115 for the medical expenses paid by him for treatment of Lorraine, and to give Lorraine $300 for her lost wages.

The questions posed are two: (1) whether the threshold requirement for recovery of pain and suffering imposed by G. L. c. 231, Section 6D, applies to injured plaintiffs who are nonresidents not covered by no-fault benefits, and (2) whether the denial of damages for pain and suffering caused to nonresidents by a negligent Massachusetts motorist is a violation of the due process or equal protection guaranties of the United States Constitution and the Constitution of the Commonwealth.

As a matter of statutory construction, we agree with the defendant that G. L. c. 231, Section 6D, excludes the plaintiffs from the right to damages based on pain and suffering since their medical expenses were less than $500. The statute refers to "any action of tort brought as a result of bodily injury . . . arising out of the ownership, operation, maintenance or use of a motor vehicle within this commonwealth by the defendant." Application of the statute is not limited to those cases where the injured plaintiff receives no-fault payments. See Kenney and McCarthy, "No-Fault" in Massachusetts, Chapter 670, Acts of 1970: A Synopsis and Analysis, 55 Mass. L. Q. 23, 40 (1970). This general principle was not abrogated by our recent decision in Chipman v. Massachusetts Bay Transp. Authy. 366 Mass. 253 (1974), where the plaintiff was injured as a result of the defendant's negligence as she attempted to board a bus owned and operated by the defendant. In that case the defendant was specifically exempted from the no-fault provisions of the General Laws in that the motor vehicles which it operated were relieved from the compulsory insurance requirements of that chapter. G. L. c. 90, Section 1A. This circumstance had

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a significant bearing on the decision for the court was hesitant to extend the immunity of Section 6D to the defendant where the defendant did not "bear the burden of providing protection afforded under the compulsory insurance statute." Id. at 258. The court further reasoned that "[s]ince the defendant is a self-insurer, its experience has no effect whatsoever on liability insurance rates, and the extension of the pain and suffering exemption of Section 6D to the defendant would in no way further the legislative purpose of reducing insurance premiums." Id. at 259. These considerations are not present here for the defendant, a Massachusetts resident, has no such exclusion from the compulsory insurance provisions. In concluding, the Chipman opinion was explicit in stating that the exception to Section 6D carved out by that decision was a narrow one, based on a unique set of facts: "All that we have decided today is that a plaintiff who has no recourse to personal injury protection benefits is not barred by G. L. c. 231, Section 6D, from recovering damages for pain and suffering when the uninsured defendant is expressly exempted from the no-fault scheme by c. 90, Section 1A." Id. at 260. We are not inclined to broaden that exception in this case.

We turn next to the plaintiffs' argument that a denial of their rights to full recovery for pain and suffering impinges on the due process and equal protection guaranties under the Constitution of the Commonwealth and under the Fourteenth Amendment to the United States Constitution. The Chipman case is of no help to the plaintiffs here, based as it was purely on statutory construction. These contentions were thoroughly discussed, however, in Pinnick v. Cleary, 360 Mass. 1 (1971). In the Pinnick case we observed that "[i]t was clearly proper for the Legislature to conclude that the benefits of compensating an injured person for relatively minor pain and suffering, which as such entails no monetary loss, did not warrant continuation of the practice when balanced against the evils it had spawned."

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Id. at 29. The nonresident plaintiff is not left without significant rights. Although the measure of damages in a tort action may be limited by virtue of Section 6D, the defendant is not otherwise exempted from tort liability since no-fault benefits are not available to the plaintiff. G. L. c. 90, Sections 34A and 34M. In addition, the defendant's liability in tort will be secured up to the limits of the compulsory liability insurance required in this Commonwealth. G. L. c. 90, Section 34A. Further, "just as . . . [the nonresident's] right to sue for pain and suffering is limited when he is non-negligent, so he is protected from comparable claims where he has been negligent." Pinnick v. Cleary, supra, at 23.

We can perceive no invidious discrimination against nonresidents. The limitation on recovery for pain and suffering imposed by Section 6D operates with equal force on resident plaintiffs. Although residents may be able to receive no-fault benefits for medical expenses and seventy-five per cent of lost wages, they still cannot generally recover for pain and suffering if their medical expenses fall short of $500. Were we to exempt nonresidents from the effect of Section 6D, nonresidents could actually recover more than would ever be available to resident plaintiffs to whom the restriction of Section 6D applies. The plaintiffs here make much of the fact that, unlike residents, they do not receive personal injury protection on a no-fault basis to offset the loss of recovery for pain and suffering. However, they can sue for the same amount which is provided to those covered by no-fault, plus the extra twenty-five per cent of lost wages. The added expense of attorneys' fees in a lawsuit is not a factor to which we attribute great import. Pinnick v. Cleary, supra, at 8-9. Nor does it matter that the plaintiffs recover nothing if negligence is not proved, for without proof of negligence recovery for pain and suffering would not have been possible in any event.

Furthermore, in comparing the treatment of nonresidents with that of residents, it is significant that not all

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residents are able to receive no-fault benefits either. For example, if a resident plaintiff is merely entitled to benefits under workmen's compensation, he does not receive no-fault payments. G. L. c. 90, Section 34A. Or if a plaintiff has elected a full deductible under the statute, he will likewise be excluded from personal injury protection benefits. G. L. c. 90, Section 34M. Pinnick v. Cleary, supra, at 24.

This latter example illustrates the further point that the no-fault benefits available to residents arise from a system of first party insurance which Massachusetts motorists have paid for themselves through their insurance premiums. It is important to bear in mind that, unlike a tort recovery for injuries, the no-fault coverage is contractual in nature. See Schermer, Automobile Liability Insurance, Section 7.01 at 7-1 (1974). Manifestly, a State may properly choose to provide no-fault benefits only to its citizens since they are the ones who have paid for the insurance. See Kozyris, No-Fault Automobile Insurance and the Conflict of Laws -- Cutting the Gordian Knot Home-Style, 1972 Duke L. J. 331, 381-382. There is nothing in the statute to prevent nonresidents from purchasing their own insurance at home to provide added protection beyond the actual losses which they may recover in a tort action in Massachusetts. See Ryan, Massachusetts Tries No Fault, 57 A. B. A. J. 431, 433 (1971). Cf. Pinnick v. Cleary, supra, at 9-10. That Massachusetts does not choose to provide, free of cost, no-fault payments to injured nonresidents is not a reason for concluding that it must allow nonresidents to recover for pain and suffering in cases where its own citizens could recover only their actual losses. Since we see no constitutional infirmity in G. L. c. 231, Section 6D, the decision and order of the Appellate Division of the District Courts, Southern District, are affirmed.

So ordered.