AMERICO MELLO & another [Note 1] vs. HINGHAM MUTUAL FIRE INSURANCE COMPANY.

FRIED, J. The plaintiffs, Americo and Maria Mello, commenced this action against Hingham Mutual Fire Insurance Company (Hingham) in the Superior Court on April 26, 1994, to recover policy proceeds for fire loss. Hingham moved for summary judgment alleging that Americo Mello's failure to submit to an examination under oath, as required both by the policy and G. L. c. 175, Section 99, Twelfth (1994 ed.), constituted a material breach of the fire insurance policy, thus barring recovery under the policy. The plaintiff asserted that his refusal to submit to the examination was justified because he had become the subject of a criminal investigation for arson in connection with this fire. The plaintiff contends that the privilege against self-incrimination as protected by art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Fifth Amendment to the United States Constitution justifies his refusal to submit to such an examination.

On October 27, 1994, a Superior Court judge granted Hingham's motion for summary judgment. The plaintiffs have appealed. We granted their application for direct appellate review.

I.

The record on which the Superior Court judge granted summary judgment reveals the following facts. Hingham issued a policy to the plaintiffs effective September 4, 1992, insuring their residence. On September 25, 1992, a fire of undetermined origin broke out in the plaintiffs' residence. On that day, Hingham received oral notice of loss and commenced an investigation. In addition, the Danvers police and the Massachusetts State police began investigations into what they deemed a suspicious fire. The law enforcement authorities immediately informed Hingham that the plaintiff was a suspect in their respective investigations. Four days later, Hingham sent the plaintiffs notice of the cancellation of their policy, effective October 9, 1992. [Note 2]

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Pursuant to its investigation, on November 10, 1992, Hingham requested that plaintiff submit to an examination under oath, as required by the policy. [Note 3] He initially agreed to an examination. The plaintiff, however, postponed the examination on two occasions: the first to accommodate his attorney and the second to allow him the opportunity to retain a criminal attorney. On February 23, 1993, Hingham requested that the plaintiff submit to an examination within thirty days. His attorney responded by asking why such an examination was necessary. Hingham, by letter, explained that it required the sworn statement to complete its investigation and determine whether to pay the claim. The plaintiff's attorney responded on March 22, 1993, by asserting the plaintiff's constitutional privilege against self-incrimination.

On March 29, 1993, Hingham demanded that the examination take place before April 30, 1993. The plaintiff declined. On May 3, 1993, Hingham denied coverage for the fire loss.

II.

The plaintiffs raise two issues on appeal. First, the plaintiffs contend that, because the plaintiff was a subject of an on-going criminal investigation concerning the fire, his privilege against self-incrimination, as guaranteed by art. 12 and the Fifth Amendment, excused him from providing a statement under oath to Hingham as required by the insurance policy concerning the circumstances surrounding the fire.

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Second, the plaintiffs suggest that prior to the refusal to submit to the statement under oath, Hingham had materially breached the policy by improperly cancelling it.

A.

General Laws c. 175, Section 99 (1994 ed.), prescribes a statutory form for fire insurance policies. The statute sets out the insured's duty to cooperate in two sentences reprinted in the margin. [Note 4] Prior to our decision in Johnson Controls, Inc. v. Bowes, 381 Mass. 278 (1980), the satisfaction of the insured's duties embodied in this cooperation clause was a condition precedent to the insurer's liability under the policy. Thus, the insured's failure to provide notice of loss or a sworn statement of loss within the time period allotted in the policy released the insurer from its obligations under the contract. See, e.g., Romanos v. Home Ins. Co., 355 Mass. 499, 501-502 (1969); Rose v. Regan, 344 Mass. 223, 226 (1962).

In 1980, our decision in Johnson Controls, Inc. v. Bowes, supra, "modified the common law in this area by adding prejudice requirements in the contexts of notice provisions." Darcy v. Hartford Ins. Co., 407 Mass. 481, 489 (1990). We reasoned that the notice provision of insurance policies should no longer be strictly construed as a condition precedent to the insurer's liability. Johnson Controls, Inc. v. Bowes, supra at 282. Instead, the insurer must establish "both that the notice provision was in fact breached and that the breach resulted in prejudice to its position," for its obligations

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to be discharged. Id. See Darcy v. Hartford Ins. Co., supra at 490-491.

Our decision in Johnson Controls, however, affected only the notice provisions of the G. L. c. 175, Section 99's duty to cooperate. The second sentence of the statutory provision addresses the insured's responsibilities during the investigation: "as often as may be reasonably required" by the insurer, the "insured . . . shall . . . submit to examinations under oath." The statute contemplates that the insurer, when it determines that an examination is reasonable, may require that the insured submit to such an examination under oath.

It is the law in most jurisdictions that the submission to an examination, if the request is reasonable, is strictly construed as a condition precedent to the insurer's liability. See 13A G. Couch, Insurance Section 49A:361 (2d ed. 1982 & Supp. 1994); 5A J.A. Appleman & J. Appleman, Insurance Law and Practice Section 3549 (1970 & Supp. 1994). See also Pervis v. State Farm Fire & Casualty Co., 901 F.2d 944, 946-947 (11th Cir.), cert. denied, 498 U.S. 899 (1990); Allstate Ins. Co. v. Longwell, 735 F. Supp. 1187, 1193-1195 (S.D.N.Y. 1990); Standard Mut. Ins. Co. v. Boyd, 452 N.E.2d 1074, 1077 (Ind. Ct. App. 1983), and cases cited. This court agrees with these authorities. [Note 5] In this case, Hingham's request was reasonable, and refusal to submit to an examination may have significantly hampered its ability to investigate the fire and assure itself that the plaintiff had not set the fire. The notification from the Danvers and State police that the plaintiff was being investigated on suspicion of arson understandably raised that concern for Hingham. Therefore, unless the privilege against self-incrimination excuses the plaintiff's failure to comply with Hingham's request, by refusing to submit to its reasonable request for an examination under oath, the plaintiff materially breached the insurance policy, releasing Hingham from its obligations.

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The plaintiff, though, asserts that the privilege against self-incrimination excuses his compliance with the statement under oath clause. The privilege is contained in art. 12 and the Fifth Amendment. Article 12 provides that "[n]o subject shall . . . be compelled to accuse, or furnish evidence against himself . . . ." The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." One who invokes the privilege cannot be penalized for that assertion lest the penalty create an impermissible compulsion to testify. See, e.g., G. L. c. 233, Section 20, Third (1994 ed.) (failure of defendant to take the stand "shall not create any presumption against him"); Commonwealth v. Smith, 387 Mass. 900, 908-909 (1982) (impermissible to argue to jury that they should draw adverse inferences from defendant's invocation of his privilege against self-incrimination). "Yet not every undesirable consequence which may flow from the exercise of the privilege against self-incrimination can be characterized as a penalty." Flint v. Mullen, 499 F.2d 100, 104 (1st Cir.), cert. denied, 419 U.S. 1026 (1974), quoted in Wansong v. Wansong, 395 Mass. 154, 157-158, cert. denied, 474 U.S. 1014 (1985). See also Opinion of the Justices, 412 Mass. 1201, 1208 n.6 (1992) (recognizing that some measure of compulsion to provide incriminating evidence is permitted without offending the privilege against self-incrimination).

A person may not seek to obtain a benefit or to turn the legal process to his advantage while claiming the privilege as a way of escaping from obligations and conditions that are normally incident to the claim he makes. This principle holds true particularly where the benefit he seeks is from another private party, who is being asked to make good on its obligation forgoing the countervailing advantages that were part of the bargain. See, e.g., Matter of Kenney, 399 Mass. 431, 437-442 (1987) (upholding enforcement of a subpoena requiring attorney to produce possibly incriminating "required records"); Wansong v. Wansong, supra (upholding discovery sanction against party in a divorce proceeding who invoked his privilege against self-incrimination as to questions about

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relationship with another woman); United States Trust Co. v. Herriott, 10 Mass. App. Ct. 313, 316-320 (1980) (denial of continuance in civil case where defendant simultaneously subjected to a State grand jury investigation in New York). The principle holds true even where the State is also a party to the transaction. In seeking a license, applying for a position, claiming a benefit or even an entitlement, it has never been imagined that a citizen may at one and the same time make a demand on the government and refuse to supply the information that would authenticate it. See, e.g., Department of Revenue v. B.P., 412 Mass. 1015, 1016 (1992) (compelling putative father in paternity action to submit to testing or be subject to sanctions did not violate privilege); Custody of Two Minors, 396 Mass. 610, 616-617 (1986) (permitting trial judge to draw negative inferences from parents' refusal to testify in a care and protection proceeding); Stornanti v. Commonwealth, 389 Mass. 518, 521-527 (1983) (upholding a civil contempt order for failure to produce possibly incriminating "required records" where creator of the records voluntarily participated in Medicaid program). Even in the situation where the State seeks to compel speech, this court has held that the privilege does not insulate a claimant from being adversely impacted by a decision to remain silent, although the resulting evidence may not itself be introduced in evidence in a subsequent criminal proceeding. See, e.g., Opinion of the Justices, supra at 1208 n.6 (upholding 120-day suspension of driver's license for refusal to take breathalyzer test); Broderick v. Police Comm'r of Boston, 368 Mass. 33, 37-44 (1975), cert. denied, 423 U.S. 1048 (1976) (upholding use of questionnaire that invited potentially incriminating answers where refusal to answer resulted in dismissal from employment).

Indeed, even in the criminal process, a defendant cannot turn the legal process to his advantage by asserting this privilege. See, e.g., Blaisdell v. Commonwealth, 372 Mass. 753, 766 (1977) (where defendant voluntarily submits to psychiatric examination and offers those results at trial, he cannot, by asserting his privilege against self-incrimination, refuse to

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undergo a court-ordered psychiatric examination). A defendant may not seek to avail himself of his constitutional right to testify in his own behalf in order to offer, for instance, an alibi that only he could know of, without at the same time losing the protection of the privilege and opening himself to cross-examination. See Jones v. Commonwealth, 327 Mass. 491, 493-494 (1951); P. J. Liacos, Massachusetts Evidence Section 13.13.5, at 799 (6th ed. 1994).

With this as background we turn to the plaintiffs' claim. They argue that the Superior Court's allowance of Hingham's motion for summary judgment imposed an impermissible penalty upon the plaintiff for asserting his privilege against self-incrimination. We disagree. Where the undesirable consequences arise from the claimant's own voluntary actions, the privilege against self-incrimination cannot be used to extricate the claimant from such a dilemma of his own making. The plaintiff voluntarily entered into the contract with Hingham, another private party. Hingham obligated itself to perform duties, some of which were contingent on the plaintiff's actions. The plaintiffs made a claim against Hingham for coverage, and Hingham asks that the plaintiff keep his part of the bargain even if it may harm his interests in the criminal investigation. A dilemma this may be, but it is not of Hingham's or the Commonwealth's making anymore than it is a dilemma of the Commonwealth's making when an accused must choose between forfeiting the opportunity to speak in his own behalf and subjecting himself to cross-examination. Thus, it is not by the Commonwealth or by Hingham that the plaintiff "is compelled to . . . furnish evidence against himself," but by his own contractual undertaking. [Note 6] Therefore, we hold that the grant of summary judgment

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by the Superior Court is a permissible consequence of the plaintiff's assertion of the privilege. [Note 7]

B.

The plaintiffs seek to blunt the force of this argument by two narrower suggestions. First, they propose that the insurer might have waited until the completion of the criminal proceedings -- which, after all, did result in a verdict of acquittal in the arson prosecution -- before requiring the plaintiff to respond under oath to the insurer's inquiries. This is only a less extreme version of the plaintiffs' principal contention that the insurer's contractual right to the insured's full cooperation must yield to the insured's concerns about self-incrimination. The insurer's contractual right is to determine promptly -- while the evidence and memories are still fresh -- the validity of any loss for which it might become liable. The insurer is under a corresponding duty to pay any claim promptly, and if it is later found to have inappropriately delayed or withheld payment, it may significantly increase its own liability. See G. L. c. 176D, Section 3 (9) (1994 ed.) (prohibiting unfair or deceptive acts or practices in the business of insurance); G. L. c. 93A, Section 9 (1994 ed.) (civil cause of action for persons injured as a result of a c. 176D violation with the possibility of recovering trebled damages and attorney's

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fees). See also Jacobs v. Town Clerk of Arlington, 402 Mass. 824, 828-829 (1988); Van Dyke v. St. Paul Fire & Marine Ins. Co., 388 Mass. 671, 675-678 (1983). In these circumstances, the insurer should not have to delay its investigation for an indeterminate and possibly lengthy period to comport with the interests of the insured.

Second, it has been suggested that the plaintiff's concerns could have been accommodated if the insurer had been content to question only Mrs. Mello under oath, since she had not been told that she was under criminal investigation. Our response to this contention is similar to the one above. The insurer is contractually bound to both the plaintiffs and contractually entitled to pursue its investigation by requesting an inquiry of either. It was free to choose whomever or both of the insureds it believed could assist in that investigation.

Finally, the plaintiffs complain that the insurer and the law enforcement authorities were working "hand-in-glove," suggesting that the insurer's demand under the statute and the policy was a mere pretext for assisting law enforcement authorities with their investigation. [Note 8] The record and the plaintiffs' allegations go no further, however, than to show that the law enforcement authorities and the insurer were aware of each other's investigations and were keeping each other informed of their respective progress. Indeed, there is no support in the record for a suggestion that Hingham was doing anything other than acting reasonably to protect its interests. The insurer, like any citizen who has information relevant to an on-going criminal investigation, has the right (unless there exists a confidential or other special relationship) and sometimes the duty to give law enforcement authorities any information that may be of assistance. If that is all the plaintiffs are complaining about, giving any weight to their complaint on this score would have the unacceptable entailment that the insurer, by pursuing its contractual right,

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would be disabled from cooperating with law enforcement authorities in ways open to any other citizen.

III.

As an alternative basis for reversal of the Superior Court's order, the plaintiffs suggest that Hingham, by its cancellation of the policy, was the first to breach materially the insurance contract. General Laws c. 175, Section 99, and the policy, however, authorize Hingham's cancellation of the policy. The policy, adopting the language of the statute, states: "When this policy has been in effect for less than 60 days we may cancel for any reason, other than nonpayment of premium, by notifying you at least 5 days before the date of cancellation takes effect." The policy also prescribes the method for delivery and form of the notice.

Hingham complied with the requirements of the policy and the statute. The policy period commenced on September 4, 1992. Hingham sent notice of cancellation on September 29, 1992, to be effective on October 9, 1992. At that time, Hingham also refunded the excess premium paid by the plaintiffs as required by the statute. See G. L. c. 175, Section 99, Twelfth. Therefore, Hingham's cancellation of the policy was not a breach, material or otherwise, of the policy's provisions.

IV.

For the reasons stated in this opinion, the Superior Court's order granting summary judgment for Hingham is affirmed.

So ordered.