Opinion
No. 12–P–1230.
2013-05-6
Maria DUARTE & another v. Loretta BALLKISHUM.
By the Court (GRASSO, KATZMANN & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs appeal from an amended judgment that reduced the amounts the jury awarded them in their negligence action by the respective amounts received in personal injury protection (PIP) benefits from their insurer. We affirm.
1. Background. The plaintiffs, who were passengers in a motor vehicle insured by Arbella Mutual Insurance (Arbella), sustained injuries when a vehicle driven by the defendant and insured by Travelers Insurance Company (Travelers), struck their vehicle. Arbella paid PIP benefits to each of the plaintiffs. A jury awarded the plaintiffs damages for their injuries and medical costs. Before judgment entered, the defendant moved to reduce the damages awarded by the amounts paid by Arbella in PIP benefits. The trial judge initially denied the motion without prejudice. After additional briefing from the parties, the judge entered an amended judgment that reduced the jury verdict by the amount of PIP benefits received. We discern no error. 2. Discussion. The governing statute clearly supports the judge's determination that the defendant is entitled to an offset of PIP benefits from the jury award of damages. General Laws c. 90, § 34M, inserted by St.1970, c. 670, § 4, provides in pertinent part:
“Every motor vehicle liability policy ... shall provide personal injury protection benefits.... [PIP benefits] are granted in lieu of damages otherwise recoverable by the injured person or persons in tort as a result of an accident occurring within this commonwealth.
“Every owner ... of a motor vehicle to which [PIP] benefits apply who would otherwise be liable in tort ... is ... exempt from tort liability for damages because of bodily injury ... to the extent that the injured party is ... entitled to recover under those provisions of a motor vehicle liability policy ... that provide [PIP] benefits.... [I]f any person claiming or entitled to [PIP benefits] ... brings ... an action in tort ... the amounts then due shall be reduced to that extent that damages for expenses and loss otherwise recoverable as a personal injury protection benefit are included in any such ... judgment.”
There is no dispute that the defendant is an owner of a motor vehicle to which PIP benefits apply, that the accident occurred in the Commonwealth, and that the plaintiffs received PIP benefits. The PIP offset clearly accords with the terms of the statute, as the statute imposes no requirement that the PIP benefits be paid by the defendant's insurer rather than the plaintiffs' insurer.
There is no merit to the plaintiffs' contention that the defendant was too late in her motion for an offset. The defendant made the motion after the jury answered the special questions, but prior to the conclusion of the trial and the entry of judgment.
Similarly unpersuasive is the plaintiffs' claim that the defendant should have requested a PIP offset before the case went to the jury because the jury were not made aware of the PIP coverages or benefits in arriving at the damage awards. There is no requirement that the jury be made aware of the PIP coverages and benefits. The PIP coverages and benefits awarded are irrelevant to the jury's determination of liability and the damages sustained by the plaintiffs and would not be a proper basis for the jury's determination of damages. See Goldstein v. Gontarz, 364 Mass. 800, 808–809 (1974); Law v. Griffith, 457 Mass. 349, 355 (2010), citing Goldstein, supra at 809 (“information about ... receipt of insurance or other compensation for ... injury ... legally irrelevant because, under collateral source rule, ‘outside source’ compensation does not reduce defendant's liability”). Indeed, the applicability and amount of the statutory PIP offset operates independently of the jury's assessment of liability and damages, need not be made part of the trial evidence, and is best resolved by the trial judge upon motion in consideration of the material before him. We are unpersuaded that the reasoning of Mester v. Barrett, 1995 Mass.App. Div. 38 (1995), and Clinton v. McLaughlin, 1998 Mass.App. Div. 122 (1998), suggests a different result.
Finally, we reject the plaintiffs' contention that reducing the jury verdict unjustly enriches the defendant's insurance company. The argument is not supported by citations to any legal authorities. Cameron v. Carelli, 39 Mass.App.Ct. 81, 85–86 (1995). Moreover, the argument runs contrary to the legislative judgment embodied in G.L. c. 90, § 34M, that “[d]etermination as to whether any insurer is legally entitled to recover any such expense from another insurer shall be made by agreement between the involved insurers, or, if they fail to agree, by arbitration in accordance with the provisions of the General Laws.”
Pursuant to the above provision, Arbella and Travelers submitted the question to arbitration and are bound by the arbitrator's decision in favor of Travelers.
Amended judgment affirmed.
Order denying motion for reconsideration affirmed.