Opinion
11-P-724
03-08-2012
ELECTRIC INSURANCE COMPANY v. FAST TRACK PHYSICAL THERAPY, INC., & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This action for declaratory relief was brought by an insurer, Electric Insurance Company (Electric), against a medical provider and the plaintiff's insured, seeking a declaration to the effect that the insurer has no duty to pay its insured's medical bills. Summary judgment was entered in favor of the insurer. The defendant Fast Track Physical Therapy, Inc. (Fast Track), the medical provider, alleges that the motion judge erred by denying its motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(1), 365 Mass. 754 (1974), and 12(b)(9), as amended, 450 Mass. 1403 (2008). We affirm.
Background. On December 17, 2006, Joseph Banh was involved in an automobile accident. He received treatment from Fast Track. Electric was informed of Banh's personal injury. After Banh refused to provide a recorded statement of the accident, Electric scheduled two separate examinations under oath, which is authorized by a provision in the insurance policy. Banh failed to attend either of the examinations. As a result of his noncooperation, Electric denied Banh's claim.
Fast Track filed a debt collection action against Electric in the Lowell District Court alleging breach of contract, breach of the personal injury protection (G. L. c. 90, § 34M), violation of G. L. c. 93A, and damages up to $24,000. In response, Electric answered the complaint and simultaneously filed a declaratory judgment action in the Superior Court against Banh and Fast Track.
In its answer in the District Court action, Electric denied liability and included affirmative defenses.
Discussion. Upon review of the record appendix and briefs, we conclude that the Superior Court judge appropriately granted summary judgment in favor of the insurer. We reject Fast Track's assertion that the judge had no authority to hear Electric's request for declaratory relief in light of Fast Track's pending action in the District Court.
The Superior Court possesses the authority to grant declaratory judgment, regardless of the amount in controversy. See G. L. c. 231A, § 1; G. L. c. 218, § 19C; Zizza v. Zizza, 456 Mass. 401, 407-408 (2010).
At the outset we note that Fast Track failed to include all necessary parties in the District Court action. See National Lumber Co. v. Canton Inst. for Sav., The Bank of Canton, 56 Mass. App. Ct. 186, 187 (2002) (a counterclaim is compulsory only if it 'requires neither the presence of additional parties nor adjudication in another county or judicial district'); G. L. c. 231A, § 8. As not all parties were named, Electric could not be obligated to file a compulsory counterclaim. Furthermore, Electric's suit did not arise from the same transaction, as required to be deemed a counterclaim compulsory under Mass.R.Civ.P. 13(a). Ibid. Electric's action sought coverage determination which is distinguishable from Fast Track's action for debt collection. See Volpe Constr. Co. v. Trustees of Tufts College, 1 Mass. App. Ct. 38, 39-41 (1973).
Banh, the insured, was not a party to the suit.
The motion judge appropriately granted summary judgment in favor of Electric. 'The purpose of the Declaratory Judgment Act is to afford a plaintiff relief from uncertainty and insecurity with respect to rights, duties, status, and other legal relations.' Nelson v. Commissioner of Correction, 390 Mass. 379, 388 (1983). 'A declaratory judgment in an action provides an appropriate means of deciding a dispute concerning the meaning of language in an insurance policy.' Lumbermens Mut. Cas. Co. v. Belleville Indus., Inc., 407 Mass. 675, 685 (1990). Here, Fast Track cannot demonstrate that Banh cooperated with the provisions of the insurance policy. It is undisputed that Banh failed to attend two mandatory examinations under oath. The judgment of the Superior Court is not to be disturbed. See Highlands Ins. Co. v. Aerovox, Inc., 424 Mass. 226, 232 (1997).
Although some evidentiary objections were made, Banh never objected to the two notices of examination or contested the insurer's refusal to cover. See Lorenzo-Martinez v. Safety Ins. Co., 58 Mass. App. Ct. 359, 362-363 (2003).
See G. L. c. 90, § 34M.
Electric has requested an award of appellate attorney's fees under G. L. c. 231, § 6F. Appellate courts are authorized to award single or double costs to an appellee in civil cases where the appeal is frivolous, immaterial, or intended for delay. See Avery v. Steele, 414 Mass. 450, 454 (1993). On the basis of the record before us, we do not find that relief pursuant to G. L. c. 231, § 6F, is warranted. However, because the appeal is frivolous, in accordance with Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), we award double costs. The judgment is affirmed.
'When the law is well settled, when there can be no reasonable expectation of a reversal, an appeal is frivolous.' Allen v. Batchelder, 17 Mass. App. Ct. 453, 458 (1984).
So ordered.
By the Court (Graham, Brown & Meade, JJ.),