Opinion
13-P-1898
02-27-2015
NATALY MINKINA v. MEDICAL PROFESSIONAL MUTUAL INSURANCE COMPANY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Nataly Minkina (Minkina) appeals from the allowance of the defendant's motion to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974). We affirm dismissal of counts I, II and V, and reverse the dismissal of counts III and IV.
Background. We summarize the allegations of the complaint in the light most favorable to Minkina. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008). Minkina, a physician, was insured by the defendant, Medical Professional Mutual Insurance Company (insurer), while employed at Blue Hill Medical Associates (Blue Hill) between August, 2000, and August, 2002. In April of 2002, Minkina saw patient Leslie DeThomaso (DeThomaso) at Blue Hill when the patient's primary care physician at the practice, Dr. Singh, was unavailable. During DeThomaso's visit she alerted Minkina of a lump in her right breast. Minkina arranged for DeThomaso to have an ultrasound and mammogram. The radiologist, Dr. Koroshetz, reported normal test findings and subsequently submitted a final report negative for abnormalities on May 27, 2002. Minkina relayed these findings to DeThomaso, advised her to schedule a follow-up appointment with Dr. Singh and to schedule yearly mammograms, but did not suggest further testing or biopsy of the lump. Minkina left Blue Hill shortly after DeThomaso's visit.
DeThomaso was subsequently diagnosed with stage IV breast cancer and filed a medical malpractice suit against Minkina and six others in June, 2007. In December, 2008, the insurer settled the medical malpractice action on behalf of its insureds, including Minkina. The insurer allotted thirty percent liability to Minkina, sixty percent liability to Blue Hill, and ten percent liability to a nurse practitioner at Blue Hill. No fault was allotted to Dr. Singh or Dr. Koroshetz. Minkina claims that the insurer engaged in a bad faith allocation in order to serve its own economic interests by shifting fault for the claim from its insureds, Drs. Singh and Koroshetz, to her.
In December, 2012, Minkina filed suit against the insurer alleging breach of contract (count I), breach of fiduciary duty (count II), breach of the covenant of good faith and fair dealing (count V), and violations of G. L. c. 93A and c. 176D (count IV), and requesting declaratory relief pursuant to G. L. c. 231A, § 1 (count III). She claims that the liability allocation damages her reputation in the eyes of patients and employers, and causes economic loss due to lost earning capacity and increased premiums. A judge of the Superior Court dismissed the complaint, concluding that the immunity provisions of G. L. c. 112, § 5C, barred Minkina's claims and that the complaint contained insufficient allegations to support the causes of action. Minkina appealed. We affirm in part and reverse in part
Discussion. "We review the allowance of a motion to dismiss de novo" under now familiar standards. Harrintgon v. Costello, 467 Mass. 720, 724 (2014), citing Iannacchino v. Ford Motor Co., supra.
1. Breach of contract. Allocation of liability is not expressly referenced anywhere in the policy language, nor are there allegations that establish allocation was an implied term of the contract. See Bernard v. Cameron & Colby Co., 397 Mass. 320, 322-323 (1986). In the absence of any allegations suggesting the insurer's assent to any implied conditions regarding allocation of liability, see id. at 322, the pleadings fail to state a claim that Minkina is entitled to relief on the breach of contract claim.
2. Breach of implied duty of good faith and fair dealing. The covenant of good faith and fair dealing may not "be invoked to create rights and duties not otherwise provided for in the existing contractual relationship, as the purpose of the covenant is to guarantee that the parties remain faithful to the intended and agreed expectations of the parties in their performance." Uno Restaurants, Inc. v. Boston Kenmore Realty Corp., 441 Mass. 376, 385 (2004). As noted above, the pleadings fail to provide sufficient allegations that allocation was either an express or implied part of the contract between Minkina and the insurer. This count of the complaint therefore fails to state a claim.
3. Breach of fiduciary duty. Minkina did not argue in her appellate brief that the insurer was acting in its fiduciary capacity when it allocated liability. The argument is waived. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 55 (2013); Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
4. Chapter 93A and declaratory judgment. Fairly read, Minkina claims that the insurer engaged in bad faith settlement practices by settling the case and manipulating the allocation of liability in the interest of its clients and its own bottom line. Although these allegations are a slim reed, we think them sufficient to state a claim, since whether the allocation process is part of or separate from settlement practices (as contemplated by G. L. c. 176D, § [3][9]) is in part a question of fact which cannot be resolved on a motion to dismiss. See generally Hartford Cas. Ins. Co. v. New Hampshire Ins. Co., 417 Mass 115, 123 (1994).
Minkina concedes that the insurer has the unilateral right to settle the claim. She challenges only the allocation, claiming that the allocation was an unfair settlement practice under G. L. c. 176D, § 9.
The insurer urges us to affirm the dismissal as a matter of law on the authority of the immunity provisions of G. L. c. 112, § 5C. The insurer claims that Minkina's damages, if any, are attributable to the insurer's report to the board of registration in accordance with § 5C, a report which makes the allocation of liability available to the general public. However, the complaint does not allege damages attributable solely to reporting. See generally, Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91 (2011). In any event, the parties failed to bring the provisions of G. L. c. 112, § 5G(b) to the attention of the motion judge. While the insurer contests the applicability of § 5G(b) to immunity under § 5C, we believe that question is better resolved based on a factual record after full briefing in the Superior Court.
The insurer claims that the argument is therefore waived on appeal. It is the obligation of counsel to both parties to bring potentially controlling authority to the attention of the motion judge. In the exercise of our discretion, we decline to treat the argument as waived.
Conclusion. We affirm the judgment insofar as it dismisses counts I, II, and V. We reverse the judgment insofar as it dismisses counts III and IV and remand for further proceedings on those counts.
So ordered.
By the Court (Graham, Brown & Sullivan, JJ.),
Justice Graham participated in the deliberation on this case prior to his retirement.
The panelists are listed in order of seniority.
--------
Clerk Entered: February 27, 2015.