Opinion
22-P-290
11-01-2022
MOUNT AUBURN HOSPITAL v. PROGRESSIVE DIRECT INSURANCE COMPANY.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
On March 22, 2018, Natalia Zapata was injured in a motor vehicle accident while driving a car owned by Leonardo O'Campo. Zapata was taken to Mount Auburn Hospital (the hospital) where she received treatment. The hospital billed her $1,758.71 for medical expenses, and it sought direct payment of that bill from O'Campo's motor vehicle insurer, Progressive Direct Insurance Company (Progressive). Specifically, the hospital claimed that Progressive was liable for those expenses under the personal injury protection (PIP) coverage provided by O'Campo's policy. The hospital brought the current action against Progressive after its bill went unpaid for over three months. It also alleged that Progressive's handling of the claim violated G. L. c. 93A, and G. L. c. 176D. A District Court judge allowed Progressive's motion for summary judgment, and a panel of the Appellate Division of the District Court affirmed. We affirm the decision of the Appellate Division.
Background.
O'Campo purchased from Progressive a standard Massachusetts automobile insurance policy that included $8,000 in coverage for PIP benefits. However, it also included an $8,000 deductible that applied to O'Campo and members of his household. As a result, if Zapata was a member of O'Campo's household, Progressive faced no liability for her medical expenses. The driver of another car involved in the accident notified Progressive of the incident on March 27, 2018 (that is, five days after the accident). Thereafter, Progressive made numerous attempts to contact both O'Campo and Zapata to discuss the accident and potential coverage. According to an unchallenged affidavit, between March 28, 2018, and May 17, 2018, Progressive tried to contact O'Campo twice by email, three times by letter, and eight times by phone. During the last attempt to reach him by phone, O'Campo hung up after the caller identified that he or she was calling from Progressive. With respect to attempts to reach Zapata, between April 4, 2018, and May 17, 2018, Progressive mailed her correspondence on six occasions. As discussed below, while the hospital does not criticize Progressive's efforts to contact O'Campo, it contends that Progressive's efforts to contact Zapata were flawed in various respects. Through a contractor, the hospital sent Zapata's medical bill to Progressive on May 29, 2018. Just three days later, Progressive replied to the hospital, stating that no payment could be made because "[a] PIP application, Health Affidavit[,] and treatment notes has [sic] not yet been received." The hospital filed the current action on October 5, 2018.
Certain evidence in the record suggests that Zapata may well have been a member of O'Campo's household. We have not drawn that inference in Progressive's favor, however, because the case is currently before us on the allowance of Progressive's motion for summary judgment. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). At the same time, we note that the existence of such ready and available evidence underscores the legitimacy of Progressive's desire to investigate before paying the PIP claim.
On December 11, 2018, Progressive sent formal notice to Zapata requesting that she appear for an examination under oath (EUO) on January 3, 2019, and that she bring certain documents at that time. By letter dated December 26, 2018, a lawyer responded on behalf of both Zapata and O'Campo. That letter stated that his clients were "withdrawing any and all claims relating to the 3/22/18 accident [and] will not be attending the scheduled EUO's." The letter also instructed Progressive not to contact either individual again. Progressive informed the attorney that it nevertheless would convene the EUO as scheduled on January 3, 2019, and that Zapata was free to attend. Unsurprisingly, she did not do so. Progressive formally denied the claim based on Zapata's refusal to attend the EUO.
Discussion.
Progressive requested that Zapata submit to the EUO pursuant to the plain terms of O'Campo's policy. Zapata refused to cooperate, and pursuant to the express terms of the governing statute, "[n]oncooperation of an injured party shall be a defense to the insurer in any suit for benefits authorized by this section." G. L. c. 90, § 34M. See also Mello v. Hingham Mut. Fire Ins. Co., 421 Mass. 333, 337 (1995) ("by refusing to submit to its reasonable request for an examination under oath, the plaintiff materially breached the insurance policy, releasing [the insurer] from its obligations"); Hanover Ins. Co. v. Cape Cod Custom Home Theater, Inc., 72 Mass.App.Ct. 331, 336 (2008) (same).
The hospital is left to argue that Progressive is still liable despite Zapata's noncompliance with the EUO, because Progressive's own actions in investigating and handling the claim were unreasonable. In this vein, the hospital focuses on various potential flaws in the way that Progressive initially sought to contact Zapata. For example, the hospital faults Progressive for mailing its first four letters for Zapata to 12 Kushman Street in Revere (an address that apparently does not exist), instead of to 12 Cushman Avenue, Revere (the address that the hospital maintains is correct).
During oral argument, counsel for Progressive suggested that in using the wrong address, Progressive had relied on the address that had been provided in a claim form submitted by the Arlington Fire Department. While that form did in fact refer to Cushman Street (not Cushman Avenue), it did not misspell Cushman with a "K," and in any event, the record indicates that the claim form was received by Progressive after it had used the wrong address. We additionally note that although the hospital faults Progressive for not using the address included in its bill, that bill was not sent to Progressive until after the insurer mailed letters to the wrong address. How Progressive came to use the wrong address remains a mystery (as does how it eventually came to use the right address in its EUO request), but our decision does not require resolving this conundrum.
Certainly, Progressive's initial efforts were far from perfect, and especially given the procedural posture of this case (the appeal of the allowance of Progressive's motion for summary judgment), we assume that such efforts did not result in Progressive's first four letters reaching Zapata. However, we know that Progressive successfully contacted Zapata when it scheduled the EUO, because an attorney responded to that notice on her behalf. This renders any earlier problems with Progressive's efforts to contact her beside the point unless Progressive was so tardy in scheduling the EUO that it thereby forfeited its right to hold one.
The question is whether Progressive scheduled the EUO within a "reasonable time." Lorenzo-Martinez v. Safety Ins. Co., 58 Mass.App.Ct. 359, 364-365 (2003). Although reasonableness often turns on questions of fact, it can be resolved as a matter of law where uncontested facts warrant it. Id. at 364. Here, Progressive scheduled the EUO to be held approximately nine months after the accident and seven months after the hospital sent its bill. This is comparable to the time frames recognized as reasonable by the case law. See id. at 364 (EUO requested nine months after claim filed); Morales v. Pilgrim Ins. Co., 58 Mass.App.Ct. 722,723-724 (2003) (EUO scheduled just over a year after accident).
In addition, several factors reinforce the reasonableness of the timing here. First, even though -- as we assume arguendo -- Progressive's initial efforts to contact Zapata were flawed and unsuccessful, it remains true that those efforts were both extensive and prompt. Second, the separate prompt and extensive efforts to contact O'Campo were successful in reaching him, and his failure to respond to Progressive indicated his own intent not to cooperate, which provided Progressive an independent basis for disclaiming coverage. Third, although the hospital faults Progressive for doing little in the four months between the date it received the bill and the date the hospital filed suit, Progressive did notify the hospital that it was waiting for certain documents that apparently neither the hospital nor anyone else supplied.
It also bears noting that Progressive scheduled an EUO for O'Campo, who also failed to attend.
In sum, we conclude that, as a matter of law, the hospital cannot show that Progressive unreasonably delayed scheduling the EUO. It follows that Zapata's refusal to comply with the EUO provides Progressive with a defense to liability.
Given this conclusion, the hospital's appeal of the dismissal of its claims pursuant to G. L. c. 93A, and G. L. c. 176D, requires little discussion, because those claims presuppose Progressive's liability under O'Campo's policy. See Aguiar v. Generali Assicurazioni Ins. Co., 47 Mass.App.Ct. 687, 692 (1999) (absent insurer's liability under policy, alleged violations of G. L. c. 93A and G. L. c. 176D "fell away by derivation"). Putting aside various additional arguments that Progressive has made with respect to the statutes, the hospital simply cannot demonstrate that Progressive's handling of a claim for which no coverage has been shown constituted a violation under either statute. See Van Dyke v. St. Paul Fire &Marine Ins. Co., 388 Mass. 671, 678 (1983) (insurers have no obligation to settle claim where liability not reasonably clear). The Appellate Division properly affirmed the judgment in Progressive's favor.
We deny the hospital's request for appellate attorney's fees, which was based on the statutes.
Decision and order of the Appellate Division affirmed.
Milkey, Walsh & Hershfang, JJ.
The panelists are listed in order of seniority.