Opinion
13-P-1072
10-21-2014
JUDITH ORTIZ v. MASS MEDICAL SERVICES, INC.
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
The plaintiff appeals from a judgment, claiming error in the allowance, by a judge of the Superior Court, of the defendant's motion to dismiss the plaintiff's complaint against the defendant for violation of her right of privacy pursuant to G. L. c. 214, § 1B (privacy statute), and for violation of G. L. c. 93A, §§ 2, 9. Her complaint acknowledged that, as a claimant for benefits under the provisions of G. L. c. 90, § 34M, she must submit to a physical examination ordered by her automobile insurer, but alleged that such an examination must be conducted by a "physician" licensed under G. L. c. 112, §§ 2, 8A. However, since she was not examined by such a physician, the examination was deceptive and was a breach of her right of privacy, causing her harm. The judge dismissed her claim under the privacy statute on the ground that it was barred under G. L. c. 260, § 2A, the three-year statute of limitations applicable to tort claims; her claim under G. L. c. 93A was also dismissed as it failed to state a cause of action. We affirm.
We note the pendency of an unrelated case in the Supreme Judicial Court presenting similar issues. Flor Ortiz v. Examworks, Inc., docket no. SJC-11584.
Briefly, the plaintiff was injured in an automobile accident on April 30, 2009. Accordingly, she sought personal injury protection (PIP) benefits under the provisions of G. L. c. 90, § 34M, from her insurer, Commerce Insurance Co. (Commerce). Commerce then arranged with the defendant for a physical examination of the plaintiff as permitted by the statute.
The plaintiff's claims are based upon a notice that the defendant sent to her in July, 2009, that indicated she was going to be examined by a "physician" on August 6, 2009, pursuant to Commerce's request. This notice of examination from the defendant identified Eugene Boeglin as the "physician" who would conduct the examination. However, the record shows that he was not a medical doctor (M.D.) but was in fact a "doctor of physical therapy" (D.P.T.). On August 13, 2009, a Commerce representative sent the plaintiff's attorney a copy of Boeglin's report, dated August 7, 2009, concerning his examination of the plaintiff, as well as a summary of the report. This report identified Boeglin's credentials as a D.P.T. and did not identify him as being anything other than a licensed physical therapist. On September 5, 2012, Judith filed suit against the defendant.
"[T]he general rule for tort actions is that an action accrues when the plaintiff is injured." Koe v. Mercer, 450 Mass. 97, 101 (2007). However, courts have developed a discovery rule that establishes that "the limitations period in some tort cases does not commence until the connection between the defendant's actions and the plaintiff's alleged injury becomes either known or knowable." Doe v. Creighton, 439 Mass. 281, 283 (2003). "Under this discovery rule, the statute of limitations starts when the plaintiff [1] discovers, or [2] reasonably should have discovered, 'that [he] has been harmed or may have been harmed by the defendant's conduct.'" Passatempo v. McMenimen, 461 Mass. 279, 293-294 (2012), quoting from Koe v. Mercer, supra. "The standard for evaluating whether a plaintiff's lack of knowledge is objectively reasonable is that of 'a reasonable person who has been subjected to the conduct which forms the basis for the plaintiff's complaint.'" Koe v. Mercer, supra at 103, quoting from Riley v. Presnell, 409 Mass. 239, 245 (1991). See Doe v. Creighton, supra at 283-284.
Generally, what a plaintiff knew or should have known at a given point in time is a factual issue that should not only survive a motion to dismiss, but be decided by the trier of fact. Riley v. Presnell, supra at 240. However, a judge can still determine, as matter of law, whether the plaintiff's complaint demonstrated sufficient heft to plausibly show that the plaintiff's lack of knowledge was objectively reasonable. See Koe v. Mercer, supra at 101, citing Doe v. Creighton, supra at 284. The judge concluded, correctly in our view, that the August 13, 2009, documents sent to the plaintiff's counsel provided the type of "suspicious circumstances" that impose upon a reasonably prudent person a duty of inquiry to discover whether Boeglin was not a "physician" licensed pursuant to G. L. c. 112, § 2. Bowen v. Eli Lilly & Co., 408 Mass. 204, 208 (1990). Since the plaintiff did not file suit until September, 2012, the judge correctly determined that the plaintiff's claim was barred by the statute of limitations.
See Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) ("What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief, in order to 'reflect[] the threshold requirement of [Fed.R.Civ.P. 8(a)(2)] that the "plain statement" possess enough heft to "sho[w] that the pleader is entitled to relief"'").
Turning to the plaintiff's claim under G. L. c. 93A, the judge's decision correctly noted that the defendant owed no duties to the plaintiff under the provisions of G. L. c. 90, § 34M, as that statute applies solely to the automobile insurer and, as such, it cannot serve as an underlying basis of a claim under c. 93A. Consequently, the plaintiff's claim against the defendant must rest solely upon the notice the defendant sent in which Boeglin was identified as a "physician." Even if that fact alone gives rise to a sufficient allegation of an unfair or deceptive act or practice in violation of the statute, the judge concluded that the plaintiff failed to allege some kind of "separate, identifiable harm arising from the violation itself." Tyler v. Michaels Stores, Inc., 464 Mass. 492, 503 (2013).
"[U]nder c. 93A, § 9, a plaintiff must prove causation — that is, the plaintiff is required to prove that the defendant's unfair or deceptive act caused an adverse consequence or loss." Rhodes v. AIG Domestic Claims, Inc., 461 Mass. 486, 496 (2012). Here, the plaintiff makes no allegation that Boeglin improperly conducted the examination, or was unprofessional, or somehow caused her to suffer some injury or loss independent of the purported per se statutory violation of G. L. c. 90, § 34M, which we have already determined only applies to the insurer, Commerce. She also does not contend that she would have refused to attend the examination, and therefore be denied PIP benefits, if she had known Boeglin was not a physician. In Hershenow v. Enterprise Rent-A-Car Co. of Boston, Inc., 445 Mass. 790, 798-799 (2006), the Supreme Judicial Court made clear that "a plaintiff seeking a remedy under G. L. c. 93A, § 9, must demonstrate that even a per se deception caused a loss." Given that the plaintiff's complaint failed to allege a causal relationship between the wrongful conduct and any harm suffered, the judge rightfully dismissed her claim.
Judgment affirmed.
By the Court (Kantrowitz, Berry & Fecteau, JJ.),
Clerk Entered: October 21, 2014.