Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group
17 N.E.3d 1056
Mass.2014Background
- Barron Chiropractic treated Nicole Jean-Pierre after an August 20, 2008 automobile accident; Jean-Pierre's insurer was Norfolk & Dedham Group, which provides PIP benefits under G. L. c. 90, § 34M.
- Norfolk requested an independent medical examination (IME) and relied on the IME and a BME fee analysis to limit payment; Norfolk paid most but disputed $1,544.05 of Barron’s bill.
- Barron filed suit in District Court on November 25, 2009 under G. L. c. 90, § 34M to recover the disputed PIP amount plus costs and attorney’s fees; it also asserted claims under G. L. c. 93A for unfair practices.
- Six days before trial, Norfolk mailed Barron a check for the disputed $1,544.05 labeled "full and final settlement"; Barron refused the tender and returned the check.
- Norfolk moved for summary judgment; the District Court (and Appellate Division) granted it on both § 34M and G. L. c. 93A claims. The Supreme Judicial Court granted direct review.
- The SJC vacated summary judgment as to the § 34M claim (remanding for trial) and affirmed summary judgment for Norfolk on the c. 93A claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a claimant who has sued under § 34M may refuse an insurer's post-suit tender and still pursue recovery of benefits, costs, and attorney's fees | Barron: common-law contract rules allow rejection of a late tender; refusing preserves status as an "unpaid party" and right to recover fees and costs if judgment obtained | Norfolk: Fascione requires that a full post-suit tender extinguishes the § 34M claim even if rejected, so summary judgment was proper | Court: A late tender after the 30-day statutory period is ineffective to bar suit; claimant may refuse and pursue judgment (vacated summary judgment on § 34M) |
| Whether Fascione prevents a claimant from recovering fees when it rejects a full post-suit tender | Barron: Fascione applies only when claimant accepts tender; rejection leaves § 34M remedies intact | Norfolk: Fascione should be read to extinguish claims once full payment is tendered post-suit | Court: Fascione holds that acceptance of a full tender extinguishes the claim; it does not require acceptance and does not deprive claimant who rejects tender of § 34M remedies |
| Whether common-law tender principles govern § 34M actions | Barron: § 34M actions are "actions in contract" and thus governed by contract law, including timeliness of tender | Norfolk: (implicit) statutory scheme should limit remedies after tender per Fascione | Court: § 34M references "action in contract," so common-law contract tender rules apply; late tender is ineffective |
| Whether summary judgment on c. 93A claims was improper because factual disputes exist | Barron: alleged unfair practices and bad faith; summary judgment premature | Norfolk: provided affidavits and evidence of good-faith claims handling; no material factual dispute shown by Barron | Court: Affirmed summary judgment for Norfolk because Barron failed to identify specific disputed material facts or submit counterevidence |
Key Cases Cited
- Fascione v. CNA Ins. Cos., 435 Mass. 88 (holding that acceptance of a full post-suit PIP tender extinguishes § 34M claim and bars recovery of fees)
- Boehm v. Premier Ins. Co., 446 Mass. 689 (§ 34M actions are "actions in contract," so contract principles apply)
- Levin v. Wall, 290 Mass. 423 (common-law rule: tender after the payment date is not a valid legal tender)
- First Nat'l Bank v. Commonwealth, 391 Mass. 321 (payment must be accepted to discharge underlying debt)
- Pinnick v. Cleary, 360 Mass. 1 (legislative purpose of PIP: prompt payment and reduced litigation costs)