The plaintiff Columbia Chiropractic Group, Inc.
The case was tried to a jury, with the judge reserving G. L. c. 93A claims for his decision. In a special verdict, the jury answered that Trust neither failed to pay medical bills for reasonable and necessary treatment nor committed unfair acts or practices in its handling of the medical bills submitted by Columbia. On the other hand, the jury found that Columbia had committed “unfair or deceptive acts or practices in submitting unreasonable or unnecessary medical bills to [Trust].” The jury further concluded, however, that Trust had sustained no damages as a result of Columbia’s unfair or deceptive acts or practices.
In deciding Trust’s counterclaim founded on G. L. c. 93A, the judge rejected the jury’s conclusion that Trust had sustained no damages as a result of Columbia’s violation of G. L. c. 93A and awarded Trust both its costs “for experts used in this litigation to refute [Columbia’s] claims” and the fees and expenses of counsel in this case. He accepted the jury’s advisory opinion that the conduct of Columbia “in presenting and litigating unreasonable or unnecessary bills in violation of G. L. c. 93A was willful or knowing.” He, therefore, doubled the total of the expense of experts and the fees and expenses of counsel. Columbia appealed, and we granted its application for direct appellate review. We affirm the judgment.
1. Columbia argues, for the first time on appeal, that Trust’s G. L. c. 93A claim should be dismissed pursuant to the doctrine of primary jurisdiction. Columbia asserts that Trust’s claim alleges violations of regulations of the Board of Registration of Chiropractors (board) and that the board should, in the first instance, deal with such allegations. We disagree. This is not a case in which the proper allocation of responsibilities between
The doctrine of primary jurisdiction applies to regulatory matters specifically entrusted tó a particular agency and to matters involving technical questions of fact uniquely within agency expertise and experience. See Casey v. Massachusetts Elec. Co.,
The claim that a G. L. c. 93A violation cannot be advanced directly in a court of law based on a violation of a regulatory agency’s regulations lacks merit. Columbia makes no attempt to explain how the board could grant Trust relief under G. L. c. 93A or otherwise. The board has no authority to award G. L. c. 93A damages, and the question of G. L. c. 93A relief has not been committed to it. See G. L. c. 112, § 61. The board has, moreover, no jurisdiction over Columbia, which is not a licensed chiropractor. The question whether Columbia submitted unreasonable bills to Trust, based on the furnishing of unneeded chiropractic services or an overcharging for such services, is not a complicated issue calling for agency expertise. See Vieira v. Schupp,
2. The judge properly allowed Trust to recover its counsel fees and expenses and expert witness expenses in this case as damages in its G. L. c. 93A counterclaim against Columbia. The judge was not bound by the jury’s advisory special verdict that Columbia’s G. L. c. 93A violation caused Trust no damages. See Linkage Corp. v. Trustees of Boston Univ.,
Columbia does not challenge the judge’s finding that its G. L. c. 93A violations were wilful and knowing, a precondition to doubling any damages found. G. L.'c. 93A, § 11. Columbia does, however, challenge the lawfulness of granting Trust damages based on its litigation expenses incurred in defending Columbia’s action. It argues that there simply were no G. L. c. 93A, § 11, damages to double and, in such a case, a plaintiff is not entitled to attorney’s fees, as damages or otherwise. See Jet Line Servs., Inc. v. American Employers Ins. Co.,
The judge accepted the jury’s finding that Columbia “committed unfair or deceptive acts or practices in submitting unreasonable or unnecessary medical bills to” Trust. It follows that the judge could properly conclude that Columbia’s attempt to collect the amount of those inappropriate bills was an unfair act or practice. Columbia’s conduct caused Trust to incur com-pensable litigation expenses in defense of the claim. See International Fidelity Ins. Co. v. Wilson,
Trust’s allegation that Columbia had no right to recover on
3. Columbia asserts that G. L. c. 90, § 34M, required Trust to pay Columbia’s claims “within ten days or give written notice of its intent not to make such payments, specifying reasons for said nonpayment.”
An insurer is required to pay “[p]ersonal injury protection benefits” only for “reasonable expenses ... for necessary medical. . . services.” G. L. c. 90, § 34A. Section 34M, fourth par., accordingly provides generally that insurance benefits are due “upon receipt of reasonable proof of the fact and amount of expenses and loss incurred.” The ten-day requirement of § 34M, fourth par., however, provides an exception for the payment of medical bills “upon notification of disability from a licensed physician.”
Statutory purposes would not be served generally if an insurer were obliged to pay for unreasonable medical expenses. See Creswell v. Medical W. Community Health Plan, Inc.,
The statute is silent, however, on the treatment of a situation in which the insurer is unable to determine within ten days whether it should pay a physician’s bill. Nothing in G. L. c. 90, § 34M, states that, if an insurer fails to send a ten-day notice, it waives its right to challenge the reasonableness of a medical bill. We decline to infer some sort of forfeiture or waiver from the applicable statute. See Massachusetts Hosp. Ass’n, Inc. v. Department of Pub. Welfare,
Judgments affirmed.
Justice Fried participated in the deliberation on this case, but resigned before the opinion was issued.
Notes
We shall assume that the doctrine of primary jurisdiction may be invoked for the first time on appeal, as is the case in the Federal courts. See Distrigas of Mass. Corp. v. Boston Gas Co.,
The relevant language, which appears in the fourth paragraph of G. L. c. 90, § 34M, reads as follows:
“Personal injury protection benefits and benefits due from an insurer assigned shall be due and payable as loss accrues, upon receipt of reasonable proof of the fact and amount of expenses and loss incurred provided that upon notification of disability from a licensed physician, the insurer shall commence medical payments within ten days or give written notice of its intent not to make such payments, specifying reasons for said nonpayment, but an insurer may agree to a lump sum discharging all future liability for such benefits on its own behalf and on behalf of the insured. ... In any case where benefits due and payable remain unpaid for more than thirty days, any unpaid party shall be deemed a party to a contract with the insurer responsible for payment and shall therefore have a right to commence an action in contract for payment of amounts therein determined to be due in accordance with the provisions of this chapter.”
CoIumbia does not challenge any of the judge’s jury instructions. The evidence did not warrant a directed verdict in its favor on Trust’s counterclaim. Issues raised in a reply brief come too late.