This is yet another in a flurry of cases before this Division involving the payment to a medical provider of Personal Injury Protection (“PIP”) benefits pursuant tо G.L.c. 90, §34M. The insured party, Nivedhy A. Ramaswamy (“Ramaswamy”), was involved in an accident on August 6, 2007 while operating a motor vehicle owned by Enterprise Rent-A-Car (“Enterprise”). Enterprise is a self-
Soon after suit had been filed, Olympic offered to settle the matter for $7,200.00, an amount that included payment of the bills sought, along with some attorney’s fees. ELCO rejected the offer. In January, 2009, however, ELCO sent Olympic a check for $5,625.00, which Olympic sent back. In June, 2009, ELCO filed a motion for summary judgment, supported by the affidavit of its “Liability Claims Administrator,” which set out the facts outlined above. The main thrust of ELCO’s argument in its memorandum in support of summary judgment was that pursuant to Fascione v. CNA Ins. Cos.,
There is cause to suspect that Mrs. Ramaswamy received physical therapy services in an unlicensed physical therapy facility by a practitioner representing himself as a physical therapist, when, in fact, he was not. ... Based on the information provided by the claimant, the physical therapy treatment she received was not appropriate. Her treatment did not meеt the standards for operating a licensed Physical Therapy Facility and providing physical therapy services under259 CMR 5 .00-6.00. These standards havе been created to prevent insurance fraud and protect the health, safety, and welfare of the public.
In her rulings on ELCO’s motion for summаry judgment, the judge noted that among ELCO’s assertions in support of its motion was “that no judgment may enter under ... [§]34M if the insurer pays the full amount of the outstanding PIP balance at any time before judgment.” She also stated that Olympic had “presented no affidavit or other evidence in support of [its] allegations” that ELCO was not justified in denying payment on the basis of Velsmid’s reports, noting that Olympic had stated in its memorandum that the facts were not in dispute “for the purposes of this motion.”
Pursuant to Mass. R. Civ. P., Rule 56(c), summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and responses to requests for admissions ..., together with the affidavits, if any, show that there is no
With respect to any reliance by the trial judge on Fasdone in allowing ELCO’s motion, this Division has recently taken the рosition that “[n]othing in Fasaonedic-tates that a tender of the balance due under [a] §34M claim must necessarily stop that part of the litigation in its tracks....” Metro West Med. Assocs., Inc. v. Amica Mut. Ins. Co.,
Thе summary judgment materials submitted by ELCO were sufficient to establish a justification for its denial of payment of Olympic’s bills and, thus, to shift the Rule 56 burden to Olympic to resрond. However, Olympic filed only a memorandum in opposition without any supporting affidavits. Nor did it seek time to do so. “The
Judgment affirmed.
So ordered.
Notes
Metro West Med Assocs., Inc. set out a new approach to PIP cases where the insurer decides to pay any unpaid bills well after litigation has begun. We recognize that the Supreme Judicial Court stated in Fasdone that the insurer is not liable if it pays the PIP benefits “in full, but does so aftеr the thirty-day deadline and after the insured files a complaint to recover such benefits.” Id at 88. Later in the opinion, however, the Court statеd that §34M “expresses the Legislature’s concern that insurers pay unpaid parties their PIP benefits without delay; if such parties are forced to pursue their claim for benefits to judgment, the Legislature provided that they are entitled to a ‘speedy trial’ and are to be compensated for their litigation expenses.” Id. at 92. In Fascione, the benefits were paid and apparently accepted. Thus, there was no judgment in the trial court for any amount due, and thus there could be no costs or attorney’s fees assessed. In the approach outlined in Metro West Med Assocs, Inc, if the insurer’s motion for summаry judgment is allowed, there will be no money due; if it is denied, the matter will proceed to trial. Thus, implicit in Metro West Med Assocs, Inc is this Division’s rejection of the position taken in earlier cases, e.g., Essex Chiropractic Office, LLC v. Plymouth Rock Assur. Corp.,