NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

14-P-1707                                           Appeals Court

       JOHN DUFFY, D.C.    vs.   AMICA MUTUAL INSURANCE CO.


                          No. 14-P-1707.

       Middlesex.       January 11, 2016. - April 8, 2016.

            Present:   Katzmann, Milkey, & Hanlon, JJ.


Insurance, Motor vehicle personal injury protection benefits,
     Coordination-of-benefits clause, Unfair act or practice.
     Contract, Insurance, Coordination of benefits clause.
     Consumer Protection Act, Insurance.



     Civil action commenced in the Lowell Division of the
District Court Department on May 14, 2010.

     The case was heard by J. Elizabeth Cremens, J., on motions
for summary judgment.


    Francis A. Gaimari for the plaintiff.
    Charles G. Devine, Jr. for the defendant.


    KATZMANN, J.    This appeal presents the principal question

whether summary judgment was appropriately allowed against a

health care provider which, though having failed to coordinate

benefits between the insured's auto insurer and the insured's

health insurer, claimed entitlement to unpaid Personal Injury
                                                                   2


Protection (PIP) benefits under the compulsory motor vehicle

liability insurance scheme contained in G. L. c. 90, §§ 34A-34Q.1

     The plaintiff, John Duffy, D.C., a corporation providing

chiropractic services (we refer to the corporation and the

individual as Duffy),2 appeals from a decision and order of the

Appellate Division of the District Court affirming a summary

judgment granted by a District Court judge to the defendant,

auto insurer Amica Mutual Insurance Company (Amica), on Duffy's

action for recovery of $394.44 in PIP benefits.   Duffy had

treated Amica's insured, Sandra Cormier, and he alleges that the

PIP benefits were due him as an unpaid party pursuant to G. L.




     1
       Under that scheme, designed in large part to "provide an
inexpensive and uncomplicated procedure for obtaining
compensation for injuries sustained in automobile accidents,"
Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115 (1999),
"the first $2,000 of accident-related medical bills are covered
by the automobile insurer under PIP; medical bills from $2,000
to $8,000 are also payable under PIP if the injured party does
not have private health insurance. . . . [A]n automobile
insurer is not required to pay for medical expenses between
$2,000 and $8,000 as PIP benefits if the claimant's health
insurer would have covered the medical services had the claimant
sought treatment in accordance with his health insurer's plan."
Mejia v. American Cas. Co., 55 Mass. App. Ct. 461, 462 n.2
(2002). See note 6, infra.
     2
       Although the complaint was filed by the corporation, the
chiropractic services were alleged to have been provided by the
individual, John Duffy, and the briefs refer to him in his
individual capacity with respect to the facts underlying this
case. We do likewise.
                                                                   3


c. 90, § 34M.3   He also claims that he was entitled to recover

damages and attorney's fees and costs pursuant to G. L. c. 90,

§ 34M, and G. L. c. 93A, § 11.4   We affirm.

     Discussion.   "We review the disposition of a motion for

summary judgment de novo . . . to determine whether all material

facts have been established such that the moving party is

entitled to judgment as a matter of law[;] . . . [w]e construe

all facts in favor of the nonmoving party, . . . and we may

consider any grounds that support the motion judge's ruling."

American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG., 468



     3
       General Laws c. 90, § 34M, fourth par., as amended by St.
1972, c. 313, provides, in relevant part:

          "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 . . . .
     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."
     4
       Duffy brought a four-count complaint against Amica. Count
I alleged a violation of G. L. c. 90, § 34M. Duffy also appeals
from the grant of summary judgment on count II, which alleged a
violation of G. L. c. 93A, § 11, predicated on the § 34M
violation.
                                                                    4


Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014) (quotations

and citations omitted).

     The essence of the parties' dispute is the question whether

Amica's obligation to pay unpaid portions of Duffy's bills was

ever triggered.   Amica initially denied all payments to Duffy in

September and October, 2005, on the basis of an independent

medical examination (IME)5 conducted by an orthopedic surgeon,

which indicated that Cormier would not need further professional

medical care beyond a date roughly one month before she began

treatment with Duffy.   Although the initial $2,000 in PIP

benefits available under the insurance contract6 had also already


     5
       See G. L. c. 90, § 34M, third par., inserted by St. 1970,
     c. 670, § 4, which provides, in pertinent part:

          "The injured person shall submit to physical
     examinations by physicians selected by the insurer as often
     as may be reasonably required."
     6
       Consistent with G. L. c. 90, § 34A, Amica's PIP benefit is
governed by a contract provision that limits Amica's obligation
to pay medical expenses in excess of $2,000. Under this
provision, medical expenses in excess of $2,000 must first be
submitted to the injured person's health insurer, if any, to
determine what the health plan will pay. See G. L. c. 90,
§ 34A, fourth par., inserted by St. 1988, c. 273, § 16, which
provides in pertinent part:

          "[P]ersonal injury protection provisions shall not
     provide for payment of more than two thousand dollars of
     expenses incurred within two years from the date of
     accident for medical, surgical, X-ray and dental services,
     including prosthetic devices and necessary ambulance,
     hospital, professional nursing and funeral services if, and
     to the extent that, such expenses have been or will be
     compensated, paid or indemnified pursuant to any policy of
                                                                   5


been exhausted at this point, Amica did not directly so inform

Duffy.   However, Amica had previously advised Cormier and her

counsel of this development on July 22, 2005, one month before

Cormier began treatment with Duffy.

    1.    Coordination of benefits.   Quite apart from its

reliance on the IME as a basis for denying payment to Duffy,

Amica contends that its duty to pay Duffy was never triggered in

any event because Duffy failed to coordinate benefits between

Amica and Cormier's health insurer.   See note 1, supra;

Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115 (1999)

("[G. L. c. 90, §] 34A, by it terms, expresses a legislative

recognition that available health insurance reduces the cost of

motor vehicle insurance by eliminating the need for additional

PIP coverage, and codifies a legislative mandate that claimants

utilize existing health insurance for medical expenses which

exceed the $2,000 limit on an automobile insurer's PIP

liability"); Mejia v. American Cas. Co., 55 Mass. App. Ct. 461,

462 n.2, 466 (2002).   Duffy counters that Amica did not advise

him directly in 2005 that the initial $2,000 in PIP benefits had

been exhausted and so Amica is estopped from relying on any




    health, sickness or disability insurance or any contract or
    agreement of any group, organization, partnership or
    corporation to provide, pay for or reimburse the cost of
    medical, hospital, dental or other health care services."
                                                                     6


alleged failure to coordinate benefits.     Duffy's arguments are

unavailing.

     The summary judgment record unequivocally demonstrates

Duffy's actual notice by July, 2006, at the latest, that

Cormier's initial $2,000 in PIP benefits had been exhausted.7       He

therefore knew long before filing suit in May, 2010, that, even

if Amica's reliance on the IME to deny coverage could be shown

to be invalid, he would nonetheless still first have to submit

his bills to the health insurer and then resubmit any unpaid

balances to Amica before the latter would have any obligation to

pay notwithstanding the IME.   In fact, Duffy did ultimately

receive $892.91 in partial payment of his bills from Cormier's

health insurer in August, 2006.   In August, 2007, Duffy received

an additional $1109.90 in partial payment from proceeds of

Cormier's settlement with a third party.8    Duffy never

resubmitted to Amica a request for the $394.44 that remained




     7
       In a letter dated July 17, 2006, Duffy's billing service
sent a letter to Cormier's health insurer seeking reimbursement
for services rendered to Cormier, and attaching a letter from
Amica to Cormier's attorney dated June 15, 2006, advising that
$2,000 in PIP benefits had been paid, and that Cormier should,
henceforward, submit outstanding bills to her health insurer.
     8
       Duffy also asserts that, standing in Cormier's shoes, he
is entitled to trial on the merits with respect to this amount
as well. We need not address this argument, given the result we
reach.
                                                                   7


outstanding, nor did he provide Amica with documentation of the

health insurer's payments or his receipt of settlement proceeds.

     Contrary to Duffy's estoppel theory, Amica's initial

reliance on an IME cutoff to refuse payment to Duffy does not

preclude Amica's assertion of a defense of failure to coordinate

benefits.    "[T]he mere statement of one ground for denying

liability without explanatory words or circumstances does not

warrant the inference of an intention to relinquish other

defences."    Royal-Globe Ins. Co. v. Craven, 411 Mass. 629, 635

(1992) (Royal-Globe), quoting from Sheehan v. Commercial

Travelers' Mut. Acc. Assn., 283 Mass. 543, 552 (1933).     Duffy

was on actual notice of the coordination of benefits requirement

no later than July, 2006 -- a point in time still well within

the two years allowed for the presentation of PIP claims under

the statute9 -- and yet he still failed to coordinate benefits.

He then waited nearly an additional four years to bring this

action.     It is therefore difficult to see how Duffy can claim

that Amica's conduct induced him "to do something different from


     9
       Cormier's automobile accident occurred on April 17, 2005.
General Laws c. 90, § 34M, third par., provides that

          "[c]laim[s] for benefits due under the provisions of
     personal injury protection or from the insurer assigned
     shall be presented to the company providing such benefits
     as soon as practicable after the accident occurs from which
     such claim arises, and in every case, within at least two
     years from the date of accident."
                                                                   8


what otherwise would have been done and which has resulted to

his harm."   Royal-Globe, 411 Mass. at 635 (citation omitted).

Duffy's estoppel argument therefore fails.10    Ibid.

     Duffy's claim that it would have been futile to send

documentation concerning health insurance payments and

coordination of benefits to Amica ignores the fact that without

that information Amica would have had no way of knowing in 2006

(i) that Duffy was still claiming PIP benefits from the previous

year at all, or (ii) whether it had any obligation to pay any

unpaid balance left by the health insurer.     Duffy cannot

maintain that he could rely on bills he previously submitted to

Amica for payment in full as, without any documentation on the

partial payments he received subsequently, Amica could have made

substantial overpayments to him if it had conceded coverage.

See, e.g., Shah v. Liberty Mut. Ins. Co., 56 Mass. App. Ct. 903,

903 (2002) (after the first $2,000 in PIP benefits had been

paid, provider was not entitled to "balance bill" PIP insurer to

cover the difference between her usual charge for services and

amount received from insured's health insurer pursuant to a


     10
       Milton Ice Co. v. Travelers Indemnity Co., 320 Mass. 719
(1947), cited by Duffy, does not require a contrary conclusion
here where the record demonstrates that Duffy had actual notice
that benefits had to be coordinated while there was still ample
time under the statute for him to do so. See Jimmy's Diner,
Inc. v. Liquor Liab. Joint Underwriting Assn. of Mass., 410
Mass. 61, 63 n.3 (1991).
                                                                   9


participating provider contract).   Amica would have also needed

documentation concerning the third-party settlement payment

Duffy received where Amica's contract with Cormier specified

that it "will not pay PIP benefits to or for an injured person,

to the extent those benefits would duplicate expenses or losses

recovered by that person in a court judgment or settlement."11

In fact, Amica did not learn of any of the partial payments

Duffy received until the discovery process in the instant

litigation.

     The undisputed facts on the summary judgment record

therefore demonstrate that Duffy failed to comply with his

obligation to coordinate benefits and, consequently, Amica's

obligation to pay never actually arose.   While this conclusion

should be sufficient to resolve the present appeal, where Duffy

contends that Amica's denial letters themselves violated the


     11
       See G. L. c. 90, § 34M, second par., inserted by St.
1970, c. 670, § 4, which provides in pertinent part:

     "[I]f any person claiming or entitled to benefits under the
     personal injury protection provisions of a policy or bond
     insuring a vehicle registered in this commonwealth brings,
     in such a case, an action in tort against the owner or
     person responsible for the operation of such a vehicle,
     amounts otherwise due such a person under the provisions of
     section thirty-four A shall not become due and payable
     until a settlement is reached or a final judgment is
     rendered in such a case and the amounts then due shall be
     reduced to that extent that damages for expenses and loss
     otherwise recoverable as a personal injury protection
     benefit are included in any such settlement or judgment."
                                                                     10


statute, we consider whether any initial violation by Amica

effectively suspended Duffy's obligation to coordinate benefits.

    2.     IME cutoff denials.   Duffy insists that even if he had

a coordination of benefits obligation, Amica violated the

statute and breached the insurance contract before that

obligation arose by not including the exhaustion of the initial

$2,000 as one of its reasons for nonpayment within ten days of

his claim and instead relying exclusively on the IME cutoff.

However, where it is undisputed that Amica provided Duffy with

"written notice of its intent not to make [medical] payments"

and "specif[ied] reasons for said nonpayment," G. L. c. 90,

§ 34M, fourth par., we do not agree that Amica violated the

statute.    We decline Duffy's invitation to read into the statute

a requirement that the insurer specify all reasons it may have

for nonpayment in the written notice where the reason(s) given

were never contested prior to litigation.    See Boone v. Commerce

Ins. Co., 451 Mass. 192, 199 (2008), quoting from Dartt v.

Browning–Ferris Indus., Inc. (Mass.), 427 Mass. 1, 9 (1998)

("[W]e will not add to a statute a word that the Legislature had

the option to, but chose not to, include").

    Duffy points out that the form denial letters he received

from Amica contain a line that the claims handler could have

simply checked to indicate to him that the $2,000 PIP threshold

had been reached.    However, a denial based on the initial PIP
                                                                     11


threshold is only a conditional denial.    That is, if the only

reason for nonpayment is that the first $2,000 in benefits has

been exhausted, an insurer might yet have a continuing coverage

obligation to the claiming provider. (See, e.g., notes 1 and 6,

supra.)     Not so when an insurer denies coverage on the basis of

an IME that indicates that the claiming provider's treatment was

not medically necessary.     The IME cutoff, unless refuted, would

be an absolute denial of coverage for Duffy's treatment.

Therefore, Duffy was well advised that before any of his bills

could be considered for payment, he would need to refute the

opinion in the IME report.     See, e.g., Barron Chiropractic &

Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800,

802 (2014) (provider submitted expert response to IME,

expressing different opinion as to when insured had reached

medical end result).     This he did not do.   Here, Amica had

already provided Cormier's counsel with the IME before Duffy

ever began treating Cormier.     The summary judgment record shows

that Duffy had contact information for Cormier's counsel and was

invited to contact Amica in each of the four denial letters he

received.    There is no evidence in the record that Duffy ever

challenged the substance of the IME cutoff to put Amica on

notice that it needed to do anything further to evaluate his

claims for payment.
                                                                   12


     Duffy contends that the IME report did not state a

definitive conclusion that Cormier had reached a medical

endpoint but only a prediction that she would reach such an

endpoint in four weeks.   He argues that where the statute allows

insurers to have independent physical examinations performed "as

often as may be reasonably required," G. L. c. 90, § 34M, third

par., Amica's duty of good faith required it to reexamine

Cormier before denying his bills for payment.   He disputes that

under the circumstances here Amica had no duty of investigation

to determine the medical necessity of any post-IME medical

treatment that Cormier received.   We are not persuaded by

Duffy's claims.

     Imposing on auto insurers an obligation to automatically

conduct an additional IME simply because a bill for subsequent

treatment has been received would run contrary to one of the key

legislative purposes underlying enactment of § 34M:   "to control

costs of compulsory automobile insurance."   Dominguez, 429 Mass.

at 115.12


     12
       Duffy also points to statutory language that requires PIP
insurers in certain circumstances to submit any bill for which
payment has been refused to "at least one practitioner
registered or licensed under the same section of chapter one
hundred and twelve as the practitioner who submitted the bill
for medical services." G. L. c. 90, § 34M, fourth par., as
amended through St. 1989, c. 271. Although the statutory
language quoted by Duffy indicates that denials based on a
"medical review" must be submitted for review by a practitioner
registered or licensed under the same section of G. L. c. 112 as
                                                                  13


     Furthermore, Duffy's arguments are fatally flawed as

applied to the undisputed facts of this case.   First, the IME

report stated explicitly that Cormier would have a decreasing

partial disability for the next four weeks.   The existence of

symptoms after that point would not, on its own, have indicated

to Amica that the conclusions in the IME report were incorrect,13

as the IME explicitly anticipated that Cormier's symptoms would

remain, but determined that "the remainder of her symptoms can

be handled by a home exercise program."

     While Amica could have requested that Cormier submit to a

fresh independent medical examination, Duffy has not shown that

Amica was required to do so here where (i) it possessed a recent


the claiming practitioner, no such requirement applies where, as
here, a physical examination of the claimant was conducted,
rather than merely a review of the medical bills and services
underlying those bills. See Boone, 451 Mass. at 196. Thus, the
statute does not preclude Amica's reliance on the preexisting
IME conducted by an orthopedic surgeon. See id. at 197 n.6
("[A]llowing insurers to deny payments for medical services
where the denial is based on an IME by a medical practitioner in
a specialty different from the treating or billing practitioner
is consistent with the legislative goal of controlling costs and
ensuring timely payments of medical bills").
     13
       We do not reach the questions whether the opinions
expressed in the IME report were actually correct or whether
Duffy's treatment of Cormier was medically necessary and
causally related to the accident, the resolution of which would
be beyond the scope of the summary judgment decision before
us. Our analysis is limited to whether the summary judgment
record demonstrates that Amica's reliance on the IME to deny
coverage was a violation of § 34M that would excuse Duffy from
his obligation to coordinate benefits. For the reasons we
discuss in the main text, we are not persuaded that it was.
                                                                   14


IME report by a reviewing physician with at least as much

training and education as Duffy, the claiming provider, see

Boone, 451 Mass. at 198; (ii) the IME supported the denial of

coverage; and (iii) Duffy never challenged the IME.   The simple

fact that Amica received medical bills from Duffy, then a new

provider on the case, would not put it on notice that the IME

required updating, especially where the actual opinion in the

IME report was not that the symptoms would have disappeared but

only that any remaining symptoms could be managed with a home

exercise program after four more weeks.   See Brito v. Liberty

Mut. Ins. Co., 44 Mass. App. Ct. 34, 37 (1997) ("The insurer is

not required to pay unexplained medical bills merely on the

unsubstantiated assertion by the claimant that they represent

reasonable and necessary treatment for injuries caused by the

accident").   The denial letters it did send at least "impliedly

invited" a response from Duffy, but none was ever received.

Washington v. Metropolitan Life Ins. Co., 372 Mass. 714, 719

(1977).14


     14
       Duffy's reliance on Washington v. Metropolitan Life Ins.
Co., 372 Mass. 714 (1977), for the proposition that Amica had an
affirmative duty of further inquiry with respect to coordination
of benefits is unavailing when applied in the context of the
refusal based on the IME. In Washington, the court acknowledged
that "an insurer may have a good faith duty in particular
circumstances to request additional information." 372 Mass. at
719. However, this duty can be satisfied in part by "inviting
the submission of further information in support of the
claimant's position." Ibid. Moreover, on the facts in
                                                                  15


    Although Duffy is correct that insurers must operate in

good faith, he too must act in good faith.   When confronted with

a denial based on an IME and with contact information for both

the claims handler and the insured's counsel, good faith

required Duffy to take at least some action to ascertain and, if

necessary, challenge the validity of the denial before filing

suit nearly five years later.   See Dominguez, 429 Mass. at 118

(concluding that the claimant was not entitled to recover

medical expenses above $2,000 from the PIP insurer where, inter

alia, he failed "to cooperate and deal in good faith" with both

the health insurer and the PIP insurer).

    Where it is undisputed that Duffy did nothing to alert

Amica that he objected to denial of his bills on the basis of

the IME's determination in 2005 and then failed to resubmit

unpaid portions of his bills to Amica after partial payments by

Cormier's health insurer in 2006, Duffy has not shown a

violation of G. L. c. 90, § 34M, and judgment in favor of Amica

on count I was appropriate as a matter of law.   Therefore,



Washington, the court concluded that the insurer had "no
obligation to state affirmatively that additional proof might
have been submitted" because, among other things, none of the
facts submitted by the claimant indicated that the medical
opinion the insurer had already seen was in error and the
insurer's letters to the claimant not only did not foreclose the
submission of additional information but also "impliedly invited
the submission of additional proof." Ibid. Similar reasoning
applies here.
                                                                  16


because Duffy's G. L. c. 93A claim asserted in count II was

predicated on the alleged § 34M violation, it, too, must fail.15

See Donovan v. Philip Morris USA, Inc., 455 Mass. 215, 227 n.13

(2009) (c. 93A claims "based on the same theory of injury and

the same set of alleged facts" as underlying claims "survive or

fail under the same analysis as the underlying . . . claim").

                                     Decision and order of the
                                       Appellate Division
                                       affirmed.




     15
          Duffy's request for attorney's fees and costs is denied.
