Massachusetts Appellate Division, Northern District.
April 11, 2002.
Present: Merrick, P.J., Curtin Wright, JJ.
Insurance, “Personal injury protection” benefits Evidence, of insurance policy and its terms Practice, Civil, Dist./Mun. Cts. R A. D. A., Rule 8B; Motion for involuntary dismissal.
Opinion dismissing plaintiff’s appeal. Action heard in the Lowell Division by Melahn, J.
Francis A. Gaimari for the plaintiff.
Gerald S. Cohen for the defendant.
Wright, J.
This is a G.L.c. 90, § 34M action by plaintiff Sonogram of New England, Inc. (“Sonogram”) to recover, as an unpaid provider, Personal Injury Protection (“PIP”) benefits for a medical service rendered to the defendant’s insured as part of the treatment of injuries she sustained in an automobile accident. The trial court allowed a Mass. R. Civ. P., Rule 41(b)(2), motion by defendant Metropolitan Property and Casualty Insurance Company (“Metropolitan”) for involuntary dismissal solely on the ground of Sonogram’s failure to introduce the insured’s automobile insurance policy into evidence. Sonogram filed this Dist./Mun. Cts. R. A. D. A, Rule 8B, appeal.
Sonogram initially brought a small claims action against Metropolitan to recover $1,053.00 for the unpaid medical service it provided, plus interest, costs and attorney’s fees. The brief small claims complaint recited that Sonogram had provided “services to Shaunna Greene as the result of an 11/19/99 automobile accident. As an unpaid provider, the plaintiff brings this contract action under G.L.c. 90, § 34M for the non-payment of Personal Injury Protection Benefits.” The complaint did not specifically allege that Shaunna Greene was Metropolitan’s
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insured under a standard Massachusetts automobile insurance policy.[1] On October 3, 2000, the trial court allowed Metropolitan’s G.L.c. 218, § 24 motion to transfer the case to the regular civil docket. Metropolitan failed to file an answer to the complaint, but no default was requested or entered.[2]
The case was tried without a jury. The very limited agreed statement of facts on this Rule 8B appeal indicates that the chiropractor who treated Shaunna Greene and ordered the sonogram (or ultrasound) by Sonogram testified that the procedure was medically necessary and aided him in his diagnosis and treatment of Greene. Sonogram’s representative testified that the bill for the procedure was reasonable. Sonogram did not introduce Metropolitan’s automobile insurance policy into evidence and did not elicit testimony as to its terms.
At the close of Sonogram’s evidence, Metropolitan filed two motions which were mislabeled as motions for a “directed verdict.”[3] The first sought involuntary dismissal on the grounds of insufficient evidence that the medical procedure provided by Sonogram was necessary, that its bill was reasonable, and that Metropolitan had violated G.L.c. 90, § 34M
and the “insurance policy contract” by refusing to provide PIP benefits in payment of Sonogram’s bill. The trial judge denied Metropolitan’s motion, thereby ruling that there was sufficient evidence on each of those points to permit a finding for Sonogram. Metropolitan’s second motion sought involuntary dismissal on the sole ground that Sonogram had failed to introduce Metropolitan’s insurance policy, or the terms of that policy, into evidence.
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The trial judge postponed disposition of that motion until the close of all the evidence. The defendant thereafter presented its own case. A summary of the defendant’s evidence is not before us.[4]
At the conclusion of all the evidence, the judge allowed Metropolitan’s second motion for dismissal on the specific and limited ground that the insurance “policy was not placed into evidence.” This appeal followed.
In an action to recover benefits under an insurance policy, the plaintiff bears the initial burden of proving that the loss for which he seeks compensation is within the risks covered by the insuring clause of the policy. Highlands Ins. Co. v. Aerovox Inc., 424 Mass. 226, 230
(1997); Metivier v. Liberty Mut. Ins. Co., 1999 Mass. App. Div. 88, 89. The best evidence of the terms of the policy is the insurance contract itself which, as a general rule, must be introduced into evidence in support of the plaintiff’s claim.
Where, however, the claim is for PIP benefits under the standard Massachusetts automobile insurance policy, the policy itself is not the only evidence of the terms, conditions and coverage of the compulsory insurance in question. The reason is that the standard Massachusetts auto policy is “one prescribed by statute, with standard language controlled by the Division of Insurance.”Jacobs v. United States Fidel. Guar Co., 417 Mass. 75, 76 (1994). See also Comes v. Metropolitan Prop. Cas. Ins. Co., 45 Mass. App. Ct. 27, 31 (1998). The “policy language parallels and must be construed consistently with G.Lc. 90, § 34A” et seq. Bilodeau v. Lumbermens Mut. Cas. Co., 392 Mass. 537, 542 n. 6 (1984). In fact, “[t]he content of [the] policy is substantially dictated by statute.” Amica Mut. Ins. Co. v. Bagley, 28 Mass. App. Ct. 85, 90
(1989). “The statute which requires carrying no-fault insurance comprehends PIP as part of a motorist’s liability policy: “every motor vehicle liability policy . . . executed in this Commonwealth shall provide personal injury protection benefits’ G.L.c. 90, § 34M.” Id. at 88. Thus once the existence of a Massachusetts automobile policy, in effect on the date of the accident in question, is established, G.L.c. 90, § 34M primarily sets forth those terms and conditions of the policy which are relevant to a PIP claim by an injured insured or an unpaid provider. Dismissal of such a claim for failure to introduce the insurance policy itself is not always required.[5]
The dispositive point in this case, however, is that there is nothing in the record before us to indicate that any evidence was introduced at trial to establish even that Greene’s automobile was in fact insured by Metropolitan on the date of her accident. Our consideration of that point is largely precluded by the Rule 8B record submitted by the parties. The standard of review of a Rule 41 (b) (2) motion is whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could
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be drawn in favor of the plaintiff.” Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). See also DeVito v. Cellular Mobile Communications, Inc., 1993 Mass. App. Div. 48, 48-49. However, given Sonogram’s Rule 8B appeal, no transcript of the evidence is before us.
Therefore, in the absence from the record before us of evidence introduced at trial to establish what we know was the actual fact of insurance in this case, the allowance of Metropolitan’s Rule 41 (b) (2) motion is affirmed.
Appeal dismissed.
So ordered.
It should be noted that if Sonogram had specifically alleged that Greene was Metropolitan’s insured under a standard Massachusetts automobile insurance policy, Metropolitan’s attorney could not have filed an answer denying those facts without inviting Mass. R. Civ. P., Rule 11 (a), sanctions. When an attorney has failed to demonstrate “a subjective good faith belief that [a] pleading was supported in both fact and law,” Rule 11 authorizes the imposition of sanctions, including attorney’s fees and costs. Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416 (1998) Vittands v. Sudduth, 49 Mass. App. Ct. 401, 412 (2000).
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