Appellate Division holds claimant's failure to attend IME is complete defense to PIP claim

Barron Chiropractic provided treatment to Corey Hinds after Hinds was in a car accident while operating a car owned and insured by ERAC.


Barron sought PIP payments for the treatments.  ERAC argued that it was not obligated to pay the PIP claim because Hinds failed to attend independent medical examinations scheduled by ERAC's third-party administrator.


In Barron Chiropractic & Rehabilitation, P.C. v. Enterprise Rent-A-Car Co. of Boston, Inc., 2015 WL 4619841 (Mass. App. Div.), the Massachusetts Appellate Division affirmed summary judgment for ERAC.  "Where, as here, the insured fails to submit to a request for an IME, that amounts to non-cooperation which is a complete defense.  The insurer is not required to make any payments where that condition precedent was not met." 

Massachusetts Appeals Court continues trend of PIP decisions against insurers

On April 7, 2007 a passenger was injured in an automobile accident.  Pilgrim was the PIP carrier.  Bryan Hartunian provided orthopedic treatments to the insured.  Pilgrim paid some of the bills from the treatment but withheld payment of $990 on the ground that the charges exceeded an amount that was reasonable in comparison to other medical providers in the same geographic area.  However, it did not notify Hartunian  within ten days of its intention not to pay. 

After twelve months of demanding payment, Hartunian sued Pilgrim in the Massachusetts District Court.  In addition to the unpaid portion of his bill he sought damages under Mass. Gen. Laws ch. 93A.  Pilgrim then issued payment of $990 and filed a motion for summary judgment on all counts of the complaint.  The motion was denied with respect to the 93A count.  Pilgrim was found liable for breach of 93A after a bench and subsequently appealed.

In Hartunian v. Pilgrim Ins. Co.,  __ N.E.3d __, 2014 WL 6607866 (Mass. App. Ct.), Pilgrim argued that its refusal to make payment was not an unfair business practice because it disputed the obligation to pay in good faith.  The court held that that argument ignored the fact that an insurer must, by statute, make PIP payments within ten days or notify the submitting physician or claimant of its intention not to pay. 

Pilgrim also argued that it did not act in bad when  it had an independent medical exam conducted by a physical therapist (apparently a common thing now) rather than a practitioner licensed in the same medical specialty as Hartunian. While not dismissing out of hand the use in all circumstances of a physical therapist for an IME, the court held that whether such use is in good faith raises a factual issue. 

Similarly, the court held that review of the bills by a billing program is not automatically a bad faith act by an insurer but that "its use as a substitute for a practitioner's review of billing statements and underlying services provides an additional basis for an inference of Pilgrim's lack of good faith." 

It's a whole new ballgame in PIP litigation, thanks to an SJC decision

I have written before, here, about why it is difficult to sue PIP carriers who fail to pay claims.  PIP claims are by their nature small: generally not more than $2000 and never more than $8000.  The PIP statute provides that the insurer must pay the claimant's attorney's fees if a judgment against the carrier enters.  Up until now, an insurer could avoid paying those fees if it forced a claimant to file suit, conduct discovery and go to trial and then, minutes before judgment enters, paid the claim.  Of course if the claimant proved bad faith in the insurer's actions then attorney's fees were available under Mass. Gen. Laws ch. 93A, but bad faith is harder to prove than mere failure to pay a claim when due.  Although some wiggle room was found by various decisions of the Massachusetts Appellate Division (a court that does not set precedent), see here and here, PIP cases in general were simply a bad risk. 

The Supreme Judicial Court of Massachusetts has changed all that.

In Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800 (2014), the SJC has held that an unpaid party who has brought suit may refuse the insurer's tender of PIP amounts due, proceed with suit, and obtain a judgment for those amounts as well as its costs and attorney's fees. 

The plaintiff, Barron Chiropractic & Rehabilitation, provided chiropractic services to Nicole Jean-Pierre after an auto accident.  Jean-Pierre's PIP carrier was Norfolk & Dedham. 

Jean Pierre's chiropractor at Barron and Norfolk & Dedham disagreed about the length of treatment made necessary by the accident and about the proper price for her treatment.  The disputed amount was $1,544.05. 

Barron sued Norfolk & Dedham in District Court.  Norfolk & Dedham determined that its anticipated litigation costs would substantially exceed the amount of the disputed medical fees.  Six days prior to trial it sent Barron a check for the disputed amount with an attached check stub that stated "full and final settlement."  Barron's counsel returned the check to Norfolk's counsel with a letter stating that its offer of settlement was rejected.

The SJC held that under contract law Barron was not required to accept the tender of settlement for the amount due after the time for payment under the PIP statute had passed.  It also held that it would be unfair and against the purpose of the PIP statute to allow the insurer to escape costs and attorney's fees by paying the PIP amount that was due after forcing the claimant to file suit. 

Massachusetts Appeals Court admirably untangles interstate PIP web

One of the most annoying issues in insurance coverage is how PIP statutes in various states interact with one another.  If a Massachusetts driver is injured by a Virginia driver in Florida, does PIP apply?  Does the PIP tort limit apply?  Does the PIP offset apply?  Does the intercompany reimbursement scheme apply?  What if a driver from Toronto injures a pedestrian in Massachusetts? (I mention the latter example because I represented a Toronto driver in just such a circumstance.  We won on liability.  The plaintiff's attorney later told me that if he had understood that the PIP offset would apply he would not have taken the case to trial because it would have lowered the potential damages by too much.) 

I frequently receive calls from adjusters wondering if I can answer off the top of my head a question about the application of PIP to an interstate situation.  I never can, because all the details matter and a change in details -- the home state of the other driver, for example -- can change the answer.  It often requires extrajurisdictional research, and even then there is often no clear answer.  If there is an answer, it will take a long time to figure out what it is, because PIP statutes are crazy hard to decipher and typically do not have a lot of case law interpreting their application to interstate accidents.  And with very limited exceptions the most money that could ever be at stake, under the Massachusetts PIP statute, is $8000.00.

The Massachusetts Appeals Court recently applied notable common sense to an interstate PIP dispute.

David Allen was driving a car insured by Commerce under a Massachusetts policy when he was involved in a collision in Holyoke.  Julio and Maria Alvarado were in the other car, which was insured under a New York policy by Peerless.

The Alvarados were injured and received no-fault benefits under the New York PIP scheme, which has a limit of up to $50,000 covering medical bills and lost wages.

Commerce sought a declaratory judgment that the PIP offset would cover the entire amount of PIP coverage the Alvarados received.  The Alvarados argued that the Massachusetts PIP statute creates an exemption only for PIP benefits received from a Massachusetts insurance policy, not a New York insurance policy.

In Commerce Ins. Co. v. Alvarado, 83 Mass. App. Ct. 604 (2013), the court held that the objective of the Massachusetts PIP scheme is to avoid duplicative recovery.  Very sensibly, the court held that Commerce is entitled to an offset for the benefits the Alvarados received from the New York policy.  Even more sensibly, the court ruled apparently sua sponte that Commerce must reimburse Peerless for the PIP benefits the Alvarados received from Peerless. 

Mass. Appellate Division holds that failure to attend two IME's after notification by mail sufficient to deny PIP claim

Arbella Mutual Insurance Company denied PIP payments to Chiropractic Care Centers, Inc. when its patient, Arbella's insured, failed to attend two scheduled independent medical examination.

In Chiropractic Care Centers, Inc. v. Arbella Mut. Ins. Co., 2012 WL 5830706 (Mass. App. Div.), the Massachusetts Appellate Division held that the insured's failure to appear for the IMEs after being notified of them by letter was a wilful failure to attend, justifying denial of PIP payments to Chiropractic Care.

The court noted that under Massachusetts law, the mailing of a properly addressed letter constitutes prima facie evidence of the intended recipient's receipt of the mailing. 

Appellate Division discusses burdens of proof on PIP claim that was paid late

Francisco and Gloria Delasnueces were in an accident while in a car insured by Plymouth Rock. They received treatment from Kantorosinski Chiropractic. Plymouth Rock initially paid some of the bills and denied some. It later made a "business decision" to pay all the bills.

In Kantorosinski Chiropractic, Inc. v. Plymouth Rock Assurance Corp., 2011 WL 4529392 (Mass. App. Div.), the Massachusetts Appellate Division held that summary judgment cannot be granted to a PIP insurer on a claim that it delayed payment merely because the insurer asserts that the reason for eventual payment was a business decision. (The remaining issue, once the PIP claim has been paid, is the award of attorney's fees.)

The court then took note of evidence offered by Plymouth Rock that the damage to the insured vehicle was minor and that after an independent medical examination the doctor concluded that there was no objective findings to support the need for further treatment. That evidence was sufficient to shift the burden to Kantorosinski to show that there is a genuine issue for trial.

Kantorosinski met that burden with evidence that at the time the IME doctor opined that there was no further need for treatment, the insureds were still experiencing pain, which improved with additional treatment. The court held that the evidence was sufficient to overcome Plymouth Rock's motion for summary judgment.

US District Court holds medical review by PIP carrier not required when carrier disputes bill

McGovern Physical Therapy Associates provided physical therapy to a patient insured by Metropolitan for injuries he sustained in an auto accident. It submitted a request for PIP payment of $176 to Metropolitan.

Metropolitan paid McGovern $142.58, $34.42 less than the amount requested. It stated that "the amount allowed is based on provider charges within the provider's geographic region."

McGovern sued on behalf of itself and other providers, seeking reimbursement in all instances in which Metropolitan failed "to challenge the request for payment on its merits."

In McGovern Physical Therapy Assocs., LLC v. Metropolitan Property & Casualty Ins. Co., , the United States District Court for the District of Massachusetts denied McGovern's request to certify the case to the Supreme Judicial Court of Massachusetts. It held that the plain language of the PIP statute and the opinions of lower courts in Massachusetts "provide sufficient guidance" that its decision will not be "merely conjectural."

The court rejected McGovern's claim that the PIP statute requires review by a licensed practitioner, or a physical examination of the patient, whenever there is a dispute over the reasonableness of the charges. It held that a more plausible reading of the statute is that the review requirement applies only when the insurer denies a claim based upon an alleged lack of medical necessity for the services provided.

Appeals Court holds that 93A claim can proceed after insurer rectifies failure to pay PIP damages

Marie Chery was injured in a car accident while she was a passenger in a car insured by Metropolitan. She submitted her PIP claim to Met, which failed to pay the medical bills within the time prescribed by Mass. Gen. Laws ch. 90 § 34M. Chery then sued for breach of the statute and Mass. Gen. Laws ch. 93A.

Six months later Met paid the medical bills. It then moved for summary judgment on the ground that an insured cannot prevail on a PIP claim if the disputed amount is paid prior to judgment entering; and that the 93A claim should be dismissed because Chery suffered no damages.

Chery did not dispute the first assertion. (See my post on that issue here.) She argued that Met had not paid a bill she submitted after she filed the complaint. That argument was ineffective because she had never amended the complaint to include reference to that bill.

In Chery v. Metropolitan Prop. & Cas. Ins. Co., 79 Mass. App. Ct. 697 (2011), the Massachusetts Appeals Court held that her 93A claim could survive summary judgment. It held that Metropolitan has caused her injury by failing to settle her claim after its liability was reasonably clear and forcing her to bring suit to receive benefits to which she was entitled.

The court also found support in the record for the claim that Chery had suffered emotional distress from having to prosecute the lawsuit and concern for the effect the unpaid bills would have on her credit.

Mass. Appellate Division holds that insurer's non-specific denial to allegation of complaint does not preclude summary judgment for insurer

Commerce Insurance Company insured a car which was struck by a motorcycle. Belizaire, a passenger in the car, made a claim for PIP coverage. Commerce eventually denied the claim on the basis of non-cooperation.

Lynn Physical Therapy sued Commerce, claiming it was entitled to payment for treatment it had provided to Belizaire. Summary judgment was granted to Commerce on the ground that Belizaire's failure to cooperate precluded coverage.

On appeal to the Massachusetts Appellate Division, Lynn PT argued that summary judgment should be reversed because Commerce never acknowledged that it insured the vehicle in which Belizaire was a passenger. Lynn PT based that assertion on the answer to the complaint and a response to a request for admission. In both instances Commerce denied a lengthy statement which included, among many other facts, the assertion that the vehicle was insured by Commerce.

In Lynn Physical Therapy Inc. v. Commerce Ins. Co., 2011 WL 1744225 (Mass. App. Div.), the court disagreed, noting that Commerce had admitted during the course of discovery that it insured the vehicle.

For some reason the court did not make the most obvious point: If Commerce did not issue the policy, it would not be liable for PIP payments. If it did issue the policy, it was entitled to deny the claim (according to the trial court's findings) because of Belizaire's noncooperation. In either event, Lynn PT would not be entitled to PIP payments.

Appeals Court holds that compulsory auto insurance provides coverage for intentional acts, even in PIP claims

The issue in Mass. Homeland Ins. Co. v. Walsh, 2011 WL 1344554 (unpublished) was whether an auto insurer must indemnify its insured against liability for injuries sustained by a claimant as a result of an intentional vehicular assault by the insured.

The court noted that the primary purpose of compulsory insurance is protection of travelers on the highway. It held that coverage is required whether the conduct of the insured is intentional or merely negligent.

The court implied that PIP coverage is also available for injuries arising out of the intentional act of the insured.

Appellate Division holds that insurer's withholding of evidence does not shift burden of proof in PIP case

Excel Physical Therapy sued Commerce Insurance for reimbursement of costs of treatment of Hayes. Hayes claimed she was injured when riding as a passenger in a car insured by Commerce. Commerce denied the claim, asserting that Hayes was not in the car when the accident occurred. (That type of insurance fraud is called a "jump in.")

During discovery Excel had requested Commerce's claims logs. In response, Commerce provided a claim note that was extensively redacted.

At trial Excel argued that Commerce's improper discovery response shifted to Commerce the burden of proving the affirmative defense that Hayes was not in the insured vehicle when the accident occurred. The trial judge agreed and directed a verdict to Excel.

In Excel Physical Therapy, Inc. v. Commerce Ins. Co., 2011 WL 1167214 (Mass. App. Div.) the Appellate Division overturned the trial judge's decision. It noted, "It is elementary that a claimant under a policy of insurance has the initial burden of proving that he or she is covered under the policy. . . . Commerce was not required to prove its alleged defense to Excel's PIP claim before Excel proved the claim." It was Excel's burden to prove that Hayes was entitled to PIP benefits because she occupied a vehicle insured by Commerce.

The court held that the proper remedy for withholding evidence based on privilege during discovery is the exclusion at trial of the withheld evidence, not a shifting of burdens.

Appellate Division holds that Medpay does not create a right to double recovery

Bernadette Lawton was in an automobile accident. Her auto insurer, Hanover, paid $2,000 in medical expenses under PIP. Her health insurer, Blue Cross, paid her remaining medical bills.

Lawton then sought $5,000 in medpay benefits from Hanover - as reimbursement for medical bills that had already been paid by Blue Cross.

In Lawton v. Hanover Ins. Co., 2010 WL 5238623 (Mass. App. Div.), the Massachusetts Appellate Division held that Lawton was not entitled to the medpay benefits: "Lawton's argument is inconsistent with both a rational construction of the standard automobile policy and the compensatory character of insurance proceeds."

Another decision finding wiggle room for attorney's fees in PIP case after insurer tenders payment of medical bills

I wrote here about a recent Appellate Division case, Metro West Med. Assocs. v. Amica Mut. Ins. Co., which held that payment of outstanding PIP bills by an insurer does not necessarily prevent the award of attorney's fees under the PIP statute. Another Appellate Division decision has come to the same conclusion.

Howard Physical Therapy provided medical services to Joel DaSilva for injuries he suffered in a motor vehicle accident. Howard submitted to DaSilva's insurer, Premier, a request for PIP reimbursement of medical expenses. Premier paid some of the bills and refused to pay the remainder, asserting that the balance was unreasonable "upon review by an outside company."

Howard took no further action for more than four years, when it filed suit. Two weeks after Howard filed suit, Premier offered to pay the balance plus costs incurred by Howard in filing and serving the complaint. Howard rejected the offer. Premier then sent Howard a check for only the unpaid bill amounts, and moved for summary judgment. The District Court allowed the motion for summary judgment.

In Howard Physical Therapy, Inc. v. Premier Ins. Co., 2010 WL 3855302 (Mass. App. Div.) the Appellate Division reversed the summary judgment decision. It cited Metro West for the proposition that "the mere payment of the balance, in and of itself, would not justify summary judgment for Premier." Rather, the insurer must show that it had "a valid reason not to pay, and that it paid an invalid claim for reasons unrelated to its merits."

The court noted that although Premier had based its original decision, not to pay the full bill, on a review of the bill by "an outside company," there was no indication that the bill was reviewed by a registered or licensed practitioner in the same field as the practitioner submitting the bills, as required by statute. For that reason the Appellate Division reversed the District Court's summary judgment decision.

The court held, however, that Howard could not amend the complaint to add a count for breach of G.L. c. 93A, where Howard had not sent a demand letter prior to suit and Premier made a reasonable offer of settlement within 30 days after suit was filed.

Appellate Division discusses wiggle room for attorney's fees in PIP cases

Although the PIP statute allows attorney's fees in cases against a PIP insurer, such fees may only be awarded if a judgment is recovered from the insurer on the PIP claim. That rule has been generally understood to mean that an insurer can avoid attorney's fees by paying the disputed amount at any time, even after trial has begun. (Of course, attorney's fees can still be awarded on a 93A claim, but a violation of 93A is much harder to prove.)

In Metro West Medical Assocs., Inc. v. Amica Mut. Ins. Co., 2010 WL 3118636 (Mass. App. Div.), the Appellate Division discussed wiggle room for attorney's fees in a PIP claim.

Metro West alleged that it provided medical services to Cuevos, who was entitled to PIP benefits from Amica. Amica paid some of the bills but rejected the additional bills on the grounds that the services were unreasonable and unnecessary. A few weeks later Amica sent a check for the amount it had originally rejected. Metro West's attorney returned the check and demanded payment for attorney's fees under the PIP statute.

The court stated that it would not be inconsistent with prior case law "to require that the insurer on the § 34M [PIP] claim show more on summary judgment than simply that the bills have all been paid. It should also have to show that there is no genuine issue of fact concerning whether it had a valid reason not to pay, and that it paid an invalid claim for reasons unrelated to its merits, for example, to avoid the cost of litigation or to remove a potential liability off its books."

The court held open the possibility that an insured could reject a tender of late payment from an insurer. "In this light, a check for the balance of bills could be viewed as an offer of settlement, which could be rejected, and not a tender of full payment."

The court granted summary judgment to Amica. Amica had submitted an affidavit in which its claim supervisor averred that the disputed bills were not reasonable and necessary and that Amica paid them as a result of a business decision. "That was sufficient, albeit without a lot to spare" to shift the burden to Metro West to show that there would be a genuine issue at trial concerning the necessity of the services and the reasonableness of the bill." Metro West failed to do so.

Appellate Division holds that failure of insured to submit PIP package does not void PIP coverage due to noncooperation

In Advanced Spine Centers, Inc. v. Pilgrim Ins. Co., 2010 WL 2225530 (Mass. App. Div.), the PIP insurer mailed to the insured a PIP package following her injury in an automobile accident. The packet had been created by the insurer and included a PIP application form, an authorization to obtain medical and wage information, and a health insurance affidavit form.

The insured never filled out and returned the paperwork. The insured's attorney sent the insurer a copy of the operator's report for the accident, and a notice of her PIP claim. Her chiropractor submitted treatment notes and reports, an affidavit of no health insurance, and an authorization signed by the insured permitting the chiropractor to release the medical information necessary to process her PIP claim.

The court held that the insurer was required to pay the PIP benefits despite the failure of the insured to fill out and return the forms provided by the insurer, because the insurer had received all the material information it sought. It had therefore not been prejudiced.

BMC Appellate Division holds that attorney not authorized to bring PIP subrogation claim on behalf of insurer is not entitled to attorney's fees

In Ulysse v. Safety Ins. Co., 2009 WL 5154970, Ulysse, insured by Safety, was in a car accident with Derek Roy, insured by NE insurance. Ulysse was represented by an attorney in connection with the accident.

Safety paid Ulysse PIP benefits for medical treatment amounting to $3,070.74. Ulysse, with the assistance of his attorney, settled his third-party claim against Roy and his insurer for $13,000. Ulysse executed a release which included a provision that the settlement "includes consideration for any monies which have been paid for or which may be due in the future from any applicable PIP auto insurer." Ulysse's attorney agreed to be responsible to repay Safety any moneys owed in connection with PIP payments made by Safety to Ulysse. (See this post for an explanation of what that agreement refers to.)

Ulysse, through his attorney, sent a letter to Safety proposing to pay Safety $1,954.63, which was the amount Safety paid Ulysse in PIP benefits reduced by attorney's fees and costs. Safety had not authorized Ulysse or Ulysse's attorney to settle the PIP reimbursement claim on its behalf. It disregarded the proposal and received the full PIP reimbursement of $3,070.74 from NE Insurance.

At issue in the case was whether Ulyesse's attorney was entitled to attorney's fees and costs for the collection of the PIP subrogation amount.

The Appellate Division of the Boston Municipal Court held that he was not entitled to attorney's fees, because he was not authorized by Safety to settle its PIP reimbursement claim.

There are a number of things about this case that seem odd to me, including: 1) If NE Insurance thought it was settling the PIP reimbursement claim when it settled the third-party claim, why did it later pay the PIP reimbursement amount directly to Safety? 2) Assuming that, as is usual in such cases, Ulysse's attorney was representing Ulysse pursuant to a contingency fee agreement, he would have received one third of the total settlement amount. Once Safety rejected his proposal to send it PIP reimbursement less attorney's fees, the part of the settlement that represented the PIP reimbursement claim should have gone to Ulysse less the usual one third contingency fee. Having been paid, why did he also seek this amount from Safety?

It is also worth noting that Ulysse appears to have been given a double recovery. He received PIP payments from Safety, and also received PIP reimbursement from NE Insurance. Settlements are, of course, an art not a science, and absent any clear documentation that part of the settlement was for a PIP reimbursement claim a double recovery theory would not go very far.

Massachusetts Appellate Division overturns summary judgment to PIP insurer for failure to show decision-making process

In N.E. Physical Therapy Plus, Inc. v. Commerce Ins. Co., 2009 WL 3381750 (Mass. App. Div.), physical therapist NEPT sued Commerce pursuant to Mass. Gen. Laws ch. 90 § 34M (the PIP statute) and ch. 93A § 11 (the consumer protection statute) for failing to pay physical therapy bills on behalf of Commerce's insured, who was entitled to PIP benefits.

After suit was filed Commerce paid the disputed bill, which extinguished the ch. 90 § 34 M claim. Commerce then moved for summary judgement on the 93A claim. In support of its motion Commerce submitted only an affidavit of a Commerce employee.

The court denied Commerce's motion for summary judgment, holding:

The Affidavit is composed almost entirely of the affiant's facile and conclusory characterizations of Commerce's claims records. Even if the Affidavit were admissible in its entirety, a question we do not reach here, Commerce's summary judgment materials provide no insight into Commerce's strategy for handling NEPT's claims; into the particulars of Commerce's decision-making process with respect to those claims; into the results of any expert review of the claims; or, in fact, into any of the subjective questions on which G.L. c. 93A claims generally rise and fall.

Appellate Division holds that insurer does not need to show prejudice from violation of duty to cooperate

In Trinidad v. Pilgrim Insurance Company, 2009 WL 3844469 (Mass. App. Div.), the insured sought PIP coverage. He skipped two medical examinations scheduled by the insurer. The insurer denied coverage on the grounds that the insured failed to cooperate.

The insured argued that the insurer failed to prove that it had been prejudiced by his failure to cooperate. The Massachusetts Appellate Division held that a showing of prejudice is not required. It noted that both the PIP statue and the policy required the insured to submit to medical exams by physicians selected by the insurer. The court held:

Neither the policy, nor the statute, requires an insurer to show prejudice before invoking the defense of noncooperation by the claimant as a condition precedent to denying a claim.

Appellate Division holds no right to PIP benefits where medical bills have been paid by Medicare and Medicaid

In Chery v. Metro. Prop. and Cas. Ins. Co., 2009 WL 3381597, an insured sought PIP payments for a medical bill of $360.63. The bill had been paid by Medicare and Medicaid prior to the insured submitting it to the PIP carrier.

The court held that the PIP carrier had no obligation to pay the bill because the PIP statute:

mandates only that PIP payments “shall be due and payable as loss accrues, upon receipt of reasonable proof of the fact and amount of expenses and loss incurred.” As the $360.63 Caritas bill had been paid in full in April, 2008, it was not even “due and payable” when submitted to Metropolitan in June 23, 2008 . . . . Further, Chery's concern about future action by Medicare or Medicaid to seek reimbursement out of any potential tort recovery by her against the tortfeasor in no way suggested any obligation by Metropolitan to provide PIP benefits for the paid bill. “The PIP ‘benefit’ to an injured person, in substance, is the right, inter alia, to be held harmless by the insurer from claims of providers who provided treatment to the injured person.” Ny v. Metropolitan Prop. & Cas. Ins. Co., 51 Mass.App.Ct. 471, 476 (2001). Chery was in no danger of any claim against her by Caritas, whose bill had been paid in full.

Appellate Division holds that established standards for expert witnesses apply to PIP claim

In Kaplan v. Hanover Ins. Co. a chiropractor, Kaplan, sued Hanover Insurance Company to recover pursuant to PIP payments for treatment provided to Hanover's insured.

A chiropractor employed by Kaplan had treated the insured. Kaplan sought to offer expert testimony about the necessity of the treatment provided and its causal relationship to the accident. For some inexplicable reason the trial judge refused to allow his testimony on the grounds that he had not treated the insured himself.

The Massachusetts Appellate Division held that the judge's ruling was an abuse of discretion. It pointed out that there is no requirement that an expert have personal knowledge of a case and may rely on materials prepared by others.