DISCLAIMER:

These summaries of case decisions are intended for informational purposes only. They are not intended to be interpretations of the law, nor do they encompass the subtleties of each case. Therefore, reference to the original text is indispensable.



Monday, April 26, 2010

Genest v. Commerce Ins. Co., 4/26/10

Patricia Genest v. Commerce Insurance Company, April 26, 2010

Failure to Pay Personal Injury Protection benefits under G.L.c. 90 §34m, Unfair Settlement Practices under G.L.c. 93A and G.L.c. 176D

Facts
The plaintiff “Genest” sustained injuries in an automobile accident on April 26, 2005 while she was a passenger in a car insured by the defendant “Commerce”.  In May, 2006 she filed a PIP claim with Commerce which scheduled an independent medical exam and suggested a physician.  This physician examined Genest and found that although she was suffering neck and lower back pain, only the neck injury could be attributed to the accident and he ordered continued physical therapy and massage treatment.  When Genest returned after a few months with the same complaints the doctor examined her and concluded that any injury directly related to the car accident had been fully resolved and treatment could be discontinued.  Commerce informed Genest that it would not pay for anymore treatments after January 30th.  However in February she went to a physiatrist twice for her back injuries and submitted the $250 dollar bill for those visits to Commerce.  Commerce declined to pay this bill, citing the IME cutoff date of 1/30/06. 

In July Genest demanded payment or a reasonable settlement offer, and Commerce denied liability.  In January after Genest sued Commerce, they made a “business decision” to pay her $250 dollars to avoid the cost of litigating and the PIP claim was dismissed.


Unfair Settlement Practices under G.L.c. 93A and G.L.c. 176D
At trial for the remaining claim of unfair settlement practices the trial judge found that Commerce reasonably relied on the doctor’s IME report in declining to pay Genest and that Commerce did not violate G.L.c. 93A.  The Appellate Division stated that they will usually not overturn a trial judge’s ruling on a 93A claim unless the finding is clearly erroneous.  In order to prevail on a 93A claim the plaintiff must show that “the defendant failed to make a prompt, fair, and equitable settlement offer when liability had become reasonably clear” and for G.L.c. 176D the test is, “whether a reasonable person, with knowledge of the relevant facts and law, would probably have concluded, for good reason, that the insurer was liable to the plaintiff.”  Based on the evidence at trial of the doctors IME and the testimony that the payment of $250 was a business decision, there was no error in the trial judge’s opinion that Commerce’s liability had not become reasonably clear, and thus the judge’s rejection of the plaintiff’s claims was affirmed.


- Prepared by AEK