Stephen J. Cotton v. Hanover Insurance Company, March 9, 2010
2010 Mass. App. Div. 29
Insurance, Personal Injury Protection (PIP), Independent Medical Examination (IME)
The plaintiff, Cotton, was insured by the defendant, Hanover Insurance Company. After a jury-waived trial of a personal-injury protection (PIP) action, the trial judge found that Cotton had failed to attend two scheduled independent medical examinations (IME), and that Hanover was not required to prove it was thereby prejudiced in order to deny Cotton's PIP claim. Judgment was entered for Hanover. Cotton appealed, claiming that the trial court erred because Hanover could not prevail without establishing prejudice, which it failed to do. The Appellate Division affirmed the judgment for Hanover.
Facts
Cotton was injured in an August 2004 car accident and notified Hanover. Lawton, a Hanover employee, attempted to reach Cotton by phone and by mail. Each time, Cotton claimed to be busy, did not pick up the phone, or denied having received any mailings. In November, Lawton sent a second letter and PIP form, which Cotton completed and returned to her. Hanover also received a letter of representation from Cotton‟s counsel, Ellis.
Lawton scheduled an IME for Cotton. Hanover's vender (“MMS”) sent a letter dated December 14, 2004 to Cotton scheduling the IME for December 30, 2004. MMS did not inform Ellis because it was unaware of Cotton's representation. MMS was unable to call Cotton because it did not have an accurate phone number. Cotton did not appear at the December IME. MMS rescheduled the IME for January 13, 2005 and informed Cotton via mail. Again, Cotton could not be called and Ellis was not notified by MMS. However, Lawton reminded Ellis on January 5 that Cotton had missed the first IME, and advised him of the new IME date. Cotton did not appear. On January 18, 2005, Lawton mailed written notice to Ellis that Cotton's PIP claim was denied on the ground of noncooperation. Ellis sent a G.L.c. 93A demand letter two years later.
The PIP statute, G.L.c. 90, §34M, requires claimants to submit to IMEs and provides that the claimant's noncooperation in that regard shall be a defense for the insurer in any action against it for §34M benefits. The statute is silent as to prejudice. The trial judge based his decision on Hodnett v. Arbella Mut. Ins. Co., 1996 Mass. App. Div. 131, which held that an insurer need not demonstrate prejudice in denying a claimant‟s benefits for noncooperation in failing to attend an IME.
Cotton argued that Hodnett had been superseded by Boffoli v. Premier Ins. Co., 71 Mass. App. Ct. 212(2008) (holding that an insurer must demonstrate prejudice when denying PIP benefits because of the late filing of the PIP application). Boffoli dealt with a late PIP application filing. This case involves the failure to attend a scheduled IME. The Appellate Division refused to extend the Boffoli analysis.
The Appellate Division concluded that there was no error in this case in the trial judge's application of Hodnett. The judgment was affirmed.
- Prepared by AYK
