April 2012 | Vol. 6, No. 1 Battling ‘truthiness’

The keynote speaker forMATA’s 2012 Annual Dinner onMay 2 will be Harvard Professorand U.S. Senate candidate Eliza-beth Warren. Held at The NewtonMarriott, the dinner will follow aday of educational seminars on avariety of issues.Warren has been a law professor

at Harvard University for almost20 years. A published author whohas a history of fighting for con-sumer rights and hard-workingmiddle class families, she was oneof the creative forces behind TheConsumer Financial ProtectionBureau. Her knowledge of finan-

cial issues, institutions and prac-tices is unmatched.Notably motivated to help con-

sumers, Warren is a true believer inAmerica and in a better future forAmericans. She believes the past roleof government was to protect Ameri-ca’s working families and help createthe essential conditions for each newgeneration to have the opportunityto get ahead. It would seem that thegovernment is now focused on peo-ple and companies that have alreadyachieved great financial success, giv-ing tax breaks to the companies andthose who run them. An entire group of Americans,

the middle class, has lost theirstrength under the crushing dualblows of the ongoing housing andmortgage crisis and the lack of gov-

By J. Michael Conley

The Feb. 13 issue of the MATA Jour-nal included two articles that will bene-fit from immediate update.

‘Curry’ First, we provided an alert con-

cerning Curry v. The Great AmericanInsurance Company, 80 Mass. App.592 (2011) (“‘Curry’ decision pro-motes third-party settlements”). It is essential that attorneys han-

dling third-party cases be aware ofCurry and be sure to include painand suffering alloca-tion in third-partytort settlements. Theobvious reason is that this benefitsyour injured client and there is noreason not to do so. Moreover, this isnot optional. The Department of Industrial Ac-

cidents has not yet posted an updateto its helpful interactive Section 15petition form, but we are advised thatsuch a revision is underway. Mean-while, the DIA has published amemorandum confirming that Sec-tion 15 settlement petitions will notbe approved if they are lacking a Cur-ry allocation. In addition, the memo-randum provides instructions onhow to incorporate a Curry allocationinto the existing Interactive Petition.The memorandum is available toMATA members on the MATA website.

G.L.c. 143, §51 — strict liabilityfor building code violationsIn the article “Puzzling footnote

may have far-reaching conse-quences,” I summarized the odd his-tory and application of G.L.c. 142,§51, as to which a careless footnotein an SJC decision has prevented ap-plication of a statute which, accord-ing to its plain terms, provides strictliability for injury caused by buildingcode violations in certain buildings in

favor of limit-ing liabilityonly to thoseinjured whilefleeing a fire.My sugges-tion, onwhich I amdoublingdown here, was:

“Plead the statute when youbring a case involving a code vio-lation. When you try such a case,request a §51 instruction and re-serve your rights when the trial

judge declines togive the charge. Ifyou lose a negli-

gence verdict or get hit with acomparative-negligence deduc-tion in which the statute’s plaindirective would help, think aboutfiling an appeal and seek DirectAppellate Review.”In framing this suggestion, I was

apparently unduly pessimistic aboutthe prospect of succeeding on a §51claim at the trial court level. I since have learned of several pre-

publication trial court decisions whichwould have been helpful to include inthe article, and one post-publicationdecision that may put us on the pathto restoring the statute to its rightfulrole in premises liability law.In Stuart v. Merloni (17 Mass. L.

Rptr. 453 (2004)), then-SuperiorCourt Justice Ralph D. Gants consid-ered a defendant’s motion to dismissa §51 claim for failure to state aclaim. Justice Gants reviewed the his-tory of §51 thoroughly and thought-fully (if I had the decision twomonths earlier, I would have savedmyself and the readers some effortand simply published the decision):Justice Gants noted that “On its

face, the new section 51 appears toprovide for strict liability in civil casesagainst the owners of buildings for

April 2012 | Vol. 6, No. 1

A Supplement to Massachusetts Lawyers Weekly

Updates on G.L.c.143, §51 and ‘Curry’

Battling ‘truthiness’

Elizabeth Warren to be keynotespeaker at MATA Annual Dinner

EDITOR’S NOTE

By Andrew Abraham

Several years ago,Stephen Colbertcoined the term “truthiness” to rep-resent “the quality of preferringconcepts or facts one wishes to betrue.” (America Dialect Society,January 2006) This notion has been employed

over and over in a well-fundedcampaign to discredit our justice system. It is easier forpeople to accept as fact that lawyers are responsiblefor their problems than to dig into the real issues. “Truthiness” can fundamentally alter an established

tort system, taking away the power of consumers andrisking patients’ safety in an attempt to maximize in-surance company profits. While “truthiness” might befun cocktail party banter, utilizing it in public policycan be dangerous or deadly (See: “A Failed Experi-ment: Health Care in Texas Has Worsened in Key Re-spects Since State Instituted Liability Caps in 2003,”Public Citizen Report, Oct. 12, 2011)Educating the public about how our civil justice

system has made their lives safer and exposing themyths of tort reform is an ongoing challenge. Nowa-

days, messaging needs to be constantand multi-pronged. It does not takelong for an urban legend to grow legsand become accepted as fact by the

general public. Once a myth becomes accepted as fact, it takes a

whole lot of work to eliminate that myth. MATA hasutilized almost everything but a ham radio to set therecord straight and get the truth out. I encourage all ofyou to join MATA in bringing the truth to light and to

shine the light on the dark secrets of tort reform. Over the past two years, MATA leaders have met

with representatives from the courts, Legislature andother advocacy groups. We have met with the editorialboards of major city newspapers in three different re-gions of the state bringing our message and request-

PRESIDENT’SMESSAGE

Continued on page 8

The underlying message of all these communications is simple:We need a strong civil justice system to keep people safe andprotect individuals’ rights.

Continued on page 5Continued on page 5

By Ryan E. Alekman and Robert A. DiTusa

Insurers providing Mas-sachusetts Personal InjuryProtection benefits have noright to require an injuredperson attend a physicalexamination conducted bya physical therapist. Despitethe fact that no such rightexists, Massachusetts PIPinsurers have routinely re-quested injured personsseeking PIP benefits tosubmit to examinations byphysical therapists as a prerequisite. In a recent case litigated

by our office, a SpringfieldDistrict Court judge found

that a PIP insurer could not require a claimantsubmit to an examination with a physical ther-apist; therefore, a claimant’s refusal to attendthe scheduled examination did not constitutenon-cooperation. Martin v. Premier InsuranceCompany, Springfield District Court, 1023-CV-3210.In the subject case, our client was injured in

an automobile collision and sustained injuries.She was treated at a rehabilitation clinic by aphysiatrist and she underwent a course ofphysical therapy. She applied for PIP benefitsand submitted medical bills to her PIP insurer,Premier Insurance, for payment. Premier subsequently sent an IME notice

stating that she had been scheduled for an in-dependent medical examination with a physi-cal therapist. We advised our client not to at-tend the examination because it was notscheduled with a physician, as required byG.L.c. 90 §34M. Premier subsequently denied

payment of PIP benefits based on her failure tocooperate. We brought suit on behalf of ourclient against Premier for violations of §34M,breach of contract, and violations of 93A. The parties brought cross-motions for sum-

mary judgment in order to resolve the legal is-sue of cooperation. The judge ultimately deter-mined that our client had not breached herobligations to Premier by failing to attend theIME. Shortly thereafter, Premier made paymentof the outstanding medical bills and attorneysfees pursuant to §34M.

The statutory frameworkA PIP insurer’s right to have an injured

claimant examined arises out of the Massachu-setts PIP statute, G.L.c. 90 §34M. The statuteprovides that an injured person applying forPIP benefits:

“[S]hall submit to physical examinationsby physicians selected by the insurer as of-ten as may be reasonably required and shalldo all things necessary to enable the insurerto obtain medical reports and other neededinformation to assist in determining theamounts due.” G.L.c. 90 §34M (2011). For years, insurers have relied on this lan-

guage as a basis to require PIP claimants to un-dergo examinations with physical therapists.Claimants typically attend these examinationsunder the threat of non-cooperation. However,there is no support to deny benefits underthese circumstances. The statute plainly authorizes examinations

by physicians only. Physical therapists are notphysicians. In Massachusetts, physicians are li-censed under G.L.c. 112 §2. According to G.L.c.112 §2, qualified physicians in the Common-wealth of Massachusetts must have:

“Completed two years of premedicalstudies in a college or university . . . have at-tended courses of instruction for four yearsof not less than thirty-two school weeks ineach year, or courses which in the opinionof the board are equivalent thereto, in oneor more legally chartered medical school,

2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS APRIL 2012

THE CHALLENGE:HELP A DECEASED VICTIM TELL HER STORY

TO A SUFFOLK COUNTY CIVIL JURY

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Massachusetts Lawyers Weekly

Physical therapist examinations in PIP claims

DISPUTERESOLUTION LLC

Continued on page 6

Ryan E. Alekman and Robert A. DiTusa are partners at Alekman DiTusa in Springfield. Alekmanfocuses on personal injury and criminal defense. He is a member of the Board of Governors ofMATA, AAJ, the Hampden County Bar Association and the Massachusetts Bar Association. He canbe reached at [email protected]. DiTusa’s practice focuses on protecting the rights of injured and disabled persons. He is also a

special assistant attorney general, representing the Massachusetts Department of Public Health,Childhood Lead Poisoning Protection Program. DiTusa is a member of MATA, AAJ and the Hamp-den County Bar Association. He can be reached at [email protected].

Alekman

DiTusa

APRIL 2012 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3

By Christina T. Vidoli

April 2 ushered in signif-icant changes in the proce-dures required to probatean estate in Massachusettswith the adoption of Chap-ter 190B, the MassachusettsUniform Probate Code. Thenew rules are designed toboth clarify the law and to

incorporate useful advancements in probatelaw that have been made over the yearsthroughout the U.S. Overall, the adoption of these laws should

promote a speedier and more efficient admin-istration of estates, cutting both time and costfor the benefit of those who stand to inherit.Though many of these new rules are designedto streamline the probate process, there is somegrey area as to how these same rules will applyto actions for personal injury or death againstdeceased persons. Recognizing that the vast majority of estates

will proceed without controversy, the MUPCgenerally allows courts not to intervene in theadministration of estates unless requested byan interested party. Along with playing a veryminimal role in uncontested estates, the Pro-bate & Family Court also has far fewer techni-cal requirements. If all parties agree, except in certain circum-

stances, an estate can proceed through an ad-ministration process known as informal pro-bate. Theoretically, under informal probate, amagistrate can appoint a fiduciary (known as a

personal representa-tive) to administer theestate within seven days of death. If any inter-ested party so desires, or a minor or incapaci-tated person is involved, formal probate is re-quired. Formal probate may take between twoor three months and requires the judge to de-

termine the validity of the will. An obvious change the MUPC makes

is to cease using the label of “executor” infavor of “personal representative.” The codedefines personal representative as including“executor, administrator, successor personalrepresentative, special administrator, specialpersonal representative.” (G.L. c. 190B, §1-201(37)).

Necessity of appointments for initiating apersonal injury or wrongful death claimAll fiduciaries prior to April 2 continue to

have the obligations of their pre-MUPC bondsunless modified by petition, and will have allthe enhanced powers of a personal representa-tive. Also, a person who has undertaken to actas voluntary executor or voluntary administra-

tor on or before March 31 will be treated as avoluntary personal representative with limitedpowers pursuant to §3-1201. Similar to pre-MUPC law, this means a voluntary personalrepresentative may not sign releases or satisfyand settle claims as provided under the Code at§3-715(a) and (b). Nevertheless, the MUPC expands the overall

duties and default powers of a personal repre-sentative to allow for greater autonomy inmanaging assets and paying claims. In linewith this, the MUPC authorizes personal rep-resentatives to defend and prosecute claims or

Christina T. Vidoli, an associate at Margolis & Bloom, practices in estate planning, long-term care plan-ning, planning for children with special needs, guardianship and conservatorship, probate administration,Medicaid applications and appeals, and community MassHealth benefits. She is an active member of theNational Academy of Elder Law Attorneys and is also a member of the Massachusetts Academy of TrialLawyers, the Federalist Society, the American Bar Association, the Massachusetts Bar Association and theBoston Bar Association.

The Massachusetts Uniform Probate Code is here

MATA has developed partnerships with the following companies. Theirservices have been determined to be of the highest quality and cost benefi-cial for our members. Their generous support of MATA helps us to completeour mission. Please consider using them whenever possible. More detailedinformation can be obtained on our website at www.massacademy.com orthrough the MATA office.

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Continued on page 10


By John Yasi

The legal landscape re-garding lawsuits underG.L.c. 90, §34M — the“PIP” statute — is shifting.Overreaching auto insurershave commonly reliedupon the Supreme JudicialCourt decision Fascione vCNA Insurance Companies,435 Mass. 88 (2001), to sup-

port motions for summary judgment, after theinsurers simply tendered payment of outstand-ing balances to medical providers. Recent deci-sions from the Appellate Division of the Dis-trict Court, however, have recognized thelimitations of Fascione and significantly limitedthe viability of the insurers’ practice.The SJC’s ruling in Fascione involved an inter-

pretation of the PIP statute. The case involved aplaintiff, Ms. Fascione, who was injured in anauto accident. The plaintiff complied with theterms and conditions of the PIP portion of theauto policy by completing the appropriateforms. She then demanded payment of medicalbills, asserting that the bills were reasonable,necessary and related to the accident. CNA, the PIP insurer, sent a $720 check to

Fascione in May 1996 that covered some of thecost of the bills submitted. CNA believed in-correctly that this satisfied the all of the billsthat Fascione had sent to CNA for paymentunder PIP. In June 1996, Fascione commenced an action

under G.L.c. 90, §34M in the Lawrence Divi-sion of the District Court Department seeking

her unpaid PIP benefits, nominal damages, in-terest, costs, and attorney’s fees. The statute al-lows for the filing of a lawsuit by the PIPclaimant or the healthcare provider in the eventthat the demanded bills are either denied or re-main unpaid after 30 days, “In any case wherebenefits due and payable remain unpaid formore than thirty days, any unpaid party shallbe deemed a party to a contract with the insur-er responsible for payment and shall thereforehave a right to commence an action in contractfor payment of amounts therein determined tobe due in accordance with the provisions of thischapter.” The statute also provides that “[i]f theunpaid party recovers a judgment for anyamount due and payable by the insurer, thecourt shall assess against the insurer in ad-dition thereto costs and reasonable attor-ney’s fees.” Id. CNA filed its answer to Fascione’s

complaint on July 16, 1996. On fur-ther investigation of Fascione’s file,CNA discovered its error and, onJuly 23, mailed a check to Fascionefor $1,573, the remainingamount of PIP benefits due.After making this paymentCNA successfully movedfor summary judgment,

relieving the insurer of the obligation to payattorney’s fees.The case proceeded on appeal to the SJC,

and the court faced the question of whether aninsurer could moot a PIP claim by paying theoutstanding balance, even after the filing of thelawsuit and thus avoid liability for attorney’sfees. Conversely, the court had to considerwhether the plaintiff could reject the post-filingtender and take the case to trial and seek to ob-tain a judgment including an award for attor-ney’s fees. The court decided, under the circumstancesof the specific fact pattern, that the insur-er was entitled to tender the outstand-ing balance and moot the case. Thecourt reasoned that its common-lawinterpretation reflected one of the maingoals which the Legislature was at-tempting to promote with respect to thestatute, namely the quick and efficientpayment of medical bills and lost wagesfor victims of auto accidents. In rejecting Ms. Fascione’s contention

that she was entitled to continue to bring

the claim through to trial, the SJC held that theaggrieved PIP claimant should have contactedthe insurance company and confirmed whetherthe nonpayment was simply an inadvertent fail-ure to pay, or conversely whether the nonpay-ment was based upon some as yet unreportedintentional denial.The court reasoned that if the failure to pay

was simply an oversight, then the communica-tion by the aggrieved PIP claimant would serveto further the purposes of the statute. Uponsuch a communication the insurer would ex-plain that it had inadvertently failed to pay andof course, then pay the bill.However, in Footnote 6 of Fascione, the court

made clear that if an aggrieved PIP claimantconfirms after 30 days that the insurance com-pany has denied some or all of her bills inten-tionally, then the claimant is free to obtaincounsel, file suit and avail herself of the protec-tions of both the PIP statute and the consumerprotection act statute:Fascione also suggests that a failure to award

attorney’s fees may prevent future claimants

John Yasi is a member of MATA and principal inthe personal injury law firm of Yasi & Yasi, P.C. inSalem. He is likewise one of the founding membersof the law firm, PIP Collect, LLC, which represent-ed the claimants in the Metro West, Olympic PT,and Kantorosinski Chiro cases.

Prevailing view on PIP attorneys’ fees shifting

From left: Professor Gabriel H. Teninbaum, Professor Kathleen Engel, John P. Ryan of Sloane &Walsh and MATA President Andrew Abraham of Baker & Abraham participated in a panel atSuffolk Law School following a screening of the documentary “Hot Coffee.”

MATA personnel and prospective members recently gathered inWorcester for a networking reception at the offices of Mirick,O’Connell, DeMallie & Lougee.

Continued on page 10

©iStockphoto.com/fuzzbones0


any violation of the state building code, notmerely for the particular fire safety violationsspecified in the earlier version,” and predictedthat the SJC would ultimately interpret thestatute accordingly. Consequently, JusticeGants deferred decision on the motion to theconclusion of trial. His rationale was as follows:

“The Appeals Court decision in Foxposes a practical dilemma for this Court.Even if the footnote in McAllistermay nottruly be controlling authority because ofits mistaken reliance on a case that inter-preted an earlier version of G.L.c. 143, §51or because it is dictum, Fox certainly iscontrolling authority, even if the AppealsCourt erred in finding McAllister to becontrolling. If this Court were to apply thenarrow interpretation of G.L.c. 143, §51declared in Fox, then the defendant’s mo-tion to dismiss the strict liability claim un-der G.L.c. 143, §51 should be allowed, be-cause the plaintiff does not allege that shewas injured while fleeing a fire. However,if the motion were allowed, the casewould still proceed to trial on the negli-gence claim and evidence as to the viola-tion of the state building code would stillbe admissible on the issue of negligence.The only practical consequence at trial ofthe allowance of this motion to dismisswould be that the jury would not make aspecific finding as to whether the defen-dant violated G.L.c. 143, § 51 andwhether such a violation caused theplaintiff’s injury, because such findingswould not be necessary to resolve thenegligence claim.“If the plaintiff were to lose at trial on

her negligence claim and then appeal theallowance of this motion to dismiss, thisCourt believes that it is probable that shewould ultimately prevail on her appeal, be-cause the interpretation of G.L. c. 143, § 51set forth in Fox is based on the erroneouspremise in the McAllister footnote and iscontrary to the plain language of thestatute. If the plaintiff were indeed to pre-vail on her appeal, she would need to trythe case again, because the jury would nothave decided the questions necessary to re-solve the strict liability statutory claim.”In Bucksar v. Mayo (U.S. District Court, 1:11-

cv-10134-RBC), Magistrate Judge Robert B.Collings allowed a plaintiff’s motion to amend a

complaint to include a §51 claim. Collings’ elec-tronic order provided: “Given the state of theMassachusetts decisions vis-à-vis §51 as expli-cated so thoroughly by Justice Gants in the caseof Stuart v. Merloni, the court shall follow thelead of Justice Gants by allowing the motion toamend and deferring until after trial whether

the claim under the cited statute is viable.” In Gifford v. Sears (19 Mass. L. Rptr. 716

(2005)), Superior Court Justice Thomas E. Con-nolly followed suit, deferring until after trial hisdecision on a motion for partial summary judg-ment directed to a §51 claim.Shortly after publication, Northeast Housing

Court Justice David D. Kerman issued an im-portant decision in Sheehan v. Weaver, in whichthe plaintiff was represented by MATA mem-ber Louis Muggeo. In that case, the plaintiff/tenant fell through

a porch guardrail onto the asphalt pavementbelow and was seriously injured. He broughtan action against the owner/landlord allegingcommon law negligence, breach of the impliedwarranty of habitability, violation of thecovenant of quiet enjoyment under G.L.c. 186§14, and for strict liability for violation of theState Building Code under §51 (the case alsoincluded a 93A count). The jury returned a verdict on special ques-

tions, finding for the plaintiff on his claim ofnegligence, but finding that the plaintiff himselfwas 40 percent comparatively negligent, andfinding also for the plaintiff on the State Build-ing Code claim. On post-trial motions, Justice Kerman (in a

decision reported in Lawyers Weekly on March8) refused to disturb the jury’s verdict on the§51 claim.

“I certainly agree [with Justice Gants inMerloni] that neither the McAllister foot-note nor the Fox ruling would survive onappeal. Indeed, I believe that there is virtu-ally no likelihood that either the AppealsCourt or the Supreme Judicial Court willchoose to follow the McAllister dictum orthe Fox holding in future cases.“In the ‘unusual circumstances of this

case’ (as described by the Merloni court), Ido not believe that either the McAllisterdictum or the Fox holding amount to ‘con-trolling authority’ that is binding precedentthat a trial judge ought to follow. I believeinstead that in this highly unusual circum-stance of obvious appellate court error, thetask of a trial judge is to apply the law asthe appellate courts now would likely applyit, and not to blindly follow that which ap-pears to be, but which actually is not, con-trolling, binding precedent.”Accordingly, plaintiffs’ attorneys in cases in-

volving code violations in buildings covered by§51 should be sure this count is included. Sinceadding a §51 count generally changes only thejury charge and not the evidence, amendmentswill presumably be readily allowed.Copies of the decisions in Merloni, Bucksar, Gif-

ford and Sheehan are available to MATA membersthrough the MATA website, massacademy.comor email [email protected].

Continued from page 1

Updates on G.L.c. 143, §51 and ‘Curry’

DIA notice on new §15 settlement approval form and procedurePursuant to the Appeals Court decision Curry v. Great American Insurance Co., 80 Mass.

App. Ct. 592 (2011), rev. denied 461 Mass. 1103 (2011), petition to reconsider denied Feb.3, 2012, the department is presently revising its §15 interactive calculator and petition.

In the interim §15 petitions submitted to the industrial accident board for ap-proval should specify the amount allocated to compensate the employee forher/his conscious pain and suffering, as well as any amount(s) recoverable indamages for the loss of consortium claims of family members.

Amounts so allocated are not subject to the workers’ compensation insurer’slien, and therefore may not be offset against the employee’s future entitlement toc. 152 benefits. See Hunter v. Midwest Coast Transport, 400 Mass. 779 (1987).Where the employee and the workers’ compensation insurer are unable to agree on

the amount of an allocation, either party may submit a petition delineating the amountsof all proposed allocations and request a hearing before the board.After notice to all parties, the matter will be assigned to an administrative lawjudge to consider “the merits of the settlement” as proposed. G.L.c. 152, §15; Hultin v.

Francis Harvey & Sons, Inc., 40 Mass. App. Ct. 692, 698 n.8 (1996).

Interim directions for making ‘Curry’ allocation on DIA website’s section 15worksheet and printed petition:

On worksheet:1) Enter plaintiff/employee’s pain and suffering allocation in the box entitled “Settle-

ment Allocation to Family” and fill in other fields as you would do in the normal course.The calculator will populate the required fields on the petition.To the extent that an allocation also is being made to family members, add that alloca-

tion to the allocation being made for the plaintiff/employee’s pain and suffering and en-ter the total amount in the box entitled “Settlement Allocation to Family.”

On printed petition:

• On page 2 of the printed petition, cross out the words “to family members” ap-pearing in question 8(b) and write in “Curry pain and suffering.”

• To the extent that an allocation also is being made to family members, do not crossout the words “to family members”; instead simply add the following words toquestion 8(b): “and Curry pain and suffering.”

2) On page 2 of the printed petition, cross out the words “to family members” appear-ing in question 9(a) and write in “Curry pain and suffering.”

• To the extent that an allocation also is being made to family members, do not crossout the words “to family members”; instead simply add the following words toquestion 9(a): “and Curry pain and suffering.” Please indicate, in the space direct-ly under question 9(a), the amount that represents payment to the plaintiff/em-ployee and the amount that represents payment to family members.

ernment assistance to those getting started inbusiness or still working on their future.Health care in America has been an ongoing

project for many years. For all the accomplish-ments we have achieved in this area, many

Americans go without health coverage year af-ter year because of the cost. Warren believes we must do more to make

health care more affordable to all. She believesthat the very future of America is at stake. Wemust invest in the future, work hard to create

opportunities for employment, focus on re-building the middle class and openly deal withthe financial crisis that is affecting every aspectof our country.MATA is proud to present Elizabeth Warren

with the 2012 MATA Consumer Advocacy

Award at our Annual Dinner on May 2 for herincredible dedication to the protection of con-sumers, her continuous work to improve thelives of hard-working families and her unwa-vering belief in a better America for all.

— Sheila Sweeney


Elizabeth Warren to be keynote speaker at MATA Annual Dinner


and that have received the degree of doctorof medicine, or its equivalent, from a legallychartered medical school in the UnitedStates . . . having the power to confer de-grees in medicine.” G.L.c. 112 §2 (2011).In contrast, physical therapists are licensed

under a separate section of law, G.L.c. 112§23B and 112 §23I.In defense of the practice, insurers argue

that the term “physician” is not specifically de-fined in §34M, and therefore it can be definedbroadly enough to include all practitioners li-censed under c. 112. However, if the defini-tion of the term “physician” were expanded toinclude all practitioners under 112, a PIPclaimant could be required to undergo an ex-amination by an occupational therapist,nurse, or acupuncturist (all of whom are li-censed under c. 112). There is no authority forsuch a broad interpretation, and the results ofdoing so are in conflict with the legislative in-tent of §34M.The definition of the term “physician”

should be analyzed in light of the SupremeJudicial Court’s decision in Boone v. CommerceInsurance Company, 451 Mass. 192 (2008). InBoone, the SJC refused to ascribe the “sameprofession requirement” of paragraph 4§34M (which pertains to medical record re-views) to paragraph 3 of §34M (pertaining toIMEs). Id. In Boone, the court recognized that medical

record reviews conducted pursuant to §34Mhad to be performed by a practitioner of the“same profession”. Id at 196. However, theSJC refused to apply the “same profession” re-quirement to IMEs. (In contrast, a “physicalexamination” involves a claimant undergoinga medical examination conducted by a physi-cian selected by the insurer . . . we concludethat the plain language of the statute makesthe same profession requirement inapplica-ble.” Boone, 451 Mass. 192 at 196). Therefore,§34M IMEs can be performed by physicians ofdifferent specialties. An orthopedic surgeoncan perform a PIP IME on a claimant treating

with a neurologist. As a practical matter, if the term “physician”

were expanded to include physical therapists,then, under Boone, an insurer would be free touse the results of a physical therapist’s IME todeny payment of bills incurred by a claimanttreating under the care of a physiatrist, ortho-pedic surgeon, or neurologist. This is the exactresult that the legislature attempted to avoid inusing the term physician.The SJC discussed this issue when address-

ing the legislative history of §34M in Boone. Indoing so, the court acknowledged that the leg-islature specifically considered, but rejected,the following proposed insertion into thestatute:

“any independent medical examinationor medical claim review requested by aninsurer shall be conducted by a licensedpractitioner of the same specialty licensedto practice as such under the provisions ofChapter 112 of the General Laws.” Boone,supra at 199.If the above language had been adopted by

the legislature, then the legislature would haveendorsed the use of “any practitioner” licensedunder Section 112 to conduct an IME. Sincephysical therapists are licensed under G.L.c.112 §23I, the legislature would have implicitlyincluded physical therapists as practitioners al-lowed to conduct a §34M IME. However, the“any practitioner” language was rejected in fa-vor of language requiring IMEs performed by a“physician.” Id. at 199. In light of the above, it is clear that the legis-

lature looked at this issue and refused to enacta law which would have allowed physical ther-apists to conduct PIP IMEs. It would be in di-rect conflict with both Boone, and the legisla-tive intent of §34M, to now expand thedefinition of “physician” to include physicaltherapists. As a result, an insurer cannot re-quire a PIP claimant to submit to an examina-tion by a physical therapist. Moreover, a PIPinsurer has no basis to deny PIP benefits whena claimant refuses to attend an IME scheduledwith a physical therapist.

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Membershipbriefs

Amanda Baer

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In 1991, Jake and Richard Kennedy formedKennedy Brothers Physical Therapy, a companyfounded on the concept of providing the high-est quality treatment for sports and orthopedicinjuries. Since that time, it has expanded to five clin-

ics, in which they work with athletes and non-athletes to assist and teach people how towork to restore their energy and recover frominjuries. Jake Kennedy maintains close, work-ing relationships with the individual clients’physicians and the hospitals they come from,including Massachusetts General Hospital,Brigham & Women’s Hospital, Children’s Hos-pital, New England Medical Center and BethIsrael Hospital. Jake Kennedy and his staff are among the

most renowned physical therapy professionalsin this part of the country. MATA past Presi-dent Douglas K. Sheff, a true believer in theKennedys, said: “Jake Kennedy has been an in-spiration to patients and our entire communityfor decades. His ability to get people fired upabout helping themselves and others is re-markable. Whether restoring health to the in-jured or faith to those less fortunate, Jake has areal gift and we are the recipients.”Jake and his staff are also tremendous con-

tributors to charitable endeavors. They createdand fund a number of nonprofit organizationsin order to give back to the community. Possi-bly one of the most beloved and well-known istheir “Christmas in the City” charity, whichworks all year to raise money in order to bring

Christmas to people in homeless shelters andthose who are unable to provide a Christmascelebration for their children. Twenty years ago, this project started with

the efforts, contributions, time and creativity ofthe Kennedy brothers, their families and closefriends. Last December, “Christmas in the City”hosted a spectacular party for over 3,000 chil-dren from shelters in Boston and the surround-ing communities. A Winter Wonderland, gamesprovided by the Museum of Science and giftsfor all from Santa made for memories that willwarm those who attended and participated foryears to come. Jake Kennedy has created an amazing physi-

cal therapy clinic that has changed the lives ofinjured or recovering clients for decades. His

incredible “Christmas in the City” venture, oneof many, has changed the face of Boston and allof those who volunteer to work on the project.All of the fundraising, planning and hard workis done byJake, his staff, families, friends, clientsand anyone who wants to work together tomake a difference in the lives of those in needduring the holidays.It is with great admiration and affection that

MATA will present its 2012 MATA CharitableActivist Award to Jake Kennedy for his spirit ofgenerosity, his dedication to the needs of thoseless fortunate and for the extraordinary exam-ple he has set as he enthusiastically gives backto society every day. We are both proud andgrateful to know him.

— Sheila Sweeney

Jake Kennedy of Kennedy Bros. PT to receive Charitable Activist Award

ing a seat at the table when the civil justice sys-tem is discussed. MATA has successfully placed letters to the

editor in The Boston Globe, The Boston Herald,and Massachusetts Lawyers Weekly. While wewill always reach out to these thought-leadersin our community, we also know that averagecitizens (i.e., your jurors) receive information in

many different ways. MATA has utilized mediaof all kinds to put our message out there to reg-ular folks. You can help us carry that messageforward. The film “Hot Coffee” provided a tool to edu-

cate lawyers and non-lawyers about a longtimemisinformation campaign that erodes supportfor a strong civil justice system by perpetuatingurban myths. MATA has been involved in

sponsoring or co-sponsoring screenings allover the state, reaching hundreds of people.Add to this a website with thousands ofmonthly views, an active LinkedIn, Facebookand Twitter presence, and we see that MATAhas utilized a toolbox of techniques to educatethe public. The underlying message of all these commu-

nications is simple: We need a strong civil jus-

tice system to keep people safe and protect in-dividuals’ rights.So, the drumbeat continues. Until all our

products are safe, our workplaces injury-freeand our medical institutions prevent 98,000medical errors a year, we carry this message.Please help us and have faith that if you are onthe right side of the argument, eventually youwill win.


Battling ‘truthiness’

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from enforcing their right to PIP benefits be-cause they may fear that if they hire an attor-ney they will be left to pay fees out of pocket orout of their PIP benefits. G.L.c. 90, §34M envi-sions that claimants should, without the assis-tance of counsel but rather by direct communi-cation with the insurer, be able to resolvesituations where an insurer inadvertently failsto pay PIP benefits. If, however, the insurerpersists in its refusal to pay PIP benefits,claimants can consider hiring counsel and fil-ing a claim under G.L.c. 93A, §9, as well as§34M. (emphasis added).

Id. at 95, fn. 6. Despite the narrow focus of the ruling, the

Appellate Division of the District Court,Northern Division decided a series of casesmore broadly interpreting an insurer’s rights asheld in Fascione. The rights of the insurer to ef-fectuate dismissal by tendering just amounts indispute expanded so as to allow a defendantPIP insurer the right to tender to a PIP plaintiffat any time prior to the entry of judgment, re-gardless of the original reason for non-pay-ment, and effectuate a dismissal of the casewithout being subject to the possibility of hav-ing to pay attorney’s fees. For example, in Essex Chiropractic Office, LLC

v. Plymouth Rock Assurance Corp., 2008 Mass.

App. Div. 269, 270, the Appellate Division, cit-ing Fascione, held that, “an insurance companycould ‘avoid statutory attorney’s fees and costsafter a §34M action is commenced by makingfull PIP payment of the medical bills at issuebefore judgment is entered.’” Id. at 269. In Amari v. Plymouth Rock Assur. Corp., 2007

Mass. App. Div. 139, the court held that an in-surer can employ the Fascione defense, “even ifthe insurer’s payment is made after a claimantor health provider has been compelled to initi-

ate a §34M civil suit to recover PIP benefits.” Id.at n.1. See also Amari v. Amica Insurance Com-pany, 2003 Mass. App. Div. 77,78; Revere Chiro-practic & Rehab ilitation v. Concord Group Insur-ance Cos., 2001 Mass. App. Div. 237, 238; ArbitChiropractic v. Commerce Ins. Co., 2001 Mass.App. Div. 208, 209. More recently, however, the Appellate Divi-

sion of the District Court has in a series of cas-

es changed its course and adopted a more nar-row application of Fascione. Now, a defendantinsurer cannot effectuate summary judgmenton a claim for a violation of §34M by sending acheck for the balance of the amount due aftersuit has been filed. In 2010, The Appellate Division held that,

“Nothing in Fascione dictates that a tender ofthe balance due under the § 34M claim mustnecessarily stop that part of the litigation in itstracks and require a judgment of zero dam-ages” See Metro West Medical Associates, Inc. v.Amica Mut. Ins. Co., 2010 Mass. App. Div. 137,WL 311863; see also Olympic Physical Therapyv. ELCO Administrative Services, 2010 Mass.App. Div. 171, 2010 WL 3250162; and Kan-torosinski Chirporactic (Delasnueces) v. PlymouthRock Assurance Corporation, Mass. App. Div.No. 11-ADMS-10017, 2011 WL 4529392. Un-der the ruling in Metro West, a defendant must:

…show more on summary judgmentthan simply that the bills have all beenpaid. It should also have to show that thereis no genuine issue of fact concerningwhether it had a valid reason not to pay,and that it paid an invalid claim for reasonsunrelated to its merits, for example, toavoid the cost of litigation or to remove apotential liability off its books.

Id. at 139.

Metro West also provides that even if a defen-dant makes an initial showing, through support-ing affidavits, of a post-suit payment and the va-lidity of its original reason not to pay, the burdenonly then shifts to the plaintiff. Id. at 140. In such a situation, in order for a plaintiff in

a suit for PIP benefits to defeat summary judg-ment, the plaintiff need only set forth specificfacts showing that there would be a genuineissue at trial concerning the necessity of theservices and the reasonableness of the bill. Id.This holding has been affirmed at least twicesince; see Olympic PT and Kantorosinski Chiro.Accordingly, moving forward, practitioners

who file PIP lawsuits in an effort to obtain pay-ment from PIP insurers should recognize thatthe broad interpretation of the Fascione rule,which allowed insurers to end PIP suits simplyby paying the outstanding balance at any pointprior to judgment, is no longer the prevailingview in the District Court.For a statute designed to simplify insurance

claims related to a relatively small amount ofcoverage (a maximum of $8000), G.L.c. 90,§34M has generated a dramatic amount of liti-gation. This has done anything but simplify theability to get one’s medical bills paid followingan auto accident!That of course is a discussion for another

article.


Prevailing view on PIP attorneys’ fees shifting

proceedings in any jurisdiction for the protec-tion of the estate (for the complete list of pow-ers see §3-715). Specifically, a personal repre-sentative may also serve as plaintiff in awrongful death suit. The new laws are designed to force creditors

of decedents to assert their claims against dulyappointed personal representatives and theprocess is fairly simple if a personal represen-tative has in fact been appointed to administerthe estate.

Procedure for bringing personal injury andwrongful death claims against an estate Similarly in part to Chapter 197 §9A, MUPC

§3-803(d)(2) provides: An action for personal injuries or death, if

commenced more than one year after the dateof death of the deceased, brought against thepersonal representative, provided that such ac-tion is commenced within three years next afterthe cause of action accrues, and provided fur-ther that any judgment recovered in any actionso brought may be satisfied only from the pro-ceeds of a policy of insurance or bond, if any,

and not from the general assets of the estate. Actions for personal injuries or death may

be brought more than one year after the dateof death, however, the liability of the estate islimited to the proceeds of an insurance policy.And, unlike Chapter 197 §9A, the MUPC doesnot include a provision for bringing suitagainst a decedent’s insurer. Accordingly, as ofMarch 31, plaintiffs may no longer proceedagainst an insurer in an action against the es-tate of a decedent. To perfect service, a plaintiff must serve

within the period of limitation for such an ac-tion, either the personal representative in handor file a notice with the register of probate.Complications may arise when a personal rep-resentative has not yet been appointed. Theplaintiff is then required to petition the ProbateCourt to appoint a personal representative.This has the potential to lead to obvious proce-dural delays in filing suit that may potentiallybe an issue for plaintiffs who may be facing astatute of limitations deadline. In situations where it appears to the court

that an emergency exists, the MUPC allowsthe plaintiff to petition the court to appoint a

special personal representative almost im-mediately without notice §(3-301). General-ly, where no emergency exists, a court mustfind “after notice and hearing, that the ap-pointment of a special personal representa-tive is necessary to preserve the estate or to

secure its proper administration.” (§3-614).Open for interpretation is how Judges willinterpret what rises to “emergency” underthis section. Situations may arise where a personal repre-

sentative has been appointed and has subse-quently closed the estate under circumstanceswhich leave a claim unbarred. In these cases,

the MUPC permits creditors to enforce theclaims against distributees of the estate (aswell as against the personal representative ifany duty owed to creditors under §3-807 or§3-1003 has been breached). One potential pitfall for plaintiffs is the false

belief that simply filing a claim with the pro-bate court serves to initiate a proceeding con-cerning the claim. Rather, it merely serves toprotect the claimant who may anticipate someneed for evidence to show that his claim is notbarred. The probate court acts simply as a de-pository of the statement of claim. It’s also im-portant to keep in mind that a regular statuteof limitations may run to bar a claim before thenon-claim provisions run. In conclusion, though the MUPC aims to

simplify the procedure for the administration ofuncontested estates, trial attorneys may soonfind themselves in Probate & Family Courtmore than ever. While a majority of Chapter197 remains the same under the MUPC, thereare important changes that may lend to somecomplications as attorneys and judges alikeembark under the uncharted direction of theMUPC.


The Massachusetts Uniform Probate Code is here

This [statute] has done anything but simplify the abilityto get one’s medical bills paidfollowing an auto accident!

Though the MUPC aims tosimplify the procedure for theadministration of uncontestedestates, trial attorneys may soonfind themselves in Probate &Family Court more than ever.

Join MATA now. Apply online at www.massacademy.com


Judicial Excellence Award:Honorable Paul A. Chernoff

Excellence in Courtroom Management:Marc J. Santos, Bristol County Superior Court

Charitable Activist Award: Jake Kennedy, Kennedy Brothers Physical Therapy

MATA Annual DinnerFeaturing keynote speaker Elizabeth Warren

MATA’s Annual Meeting & Dinner

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April 2012 | Vol. 6, No. 1 Battling ‘truthiness’

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Transcript of April 2012 | Vol. 6, No. 1 Battling ‘truthiness’