Opinion
11-P-515
04-13-2012
GLADYS KITCHELL v. ARBELLLA MUTUAL INSURANCE COMPANY.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Gladys Kitchell brought an action under G. L. c. 93A and G. L. c. 176D alleging unfair and deceptive claims settlement practices on the part of Arbella Mutual Insurance Company (Arbella). This is an appeal of the entry of judgment allowing the defendant's motion for summary judgment. We affirm.
Discussion. We review the record de novo, subject to the now familiar standard that we must 'view[] the evidence in the light most favorable to the nonmoving party, [to determine whether] all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass.R.Civ.P. 56(c), as appearing in 450 Mass. 1404 (2008). '[A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates . . . that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.' Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716, (1991). Kitchell argues that Arbella violated G. L. c. 93A, § 9, and G. L. c. 176D, § 3(f), because it failed to settle her motor vehicle accident claim when liability was reasonably clear, and made unreasonably low settlement offers. We agree that fault with regard to the accident was clear -- Kitchell was rear ended. However, liability 'encompasses both fault and damages.' Clegg v. Butler, 424 Mass. 413, 421 (1997). What was not clear was the extent of damages attributable to the accident. Arbella initially paid on the claim, which was incurred in 2004, under the terms of the personal injury protection provisions of the policy. It also agreed, in June of 2006, to waive its rights of subrogation to permit Kitchell to settle with the carrier for the operator of the other vehicle for $20,000. However, Kitchell made a claim for underinsured motorist coverage in June of 2006, and tendered a demand of $100,000 in September of 2006. She demanded compensation for a neck injury for which disc surgery had been performed in June of 2006. Once this demand was made, Arbella immediately sought medical records, requested an independent medical review, and later supplemented that review. Its reviewer, Dr. R. Scott Cowan, offered the opinion that the neck condition and surgery were attributable to a previously existing condition, an injury incurred several years before that was not exacerbated by the accident.
Arbella offered first $15,000 and then $25,0000. Kitchell declined both offers. At that juncture Arbella stood firm on the offer, and the parties went to arbitration under the terms of the policy. At arbitration the issue of medical causation was addressed. The arbitrator found for Arbella, stating that the amounts paid were sufficient to pay Kitchell for her compensable injuries.
We cannot say that a 'reasonable person, with knowledge of the relevant facts and law, would probably have concluded, for good reason, that the insure[d] was liable to the plaintiff' for the additional amounts sought. Demeo v. State Farm Mut. Auto. Ins.Co., 38 Mass. App. Ct. 955, 956-957 (1995). The accident was a low impact collision, there was a preexisting medical condition, and medical causation was open to question. Ultimately, the arbitrator agreed with Arbella. Although the arbitrator's vindication of Arbella's position is not a required component of good faith, it is, in this case, dispositive of the bad faith issue as a matter of law. See Clemens v. Vermont Mut. Ins. Co., 74 Mass. App. Ct. 1122 (2009) (where liability under policy is resolved in favor of insurer, G. L. c. 93A claim will be dismissed). See generally O'Leary Alison v. Metropolitan Prop. & Cas. Ins. Co., 52 Mass. App. Ct. 214, 217-218 (2001) (claims arising from rear-end collision; insurer's settlement offer of $20,000 not so low as to constitute bad faith notwithstanding that injured party received judgment of $125,000 where insurer had 'multiple reasons to be skeptical' of insured's claims). Kitchell's related arguments that it was unfair for Arbella to have her medical records reviewed, that it sought multiple reviews until it got the opinion it wanted, and that the review was part of an effort to stall and starve her out in order to deny the claim, are unavailing for the same reasons. Here there was a real factual question concerning medical causation which Arbella was permitted to investigate and defend. Compare Rhodes v. AIG Domestic Claims, Inc., 461 Mass 486 (2012).
Kitchell argues that the doctor first found medical causation and then changed his mind upon second review. The initial report, dated September 14, 2006, states clearly 'It is therefore my opinion that the operation . . . performed for the patient's degenerative disc condition . . . was not a result in fact of the motor vehicle accident but in fact of an ongoing degenerative disc condition. It is my opinion the motor vehicle accident did not contribute significantly to the condition and did not result in the patient needing the above noted operation.' The second report reaffirms this view. Kitchell's claim that the insurer acted in subjective bad faith also fails as a matter of law, and has no basis in the record.
Finally, Kitchell suggests that it was unfair to require her to go to arbitration in accordance with the terms of the insurance policy, that she disputed the choice of arbitrator, and that she should have been informed of the consequences of arbitration. This suggestion, which is made without citation to the record or to controlling authority, does not rise to the level of appellate argument. Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Karellas v. Karellas, 61 Mass. App. Ct. 716 (2004). Compare Hannon v. Original Gunite Aquatech Pools, Inc., 385 Mass. 813 (1982) (arbitrability of G. L. c. 93A claim); Joule, Inc. v. Simmons, 459 Mass. 88 (2011) (challenge to mandatory arbitration provision of employment agreement). Similarly, the claim that the medical facts are in dispute does not form a basis for the denial of the motion for summary judgment. Having agreed to arbitration, that is the forum in which fact disputes were resolved.
Judgment affirmed.
By the Court (Sikora, Carhart & Sullivan, JJ.),