Opinion
14-P-1848
10-16-2015
MARIO REGIS v. PROGRESSIVE INSURANCE COMPANY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff filed an action in the Superior Court under G. L. c. 251, § 2, seeking to compel arbitration of two claims against the defendant insurer: a claim for uninsured motorist benefits under a standard Massachusetts motor vehicle insurance policy issued by the defendant, and a claim that the insurer violated G. L. cc. 176D and 93A by refusing to entertain or settle the uninsured motorist claim. The insurer moved to dismiss the complaint, pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), arguing that the claim for uninsured motorist benefits was barred by the plaintiff's non-cooperation (specifically his failure to complete an examination under oath and his failure to provide material documents and information in conjunction therewith), and that the claim asserting violations of chapters 176D and 93A is not subject to arbitration. A judge of the Superior Court allowed the motion to dismiss, stating in a marginal note that "the plaintiff's complaint arises from a legal question of insurance coverage, an issue not properly committed to arbitration."
Before us is the plaintiff's appeal. "We review the allowance of a motion to dismiss de novo," Curtis v. Herb Chambers I-95, Inc., 458 Mass. 674, 676 (2011), accepting as true "the factual allegations in the plaintiff['s] complaint, as well as any favorable inferences reasonably drawn from them," Ginther v. Commissioner of Ins., 427 Mass. 319, 322, (1998).
It is well-established that the plaintiff's claim under chapters 176D and 93A is not within the scope of the policy's arbitration clause. See Beals v. Commercial Union Ins. Co., 61 Mass. App. Ct. 189, 194 (2004); White v. Safety Ins. Co., 65 Mass. App. Ct. 607, 609-610 (2006). The claim, however, may be litigated in court. Accordingly, while it was appropriate to dismiss so much of the complaint that sought to compel arbitration of the alleged violations of chapters 176D and 93A, dismissal should have been without prejudice to the filing of a new complaint, or the amendment of the present complaint, to assert the alleged violations in a civil action for damages.
Consistent with the requirements of G. L. c. 175, § 111D, the policy's arbitration clause provides that "the determination as to whether an injured person is legally entitled to recover damages from the legally responsible owner or operator will be by agreement between [the insurer] and the injured person. The amount of damages, if any, will be determined in the same way. Arbitration will be used if no agreement can be reached."
Insofar as the complaint sought to compel the insurer to arbitrate the plaintiff's entitlement to uninsured motorist benefits, it should not have been dismissed. Although the representations in the insurer's motion and accompanying memorandum, if substantiated, may well establish that it has a valid coverage defense to the payment of such benefits, a motion to dismiss must be decided based on the allegations of the complaint. On the face of the complaint, it cannot be determined, as matter of law, that the insurer is excused from liability under its policy.
If proved by the insurer, a wilful, unexcused failure by a claimant to submit to an examination under oath, reasonably requested, constitutes a material breach of the insurance contract and discharges the insurer's liability without having to prove actual prejudice to its interests. See Lorenzo-Martinez v. Safety Ins. Co., 58 Mass. App. Ct. 359, 362 (2003); Morales v. Pilgrim Ins. Co., 58 Mass. App. Ct. 722, 724 (2003). See also Hanover Ins. Co. v. Cape Cod Custom Home Theater, Inc., 72 Mass. App. Ct. 331, 335-336 (2008).
The judgment dismissing the plaintiff's complaint in its entirety and with prejudice is vacated. A new judgment shall enter dismissing so much of the complaint that seeks to compel arbitration of the plaintiff's claim under G. L. cc. 176D and 93A, without prejudice to asserting that claim in a civil action. The claim seeking to compel arbitration of the plaintiff's entitlement to uninsured motorist benefits is remanded to the Superior Court for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: October 16, 2015.