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14-P-8 Appeals Court

BYRON V. HARTUNIAN, M.D., P.C. vs. PILGRIM INSURANCE COMPANY.

No. 14-P-8.

Middlesex. September 9, 2014. - November 24, 2014.

Present: Kantrowitz, Grainger, & Hanlon, JJ.

Insurance, Motor vehicle personal injury protection benefits, 

Settlement of claim, Unfair act or practice. Consumer 

Protection Act, Insurance, Unfair or deceptive act. Motor 

Vehicle, Insurance.

Civil action commenced in the Cambridge Division of the 

District Court Department on November 7, 2008. 

The case was heard by Severlin B. Singleton, III, J.

Joseph R. Ciollo for the defendant.

Francis A. Gaimari for the plaintiff.

GRAINGER J. A $990 dispute, reduced shortly before a bench 

trial in the District Court to a claim for $188.10, has resulted 

in an award totaling $25,343.53 against Pilgrim Insurance 

Company (Pilgrim).

1 Pilgrim now appeals from the decision and 

 

1 The $188.10, representing interest on the period during 

which Hartunian claimed Pilgrim engaged in bad faith delay in
2

order of the Appellate Division of the District Court affirming 

the District Court judgment in favor of Byron Hartunian, M.D.,

P.C. (Hartunian), on his claim that Pilgrim unfairly delayed

payment for orthopedic treatment rendered by Hartunian to the 

claimant under Pilgrim's policy. We affirm.

This case arises out of an April 4, 2007, automobile 

accident in which a passenger was injured, resulting in her need 

for medical treatment. The automobile in which she was a 

passenger was covered by a standard Massachusetts automobile 

insurance policy (auto policy) issued by Pilgrim. A personal 

injury protection (PIP) benefits application was received by 

Pilgrim approximately ninety days after the accident. Some 

ninety additional days thereafter Pilgrim received treatment 

records and bills from Hartunian for five different dates of 

treatment.

2 Pilgrim initially paid $515 to Hartunian, 

constituting payment for the first two treatment dates of May 15 

and June 20, 2007. Thereafter, Pilgrim paid Hartunian an 

additional $495 for the remaining three treatment dates of July 

19, August 14, and October 2, 2007. Although these two payments 

 

payment of a claim, was trebled by the trial judge. To this was 

added prejudgment interest, attorney's fees and costs in the 

District Court, and appellate attorney's fees after Pilgrim's 

unsuccessful appeal to the Appellate Division of the District 

Court.

2 Before the plaintiff's bills were received, an independent 

medical exam (IME) was performed by a physical therapist.
3

were intentionally $990 less than the total of Hartunian's 

billings, Pilgrim did not notify Hartunian or his patient of its 

intention not to pay the $990 within ten days of the submission 

of the bills. Pilgrim based its nonpayment on its determination 

that the charges exceeded an amount that was reasonable in 

comparison to other medical providers in the same geographic 

area.

After approximately twelve months of demanding payment to 

no avail, Hartunian commenced suit in the District Court on 

November 7, 2008, seeking the unpaid $990 portion of his 

billings, as well as damages and costs pursuant to G. L. c. 93A 

and G. L. c. 176D. Faced with suit, Pilgrim then issued a 

payment of $990 to Hartunian's counsel and filed a motion for 

summary judgment on all counts of the complaint. The motion was 

allowed on those counts relating to breach of contract and 

declaratory judgment and denied with respect to the remaining 

counts. After a bench trial, Pilgrim was found liable to 

Hartunian for violation of G. L. c. 93A and G. L. c. 176D. 

Pilgrim filed a timely notice of appeal to the Appellate 

Division, which affirmed the judgment.

Discussion. We are unpersuaded by Pilgrim's assertion that 

its refusal to make payment cannot be considered an unfair

business practice as a matter of law because it disputed the 

obligation in good faith. This argument ignores the trial 
4

judge's findings, supported by the record, detailing the breach 

of Pilgrim's obligation under G. L. c. 90, § 34M, fourth par.,

to make payment of PIP benefits within ten days or, 

alternatively, to notify the submitting physician or the 

claimant of its intention not to pay. Pilgrim also failed to 

have the patient examined by a practitioner licensed in the same 

medical specialty as Hartunian, an orthopedist, during an 

independent medical examination (IME). Instead, a physical 

therapist examined the insured, and Pilgrim denied Hartunian 

payment on the basis of that examination, among other reasons.

Pilgrim asserts that its use of an IME performed on its 

behalf by a physical therapist precludes the judge's finding of 

bad faith as a matter of law. Relying on the Supreme Judicial 

Court's decision in Boone v. Commerce Ins. Co., 451 Mass. 192 

(2008) (Boone), it points to the fact that both physical 

therapists and orthopedists are licensed under G. L. c. 112, 

arguing that, therefore, reliance on a physical therapist's 

opinion regarding the need for continuing treatment by an 

orthopedist has been legislatively defined as good faith 

reliance. In Boone, the Supreme Judicial Court held that under 

G. L. c. 90, § 34M, third par., an insurer can refuse to pay a 

medical bill based on an IME conducted by a physician who need 

not necessarily be licensed under the same section of G. L. 

c. 112 as the physician submitting the bill. Boone, supra at
5

196. By contrast, when the insurance company's refusal to pay 

is based "solely" on "a medical review of the bill or of the 

medical services underlying the bill," the review must be 

conducted by a practitioner licensed under the same section of 

G. L. c. 112. See G. L. c. 90, § 34M, fourth par., as inserted 

by St. 1989, c. 271.

While an IME performed by any physician selected by the 

insurer may be sufficient to satisfy the requirements of § 34M,

third par., we reject Pilgrim's assertion that Boone, or any 

other authority, stands for the proposition that compliance with 

§ 34M automatically insulates an insurer from a claim of unfair 

settlement practices under c. 93A. The ability of the reviewing 

practitioner to assess the need for further treatment is a 

function of training, experience, and, in many cases, specific 

area of medical expertise. Indeed, Boone recognized that not 

all practitioners licensed under § 112 could appropriately 

render a medical opinion in all other specialties licensed under 

§ 112; rather, the court acknowledged that licensees "cannot 

lawfully practice outside the scope of their professional 

registration." Boone, supra at 198.3 Reliance on a different 

specialty raises a factual question of the insurer's good faith 

 

3 As an example, Boone states that "[O]rthopedic surgeons 

and chiropractors cannot . . . render medical decisions about 

dentistry." Boone, supra at 198.
6

especially where, as here, the reviewer's area of practice 

requires less training and education than that of the submitting 

physician, rather than the reverse.

4

The only witness at trial, a PIP claims representative from 

Pilgrim who was not the individual who handled the Hartunian 

claim, testified that Pilgrim's determination that Hartunian's 

billings were unreasonable was also based on a review of those 

billings by a computer program. Neither the specific results of 

that review nor any evidence about the program was introduced in 

evidence. In any event, use of a computer program does not

excuse failure to comply with the clear requirements of G. L. 

c. 90, § 34M, fourth par.; on the contrary, its use as a 

substitute for a practitioner's review of billing statements and 

underlying services provides an additional basis for an 

inference of Pilgrim's lack of good faith under c. 93A.

5

Accordingly the judge found, with support in the record,

that Pilgrim forced Hartunian to file suit, and that the delay 

in payment did not comply with the requirements of § 34M and was 

 

4 We note that in Boone, the insurance company relied on an 

IME conducted by an orthopedic surgeon to refuse payment to a 

chiropractor.

5 By contrast, in the case of Barron Chiropractic & 

Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 

801-802 (2014), the insurer appropriately had the IME performed 

by a licensed chiropractor where the chiropractic services were 

questioned.
7

neither reasonable nor in good faith.

6 There was no error in 

tripling the award of lost interest resulting from the delay, or 

in the award of attorney's fees.

Hartunian may submit a petition for appellate attorney's

fees to this court in the manner prescribed in Fabre v. Walton, 

441 Mass. 9, 10-11 (2004), within twenty days of the issuance of 

this opinion. Pilgrim may respond to the petition within twenty 

days of said filing.

Decision and order of the

 Appellate Division

 affirmed.

 

6 As the careful review of the Appellate Division panel

notes, the judge considered Pilgrim's behavior in the context of 

G. L. c. 93A, § 11, noting that Pilgrim's actions mirrored those 

prohibited by G. L. c. 176D. The judge did not rule, contrary 

to Pilgrim's assertion, that a violation of G. L. c. 176D was 

per se a violation of c. 93A, § 11.