Jurisdiction – Restraint of trade – PIP

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Where a medical provider, claiming to be owed personal injury protection benefits, has asserted a claim against the defendant insurer pursuant to G.L.c. 93, an order dismissing that claim must be affirmed for lack of jurisdiction.

“On January 18, 2012, Marcos Mendes was injured while he was either a passenger in a motor vehicle or a pedestrian struck by a motor vehicle. The motor vehicle was insured by [defendant] Arbella. Mendes sought medical treatment from [plaintiff] Optimum, and Optimum billed Arbella pursuant to the terms of the Massachusetts automobile policy’s Personal Injury Protection (PIP) benefits provisions. …

“Arbella paid the first two thousand dollars billed by Optimum for care Optimum rendered to Mendes, but did not pay additional bills. The plaintiff filed its complaint alleging that it had submitted such bills to Arbella and had met the conditions precedent, that Arbella’s failure to pay was a violation of its obligations pursuant to the terms of the policy and G.L.c. 90, section34M, (count one), that the failure to pay constituted an unfair or deceptive act or practice, in violation of G.L.c. 93A, section11, (count two), that the failure to pay constituted an unfair claims settlement practice, in violation of G.L.c. 176D, section3, and so constituted a violation of G.L.c. 93A, section2(a), (count three), and, finally, that Arbella’s conduct in failing to pay the claim constituted a restraint of trade in violation of G.L.c. 93, sectionsection4 and 5 (count four). …

“Count four presents an insurmountable problem for the plaintiff here. It seeks relief for an alleged violation of G.L.c. 93, specifically, that the facts pled make out a case of unlawful restraint of trade, in violation of G.L.c. 93, section4, and/or an attempt to monopolize a part of trade, in violation of c. 93, section5. The plaintiff avers that it brings those claims pursuant to G.L.c. 93, section12.

“That provision, G.L.c. 93, section12 provides a private right of action for any violation of chapter 93, and directs that ‘[t]he superior court shall have jurisdiction of actions brought under’ that section. …

“… [T]he issue here is whether the specific jurisdictional grant in G.L.c. 93, section12 requires that the superior court have ‘first crack’ at the jurisdiction issue, and, only if that court declines to exercise its jurisdiction, will the jurisdiction arising from the specific statutory grant vest in the district or municipal court upon filing. We think it does.

“The superior court judge in deciding whether to retain the case for trial or dismiss, may consider such relevant factors as ‘the relative predominance of the equitable and damages claims in the particular case — put another way, whether the gravamen of the complaint sounds in equity or law; whether the scope of the action, even with the equity claim included, is more similar to actions fitting within the $25,000 or less amount in controversy limitation; and whether the resolution of the matter will be substantially delayed by dismissal or particularly costly to the parties because of the number of filings that will need to be repeated in the District Court.’ … The gist of that exercise is that a superior court judge, in whom jurisdiction has been specifically vested by a particular statute, has to determine whether the case is one more appropriate for that court or the district court. And so jurisdiction over a statutory cause of action which the legislature has vested in the superior court does not exist in this court until the superior court declines to exercise it. …

“Because the parties have fully briefed the issue, we note that should the plaintiff choose to re-file the case here without making claim for relief under G.L.c. 93, section12, we are of the opinion that counts one through three, as pled, would be sufficient to defeat a motion to dismiss for failure to state a claim upon which relief can be granted. …

“The bare silhouette of a cause of action is visible here. The complaint alleges that ‘[o]n or about January 18, 2012, Marco Mendes was an occupant of a motor vehicle that was involved in an accident in Massachusetts or was a pedestrian struck by a motor vehicle in Massachusetts, and that the vehicle was insured by Arbella. Optimum claims that Mendes was injured in the accident, that Optimum provided medical treatment to him, that the services were reasonable and necessary and casually related to the accident, that they submitted bills to Arbella, that conditions precedent to payment of those bills were satisfied, that Arbella has failed and refused to pay such bills in violation of the insurance contract, and that such bills remained unpaid for more than thirty days. Such facts are sufficient to defeat a motion to dismiss as to count one, and counts two and three similarly are supported by factual allegations I which, if true, may entitle the plaintiff to relief pursuant to G.L.c. 93A, section11 and section9.”

Optimum Care Physical Therapy & Rehabilitation, Inc. v. Arbella Mutual Insurance Company (Lawyers Weekly No. 13-043-14) (12 pages) (Fiandaca, J.) (Appellate Division, Boston Municipal Court) Appealed from a decision by Tynes, J., in the BMC. Elizabeth H. Manos, of Fireman & Associates, for the plaintiff; Steven C. Malone, of Segalini & Neville, for the defendant (App. Div. No. 1307CV0225) (Aug. 18, 2014).

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