LENK, J.
The personal injury protection (PIP) provision of the automobile insurance statute permits an unpaid party to bring an action for breach of contract against an automobile insurer if the latter has not paid PIP benefits for more than thirty days after those benefits became due and payable. G. L. c. 90, § 34M, fourth par. If the unpaid party receives a judgment for any amount due and payable by the insurer, it also may recover its costs and reasonable attorney's fees. The primary question before us is whether an unpaid party who has brought suit and thereafter refused the insurer's tender of amounts due and payable, made prior to the entry of judgment, may proceed with the suit and, if successful, obtain a judgment for those amounts as well as its costs and attorney's fees. We conclude that it may proceed with the action under G. L. c. 90, § 34M.
1. Background. The plaintiff, Barron Chiropractic & Rehabilitation, P.C. (Barron), provided chiropractic services to Nicole Jean-Pierre following her automobile accident on August 20, 2008. Jean-Pierre was injured while driving a vehicle insured by the defendant Norfolk & Dedham Group (Norfolk) pursuant to G. L. c. 90, § 34A, which requires compulsory motor vehicle liability insurance, including PIP benefits.
Norfolk received notice of the accident on August 22, 2008, and, on October 10, 2008, received Jean-Pierre's application for PIP benefits.
Approximately nine months later, on July 27, 2009, Norfolk received a response to Morgan's IME report from Scott Hayden, a licensed chiropractor and a Barron employee. Hayden disagreed with Morgan's conclusion that Jean-Pierre had reached a medical end result at the time of the IME, stating instead that proper rehabilitation had required nine treatment visits after that date. On August 17, 2009, Morgan sent Norfolk an addendum to his initial IME report, indicating that Hayden's rebuttal had not altered his assessment of Jean-Pierre's care, and stating further that subsequent care offered by Barron, while "within acceptable care guidelines" and "reasonable and necessary," appeared aimed largely at preexisting conditions.
As an additional component of its investigation of Jean-Pierre's claim, Norfolk sent Barron's billing statements to BME Gateway (BME), an independent third party, for financial analysis. BME uses a computer database to determine whether a medical provider has sought fees that are usual, customary, and reasonable within a particular geographic region.
Barron submitted a bill to Norfolk seeking $3,940 in payment for its treatment of Jean-Pierre. Upon review, Norfolk concluded that it was not liable for the entirety of this requested amount. Based on BME's assessment, Norfolk deducted $64.05 from Barron's bill, allowing only $3,875.95 on that ground. In reliance on Morgan's IME report, Norfolk also limited its payment to service provided prior to the date of the IME, declining to pay a further $1,480 in charges for treatment occurring after October 27, 2008. In total, Norfolk determined that it was liable for only $2,395.95 of Barron's submitted fees, resulting in a disputed amount of $1,544.05.
At some point prior to trial, Norfolk learned that Morgan's fee to appear as an expert witness was $500 per hour, with a minimum of five hours to be billed.
Norfolk then filed a motion for summary judgment as to both the G. L. c. 90, § 34M, and G. L. c. 93A claims, supported by an affidavit from its claims supervisor, as well as by relevant medical records and BME's financial analysis. Barron filed an opposition, but neither alleged that any issues of material fact remained in dispute, nor included any counter affidavits or other documents
2. Discussion. Summary judgment is appropriate where there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). If the moving party, in its pleadings and supporting documentation pursuant to Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002), asserts the absence of any triable issue, the nonmoving party must respond and make specific allegations sufficient to establish a genuine issue of material fact. Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777-778 (2013). Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Bare assertions made in the nonmoving party's opposition will not defeat a motion for summary judgment. O'Rourke v. Hunter, 446 Mass. 814, 821 (2006). Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) ("A party may not rest upon the mere allegations or denials of his pleading"). We review the disposition of a motion for summary judgment de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007).
Barron contends that summary judgment was inappropriate as to its claim under § 34M. Because Barron declined Norfolk's late tender, made on the eve of trial, it remained an "unpaid party" pursuant to § 34M, and was entitled to seek a judgment for benefits due and payable. Relying on Fascione, supra, Norfolk maintains that it was entitled to summary judgment once it tendered a complete payment of benefits owed, notwithstanding Barron's rejection of that tender. Because we conclude, for the reasons set forth below, that Barron was permitted to refuse Norfolk's tender and pursue its suit, the order granting Norfolk's motion for summary judgment on the G. L. c. 90, § 34M, claim must be vacated and the case remanded for trial.
Barron also contests the entry of summary judgment for Norfolk as to the G. L. c. 93A claims. In its opposition to Norfolk's motion, however, Barron did not allege the existence of any factual disputes and submitted no documentation that might reveal such disputes. See Mass. R. Civ. P. 56 (e) ("[A]n adverse party [to a motion for summary judgment] ... must set forth specific facts [in its affidavits and pleadings] showing that there is
a. Claim under G. L. c. 90, § 34M. The PIP provision, G. L. c. 90, § 34M, specifies that an "unpaid party," that is, a claimant whose PIP benefits remain unpaid for more than thirty days after those benefits become "due and payable," shall have the right to bring an action in contract against an insurer to recover those benefits, as well as attorney's fees and costs should the unpaid party prevail.
To construe this provision, we "look first to the text of the statute." Boehm, supra at 690. General Laws c. 90, § 34M, fourth par., provides that suits brought to recover PIP benefits shall sound in contract, noting that an unpaid claimant "shall be deemed a party to a contract with the insurer" and may bring an "action in contract" to obtain any benefits held to be due and payable. Given these unambiguous statutory references to actions in contract, we have held that a § 34M suit brought to procure unpaid PIP benefits is governed generally by ordinary contract
Boehm, supra. "That § 34M does not explicitly refer to the right to a jury trial," we concluded, "is of no consequence." Boehm, supra at 691-692. The Legislature's explicit determination that an unpaid PIP claimant may file a contract suit "carries with it the principle[s]" of the common law of contracts. Id. at 692. See Commonwealth v. Burke, 392 Mass. 688, 690 (1984) (statute must be construed as consistent with common law absent clear contrary legislative intent).
Principles of contract law are "dispositive" of the present case, just as they were of the question addressed in Boehm. At common law, tender of a sum owed under a contract is valid only when made prior to the parties' agreed-upon date for payment, even if that tender is for the entire disputed sum.
A party who receives an invalid late tender is not obliged to accept it. See Levin v. Wall, supra at 427 (plaintiff permitted to reject tender made on first day of trial for breach of contract and pursue his claim to judgment); Davis v. Harrington, 160 Mass. 278, 280 (1894) (plaintiff who accepted complete tender after filing breach of contract suit "could have preserved his right to interest by way of damages, and also to costs, by declining to accept the payment"); Loitherstein v. International Business Machs. Corp., 11 Mass.App.Ct. 91, 92 (1980) (defendant's late tender, which plaintiff rejected, did not extinguish plaintiff's claim for damages due to breach). Where a defendant attempts to tender payment after it has already breached the contract, "the rights of the parties depend, not on a tender, but on the acceptance of a payment which discharged the cause of action." Davis v. Harrington, supra at 280. Even if a plaintiff receives a tender of payment in full for a disputed sum, as here, "an underlying debt may not be discharged unless payment is accepted." First Nat'l Bank v. Commonwealth, 391 Mass. 321, 326 (1984). Late tender alone therefore does not preclude a plaintiff from filing a claim for breach or pursuing a then-pending suit.
Here, Norfolk's tender of $1,544.05 was made past the deadline set forth in the PIP provision. General Laws c. 90, § 34M, establishes the date of breach relevant to unpaid PIP benefits, providing that, where "benefits due and payable remain unpaid
Norfolk maintains nonetheless that, under our decision in Fascione, its tender of payment was sufficient to discharge all of its obligations to Barron, and that the allowance of its motion for summary judgment was proper.
Fascione affords no basis upon which to conclude that a PIP claimant, having filed an action in contract against an insurer for its delayed payment of benefits, is obliged to accept late tender and thus relinquish its suit. We held in that case that G. L. c. 90, § 34M, provides no further remedy to a claimant who has accepted an insurer's late, but complete, tender of payment; this in no way was intended to suggest that a claimant may not reject such tender in an effort to obtain the attorney's fees and costs mandated by § 34M. Indeed, our analysis relied on the claimant's acceptance of the insurer's reimbursement, which removed any basis for a judgment in favor of the claimant by compensating her for all "amount[s] due and payable."
Moreover, to interpret Fascione as Norfolk suggests would contravene the fee-shifting provision of G. L. c. 90, § 34M, thereby enabling insurers to delay their payment of benefits without consequence. The Legislature was "aware of the long delays in getting financial aid to the injured person" when it enacted the PIP provision. Pinnick v. Cleary, 360 Mass. 1, 20 (1971). Accordingly, the thirty-day payment period, in conjunction with the provision for attorney's fees and costs, together protect "the right and need of all accident victims to simple and speedy justice." Id. at 21. Since a cause of action lies against an insurer who fails to pay PIP benefits within the statutory period, and since the insurer will be liable for attorney's fees and costs if a claimant obtains a judgment for the unpaid amount, G. L. c. 90, § 34M, encourages the prompt payment of benefits.
The provision for payment of attorney's fees and costs would be similarly toothless. When an insurer's payment of PIP benefits, as here, is made on the eve of trial, a claimant may well have incurred substantial expenses. If, as Norfolk suggests, a claimant were required to accept such late tender, she would be bound to forgo the recovery of those expenses whenever an insurer offered belated reimbursement of a disputed sum. See Pine v. Rust, 404 Mass. 411, 416 (1989) ("If an offer of the statutory minimum amount of damages were all that could be expected by plaintiffs, there would be no need for provision in the law for the award of attorney's fees"). Moreover, a contract suit under § 34M is only necessary, in the first instance, if an insurer fails to reimburse a claimant by the statutory deadline. Under Norfolk's approach, far from reducing the amount of litigation, § 34M would provide incentives for insurers to delay payment until their insureds filed suit to collect amounts owed; on a date of its choosing, an insurer then unilaterally could terminate litigation prompted only by its own delay. "[E]quity will not permit" such a result, which would allow an insurer to "defeat a remedy which except for his misconduct would not be available." Lamb v. Rent Control Bd. of Cambridge, 17 Mass.App.Ct. 1038, 1039 (1984), quoting Deitrick v. Greaney, 309 U.S. 190, 196 (1940).
In sum, an insurer's late tender of PIP benefits, made after a claimant has filed suit and which the claimant declines to accept, does not entitle an insurer to summary judgment. To be sure, an insurer may opt to tender payment of outstanding PIP benefits after the filing of a suit, and if a claimant accepts that tender, the action under G. L. c. 90, § 34M, will be extinguished. See Fascione,
b. Claims under G. L. c. 93A, §§ 9 and 11. Barron contends also that the judge erred in allowing Norfolk's motion for summary judgment on the G. L. c. 93A claims.
In the circumstances of this case, there was no error in allowing Norfolk's motion for summary judgment on the G. L. c. 93A claims. Norfolk's motion stated that there were no genuine issues of material fact as to the propriety of Norfolk's dealings under G. L. c. 93A, and indicated that Norfolk acted, at all times, in accordance with appropriate business judgments. In support of its motion, Norfolk included a detailed affidavit by one of its senior claims supervisors outlining its conduct in handling Jean-Pierre's claim for PIP benefits. According to the affidavit, Norfolk relied in good faith on the IME report in deciding to limit payment to dates of medical service prior to October 27, 2008, and relied similarly on BME's fee analysis in reducing Barron's submitted bills by $64.05. See Duclersaint v. Federal Nat'l Mtge. Ass'n, 427 Mass. 809, 814 (1998); Lumbermens Mut. Cas. Co. v. Y.C.N. Transp. Co., 46 Mass.App.Ct. 209, 215 (1999).
In its opposition to Norfolk's motion for summary judgment, Barron did not allege that material facts were in dispute, stating only that "[n]othing in Norfolk's submission demonstrates that no genuine issue of fact remains on the G. L. c. 93A claims. Thus,
3. Conclusion. The order allowing judgment for Norfolk on count 1, the G. L. c. 90, § 34M, claim, is vacated and set aside, and the matter is remanded to the District Court for further proceedings on that claim. The entry of judgment for Norfolk on counts two and three, the claims under G. L. c. 93A, is affirmed.
So ordered.
Other Appellate Division decisions, however, have concluded that "[n]othing in Fascione dictates that a tender of the balance due under the § 34M claim must necessarily stop that part of the litigation in its tracks and require a judgment of zero damages." Metro West Med. Assocs., Inc. vs. Amica Mut. Ins. Co., Mass. Dist. Ct. App. Div., No. 10-ADMS-10009 (June 29, 2010). See Olympic Physical Therapy vs. ELCO Admin. Servs., Mass. Dist. Ct. App. Div., 10-ADMS-10017 (Aug. 17, 2010).