Civil practice – Chapter 93A

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Where a defendant insurance company was awarded summary judgment, that judgment should be affirmed because the plaintiffs failed to show that the insurer violated G.L.c. 93A by denying personal injury protection benefits and by sharing information between the plaintiffs’ PIP file and their bodily injury file.

“Plaintiffs Antonina and Michael Salafia (‘Salafias’) sued defendant Elizabeth Moore (‘Moore’) for personal injuries allegedly sustained in a motor vehicle accident. Plaintiffs also sued Moore’s insurer, Safety Insurance Company (‘Safety’), for violation of G.L.c. 93A and c. 176D. After a jury verdict in favor of Moore, the trial judge denied a motion for a new trial based on a claimed discovery violation. The same judge awarded summary judgment for Safety on the c. 93A and c. 176D claim. …

“During its investigation, Safety opened two files: one for the Salafias’ no-fault personal injury protection (‘PIP’) claim, and the other for their bodily injury (‘BI’) claim against Moore. The adjuster assigned to each file became suspicious, so Safety opened a Special Investigations Unit (‘SIU’) fraud investigation on June 12, 2014, during which a single investigator looked at both files. Plaintiffs allege — but defendants deny — that the PIP and BI adjusters exchanged file information and compared notes, even before the SIU got involved. …

“Plaintiffs allege Safety violated G.L.c. 93A and c. 176D by unfairly denying them PIP benefits. This issue boils down to two questions: first, did Safety reasonably investigate the alleged crash as required by G.L.c. 176D §3(9)(d)? Second, after that investigation, was it reasonably clear that the crash caused plaintiffs’ alleged injuries?  …

“It is evident from the undisputed facts discussed supra, that Safety reasonably investigated the accident that is the basis of plaintiffs’ complaint. … As Safety reasonably investigated plaintiffs’ claim, it was clear (if not certain) that the accident, if it even occurred, did not cause plaintiffs’ injuries. …

“Plaintiffs next allege that Safety violated G.L.c. 93A and c. 176D by sharing information between the Salafias’ PIP file and BI file. Allowing all reasonable inferences in the plaintiffs’ favor, we will assume (without deciding) the PIP and BI adjusters actually exchanged information and did so even before beginning a statutorily protected SIU fraud investigation. That fact, while perhaps disputed, is immaterial. Indeed, none of plaintiffs’ summary judgment materials raise an authentic dispute that Safety’s alleged file sharing violated c. 176D.

“Plaintiffs cite no statute or case law for the proposition that sharing information between first- and third-party insurance claims may run afoul of G.L.c. 93A or c. 176D. Plaintiffs instead rely upon an affidavit by their expert, Paul Amoruso (‘Amoruso’), to establish this proposition. Mass. G. Evid. §702(d) (2023) allows expert witnesses to testify at trial only if they have ‘reliably applied [their] principles and methods to the facts of the case’ (emphasis added). Rule 56(e) of the Mass. R. Civ. P., by allowing summary judgment affidavits only from ‘competent’ witnesses able to testify to ‘specific facts’ at trial, largely tracks the standards of Rule 702. Accordingly, the Amoroso affidavit is insufficient to defeat summary judgment because it fails to apply its bald assertions to the actual issue at hand: how the specific conduct — file sharing — amounted to a c. 93A violation. …

“To illustrate, Amoruso wrote that it is ‘customary’ practice to not share files in order to ‘protect the insured,’ give him ‘every benefit of the doubt,’ and ‘prevent information developed by the claims department … from reaching the coverage department.’ These boilerplate remarks, apart from being somewhat circular, provide no clarity on how departing from custom would be unfair and warrant the c. 93A violation asserted in the present appeal. That is, they neglect to describe how the Salafias themselves were not ‘protected’ or not given ‘the benefit of the doubt’ under these circumstances. Amoroso continues, ‘It is not standard … practice to deny a minor child no fault PIP for failing to appear for an examination under oath.’ That assertion, aside from misrepresenting what happened, overlooks the potential irrelevance of ‘standard practice’ to a case involving highly non-standard factors like possible fraud.

“As to any claim for PIP benefits, we note briefly that, even if plaintiffs were able to make out a G.L.c. 90, §34M PIP case, there was noncooperation by the Salafias, as a matter of law, given their failure to present Michael for examination. Indeed, courts have granted summary judgment in cases with analogous facts. An insurer is entitled to get a complete picture of the facts from witnesses before writing a check. As such, plaintiffs’ single defense — that Safety should have been content to speak with Michael’s father, a non-witness, instead of Michael, a firsthand witness who ‘remembers everything’ — is simply illogical.”

Salafia, et al. v. Moore, et al. (Lawyers Weekly No. 13-018-25) (10 pages) (McGrath, J.) (Northern District) Appealed from a decision by Swan, J., in Ipswich District Court. Nolan Young, Valerie T. Montoya and Joseph M. Orlando Jr., all of Orlando & Associates, for the plaintiffs; David A. Matela for defendant Elizabeth Moore; Peter L. Bosse and Brian P. Doherty, all of Boyle Shaughnessy Law, P.C., for defendant Safety Insurance Company (App. Div. No. 22-ADCV-50NO) (March 14, 2025).

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