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Figuereo v. Valverde11/26/2003
Middlesex.
September 16, 2003.
Insurance, Motor vehicle personal injury protection benefits. Motor Vehicle, Insurance. Practice, Civil, Judgment, Motion to amend. Judgment, Amendment.
Civil action commenced in the Somerville Division of the District Court Department on January 10, 2000.
The case was tried before Brian R. Merrick, J., and a motion to alter or amend the judgment was heard by him.
A six-person jury in the District Court returned a verdict for the plaintiff, Roxanna Figuereo, in the amount of $5,000 in this action for personal injuries she sustained in an automobile accident with the defendant, Neila Valverde. At the time of the accident both the plaintiff and defendant were insured under standard Massachusetts automobile liability policies that included personal injury protection (PIP) benefits. But for the complications we describe, the plaintiff would have received $2,000 in PIP benefits from her insurer, and the defendant would have been not liable in tort to the plaintiff to that extent under G. L. c. 90, § 34M, second par., first sentence. If the plaintiff's insurer had paid $2,000 in PIP benefits to the plaintiff, the plaintiff's insurer would have been able to recover that amount from the defendant's insurer in that amount, since the defendant was found to be at fault. G. L. c. 90, § 34M, fifth par.
The defendant filed a motion to alter or amend the judgment under Mass.R.Civ.P. 59(e), 365 Mass. 827 (1974), to reduce it by $2,000 to reflect her exemption from tort liability, to the extent of the plaintiff's PIP benefits. In response to the defendant's motion, the plaintiff submitted a letter from her insurer, Commerce Insurance Company (Commerce), informing the plaintiff that she had provided false material information in her application for insurance, and therefore she would not be provided with PIP benefits. On the basis of this denial of coverage by Commerce, the plaintiff opposed the reduction of the verdict. The defendant argued, in substance, that she should be entitled to the PIP deduction because the plaintiff's PIP coverage was denied to the plaintiff based on the plaintiff's misconduct and that the defendant should not be deprived of the benefit of an exemption from tort liability where the defendant was not responsible for the plaintiff's loss of PIP coverage.
The trial judge agreed with the defendant and allowed the motion to alter or amend the judgment. On appeal, the Appellate Division of the District Court vacated that decision and ordered the entry of judgment for the plaintiff in the amount of the full $5,000. This appeal followed. We affirm the decision and order of the Appellate Division.
Analysis.
Under G. L. c. 90, § 34M, second par., as inserted by St. 1970, c. 678, § 4:
"Every owner . . . of a motor vehicle to which personal injury protection benefits apply who would otherwise be liable in tort . . . is hereby made exempt from tort liability for damages . . . to the extent that the injured party is . . . entitled to recover under those provisions of a [policy] that provide benefits" (emphasis supplied).
The plain meaning of this statute is that if the plaintiff in this case (the "injured party") is not entitled to recover under the provisions of a policy that provides PIP benefits, then the defendant (who must also be an owner of a motor vehicle to which PIP benefits apply) is not made exempt from tort liability for damages. See Chipman v. Massachusetts Bay Transp. Authy., 366 Mass. 253, 257-259 (1974). See also Pinnick v. Cleary, 360 Mass. 1, 8 (1971).
There is, however, a further complication injected by
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