Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group

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SJC-11561

BARRON CHIROPRACTIC & REHABILITATION, P.C. vs. NORFOLK &
DEDHAM GROUP.

Norfolk. May 5, 2014. - October 15, 2014.

Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly,
& Lenk, JJ.1

Insurance, Motor vehicle personal injury protection benefits,
Unfair act or practice. Contract, Insurance. Practice,
Civil, Summary judgment, Attorney's fees. Consumer
Protection Act, Insurance.

Civil action commenced in the Dedham Division of the
District Court Department on November 25, 2009.

The case was heard by James J. McGovern, J., on a motion
for summary judgment.

The Supreme Judicial Court granted an application for
direct appellate review.

Francis A. Gaimari (Robert N. Fireman & Stephen B. Byers
with him) for the plaintiff.
Joseph R. Ciollo (Michael L. Snyder with him) for the
defendant.
E. Michael Sloman, for Automobile Insurers Bureau, amicus
curiae, submitted a brief.

1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
 2

Christopher M. Moutain, for American Insurance Association
& others, amici curiae, submitted a brief.

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
 3

compulsory motor vehicle liability insurance, including PIP

benefits.2 See G. L. c. 90, §§ 34A, 34M.

Norfolk received notice of the accident on August 22, 2008,

and, on October 10, 2008, received Jean-Pierre's application for

PIP benefits.3 Shortly thereafter, pursuant to its contractual

right under the terms of Jean-Pierre's insurance policy, as well

as language in the PIP provision, Norfolk requested that Jean-

Pierre undergo an independent medical examination (IME)4 by Kevin

Morgan, a licensed chiropractor of its selection. On

October 27, 2008, Morgan submitted his IME report to Norfolk.

The report stated that, while treatments up to the date of the

2
Personal injury protection (PIP) benefits consist of "all
reasonable expenses incurred within two years from the date of
[the] accident for necessary medical, surgical, x-ray, and
dental services," and, for employed persons, "any amounts
actually lost by reason of inability to work and earn wages or
salary or their equivalent." G. L. c. 90, § 34A.
3
General Laws c. 90, § 34M, third par., states that a
"[c]laim for benefits due under the provisions of personal
injury protection or from the insurer assigned shall be
presented to the company providing such benefits as soon as
practicable after the accident occurs from which such claim
arises, and in every case, within at least two years from the
date of the accident, and shall include a written description of
the nature and extent of injuries sustained, treatment received
and contemplated and such other information as may assist in
determining the amount due and payable."
4
The PIP provision provides that the "insured person shall
submit to physical examinations by physicians selected by the
insurer as often as may be reasonably required and shall do all
things necessary to enable the insurer to obtain medical reports
and other needed information to assist in determining the
amounts due." G. L. c. 90, § 34M, third par.
 4

IME had been appropriate, Jean-Pierre had reached "maximum

therapeutic benefit." Based on this report, Norfolk concluded

that treatments Barron provided Jean-Pierre after the date of

the IME were unreasonable and unnecessary. A few days

thereafter, Norfolk provided Jean-Pierre's counsel with a copy

of the report.

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.
 5

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.

On November 25, 2009, more than one year after Jean-Pierre

had submitted her application for PIP benefits, Barron filed a

complaint in the District Court.5 Barron sought payment of

$1,544.05, plus interest, attorney's fees, and costs pursuant to

G. L. c. 90, § 34M; multiple damages and attorney's fees

pursuant to G. L. c. 93A, § 11, for alleged unfair or deceptive

practices regarding Jean-Pierre's insurance claim; and multiple

damages and attorney's fees pursuant to G. L. c. 93A, §§ 9 and

5
We have construed the term "unpaid party" in G. L. c. 90,
§ 34M, to include, as here, "an unpaid medical provider who
treats an insured." Boehm v. Premier Ins. Co., 446 Mass. 689,
691 (2006). The medical provider may thus "step into the shoes
of the insured and bring an action in contract to recover PIP
benefits." Id.
 6

11, for violations of G. L. c. 176D, § 3 (9), which prohibits

insurers from engaging in unfair settlement practices.

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.6 Although still maintaining

that it did not owe Barron any additional payments, Norfolk

determined that its anticipated litigation costs would exceed

the amount of the disputed medical fees by a substantial sum.

Accordingly, on September 28, 2010, six days prior to the second

scheduled trial date,7 Norfolk sent Barron a check for $1,544.05

with an attached check stub that stated "full and final

settlement for Nicole Jean Pierre." Norfolk included a letter

stating that its payment was made pursuant to Fascione v. CNA

Ins. Cos., 435 Mass. 88 (2001) (Fascione); the letter requested

that Barron sign an acknowledgment of the receipt of final

payment and file a stipulation of dismissal in the District

Court as to its claims under the PIP provision. On October 12,

2010, Barron's counsel returned the check to Norfolk's counsel

with a letter stating, "Your client's offer of settlement is

rejected."

6
In its pretrial memorandum, dated May 11, 2010, Norfolk
indicated that Morgan was expected to testify as to the
substance of his independent medical examination and report.
7
The trial initially was scheduled for August 3, 2010, but
was rescheduled at the parties' request for October 4, 2010.
 7

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 indicating any factual dispute. A District

Court judge granted Norfolk's motion for summary judgment, and,

on Barron's appeal, the Appellate Division of the District Court

affirmed the judgment. Barron filed a notice of appeal in the

Appeals Court, and we granted Norfolk's subsequent application

for direct appellate review.

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
 8

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
 9

that there is a genuine issue for trial"). Accordingly, we

affirm the order granting Norfolk's motion for summary judgment

on the G. L. c. 93A claims.

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.8 Under common-law principles of

contract, which we have deemed applicable to "action[s] in

contract" under § 34M, see Boehm v. Premier Ins. Co., 446 Mass.

689, 691 (2006) (Boehm), a plaintiff may reject a defendant's

disputed tender of payment, made after the date set for payment

has expired, and litigate its breach of contract claim to

8
Specifically, G. L. c. 90, § 34M, fourth par., states, in
relevant part:

"Personal injury protection benefits . . . shall be
due and payable as loss accrues, upon receipt of reasonable
proof of the fact and amount of expenses and loss
incurred . . . . In any case where benefits due and
payable remain unpaid for more than thirty days, any unpaid
party shall be deemed a party to a contract with the
insurer responsible for payment and shall therefore have a
right to commence an action in contract for payment of
amounts therein determined to be due in accordance with the
provisions of this chapter . . . . If the unpaid party
recovers a judgment for any amount due and payable by the
insurer, the court shall assess against the insurer in
addition thereto costs and reasonable attorney's fees."
 10

completion. Here, Norfolk attempted to tender the disputed

$1,544.05 nearly one year after Barron had commenced its

contract action, and just six days prior to trial. We conclude

that Barron properly could reject this tender, forgo the

certainty it offered, and opt instead to pursue recovery not

only of the disputed unpaid PIP benefits, but also of the

attorney's fees and costs provided by the PIP provision.

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 principles.9 In Boehm, supra at 689, we considered

whether G. L. c. 90, § 34M, conferred the right to a jury trial.

In concluding that PIP claimants were so entitled, we emphasized

that an unpaid claimant "has a 'right' to seek recovery through

9
Barron contends also that it was entitled to reject
Norfolk's efforts at late tender pursuant to the tender statute,
G. L. c. 232A, § 1. Since we conclude that common-law contract
principles govern here, we do not address this argument. See
Fascione v. CNA Ins. Cos., 435 Mass. 88, 90 n.1 (2001).
 11

'an action in contract,'" deeming this text "determinative of

the issue at bar." Boehm, supra at 691, quoting G. L. c. 90,

§ 34M, fourth par. At common law, we noted, parties to contract

actions "enjoyed the right to a jury trial," and "the

Legislature is presumed 'to know the preexisting law and the

decisions of this court.'" Boehm, supra, quoting Selectmen of

Topsfield v. State Racing Comm'n, 324 Mass. 309, 313 (1949).

"Had the Legislature intended to treat contract
actions brought pursuant to § 34M, fourth par., differently
from the ordinary contract action, it could have said so
explicitly as it did in the very next paragraph, which
directs insurers to resolve disagreements concerning
subrogation through arbitration."

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,
 12

even if that tender is for the entire disputed sum.10 There can

"be no 'tender' in the legal meaning of the word if the offer

was made after the day fixed for payment had passed and the

contract to pay had been broken." Levin v. Wall, 290 Mass. 423,

426 (1935). See City Bank v. Cutter, 3 Pick. 414, 418 (1826)

("the plea of tender is bad, the tender not having been made

until the day after the debt became due against the

defendants"); 17B C.J.S. Contracts, Tender of Performance § 729

(2011) ("In order to be valid, a tender of payment on a contract

must be timely . . ."); M.G. Perlin & S.H. Blum, Procedural

Forms Annotated § 54:230, Tender (6th ed. 2009) (tender invalid

if made after payment date).

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

10
Norfolk never conceded its liability for $1,544.05 of
Barron's requested fees. Nevertheless, in light of the
litigation costs it might incur should the case proceed to
trial, Norfolk contends that it made a business decision to
tender this disputed amount. In conjunction with payments
already made, the tendered payment, if accepted, would have
compensated Barron for all of the PIP benefits it sought, not
including interest.
 13

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.11

Here, Norfolk's tender of $1,544.05 was made past the

deadline set forth in the PIP provision. General Laws c. 90,

11
To be sure, a plaintiff is also entitled to accept and
thereby validate an otherwise improper late tender. Such
acceptance removes the "foundation of [a potential contract]
suit" and necessitates the dismissal of a suit already
commenced. Davis v. Harrington, 160 Mass. 278, 280 (1894)
(plaintiff who accepted tender made after suit had commenced not
entitled to damages in form of interest and costs). See Hamlen
v. Rednalloh Co., 291 Mass. 119, 126-127 (1935) (plaintiff could
not recover costs after accepting late payment in full with
interest); Paul Revere Trust Co. v. Castle, 231 Mass. 129, 132
(1918) ("when the plaintiff accepted the principal in full
payment the right to recover the interest . . . was
extinguished").
 14

§ 34M, establishes the date of breach relevant to unpaid PIP

benefits, providing that, where "benefits due and payable remain

unpaid for more than thirty days, any unpaid party . . . shall

therefore have a right to commence an action in contract."

After the expiration of that thirty-day period, Barron had yet

to receive $1,544.05 in medical fees which it maintains were

"due and payable." Norfolk sent its check for that amount to

Barron on September 28, 2010, nearly two years after Jean-Pierre

first notified Norfolk of her claim for PIP benefits, and nearly

one year after Barron filed suit seeking payment of the disputed

balance. The "day fixed for payment had passed," Levin v. Wall,

supra at 426, and, after that point, "a tender cannot be

effectual to bar the action for damages." Suffolk Bank v.

Worcester Bank, 5 Pick. 106, 108 (1827) (where there had been no

tender at time contract suit commenced, "the tender afterwards

cannot avail in defence of the action"). Norfolk's tender

therefore was improper under principles of common law, and

Barron was permitted to reject it and seek an award of the PIP

benefits it maintained were "due and payable," as well as its

attorney's fees, costs, and interest.

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
 15

motion for summary judgment was proper.12 This argument

misapprehends the relevance of Fascione to the circumstances

here. In Fascione, supra at 89, an insurer inadvertently failed

to pay the full amount of a PIP claimant's benefits, and

tendered the remaining payment after the claimant had filed suit

under G. L. c. 90, § 34M, to recover the amounts due. We held

that the claimant, who had accepted the insurer's tender and was

fully compensated for her medical expenses, was not thereafter

permitted to seek costs, attorney's fees, and interest under

§ 34M. Fascione, supra at 89-90, 92-94. A claimant may only

receive costs and attorney's fees upon obtaining "a judgment for

any amount due and payable." Id. at 92. The phrase "any amount

12
The parties' disagreement as to the import of Fascione,
supra, reflects differences in decisions of the Appellate
Division of the District Court. Certain of those decisions have
interpreted Fascione to mean that an insurer's tender of a full
PIP payment, made after a claimant filed suit but before
judgment has entered, will extinguish the G. L. c. 90, § 34M,
claim even where the claimant rejects such tender. See, e.g.,
Essex Chiropractic Office, LLC vs. Plymouth Rock Assur. Corp.,
Mass. Dist. Ct. App. Div., No. 08-ADMS-10032 (Dec. 17, 2008)
("it would be an absurd result if a medical provider were able
to defeat the holding of Fascione merely by rejecting the tender
of full payment of a PIP claim"); Kratzer vs. Liberty Mut. Ins.
Co., Mass. Dist. Ct. App. Div., No. 9834 (May 28, 2003).

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).
 16

due and payable," we concluded, encompassed only PIP benefits

themselves, and did not include interest. Id. at 92-93.

Because the claimant had accepted the insurer's full payment of

her PIP expenses, she could not recover a judgment for costs and

attorney's fees. Id. at 94.

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
 17

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.13

But these incentives would diminish if an insurer could

disregard the thirty-day deadline yet nevertheless evade

liability for attorney's fees and costs by tendering benefits at

will after a suit has commenced. Under Norfolk's approach, the

timeframe for prompt payment established by the Legislature

would have little effect, since an insurer's delay would

engender no more serious consequence than the payment of the

very benefits sought from it at the outset. See Insurance

Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189 (1969)

13
This, in turn, is intended to lessen the expense of
compulsory automobile insurance for all Massachusetts drivers,
by reducing the number of claims that insurers will choose to
litigate. See Fascione, supra at 94, citing Pinnick v. Cleary,
360 Mass. 1, 16-20 (1971) ("[T]he main objectives of the
automobile insurance law, of which § 34M is a critical part,
were to reduce the amount of motor vehicle tort litigation,
control the costs of automobile insurance, and ensure prompt
payment of claimants' medical and out-of-pocket expenses"). See
also Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115
(1999).
 18

("An intention to enact a barren and ineffective provision is

not lightly to be imputed to the Legislature").

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
 19

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, supra at 91. But the mere tender

of such late payment will not, in itself, innoculate an insurer

against liability for attorney's fees and costs if the claimant

opts to refuse tender and subsequently obtains a judgment for

PIP benefits. Here, because Barron rejected Norfolk's tendered

check for $1,544.05, it remained an "unpaid party," and

Norfolk's motion for summary judgment on its G. L. c. 90, § 34M,

claim should have been denied.

b. Claims under G. L. c. 93A, §§ 9, 11. Barron contends

also that the judge erred in allowing Norfolk's motion for

summary judgment on the G. L. c. 93A claims.14 To determine

whether a business practice is unfair under G. L. c. 93A, § 11,

14
In its complaint, Barron set forth two separate claims
for violations of G. L. c. 93A, one based on Norfolk's asserted
failure to adhere to G. L. c. 90, § 34M, and one stemming from
Norfolk's purported unfair claim settlement practices as defined
by G. L. c. 176D, § 3 (9) (b), (d), (e), (f), (g), and (n). As
did the Appellate Division, we assess both claims together.
 20

we assess "(1) whether the practice . . . is within at least the

penumbra of some common-law, statutory, or other established

concept of unfairness; (2) whether it is immoral, unethical,

oppressive, or unscrupulous; [and] (3) whether it causes

substantial injury to consumers (or competitors or other

businessmen)." PMP Assocs., Inc. v. Globe Newspaper Co., 366

Mass. 593, 596 (1975).

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).
 21

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, the plaintiff has no burden of rebuttal."

Nor did the opposition include counter affidavits or any other

countervailing documentation that might have demonstrated the

existence of genuine issues of material fact. Although Barron

had alluded in its initial complaint to Norfolk's purported bad

faith, a party opposing a motion for summary judgment may not

"simply rest on his pleadings." Community Nat'l Bank v. Dawes,

369 Mass. 550, 554 (1976). See LaLonde v. Eissner, 405 Mass.

207, 209-210 (1989) (granting summary judgment for defendant

where plaintiffs did not dispute any relevant material fact).

Cf. Rule 9A(a)(2) of the Rules of the Superior Court (2014)

("Affidavits and other documents setting forth or offering

evidence of facts on which the opposition is based shall be

served with the memorandum in opposition [to a motion for

summary judgment]"). Having failed to "set forth specific facts

showing that there is a genuine issue for trial," Mass. R. Civ.

P. 56 (e), Barron was not entitled to trial on its G. L. c. 93A

claims.

3. Conclusion. The order allowing judgment for Norfolk on

count 1, the G. L. c. 90, § 34M, claim, is vacated and set
 22

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.