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25-P-1008 Appeals Court
NOELLEN BOUSQUET vs. COMMERCE INSURANCE COMPANY.
No. 25-P-1008.
Worcester. March 3, 2026. - September 4, 2026.
Present: Blake, C.J., Vuono, & Neyman, JJ.
Insurance, Motor vehicle insurance, Medical supplementary
coverage, Coverage, Construction of policy. Contract,
Insurance. Motor Vehicle, Insurance. Practice, Civil,
Judgment on the pleadings.
Civil action commenced in the Worcester Division of the District Court Department on December 10, 2018.
The case was heard by James G. Haddad, J.
Paul J. Franco for the plaintiff.
Jodi L. Conners for the defendant.
NEYMAN, J. In this case, we consider whether policy
language approved by the Commissioner of Insurance
(commissioner) -- barring recovery of medical expense benefits
under the "medical payments" (MedPay) coverage provision of the
standard Massachusetts automobile insurance policy, where those
2
expenses are covered and paid for through health insurance --conflicts with Massachusetts law. See Golchin v. Liberty Mut.
Ins. Co., 466 Mass. 156, 166 (2013). The plaintiff, Noellen
Bousquet, was injured in a car accident; received medical
services paid for by her health insurer; and obtained a
settlement with the tortfeasor, from which she had to reimburse
her health insurer pursuant to a lien. She then brought this
action against her automobile insurer, Commerce Insurance
Company (Commerce), seeking MedPay benefits for the same medical
services. A judgment entered in favor of Commerce. A panel of
judges of the Appellate Division of the District Court
(Appellate Division) affirmed, as do we.
Background.1 1. Motor vehicle accident. On July 15, 2018,
Bousquet was operating her motor vehicle northbound on
Interstate 395. The tortfeasor, traveling in the same direction
as Bousquet, missed his exit, stopped his vehicle in moderate
traffic, shifted into reverse, and drove backward on the
highway. Bousquet was unable to avoid the tortfeasor's vehicle.
In short, the tortfeasor caused a significant crash that
resulted in heavy damage to multiple motor vehicles including
Bousquet's. Bousquet sustained significant injures, was
1 The facts of the present case are not in dispute.
3
hospitalized, and incurred medical expenses in excess of
$16,000.
2. Insurance policies. At the time of the accident,
Bousquet was insured under (1) a health insurance policy with
Fallon Community Health Plan (Fallon) and (2) the 2016 edition
of the standard Massachusetts automobile insurance policy (2016
automobile insurance policy or 2016 policy) as approved by the
commissioner and issued by Commerce.
Under part 2 of the 2016 automobile insurance policy,
Bousquet had personal injury protection (PIP) benefits.2 In
addition, Bousquet purchased optional MedPay benefits of up to
$25,000 under part 6 of the 2016 policy.3 As approved by the
commissioner, part 6 covers "reasonable expenses for necessary
medical and funeral services incurred as a result of an
2 Part 2 of the 2016 automobile insurance policy, which applies to PIP benefits, provides that, for anyone with a health insurance policy, "[Commerce] will pay up to $2,000 of medical expenses for any injured person." In addition, "[Commerce] will also pay medical expenses in excess of $2,000 for such injured person which will not be paid by a health plan. Medical expenses must be submitted to the health plan to determine what the health plan will pay before we pay benefits in excess of $2,000 under this Part."
3 Automobile insurers are authorized to offer MedPay benefits under G. L. c. 175, § 111C, and required by G. L. c. 175, § 113C, to offer insured individuals the option of buying MedPay benefits of at least $5,000. See Metropolitan Prop. & Cas. Ins. Co. v. Blue Cross & Blue Shield of Mass., Inc., 451 Mass. 389, 392-393 (2008).
4
accident" but limits MedPay benefits for certain expenses.4 It
provides that:
"[n]o payments will be made under this Part that duplicate
payments made for the same bodily injuries under Parts 1,
2, 3, 5 or 12 of this Policy. In addition, no payments
will be made under this Part that duplicate payments made
for the same bodily injuries under any other auto insurance
policy or under a health insurance policy covering the
injured person."
This language differs from part 6 of the standard Massachusetts
automobile insurance policy that existed prior to 2016 (pre-2016
policy), which allowed, at the time, duplicative payments for
the same bodily injuries covered under a health insurance
policy.5 See Golchin, 466 Mass. at 166. The Massachusetts
Division of Insurance also issued a regulation in 2016 stating,
"[MedPay benefits] under a motor vehicle insurance policy shall
always be secondary to and in excess of any Health Benefit Plan
or [PIP benefits], as defined under 211 CMR 38.00." 211 Code
Mass. Regs. § 38.05(1)(b) (2016).
3. Insurance coverage. Following the accident, Commerce
paid $2,000 in PIP benefits to Bousquet, triggering Bousquet's
obligation to coordinate benefits with her health insurer,
4 The commissioner approves the language of the standard Massachusetts automobile insurance policy. See Goodman v. American Cas. Co., 419 Mass. 138, 140 (1994).
5 At the time that Bousquet renewed her policy, she was informed of the change to coverage under part 6 of the 2016 policy.
5
Fallon. See note 2, supra. Fallon paid Bousquet's additional
medical expenses.
4. Underlying action against tortfeasor. Bousquet then
initiated an action against the tortfeasor seeking to recover
damages arising from the accident. Pursuant to G. L. c. 111,
§ 70A, Fallon, through its subrogation agent, asserted a lien
for $13,429.62 in the action filed by Bousquet against the
tortfeasor. The underlying action settled, and Bousquet
received a settlement payment. Bousquet then satisfied Fallon's
lien from the settlement proceeds.
5. Present action. On December 10, 2018, Bousquet filed
the present action in the District Court against Commerce,
seeking payment of PIP and MedPay benefits and alleging breach
of contract and violations of G. L. c. 90, § 34M, G. L. c. 93A,
§ 9, and G. L. c. 176D. Commerce filed its answer alleging,
inter alia, that Bousquet failed to coordinate benefits with her
health insurer as required by G. L. c. 90, § 34M. On April 26,
2023, Bousquet agreed to dismiss all counts of her complaint
except for a breach of contract claim for unpaid MedPay benefits
and an accompanying claim for attorney's fees. The same day, a
District Court judge held a bench trial at which the parties
6
"agreed to submit [the] matter based upon pleadings."6 On June
5, 2023, the judge issued his decision in favor of Commerce,
reasoning that the 2016 policy provides that Commerce will not
duplicate payments made under a health insurance policy.
Judgment entered accordingly. Bousquet timely appealed to the
Appellate Division, which affirmed the judgment. This appeal
ensued.
Discussion. As noted, the issue on appeal is whether the
2016 policy language barring payment of MedPay benefits, where
medical expenses are covered and paid for through health
insurance, conflicts with Massachusetts law. Bousquet contends
that the 2016 policy language conflicts with G. L. c. 175,
§ 113C, and that the commissioner overstepped his authority by
approving that language. She also contends that the 2016 policy
language undermines the legislative intent of MedPay and is
confiscatory. Bousquet's arguments present a question of
statutory interpretation that we review de novo. See Commerce
6 There is some dispute as to the nature of the dispositive proceeding in the District Court. In their briefs and at oral argument, the parties alternately categorized the proceeding as a motion for judgment on the pleadings, a bench trial, and a "trial submitted on the pleadings." In his written decision, the judge clarified that the matter "came before [the] Court for a bench trial," but the parties "agreed to submit this matter based upon [the] pleadings." In any event, the parties agree that the case hinges on issues of law and that no material facts are in dispute.
7
Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006). We
see no conflict between the 2016 policy language and the
statutory language where Massachusetts law allows for reasonable
limitations on MedPay benefits under G. L. c. 175, § 113C.
Our analysis begins with the statutory text, the primary
source of legislative intent. See International Fid. Ins. Co.
v. Wilson, 387 Mass. 841, 853 (1983). Clear and unambiguous
language is conclusive as to legislative intent. See
Commissioner of Correction v. Superior Court Dep't of the Trial
Court for the County of Worcester, 446 Mass. 123, 124 (2006).
"In interpreting a statute, . . . [we] must consider the entire
statutory scheme by looking to the language of the statute as a
whole." Arlington Contributory Retirement Bd. v. Contributory
Retirement Appeal Bd., 75 Mass. App. Ct. 437, 442 (2009). "[W]e
are mindful that a statute's language should be read in accord
with the statute's purpose and history, but we are deferential
to the commissioner's interpretation so long as it is
'reasonably related to the objective of, or within the ambit of,
its enabling statute'" (citation omitted). Arbella Mut. Ins.
Co. v. Commissioner of Ins., 456 Mass. 66, 72 (2010), quoting
Commerce Ins. Co., 447 Mass. at 483. "The burden rests with
[Bousquet] to establish that the [2016 policy language] exceeded
8
the statute's authorization." Arbella Mut. Ins. Co., supra at
73.7
General Laws c. 175, § 113C, states, in part, that "no
company shall issue such motor vehicle liability policies . . .
unless it makes a mandatory offer to issue to any person
purchasing such policy or bond, at his option, additional
coverage . . . of [MedPay], so-called, to a limit of at least
five thousand dollars." The plain language of the statute
requires automobile insurers to offer MedPay benefits but does
not prohibit the commissioner from defining or limiting the
scope of that coverage. Bousquet nevertheless points to this
silence as proof that the Legislature intended to permit an
insured to recover MedPay benefits for medical services already
covered and paid for through health insurance. We disagree.
"Statutory silence, like statutory ambiguity, often
requires that an agency give clarity to an issue necessarily
implicated by the statute . . . ." Goldberg v. Board of Health
of Granby, 444 Mass. 627, 634 (2005). See Metropolitan Prop. &
There is no "reliable indication" of the legislative
7
purpose underlying MedPay benefits. Metropolitan Prop. & Cas. Ins. Co., 451 Mass. at 393 n.6. It is "quite probable that MedPay was originally intended to cover medical expenses in the event of an accident for people who did not have health insurance[,]" but without any further indication of legislative intent our analysis is focused on the plain meaning of G. L. c. 175, § 113C. Metropolitan Prop. & Cas. Ins. Co., supra. See Nunes v. Duffy, 101 Mass. App. Ct. 460, 463 (2022).
9
Cas. Ins. Co. v. Blue Cross & Blue Shield of Mass., Inc., 451
Mass. 389, 395-396 (2008). In the absence of any indication
that the Legislature intended to require duplicative recoveries
through MedPay benefits, "[t]he decision concerning the relevant
policy language was within the commissioner's discretion as a
policy matter." Liberty Mut. Ins. Co. v. Commissioner of Ins.,
395 Mass. 765, 775 (1985).
We further discern no conflict where the 2016 policy
language was contemplated with approval in Golchin. There, the
Supreme Judicial Court reasoned that, under the pre-2016 policy,
an insured was entitled to recover both MedPay benefits and
health insurance benefits because "[w]hat [was] not present
[t]here [was] an exclusion from or limitation on MedPay coverage
for medical expenses that are also covered under a separate
health insurance policy." Golchin, 466 Mass. at 162. As
recognized in Golchin, "[w]here [a] policy does not contain a
nonduplication provision or set-off provision, courts and
commentators conclude that a double recovery is permissible."
Id. at 166, quoting 6 J.E. Thomas & C.J. Robinette, New Appleman
on Insurance Law § 64.04[2], at 64-57 (2012). The Supreme
Judicial Court, however, further explained that its decision did
not leave the insurer without a remedy. See Golchin, supra at
166-167. Rather, "[i]t is always open to automobile insurers to
petition the Division of Insurance . . . to change the language
10
of the policy so as to clarify that it does not require the
result of which they complain." Id. at 167, quoting
Metropolitan Prop. & Cas. Ins. Co., 451 Mass. at 395.
The 2016 policy revisions reflect that clarification, as
the commissioner approved unambiguous language providing that
"no payments will be made under this Part that duplicate
payments made for the same bodily injuries under any other auto
insurance policy or under a health insurance policy covering the
injured person."8 Where the commissioner approved policy
language explicitly creating the nonduplication provision
contemplated by Golchin, we cannot conclude that this language
is in conflict with G. L. c. 175, § 113C.
We nevertheless note that the commissioner's authority to
limit MedPay benefits is not unbounded. "[T]he public policy of
this Commonwealth . . . [is] that coverages may not be
unrealistically limited or so limited in scope as to be of no
substantial economic value" (quotations and citation omitted).
8 The Division of Insurance posts the "Basics of Auto Insurance" on its website. Here, in reference to MedPay benefits, the Division of Insurance advises that "[y]ou should consider carefully your choice to purchase [MedPay] coverage if you already have health insurance. [MedPay] coverage may not be necessary if you have health insurance." Division of Insurance, Basics of Auto Insurance, https://www.mass.gov/infodetails/basics-of-auto-insurance. Although not determinative of whether the commissioner exceeded his authority, consumers were put on notice of the potential that MedPay benefits may not issue where someone has health insurance.
11
Cody v. Connecticut Gen. Life Ins. Co., 387 Mass. 142, 148
(1982). Indeed, part 6 of the 2016 policy does not eliminate
MedPay benefits altogether; rather, it prohibits recovery only
where the insured has already received payment for the same
medical expenses under another policy. Accordingly, the
limitation imposed by the commissioner does not exceed the
bounds recognized in Cody, and the commissioner's interpretation
remains entitled to deference.9 See Life Ins. Ass'n of Mass. v.
Commissioner of Ins., 403 Mass. 410, 414-415 (1988) ("The
commissioner has substantial regulatory authority over policy
provisions, premium charges, and the classification of
risks . . .").
Conclusion. In view of the language of G. L. c. 175,
§ 113C, and the guidance articulated in Golchin, the 2016 policy
language is consistent with G. L. c. 175, § 113C.
Decision and order of the
Appellate Division
affirmed.
9 Bousquet argues that the current policy language of MedPay benefits is "confiscatory," "illusory," "a nullity," and "superfluous." Apart from these conclusory labels, Bousquet cites no factual or legal basis to support her claim that MedPay benefits do not provide coverage in any circumstances. See Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 6 n.4 (1996) (conclusory statements in brief do not rise to level of appellate argument). See also Bagley v. Monticello Ins. Co., 430 Mass. 454, 459 (1999) ("where there were other instances in which coverage would still be provided under the policy . . . the policy still had value to the insured"). We recognize, of course, that not everyone is covered by health insurance or able to obtain promised health insurance benefits.