Full Opinion

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us 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/info- details/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.