RICHARD CONSTANTINO v. THE PAUL REVERE LIFE INSURANCE COMPANY (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

This case arises out of a lawsuit between plaintiff Richard Constantino, M.D., and The Paul Revere Life Insurance Company (Paul Revere) about the disability insurance policy issued to Constantino by Paul Revere.

Background. 1. Procedural History. The plaintiff's amended complaint against Paul Revere asserted five claims: breach of contract, misrepresentation, intentional infliction of emotional distress, negligence, and violation of G. L. c. 176D, § 3, actionable pursuant to G. L. c. 93A, § 9 (93A claim). On April 19, 2022, a Superior Court judge found that Massachusetts law would govern the 93A claim and denied Paul Revere's motion for a ruling that New York law applied. Paul Revere then moved for summary judgment for all counts. On March 10, 2023, the motion judge partially allowed Paul Revere's motion for summary judgment as to the plaintiff's misrepresentation, intentional infliction of emotional distress, and negligence claims. As to the breach of contract claim and 93A claim, the motion judge allowed the motion for claims pertaining to the period prior to February 13, 2017, but ruled that the claims pertaining to the period between February 13, 2017, and May 22, 2019, could go forward. After a jury trial on the breach of contract claim, the jury found that Paul Revere had breached the contract, concluding that Paul Revere should have determined that Constantino was entitled to “Presumptive Total Disability” benefits within the meaning of the policy as early as February 13, 2017. After a bench trial on the 93A claim, the judge likewise found that Paul Revere had violated G. L. c. 93A and G. L. c. 176D, § 3 (9) (c) and (f), stating in a decision (93A decision) that,

“under the Policy, Presumptive Total Disability benefits were due if Constantino had totally and irrecoverably lost the use of both feet. Although Constantino could walk with difficulty, Constantino's feet were paralyzed and therefore unusable. Nevertheless, until Constantino engaged counsel, Paul Revere repeatedly denied Constantino's claim. It did not do so based on a consistent, reasoned legal analysis, but based on an ultimately indefensible view that any ability to walk (and drive a car, for that matter) meant that Constantino had not totally lost use of his feet, rejecting Constantino's evidence that his feet were no more useful than if they were amputated stumps.”

The judge continued:

“When Constantino engaged counsel and threatened litigation, Paul Revere abandoned its position without a change in facts or further investigation, demonstrating that Paul Revere's prior denials were meritless and the reasons it had previously provided to Constantino for them were inaccurate and misleading. Indeed, had Constantino not continued to reject Paul Revere's meritless explanations, they would have resulted in an unjust denial of his claim.”

2. The appeals. We have before us both an appeal by the plaintiff Constantino and a cross appeal by the defendant Paul Revere. The facts are well known to the parties and will not be repeated in detail here. The policy provides the following definition of “Presumptive Total Disability”: “If Injury or Sickness causes You to totally and irrecoverably lose ․ Use of both feet ․ We will consider You to be Totally Disabled whether or not You are able to work or require treatment by a Physician.” On February 13, 2017, a Dr. Maxwell wrote a letter to Paul Revere describing paralysis of Constantino's feet and saying they were “significantly useless.” In a letter dated March 7, 2017, Constantino, for the first time, claimed he met the “loss of use of both feet” provision such that he was presumptively disabled under the policy. He submitted a further letter from a podiatrist dated March 13, 2017, stating that one toe and parts of two others had been amputated and that his feet were “functionally useless.”

Paul Revere acknowledged that Constantino was not able “to move or feel [his] feet when walking,” and that he had a “severe loss of sensation in [his] feet that impacts the flexion of the ankle muscles needed to pick up [his] feet when walking,” however it asserted he was not entitled to Presumptive Total Disability benefits on the basis of the loss of use of both feet, because with ankle braces to prevent him from dragging his feet and a walking stick he could “ambulate independently.” Paul Revere now acknowledges that he was, instead, eligible for Presumptive Total Disability benefits because he had, indeed, lost the use of both feet.

Constantino appealed internally at Paul Revere. Twice, a doctor who was part of Paul Revere's medical department concluded that Constantino could ambulate, and Paul Revere said that it had “determined you do not have the total and irrecoverable loss of the use of both feet.”

More than a year after its final decision, on March 18, 2019, Constantino's lawyer wrote to Paul Revere for the first time, seeking an explanation for the denial of Constantino's claim for Presumptive Total Disability benefits and requesting payments of those benefits immediately, and threatening a lawsuit if that did not occur.

Although, as the judge found in the 93A decision, there was no new medical information provided, in a review in April, 2019, the doctor changed his opinion, concluding, in reliance on Constantino's letter of March, 2017, that Constantino “has lost meaningful use of his feet since 2/13/17 letter from Dr. Maxwell,” and finding, among other things, that Constantino's “ambulation is in spite of his feet, rather than with the assistance of his feet,” and that, “[i]f he had both feet amputated and used prosthetic feet he would likely have an improved gait and improved ability to walk.”

On May 22, 2019, Paul Revere granted Constantino's Presumptive Total Disability benefits. This was based on its review of the materials it had had the whole time, including the review in which the same Paul Revere doctor later concluded that Constantino had lost the use of both feet. Paul Revere agreed that Constantino had lost meaningful use of his feet from the time of the February 13, 2017 letter from Dr. Maxwell, that he was from that time forward entitled as a result to Presumptive Total Disability benefits, and paid him such benefits back to that date.

Discussion. 1. Partial summary judgment against Constantino. Several of Constantino's arguments on appeal challenge aspects of a partial summary judgment entered in favor of Paul Revere prior to trial. We review an order allowing or denying summary judgment de novo. See Kay v. Concord, 105 Mass. App. Ct. 366, 369 (2025).

a. Breach of contract claim. Constantino first argues that, with respect to his breach of contract claim, the motion judge erred in concluding that the three-year contractual limitations period applied and therefore the portion of Constantino's breach of contract claim predating February 13, 2017, (i.e., making a claim for any benefit period before December 12, 2016) was time barred. We see no error in the judge's conclusion.

The contractual limitations period provision states, “[y]ou cannot bring legal action ․ after three years from the date written proof of loss is required.” It further provides that, “[w]ritten proof of loss must be sent to [u]s within 90 days after the end of a period for which [y]ou are claiming benefits.” Constantino argues that the phrase “the end of a period for which [y]ou are claiming benefits” is ambiguous, and should be construed against the insurer, since it could mean the end of the “maximum benefit period,” the end of the “lifetime total disability benefit,” the end of Constantino's disability, the date benefit payments ended, the end of each monthly period of benefits, or the end of each tax year. We disagree.

Section 7.6(b) of the contract provides that after receipt of written proof of loss, Paul Revere “will pay at the end of each 30 days any benefits due that are payable periodically -- subject to continuing proof of loss.” Although the contract could be more clearly written, this provision defines a thirty-day benefit period. We agree with the motion judge that, given that the suit was filed on May 5, 2020, subtracting the fifty-four-day tolling period, and the ninety-day exclusion set out in section 7.4 of the contract, the breach of contract claim was time barred for any benefit period earlier than December 12, 2016.

We also agree that there was no error in the motion judge's conclusion on summary judgment that Constantino was not “Totally Disabled” within the meaning of the policy, solely because he could not fulfill the duties of a hospitalist, which he could not beginning in 2013. Total Disability is different from Presumptive Total Disability, which can occur regardless of ability to work. Total Disability is defined as being “unable to perform the important duties of Your regular occupation.” As the judge concluded, Constantino's hospital-based work was only part, and not the totality of, his work as a physician, and thus his inability to perform his hospitalist duties did not render him Totally Disabled. Rather he had, under the definitions in the policy, only “Residual Disability,” an inability “to perform one or more of the important duties of [his] regular occupation.”

Nor was there any error in the judge's conclusion that since Constantino's claim for Presumptive Total Disability benefits was not made until February 7, 2017, and was not supported until February 13, 2017, the triable issue for the jury was whether Presumptive Total Disability payments were improperly delayed between February 13, 2017, and May 22, 2019.

b. Tort claims. We see no error in the allowance of summary judgment on Constantino's tort claims of negligence, misrepresentation, and intentional infliction of emotional distress.

As to the first, we are not persuaded that Constantino's claim of negligence in the performance by Paul Revere of its contractual obligations amounts to anything other than a recasting of his breach of contract claim. See Anderson v. Fox Hill Village Homeowners Corp., 424 Mass. 365, 368 (1997) (“a breach of contract is not, standing alone, a tort as well” [citation omitted]).

With respect to the misrepresentation claim, we see insufficient evidence that, at the moment Paul Revere made its promises to Constantino upon entering the contract, it “made a false representation of a material fact with knowledge of its falsity for the purpose of inducing the plaintiff to act thereon” (citation omitted). Masingill v. EMC Corp., 449 Mass. 532, 540 (2007). And, assuming the alleged misrepresentations during the course of Paul Revere's interaction with Constantino about his claims are not merely a recasting of his breach of contract claim, we see no evidence of his detrimental reliance on them. See Id. (element of misrepresentation claim “that the plaintiff relied upon the representation as true and acted upon it to [his] damage” [citation omitted]).

As for the intentional infliction of emotional distress claim, Constantino argues that the delay in payment of Presumptive Total Disability benefits through Paul Revere's repeated denials of the claim, and the actions of Paul Revere surrounding it, present a triable case. It would, as described above, be limited only to the period from the 2017 letter until acknowledgment of liability in 2019.

In order to prove intentional infliction of emotional distress, “[t]he plaintiff must show ‘(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; ․ (2) that the conduct was “extreme and outrageous” ․ ; (3) that the actions of the defendant were the cause of the plaintiff's distress; ․ and (4) that the emotional distress sustained by the plaintiff was “severe” ․’ ” Simon v. Solomon, 385 Mass. 91, 95 (1982), quoting Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976). Constantino alleges that the delay in payment of Presumptive Total Disability benefits, which the jury found was a breach of contract, and all that was attendant upon it, amounted to intentional infliction of emotional distress.

Paul Revere argues correctly that “[t]he ‘extreme and outrageous’ requirement imposes a burden that is extremely difficult to meet.” Paul Revere also asserts the claim fails as a matter of law because “other jurisdictions have disposed of intentional infliction of emotional distress claims where the dispute is over an insurance benefit.”

Massachusetts has no such blanket rule. Although a good faith but mistaken denial of insurance benefits might not standing alone support a claim of intentional infliction of emotional distress, the question is whether in the particular case the actions of a defendant are sufficient to support a jury verdict as to all the elements of the claim, including that the allegedly tortious conduct be extreme and outrageous. See Roman v. Trustees of Tufts College, 461 Mass. 707, 718 (2012) (insults and indignities cannot be found to be “extreme and outrageous”).

We need not, however, determine in this case whether the acts of Paul Revere were extreme and outrageous. That is because we agree with the motion judge that there was a lack of evidence in the summary judgment record “that Constantino suffered severe emotional distress.” Although the record includes a statement that Constantino was “devastated” emotionally, it lacks specificity about whether even that was caused by the denial of Presumptive Total Disability benefits beginning in 2017, or the denial of Total Disability benefits sought beginning in 2013.

Consequently, summary judgment on the tort counts is affirmed.

2. Chapter 93A claim.¹ a. Choice of law. This brings us to the order in favor of Constantino on his 93A claim, challenged by Paul Revere in its cross appeal. This claim derives from Paul Revere's alleged violation of its obligations imposed by G. L. c. 176D. Paul Revere argues that a conflict of laws exists, the Restatement (Second) of Conflict of Laws §§ 192 and 188 (1971) (Restatement) mandates that we apply New York law, and that the judge erred in treating the 93A claim as tort-like and applying the principles of § 145 of the Restatement to this claim. Under New York law, there is no private right of action for consumer protection violations comparable to G. L. c. 93A.

To begin, Constantino argues that there is not a true conflict between the laws of Massachusetts and New York in this case. We will, however, assume without deciding that, as Paul Revere argues, there is.

Where there is a conflict of laws, the Commonwealth utilizes a functional analysis in determining choice of law, guided by the principles in the Restatement. See Bushkin Assocs., Inc. v. Raytheon Co., 393 Mass. 622, 631-634 (1985). At first blush, it may appear that § 192 of the Restatement applies here. Section 192 reads:

“The validity of a life insurance contract issued to the insured upon his application and the rights created thereby are determined, in the absence of an effective choice of law by the insured in his application, by the local law of the state where the insured was domiciled at the time the policy was applied for, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied.”

Id. The principles of § 192 of the Restatement, which is specifically about life insurance contracts, also apply to disability insurance contracts. See Restatement § 192 & comment l.

But § 192 does not apply, because the 93A claim is not a claim about “the rights created” by the insurance contract. See Schwartz v. Travelers Indem. Co., 50 Mass App. Ct. 672, 675 (2001) (c. 93A claim based on c. 176D violation created action independent from contract). Rather, the question is whether the practices of the insurance company were unfair or deceptive because they were in violation of G. L. c. 176D. For example, comment a to § 192 specifies that “the rule does not apply to questions involving details of performance.” Restatement § 192 comment a.

Nor is § 188 of the Restatement applicable here. This is a G. L. c. 93A claim, not a contract claim. See Restatement § 188(1) (concerning “rights and duties of the parties with respect to an issue in contract”). An action pursuant to G. L. c. 93A is “neither wholly tortious nor wholly contractual in nature” (citation omitted), and tort choice of law principles apply “if a particular defendant's unfair conduct with respect to a contract sounds in tort.” Kitner v. CTW Transp., Inc., 53 Mass. App. Ct. 741, 746-747 (2002). See Crellin Techs., Inc. v. Equipmentlease Corp., 18 F.3d 1, 11 (1st Cir. 1994) (“when a chapter 93A claim and the requested remedy are highly analogous to a tort claim and remedy, the chapter 93A claim should be considered as a tort for choice-of-law purposes”).

The complaint here alleges, among other things, that Paul Revere engaged in unfair and deceptive acts and practices in violation of G. L. c. 176D, § 3, by: (1) refusing to pay Constantino's claim without conducting a reasonable investigation; (2) compelling Constantino to litigate to recover amounts due under the policy; (3) providing a false basis for denying Constantino's claim; (4) denying Constantino's claim despite knowing it was owed; and (5) making misrepresentations in connection with issuing the policy and investigating the claim. Consequently, the judge was correct to conclude that this claim is more analogous to a tort claim and to apply the choice of law principles applicable to tort actions. See Brown v. Savings Bank Life Ins. Co., 93 Mass. App. Ct. 572, 580 (2018). The judge therefore properly chose to apply the Restatement § 145.^{2  3}

b. The merits of the 93A claim. Paul Revere next argues that the judge erred in finding c. 93A liability. Mostly, its claims rely on characterizations of the evidence at variance with the supported conclusions of the trial judge.

It argues that it did not misrepresent the terms of the policy, and that it merely made a reasoned, but mistaken interpretation of the policy in asserting that loss of the use of both feet occurred only if the insured could not ambulate. But the judge found that its denial of the claim was not a good faith disagreement or error about the policy's meaning. The judge's conclusions are supported by the record (1) that “Paul Revere created a moving target, shifting its interpretation of its own Policy from requiring ‘total’ loss of use of the feet, to loss of ‘practical’ use, to loss of ‘meaningful’ use,” and (2) that, until Constantino retained counsel, Paul Revere followed an “indefensibly aggressive approach to the interpretation of the Policy that made satisfying it impossible. By doing so, it effectively refused to meaningfully investigate Constantino's claim for two years.” We see no error in the judge's conclusion that Paul Revere violated G. L. c. 176D, § 3 (9) (c), by failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies.

Paul Revere also argues that it paid the claim in full. But that misses the point. The judge found that it delayed doing so for two years and failed to pay until a lawyer wrote to it. We see no error in the judge's conclusion that Paul Revere violated G. L. c. 176D, § 3 (9) (f), which requires the prompt settlement of claims when liability becomes reasonably clear.

Finally, Paul Revere argues that it made reasonable settlement offers that should have barred the 93A claims. As the Supreme Judicial Court has explained, a

“defendant [can avoid] the imposition of damages by making a prompt and fair offer of settlement that complie[s] with G. L. c. 176D, § 3 (9) (f), within thirty days of receiving the plaintiff's G. L. c. 93A demand letter, as provided by G. L. c. 93A, § 9 (3) (‘[a]ny person receiving [a written demand for relief] who, within thirty days ․ makes a written tender of settlement which is rejected by the claimant may, in any subsequent action, file the written tender and an affidavit concerning its rejection and thereby limit any recovery to the relief tendered if the court finds that the relief tendered was reasonable in relation to the injury actually suffered by the petitioner’). Had such an offer been made, and rejected by the plaintiff, the burden would have been on the defendant to prove that the offer was reasonable. See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 799 (1976)” (footnote omitted).

Hopkins v. Liberty Mut. Ins. Co., 434 Mass. 556, 568-69 (2001). It is undisputed, however, that, in this case, Paul Revere did not make a settlement offer within thirty days of receiving Constantino's demand letter. Indeed, it never responded to Constantino's demand letter at all.⁴

c. The award of summary judgment on some aspects of Constantino's 93A claim. Constantino argues that the judge improperly allowed the motion for summary judgment on certain aspects of his 93A claim, particularly his claims under G. L. c. 176D, § 3 (9) (a), under which it is a violation of law for an insurance company to “misrepresent[ ] pertinent facts or insurance policy provisions relating to coverages at issue,” and G. L. c. 176D, § 3 (9) (g), under which “[c]ompelling insureds to institute litigation to recover amounts due under an insurance policy by offering substantially less than the amounts ultimately recovered in actions brought by such insureds” is a violation of law.

To be sure, as to § 3 (9) (a), in discussing his decision not to revisit the choice of law issue, the judge did say in his 93A decision, “Paul Revere repeatedly misrepresented to Constantino what total loss of use meant, and had he not engaged counsel, would have avoided liability through those misrepresentations.” As to § 3 (9) (g), assessing the vitality of the claim is perhaps trickier. But in any event, Constantino has not indicated what additional damages he would be entitled to if the case were sent back for trial on these additional bases of c. 176D liability.

Constantino also argues that § 3 (9) (c) and § 3 (9) (d) were violated here, but his arguments depend in part on, contrary to the conclusions of the judge we have affirmed above, his having been Totally Disabled or his having been entitled to Presumptive Total Disability benefits prior to the period included because his first request for such benefits came in the 2017 letter.

d. Inclusion of emotional distress damages in the 93A claim. Finally, after the jury trial but prior to the bench trial, Constantino submitted a motion to the court arguing that he should be entitled to present evidence of emotional distress and certain consequential damages at the 93A claim bench trial. The judge denied it because, among other reasons, it would have required the reopening of discovery at that late stage in the litigation. We see no abuse of discretion or other error of law in the judge's decision.⁵

3. Attorney's fees. Constantino has requested, and is entitled to recover, attorney's fees and expenses incurred in defending against Paul Revere's unsuccessful cross appeal as to the 93A claim. See Bonofiglio v. Commercial Union Ins. Co., 412 Mass. 612, 613 (1992). See also Yorke Mgt. v. Castro, 406 Mass. 17, 19 (1989) (language in G. L. c. 93A making “provisions for a ‘reasonable attorney's fee’ would ring hollow if it did not necessarily include a fee for the appeal”). In accordance with the procedure specified in Mass. R. A. P. 25 (b), as appearing in 498 Mass. 1601 (2026), Constantino may, within fourteen days of the issuance of the rescript in this case, submit an application for attorney's fees with the appropriate supporting materials in defending the 93A claim. Paul Revere shall have fourteen days thereafter to respond.

Judgment affirmed.

FOOTNOTES

1.   The facts recited above and those found by the judge which are adequately supported by the record also show that, contrary to the argument of the defendant, there was sufficient evidence to support the judgment, and the subsidiary findings by the judge in the 93A decision of violations of G. L. c. 176D.We are not persuaded by the plaintiff's arguments that the judge erred, at summary judgment, in concluding that proffering an incorrect legal interpretation of a policy provision is not a misrepresentation of fact covered by G. L. c. 176D, § 3 (9) (a), in concluding that there was no “low-balling” in violation of § 3 (9) (g) where the suit was filed but not served before the plaintiff's demand letter was sent, or in concluding that only conduct occurring after the plaintiff first asked for Presumptive Total Disability benefits would be considered in his determination of the 93A claim.

2.   Paul Revere argues for the first time in its reply brief on cross appeal that even if § 145 controls the choice of law question, New York law nonetheless applies. That argument, however, is waived and we do not address it. “An argument raised for the first time in a reply brief is not properly before us, and we do not consider it here.” Katz, Nannis & Solomon, P.C. v. Levine, 473 Mass. 784, 795 n.15 (2016).

3.   Paul Revere argues that at summary judgment, the judge excluded what it thinks might be the tort-like aspects of the 93A claim -- for misrepresenting facts or provisions relating to coverage, failing to adopt and implement reasonable standards for the prompt investigation of claims, and compelling Constantino to institute litigation –- leaving only contract-like allegations, and that the judge should have reconsidered its decision to apply § 145. Paul Revere first raised this in a motion filed six months after the summary judgment motion was decided. The judge denied it on the ground that Paul Revere did not seek leave to file it, which was not an abuse of discretion. Paul Revere sought leave to refile the motion. In the judge's decision on the merits of the 93A claim, he treated the motion as one for reconsideration of the choice of law determination and denied it on the grounds both of procedural missteps in its filing, and failure to assert “(1) ‘changed circumstances’ such as (a) newly discovered evidence or information, or (b) a development of relevant law; or (2) a particular and demonstrable error in the original ruling or decision.” Commonwealth v. Charles, 466 Mass. 63, 84 (2013), quoting Audubon Hill S. Condominium Ass'n v. Community Ass'n Underwriters of Am., Inc., 82 Mass. App. Ct. 461, 470 (2012). There was no abuse of discretion in that ruling. Even if there had been, Paul Revere's motion was without merit. The 93A claim proceeded on failure to conduct a reasonable investigation or effect a prompt settlement after liability had become reasonably clear, retaining its tort-like character.

4.   Paul Revere argues that failure to respond to the 93A demand letter should be excused because it had responded to an earlier demand letter that cited New York law rather than c. 93A, but this was not argued below, and so we do not address the argument and express no opinion on it. To the extent Paul Revere argues that its settlement offers preclude a finding of a violation of G. L. c. 176D, § 3 (9) (g), liability was not found thereunder.

5.   Paul Revere argues without citation that Constantino should not be able to recover damages that include the interest on the wrongfully denied benefits finally paid in 2019. It notes that the demand letter did not state that “Paul Revere should have added interest to the payments it made in 2019,” and that “a demand to pay interest was not in the letter.” It concludes: “The [judge]’s finding that the amount of interest on the back benefits should be considered as included in the gross monetary demand makes no sense because the 93A Demand letter did not make a claim as to the benefits paid. It was only focused on pushing back the start date for those benefits to 2013.”Absent citation to authority, Paul Revere is not entitled to appellate review of this claim. See Gaffney v. Contributory Retirement Appeal Bd., 423 Mass. 1, 6 n.4 (1996) (“[c]onclusory statements in a brief do not rise to the level of appellate argument”). We do note that G. L. c. 93A, § 9 (3), requires only that the demand letter “reasonably describ[e] the unfair or deceptive act or practice relied upon and the injury suffered,” which the demand letter here does. If the demand letter is required to include an assessment of damages, a question we also do not reach, we see no error in the judge's conclusion that the demand in the letter for $1,100,000, should be considered to include the interest described.