In re Meehan

• Decision Date: 26 June 1944
• Citation: 316 Mass. 522,56 N.E.2d 23
• Parties: MEEHAN'S CASE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

316 Mass. 522

56 N.E.2d 23

MEEHAN'S CASE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1944.

Action by James J. Meehan against Herbert Gordon and others for personal injuries, for the benefit of the insurer of plaintiff's employer, Northern Berkshire Gas Company. From a decree, based upon the findings of the Industrial Accident Board, requiring the insurer to pay over to the plaintiff four-fifths of the difference between the amount recovered and the amount paid for compensation and for medical services, the insurer appeals.

Decree modified and affirmed.Appeal from Superior Court, Suffolk County; Cabot, Judge.

Before FIELD, C. J., and LUMMUS, QUA and RONAN, JJ.

W. G. Reed, of Boston, for Insurer.

R. V. Rogers, Asst. Atty. Gen., for Industrial Accident Board.

RONAN, Justice.

The insurer, having paid the employee compensation and furnished him with medical services, brought an action at law against a third person whose negligence caused the injuries to the employee, Meehan v. Gordon, 307 Mass. 59, 29 N.E.2d 759, and recovered a judgment in a sum greater than that paid by it for said compensation and medical services. The insurer appealed from a final decree entered in the Superior Court, based upon findings of the Industrial Accident Board, ordering it to pay over to the employee four fifths of the difference between the amount recovered and the amount paid for compensation and medical services. The ground of the appeal is that it should be permitted to deduct from the amount recovered the expenses incurred by it in the prosecution of the action at law.

The statute in effect on November 12, 1937, when the employee was injured, authorized an insurer who had paid compensation to enforce against a third person which was responsible for the injury,either ‘in the name of the employee or in its own name and for its own benefit, the liability of such other person; and in case the insurer recovers a sum greater than that paid by it to the employee, four fifths of the excess shall be paid to the employee.’ G.L.(Ter.Ed.) c. 152, § 15. By virtue of this statute the right of the employee to bring an action against the wrongdoer who caused his injury was transferred to the insurer who had paid or become bound to pay compensation. As to the right of the insurer to bring an action where the injuries have resulted in the death of the employee, see Reidy v. Old Colony Gas Co., 315 Mass. 631, 53 N.E.2d 707. Where the right to bring an action for personal injuries has been so transferred, it was optional with the insurer to bring such an action. If it did not bring such an action, the employee had no just cause of complaint, but if it did, it was entitled to reimburse itself for compensation paid to the employee out of any amount that it might recover; and if there was a balance left, then it was required to pay four fifths of this balance to the employee. Whalen v. Athol Mfg. Co., 242 Mass. 547, 136 N.E 600;Fidelity & Casualty Co. v. Huse & Carleton, Inc., 254 Mass. 359, 150 N.E. 230;Jordan v. Orcutt, 279 Mass. 413, 181 N.E. 661;Becker v. Eastern Massachusetts Street R. Co., 279 Mass. 435, 181 N.E. 757. The amount of expenditures incurred by the insurer for medical and hospital services furnished to the employee is a part of the compensation paid by it and is to be deducted from the amount recovered in computing the sum that should be turned over to the employee. Panasuk's Case, 217 Mass. 589, 105 N.E. 368;Bruso's Case, 295 Mass. 531, 4 N.E.2d 308. See now St.1939, c. 401, revising said section 15, which provides in certain cases for the bringing of an action at law against the third person by the employee.

General Laws (Ter.Ed.) c. 152, § 15, in its original form, St.1911, c. 751, Part III, § 15, authorized the insurer to retain for its own benefit whatever it obtained in the action against the third party, but the statute was amended by St.1913, c. 448, § 1, providing for the apportionment between the insurer and the employee of the amount by which the sum recovered by the insurer exceeded the amount paid for compensation. This provision continued substantially unchanged and was in effect at the time the employee in the present case was injured. It virtually defined the excess which was to be divided between the insurer and the employee and the proportions in which they were to share. Where ‘the insurer recovers a sum greater than that paid by it to the employee,’ four fifths of the difference between the amount recovered and the amount paid to the employee belongs to the employee and he is entitled to receive it as additional compensation under the act. The insurer in the instant case collected damages, interest and costs. These three items constituted the sum that ‘the insurer recovers.’ These words of the statute are plain and must be given their usual and ordinary meaning. Madden's Case, 222 Mass. 487, 497, 111 N.E. 379, L.R.A.1916D, 1000;Boston & Maine Railroad v. Billerica, 262 Mass. 439, 444, 160 N.E. 419;Commonwealth v. Welosky, 276 Mass. 398, 401, 177 N.E. 656. No deduction from this sum for counsel fees or other costs of litigation is provided for, and we have no right to read into the statute a provision that the Legislature did not see fit to embody these in. King v. Viscoloid Co., 219 Mass. 420, 106 N.E. 988, Ann.Cas.1916D, 1170;In re Bergeron, Petitioner, 220 Mass. 472, 107 N.E. 1007, Ann.Cas.1917D, 549;Morse v. Boston, 253 Mass. 247, 148 N.E. 813;Allen v. Commissioner of Corporations and Taxation, 272 Mass. 502, 172 N.E. 643, 70 A.L.R. 1299. Furthermore, the statute deals with the only deductions that are to be made from the sum recovered and it can hardly be assumed that other or different deductions were intended. Westgate v. Century Indemnity Co., 309 Mass. 412, 35 N.E.2d 218; Mitchell v. Mitchell, 312 Mass. 154, 43 N.E.2d 783. It follows that the basis for the computation of the excess in which the employee is entitled to share is the sum recovered by the insurer without any deductions therefrom. This is in accordance with decisions in other jurisdictions where statutes like our own make no express provision for the deduction of counsel...