Molina v. State Garden, Inc.

• Decision Date: 03 September 2015
• Docket Number: No. 14–P–676.,14–P–676.
• Citation: 37 N.E.3d 39,88 Mass.App.Ct. 173
• Parties: Antonio Perez MOLINA v. STATE GARDEN, INC.
• Court: Appeals Court of Massachusetts

88 Mass.App.Ct. 173

37 N.E.3d 39

Antonio Perez MOLINA

v.STATE GARDEN, INC.

No. 14–P–676.

Appeals Court of Massachusetts, Suffolk.

Submitted Dec. 10, 2014.

Decided Sept. 3, 2015.

Mark S. Horrigan, Lynn, for the plaintiff.

Martha J. Zackin, Boston, for the defendant.

John Pagliaro & Martin J. Newhouse, Boston, for New England Legal Foundation & another, amici curiae, submitted a brief.

Present: KATZMANN, HANLON, & MALDONADO, JJ.

Opinion

KATZMANN, J.

This appeal presents the question whether the “alternate employer endorsement” to a staffing company's workers' compensation insurance policy satisfies the requirements of G.L. c. 152, §§ 15 and 18, such that an injured employee's employer, a customer of the staffing company and named in the endorsement, is immune from tort liability under the Workers' Compensation Act (Act). We answer that question in the affirmative.

The plaintiff, Antonio Perez Molina (Molina or employee), was injured while providing services on assignment from American

Resource Staffing Network, Inc. (ARS), to State Garden, Inc. (State Garden or defendant), and brought suit against State Garden for negligence. While his case was pending in the trial court, he was awarded workers' compensation benefits on ARS's policy, which named the defendant as an additional insured. A Superior Court judge allowed State Garden's motion for summary judgment and dismissed Molina's complaint on the ground that his claim was barred by the exclusivity provisions of the Act, G.L. c. 152, §§ 23 –24.¹ Molina appeals. We affirm.²

Background. ARS is a staffing company that provides temporary staffing to clients such as State Garden, a produce business. State Garden uses ARS employees to supplement its workforce. Molina was assigned to State Garden as a temporary worker at its processing facility in Chelsea, Massachusetts. On or about December 22, 2010, Molina sustained a low back injury in the course of his work for State Garden.³ Molina's injury was covered by the Act. He applied for and received benefits from A.I.M.

Mutual Insurance Company, ARS's workers' compensation insurer. State Garden and ARS both acted as Molina's employer, controlling different aspects of his employment. ARS was the “general employer,” to whom Molina applied for work. It retained control over several personnel and administrative functions, including purchasing and paying for insurance. Compare Galloway's Case, 354 Mass. 427, 429–430, 237 N.E.2d 663 (1968) ; Ramsey's Case, 5 Mass.App.Ct. 199, 201–202, 360 N.E.2d 911 (1977). However, ARS was not Molina's “direct employer”; it could not arbitrarily terminate, transfer, or remove Molina on a unilateral basis. See Fleming v. Shaheen Bros., 71 Mass.App.Ct. 223, 227, 881 N.E.2d 1143 (2008) ( Fleming ). State Garden was both the “special employer” and the “direct employer”: it set Molina's hours, established his duties and responsibilities, directed him to perform certain tasks, and managed his day-to-day performance. See Galloway's Case, supra; Ramsey's Case, supra; Fleming, supra.⁴ State Garden was liable for the payment of Molina's wages by virtue of its arrangement with ARS, whereby it paid ARS an amount equivalent to his wages plus a service fee.

ARS has a workers' compensation policy, which includes an “alternate employer endorsement.” The endorsement states:

“This endorsement applies only with respect to bodily injury to your employees while in the course of special or temporary employment by the alternate employer ... named in Item 2 of the Schedule. Part One (Workers Compensation Insurance) and Part Two (Employers Liability Insurance) will apply as though the alternate employer is insured.”⁵

The alternate employer endorsement specifically names State Garden. State Garden is also identified as an “additional employer”

under the “Certificate of Liability Insurance.” An affidavit by Michele Bordieri, State Garden's human resources manager, as well as the “Workers Compensation and Employers Liability Insurance Certificate,” indicate that State Garden carries workers' compensation insurance that covers its employees, and for which it pays as the named insured.⁶

In addition, during ARS's hiring process, Molina signed a “Waiver and Release,” which states as follows:

“In consideration of any offer of employment by American Resource Staffing, I hereby acknowledge, understand and agree that the following will constitute terms and conditions of any such employment.

“In recognition that any work related injuries which might be sustained by me are covered by state Workers' Compensation statutes, and to avoid the circumvention of such state statutes which may result from suits against the customers or clients of American Resource Staffing, based on the same injury or injuries, and to the extent permitted by law, I HEREBY WAIVE AND FOREVER RELEASE ANY RIGHTS I MIGHT HAVE to make claims or bring suit against any client or customer of American Resource Staffing, for damages based upon injuries which are covered under such Workers' Compensation statutes.”

Molina sued State Garden for his injuries notwithstanding his receipt of workers' compensation benefits on ARS's insurance policy, the alternate employer endorsement, State Garden's designation as an additional insured employer, and the waiver and release of liability. State Garden filed a motion to dismiss and, in the alternative, a motion for summary judgment. In opposing Molina's suit, State Garden contended that, where the general employer, ARS, carried a workers' compensation policy containing an alternate employer endorsement naming State Garden as an additional insured employer, State Garden was entitled to immunity from suit under the exclusivity provisions of the Act. Molina countered that §§ 15 and 18 of the Act limit immunity for special employers such as State Garden to circumstances where, among other things, the special employer actually pays the workers'

compensation benefit, and that the alternate employer endorsement did not satisfy this requirement. The judge allowed the motion for summary judgment on the ground that the alternate employer endorsement shielded State Garden from common-law liability under the exclusivity provisions of the Act. We agree.⁷ We also conclude that Molina's action is barred by the waiver and release he signed.

Discussion. On appeal, we review the motion judge's grant of summary judgment de novo. Twomey v. Town of Middleborough, 468 Mass. 260, 267, 10 N.E.3d 618 (2014). Fraco Prods., Ltd. v. Bostonian Masonry Corp., 84 Mass.App.Ct. 296, 299, 995 N.E.2d 1125 (2013). “The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), citing Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974). We may affirm the entry of summary judgment on any ground supported by the record. See American Intl. Ins. Co. v. Robert Seuffer GmbH & Co., 468 Mass. 109, 113, 9 N.E.3d 289 (2014).

1. Alternate employer endorsement as source of immunity. The issue before us is whether the alternate employer endorsement written into ARS's workers' compensation insurance policy immunizes State Garden from common-law liability under the exclusivity provisions of the Act.

We begin by observing, as did the motion judge, that there is no Massachusetts case squarely on point. In Lang v. Edward J. Lamothe Co., 20 Mass.App.Ct. 231, 232–233, 479 N.E.2d 208 (1985) (Lang ), and Numberg v. GTE Transport, Inc., 34 Mass.App.Ct. 904, 905, 607 N.E.2d 1 (1993) (Numberg ), this court acknowledged that, pursuant to §§ 15 and 18 of the Act, a special employer who was also the direct employer could be immune from suit if it had made an agreement with the general employer to pay the workers' compensation benefits for the injured employee. No such agreement had been made in either case, and, thus, the special employers

were not immune from common-law tort liability. Because there was no alternate employer endorsement in either case, we had no occasion to examine the effect of such an endorsement on a special employer's tort immunity. A third case, Fleming, 71 Mass.App.Ct. at 228–229, 881 N.E.2d 1143, is not directly applicable because there was no general- or special-employer relationship in that case. Thus, these cases do not resolve the issue before us. To resolve that issue, we look primarily to the Act.

a. Statutory scheme. The Act was enacted as a humanitarian measure in July, 1911, see St. 1911, c. 751, in response to public sentiment that previous remedies under common law and the employers' liability act did not sufficiently protect against injuries or provide relief for workplace accidents. See Meley's Case, 219 Mass. 136, 139, 106 N.E. 559 (1914) ; Cox's Case, 225 Mass. 220, 223–224, 114 N.E. 281 (1916) ; LaClair v. Silberline Mfg. Co., 379 Mass. 21, 27, 393 N.E.2d 867 (1979). The goal of the workers' compensation scheme is the protection of the injured worker from the sudden loss of cash income. See Sellers's Case, 452 Mass. 804, 810–811, 898 N.E.2d 494 (2008).

The Act provides the exclusive remedy for claims brought by an injured employee against an employer. See G.L. c. 152, §§ 23 –24 ; Green v. Wyman–Gordon Co., 422 Mass. 551, 558 n. 10, 664 N.E.2d 808 (1996) (reciting the relevant part of § 24 : “[a]n employee shall be held to have waived his right of action at common law ... in respect to an injury that is compensable under this chapter, to recover damages for personal injuries ...”). “[U]nder G.L. c. 152, § 24, unless an employee expressly preserves his or her common law rights of action, a claim alleging negligence of an employer ... is foreclosed by the exclusivity provisions of the workers' compensation act.” Perkins v. Commonwealth, 52 Mass.App.Ct. 175, 176–177, 752 N.E.2d 761 (2001). “The [A]ct was designed to...