Peerless Ins. Co. v. Hartford Ins. Co., 98P0049

• Court: Appeals Court of Massachusetts
• Citation: 48 Mass. App. Ct. 551
• Docket Number: 98P0049
• Parties: MASSACHUSETTS COURT OF APPEALS No.: 98-PEERLESS INSURANCE COMPANY vs. HARTFORD INSURANCE COMPANY. Middlesex County
• Decision Date: 10 February 2000

MASSACHUSETTS COURT OF APPEALS

No.: 98-P-49

PEERLESS INSURANCE COMPANY
vs.
HARTFORD INSURANCE COMPANY.

Middlesex County.

February 10, 2000

Present: Armstrong, Perretta, & Gelinas, JJ.

Contract, Insurance. Insurance, Workers' compensation insurance, Insurer's obligation to defend.
Workers' Compensation Act, To whom act applies. Statute, Construction. Wrongful Death.

Civil action commenced in the Superior Court Department on August 17, 1987.

Following review by this court, 34 Mass. App. Ct. 534 (1993), motions for summary judgment
were heard by Carol Stroud Ball, J.

Andrew J. Fay for the plaintiff.

Myles W. McDonough for the defendant.

Argued May 25, 1999.

ARMSTRONG, J.

The present action arises out of a previous wrongful death suit brought by the
administrator of the estate of John Doyon on behalf of Doyon's nondependent parents to recover
damages for loss of consortium against two parties, only one of whom, Stephen F. Lewis, is
material to this appeal. Lewis was doing business as Eastern Waterproofing Company (Eastern)
and was waterproofing a building owned by the other defendant in the prior action when Doyon
fell to his death from Eastern's scaffolding. The suit alleged negligent maintenance by Eastern of
its equipment.

The present action is between Eastern's two liability insurers as to which one had the duty to
defend Eastern and to indemnify in the event of an adverse judgment. Hartford Insurance
Company (Hartford), Eastern's workers' compensation and employers' liability insurer, declined
to defend the claim, alleging that Doyon was not an employee of Eastern and that it would not be
responsible for defending against the claim even if Doyon had been an employee. Peerless
Insurance Company (Peerless), Eastern's general liability insurer, undertook defense of the claim
and eventually settled it for $125,000.[1] Peerless brought the present action for indemnification,
alleging that it was Hartford that had the duty to defend against the claim. Peerless's action came
to this court once before, on a report that we discharged as improvidently made, see Peerless Ins.
Co. v. Hartford Ins. Co., 34 Mass. App. Ct. 534, 537 (1993). In discharging the report we implied
by way of dictum that as between the workers' compensation in surer and the general liability
insurer, it was the former that had the broad, general duty of defending claims that arose from a
worker's injury or death, regardless whether the claim was asserted...