Peerless Ins. Co. v. Hartford Ins. Co.
Decision Date | 10 February 2000 |
Docket Number | 98P0049 |
Citation | 48 Mass. App. Ct. 551 |
Parties | MASSACHUSETTS COURT OF APPEALS No.: 98-PEERLESS INSURANCE COMPANY vs. HARTFORD INSURANCE COMPANY. Middlesex County |
Court | Appeals Court of Massachusetts |
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.
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.
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 before the Department of
Industrial Accidents or a court, and that if the exclusivity of the administrative forum precluded
the availability of an action in court, that was a matter that should be raised in the normal course
of defending the claim in court, not a reason for refusing to defend. Id. at 536-537. We followed
our Peerless holding in a subsequent case, HDH Corp. v. Atlantic Charter Ins. Co., 41 Mass.
App. Ct. 131, 134-135 (1996). On further appellate review, however, that decision was reversed,
see 425 Mass. 433 (1997). The latter decision, starting from the proposition that an insurer has a
duty to defend only if the allegations of the complainant are reasonably susceptible of an
interpretation that they state a claim covered by the terms of the insurance policy,reasoned that
the Atlantic Charter Insurance Company (Atlantic Charter) policy, a standard workers'
compensation and employers' liability policy, under coverage A[2] insured only for claims
brought under the workers' compensation act -- i.e., claims for compensation brought before the
department, not claims for damages brought in a civil action before a court (id. at 436-438) -- and
that coverage B, "the employers' liability portion of the insurance policy, is intended to provide
coverage in the rare circumstance in which an employee who has affirmatively opted out [of the
compensation scheme under G. L. c. 152, 24,] brings a tort action for personal injuries." Id. at
439 n.11.
Following the Supreme Judicial Court's decision in the HDH case and in reliance thereon, a
Superior Court judge allowed Hartford's motion for summary judgment in the still pending
Peerless case, and Peerless claimed the appeal that is before us now.
Peerless concedes, as it must, that, under the HDH decision, Hartford had no potential liability
under coverage A of its policy because the claim was not one for workers' compensation benefits.
include suits brought by anyone not subject to the tort bar of G. L. c. 152, 68, for such
employment-related injuries or death.
which rewrote G. L. c. 152, 24. During that period, Peerless argues, an employee's waiver under
G. L. c. 152, 24, of his right to bring common law civil actions against his employer for
on-the-job injuries did not extend to his family or dependents who might have common law
claims for loss of consortium. (Peerless concedes that the wrongful death action would have been
barred had the accident occurred after the effective date of the 1985 legislation.) The second part
of Peerless's argument is that the 68 tort bar did not apply to Doyon's parents because Doyon's
parents were not entitled to benefits under the workers' compensation law.[3]
The latter argument is based on a misreading of 68. The words "who are entitled to the benefits
provided by said sections" refer to the public employees ("laborers, workmen, or mechanics") of
the Commonwealth or subdivisions of the Commonwealth which have accepted the public
employee workers' compensation scheme set out in G. L. c. 152, 69-75, inclusive. The words
do not modify "employees of an insured person," a phrase which, because of a provision of G. L.
c. 152, 1(4) ( ), includes, "when the employee is dead, .
The principal obstacle to Peerless's argument lies in the wrongful death statute itself, G. L. c.
1) that "the liability of an employer to a person in his employment shall not be governed by this
section." In conjunction with G. L. c. 152, 24 and 68, that section has been read consistently to
preclude any civil action for wrongful death of an employee who is subject to the provisions of
the workers' compensation laws. See McDonnell v. Berkshire St. Ry. Co., 243 Mass. 94, 95
(1922) ("The employer who is insured under the workmen's compensation act is relieved of all
statutory liability, including that for death of an employee under the employers' liability act");
as against an employer covered by G. L. c. 152"); Hallett v. Wrentham, 398 Mass. 550, 555
(1986) ("Neither do[es] . . . Ferriter create an independent right of recovery for lost consortium
when the victim suffers death rather than...
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