Ramirez v. Graham

Decision Date20 September 2005
Docket NumberNo. 04-P-410.,04-P-410.
Citation64 Mass. App. Ct. 573,834 N.E.2d 754
PartiesAdan Garcia RAMIREZ v. Steven L. GRAHAM.<SMALL><SUP>1</SUP></SMALL>
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Bart W. Heemskerk, Springfield, for the defendant.

James F. Martin, Springfield, for the plaintiff.

Present: CYPHER, KANTROWITZ, & COWIN, JJ.

COWIN, J.

The plaintiff, Adan Garcia Ramirez, obtained a jury verdict in the Superior Court in the amount of $5,000 for the failure of the defendant, Steven L. Graham, the president of the plaintiff's former employer, JSE Corporation, to have in effect workers' compensation coverage at the time the plaintiff incurred a job-related injury.2 The defendant's motions for judgment notwithstanding the verdict and for amendment of the judgment were denied. The defendant appealed, asserting that (1) it was error to permit an amendment to the complaint that added him as a party more than six years after the filing by the plaintiff of a complaint against JSE Corporation and almost six years after that complaint had been dismissed with prejudice; (2) the plaintiff incurred no damages as a result of the absence of workers' compensation coverage because he received all of the workers' compensation benefits to which he was otherwise entitled from the Workers' Compensation Trust Fund (trust fund); and (3) in any event, the amount the plaintiff received from the trust fund should be treated as an offset against the amount of the verdict (which would reduce the plaintiff's recovery to zero). We agree that, in the circumstances of this case, leave to amend should not have been granted, and we accordingly reverse, and order that the second amended complaint be dismissed. Because the defendant prevails on the first ground of his appeal, we do not consider the remaining assertions of error.

1. Background. The facts and history of the proceeding are not disputed. The plaintiff alleged that, on January 28, 1991 while in the course of his employment with JSE Corporation, he slipped and fell on an unnatural accumulation of snow and ice at premises controlled by his employer and was injured. The employer had permitted its workers' compensation coverage to lapse, and in fact ceased doing business shortly thereafter. On June 26, 1991, the plaintiff commenced an action in the Superior Court against JSE Corporation, alleging negligence generally (including the fact that the company had no workers' compensation coverage in place). On November 18, 1991, the complaint was dismissed pursuant to Mass.R.Civ.P. 33(a), 368 Mass. 905 (1976), for failure of the plaintiff to answer interrogatories.

The plaintiff's apparent lack of interest in the proceeding may have been attributable to the fact that he had filed a successful claim with the trust fund,3 and was receiving workers' compensation benefits from that source. He received benefits for temporary total incapacity (see G.L. c. 152, § 34) from April 11, 1991, to June 10, 1991, and for partial incapacity (see G.L. c. 152, § 35) from June 11, 1991, through November 22, 1991. On July 24, 1992, an administrative law judge of the Department of Industrial Accidents approved a lump sum settlement that redeemed the plaintiff's claims for future compensation. Total benefits paid to the plaintiff by the trust fund amounted to $16,566.74.

On January 28, 1994, the final day before expiration of the applicable statute of limitations, see G.L. c. 260, § 2A,4 the plaintiff filed in the District Court a virtually identical version of the complaint against JSE Corporation that had been dismissed in the Superior Court on November 18, 1991.5 This complaint also suffered dismissal three years later (on January 3, 1997) when the plaintiff failed to file a timely request for trial, see District Court Standing Order 1-88, § IV(C)(3), but the plaintiff's motion for relief from that judgment was allowed on August 25, 1997. JSE Corporation filed no answer and was defaulted.6

On October 15, 1997, a District Court judge allowed the filing by the plaintiff of an amended complaint.7 An ex parte motion for real estate attachments was also allowed. By means of the amendment, the plaintiff added as parties-defendant JSE Realty Corporation and 230 Fort Pleasant Realty Trust, each of which was alleged to be responsible for the maintenance and upkeep of the property at which the plaintiff claimed to have been injured. Also added was Steven L. Graham, also known as Steven L. Grubman, the present appellant who, it was alleged, was the president and treasurer of JSE Corporation (the plaintiff's former employer) and who, it was further alleged, negligently failed to maintain workers' compensation coverage for that company.

The defendants filed a motion to dismiss the amended complaint, asserting that it failed to state a cause of action, see Mass.R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), and that there had been a prior action pending in a court of the Commonwealth, see Mass.R.Civ.P. 12(b)(9), 365 Mass. 754 (1974). It appears from an accompanying memorandum that the defendants' case for dismissal was not so much under rule 12(b)(9) (given that the prior proceeding was no longer pending) as it was under principles of res judicata (given that the prior proceeding had gone to judgment). The defendants also requested that the court reconsider the allowance of the amendment adding them as defendants and dissolve the ex parte attachments.8

A different District Court judge allowed the defendants' motion to dismiss the amended complaint as to JSE Corporation; denied the motion to dismiss as to all other defendants; denied reconsideration of the allowance of the amendment; and dissolved the ex parte attachment against the property of JSE Corporation, but denied the request to dissolve as against the other defendants. This action left the case in a posture in which the original defendant was eliminated from exposure altogether, while the case continued against three new defendants (including the present appellant) added for the first time more than six and one-half years after the alleged injury that gave rise to the proceeding in the first place.

The remaining defendants then removed the case, and the controversy thereby reentered the Superior Court. The defendants again moved to dismiss the amended complaint. A judge treated the motion as one seeking reconsideration of the allowance of leave to amend the complaint, and denied it. A second judge denied the defendants' motion for summary judgment, and permitted the amended complaint to be amended again to assert a claim of premises liability against the defendant Graham, as well as the existing claim of negligent failure to obtain workers' compensation coverage. JSE Realty Corporation and 230 Fort Pleasant Realty Trust were dismissed as defendants by agreement, and in May, 2001, the case proceeded to trial against Graham as the sole defendant before a third Superior Court judge and a jury. Following the jury's verdict for the plaintiff in the amount of $5,000 for the defendant's negligent failure to provide workers' compensation insurance, the judge denied the defendant's motion for judgment notwithstanding the verdict, as well as his motion to amend the judgment. In a memorandum accompanying his order, the trial judge labeled the circumstances in which the defendant was added to the complaint "troubling," but declined (understandably, in our view) to revisit the orders that had been entered by other judges.

2. Discussion. The action that was ultimately tried was commenced on January 28, 1994, within the applicable limitations period (albeit by only a few hours). An order allowing amendment of the complaint to add Graham as a defendant was entered on October 15, 1997. It is expected ordinarily that the amendment would "relate back" to the original pleading. See G.L. c. 231, § 51, as revised by St.1988, c. 141, § 1, providing in relevant part that "[i]n all civil proceedings, the court may at any time, allow amendments adding a party, ... which may enable the plaintiff to sustain the action for the cause or for recovery for the injury for which the action was intended to be brought.... Any amendment allowed pursuant to this section or pursuant to the Massachusetts Rules of Civil Procedure shall relate to the original pleading." See also Mass.R.Civ.P. 15(c), 365 Mass. 761 (1974); Wood v. Jaeger-Sykes, Inc., 27 Mass.App.Ct. 199, 200-201, 536 N.E.2d 1100 (1989). This applies notwithstanding the fact that a new complaint against the proposed additional defendant would be time-barred. See Srebnick v. Lo-Law Transit Mgmt., Inc., 29 Mass.App.Ct. 45, 50, 557 N.E.2d 81 (1990) (expiration of statute of limitations often a reason for allowing, rather than denying, amendment to add or substitute defendant). "Massachusetts practice is more liberal than other jurisdictions in allowing amendments adding or substituting defendants after expiration of a period of limitations." National Lumber Co. v. LeFrancois Constr. Corp., 430 Mass. 663, 671, 723 N.E.2d 10 (2000).

While acknowledging these practices and the policies that underlie them, we conclude that they are inapplicable in the present case. The complaint filed by the plaintiff against JSE Corporation on January 28, 1994, in the District Court was a virtual duplicate of a complaint filed in the Superior Court on June 26, 1991, that was dismissed in November, 1991. That dismissal was with prejudice. See Mass.R.Civ.P. 33(a) ("the clerk shall enter an appropriate judgment, subject to the provisions of Rules 54[b], 54[c], 55[b][1], 55[b][2] [final sentence], 55[b][4] and 55[c]").9 Indeed, the rule would make no sense otherwise; a judgment without prejudice would permit a plaintiff simply to commence the action again. Contrast Mass.R.Civ.P. 41(a)(1) and 41(b)(1), 365 Mass. 803 (1974), which provide expressly that dismissals under those sections shall be without prejudice.

Following dismissal of his first ...

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