Richard v. Arsenault
| Decision Date | 06 July 1965 |
| Citation | 349 Mass. 521,209 N.E.2d 334 |
| Parties | Yvon J. RICHARD v. Joseph R. ARSENAULT. Yvon J. RICHARD v. CUSHMAN BAKERY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Richard O. Johnson, Salem (Alphonse S. Bachorowski, Salem, with him) for plaintiff.
John Z. Doherty, Lynn, for insurer, Travelers Ins. Co.
No argument or brief for defendants.
Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER, and KIRK, JJ.
The questions for decision arise out of two third party actions brought under G.L. c. 152, § 15.
Based on facts agreed to by the parties, the judge made the following findings: On November 10, 1960, while the plaintiff was riding as a passenger in a motor vehicle owned and operated by another, the vehicle collided with a trailer truck. The trailer truck was operated by the defendant Joseph R. Arsenault and owned by the defendant Cushman Bakery (Cushman).
The plaintiff sustained injuries to his back, neck and head which incapacitated him for work for many months. At the time of the accident the plaintiff, who was employed as a carpenter for one Dudman, a building contractor, was being transported from one job to another. The plaintiff's injuries arose out of and in the course of his employment. As insurer of Dudman, The Travelers Insurance Company (Travelers) paid compensation under G.L. c. 152 to the plaintiff in the amount of $8,223.49 up to the date of the settlement hereinafter discussed.
No action having been brought against the third party defendants by Travelers within nine months after the injury, the plaintiff brought the present actions of tort against Arsenault and Cushman. See G.L. c. 152, § 15.
Shortly after the trial had begun, the parties, who had agreed upon a settlement, presented a petition to the court for its approval. The petition set forth the amount of the settlement ($18,250), the apportionment of counsel fees and expenses between the plaintiff and Travelers in connection with the actions, and the amount to be paid to Travelers by way of reimbursement under § 15. The terms of the settlement, including the apportionment of counsel fees and expenses and the amount of Traveler's reimbursement, were approved by the judge. He found that the amount by which the settlement sum exceeded the compensation paid up to the date of the settlement (hereinatfer called the excess) was $6,588.23.
The plaintiff is presently, and has been since September, 1962, employed as a carpenter 'at full earning capacity.' Since that time he has received no compensation. His case, however, 'remain[s] open and it is uncertain whether or not the payment of further compensation * * * shall be required in the further.'
The judge, at the request of the parties, reported the cases to this court without decision (see G.L. c. 231, § 111) for a determination of the following questions: (1) whether the amount of the excess shall be determined as of the settlement date; (2) whether the employee receives the excess as an absolute owner; and (3) whether, in a case where compensation has ceased but may be resumed, the excess should be placed in trust for the benefit of the insurer or the excess should be offset against the insurer's obligation to make future payments. Pursuant to an agreement of the parties, the judge ordered the excess to be paid to and held in escrow by the plaintiff's attorney pending a determination by this court of the questions reported.
We are of opinion that the amount of excess can properly be determined as of the date on which a third party action is settled. 1 The plaintiff was authorized to bring these actions under § 15, which reads in relevant part, '* * * if, in any case where the employee has claimed or received compensation within six months of the injury, the insurer does not proceed to enforce such liability within a period of nine months after said injury, the employee may so proceed.' From the fact that the plaintiff could bring these actions, it follows that he could also enter into a settlement agreement without pursuing the litigation to its conclusion. To hold otherwise would read into § 15 a policy which would encourage litigation despite the fact that the interested parties desired to terminate it.
That this was not the legislative intent is made clear by another provision of § 15. 'In the case of a settlement by agreement by the parties to, and during a trial of, such an action at law the justice presiding at the trial shall have and exercise, relative to the approval of such settlement by agreement and to the protection of the rights and interests...
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DiCarlo v. Suffolk Constr. Co.
...Rhode v. Beacon Sales Co., 416 Mass. 14, 17, 616 N.E.2d 103 (1993), Eisner, supra at 131, 407 N.E.2d 1286, and Richard v. Arsenault, 349 Mass. 521, 524, 209 N.E.2d 334 (1965). Our construction of § 15 as excluding damages for pain and suffering from the insurer's lien neither impinges on th......
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Daly's Case
...for the same injury. Hunter v. Midwest Coast Transp., Inc., 400 Mass. 779, 783, 511 N.E.2d 615 (1987), citing Richard v. Arsenault, 349 Mass. 521, 524, 209 N.E.2d 334 (1965). In Hunter, we also said that there is no "unfairness to an insurer in a system that reimburses the insurer for benef......
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DiCarlo v. Suffolk Constr. Co.
...any damages which may result if a tort action was brought instead of a claim for benefits under G.L. c. 152. See Richard v. Arsenault, 349 Mass. 521, 524, 209 N.E.2d 334 (1965).6 Although there is an equitable argument to be made on behalf of the employee, namely, that pain and suffering da......
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Brown v. Leighton
...the employer so much of the negligence recovery as is necessary to reimburse him for his compensation outlay." Richard v. Arsenault, 349 Mass. 521, 524, 209 N.E.2d 334 (1965). The employer in the instant action did not avail itself of insurance with a private insurer or attempt to qualify a......