Saab v. Massachusetts Cvs Pharmacy, LLC

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation452 Mass. 564,896 N.E.2d 615
Decision Date13 November 2008
896 N.E.2d 615
452 Mass. 564
Taciana Ribeiro SAAB & another1
Supreme Judicial Court of Massachusetts, Suffolk.
Argued September 3, 2008.
Decided November 13, 2008.

[896 N.E.2d 616]

Richard P. Campbell, Boston (Christopher A. Callanan with him) for the plaintiffs.

William J. Dailey, Jr., Boston (Myles W. McDonough with him) for the defendant.

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



452 Mass. 564

We consider in this case whether an exclusivity provision of the Workers' Compensation Act (act), G.L.

452 Mass. 565

c. 152, § 24 (§ 24),3 bars an employee's parents from bringing a wrongful death claim against his employer where the employee is injured at work but no workers' compensation payments are paid for the injury. Here, the employee, Cristian Ribeiro Giambrone, who had no dependents, died almost immediately. Accordingly, no benefits were paid under the workers' compensation statutory scheme. See G.L. c.

896 N.E.2d 617

152, § 31 (benefits payable to employee's dependents on death of employee).4

Giambrone's parents, Taciana Ribeiro Saab and Mark S. Giambrone, commenced an action under the wrongful death statute, G.L. c. 229, § 2,5 seeking recovery for loss of consortium and punitive damages from Massachusetts CVS Pharmacy, LLC

452 Mass. 566

(CVS), the successor in interest to the CVS store where Giambrone worked at the time of his death. CVS moved to dismiss for lack of subject matter jurisdiction and failure to state a claim on which relief can be granted. Mass. R. Civ. P. 12(b)(1), (6), 365 Mass. 754 (1974). It argued, among other things, that the exclusivity provision of the workers' compensation scheme barred the parents' claims, irrespective of whether workers' compensation benefits had been paid on his behalf. A judge in the Superior Court agreed and allowed the motion. The plaintiffs appealed, and we granted their application for direct appellate review.

For the reasons stated below, we conclude that the determination whether an employee's injury is compensable under the act—and thus whether the exclusivity provision, § 24, applies—does not turn on whether a claimant is entitled to or actually receives compensation under the act. Because Giambrone's work-related injuries were compensable, his parents are barred from maintaining any action against his employer, CVS. We affirm the judgment of dismissal.

1. Background. The operative facts are not in dispute. Giambrone was employed at a CVS store on Longwood Avenue in Boston. In February, 2004, while at work, Giambrone and other employees attempted to apprehend a suspected shoplifter. The suspect responded violently, stabbing Giambrone in the neck with a knife. Giambrone died at the scene shortly thereafter. At the time of his death, Giambrone was an eighteen year old high school student

896 N.E.2d 618

who lived at his mother's home. He was financially dependent on both parents and had no dependents himself.

2. Discussion. We begin with a brief review of the act's well-established purpose, focusing on its exclusivity provisions. The

452 Mass. 567

act "was designed to replace tort actions," Alves's Case, 451 Mass. 171, 177 n. 9, 884 N.E.2d 468 (2008), by providing "a uniform, statutory remedy for injured workers, in contrast to a piecemeal, tort-based system." Green v. Wyman-Gordon Co., 422 Mass. 551, 559-560, 664 N.E.2d 808 (1996), quoting Catalano v. First Essex Sav. Bank, 37 Mass.App.Ct. 377, 380, 639 N.E.2d 1113 (1994). Employees injured in the course of their employment—and their dependents—may receive predictable compensation at a time of hardship while employers have the benefit of relative cost certainty. See McCarty's Case, 445 Mass. 361, 369, 837 N.E.2d 669 (2005) (Sosman, J., concurring) ("Protecting the injured worker from the sudden loss of that cash income ... is the goal of the workers' compensation scheme"); Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 349, 446 N.E.2d 1033 (1983) (workers' compensation laws represent "the Legislature's balance of competing societal interests"); Zerofski's Case, 385 Mass. 590, 594, 433 N.E.2d 869 (1982), quoting Madden's Case, 222 Mass. 487, 494-495, 111 N.E. 379 (1916) ("The `purpose [of the act] is to treat the cost of personal injuries incidental to ... employment as a part of the cost of business'").

In exchange for "the possibility of obtaining compensation for loss of wages or earning capacity caused by a work-related injury, regardless of the fault of their employers or the foreseeability of harm," the act "requires that participating employees waive their right to sue in tort for work-related injuries." Murphy v. Commissioner of the Dep't of Indus. Accs., 415 Mass. 218, 222, 612 N.E.2d 1149 (1993). In other words, the employer "obtains an immunity from actions at law by his employees." L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers' Compensation § 26.1, at 313 (3d ed.2003). "It was undoubtedly the intention of the Legislature ... to take away from employees who should become subject to its provisions all other remedies that they had against their employers for injuries happening in the course of their employment and arising therefrom, and to substitute for such remedies the wider right of compensation given by the act." Id., quoting King v. Viscoloid Co., 219 Mass. 420, 422, 106 N.E. 988 (1914). See Barrett v. Rodgers, 408 Mass. 614, 616, 562 N.E.2d 480 (1990) (employees get "guaranteed right of recovery," but they are in turn barred from "recovering against their employers for injuries received on the job"); Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 621, 550 N.E.2d 127 (1990) (workers' compensation

452 Mass. 568

law provides fixed compensation for employees; employers are granted immunity in return). The exclusivity provisions applicable to injured workers now extend to their families and dependents.6

Section 24 and related exclusivity provisions of the act, see, e.g., G.L. c. 152, § 23,7

896 N.E.2d 619

"have always been a part of the workmen's compensation law." Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 44, 449 N.E.2d 641 (1983). They are its "cornerstone." Berger v. H.P. Hood, Inc., 416 Mass. 652, 656, 624 N.E.2d 947 (1993) (dealing with § 23).

Since the 1985 amendment to the act extending the exclusivity provisions to the parents of employees, see note 6, supra, this court has made clear that § 24 bars the claims of the parents of an employee who suffers a work-related injury, whether or not the parents are dependent on the child. See Russell v. Boston Wyman, Inc., 410 Mass. 1005, 1006, 574 N.E.2d 379 (1991) (clarifying that § 24 applies to employee's spouse, parents, or children regardless whether any such relative is financially dependent on employee). Moreover, in St. Germaine v. Pendergast, 411 Mass. 615, 627, 584 N.E.2d 611 (1992), a case where workers' compensation benefits were paid in the wake of a work-related injury (the employee was rendered a paraplegic), we held that § 24 foreclosed an action for loss of consortium brought by the employee's parents.

In this case the parents argue, in essence, that the unavailability

452 Mass. 569

of compensation for or on behalf of their son under the act nullifies § 24 as applied to them. But see note 4, supra. They recognize that had their son been survived by dependents, his dependents would have been eligible for workers' compensation benefits. See G.L. c. 152, § 31. But where such benefits are utterly unavailable under the statutory scheme because Giambrone left no dependents, it cannot be, they contend, that there can be no recovery for the death of their son against his employer, particularly where—they allege—CVS was wilfully and grossly negligent in the operation of its store on Longwood Avenue. St. Germaine v. Pendergast, supra, has no application, they argue, because in that case benefits were paid to the injured worker, thereby triggering the application of § 24 and barring additional recovery by his parents. Here, in contrast, no compensation has been paid on account of the death of their son, and as such, the injury is not "compensable" and § 24 does not apply. We disagree.

The "key" to whether the act precludes a common-law right of action "lies in the nature of the injury for which plaintiff makes claim." Berger v. H.P. Hood, Inc., supra at 655, 624 N.E.2d 947, quoting Foley v. Polaroid Corp., 381 Mass. 545, 553, 413 N.E.2d 711 (1980). In other words, the key is whether the injury is compensable. General Laws c. 152, § 26, "explains when injuries are compensable."8 Lowery v. Klemm, 446 Mass. 572, 579 n. 8, 845 N.E.2d 1124 (2006). Under § 26, an injury is compensable where the plaintiff is an employee who suffers a "personal

896 N.E.2d 620

injury" that arises "out of and in the course of his employment." Green v....

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