Saharceski v. Marcure

• Decision Date: 12 September 1977
• Citation: 366 N.E.2d 1245,373 Mass. 304
• Parties: Chester J. SAHARCESKI v. Joseph C. MARCURE, Sr. Supreme Judicial Court of Massachusetts, Franklin
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1245

366 N.E.2d 1245

373 Mass. 304

Chester J. SAHARCESKI v. Joseph C. MARCURE, Sr.

Supreme Judicial Court of Massachusetts, Franklin.

Argued Jan. 4, 1977.

Decided Sept. 12, 1977.

Neil Sugarman, Boston, for the plaintiff.

Philip A. Brooks, Springfield, for the defendant.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and LIACOS, JJ.

WILKINS, Justice.

The plaintiff and the defendant, Massachusetts residents and employees of a Massachusetts corporation, were acting in the course of their employment when, on June 1, 1970, in the State of Connecticut, the plaintiff, a passenger, was injured as the result of the defendant's negligent operation of a motor vehicle. If the relevant circumstances involved in this case all related to Massachusetts, the plaintiff would not be entitled to recover from his negligent fellow employee. On the other hand, if the relevant circumstances all related to Connecticut, the plaintiff would be entitled to recover. We conclude that the law of this Commonwealth applies properly in this case to bar the plaintiff from recovering from his fellow worker.

The plaintiff was employed by the Ethan Ames Manufacturing Co., Inc. (company), which had its principal offices at its Turners Falls retail store outlet, of which the plaintiff was the manager. The plaintiff and the defendant were residents of this Commonwealth and had been hired here. The company had no store in Connecticut and had no employees resident or principally working there. It had purchased workmen's compensation insurance covering its employees as provided in G.L. c. 152. On June 1, 1970, the plaintiff, the defendant, and others traveled by motor vehicle on their employer's business from Massachusetts into Connecticut intending to pass through that State without stopping. Trips to Connecticut to pick up merchandise were an occasional part of the plaintiff's duties. The vehicle, which was registered in Massachusetts, was owned by the company.

The defendant, employed as a chauffeur, was operating the vehicle when it struck the rear of a motor vehicle which was stopped in the passing lane of the Connecticut Turnpike. The plaintiff, who sustained injuries in the accident, collected workmen's compensation benefits from the company's insurance carrier.

The judge denied the defendant's motion for a directed verdict which was grounded on the claim that G.L. c. 152 prohibited a suit against a fellow employee. The jury returned a verdict for the plaintiff. However, on motion of the defendant, the judge ordered judgment for the defendant notwithstanding the verdict. Mass.R.Civ.P. 50(b), 365 Mass. 814 (1974). The judge's decision was correct.

In this Commonwealth, where compensation benefits are available under G.L. c. 152, an employee injured in the course of his employment by the negligence of a fellow employee may not recover from that fellow employee if he also was acting in the course of his employment. Murphy v. Miettinen, 317 Mass. 633, 635, 59 N.E.2d 252 (1945), and cases cited. This long settled principle of Massachusetts law has not been subject to serious dispute, and is not challenged in this proceeding. ¹

An employee covered under the Massachusetts Workmen's Compensation Act is afforded compensation for an injury which occurs outside of the Commonwealth. G.L. c. 152, § 26. Unless an employee gives timely notice to his employer of his reservation of common law rights (and the plaintiff here did not do so), an employee is treated as having waived "his right of action at common law or under the law of any other jurisdiction in respect to an injury . . . " occurring in the course of his employment. G.L. c. 152, § 24. ² "Massachusetts has assumed exclusive jurisdiction of rights to compensation where the contract of employment is made here and no notice in writing of claim of rights is given." Migues's Case, 281 Mass. 373, 375, 183 N.E. 847, 848 (1933). We think it clear that Massachusetts law, as expressed in its Workmen's Compensation Act, contemplates that an employee covered under the act must look solely to his employer's compensation insurer (and any independent third-party tortfeasor) when he is injured in the course of his employment by the negligence of a fellow employee who is also acting in the course of his employment and that it makes no difference that the injury was received in another State. ³

Although the defendant argues that these principles of Massachusetts law are dispositive of this case, the plaintiff contends that the substantive law of this Commonwealth is inapplicable to injuries arising from a tort which occurred in Connecticut. He argues that the Legislature has not mandated the application of Massachusetts substantive law to this case, that appropriate conflict of laws principles require this court to look to the law of the State of Connecticut, and that the law of Connecticut would permit the plaintiff to recover against a fellow employee in these circumstances.

It is clear that an employee injured in Connecticut in the course of his employment by the negligent operation of a motor vehicle by a fellow employee may recover from that fellow employee under Connecticut law. Many States permit a suit against a fellow employee in such circumstances. Annot.,21 A.L.R.3d 845, 850 (1968). Section 31-293a of the Connecticut General Statutes provides that "(i)f an employee . . . has a right to benefits or compensation under . . . (the Connecticut Workmen's Compensation Act) on account of injury . . . caused by the negligence or wrong of a fellow employee, . . . (that) right shall be the exclusive remedy of such injured employee . . . and no action may be brought against . . . (the) fellow employee except for negligence in the operation of a motor vehicle . . . or unless such wrong was wilful or malicious" (emphasis supplied). Conn.Gen.Stat. § 31-293a (1977). That statutory provision seemingly would not aid the plaintiff in this case because he probably had no right to compensation under the Connecticut compensation act where the Massachusetts compensation act extended a right to benefits in this circumstance. Hopkins v. Matchless Metal Polish Co., 99 Conn. 457, 464-465, 121 A. 828 (1923) (out-of-State compensation law applied to the exclusion of the Connecticut compensation law). Cf. Douthwright v. Champlin, 91 Conn. 524, 529-530, 100 A. 97 (1917) (Connecticut compensation act applied because, at the time, the Massachusetts act did not reach extraterritorially). But even if that provision of the Connecticut Workmen's Compensation Act did not apply to the plaintiff, apparently the plaintiff would be entitled to recover against a fellow employee under Connecticut law. In Stulginski v. Cizauskas, 125 Conn. 293, 297-298, 5 A.2d 10 (1939), at a time when there was no statutory restriction on suits against a fellow employee, the plaintiff was entitled to recover against a negligent fellow employee even after compensation benefits were paid. See Farm Bureau Mut. Auto. Ins. Co. v. Kohn Bros. Tobacco Co., 141 Conn. 539, 543, 107 A.2d 406 (1954). Thus, we accept the plaintiff's claim that, as to motor vehicle tort claims, the law of Connecticut does not bar tort actions against fellow employees where the injury occurs in the course of their common employment. We shall return to the question whether the Supreme Court of Connecticut would apply this general principle when a plaintiff has workmen's compensation benefits available under the law of the place of his employment and under that law the employee waives any claims against a fellow employee for injuries incurred within or without the State of his employment while each is in the course of his employment.

1. We start our analysis by noting that the choice of law question involved in this case is not of constitutional dimensions. We are free to apply Connecticut law or Massachusetts law, just as Connecticut would have been free to apply the law of either State if this action had been brought there. Carroll v. Lanza, 349 U.S. 408, 413-414, 75 S.Ct. 804, 99 L.Ed. 1183 (1955). 4 A. Larson, Workmen's Compensation § 88.21 (1976). Restatement (Second) of Conflict of Laws § 183 (1971).

The issue presented here has not been resolved uniformly in those cases where it has arisen and is left open by the Restatement (Second) of Conflict of Laws. See Restatement (Second) of Conflict of Laws § 184, Comment b (1971). ⁴ Some courts have undertaken to resolve the choice of law question by a largely mechanical, conclusory assertion of the result. Thus, the law of the forum has been applied, where the accident occurred out of State, by simply concluding that the forum's public policy is to deny recovery against a fellow employee. Hockmuth v. Perkins, 55 Ga.App. 649, 653, 191 S.E. 156 (1937). Fagan v. John J. Casale, Inc., 16 Misc.2d 1046, 1049, 184 N.Y.S.2d 109 (N.Y.Sup.Ct.1959). We do not regard the Connecticut rule of law as so repugnant to the declared policy of this State that we would not enforce it in appropriate circumstances. ⁵ On the other hand, the law of the forum allowing recovery against a fellow employee has been applied to a local accident in disregard of the exemption contained in the law of the State of employment, perhaps on the ground that the exemption of the foreign law is obnoxious to the forum's public policy (Hutzell v. Boyer, 252 Md. 227, 233, 249 A.2d 449 (1969)), or on the simple assertion that the law of the place of the alleged tort governs all questions of law (Ellis v. Garwood, 168 Ohio St. 241, 246-247, 152 N.E.2d 100 (1958)).

In situations involving a conflict of laws concerning the fellow employee's claimed exemption from liability, the better reasoned cases focus on the established relationship of the parties, their expectations, and the degree of interest of each jurisdiction whose law might be applied. Stacy v. Greenberg, 9 N.J. 390, 397-398, 88 A.2d 619 (1952) (New York employment; New Jersey motor vehicle...