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09/12/77 CHESTER J. SAHARCESKI v. JOSEPH C. MARCURE

September 12, 1977

CHESTER J. SAHARCESKI
v.
JOSEPH C. MARCURE, SR.



Franklin. Tort. Writ in the Superior Court dated March 22, 1972. The action was tried before Griffin, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Kaplan, Wilkins, & Liacos, JJ.

SYLLABUS BY THE COURT

Workmen's Compensation Act, Common employment, Injuries to which act applies. Conflict of Laws.

The opinion of the court was delivered by: Wilkins

In an action brought in this Commonwealth by a Massachusetts resident employed by a Massachusetts company insuring all its employees under the Workmen's Compensation Act, G. L. c. 152, against a fellow employee residing here for injuries sustained in Connecticut in 1970 as a result of the defendant's negligent operation of a motor vehicle in which the plaintiff was a passenger and while the parties were acting in the course of their employment, this court chose to apply substantive Massachusetts law to bar the plaintiff from recovery rather than Connecticut law to permit his recovery, since the relevant circumstances all related to Massachusetts. [308-312]

Discussion of decisions of the Supreme Court of Connecticut on conflict of laws question. [312-315]

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 (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. *fn1

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. *fn2 "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 (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. *fn3

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 "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, . . . right shall be the exclusive remedy of such injured employee . . . and no action may be brought against . . . 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 (1923) (out-of-State compensation law applied to the exclusion of the Connecticut compensation law). Cf. Douthwright v. Champlin, 91 Conn. 524, 529-530 (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 (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 (1954). Thus, we accept the plaintiff's claim that, as to motor vehicle tort claims, the law of ...


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