Supreme Judicial Court of Massachusetts, Suffolk, Middlesex
Robert M. DiCarlo
Suffolk Construction Co., Inc., & others; Professional Electrical Contractors of Connecticut, Inc., third-party defendant. Bernard J. Martin & another
Angelini Plastering, Inc., & others.
October 8, 2015.
action commenced in the Superior Court Department on March
petition for settlement was heard by Frances A. McIntyre, J.
proceeding for interlocutory review was heard in the Appeals
Court by Judd J. Carhart, J. After review by the Appeals
Court, the Supreme Judicial Court granted leave to obtain
further appellate review.
action commenced in the Superior Court Department on
September 15, 2011.
petition for settlement was heard by Dennis J. Curran, J.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
M. Ackerman for Twin City Fire Insurance Company &
Charlotte E. Glinka for Bernard Martin & another.
R. Murphy for Robert M. DiCarlo.
M. Kessimian & David J. Pellegrino, for American
Insurance Association, amicus curiae, submitted a brief.
Annette Gonthier Kiely, Michael C. Najjar, & J. Michael
Conley, for Massachusetts Academy of Trial Attorneys, amicus
curiae, submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.
N.E.3d 573] Lenk, J.
Massachusetts law, employees who receive workers'
compensation benefits may not sue their employers for claims
arising from work-related injuries. See G. L. c. 152, §
24. Employees may, however, file claims
against third parties for damages arising from those
injuries. See G. L. c. 152, § § 15, 24. When an
employee recovers damages from a third party, the
workers' compensation insurer is statutorily entitled to
a lien on the recovery in the amount that the insurer paid to
the employee in benefits. See G. L. c. 152, § 15. In
these two cases, we are asked to ascertain the extent of this
lien and, in particular, to clarify whether the lien attaches
to damages paid by a third party for an employee's pain
cases involve two employees, Robert M. DiCarlo and Bernard J.
Martin, who were injured in the course of their employment,
collected workers' compensation benefits, and then
reached settlement agreements with third parties including
[45 N.E.3d 574] damages for, among other things, their pain
and suffering. The same insurer insured both
employers. The insurer sought reimbursement under
G. L. c. 152, § 15, from the employees' recoveries,
including their awards for pain and suffering. In
DiCarlo's case, a Superior Court judge rejected a
settlement agreement providing that the insurer would not
have a lien on the damages for pain and suffering, concluding
that the insurer's lien attached to DiCarlo's entire
recovery. DiCarlo appealed, citing the Appeals Court's
decision in Curry v. Great American Ins. Co., 80
Mass.App.Ct. 592, 595, 954 N.E.2d 580 (2011), which held that
an insurer's lien does not attach to damages paid for
pain and suffering because workers' compensation does not
cover those harms. In Martin's case, a Superior Court
judge approved a settlement agreement similar
to the agreement rejected by the judge in DiCarlo's case;
the insurer appealed from this decision.
in both cases on its precedent in Curry, the Appeals
Court determined that the employees' awards for pain and
suffering were exempt from the insurer's liens. See
DiCarlo v. Suffolk Constr. Co., 86 Mass.App.Ct. 589,
19 N.E.3d 431 (2014); Martin v. Angelini Plastering,
Inc., 86 Mass.App.Ct. 1122, 20 N.E.3d 980 (2014). We
granted the insurer's applications for further appellate
review and combined the two cases for argument. We conclude,
similarly, that an insurer's lien does not extend to
damages allocated to an employee's pain and suffering.
Background and ...