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DiCarlo v. Suffolk Construction Co., Inc.

Supreme Judicial Court of Massachusetts, Suffolk, Middlesex

February 12, 2016

Robert M. DiCarlo
v.
Suffolk Construction Co., Inc., & others;[1] Professional Electrical Contractors of Connecticut, Inc., third-party defendant. Bernard J. Martin & another
v.
Angelini Plastering, Inc., & others.

         Argued October 8, 2015.

          Civil action commenced in the Superior Court Department on March 29, 2007.

         A petition for settlement was heard by Frances A. McIntyre, J.

         A 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.

         Civil action commenced in the Superior Court Department on September 15, 2011.

         A petition for settlement was heard by Dennis J. Curran, J.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Wystan M. Ackerman for Twin City Fire Insurance Company & another.

          Charlotte E. Glinka for Bernard Martin & another.

Page 625

          Thomas R. Murphy for Robert M. DiCarlo.

          Paul 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.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.

          OPINION

          [45 N.E.3d 573] Lenk, J.

          Under 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.[4] 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 and suffering.

         The 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.[5] 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

Page 626

to the agreement rejected by the judge in DiCarlo's case; the insurer appealed from this decision.

         Relying 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.

         1. Background and ...


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