United States District Court, D. Massachusetts
BENJAMIN A. SCHILLING, Plaintiff,
CHATHAM FIVE STAR LLC and RICHARD D. COHEN, Defendants.
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
Plaintiff Benjamin Schilling (“Schilling”) filed this action against defendants Chatham Five Star LLC (“Five Star”) and Richard Cohen (“Cohen”) alleging negligence against both defendants resulting in personal injury. According to plaintiff, on August 10, 2013 Schilling was attending to the Five Star, a 55-foot vessel (“the vessel”), for the purpose of untying a line before the vessel’s departure from the Chatham Bars Inn in Chatham, Massachusetts. Schilling was employed as the Marine Operations Manager of CBI Operations LLC (“Operations”), one of the entities that managed the Chatham Bars Inn.
At the time of the accident defendant Cohen, an owner of the Chatham Bars Inn, was at the helm of the vessel. It was owned by Five Star. Cohen was the sole shareholder and president of Capital Properties Management, Inc., the sole member of Five Star. Plaintiff claims that Cohen negligently engaged the engine of the vessel as Schilling was untying the line, causing it to snap and recoil, striking and injuring Schilling’s right hand.
Cohen was aboard the vessel with his girlfriend, her two minor sons and their babysitter. He testified during his deposition that he did not remember why he was departing, how long he was to be gone or where he was going on the boat. In his responses to plaintiff’s interrogatories he stated he thought he was either traveling to Nantucket or Martha’s Vineyard or going whale watching.
After the accident Schilling received workers’ compensation benefits under state law, including the payment for his medical treatment, and entered into a settlement to receive a lump sum amount for his workers’ compensation claim against Capital Property Services LLC a/k/a Chatham Bars Inn, an entity related to Operations.
II. Motions for Summary Judgment
On March 15, 2016, defendants filed a motion for summary judgment on both negligence counts of the complaint. The same day, plaintiff moved for summary judgment with respect to Cohen’s affirmative defense of co-employee immunity under the Massachusetts Workers’ Compensation Act, M.G.L. ch. 152.
A. Legal Standard for Summary Judgment
The role of summary judgment is
"to pierce the pleadings and to assess the proof in order to see whether there
is a genuine need for trial." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991). The burden is on the moving party to show, through the pleadings, discovery and affidavits, “that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
If the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must view the entire record in the light most favorable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor
v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is appropriate if, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law.
1. Plaintiff’s Motion for Partial Summary Judgment
Plaintiff moves for partial summary judgment on Cohen’s affirmative defense that recovery in this case is barred under the Massachusetts workers’ compensation statute, M.G.L. ch. 152 § 23 and 24, because Cohen was acting as Schilling’s co-employee at the time he allegedly caused Schilling’s injury. That statute, in essence, ensures that workers injured during the course of their employment will be compensated by their employers. In exchange for providing for such compensation the statute creates a presumptive waiver of employees’ common law right to recover damages for their injuries from both their employer and any co-employee who may have caused such injuries. Estate of Moulton v. Puopolo, 5 N.E.2d 908, 914 (Mass. 2014). The statute preserves, however, the right of an employee to bring claims against other entities that may have been responsible for the accident. See M.G.L. ch. 152 § 15.
Schilling first argues that he is entitled to summary judgment because there is no genuine dispute that Cohen was not a co-employee. He points out that Cohen testified at his deposition that he was unaware of ever receiving any compensation or documentation of compensation from Operations, such as a W2, 1099 or K1 form. Cohen further concedes that he was not a salaried employee. Kelli Bryant, Director of Finance for Operations, also testified that Cohen had never been a salaried employee of that LLC during the relevant time period. As defendant points out, however, under M.G.L. ch. 152 an individual’s status as an employee is not necessarily defined by his receipt of compensation. See Tracy v. Cambridge Junior College, 304 N.E.2d 921, 923 (1973).
Instead, the workers’ compensation statute defines an employee as a
person in the service of another under any contract of hire, express or implied, oral or written.
Id. § 1(4). Cohen claims that he meets the statutory definition of an employee because he had a “contract for hire” as the President of Operations, as shown by a form titled “Designation by Manager of Officers of CBI Operations, LCC, ” dated January, 2009, which designates Cohen as “President” of the company “until otherwise changed by the undersigned.” The form is not countersigned by the designated officers and accordingly manifests no intention by the officers to accept their designations, and for that ...