Andrew Segal, M.D.
H. Fisk Johnson, III et al No. 134302
ORDER ON DEFENDANTS' MOTION FOR AN ORDER RELATIVE
TO THE APPLICATION OF INTEREST TO ANY JUDGMENT
D. Wilson, Justice
the Wage Act, a jury has awarded Plaintiff single damages of
$231, 250 for the period before July 12, 2008, and single
damages of $167, 642 for the period July 12, 2008 and
thereafter, for a total single damages award of $398, 892. By
operation of the amendment to M.G.L.c. 149, § 150
effective July 12, 2008 (the " 2008 Amendment"),
the single damages for the latter period were automatically
trebled. After a second, non-jury phase of the trial, I
trebled the damages for the period prior to July 12, 2008 as
well. Because the subject of prejudgment interest is
complicated by the existence of treble damages and by the
2008 Amendment, Defendants have rightfully raised by motion
the issue of the amount of prejudgment interest to be
included in the judgment.
Damages Incurred Prior to Effective Date of 2008
the 2008 Amendment, treble damages, if awarded under the Wage
Act, were " punitive in nature." Wiedmann v.
Bradford Group, Inc., 444 Mass. 698, 710, 831 N.E.2d 304
(2005), quoting Goodrow v. Lane Bryant, Inc., 432
Mass. 165, 178, 732 N.E.2d 289 (2000). Because such treble
damages were punitive in nature, prejudgment interest was
awarded only the amount of the single damages. See, e.g.,
DeSantis v. Com. Energy Sys., 68 Mass.App.Ct. 759,
760, 771-72, 864 N.E.2d 1211 (2007) (in a Wage Act case
predating the 2008 Amendment, affirming award of treble
damages and award of prejudgment interest on the single
damages only). For this reason, as to the damages awarded
here for the period prior to July 12, 2008, prejudgment
interest will be assessed only on the amount of the single
damages awarded by the jury.
Damages Incurred after Effective Date of 2008
2008 Amendment modified M.G.L.c. 149, § 150 to make
treble damages automatic for any Wage Act violation.
Specifically, the statute now says, " An employee so
aggrieved who prevails in such action shall be awarded treble
damages as liquidated damages, for any lost wages and other
benefits . . ."
early Superior Court decision on the effect of the 2008
Amendment concluded that the legislature's insertion of
the words " liquidated damages" changed the statute
in two ways. First, the 2008 Amendment converted
once-optional punitive treble damages into now-mandatory
treble compensatory damages. Second, because those "
liquidated" (treble) damages compensate a plaintiff for
all of his consequential damages, a Wage Act plaintiff is no
longer entitled to prejudgment interest on any damages
accrued after the 2008 Amendment. Feygina v. Hallmark
Health System, Inc., 31 Mass.L.Rptr. 279, (2013)
(Salinger, J.). Citing this decision (which, of course, is
not binding precedent), Defendants assert that Plaintiff
should take no prejudgment interest with regard to the
damages awarded by the jury for the period July 12, 2008 and
prejudgment interest statute, M.G.L.c. 231, § 6B,
provides that interest " shall" be awarded on any
verdict for " pecuniary damages or consequential
damages." As the First Circuit Court of Appeals recently
pointed out, if Defendants' argument is correct, then the
2008 Amendment impliedly repealed the prejudgment interest
statute as it applies to awards under the Wage Act.
Travers v. Flight Servs. & Sys., Inc., 808 F.3d 525,
548-49 (2015). Rather than deciding whether the legislature
intended that result, the First Circuit certified the
question to the Supreme Judicial Court. Id. at 551.
However, before the Supreme Judicial Court could respond, the
Travers parties settled their differences, and so
the question of whether the legislature intended the 2008
Amendment to partially repeal the prejudgment interest
statute remains unresolved.
face, the 2008 Amendment makes no mention of prejudgment
interest. As result, if the legislature repealed the
prejudgment interest statute with regard to Wage Act claims,
it did so only impliedly. The Travers court was
reluctant to find such an implied repeal without guidance
from the Supreme Judicial Court because, as it pointed out,
" The bar to finding implied repeal of a pre-existing
statute . . . is high." Id. at 550. Like the
First Circuit, I am loathe to find an implied repeal without
the guidance of the Supreme Judicial Court on the question. I
conclude, therefore, that the legislature did not impliedly
repeal the prejudgment interest statute as to Wage Act claims
by enacting the 2008 Amendment.
it does not follow that Plaintiff is correct in claiming
entitlement to prejudgment interest on the
automatically-trebled amount of the damages incurred after
the effective date of the 2008 Amendment. The purposes of
prejudgment interest suggests that is appropriate to award
prejudgment interest only on the single damages amount, even
after the effective date of the 2008 Amendment.
primary purpose of prejudgment interest is to compensate a
plaintiff for the loss of the use of the funds during
litigation to which he was entitled before he filed his
lawsuit. Conway v. Electro Switch Corp., 402 Mass.
385, 390, 523 N.E.2d 255 (1988). That purpose is served by an
award of prejudgment interest on the amount of single
damages. A plaintiff recovering prejudgment interest on
treble damages would be collecting a windfall, which is why
the Massachusetts appellate courts generally do not award
prejudgment interest on damages that have been trebled. See,
e.g., McEvoy Travel Bureau, Inc. v. Norton Co., 408
Mass. 704, 717, 563 N.E.2d 188 (1990) (awarding prejudgment
interest only on single damages portion of treble damages
award under Chapter 93A, because " [t]o give the damaged
party more than that would go beyond the purpose of the
[prejudgment interest] statute, " whose purpose is not
" to make the damaged party more than whole").
purpose of prejudgment interest is to take away any benefit
from a defendant who, rather than paying a debt, forces a
creditor to sue him in order to collect. By making treble
damages mandatory, the 2008 Amendment already more than
deters such behavior by those responsible for paying wages.
No further deterrence would result from also awarding
prejudgment interest on the trebled amount, rather than the
single amount, of Wage Act damages.
reconcile the 2008 Amendment to the Wage Act and the
prejudgment interest statute, while best serving the purpose
of both statutes, I award prejudgment interest on the amount
of single damages ...