MEMORANDUM OF DECISION AND ORDER ON THIRD-PARTY
DEFENDANTâS MOTION FOR SUMMARY JUDGMENT
MICHAEL D. RICCIUTI, Justice of the Superior Court
matter involves an October 3, 2014 worksite accident in which
the plaintiff, Timothy Silva ("Silva"), an employee
of Clover Paving Company, Inc. ("Clover"), was
injured during a parking lot paving project ("the
Project"). Rochester Bituminous Products, Inc.
("Rochester") was hired to perform paving at the
Project and retained Clover in connection with it. Silva
filed a Complaint alleging negligence against Rochester.
Rochester then filed a Third-Party Complaint, naming Clover
as a third-party defendant.
matter is before the Court on Cloverâs Motion for Summary
Judgment as to Rochesterâs Third-Party Complaint. Rochester
opposes. For the reasons which follow, Cloverâs Motion for
Summary Judgment is ALLOWED.
following relevant facts are either undisputed or presented
in the light most favorable to the non-moving party, in
accordance with the dictates of Mass. R. Civ. P. 56.
Rochester and Clover are Massachusetts corporations.
Rochesterâs business included the manufacture and sale of
asphalt to paving contractors and the installation of asphalt
for construction projects.
was hired to perform paving work on a project located in
Cranston, Rhode Island ("the Project"). As a
business model, Rochester attempted to secure multiple paving
contracts, then contracted out the installation work to
paving subcontractors if it lacked adequate staffing to
perform the work itself. Rochester generally retained
subcontractors that routinely purchased asphalt from
Rochester and maintained an outstanding balance on account.
In engaging these subcontract agreements, Rochester either
met with the subcontractorâs principal at Rochesterâs
Massachusetts offices or the parties discussed the
subcontract by telephone. Clover served as a subcontractor
for Rochester in this manner on at least three different
jobs. Rochester also entered into an unwritten agreement with
Clover through which Clover performed paving work at the
claims that it "required that each subcontractor would
take all steps to protect Rochester from being sued as the
result of the subcontractorâs work." Clover disputes
this. Clover also disputes Rochesterâs claim that it would
never direct Cloverâs employees regarding how to perform work
on the jobsite.
relevant times, Silva was an employee of Rochester. During
the course of his work on the Project, Silva was injured when
he was struck by a compaction vehicle operated by another
Clover employee. As a result of his injuries, Silva received
workerâs compensation benefits from Cloverâs insurer under
Massachusetts workerâs compensation law.
Motion for Summary Judgment initially argued that Rhode
Island law should apply to this case. Rochesterâs Opposition
argued that Massachusetts law controlled. In its reply brief,
Clover concedes (at least for purposes of this motion) that
Massachusetts law applies to the analysis of this
Summary judgment is appropriate when the record shows that
"there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of
law." Mass. R. Civ. P. 56(c); see also
DuPont v. Commissioner of Corr., 448 Mass. 389, 397
(2007). The moving party bears the initial burden of
demonstrating that there is no triable issue and he or she is
entitled to judgment. Ng Bros. Constr., Inc. v.
Cranney, 436 Mass. 638, 644 (2002), citing Pederson
v. Time, Inc., 404 Mass. 14, 17 (1989);
Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706,
716 (1991). In reviewing a motion for summary judgment, the
Court views the evidence in the light most favorable to the
non-moving party and draws all reasonable inferences in its
favor. Jupin v. Kask, 447 Mass. 141, 143 (2006),
citing Coveney v. President & Trs. of the Coll. of the
Holy Cross, 388 Mass. 16 (1983); see
also Simplex Techs., Inc. v. Liberty Mut. Ins.
Co., 429 Mass. 196, 197 (1999).
may be recoverable where two or more parties become jointly
liable for the same injury to person or property, and only
one of the liable parties is sued. G. L. c. 231B, § 1;
OâMara v. H.P. Hood & Sons, Inc.,359 Mass. 235,
237-238 (1971). However, there is no right to contribution
from a party who is not "liable in tort" due to a
special status or personal defense, even if that party was at
fault. Berube v. City of Northampton,413 Mass. 635,
638-639 (1992). As one such defense, there is no right to
contribution against an employer whose negligence contributed
to an employeeâs injury but who is discharged from liability
to the employee per the Massachusetts Workersâ Compensation
Act ("WCA"). Liberty Mut. Ins. Co. v.
Westerlind,374 Mass. 524, 525-526 (1978). Per the WCAâs
exclusivity provision, G. L. c. 152, § 23, an employer
is released from all tort liability to an employee ...