Lang v. Edward J. Lamothe Co.

20 Mass. App. Ct. 231 (1985)

479 N.E.2d 208

FREDERICK R. LANG, JR. vs. EDWARD J. LAMOTHE COMPANY, INC.

Appeals Court of Massachusetts, Suffolk.

April 11, 1985.

June 18, 1985.

Present: BROWN, KAPLAN, & FINE, JJ.

John P. Ryan (John A. Eklund with him) for the defendant.

Paul R. Sugarman for the plaintiff.

BROWN, J.

In this case we are asked to construe the provision in G.L.c. 152, § 15, as amended by St. 1971, c. 941, § 1, permitting an action at law to be brought for "damages for personal injuries ... by an employee against any person other than the insured person employing such employee and liable for payment of the compensation provided by this chapter...."

The case was tried on a statement of agreed facts. The plaintiff, an employee of Peakload, Inc., a company engaged in supplying temporary labor to various business establishments, was injured while working for the defendant on its premises. The plaintiff was supervised by an employee of the defendant. At all material times, both Peakload and the defendant *232 carried worker's compensation coverage in accordance with G.L.c. 152. The plaintiff's wages had been paid by Peakload, and he was received compensation benefits for his injuries from the compensation insurer of Peakload. There was no agreement between the defendant and Peakload concerning payment of worker's compensation benefits to personnel supplied by Peakload to the defendant.

A judge of the Superior Court rejected the defendant's claim that the applicable provisions of G.L.c. 152 bar recovery and entered judgment for the plaintiff. The judge reasoned that, in the circumstances presented here, for an employer to be immune under c. 152 from an employee's common law action, that employer must satisfy a two-part test: "(1) the employer must be an insured person liable for the payment of compensation, and (2) the employer must be the direct employer of the employee." The judge then concluded that the defendant was not immune from suit under c. 152 because it was not liable to pay compensation to the plaintiff. We concur. That ruling is entirely consistent with the unambiguous language of G.L.c. 152, § 15, as amplified by § 18 of that same chapter. See Searcy v. Paul, ante 134, 138-139 (1985). See generally Locke, Workmen's Compensation § 150 (2d ed. 1981).

The parties have stipulated that Peakload was the plaintiff's general employer and the defendant was his special employer; therefore, pursuant to § 18 of c. 152, as amended through St. 1969, c. 755, § 2, Peakload, as general employer, was liable to pay compensation to the plaintiff. Section 15 provides that the only person who will be immune from an action at law is "the insured person employing such employee and liable for payment of the [worker's] compensation" (emphasis supplied).

The judge correctly ruled that "as a special employer [the defendant] is not liable to pay compensation." See Ramsey's Case, 5 Mass. App. Ct. 199, 201-204 (1977). Because Peakload carried worker's compensation coverage and because Peakload and the defendant have not "so agreed" that "the special employer or its insurer shall be liable for such [compensation] *233 payment" (G.L.c. 152, § 18) to personnel supplied by Peakload, the defendant cannot, as the judge properly concluded, satisfy one part of the two-part test set forth in § 15. It thus follows that this defendant is not immune from an action at law for damages.

Judgment affirmed.