Superior Court holds worker's comp insurer properly charged premiums for employees who opted out of worker's comp system

Truck Courier is engaged in pick up and delivery services.  Its drivers were individuals who used their own vans and trucks to provide the services to its customers.  Truck Courier classified the drivers as independent contractors, not employees.  Each driver executed an agreement by which they waived their rights to worker's compensation benefits and preserved their rights to bring common law actions against Truck Courier with regard to any injuries they might suffer. 


Granite State Insurance provided worker's compensation coverage to Truck Courier.  Truck Courier paid an estimated premium at the beginning of the policy period, but that premium could be adjusted retroactively after an audit.


Granite State sought a retroactive premium adjustment on the ground that under a 2004 amendment to the Massachusetts Wage Act, the drivers were properly classified as employees.


In Granite Sate Ins. Co. v. Truck Courier, Inc., 2014 WL 316670 (Mass. Super.), Judge Curran of the Superior Court agreed with Granite State that under the statute the drivers were employees, not independent contractors. 


The worker's compensation statute allows an employee to opt out of the worker's compensation system, and the drivers did opt out.  The insurance policies allowed Granite State to include in its calculation all employees engaged in work covered by the policies.  The court noted that under Part II of the policies, for employer's liability, Granite State could have been required to pay claims by the drivers.  "Therefore, the plain language of the policies indicate that all Truck Courier employees should have been included in the calculation of premiums." 


The court denied summary judgment to Granite State on the 93A claim against it, holding that whether Granite State should have reasonably ascertained that the change in the law made the estimated premium substantially inaccurate was a disputed question of fact.