Tuesday, February 16, 2016

SJC holds worker's compensation lien does not apply to damages allocated to pain and suffering

Robert DiCarlo and Bernard Martin were both injured in the course of their employment and received worker's compensation benefits from Twin City Insurance Company.  They subsequently settled third-party claims.  Those settlements included damages for pain and suffering. 

The insurer sought reimbursement for itsworker's comp payments, including reimbursement from the pain and suffering portions of the third-party settlements. 

In DiCarlo v. Suffolk Construction Co., Inc. __ N.E.3d __, 2015 WL 10045032 (Mass. 2016), the Supreme Judicial Court of Massachusetts has held that the worker's comp lien does not extend to damages allocated to an employee's pain and suffering.

The SJC based its decision on  interpretation of the word "injury" in Mass. Gen. Laws ch. 152, §15, the statute allowing worker's comp insurers to recover "the gross sum received in payment for the injury." 

Tuesday, February 9, 2016

Massachusetts Appeals Court affirms surcharge despite unrebutted testimony

Commerce Insurance Company imposed a surcharge against its insured following a motor vehicle accident.  The insured appealed to the Board of Appeal on Motor Vehicle Liability Policies and Bonds.

The insured testified that he was driving 35 mph, 60 to 70 feet behind another vehicle.  The driver of the other vehicle stopped and simultaneously activated the left directional.  The insured braked but rear-ended the stopped vehicle.  

The Board found that the totality of the evidence supported the presumption set out in 211 C.M.R. §74.04 that the operator of a vehicle shall be presumed to be more than 50% at fault when operating a vehicle which is in collision with the rear section of another vehicle. 

The Superior Court affirmed the decision of the Board, and the insured appealed to the Massachusetts Appeals Court.  In Markuns v. Commerce Ins. Co., 2016 WL 392987 (Mass. App. Ct.) (unpublished) the insured argued that the judge erred in not concluding that the Board should have credited his testimony because it was unrebutted.

The court disagreed, holding that the Board is not bound to accept unrebutted testimony. 

Friday, February 5, 2016

Drone insurance

New England Cable News covers the ins and outs of it in this story.

Wednesday, February 3, 2016

U.S. District Court holds worker's comp carrier cannot intervene in third-party claim

Brian Goodrich brought a products liability case alleging that he was injured while using a machine in the course of his employment.  His worker's comp insurer, NorGuard, moved to intervene in the case, asserting that it has a subrogation interest in any potential damages recovered by Goodrich.

In Goodrich v. Cequent Performance Prods., Inc., 311 F.R.D. 22 (D. Mass. 2015), the United States District Court for the District of Massachusetts denied the motion to intervene. 

Fed. R. Civ. P. 24(a) allows a party to intervene if the party claims an interest relating to the property or transaction at issue.  However the rule has an exception if "existing parties adequately represent that interest." 

Mass. Gen. Laws ch. 152, §15 provides that sums recovered in a third-party claim where the worker's comp carrier has paid a claim for that same injury are for the benefit of the insurer up to the sum it paid.  The insurer has an opportunity to be heard on a motion for approval of any settlement of the claim. 

The statute also bars the insurer from bringing suit against a third party if the injured employee has already filed suit against that party.