In Berry v. Commerce Insurance Company, 175 N.E.3d 383 (Mass. 2021), the Massachusetts Supreme Judicial Court held that a police officer who recklessly drove his vehicle into a fellow officer during a training day was not protected by the Massachusetts Torts Claim Act, even though the injured officer received workers compensation for the accident.
Why does a discussion of this case appear in an insurance coverage blog? Because the SJC characterized the issue as one of coverage rather than liability.
Both officers were attending a full day weapons training, which included a paid lunch break. Shawn Sheehan drove his pickup truck to buy lunch. Returning, he stopped his truck and then sped up, heading towards a picnic table where Russell Berry sat. Sheehan applied the brakes. The truck slid and struck Berry. For his misconduct Sheehan was suspended for five days without pay.
Berry received compensation under the workers compensation statute applicable to police officers injured in the performance of their duty.
Berry submitted his third-party claim against Sheehan to Commerce, which insured Sheehan’s pickup truck. According to the SJC, Commerce denied coverage on the ground that Sheehan was a public employee acting within the scope of his employment at the time of the accident, and thus was immune from liability under the Massachusetts Torts Claim Act. Berry sued Commerce, seeking a judgment declaring that Sheehan was not immune under the act.
As I told Massachusetts Lawyers Weekly, here, I suspect that this was a misstatement. Commerce is unlikely to have denied insurance coverage on the basis of the MTCA. Rather, the MTCA is a defense to liability. In other words, Commerce was mostly likely defending Sheehan, and arguing that he was immune under the MTCA was part of that defense.
If I am correct, Berry could have sued Sheehan directly, with Commerce defending. If he had done so, the parties might have had to have gone through extensive discovery with respect to Berry’s injuries and other issues, before the court would rule on the applicability of the MTCA. I speculate that Berry did an end-run around this by suing Commerce in a declaratory judgment action, seeking a (hopefully quicker) decision on the limited issue of the applicability of the MTCA. With that issue determined in Berry’s favor, the parties are much likelier to be able to settle without more extensive litigation.
The pure coverage issue discussed in this decision (although it had already been determined) is Berry’s eligibility for worker’s compensation. The court noted a seeming contradiction between Berry being found to have been injured in the performance of his duty for worker’s compensation purposes, but Sheehan being found to not have been acting within the scope of his employment under the MTCA.
There really is no contradiction. The workers compensation statute is broadly interpreted to find coverage for employees, including generally when they are victims of torts related to their job – regardless of the motivation of the tortfeasor. The MTCA protects against liability for some torts that are committed in connection with an employee’s work but not does not protect against liability for other torts. The court held that Sheehan’s unsafe driving was not within the scope of his employment because it was not motivated, even in part, by a purpose to serve his employer. That does not mean that Berry is not entitled to worker’s compensation, because he was a victim of that tort while on the job.