Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Facebook Twitter

Insurance Defense and Litigation

Massachusetts Appeals Court Extends Workers’ Compensation Bar to “Alternate Employers”

Friday, November 06, 2015

by Paul Hourihan, Pierce & Mandell, P.C.

The Massachusetts Appeals Court recently extended the bar on liability provided in the Massachusetts Workers’ Compensation Act, G.L. c. 152, § 1, et seq., to protect employers whose employees are provided by a separate staffing entity. The Massachusetts Workers’ Compensation statute requires employers to obtain workers’ compensation insurance for all employees to ensure that employees injured during the course of their employment will be adequately and expeditiously compensated.  The statute also provides that, on the other hand, workers injured on the job cannot sue their employer for negligently causing the accident.

This statute has created a bit of an ambiguity in the context of the temporary workers provided by staffing companies. When a company needs extra manpower (or womanpower), and contracts with a staffing company for temporary employees, nothing in the Workers’ Compensation Act prevents an injured temporary employee from suing the temporary employer, regardless of coverage under an insurance policy.

The Massachusetts Appeals Court, in Molina v. State Garden, Inc., 88 Mass. App. Ct. 173 (Sept. 3, 2015) recently ruled that the Workers’ Compensation Act will serve to bar the claims of an injured employee against a temporary employer when (1) the temporary employer works at the direction of the temporary employer and (2) the temporary employer is afforded workers’ compensation insurance coverage under an “alternate employer endorsement” of the staffing company’s insurance policy. The “alternative employer endorsement” of the policy will serve to cover a temporary employee’s accident and will provide the temporary employer the protections of the Workers’ Compensation Act.

This ruling serves as an exhortation to any employers who contract for employees from staffing companies: insist that any staffing company provide an “alternate employer endorsement” naming your company as an alternate employer. Doing so will protect your temporary employees and will protect your company from lawsuits.

Paul Hourihan is an associate at Pierce & Mandell who handles claims for workplace accidents and injuries.

“Hereof fail not…” – The SJC’s Recent Change to Mass. Subpoena Procedure

Wednesday, July 15, 2015

by Paul Hourihan, Associate, Pierce & Mandell, P.C.

The Massachusetts Supreme Judicial Court recently amended Rule 45 of the Mass. Rules of Civil Procedure to include language authorizing “documents only subpoenas.”  Prior to this change, subpoenas in Massachusetts were deposition subpoenas: attorneys, even if they didn’t want to talk to you, would send you a subpoena that made it look like they wanted to sit down and talk to you, when all they really wanted was your documents.  (This is called a deposition subpoena duces tecum, Latin for “you will bring with you…”).

The change undoubtedly clarifies a heretofore ambiguous procedure, and may help settle the question of “do they really want me (or my client) to show up, or do they just want documents?”  What remains to be seen is if this will cause a spike in subpoena non-compliance.  A subpoena is easier to ignore if you are not being compelled to actually show up at a certain place and time. With the threat of schedule disruption having been removed, to ensure compliance, attorneys will have to rely on official-looking notary seals and that omnipresent, intimidating, inscrutable subpoena sign-off, “Hereof fail not as you will answer your default under the pain and penalties in the law in that behalf made and provided.”

In the health care field, the rule change does not eliminate the need of health care providers to serve an objection letter if the subpoena is served without a signed patient specific authorization when (1) the records sought are hospital or clinical records and the records include protected information or (2) the records sought contain non-facility practitioner/practice health information of any kind.

Pierce & Mandell, P.C. has extensive experience in the field of subpoena compliance, navigating the confidentiality and privilege pitfalls of subpoena responses for individuals, health care providers, and corporations of all types and sizes.

Sheehan Case Alters Scope of Strict Premises Liability

Thursday, July 10, 2014

A recent decision by the Massachusetts Supreme Judicial Court alters the scope of M.G.L. ch. 143, § 51, which creates strict liability for injuries resulting from a violation of the Massachusetts Building Code.  In William Sheehan vs. David B. Weaver, et al., 467 Mass. 734 (2014), the SJC did away with an antiquated distinction in the interpretation of M.G.L. ch. 143, § 51, which held that strict liability for injuries resulting from a violation of the Massachusetts Building Code could be found only in circumstances in which a plaintiff was fleeing a fire in a stairwell or egress in premises owned or controlled by a defendant.  The SJC acknowledged that this interpretation was based on an outdated version of the statute, which previously focused on fire safety.  The SJC ruled that building code violations can lead to strict liability for injuries occurring outside of that narrow context.

However, the SJC also ruled that the legislative intent of the statute was to protect large numbers of people from building code violations in publicly-accessed spaces.  In Sheehan, the plaintiff was injured in a strictly residential section of a building which housed both residential condominiums and a chiropractor’s office.  Because the particular area in which the plaintiff was injured was not public or commercial in nature, M.G.L. ch. 143, § 51 did not apply to the plaintiff’s claim.  Thus, the SJC simultaneously expanded and limited the scope of M.GL. ch. 143, § 51.

Pierce & Mandell counsel Paul Hourihan recently invoked the Sheehan case in defeating an attempt by a plaintiff to add a claim for strict liability under M.G.L. ch. 143, § 51 for injuries which allegedly occurred as the result of a code violation in a church basement.  Because the alleged injuries occurred outside of publicly-accessed areas, the Middlesex Superior Court ruled that M.G.L. ch. 143, § 51 did not apply to the church basement and, accordingly, the plaintiff’s claim for strict liability was futile. Alphonse Womack v. Lifepoint Church, et al., Essex Superior Court, Civil Action No. ESCV2012-02328.

Recent Posts