The plaintiff, a 47-year-old husband, and father of two young children was a lawful visitor at the defendant’s warehouse, waiting to be interviewed for a position with the defendant’s delivery company. While waiting for the interviewer to arrive, the plaintiff noticed a worker experiencing difficulty with a forklift and walked over to offer assistance. As the plaintiff approached the forklift, the worker suddenly struck the upper portion of the forklift with a tool – ostensibly to free the frozen lift – causing the forks to free-fall directly onto the plaintiff’s right foot.
The plaintiff was transported by ambulance to a local hospital and was diagnosed with a crush injury to his right foot. Over the next several weeks, the plaintiff began to exhibit symptoms of reflex sympathetic dystrophy (“RSD”) and thereafter began an extensive treatment course to alleviate the severe and debilitating pain associated with RSD. Included among the treatments were narcotic pain medications; several “sympathetic chain blocks;” and twice attempted implantation of a spinal cord stimulator. Despite these measures, all efforts proved unsuccessful in controlling the plaintiff’s pain. As a result of the failed treatments, the plaintiff was declared permanently disabled by the Social Security Administration. The plaintiff’s wife and minor children also asserted claims for loss of consortium.
The insurance company providing general liability coverage to the defendant initially denied the plaintiffs’ claims, alleging that the plaintiff had already accepted an offer of employment at the time the injury occurred, and as an “employee” he was therefore precluded from asserting a tort claim against his employer based on the “exclusivity provision” of the Massachusetts Workers Compensation Act (G.L. c. 152). In refuting the carrier’s assertion of employment, the plaintiff demonstrated that at the time of his injury, he had not yet been interviewed for any position with the defendant’s company; had not been offered any position with the defendant; and had not received any terms of employment, including salary, benefits, and other standard employment information.
Coincidentally, the very same insurer also provided worker’s compensation coverage to the defendant. Following an investigation conducted by the worker’s compensation adjuster assigned to the claim, the worker’s compensation adjuster determined that the plaintiff was not an employee at the time of the subject incident, and noted his findings in the comp file.
Thereafter, the plaintiffs commenced civil proceedings against the defendant company for personal injuries and loss of consortium predicted on negligence. The defendant’s insurer (who had previously determined that the plaintiff was not an employee at the time of the incident) nevertheless continued to press the “exclusivity provision” of G.L. c. 152 as an affirmative defense to the plaintiffs’ tort action.
Throughout the course of discovery, the plaintiffs obtained an order compelling the defendant’s worker’s compensation carrier to turn over the complete comp file to plaintiffs’ counsel. These documents clearly established efforts on the part of the carrier to press the “exclusivity” defense, despite overwhelming evidence that the plaintiff had not yet been hired at the time the injury occurred. Once in possession of these documents, the plaintiff delivered a “demand letter” to the defendant’s insurer seeking additional relief, predicated on numerous violations of G.L. c. 176D and 93A.
During the course of discovery, the defendant refused or otherwise failed to produce documents that had been the subject of a previously allowed “motion to compel production,” resulting in the entry of default judgment against the defendant. Following several unsuccessful attempts by the defendant to remove the default judgment, including an unsuccessful petition for interlocutory review by a single justice of the Massachusetts Appeals Court, the default stood, and the Court scheduled an assessment of damages hearing.
Approximately one month prior to the hearing on assessment of damages, the defendant’s carrier tendered its full general liability limits of $1 million. Contemporaneously, the defendant’s insurer paid an additional $250,000 to resolve the plaintiffs’ claim for violations of G.L. c. 176D and 93A.
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