12 N.E.3d 431
Mass. App. Ct.2014Background
- DiCarlo suffered a workplace injury on Oct 11, 2004 and received workers’ compensation benefits (medical expenses $48,431.16; lost wages $233,387.95) from Twin City Fire Insurance.
- In March 2007 DiCarlo filed a third‑party action against Suffolk Construction and Walker Brook Crossing; he later added a loss‑of‑consortium claim on behalf of his wife.
- The parties settled the third‑party action for $100,000, with mediation and a court hearing on the allocation of proceeds.
- The Superior Court found a proposed 35% allocation for DiCarlo’s pain and suffering and 35% for his wife’s loss of consortium, but held the 35% for pain and suffering subject to the insurer’s § 15 lien and denied approval.
- The court acknowledged Curry v. Great Am. Ins. Co. as controlling and reversed the denial, remanding for an order consistent with the opinion, after note that Curry aligns with prior SJC authority on the lien’s scope.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does §15 lien reach noneconomic damages in a third‑party recovery? | DiCarlo—Curry controls; noneconomic damages are not subject to the lien. | Insurer—lien applies to the entire third‑party recovery to reimburse benefits. | No; noneconomic damages are not subject to the §15 lien. |
| Is Curry controlling authority for this interlocutory appeal? | Yes, Curry directly governs the allocation and lien scope. | Curry should not control if distinguishable. | Yes; Curry controls; lien does not reach pain and suffering. |
Key Cases Cited
- Curry v. Great Am. Ins. Co., 80 Mass. App. Ct. 592 (2011) (insurer's lien does not reach noneconomic third-party recoveries (pain and suffering) under § 15)
- Eisner v. Hertz Corp., 381 Mass. 127 (1980) (§ 15 does not reimburse for injuries not compensable under c. 152)
- Huitin v. Francis Harvey & Sons, Inc., 40 Mass. App. Ct. 692 (1996) (loss of consortium claims are independent from employee's personal injury for § 15)
- Wilson’s Case, 67 Mass. App. Ct. 1 (2006) (settlement money for loss of consortium not subject to § 15 lien)
- Rhode v. Beacon Sales Co., 416 Mass. 14 (1993) (insurer entitled to full reimbursement of benefits; language to that effect in § 15)
- Lane v. Plymouth Restaurant Group, 440 Mass. 469 (2003) (insurer entitled to present evidence on fair allocation at settlement hearing)
- Bongiorno v. Liberty Mut. Ins. Co., 417 Mass. 396 (1994) (priority of workers’ compensation lien over malpractice recovery to reimburse insurer)
- Richard v. Arsenault, 349 Mass. 521 (1965) (principle that insurer is reimbursed first from third-party recovery; employee receives excess)