205 A.3d 454
R.I.2019Background
- Plaintiff Joshua Mello and defendant Sean Killeavy were coemployees at Ramsay’s; Killeavy poured and ignited gasoline in a workplace bathroom stall, injuring Mello.
- Mello accepted workers’ compensation benefits from the employer’s insurer for the injuries and did not preserve common-law rights under G.L. 1956 § 28-29-17.
- Mello sued Killeavy in Superior Court alleging negligence; Killeavy moved for summary judgment asserting statutory exclusivity under the Workers’ Compensation Act.
- Mello argued he could sue under G.L. 1956 § 28-35-58 (third‑person liability) because coemployee’s conduct was outside the scope of employment and/or occurred during a lunch break.
- The hearing justice granted summary judgment for Killeavy, concluding the exclusivity provision bars tort suits against coemployees after an employee accepts workers’ compensation; the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 28-29-20’s exclusivity bars Mello’s negligence suit against a coemployee after accepting workers’ compensation | Mello argued § 28-29-20 should not bar suit because § 28-35-58 permits actions against "persons other than the employer," which he read to exclude coemployees when acting outside scope of employment | Killeavy argued § 28-29-20 extinguishes other remedies against coemployees once workers’ compensation is accepted | The court held § 28-29-20 bars suits against coemployees after acceptance of workers’ compensation; no judicial exception for coemployees |
| Whether § 28-35-58 creates an exception allowing suit against a coemployee despite exclusivity | Mello read § 28-35-58 to permit suits against any third party other than the employer, thus allowing recovery from a coemployee who acted beyond scope | Killeavy argued § 28-35-58 does not override the exclusivity provision’s immunity for coemployees | The court held § 28-35-58 does not create an exception for coemployees; prior precedent forecloses such recovery |
| Whether an act outside scope of employment permits a tort action against a coemployee | Mello argued an act outside scope is "some person other than the employer" and thus actionable | Killeavy argued Rhode Island caselaw provides no scope‑of‑employment exception for coemployee immunity | The court declined to create a scope‑of‑employment exception and refused to extend D’Andrea to defeat exclusivity |
| Whether factual dispute (lunch break) precluded summary judgment | Mello claimed possible lunch break at time of injury; he failed to amend complaint or present evidentiary affidavits creating a triable issue | Killeavy relied on admissions and lack of controverting evidence to show no genuine issue of material fact | The court affirmed summary judgment, noting Mello did not raise a proper factual dispute in opposing summary judgment |
Key Cases Cited
- DiQuinzio v. Panciera Lease Co., Inc., 612 A.2d 40 (R.I. 1992) (worker who accepted compensation may not sue for same injury where coemployee’s liability is derivative)
- Boucher v. McGovern, 639 A.2d 1369 (R.I. 1994) (no contribution or direct action against immune coemployee; court rejects exception to coemployee immunity)
- Diaz v. Darmet Corp., 694 A.2d 736 (R.I. 1997) (no intentional‑tort exception to exclusivity provision)
- Kong v. Kuncio, 754 A.2d 103 (R.I. 2000) (mem.) (affirming that acceptance of workers’ comp and failure to preserve common‑law rights bars suit against coemployee)
- D’Andrea v. Manpower, Inc. of Providence, 249 A.2d 896 (R.I. 1969) (scope‑of‑employment standard—interpreted narrowly here as inapplicable to create coemployee exception)
- Lopes v. G.T.E. Prods. Corp., 560 A.2d 949 (R.I. 1989) (discusses interplay of exclusivity and common‑law preservation)
- Kulawas v. Rhode Island Hosp., 994 A.2d 649 (R.I. 2010) (employee who does not preserve common‑law rights is barred from tort action against employer)