Robert Anzalone, a police officer employed by the Massachusetts Bay Transportation Authority (MBTA), filed suit against the MBTA. Count 1, brought by Anzalone under G. L. c. 93A (1986 ed.), alleged that the MBTA engaged in unfair or deceptive acts in the handling of his wоrkmen’s compensation claim. Anzalone’s wife and children were plaintiffs in the remaining five counts, also brought under G. L. c. 93A. These five counts state claims for loss of consortium by An-zalone’s wife and children “as a result of the unfair and dеceptive trade practices committed against” Anzalone. The plaintiffs later amended their complaint, adding a count against John O’Loughlin, Anzalone’s supervisor, for intentionally harassing Anzalone and interfering with his emplоyment,
3
The MBTA and O’Loughlin filed a motion to dismiss the complaint for failure to state a claim on which relief could be granted. Mass. R. Civ. P. 12 (b) (6),
We deal first with the plaintiffs’ claims against the MBTA. The plaintiffs’ complaint alleges that, in 1968, Anzalone began his employment with the MBTA as a police officer. On Novеmber 9, 1979, while acting in the line of duty, Anzalone rescued a person from a dangerous place and, in so doing, inhaled a substantial amount of smoke. As a result, Anzalone was disabled and did not return to work until November 3, 1983, when the MBTA ordered Anzаlone to return to work for light duty, or be terminated.
On the day Anzalone returned to work, he suffered an anxiety attack which caused him to be disabled from November 3, 1983, to April 20, 1984. Anzalone returned to work on April 20, 1984, and on June 6, 1984, was ordered tо work in a room
Anzalone filed for workmen’s compensation payments pursuant to G. L. c. 152 (1986 ed.) (Workmen’s Compensation Act), which the MBTA refused to pay. During the course of compensation proceedings before the Industrial Accident Board, the MBTA sent Anzalone to a number of physicians for examinations and evaluations. The MBTA has refused to supply Anzalone with copies of the medical reports. 4
A.
Claim against employer.
Anzalone contends that he has alleged sufficient facts to state a claim under G. L. c. 93A and that the judge erroneously dismissed the complaint. In reviewing the dismissal oFа complaint pursuant to Mass. R. Civ. P. 12 (b) (6), we take the facts alleged in the complaint to be true, and consider whether those allegations reveal that there is no set of facts which, if proven, would entitle the complainаnt to relief.
Santana
v.
Registrars of Voters of Worcester,
In
Manning
v.
Zuckerman,
Anzalone argues, however, that this is not an employment dispute, but rather a dispute between him and an insurer. According to Anzalone, at the time the MBTA, a self-insurer under G. L. c. 152, committed the alleged unlawful trade practices, it was acting as an insurance company, not as An-zalone’s employer, and thus violated G. L. c. 176D (1986 ed.).
6
Even if we assume the truth of Anzalone’s allegations, G. L. c. 176D does not apply to the MBTA. General Laws c. 176D, § 1 (a), states that it applies to any self-insurer “which is engaged in the business of insurance.” A self-insuring employer under the workmen’s compensation law does not become an insurance company. See
Bertrand
v.
Quincy Mkt. Cold Storage & Warehouse Co.,
B.
Claim against co-employee.
In his count against O’Loughlin, Anzalone alleged that, when he returned to work, O’Loughlin ordered him to be in full uniform but not to сarry a gun. The plaintiff alleged that O’Loughlin criticized An-zalone’s performance, ordered him to wash an automobile, in violation of the terms of light duty work, ordered Anzalone to
The defendants contend that the judge properly dismissed the complaint against O’Loughlin because the complaint failed to set forth a claim of interference with contractual relations. The elements of the tort of interference with contractual relations were set out in
Walker
v.
Cronin,
Anzalone’s complaint does not allege that he was terminated, or that he separated from, or resigned from the MBTA. There is no allegation of any “loss of advantages, еither of property or of personal benefit, which, but for [O’Loughlin’s] interference, the plaintiff would have been able to attain or enjoy.” Walker v. Cronin, supra at 565. Because Anzalone’s complaint failed to allege any actual damages or loss, the judge properly dismissed the claim against O’Loughlin.
Anzalone argues, however, that his complaint alleges an intentional tort by O’Loughlin and that it was error for the judge to dismiss his claim against O’Loughlin because intentional tоrts are not subject to the exclusivity bar in the workmen’s compensation law. This is so, he says, because O’Loughlin’s conduct did not arise out of, and in the course of, O’Loughlin’s employment. Assuming, under this argument, that the essence of Anzalone’s сlaim is the intentional infliction of emotional distress, we consider, on the facts
General Laws c. 152, § 15, provides in part: “Nothing in this seсtion, or in section eighteen or twenty-four shall be construed to bar an action at law for damages for personal injuries ... by an employee against any person
other than
the insured person employing such employee . . . аnd said insured person’s employees” (emphasis added). In previous cases, we have concluded that the Workmen’s Compensation Act bars an employee injured in the course of his or her employment by the negligenсe of a fellow employee from recovering from that fellow employee if the fellow employee also was acting in the course of employment.
Mendes
v.
Tin Kee Ng,
O’Loughlin’s complained-of conduct related wholly to his position as Anzalone’s supervisor and to the manner in which O’Loughlin exercised his supervisory duties. The сonduct complained of arose in the course of employment by the MBTA of Anzalone and O’Loughlin. Thus, these claims are covered exclusively by c. 152. See
Albanese’s Case,
Judgment affirmed. 9
The complaint against O’Loughlin asserts no consortium claim as against him. Thus, we do not reach the issue of exclusivity in this regard. Additionally, although the plaintiff states that the motion to dismiss was “toо late,” he makes no argument on this point. Thus, we consider the claim waived. Mass. R. A. P. 16, as amended through
Notes
The complaint was amended a third time in a manner not pertinent to this appeal.
The status of the compensation сlaim before the Industrial Accident Board is hot before us. We note, however, that Anzalone’s right to obtain copies of medical reports is adequately provided for by G. L. c. 152. See, e.g., G. L. c. 152, §§ 20, 20A, and 30A.
“Trade” and “commerce” are defined in G. L. c. 93A, § 1 (b), as: “ ‘Trade’ and ‘commerce’ shall include the advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this commonwealth.”
A violation of G. L. c. 176D, § 3 (9), is deemed, by virtue of G. L. c. 93A, § 9 (1), to give rise to a c. 93A claim.
Prior to the 1985 amendment, G. L. c. 152, § 24, provided in part: “An employee shall be held to have waived his right of action at common law or under the law of any other jurisdiction in respect to an injury therein occurring, to recover dаmages for personal injuries if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right, or, if the contract of hire was made before the employer becamе an insured person or self-insurer, if the employee shall not have given the said notice within thirty days of the time said employer became an insured person or a self-insurer.” The subsequent amendments to this statute do not affect this case.
We note that redress for Anzalone’s claims against O’Loughlin is provided for in the Workmen’s Compensation Act. Section 28 of G. L. c. 152 provides for double damages in cases of “serious and wilful misconduct” by an employer, a fellow employee, or a supervisor.