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14-P-798                                               Appeals Court

    MERCHANTS INSURANCE GROUP       vs.   KEVIN SPICER1 & others.2


                              No. 14-P-798.

           Suffolk.       March 4, 2015. - September 9, 2015.

               Present:   Cohen, Hanlon, & Sullivan, JJ.

Insurance, Workers' compensation insurance. Workers'
     Compensation Act, Coverage, Jurisdiction of court,
     Jurisdiction of Industrial Accident Board. Jurisdiction,
     Superior Court, Administrative matter. Administrative Law,
     Exhaustion of remedies. Practice, Civil, Declaratory
     proceeding.


     Civil action commenced in the Superior Court Department on
June 19, 2012.

     The case was heard by Elizabeth M. Fahey, J., on a motion
for relief from judgment.


     Darrel Mook (Patricia B. Gary with him) for the plaintiff.
     Douglas S. Martland for the intervener.


     COHEN, J.    The central question presented in this appeal is

whether an insurer may bring an action in Superior Court to


     1
         Doing business as Uptown Landscaping.
     2
       Joel Estaban Perez; Workers' Compensation Trust Fund,
intervener.
                                                                   2


retroactively void a workers' compensation policy while an

injured employee's claim under that policy is pending in the

Department of Industrial Accidents (DIA).     The plaintiff,

Merchants Insurance Group (Merchants), claiming fraud in the

inducement, initiated such an action, and, there being no

opposition from the insured employer or the injured employee,

secured a declaratory judgment in its favor.    Subsequently,

however, a judge of the Superior Court reopened the case at the

request of the employee and the Workers' Compensation Trust Fund

(Fund)3 and dismissed Merchants' complaint, without prejudice,

for lack of subject matter jurisdiction.    Upon review of

Merchants' appeal from the judgment of dismissal, we conclude

that the judge correctly ruled that its claim for rescission of

the workers' compensation policy was subject to the doctrine of

exhaustion of administrative remedies, and could not be pursued

in the Superior Court.   For this and other reasons explained

below, we affirm the judgment of dismissal.

     Background.   On December 30, 2011, Joel Estaban Perez was

seriously injured while working for Kevin Spicer, doing business


     3
       Established by St. 1985, c. 572, § 55, the Fund
"provide[s], among other things, a source of payment for an
employee who suffers a work-related injury while working for an
employer who does not have workers' compensation insurance in
violation" of G. L. c. 152, § 65(2)(e). Sellers's Case, 452
Mass. 804, 804 n.2 (2008). All employers in the Commonwealth
that are subject to the workers' compensation act must
contribute to the Fund. Id. at 805 & n.5.
                                                                      3


as Uptown Landscaping (Spicer).4    Perez sought workers'

compensation benefits under a policy issued by Merchants to

Spicer, and Merchants contested the claim.5    After an informal

conference, a DIA administrative judge ordered Merchants to pay

Perez weekly temporary total incapacity benefits, pursuant to

G. L. c. 152, § 34, and medical benefits, pursuant to G. L.

c. 152, §§ 13, 30, pending an evidentiary hearing on the merits.

Both parties appealed the interim conference order and requested

a formal hearing pursuant to G. L. c. 152, § 11.

     In June, 2012, while Perez's DIA case was awaiting the

formal hearing, Merchants successfully moved to join the Fund as

a party to the DIA case.     At about the same time, Merchants also

filed a complaint in Superior Court naming Spicer and Perez as

defendants.   In that complaint, Merchants sought rescission of

two insurance policies (a workers' compensation policy and a

general liability policy) that it had issued to Spicer, on the

ground that Spicer had made material misrepresentations in

applying for the policies.    Merchants also sought a judgment

declaring that the policies were void ab initio and that it had

     4
       Perez's right (major) hand was dismembered by a log-
splitting machine. Perez represented in the Superior Court, and
it is not disputed, that, by November, 2012, his medical bills
had exceeded $700,000, and his treatment was ongoing.
     5
       In its "Notification of Denial," Merchants asserted that
Perez was an independent contractor and not a covered
"employee."
                                                                   4


no duty to defend or indemnify Spicer in connection with Perez's

pending claim for workers' compensation benefits.   As against

Spicer, Merchants also sought damages in the amount of any

payments it had been required to make to Perez under the

workers' compensation policy thus far.

     Neither Spicer nor Perez put up any resistance.     Spicer

never appeared in the action, and on June 28, 2013, a default

judgment entered against him along the lines requested by

Merchants.6   Perez answered Merchants' complaint but did not

oppose its motion for summary judgment.   On August 23, 2013, a

judgment entered against Perez, declaring that both of the

policies issued by Merchants to Spicer were void ab initio and

rescinded, and that Merchants had no obligation to defend,

indemnify, or pay any sums on account of any claims or actions

arising out of Perez's injuries, including the pending DIA case.

Because the Superior Court case was never actively litigated, at

no time was there any determination that Spicer, in fact, had

made misrepresentations to Merchants, or that any such

misrepresentations met the criteria necessary to defeat or avoid



     6
       The judgment rescinded and declared void ab initio both
the general liability and workers' compensation policies, and
awarded Merchants $55,549.26 for payments made by it through
September 28, 2012, for legal fees, medical payments, and
indemnity payments arising from Perez's workers' compensation
claim.
                                                                   5


Merchants' obligations under the policies.   See G. L. c. 175,

§ 186(a).7

     With the declaratory judgment in hand, Merchants went

before the administrative judge assigned to the Perez matter and

moved that it be dismissed from the DIA case.   The

administrative judge denied the motion8 and scheduled a G. L.

c. 152, § 11, formal hearing for November 4, 2013.    Merchants

then filed a second Superior Court action, requesting that the

     7
       General Laws c. 175, § 186(a), as appearing in St. 2008,
c. 376, § 1, provides: "No oral or written misrepresentation or
warranty made in the negotiation of a policy of insurance by the
insured or in his behalf shall be deemed material or defeat or
avoid the policy or prevent its attaching unless such
misrepresentation or warranty is made with actual intent to
deceive, or unless the matter misrepresented or made a warranty
increased the risk of loss." Under this statute, "a
misrepresentation in an application for insurance is material,
and, thus, will enable the insurer to avoid the policy, if it is
made with actual intent or if it increases the risk of loss. A
material fact, measured by an objective standard, is one which
would 'naturally influence the judgment of [an] underwriter in
making the contract at all, or in estimating the degree and
character of the risk, or in fixing the rate of the premium.'
The [insurer] has the burden of proof on this issue." A.W.
Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445
Mass. 502, 513 (2005), quoting from Employers' Liab. Assur.
Corp. v. Vella, 366 Mass. 651, 655 (1975) (citations omitted).
     8
       The administrative judge offered four reasons for denying
Merchants' motion: (1) the DIA and not the Superior Court had
exclusive jurisdiction to decide the coverage issue; (2) there
was no privity between the parties in the two actions, because
Merchants had failed to name the Fund as a party even though it
might well be liable if there were no coverage; (3) Merchants
had failed to terminate the policy in the manner required by
G. L. c. 152; and (4) as a matter of public policy, insurers
should not be allowed to circumvent DIA proceedings by going to
the Superior Court.
                                                                     6


DIA and the administrative judge be enjoined from going forward

with "any proceedings" against Merchants in Perez's workers'

compensation case.    In response, Perez filed a motion in the

first Superior Court action, seeking relief from the declaratory

judgment in favor of Merchants, on the ground that the court had

been without jurisdiction to entertain Merchants' complaint.

See Mass.R.Civ.P. 60(b)(4), 365 Mass. 827 (1974).

     Informed of this development, the judge in the second

Superior Court action granted a temporary restraining order

halting the DIA proceedings until such time as Perez's motion

for relief from judgment in the first action was determined.9

Meanwhile, in the first action, the Fund sought and was granted

leave to intervene pursuant to Mass.R.Civ.P. 24, 365 Mass. 769

(1974), and proceeded to submit filings in support of Perez's

motion for relief from judgment.    Merchants responded with an

opposition, essentially arguing that the Superior Court did have

jurisdiction and that relief under rule 60(b) would be

inappropriate.

     At the hearing on the motion for relief from judgment,

Perez and the Fund requested that the case be dismissed because

Merchants had failed to exhaust its administrative remedies,

     9
       We have   consulted the current docket in the second
Superior Court   case, see Home Depot v. Kardas, 81 Mass. App. Ct.
27, 28 (2011),   and it appears that the temporary restraining
order is still   in place.
                                                                   7


and, hence, the court lacked subject matter jurisdiction to

adjudicate its claims.10    The motion judge agreed; she vacated

prior orders and judgments in the case and ordered the entry of

a new, final judgment dismissing Merchants' complaint without

prejudice.

     Discussion.     We review the question of jurisdiction de

novo.     See Buccaneer Dev., Inc. v. Zoning Bd. of Appeals of

Lenox, 83 Mass. App. Ct. 40, 41 (2012).     In the present

circumstances, the question can be further narrowed to whether

Merchants was required to exhaust its administrative remedies at

the DIA.




     10
       Perez's counsel candidly told the judge that he had not
understood that there was a jurisdictional problem prior to the
entry of the judgment against his client, and that he was under
the impression that rescission would not harm Perez, because he
would receive his benefits from the Fund. However, as the
Fund's attorney explained, the Fund, which had not been a party
to the court case, intended to contest its liability in the DIA
proceedings, as "it [was] supposed to do." Thus, if the
administrative judge were to determine that the Fund was not
liable because Merchants' policy was valid and in effect at the
time of the injury, Perez would be left without recourse, unless
the Superior Court judgment were vacated. The general counsel
of the DIA also was present at the hearing and answered
questions from the judge. His position was that the DIA is
vested with the exclusive authority to decide whether a claim is
covered under a workers' compensation policy, including whether
the employer obtained the policy by means of misrepresentations,
as alleged by Merchants in this case. In the DIA's view, that
question is a "subissue" of the overarching issue of "liability"
of the insurer "to pay the compensation due," and would be for
the administrative judge and then the reviewing board to decide.
                                                                     8


    The exhaustion rule (or doctrine) has long been a part of

our system of jurisprudence.    See Saint Luke's Hosp. v. Labor

Relations Commn., 320 Mass. 467, 469 (1946); East Chop Tennis

Club v. Massachusetts Commn. Against Discrimination, 364 Mass.

444, 448-452 (1973).   Like its closely-related counterpart, the

primary jurisdiction doctrine, the exhaustion rule promotes

"proper relationships and sensible coordination of work between

courts and administrative agencies that are charged with

regulatory responsibilities."    Massachusetts Correction Officers

Federated Union v. County of Bristol, 64 Mass. App. Ct. 461, 467

n.9 (2005).   See Lumbermans Mut. Cas. Co. v. Workers'

Compensation Trust Fund, 88     Mass. App. Ct. ____, ____ (2015);

Stavely v. Lowell, 71 Mass. App. Ct. 400, 403 n.7 (2008).

    Application of the exhaustion rule to any particular case

requires not only an understanding of its purposes, but also "of

the particular administrative scheme involved."     McKart v.

United States, 395 U.S. 185, 193 (1969).     We must therefore take

into consideration the objectives of G. L. c. 152, the workers'

compensation act (act), and the manner in which it is

administered.

    1.   General Laws c. 152.    The act was passed into law in

1911, as a humanitarian measure designed to provide prompt and

adequate compensation and medical benefits to an employee (and

the employee's dependents) in the event of injury or death
                                                                    9


occasioned by a work-related accident.   See Young v. Duncan, 218

Mass. 346, 349 (1914); Neff v. Commissioner of the Dept. of

Indus. Accs., 421 Mass. 70, 73 (1995); Spaniol's Case, 466 Mass.

102, 106-107 (2013).   Motivated by public dissatisfaction with

"inadequate" common-law remedies, the Legislature attached "new

incidents" to the relationship of employer and employee,

enforced by a sui generis process analogous to that of equity

procedure, to promote the goal of assuring prompt and adequate

assistance to injured workers (and their dependents).   Opinion

of the Justices, 309 Mass. 562, 568 (1941).   It also established

a scheme of interlinked rights, obligations, and remedies "all

its own, not previously known to the common or statutory law."

Ahmed's Case, 278 Mass. 180, 184 (1932).   As a remedial statute,

the act is to be afforded a broad interpretation, viewed in

light of its purposes and in aid of its "beneficent design."

Neff v. Commissioner of the Dept. of Indus. Accs., supra

(quotation omitted).

    a.   Adjudicatory process.   There are four procedural steps

in the adjudicatory process of a contested workers' compensation

claim.   The first step is an informal conciliation proceeding,

see G. L. c. 152, § 10; if the parties cannot reach a voluntary

accord, the second step is an informal conference before an

administrative judge, id. at §§ 10, 10A.   The third step is a

formal hearing before an administrative judge, see id. at § 11;
                                                                      10


and the fourth is an appeal to the reviewing board, see id. at

§ 11C.   See generally Murphy v. Commissioner of the Dept. of

Indus. Accs., 415 Mass. 218, 223-225 (1993); Neff v.

Commissioner of the Dept. of Indus. Accs., supra at 74; Murphy's

Case, 53 Mass. App. Ct. 708, 712 (2002).

    Judicial review of a final decision of the reviewing board

is had in this court, not the Superior Court.     G. L. c. 152,

§ 12.    The Superior Court is a proper forum only if a party

seeks to enforce an order of the reviewing board -- a situation

not presented here.    Ibid.   In this case, Perez and Merchants

reached only the conference stage at the DIA, which resulted in

an order for temporary benefits.    Thus, the administrative

proceedings were far from exhausted when Merchants elected to

file its complaint in court.

    b.    DIA's jurisdiction over coverage disputes.    If a

dispute over a claim is based on issues of insurance coverage,

"the DIA has full power to decide such questions of coverage"

and the "'parties have no right to try out the issue in a

separate proceeding in court.'"    Lee v. International Data

Group, 55 Mass. App. Ct. 110, 115-116 (2002), quoting from

Locke, Workmen's Compensation § 131, at 136 (2d ed. 1981).      See

Nason, Koziol, & Wall, Workers' Compensation § 7:13, at 154 (3d

ed. 2003).   Among the coverage issues commonly addressed in the

DIA are those relating to the requirements of G. L. c. 152, § 63
                                                                  11


(for voluntarily issued policies), and G. L. c. 152, § 65B (for

assigned risk policies), which regulate how an insurer may

"cancel or otherwise terminate" its policy.   See Frost v. David

C. Wells Ins. Agency, Inc., 14 Mass. App. Ct. 305, 306-309

(1982); Armstrong's Case, 47 Mass. App. Ct. 693, 696 (1999);

Cummings's Case, 52 Mass. App. Ct. 444, 447-450 (2001);

Pillman's Case, 69 Mass. App. Ct. 178, 181-185 (2007).    As

implicitly recognized by this court in Cummings's Case, supra at

448-450, and explicitly recognized by the reviewing board in

Sullivan's Case, 20 Mass. Workers' Comp. Rep. 207, 211 (2006),

rescission is embraced by the phrase "otherwise terminate," and,

therefore, the propriety and availability of rescission is a

matter for the DIA to adjudicate.11

     Merchants nevertheless contends, based on Century Indem.

Co. v. Jameson, 333 Mass. 503 (1956), that the Superior Court

had jurisdiction over its request for rescission.   In Century, a

workers' compensation insurer sought and obtained a declaration


     11
       Both Cummings's Case and Sullivan's Case concerned
assigned risk policies, as to which G. L. c. 152, § 65B,
regulates cancellation and rescission. Because the present case
concerns a voluntary policy, the relevant section is § 63;
however, the operative language ("cancel[] or . . . otherwise
terminate[]") is identical. "Where the Legislature uses the
same words in several sections which concern the same subject
matter, the words 'must be presumed to have been used with the
same meaning in each section.'" Commonwealth v. Wynton W., 459
Mass. 745, 747 (2011), quoting from Insurance Rating Bd. v.
Commissioner of Ins., 356 Mass. 184, 188-189 (1969).
                                                                     12


that a workers' compensation policy was voidable at its option

where the insured had applied for the policy without disclosing

material facts within his knowledge.     Id. at 504-505.

Significantly, however, Century predated the amendment of both

§§ 63 and 65B, to include within the act specific provisions

governing the termination of workers' compensation policies.12

For that reason, Century is not controlling.

     2.   Exhaustion.    Massachusetts courts have long adhered to

the rule that "[i]n the absence of a statutory directive to the

contrary, the administrative remedies should be exhausted before

resort to the courts."     East Chop Tennis Club v. Massachusetts

Commn. Against Discrimination, 364 Mass. at 448, quoting from

Gordon v. Hardware Mut. Cas. Co., 361 Mass. 582, 587 (1972).

Neither of the statutes cited by Merchants as a basis for

Superior Court jurisdiction, G. L. c. 231A and G. L. c. 175,




     12
       At the time Century was decided, § 63 had no language
pertaining to cancellation or termination. See G. L. c. 152,
§ 63, as amended by St. 1953, c. 314, § 6. It was not until
1973 that the Legislature added, inter alia, the sentence that
reads: "Such insurance shall not be cancelled or shall not be
otherwise terminated" until notification to the proper body (at
one time the DIA, and, later, the rating organization) is given.
St. 1973, c. 403. While a version of § 65B existed before
Century was decided, it referred only to cancellation; it was
not until 1991 that this section was amended to include the
broader, "cancel or otherwise terminate" language analogous to
the language in § 63. See St. 1991, c. 398, § 90A.
                                                                   13


§ 186(a), contains any such directive,13 and it is undisputed

that Merchants did not exhaust its administrative remedies

before resorting to the courts.

     The policies underlying the exhaustion doctrine are

"particularly applicable in the case of the administration of

the Work[ers'] Compensation Act."    Assuncao's Case, 372 Mass. 6,

9 (1977).   "By permitting an agency to apply its expertise to

the statutory scheme which it is charged to enforce, courts

preserve the integrity of the administrative process while

sparing the judiciary the burden of reviewing administrative

proceedings in a piecemeal fashion."    Murphy v. Administrator of

Div. of Personnel Admin., 377 Mass. 217, 220 (1979), citing

Assuncao's Case, supra at 8-9.    Those policies, as well as the

policies generally underlying the workers' compensation scheme,

would be undermined if an insurer were able to circumvent the

DIA process by litigating a claim for rescission in court while

a claim under the policy is pending in the DIA.    As this case

well illustrates, bypassing the administrative process has the




     13
       Merchants takes the position that by enacting G. L.
c. 175, § 186, the Legislature "expressly authorized the
Superior Court to rescind insurance policies for fraud in the
inducement." However, the statute does not confer jurisdiction
in any particular forum; it establishes the legal standards that
must be met for an insurer to defeat or avoid liability under
its policy because of a misrepresentation or warranty made by
the insured. See note 7, supra.
                                                                    14


potential to impair the rights of both the injured employee and

the Fund.

    Merchants' contention that the administrative remedies

available under the act are not the same as those available in a

declaratory judgment action is unavailing.   "A proceeding for

declaratory relief in itself does not operate to suspend the

ordinary requirement that a plaintiff exhaust [its]

administrative remedies before seeking judicial relief."     East

Chop Tennis Club v. Massachusetts Commn. Against Discrimination,

supra at 450.   Furthermore, "[t]he question 'is not whether the

alternative [administrative] remedy is in all respects as prompt

and as broad' but whether it is 'inadequate.'"   Gordon v.

Hardware Mut. Cas. Co., 361 Mass. at 586, quoting from Jordan

Marsh Co. v. Labor Relations Commn., 312 Mass. 597, 601-602

(1942).

    Here, the remedies available to Merchants at the DIA were

not inadequate.   It was entitled to argue in the workers'

compensation case that it had no obligation to pay benefits to

Perez because the policy had been obtained by Spicer's fraud.

If the administrative judge ruled otherwise, Merchants would

have a right of appeal to the reviewing board, and then, if need

be, to this court.   It also was entitled to terminate the policy

in accordance with the statutory procedures applicable to

policies written on a voluntary basis, i.e., G. L. c. 152, § 63,
                                                                  15


and G. L. c. 175, § 187C.   See Pillman's Case, 69 Mass. App. Ct.

at 181 n.6.   What it could not do was to file a Superior Court

case as a means to avoid the administrative process.

    3.   Other issues.   We comment briefly on the parties'

remaining arguments.

    a.   Because we rest our decision on the exhaustion rule, we

need not decide whether the Superior Court lacked jurisdiction

on the alternative ground that the Fund was a necessary party to

any action seeking a declaration that Merchants' workers'

compensation policy was void.   See Service Employees Intl.

Union, Local 509 v. Department of Mental Health, 469 Mass. 323,

338 (2014).

    b.   The judge did not abuse her broad discretion in

allowing the Fund's motion to intervene.   See Cruz Mgmt. Co. v.

Thomas, 417 Mass. 782, 785 (1994).   "Although motions to

intervene after judgment are seldom 'timely,' they may be

allowed if the proposed intervener demonstrates a strong

justification for intervention after judgment."   McDonnell v.

Quirk, 22 Mass. App. Ct. 126, 132 (1986) (citation omitted).

Here, the confluence of the jurisdictional defect, Merchants'

efforts to extract itself from the DIA proceedings (going so far

as to enjoin the DIA from continuing with the case), and the

potential prejudice to Perez and the Fund if the Fund were
                                                                 16


precluded from being heard constituted ample justification for

allowing the Fund to intervene.

    c.   The judge did not err in concluding that relief

pursuant to rule 60(b)(4) was appropriate, as there was no

arguable basis on which the Superior Court had jurisdiction in

the circumstances.   Merchants filed its Superior Court case

while Perez's DIA claim was pending.   Because the DIA had

exclusive jurisdiction to determine Merchants' liability under

its policy in conjunction with Perez's pending compensation

claim, the Superior Court was without authority to decide

whether that policy should be rescinded ab initio as a result of

the Spicer's alleged misrepresentations.   In this instance, the

Superior Court lacked jurisdiction from the very inception of

the case.   Accordingly, O'Dea v. J.A.L., Inc., 30 Mass. App. Ct.

449 (1991), relied upon by Merchants, is distinguishable.

    d.   Merchants contends that the judge erred in failing to

preserve the judgments insofar as they related to the general

liability insurance policy.   So far as the record reveals,

however, Merchants did not make this argument in the trial court

until it moved for reconsideration of the judge's order allowing

Perez's motion for relief from judgment, vacating all

substantive orders, and dismissing the complaint.   Merchants was

silent as to what, if any, rulings might be salvaged from the

case even when the judge requested at the January 31, 2014,
                                                                   17


hearing on Perez's motion for relief from judgment that all

parties submit their views as to which orders should be

vacated.14

     A motion for reconsideration is not the "appropriate place

to raise new arguments inspired by a loss before the motion

judge in the first instance."    Commonwealth v. Gilday, 409 Mass.

45, 46 n.3 (1991).    Accordingly, we review the judge's denial of

a motion for reconsideration only for abuse of discretion.      See

Commissioner of Rev. v. Comcast Corp., 453 Mass. 293, 312-313

(2009), and cases cited.    We discern no abuse of discretion

here.

     Even assuming for the sake of argument that there was no

jurisdictional impediment to the Superior Court judge's

rescission of the general liability policy while the

compensation case was pending, the judge did not abuse her

discretion in declining to change the scope of the dismissal

order.    It would not have been a simple ministerial task for the

     14
       The judge ordered all parties to file these submissions
by February 14, 2014. She also stated that, if Merchants wished
to file something further in response, it could do so by
February 21. Perhaps misunderstanding her order, Merchants did
not file anything by February 14, but later filed proposed
findings and rulings on the motion for relief from judgment on
February 21. Even then, Merchants did not address the judge's
concern. Instead, it reargued its position that the Superior
Court had jurisdiction and the judge should not grant any relief
to Perez. In the meantime, without benefit of any input from
Merchants as to which orders should be vacated, the judge
allowed Perez's motion on February 19.
                                                                  18


judge to grant Merchants' belated request.   The two policies

were not addressed in separate counts of the complaint, and all

subsequent pleadings, orders, and forms of judgment submitted by

Merchants consistently linked them together without

differentiation.   Furthermore, the judge could decide in her

discretion that she had adequately protected Merchants'

interests by ordering dismissal without prejudice -- leaving

Merchants free to file another action in Superior Court seeking

relief solely as to the general liability policy.

    Conclusion.    For the foregoing reasons, the judgment

dismissing the case for lack of jurisdiction is affirmed.

                                    So ordered.
