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14-P-676                                             Appeals Court

           ANTONIO PEREZ MOLINA   vs.   STATE GARDEN, INC.


                            No. 14-P-676.

      Suffolk.        December 10, 2014. - September 3, 2015.

           Present:    Katzmann, Hanlon, & Maldonado, JJ.


Practice, Civil, Summary judgment. Workers' Compensation Act,
     Action against third person, Identity of employer,
     Exclusivity provision. Waiver. Insurance, Waiver.
     Release.



     Civil action commenced in the Superior Court Department on
October 17, 2011.

     The case was heard by Robert B. Gordon, J., on a motion for
summary judgment.


     Mark S. Horrigan for the plaintiff.
     Martha J. Zackin for the defendant.
     John Pagliaro & Martin J. Newhouse, for New England Legal
Foundation & another, amici curiae, submitted a brief.


    KATZMANN, J.      This appeal presents the question whether

the "alternate employer endorsement" to a staffing company's

workers' compensation insurance policy satisfies the

requirements of G. L. c. 152, §§ 15 and 18, such that an injured
                                                                     2


employee's employer, a customer of the staffing company and

named in the endorsement, is immune from tort liability under

the Workers' Compensation Act (Act).    We answer that question in

the affirmative.

     The plaintiff, Antonio Perez Molina (Molina or employee),

was injured while providing services on assignment from American

Resource Staffing Network, Inc. (ARS), to State Garden, Inc.

(State Garden or defendant), and brought suit against State

Garden for negligence.   While his case was pending in the trial

court, he was awarded workers' compensation benefits on ARS's

policy, which named the defendant as an additional insured.     A

Superior Court judge allowed State Garden's motion for summary

judgment and dismissed Molina's complaint on the ground that his

claim was barred by the exclusivity provisions of the Act, G. L.

c. 152, §§ 23-24.1   Molina appeals.   We affirm.2


     1
       General Laws c. 152, § 23, as appearing in St. 1985,
c. 572, § 34, provides:

     "If an employee files any claim or accepts payment of
     compensation on account of personal injury under this
     chapter, or submits to a proceeding before the department
     under sections ten to twelve, inclusive, such action shall
     constitute a release to the insurer of all claims or
     demands at common law, if any, arising from the injury. If
     an employee accepts payment of compensation under this
     chapter on account of personal injury or makes an agreement
     under section forty-eight, such action shall constitute a
     release to the insured of all claims or demands at common
     law, if any, arising from the injury."
                                                                    3


     Background.    ARS is a staffing company that provides

temporary staffing to clients such as State Garden, a produce

business.    State Garden uses ARS employees to supplement its

workforce.    Molina was assigned to State Garden as a temporary

worker at its processing facility in Chelsea, Massachusetts.       On

or about December 22, 2010, Molina sustained a low back injury

in the course of his work for State Garden.3   Molina's injury was

covered by the Act.    He applied for and received benefits from

A.I.M. Mutual Insurance Company, ARS's workers' compensation

insurer.    State Garden and ARS both acted as Molina's employer,


General Laws c. 152, § 24, as amended through St. 1986, c. 662,
§ 18, provides in relevant 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 that is compensable
     under this chapter, to recover damages 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 became 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 self-insurer."
     2
       We acknowledge the amicus brief submitted by the New
England Legal Foundation and Associated Industries of
Massachusetts.
     3
       The complaint alleges, "On or about December 22, 2010 the
defendant, by its agents, servants or employees created an
unreasonably hazardous work environment for the plaintiff that
required the plaintiff to repeatedly lift heavy rolls of
wrapping material either above his head or above shoulder level
and load it onto a wrapping or food processing machine."
                                                                    4


controlling different aspects of his employment.    ARS was the

"general employer," to whom Molina applied for work.    It

retained control over several personnel and administrative

functions, including purchasing and paying for insurance.

Compare Galloway's Case, 354 Mass. 427, 429-430 (1968); Ramsey's

Case, 5 Mass. App. Ct. 199, 201-202 (1977).   However, ARS was

not Molina's "direct employer"; it could not arbitrarily

terminate, transfer, or remove Molina on a unilateral basis.

See Fleming v. Shaheen Bros., 71 Mass. App. Ct. 223, 227 (2008)

(Fleming).   State Garden was both the "special employer" and the

"direct employer":   it set Molina's hours, established his

duties and responsibilities, directed him to perform certain

tasks, and managed his day-to-day performance.     See Galloway's

Case, supra; Ramsey's Case, supra; Fleming, supra.4    State Garden

was liable for the payment of Molina's wages by virtue of its

arrangement with ARS, whereby it paid ARS an amount equivalent

to his wages plus a service fee.



     4
       General and special employment have been acknowledged
since very early in the Act's history, appearing in "Scribner's
Case, 231 Mass. 132, 135 (1918), in which the court adhered to
the common-law criteria of control and assent by the employee in
imposing liability as between 'a special employer as
distinguished from his [. . . "lent" employee's] general
employer.'" Ramsey's Case, 5 Mass. App. Ct. at 203. On general
and special employers, see 3 Larson, Workers' Compensation Law
§ 67 (2014).
                                                                   5


     ARS has a workers' compensation policy, which includes an

"alternate employer endorsement."   The endorsement states:

     "This endorsement applies only with respect to bodily
     injury to your employees while in the course of special or
     temporary employment by the alternate employer . . . named
     in Item 2 of the Schedule. Part One (Workers Compensation
     Insurance) and Part Two (Employers Liability Insurance)
     will apply as though the alternate employer is insured."5

The alternate employer endorsement specifically names State

Garden.   State Garden is also identified as an "additional

employer" under the "Certificate of Liability Insurance."     An

affidavit by Michele Bordieri, State Garden's human resources

manager, as well as the "Workers Compensation and Employers

Liability Insurance Certificate," indicate that State Garden

carries workers' compensation insurance that covers its

employees, and for which it pays as the named insured.6

     In addition, during ARS's hiring process, Molina signed a

"Waiver and Release," which states as follows:



     5
       The alternate employer endorsement has been approved in
Massachusetts by the Division of Insurance. See Workers'
Compensation Rating and Inspection Bureau of Massachusetts,
Filed and Approved Endorsements, Alternate Employer Endorsement
WC 00 03 01 A, https://www.wcribma.org/Mass/ToolsandServices/
UnderwritingToolsandForms/FiledandApprovedEndorsements.aspx
[http://perma.cc/3E6W-8AUF].
     6
       Although State Garden states in its brief that its
workers' compensation policy covers only employees for whom it
is the "sole employer," the Bordieri affidavit did not so
specify.
                                                                    6


    "In consideration of any offer of employment by American
    Resource Staffing, I hereby acknowledge, understand and
    agree that the following will constitute terms and
    conditions of any such employment.

    "In recognition that any work related injuries which might
    be sustained by me are covered by state Workers'
    Compensation statutes, and to avoid the circumvention of
    such state statutes which may result from suits against the
    customers or clients of American Resource Staffing, based
    on the same injury or injuries, and to the extent permitted
    by law, I HEREBY WAIVE AND FOREVER RELEASE ANY RIGHTS I
    MIGHT HAVE to make claims or bring suit against any client
    or customer of American Resource Staffing, for damages
    based upon injuries which are covered under such Workers'
    Compensation statutes."

    Molina sued State Garden for his injuries notwithstanding

his receipt of workers' compensation benefits on ARS's insurance

policy, the alternate employer endorsement, State Garden's

designation as an additional insured employer, and the waiver

and release of liability.   State Garden filed a motion to

dismiss and, in the alternative, a motion for summary judgment.

In opposing Molina's suit, State Garden contended that, where

the general employer, ARS, carried a workers' compensation

policy containing an alternate employer endorsement naming State

Garden as an additional insured employer, State Garden was

entitled to immunity from suit under the exclusivity provisions

of the Act.   Molina countered that §§ 15 and 18 of the Act limit

immunity for special employers such as State Garden to

circumstances where, among other things, the special employer

actually pays the workers' compensation benefit, and that the
                                                                     7


alternate employer endorsement did not satisfy this requirement.

The judge allowed the motion for summary judgment on the ground

that the alternate employer endorsement shielded State Garden

from common-law liability under the exclusivity provisions of

the Act.   We agree.7   We also conclude that Molina's action is

barred by the waiver and release he signed.

    Discussion.     On appeal, we review the motion judge's grant

of summary judgment de novo.    Twomey v. Middleborough, 468 Mass.

260, 267 (2014).    Fraco Prods., Ltd. v. Bostonian Masonry Corp.,

84 Mass. App. Ct. 296, 299 (2013).    "The standard of review of a

grant of summary judgment is whether, viewing the evidence in

the light most favorable to the nonmoving party, all material

facts have been established and the moving party is entitled to

judgment as a matter of law."    Augat, Inc. v. Liberty Mut. Ins.

Co., 410 Mass. 117, 120 (1991), citing Mass.R.Civ.P. 56(c), 365

Mass. 824 (1974).   We may affirm the entry of summary judgment

on any ground supported by the record.    See American Intl. Ins.

Co. v. Robert Seuffer GmbH & Co., 468 Mass. 109, 113 (2014).



    7
       The motion judge stated that it was undisputed that ARS,
as the "direct employer," was immune from suit. However, State
Garden argued on its motion for summary judgment that it (State
Garden) was the direct employer. We agree. See discussion,
passim; Fleming, 71 Mass. App. Ct. at 227. In any event,
because Molina only brought suit against State Garden, we are
not presented with the question whether ARS would be immune from
suit and express no opinion regarding that question.
                                                                   8


    1.     Alternate employer endorsement as source of immunity.

The issue before us is whether the alternate employer

endorsement written into ARS's workers' compensation insurance

policy immunizes State Garden from common-law liability under

the exclusivity provisions of the Act.

    We begin by observing, as did the motion judge, that there

is no Massachusetts case squarely on point.   In Lang v. Edward

J. Lamothe Co., 20 Mass. App. Ct. 231, 232-233 (1985) (Lang),

and Numberg v. GTE Transport, Inc., 34 Mass. App. Ct. 904, 905

(1993) (Numberg), this court acknowledged that, pursuant to

§§ 15 and 18 of the Act, a special employer who was also the

direct employer could be immune from suit if it had made an

agreement with the general employer to pay the workers'

compensation benefits for the injured employee.   No such

agreement had been made in either case, and, thus, the special

employers were not immune from common-law tort liability.

Because there was no alternate employer endorsement in either

case, we had no occasion to examine the effect of such an

endorsement on a special employer's tort immunity.   A third

case, Fleming, 71 Mass. App. Ct. at 228-229, is not directly

applicable because there was no general- or special-employer

relationship in that case.    Thus, these cases do not resolve the

issue before us.   To resolve that issue, we look primarily to

the Act.
                                                                   9


    a.   Statutory scheme.   The Act was enacted as a

humanitarian measure in July, 1911, see St. 1911, c. 751, in

response to public sentiment that previous remedies under common

law and the employers' liability act did not sufficiently

protect against injuries or provide relief for workplace

accidents.   See Meley's Case, 219 Mass. 136, 139 (1914); Cox's

Case, 225 Mass. 220, 223-224 (1916); LaClair v. Silberline Mfg.

Co., 379 Mass. 21, 27 (1979).     The goal of the workers'

compensation scheme is the protection of the injured worker from

the sudden loss of cash income.    See Sellers's Case, 452 Mass.

804, 810-811 (2008).

    The Act provides the exclusive remedy for claims brought by

an injured employee against an employer.     See G. L. c. 152,

§§ 23-24; Green v. Wyman-Gordon Co., 422 Mass. 551, 558 n.10

(1996) (reciting the relevant part of § 24:     "[a]n employee

shall be held to have waived his right of action at common law

. . . in respect to an injury that is compensable under this

chapter, to recover damages for personal injuries . . .").

"[U]nder G. L. c. 152, § 24, unless an employee expressly

preserves his or her common law rights of action, a claim

alleging negligence of an employer . . . is foreclosed by the

exclusivity provisions of the workers' compensation act."

Perkins v. Commonwealth, 52 Mass. App. Ct. 175, 176-177 (2001).

"The [A]ct was designed to replace tort actions, by providing a
                                                                       10


uniform, statutory remedy for injured workers, in contrast to a

piecemeal, tort-based system."    Saab v. Massachusetts CVS

Pharmacy, LLC, 452 Mass. 564, 566-567 (2008) (quotations and

citations omitted).   The exclusivity provisions are the

"cornerstone" of the Act.    Id. at 568.    Employees get a

"guaranteed right of recovery," but they are in turn barred from

"recovering against their employers for injuries received on the

job."    Barrett v. Rodgers, 408 Mass. 614, 616 (1990).    Workers'

compensation laws represent "the Legislature's balance of

competing societal interests."    Squillante's Case, 389 Mass.

396, 398 (1983) (quotation omitted).       See generally Restatement

of Employment Law c. 4 (2015).

     Section 15 of the Act leaves open the possibility that,

notwithstanding receipt of workers' compensation benefits from

the employer, an injured employee may bring tort actions against

other entities.8   To be eligible for the limited immunity from

suit provided by the Act, a defendant must satisfy a two-part


     8
       General Laws c. 152, § 15, as appearing in St. 1991,
c. 398, § 39, provides, in pertinent part:

     "Nothing in this section, or in section eighteen or
     twenty-four shall be construed to bar an action at law for
     damages for personal injuries or wrongful death by an
     employee against any person other than the insured person
     employing such employee and liable for payment of the
     compensation provided by this chapter for the employee's
     personal injury or wrongful death and said insured person's
     employees."
                                                                   11


test.   See Lang, 20 Mass. App. Ct. at 232 ("[1] the employer

must be an insured person liable for the payment of [workers']

compensation [benefits to the injured employee], and [2] the

employer must be the direct employer of the employee").

    In part two of the test, the employer asserting an immunity

defense must establish that it is also the "direct" employer.

See, e.g., Fleming, 71 Mass. App. Ct. at 227 ("[I]n order to

determine whether an employer-employee relationship exists, the

finder of fact must identify who has direction and control of

the employee and to whom does he owe obedience in respect of the

performance of his work.   Method of payment for work, though

important, is not controlling in determining the terms of an

employment relationship.   The primary test is whether one has a

right to control the individual's work performance") (quotations

and citations omitted).

    In part one of the test, as to whether the employer is

insured and liable for the workers' compensation benefits owed

the employee, in cases such as the instant matter, where there

is both a general and a special employer, § 18 of the Act comes

into play.   The last paragraph of § 18, inserted by St. 1969,

c. 755, § 2, provides:

    "In any case where there shall exist with respect to an
    employee a general employer and a special employer
    relationship, as between the general employer and the
    special employer, the liability for the payment of
    compensation for the injury shall be borne by the general
                                                                  12


    employer or its insurer, and the special employer or its
    insurer shall be liable for such payment if the parties
    have so agreed or if the general employer shall not be an
    insured or insured person under this chapter."

Thus, if a special employer is also the injured employee's

direct employer (thus satisfying part two of the test), and the

general and special employer have agreed that the latter shall

be liable for carrying workers' compensation insurance and

paying workers' compensation benefits, the special employer may

be immune from tort liability.   Otherwise, § 18 creates the

presumption that the general employer will be liable for

benefits, and the special employer will thus fail part one of

the Lang test and will not enjoy immunity from tort liability.

See Lang, 20 Mass. App. Ct. at 232-233; Numberg, 34 Mass. App.

Ct. at 904-905.

    b.    The alternative employer endorsement.   Here, as we have

noted, the defendant satisfies the requirements of being the

direct employer.   It thus meets part two of the Lang immunity

test.    Because ARS and the defendant, respectively, are the

general and special employer of the plaintiff, § 18 of the Act

applies in determining whether the defendant meets part one of

the Lang immunity test.   The question before us is whether the

alternate employer endorsement constitutes the agreement

contemplated by § 18, that "the special employer or its insurer

shall be liable for such [workers' compensation] payment," such
                                                                    13


that under Lang, 20 Mass. App. Ct. at 232, the defendant is "an

insured person liable for the payment of [workers'] compensation

[benefits to the injured employee]."    We conclude that the

alternate employer endorsement is such an agreement.

     The clear purpose of the endorsement's provision that "Part

One (Workers Compensation Insurance) . . . will apply as though

the alternate employer [State Garden] is insured," is to provide

coverage to State Garden.   The endorsement makes State Garden an

insured employer9 with respect to workers' compensation claims

brought against it for workplace injuries, and thus satisfies

the requirements of § 18 of the Act.

     Although Molina argues that allowing the Act to bar his

complaint for damages would circumvent the explicit provisions

of G. L. c. 152, § 15 (see note 8, supra), State Garden's

designation as an additional insured legitimately protects it

against Molina's claims.    As to the effect of naming a party as


     9
       This view of the alternate employer endorsement, a
standard endorsement used in other States, has been articulated
in at least one reported Federal Court of Appeals decision. See
Cal-Dive Intl., Inc. v. Seabright Ins. Co., 627 F.3d 110, 114
(5th Cir. 2010) ("when endorsements such as the Alternate
Employer Endorsement add additional insureds to the policy,
these additional insureds enjoy the same benefits and are
subject to the same restrictions as a named insured absent
policy language to the contrary. . . . It is significant that
the Alternate Employer Endorsement provides that 'this
endorsement will apply as though the alternate employer is an
insured'").
                                                                   14


an additional insured, see, e.g., Massachusetts Turnpike Authy.

v. Perini Corp., 349 Mass. 448, 457 (1965) ("The naming of

additional insureds does not extend the nature of the

substantive coverage originally given by the policy but merely

gives to other persons the same protection afforded to the

principal insured).   See generally Mootz, 3 New Appleman on

Insurance Law Library Edition § 16.05[1][c][i], at 16-144

(2013).

    In sum, in contracting to have State Garden sheltered under

ARS's workers' compensation policy, the alternate employer

endorsement naming State Garden as an additional insured is

precisely the kind of agreement between general and special

employer envisioned in § 18 of the Act, and, thus, renders State

Garden immune from suit.   Contrast Lang, 20 Mass. App. Ct. at

232-233; Numberg, 34 Mass. App. Ct. at 904-905.    Moreover, our

conclusion as to the alternate employer endorsement is

consistent with the statutory goal of protecting an employee who

is injured on the job, within the framework of replacing a

piecemeal tort system with a uniform statutory remedy.

    2.    Validity of waiver and release.   Molina argues that the

waiver and release he signed at the beginning of his employment

-- contracting not to sue for damages based upon injuries

covered by the Act -- is invalid because it was signed before

any employment relationship existed and therefore was only a
                                                                     15


covenant not to sue.    We disagree.   The release in Horner v.

Boston Edison Co., 45 Mass. App. Ct. 139, 141 n.3 (1998), nearly

identical to the release here, was deemed enforceable.        In

Horner, as here, the release was provided by a staffing company

employing the plaintiff.     The release waived the plaintiff's

right to bring suit against any client of the staffing company

for injuries covered under State workers' compensation statutes,

and was signed by the plaintiff as part of his employment

application with the staffing company, prior to any employment

relationship existing between the parties and prior to any cause

of action arising.     This court ruled that the release was valid

and barred suit against the defendant, a client of the staffing

company.   Id. at 142-145.   The Horner court noted that the

agreement "extinguishes only the employee's right to recover

additional amounts as a result of a work-related injury for

which the employee has already received workers' compensation

benefits," id. at 142 (emphasis added), that the agreement "does

not require Horner to strip himself of compensation benefits for

his injury, and [that] allocation of risk by means of a release

is generally not against public policy."     Ibid.   "Viewed as a

whole, the release is not extracted by the employer as a shield

against its own liability but rather as protection for its

customers for those risks assumed by its employees who, in turn,

are covered by workers' compensation insurance."      Ibid.    We see
                                                                 16


no reason to depart from the reasoning of the Horner court.

Therefore, in addition to having immunity under the Act, State

Garden is protected by the waiver and release Molina signed.

                                   Judgment affirmed.
