On November 07, 2017 a
Motion,Ex Parte
was filed
involving a dispute between
Carreiro, John,
Carreiro, Sherrie,
and
Mendonca, John,
for Torts
in the District Court of Bristol County.
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IG
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1773CV00966
JOHN CARREIRO and
SHERRIE CARREIRO,
BRISTOL, SS SUPERIOR COURT
Plaintiffs, _
. SEP 06 2019
MARC J. SANTOS, ESO
JOHN MENDONCA, .
, CLERK/MAGISTRATE
Defendant.
PLAINTIFFS’ MOTION TO STRIKE OR DISMISS
THIRD PARTY COMPLAINT - MASS. R. CIV. P. 12(b)(6)
Plaintiffs John Carreiro and Sherrie Carreiro respectfully move the Court to strike or
dismiss the Third Party Complaint proffered by Ace American Insurance Company.
As reasons for their.motion, the Plaintiffs state as follows:
1 This is an action for personal injury arising from an incident that occurred on
May 17, 2017, at Defendant John Mendonca’s premises in Fall River,
Massacliusetts. John Carreiro, in the coutse of his employment with Republic
Services, was Servicing a dumpster at the premises. Mr. Carreiro was severely
injured whén the dumpster tipped over, trapping his left leg beneath it.
Mr. Carreiro suifered a broken right ankle and right fibula, requiring open
reduction and internal fixation.
Page 1 of 3The parties have settled the personal injury case and the action is before the Court
on the petition for approval pursuant to GL. ec. 152, § 15.
Ace American Insurance Company, the workers’ compensation insurer, has
moved to interyené. The Plaintiffs have not opposed intervention and do not
contest the insurer’s right to appear and be heard pursuant to § 15, which provides
in relevant part:
“Except in the case of settlement by agreement by the parties to, and during a trial
of, such an action at law, no settlement by agreement shall be made with such
other person without the approval of either the board, the reviewing board, or the
court in which the action has been commenced. after a hearing in which both the
employee and the insurer have had an opportunity to be heard.”
The statute does not invite or require a separate cause of action by the insurer by
way of a third party complaint. There is no basis under any theory for a workers”
compensation insurer to obtain a money judgment against the injured worker.
Similarly, the statute does not contemplate a direct claim by the insurer against a
third party tortfeasor where the injured worker has already commenced, let alone
settled, the third party action.
Thus, the statute does not invite any judgment in the action other than the
judgment of dismissal of the personal injury claim.
The role of the Court is to conduct a hearing in which the insurer has an
opportunity to be heard, and to approve or decline to approve the proposed
settlement allocations based on the Court’s determination whether the allocations
unfairly provide the injured worker and family a double recovery at the expense
of the insurer’s right to reimbursement.
Page 2 of 37. None of this permits or requires the filing of'a third party claim against the tort
litigants.
WHEREFORE, the Plaintiffs respectfully request the Court to strike or dismiss the Third
Party Complaint, without prejudice to Ace American Insurance Company’s right to participate in
the § 15 hearing as contemplated by the G. L. c. 152, § 15.
Respectfully submitted,
JOHN CARREIRO and.
SHERRIE CARREIRO
By counsel,
Conley, Esq. (BBO# 094090)
y & Conley, P.C.
Grandview Road, Suite 218
PIO. Box 859139
Braintree, MA 02185-9139.
781-848-9891
Dated: August 22, 2019 michael@kenneyconley.com
CERTIFICATE OF SERVICE
Thereby certify that a true copy of the foregoing.document was
served upon the attorney of record for each other party via email
‘and first class mail on this.22™! day of August 2019.
‘onley, Esq.
Page 3 of 3
Document Filed Date
September 06, 2019
Case Filing Date
November 07, 2017
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IG COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 1773CV00966 JOHN CARREIRO and SHERRIE CARREIRO, BRISTOL, SS SUPERIOR COURT Plaintiffs, _ . SEP 06 2019 MARC J. SANTOS, ESO JOHN MENDONCA, . , CLERK/MAGISTRATE Defendant. PLAINTIFFS’ MOTION TO STRIKE OR DISMISS THIRD PARTY COMPLAINT - MASS. R. CIV. P. 12(b)(6) Plaintiffs John Carreiro and Sherrie Carreiro respectfully move the Court to strike or dismiss the Third Party Complaint proffered by Ace American Insurance Company. As reasons for their.motion, the Plaintiffs state as follows: 1 This is an action for personal injury arising from an incident that occurred on May 17, 2017, at Defendant John Mendonca’s premises in Fall River, Massacliusetts. John Carreiro, in the coutse of his employment with Republic Services, was Servicing a dumpster at the premises. Mr. Carreiro was severely injured whén the dumpster tipped over, trapping his left leg beneath it. Mr. Carreiro suifered a broken right ankle and right fibula, requiring open reduction and internal fixation. Page 1 of 3The parties have settled the personal injury case and the action is before the Court on the petition for approval pursuant to GL. ec. 152, § 15. Ace American Insurance Company, the workers’ compensation insurer, has moved to interyené. The Plaintiffs have not opposed intervention and do not contest the insurer’s right to appear and be heard pursuant to § 15, which provides in relevant part: “Except in the case of settlement by agreement by the parties to, and during a trial of, such an action at law, no settlement by agreement shall be made with such other person without the approval of either the board, the reviewing board, or the court in which the action has been commenced. after a hearing in which both the employee and the insurer have had an opportunity to be heard.” The statute does not invite or require a separate cause of action by the insurer by way of a third party complaint. There is no basis under any theory for a workers” compensation insurer to obtain a money judgment against the injured worker. Similarly, the statute does not contemplate a direct claim by the insurer against a third party tortfeasor where the injured worker has already commenced, let alone settled, the third party action. Thus, the statute does not invite any judgment in the action other than the judgment of dismissal of the personal injury claim. The role of the Court is to conduct a hearing in which the insurer has an opportunity to be heard, and to approve or decline to approve the proposed settlement allocations based on the Court’s determination whether the allocations unfairly provide the injured worker and family a double recovery at the expense of the insurer’s right to reimbursement. Page 2 of 37. None of this permits or requires the filing of'a third party claim against the tort litigants. WHEREFORE, the Plaintiffs respectfully request the Court to strike or dismiss the Third Party Complaint, without prejudice to Ace American Insurance Company’s right to participate in the § 15 hearing as contemplated by the G. L. c. 152, § 15. Respectfully submitted, JOHN CARREIRO and. SHERRIE CARREIRO By counsel, Conley, Esq. (BBO# 094090) y & Conley, P.C. Grandview Road, Suite 218 PIO. Box 859139 Braintree, MA 02185-9139. 781-848-9891 Dated: August 22, 2019 michael@kenneyconley.com CERTIFICATE OF SERVICE Thereby certify that a true copy of the foregoing.document was served upon the attorney of record for each other party via email ‘and first class mail on this.22™! day of August 2019. ‘onley, Esq. Page 3 of 3