On November 07, 2017 a
Motion-Secondary
was filed
involving a dispute between
Carreiro, John,
Carreiro, Sherrie,
and
Mendonca, John,
for Torts
in the District Court of Bristol County.
Preview
1G@.a
COMMONWEALTH OF MASSACHUSETTS
BRISTOL, SS. , SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO.: 1773C€V00966
JOHN CARREIRO and
SHERRIE CARREIRO,
Plaintiffs, BRISTOL, 85 SUPERIOR COURT
Vv. SEP 06 2019
JOHN MENDONCA, MARC J. SANTOS, ESQ.
CLERK/MAGISTRATE
Defendant.
PLAINTIFFS’ REPLY TO INSURER’S OPPOSITION TO MOTION TO STRIKE OR
DISMISS THIRD PARTY COMPLAINT — MASS. R. CIV. P. 12(b)(6)
Pursuant to Superior Court Rule 9A(3), Plaintiffs John Carreiro and Sherrie Carreiro
offer the following reply to the opposition served by Ace American Insurance Company.
The insurer is wrong to suggest that G.L. c. 152, § 15 supports its present filing of a third
party complaint. The statute grants to an injured employee the exclusive right to bring a third-
party action in the first seven months after the occurrence of a job-related injury. Pinto v.
Aberthaw Constr. Co., 418 Mass. 494, 497 n.3 (1994). The statute permits a workers’
compensation insurer to bring an action to enforce a third party’s liability, but only after seven
months following the injury and only if the injured worker has not already filed.' See Pinto v.
Aberthaw Constr. Co., 418 Mass. 494, 498 (1994) (“If an employee does not bring suit within
seven months of the date of the injury, either the insurer or the employee, but not both, may file
suit.”).
' “Bither the employee or insurer may proceed to enforce the liability of such person, but the insurer may not do
so unless compensation has been paid in accordance with sections seven, eight, ten A, eleven C, twelve or nineteen
nor until seven months following the date of such injury.”
Page 1 of 2Moreover, the present posture of the case does not involve enforcement of liability. The
case is settled, enforcement is complete. The Court’s task now is to approve or decline to
approve the settling parties’ proposed allocation. There is no legal basis for the insurer to
request a money judgment against the injured worker or defendant in the settled case.
Dated: September 4, 2019
Respectfully submitted,
JOHN CARREIRO and
SHERRIE CARREIRO
By counsel,
ey| Esq. (BBO# 094090)
randview Road, Suite 218
Po. Box 859139
Braintree, MA 02185-9139
781-848-9891
michael@kenneyconley.com
Page 2 of 2
Document Filed Date
September 06, 2019
Case Filing Date
November 07, 2017
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1G@.a COMMONWEALTH OF MASSACHUSETTS BRISTOL, SS. , SUPERIOR COURT DEPARTMENT CIVIL ACTION NO.: 1773C€V00966 JOHN CARREIRO and SHERRIE CARREIRO, Plaintiffs, BRISTOL, 85 SUPERIOR COURT Vv. SEP 06 2019 JOHN MENDONCA, MARC J. SANTOS, ESQ. CLERK/MAGISTRATE Defendant. PLAINTIFFS’ REPLY TO INSURER’S OPPOSITION TO MOTION TO STRIKE OR DISMISS THIRD PARTY COMPLAINT — MASS. R. CIV. P. 12(b)(6) Pursuant to Superior Court Rule 9A(3), Plaintiffs John Carreiro and Sherrie Carreiro offer the following reply to the opposition served by Ace American Insurance Company. The insurer is wrong to suggest that G.L. c. 152, § 15 supports its present filing of a third party complaint. The statute grants to an injured employee the exclusive right to bring a third- party action in the first seven months after the occurrence of a job-related injury. Pinto v. Aberthaw Constr. Co., 418 Mass. 494, 497 n.3 (1994). The statute permits a workers’ compensation insurer to bring an action to enforce a third party’s liability, but only after seven months following the injury and only if the injured worker has not already filed.' See Pinto v. Aberthaw Constr. Co., 418 Mass. 494, 498 (1994) (“If an employee does not bring suit within seven months of the date of the injury, either the insurer or the employee, but not both, may file suit.”). ' “Bither the employee or insurer may proceed to enforce the liability of such person, but the insurer may not do so unless compensation has been paid in accordance with sections seven, eight, ten A, eleven C, twelve or nineteen nor until seven months following the date of such injury.” Page 1 of 2Moreover, the present posture of the case does not involve enforcement of liability. The case is settled, enforcement is complete. The Court’s task now is to approve or decline to approve the settling parties’ proposed allocation. There is no legal basis for the insurer to request a money judgment against the injured worker or defendant in the settled case. Dated: September 4, 2019 Respectfully submitted, JOHN CARREIRO and SHERRIE CARREIRO By counsel, ey| Esq. (BBO# 094090) randview Road, Suite 218 Po. Box 859139 Braintree, MA 02185-9139 781-848-9891 michael@kenneyconley.com Page 2 of 2