Opinion
CIV. 12-0184
02-24-2015
GREGORY TETREAULT, Plaintiff v. JACLYN ROBICHAUD and BERKSHIRE COUNTY ARC, INC., Defendants
ORDER ON PLAINTIFF'S PETITION FOR APPROVAL OF A SETTLEMENT
John A. Agostini, Associate Justice, Superior Court.
In this case the plaintiff has submitted a joint petition for approval of a settlement pursuant to G.L. c. 152, § 15, Specifically, the plaintiff was injured as a result of a motor vehicle accident that occurred on January 10, 2009, on Brodie Mountain Road, Hancock. It is asserted that a vehicle operated by Jaclyn Robichaud crossed over the center line and struck the plaintiff's vehicle, Ms. Robichaud was allegedly in the course of her employment for the defendant, Berkshire County Arc, Inc. at the time of the accident.
As a result of the accident the plaintiff suffered herniated discs, fracture of his right wrist and related injuries. At the time of the accident, the plaintiff was in the course of his employment as a sales representative for Patriot Resort Corporation. The plaintiff received worker's compensation benefits from Travelers Insurance Company that total $160,298, consisting of $27,357 in medical benefits and $132,941 in lost wages.
In January 2012, the plaintiff filed suit against the defendants seeking compensation for his injuries. After a protracted period of discovery, the parties were able to resolve the dispute for $275,000. In accordance with the provisions of G.L. c. 152, § 15, the plaintiff and defendants have allocated the settlement proceeds as follows.
Lost wages: $110,000.
Pain & suffering: $165,000.
Pursuant to G.L. c. 152, § 15, Travelers is entitled to a lien for any money recovered by an injured worker that are compensated under the workers' compensation statute. See DiCarlo v. Suffolk Construction Co., Inc . 86 Mass.App.Ct. 589, 590, 19 N.E.3d 431 (2014); Curry v. Great American Ins. Co ., 80 Mass.App.Ct. 592, 596-597, 954 N.E.2d 580 (2011)(" loss of consortium and conscious pain and suffering are not compensable injuries under the workers' compensation statute and therefore are not reimbursable under G. L. c. 152, § 15").
In accordance with the allocation suggested by the plaintiff and defendants, Travelers would be entitled to a recovery of $110,000 less attorney's fees and expenses of $37,985, or $72,015. The plaintiff would receive $108,022.
Travelers has objected to this settlement allocation and has posited its own allocation:
Lost wages: $160,298.
Pain & suffering: $114,702.
With this allocation, Travelers would receive $104,944 after fees and expenses and the plaintiff would receive $75,093.
I have reviewed the documents submitted by the parties and Travelers and considered their arguments. I find that Travelers has put forth " a credible argument challenging the settlement allocation." Lane v. Plymouth Restaurant Group , 440 Mass. 469, 472-473, 799 N.E.2d 1246 (2003). See DiCarlo v. Suffolk Construction Co., Inc ., 86 Mass.App.Ct. 589, 597, 19 N.E.3d 431 (2014). Accordingly, Travelers is entitled to an evidentiary hearing " to determine what would constitute a fair allocation of the recovery..." Lane , supra at 473.
This matter is place on the April Civil Trial List for a non-jury evidentiary hearing.
SO ORDERED.