Opinion
11-P-618
03-15-2012
HERCULANO MELO v. FERNANDO COSTA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff in this case, Herculano Melo, was injured while in the performance of employment activities as an employee of Costa Professional Cleaning Service, LLC (company), for whom he worked as a window washer. He is alleged to have fallen from a ladder owned by the company, to have suffered serious injuries, including a broken spine and broken heels, and to have become totally disabled. He brought suit against Fernando Costa, individually, who is alleged in the complaint to be the owner of the company. Costa failed to appear for his deposition on several occasions, and he now concedes before this court that the judge rightfully entered a default against him.
When Melo sought entry of a default judgment, the judge considered the facts alleged in the amended complaint, as Costa agrees was appropriate, and concluded that, deeming all the facts alleged in the complaint admitted, Melo's amended complaint did not assert a cognizable claim upon which relief could be granted. Melo now appeals.
The sole basis upon which Costa defends the judgment is that Costa was a 'coemployee' of Melo, who is immune from suit under G. L. c. 152, § 15. The coemployee immunity provision of G. L. c. 152, § 15, was discussed in Fredette v. Simpson, 440 Mass. 263 (2003). It was in reliance upon that case that the judge dismissed the case below. We review de novo the judge's assessment of whether the amended complaint sets forth a basis upon which relief can be granted.
The immunity provision of § 15, inserted by St. 1971, c. 941, provides that there is immunity from suit for 'the insured person employing [the] 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.'
The complaint does not allege that Costa was a coemployee of the company. Rather it asserts that 'Costa was and is the owner of Costa Professional Cleaning, LLC.' Counts II through VI of the complaint allege that Costa personally was negligent and that his negligence led to Melo's injury. Melo relies upon the legal principle, of which the judge below recognized the validity, that a corporate officer cannot escape liability for his own tortious conduct simply because he was acting within the scope of his authority. See Leclare v. Silver Line Mfg. Co., 379 Mass. 21, 29 (1979).
Although the judge concluded that immunity under § 15 protects from suit 'an officer or . . . a co-employee,' in fact the text of the statute and our case law indicate that that immunity applies only to coemployees. Indeed, although Costa does not make the argument before us, in the court below, in his supplemental opposition to the plaintiff's motion for entry of default judgment, he argued first that Costa was as a matter of fact a coemployee, and second that the amended complaint failed affirmatively to plead that Costa was not a coemployee.
The latter contention is of no assistance to Costa. The amended complaint alleges that Costa was the owner of the Company, not that he was a coemployee. Where a default has been entered, a default judgment is proper unless the complaint on its face demonstrates that the pleader is not entitled to the relief which he or she seeks. See Reporter's Notes to Mass.R.Civ.P. 55, 46 Mass. Gen. Laws Ann., Rules of Civil Procedure, at 763 (West 2006) ('[I]f a complaint on its face seeks improper relief, e.g. an injunction against speech which is clearly constitutionally protected, the court need grant no relief at all, even though the defendant has been defaulted'). On its face the complaint alleges that Costa was an officer of the corporation, not a coemployee -- no further affirmative allegation that Costa was not a coemployee was necessary.
As to the former contention, in asserting in the court below that Costa was a coemployee, Costa pointed to statements in Melo's deposition that, we may assume for the sake of argument, might have supported a finding that Costa was in fact a coemployee. But the result of the default by Costa is that the factual allegations in the complaint must be accepted as true for purposes of establishing liability. Thus, in light of the default, it was not open to the defendant at the hearing below to contest the facts alleged. See Multitechnology Inc. v. Mitchell Mgmt. Sys. Inc., 25 Mass. App. Ct. 333, 335 (1988).
Consequently, because Costa has not demonstrated either in the court below or before us that he was entitled to coemployee immunity under c. 152, § 15, or our decisions construing it, the judgment with respect to these counts must be reversed.
Count I of the amended complaint stands on a different footing. In that count, the plaintiff alleges that the defendant owed a fiduciary duty to the corporation that he breached through his negligence. It pleads in essence a derivative action on behalf of the corporation. Even assuming the plaintiff is in a position to bring such a derivative cause of action, the corporation cannot, under § 15, be liable to the plaintiff for any amount above that provided for by the workers' compensation scheme. Since there can thus be no damages for the corporation to recover from the defendant above what the plaintiff has already received, count I fails to state a claim upon which relief can be granted.
The judgment therefore is affirmed as to count I of the amended complaint and reversed as to counts II through VI, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.
By the Court (Graham, Rubin & Milkey, JJ.),