Carey v. Gatehouse Media Massachusetts I, Inc. (Lawyers Weekly No. 11-024-18)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   17-P-82                                         Appeals Court   SUZANNE E. CAREY, personal representative,[1]  vs.  GATEHOUSE MEDIA MASSACHUSETTS I, INC.     No. 17-P-82.   Norfolk.     September 14, 2017. – February 27, 2018.   Present:  Green, Sullivan, & Sacks, JJ.     Independent Contractor Act.  Newspaper.  Carrier.  Federal Preemption.  Statute, Federal preemption.  Waiver.  Practice, Civil, Summary judgment, Waiver.       Civil action commenced in the Superior Court Department on September 22, 2011.   Motions for summary judgment were heard by Angel Kelley Brown, J.; the entry of separate and final judgment was ordered by her; and a motion for postjudgment relief was heard by her.     Mark W. Batten for the defendant. James W. Simpson, Jr., for the plaintiff. Peter J. Caruso & Robert J. Ambrogi, for Massachusetts Newspaper Publishers Association, amicus curiae, submitted a brief.     SACKS, J.  Defendant GateHouse Media Massachusetts I, Inc. (GateHouse), publisher of the Patriot Ledger newspaper, appeals from a separate and final judgment under Mass.R.Civ.P. 54(b), 365 Mass. 821 (1974), declaring that David King, who had delivered the Patriot Ledger by automobile to some of its subscribers, was, under G. L. c. 149, § 148B (§ 148B), GateHouse’s employee rather than an independent contractor.  Gatehouse also appeals from the denial of its motion for relief from the rule 54(b) judgment, which asserted that the relevant portion of § 148B is preempted by the Federal Aviation Administration Authorization Act of 1994 (FAAAA), codified at 49 U.S.C. § 14501(c)(1).  We affirm.[2] Background.  We recount certain undisputed material facts from the summary judgment record, reserving for later discussion the details of GateHouse’s contract with King.  GateHouse, a subsidiary of New York-based GateHouse Media, “publishes and distributes” a variety of daily and weekly newspapers within Massachusetts.  Gatehouse describes itself as a publisher and distributor of publications in its “Wholesale Agreements” with newspaper delivery drivers such as King.  GateHouse employs a sales and advertising department, which works to increase circulation and advertising revenue.  Among GateHouse’s newspapers is the Patriot Ledger, published on all five weekday afternoons and on Saturday mornings. GateHouse distributes the Patriot Ledger out of a distribution center in Braintree, employing supervisors, district managers, distribution managers, and others to manage that process.  GateHouse has three main distribution methods.  First, to distribute the newspaper to residential and business subscribers, GateHouse enters into agreements with individual carriers,[3] whom it classifies as independent contractors.  The carriers are required […]

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