Duffy v. Amica Mutual Insurance Co. (Lawyers Weekly No. 11-041-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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 14-P-1707 Appeals Court JOHN DUFFY, D.C. vs. AMICA MUTUAL INSURANCE CO. No. 14-P-1707. Middlesex. January 11, 2016. – April 8, 2016. Present: Katzmann, Milkey, & Hanlon, JJ. Insurance, Motor vehicle personal injury protection benefits, Coordination-of-benefits clause, Unfair act or practice. Contract, Insurance, Coordination of benefits clause. Consumer Protection Act, Insurance. Civil action commenced in the Lowell Division of the District Court Department on May 14, 2010. The case was heard by J. Elizabeth Cremens, J., on motions for summary judgment. Francis A. Gaimari for the plaintiff. Charles G. Devine, Jr. for the defendant. KATZMANN, J. This appeal presents the principal question whether summary judgment was appropriately allowed against a health care provider which, though having failed to coordinate benefits between the insured’s auto insurer and the insured’s health insurer, claimed entitlement to unpaid Personal Injury Protection (PIP) benefits under the compulsory motor vehicle liability insurance scheme contained in G. L. c. 90, §§ 34A-34Q.[1] The plaintiff, John Duffy, D.C., a corporation providing chiropractic services (we refer to the corporation and the individual as Duffy),[2] appeals from a decision and order of the Appellate Division of the District Court affirming a summary judgment granted by a District Court judge to the defendant, auto insurer Amica Mutual Insurance Company (Amica), on Duffy’s action for recovery of $ 394.44 in PIP benefits. Duffy had treated Amica’s insured, Sandra Cormier, and he alleges that the PIP benefits were due him as an unpaid party pursuant to G. L. c. 90, § 34M.[3] He also claims that he was entitled to recover damages and attorney’s fees and costs pursuant to G. L. c. 90, § 34M, and G. L. c. 93A, § 11.[4] We affirm. Discussion. “We review the disposition of a motion for summary judgment de novo . . . to determine whether all material facts have been established such that the moving party is entitled to judgment as a matter of law[;] . . . [w]e construe all facts in favor of the nonmoving party, . . . and we may consider any grounds that support the motion judge’s ruling.” American Intl. Ins. Co. v. Robert Seuffer GmbH & Co. KG., 468 Mass. 109, 113, cert. denied, 135 S. Ct. 871 (2014) (quotations and citations omitted). The essence of the parties’ dispute is the question whether Amica’s obligation to pay unpaid portions of Duffy’s bills was ever triggered. Amica initially denied all […]
N-Tek Construction Services, Inc. v. Hartford Fire Insurance Company (Lawyers Weekly No. 11-028-16)
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 14-P-1483 Appeals Court N-TEK CONSTRUCTION SERVICES, INC. vs. HARTFORD FIRE INSURANCE COMPANY. No. 14-P-1483. Essex. November 5, 2015. – March 14, 2016. Present: Agnes, Sullivan, & Blake, JJ. Public Works, Payment bond. Surety. Notice. Bond, Public works, Construction contract bond. Contract, Public works, Construction contract, Bond, Surety. Civil action commenced in the Superior Court Department on November 18, 2010. After transfer within the Superior Court Department, the case was heard by Timothy Q. Feeley, J. Edward J. Quinlan for the plaintiff. John W. DiNicola, II, for the defendant. AGNES, J. In this case we address the notice provision contained in G. L. c. 149, § 29, as amended by St. 1972, c. 774, § 5 (§ 29),[1] in the context of a $ 23.29 million publicly funded project to repair a bridge in Gloucester (project). In particular, we decide whether the electronic mail message (e-mail) notice given by the claimant, N-Tek Construction Services, Inc. (N-Tek), to the general contractor, SPS New England, Inc. (SPS), satisfied § 29. N-Tek contends that the Superior Court judge, who tried this case without a jury, erred in concluding that the e-mail sent to SPS by N-Tek’s principal failed to satisfy the requirements of § 29. For the reasons that follow, we affirm. SPS, the general contractor, posted a payment bond from a surety, Hartford Fire Insurance Company (Hartford). N-Tek filed the underlying action, seeking recovery against SPS’s bond pursuant to G. L. c. 149, § 29, based on its claim that it had not been fully paid for its work furnished to a subcontractor, Seaway Coatings, Inc. (Seaway). N-Tek sought to reach and apply the payment bond funds to satisfy outstanding invoices. Hartford denied liability. After a bench trial, the judge found that N-Tek did not provide sufficient written notice of its bond claim to SPS as required by § 29, and ordered judgment to enter for Hartford. On appeal, N-Tek argues that the judge misinterpreted § 29 by imposing an added requirement that the notice “include and communicate an intent to assert a claim against the [g]eneral [c]ontractor’s” bond, based on Federal cases construing the Miller Act, 40 U.S.C. §§ 3131-3134 (2002), the Federal analogue to § 29.[2] Facts. We summarize the facts found by the judge, supplemented by undisputed parts of the record. 1. Project. On August 14, 2008, the Massachusetts Highway Department (department)[3] […]
Insurance Company of the State of Pennsylvania v. Great Northern Insurance Company (Lawyers Weekly No. 10-030-16)
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 SJC-11897 INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA vs. GREAT NORTHERN INSURANCE COMPANY. Suffolk. November 2, 2015. – March 7, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Workers’ Compensation Act, Insurer, Coverage, Election of remedies. Insurance, Workers’ compensation insurance, Contribution among insurers, Insurer’s obligation to defend. Contribution. Tender. Election of Remedies. Certification of a question of law to the Supreme Judicial Court by the United States District Court for the District of Massachusetts. Barbara I. Michaelides, of Illinois (Aaron S. Bayer, of Connecticut, with her) for the plaintiff. Jennifer C. Sheehan (Richard J. Shea with her) for the defendant. Laura Meyer Gregory, for Massachusetts Defense Lawyers Association, amicus curiae, submitted a brief. GANTS, C.J. The United States Court of Appeals for the First Circuit certified the following question to this court, pursuant to S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981): “Where two workers’ compensation insurance policies provide coverage for the same loss, may an insured elect which of its insurers is to defend and indemnify the claim by intentionally tendering its defense to that insurer and not the other and thereby foreclose the insurer to which tender is made from obtaining contribution from the insurer to which no tender is made?” We answer “no” to the question. Where, as here, two primary workers’ compensation insurance policies provide coverage for the same loss arising from injury to an employee, the insurance company that pays the loss has a right of equitable contribution to ensure that the coinsurer pays its fair share of the loss. The employer of the injured employee may not prevent the insurance company that pays the loss from exercising its right of equitable contribution by intentionally giving notice of the injury only to that insurer.[1] Background. We set forth below the relevant background and procedural history of the case contained in the certification order from the First Circuit, occasionally supplemented by undisputed information in the record. In January, 2010, an employee of Progression, Inc. (Progression), was severely injured in an automobile accident while traveling abroad on a business trip. Progression had purchased two workers’ compensation policies from two different insurers, one providing compulsory workers’ compensation coverage from the Insurance Company of the State of Pennsylvania (ISOP), […]
H.P. Hood LLC v. Allianz Global Risks US Insurance Company (Lawyers Weekly No. 11-173-15)
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 14-P-1605 Appeals Court H.P. HOOD LLC vs. ALLIANZ GLOBAL RISKS US INSURANCE COMPANY. No. 14-P-1605. Suffolk. September 2, 2015. – November 2, 2015. Present: Meade, Wolohojian, & Milkey, JJ. Contract, Insurance. Insurance, “All risk” policy, Construction of policy, Coverage, Property damage. Practice, Civil, Summary judgment. Civil action commenced in the Superior Court Department on November 5, 2010. The case was heard by Christine M. Roach, J., on motions for summary judgment. Steven L. Schreckinger for the plaintiff. Kristin A. Heres for the defendant. MILKEY, J. Plaintiff H.P. Hood LLC (Hood) suffered various losses when a bottled beverage it was producing for another company failed certain quality control measures. At issue is whether those losses are covered by the “all risks” property insurance policy that Hood had purchased from the defendant, Allianz Global Risks US Insurance Company (Allianz). On cross motions for summary judgment, a Superior Court judge ruled in Allianz’s favor, concluding that Hood’s losses fell within certain exclusions to the policy. Because we agree that any potentially covered losses are excluded, we affirm. Background. The product. The essential facts are not in dispute. The product at issue is a milk-based specialty drink marketed by Abbott Laboratories (Abbott) under the trade name Myoplex. Myoplex is a “shelf stable” beverage, meaning that it is designed to require refrigeration only after its bottles are opened. In order to ensure that the product does not spoil before that, it must be manufactured and bottled under strict aseptic conditions, and its bottles must stay hermetically sealed until consumers open them. The contract between Hood and Abbott. In November of 2008, Abbott and Hood entered into a contract under which Hood would produce at least forty million bottles of Myoplex in the first year. The contract, which was termed a “contract packaging agreement,” required Hood to conduct quality control testing. Attachments to the contract, and subsequent written and oral agreements, added specificity to the particular tests and protocols that Hood agreed to use. Some of the required testing was designed to ensure that the Myoplex was contaminant-free during the production and bottling process (that is, up until the point the bottles were ready for distribution). None of that testing revealed any contamination or other problems in any of the relevant bottles. Other testing was designed to ensure that the […]
Nurse v. Omega US Insurance, Inc. (Lawyers Weekly No. 11-156-15)
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 14-P-653 Appeals Court KARL NURSE vs. OMEGA US INSURANCE, INC. No. 14-P-653. Suffolk. January 13, 2015. – October 5, 2015. Present: Trainor, Vuono, & Hanlon, JJ. Insurance, Coverage, Water damage. Contract, Insurance. Limitations, Statute of. Practice, Civil, Summary judgment, Declaratory proceeding, Statute of limitations, Commencement of action. Civil action commenced in the Superior Court Department on December 28, 2011. The case was heard by Edward P. Leibensperger, J., on a motion for summary judgment. James M. Dunn for the plaintiff. Thomas M. Prokop for the defendant. VUONO, J. This case arises from the denial of coverage by the defendant, Omega US Insurance, Inc. (Omega[1]), for water damage to a multi-unit residence owned by the plaintiff, Karl Nurse. The damage is alleged to have been caused by a burst pipe which resulted from frigid weather. A judge of the Superior Court granted summary judgment in favor of Omega on the ground that Nurse’s action for declaratory relief and breach of contract was barred by the two-year statute of limitations set forth in G. L. c. 175, § 99, Twelfth (the statute or § 99), and incorporated as a provision of the policy.[2] While there is no dispute that Nurse did not commence this action within two years of the date the loss occurred, he contends that his complaint was nevertheless timely because the so-called “discovery rule” applies to toll the statute of limitations period. We conclude that the discovery rule does not apply in these circumstances and, therefore, summary judgment was proper. Background. The material facts, in the light most favorable to Nurse, the nonmoving party, are as follows.[3] Nurse owns a three-unit residence (property or building) located at 294 Shawmut Avenue in Boston. The property was insured under a dwelling policy issued by Omega for the period from April 27, 2009, to April 27, 2010. The policy was subject to the requirements of G. L. c. 175, § 99, Twelfth, which sets forth standard terms applicable to all fire insurance policies in the Commonwealth including a two-year statute of limitations for any claims covered by such policies.[4] In December, 2009, the property was vacant except for ongoing construction work in the third-floor unit, which required that the plumbing supplying water to that unit remain active.[5] Both December 17 and December 18 were extremely cold days with high temperatures reported at […]
Hawley, et al. v. Preferred Mutual Insurance Company (Lawyers Weekly No. 11-146-15)
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 14-P-917 Appeals Court LINDA HAWLEY & another[1] vs. PREFERRED MUTUAL INSURANCE COMPANY. No. 14-P-917. Hampden. April 10, 2015. – September 16, 2015. Present: Cypher, Trainor, & Katzmann, JJ. Insurance, Reference process, Arbitration, Coverage, Water damage. Contract, Insurance. Consumer Protection Act, Insurance, Unfair act or practice. Limitations, Statute of. Practice, Civil, Statute of limitations, Consumer protection case. Civil action commenced in the Superior Court Department on June 2, 2008. The case was heard by Cornelius J. Moriarty, II, J. James E. Grumbach for the plaintiffs. Jeffrey L. McCormick for the defendant. KATZMANN, J. This appeal arises from a dispute between an insurer and its insured, based on a denial of coverage for water damage, and largely concerns the question whether the insured’s mere request for a reference for arbitration pursuant to G. L. c. 175, § 99, Twelfth, as appearing in St. 1951, c. 478, § 1, operates to toll the statute of limitations period contained in § 99 and incorporated by the insurance policy.[2] We conclude that it does not. On November 12, 2012, after a seven-day bench trial, a Superior Court judge issued a ruling in favor of the defendant, Preferred Mutual Insurance Company (Preferred), on a breach of contract claim and an unfair and deceptive insurance practicesclaim under G. L. c. 93A and G. L. c. 176D. The decision was based on the grounds that the breach of contract claim was barred by the statute of limitations and that there were no facts to support the claim that Preferred acted unfairly or deceptively in denying the insurance claim or in its failure to proceed to reference. A second amended judgment entered on February 11, 2013, and the insureds, Linda and Robert Hawley (the Hawleys), appealed. We affirm on the grounds that (1) the breach of contract claim was filed outside the statute of limitations, as the request for reference did not toll the statute of limitations, and, even if it had, the complaint was not filed within a reasonable time after the denial of the request for reference; and (2) because the loss at issue did not fall within the policy, the c. 93A and c. 176D claims also fail. Background. The facts as found by the Superior Court judge are as follows. Linda Hawley owns the dwelling at issue and Robert Hawley manages it. The dwelling is a […]
Commerce Insurance Co., Inc. v. Gentile, et al. (Lawyers Weekly No. 10-156-15)
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 SJC-11706 COMMERCE INSURANCE CO., INC. vs. VITTORIO GENTILE & others.[1] September 16, 2015. Insurance, Motor vehicle insurance, Coverage, Misrepresentation. Motor Vehicle, Insurance, Permission to operate. Contract, Insurance. Practice, Civil, Summary judgment. This case concerns the obligation of Commerce Insurance Company (Commerce) to pay optional bodily injury benefits under a standard Massachusetts automobile insurance policy. The defendants Vittorio and Lydia Gentile (Gentiles) were the policyholders, and their grandson Vittorio Gentile, Jr. (Junior), was an “excluded operator” under the policy. While operating one of the Gentiles’ vehicles covered by the policy, Junior caused an accident that seriously injured Douglas and Joseph Homsi (Homsis).[2],[3] Commerce sought a judgment declaring that the Gentiles’ violation of the operator exclusion form relieved it of any duty to pay the Homsis under the optional bodily injury provisions of the insurance contract.[4] A Superior Court judge ruled that the Gentiles had violated their duty of “continuing representation” (as to whether Junior was in fact operating their vehicles), and therefore, Commerce was relieved of its duty to pay the optional coverage for the Homsis’ injuries. The Appeals Court affirmed the judgment on that basis and on the basis that the Gentiles had committed a breach of the insurance contract. Commerce Ins. Co. v. Gentile, 85 Mass. App. Ct. 67 (2014). We granted further appellate review. Facts. The Gentiles purchased through Commerce the standard Massachusetts automobile insurance policy, seventh edition, which was approved by the Commissioner of Insurance (commissioner). The policy insured both the Gentiles and their vehicles. A section of the policy titled “Our Agreement” provided that “[t]his policy is a legal contract under Massachusetts law.” It stated further that “[o]ur contract consists of this policy, the Coverage Selections Page, any endorsements agreed upon, and your application for insurance.” The policy included a separate operator exclusion form, which also was approved by the commissioner. In 2004, after receiving advice from the insurance agent that their premium would be significantly higher if Junior operated their vehicles, Lydia, as the “[p]olicyholder”, and Junior as the “[e]xcluded [o]perator” both executed the operator exclusion form. The form stated that Junior would not operate the Gentiles’ insured vehicles: “It is agreed that the person named below [i.e., Junior] will not operate the vehicle(s) described below, or any replacement thereof, under any circumstances whatsoever.” Another provision of the form allowed […]
Boyle, et al. v. Zurich American Insurance Company (Lawyers Weekly No. 10-155-15)
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 SJC-11791 JOSEPH P. BOYLE & another[1] vs. ZURICH AMERICAN INSURANCE COMPANY. Middlesex. April 6, 2015. – September 14, 2015. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ. Insurance, Insurer’s obligation to defend, Notice, Settlement of claim. Notice, Insurance claim. Consumer Protection Act, Insurance, Unfair or deceptive act. Practice, Civil, Damages. Civil action commenced in the Superior Court Department on June 27, 2011. The case was heard by Kenneth W. Salinger, J. The Supreme Judicial Court granted an application for direct appellate review. John T. Harding (Rachel M. Davison with him) for the defendant. Michael K. Gillis (David R. Bikofsky & Joseph I. Rogers with him) for the plaintiff. The following submitted briefs for amici curiae: Laura Foggan, of the District of Columbia, & Rosanna Sattler for Complex Insurance Claims Litigation Association. Anthony R. Zelle & Robert J. Maselek, Jr., for Massachusetts Defense Lawyers Association. Charlotte E. Glinka, Thomas R. Murphy, & J. Michael Conley for Massachusetts Academy of Trial Attorneys. LENK, J. Joseph P. Boyle was injured by an exploding tire in an automobile repair shop operated by C&N Corporation (C&N). Joseph[2] and his wife, Janice M. Boyle, filed a complaint against C&N, asserting claims for bodily injury and loss of consortium. C&N held an insurance policy issued by Zurich American Insurance Company (Zurich). The policy required that C&N provide notice to Zurich of any suit brought against it. C&N informed Zurich about Joseph’s injury. It did not notify Zurich about the lawsuit, but the Boyles’ counsel eventually did. Zurich did not defend against the suit. C&N defaulted, and judgment by default was entered for the Boyles. Subsequently, the Boyles brought suit against Zurich, asserting both their individual claims and the claims of C&N, which, in the interim, C&N had assigned to the Boyles. In return for a negotiated sum of money, the Boyles released the claims that they had asserted on their own behalf; these individual claims arose from Zurich’s asserted failure to settle the Boyles’ personal injury action when liability had become reasonably clear. After a jury-waived trial on C&N’s claims against Zurich, a Superior Court judge determined that Zurich had committed a breach of its contractual duty to defend C&N. The judge declined to award the Boyles (as C&N’s assignees) multiple damages, […]
Merchants Insurance Group v. Spicer, et al. (Lawyers Weekly No. 11-134-15)
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 14-P-798 Appeals Court MERCHANTS INSURANCE GROUP vs. KEVIN SPICER[1] & others.[2] No. 14-P-798. Suffolk. March 4, 2015. – September 9, 2015. Present: Cohen, Hanlon, & Sullivan, JJ. Insurance, Workers’ compensation insurance. Workers’ Compensation Act, Coverage, Jurisdiction of court, Jurisdiction of Industrial Accident Board. Jurisdiction, Superior Court, Administrative matter. Administrative Law, Exhaustion of remedies. Practice, Civil, Declaratory proceeding. Civil action commenced in the Superior Court Department on June 19, 2012. The case was heard by Elizabeth M. Fahey, J., on a motion for relief from judgment. Darrel Mook (Patricia B. Gary with him) for the plaintiff. Douglas S. Martland for the intervener. COHEN, J. The central question presented in this appeal is whether an insurer may bring an action in Superior Court to retroactively void a workers’ compensation policy while an injured employee’s claim under that policy is pending in the Department of Industrial Accidents (DIA). The plaintiff, Merchants Insurance Group (Merchants), claiming fraud in the inducement, initiated such an action, and, there being no opposition from the insured employer or the injured employee, secured a declaratory judgment in its favor. Subsequently, however, a judge of the Superior Court reopened the case at the request of the employee and the Workers’ Compensation Trust Fund (Fund)[3] and dismissed Merchants’ complaint, without prejudice, for lack of subject matter jurisdiction. Upon review of Merchants’ appeal from the judgment of dismissal, we conclude that the judge correctly ruled that its claim for rescission of the workers’ compensation policy was subject to the doctrine of exhaustion of administrative remedies, and could not be pursued in the Superior Court. For this and other reasons explained below, we affirm the judgment of dismissal. Background. On December 30, 2011, Joel Estaban Perez was seriously injured while working for Kevin Spicer, doing business as Uptown Landscaping (Spicer).[4] Perez sought workers’ compensation benefits under a policy issued by Merchants to Spicer, and Merchants contested the claim.[5] After an informal conference, a DIA administrative judge ordered Merchants to pay Perez weekly temporary total incapacity benefits, pursuant to G. L. c. 152, § 34, and medical benefits, pursuant to G. L. c. 152, §§ 13, 30, pending an evidentiary hearing on the merits. Both parties appealed the interim conference order and requested a formal hearing pursuant to G. L. c. 152, § 11. In June, 2012, while Perez’s DIA case was awaiting the formal […]
The Home Insurance Company v. Workers’ Compensation Trust Fund (Lawyers Weekly No. 11-127-15)
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 14-P-1356 Appeals Court THE HOME INSURANCE COMPANY vs. WORKERS’ COMPENSATION TRUST FUND. No. 14-P-1356 Suffolk. June 2, 2015. – September 3, 2015. Present: Vuono, Grainger, Blake, JJ. Workers’ Compensation Act, Reimbursement of insurer, Cost of living allowance. Insurance, Insolvency of insurer. Practice, Civil, Standing. Administrative Law, Agency’s interpretation of statute. Statute, Construction. Appeal from a decision of the Industrial Accident Reviewing Board. Eric A. Smith (Donald E. Wallace with him) for the plaintiff. Douglas S. Martland, Assistant Attorney General, for the defendant. W. Frederick Uehlein & Dorothy M. Linsner, for Lumbermens Mutual Casualty Company, amicus curiae, submitted a brief. Joseph C. Tanski, Gregory P. Deschenes, & Kurt M. Mullen, for Massachusetts Insurers Insolvency Fund, amicus curiae, submitted a brief. GRAINGER, J. We are called upon to analyze certain rights and obligations resulting from the liquidation of a New Hampshire insurance company that issued workers’ compensation policies in Massachusetts. At issue in this appeal is the company’s entitlement pursuant to G. L. c. 152, § 65(2), to reimbursement for cost of living adjustments (COLA, COLA increases), as prescribed by G. L. c. 152, § 34B, to eleven individuals receiving workers’ compensation benefits. Both an administrative judge (judge) and the reviewing board (board) of the Department of Industrial Accidents (DIA) determined, albeit on different rationales, that the company was not entitled to reimbursement. Background. The undisputed facts, excerpted below, are recounted in detail in the board’s comprehensive decision. COLA payments as part of the workers’ compensation scheme. Persons receiving workers’ compensation benefits in Massachusetts are entitled to receive annual COLA increases to reflect changes in the cost of living. See G. L. c. 152, § 34B. These COLA increases are funded, then subject to reimbursement, as follows: Revenues to fund the defendant Workers’ Compensation Trust Fund (trust fund) are raised by an annual assessment[1] on employers pursuant to G. L. c. 152, § 65. Under normal circumstances (i.e., involving solvent insurers), the yearly assessments are collected from employers by their insurers such as the plaintiff Home Insurance Company (Home), who transmit them to the trust fund. The insurers then pay the COLA increases together with other monthly benefits to injured workers. See G. L. c. 152, § 65(2). This, in turn, entitles the insurers to reimbursement from the trust fund for the COLA payments on a quarterly basis. Ibid. Home’s […]