Providence County Superior Court PC 16-4593 Associate Justice
Maureen B. Keough
Plaintiff: Ronald J. Resmini, Esq.
Defendant: Mark T. Reynolds, Esq. David E. Maglio, Esq. Scott
F. Bielecki, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
GILBERT V. INDEGLIA JUSTICE
negligence action, the plaintiff, Joshua Mello (Mello),
appeals from a Superior Court grant of summary judgment in
favor of the defendant, Sean Killeavy (Killeavy), based on
the exclusivity provision of the Workers' Compensation
Act, G.L. 1956 § 28-29-20 (the exclusivity provision).
On appeal, Mello contends that, despite the limitation on
remedies contained in the exclusivity provision, G.L. 1956
§ 28-35-58 allows him to bring a claim against his
fellow employee for tortious acts of the coemployee that were
outside the scope of employment, even after he collected
workers' compensation benefits. This matter came before the
Court on March 6, 2019, for oral argument after full briefing
of the issues. For the reasons outlined below, we affirm the
judgment of the Superior Court.
Facts and Travel
careful review of the record, we recite the following
pertinent facts. Mello and Killeavy were both employees of
Ramsay's, Inc. (Ramsay's), a small, family-owned
company that provides maintenance and groundskeeping services
for cemeteries in Rhode Island. Killeavy had worked as a
seasonal laborer for Ramsay's since August 2015.
Beginning in December 2008, Ramsay's employed Mello,
first as a laborer, and later as a crew chief. The two
employees apparently enjoyed a friendly relationship, and
they engaged in practical jokes while on the job.
Unfortunately, one such prank went too far.
August 17, 2016, Mello and Killeavy were working at St.
Mary's Cemetery in Bristol, Rhode Island. At one point
during the workday, while Mello was occupying a bathroom
stall, Killeavy, using a gas canister that he found on the
job site, poured gasoline onto the bathroom floor as a
practical joke. Expecting only to create a loud
"popping" noise to scare Mello, Killeavy ignited
the gasoline. Unbeknownst to Killeavy, however, the
gasoline had flowed into the stall that Mello occupied, and,
when the gasoline burst into flames, Mello was injured. As a
result, Mello was hospitalized with significant burns,
leaving him unable to work for over a year. On September 7,
2016, Ramsay's, through its workers' compensation
insurer, The Beacon Mutual Insurance Company, filed a
memorandum of agreement with the Rhode Island Department of
Labor and Training providing for workers' compensation
benefits to be paid to Mello, and Mello accepted the
benefits. Additionally, on October 14, 2016, after having
learned of the details of the incident, the owner of
Ramsay's fired Killeavy.
September 30, 2016, Mello filed a complaint in Providence
County Superior Court against Killeavy, alleging negligence
and stating that "[o]n or about August 17, 2016 the
[p]laintiff was at all times in the exercise of due care and
performing duties on behalf of his employer" when the
accident occurred. Killeavy answered, denying Mello's
claims; he additionally sought defense and indemnity in this
action pursuant to his parents' homeowners' insurance
policy. He also sought defense and indemnity from
United Ohio Insurance Company, which had provided both a
commercial package insurance policy and a commercial excess
insurance policy to Ramsay's at the time of the
incident. Killeavy later propounded requests for
admissions upon Mello.
February 21, 2017, Killeavy filed a motion for summary
judgment, along with a statement of undisputed facts, arguing
that the exclusivity provision of the Workers'
Compensation Act barred Mello's negligence claim because
Mello had accepted workers' compensation benefits from
his employer for an injury occasioned by the acts of a fellow
employee while on the job. In his memorandum in opposition to
Killeavy's motion, Mello did not dispute Killeavy's
statement of undisputed facts. However, he argued that,
because Killeavy may have been on a lunch break at the time
the injury occurred, Killeavy would not be considered an
"employee" at the time of the incident and that
§ 28-35-58 would allow Mello to maintain a separate
cause of action against Killeavy as a "third
party," despite Mello's acceptance of workers'
compensation benefits. Along with his opposition memorandum,
Mello attached correspondence from Ramsay's noting that
meal breaks were noncompensable. Mello also provided the
court with a copy of the transcript of the deposition of
Enzly Ramsay, the owner of Ramsay's, who noted that his
company had no set time or policy for when employees could
take their lunch breaks and that Mello, as supervisor, would
have had discretion to decide when to take them.
hearing on Killeavy's motion for summary judgment was
held on April 21, 2017. Mello argued that Ramsay's
provided him workers' compensation benefits before
investigating whether or not Mello's injury occurred
while he was on a lunch break. However, Mello admitted that,
under Rhode Island law, even if an employer improperly
granted workers' compensation benefits, the employee is
bound by the provisions of the Workers' Compensation
Mello then reiterated his argument that his injury had not
occurred in the course of Killeavy's employment because
Killeavy was on lunch break at the time. Additionally, he
contended that Killeavy's act was so egregious that it
was outside the scope of his employment with Ramsay's. In
response to the hearing justice's inquiry as to why Mello
had alleged that he received the injury while
"performing duties on behalf of his employer,"
Mello's attorney replied that he had not been told about
the lunch break at the time, but had changed his theory of
the case once Mello informed him of the full story. However,
Mello admitted that he had not sought to amend his complaint
at any time to articulate his new theory.
end, the hearing justice granted Killeavy's motion for
summary judgment. She first noted that the main issue in the
case was the application of the exclusivity provision to
Mello's negligence claim. The hearing justice interpreted
the exclusivity provision as providing immunity to employers
and employees, and quoted our opinion in Manzi v.
State, 687 A.2d 461 (R.I. 1997) (mem.), in which we
stated that the Workers' Compensation Act "bars a
plaintiff from filing a second cause of action on the basis
of a different legal theory in circumstances in which a
plaintiff seeks recovery for the same injuries on which his
or her workers' compensation claim was based."
Manzi, 687 A.2d at 462. Moreover, she cited several
of our opinions in reasoning that "it is well settled
that there is no exception to this particular provision for
intentional torts or wrongful conduct of a fellow
employee." The hearing justice then stated that, by
accepting workers' compensation benefits, Mello had
waived any right he might have had to challenge whether he
was injured during the course of his employment. She
concluded by finding that the caselaw and statutes were
clear: There was no exception to the immunity granted to
coemployees under the exclusivity provision, which meant that
Mello could not maintain his suit against Killeavy.
April 27, 2017, Mello prematurely appealed to this
Court. On May 16, 2017, an order entered granting
Killeavy's motion for summary judgment, and final
judgment entered in favor of Killeavy that same day.