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Mello v. Killeavy

Supreme Court of Rhode Island

April 23, 2019

Joshua Mello
Sean Killeavy.

          Providence County Superior Court PC 16-4593 Associate Justice Maureen B. Keough

          For Plaintiff: Ronald J. Resmini, Esq.

          For Defendant: Mark T. Reynolds, Esq. David E. Maglio, Esq. Scott F. Bielecki, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.



         In this 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.[1] 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.

         I Facts and Travel

         After a 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.

         On 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.[2] 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.

         On 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.[3] 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.[4] Killeavy later propounded requests for admissions upon Mello.[5]

         On 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.

         A 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 Act.[6] 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.

         In the 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.

         On April 27, 2017, Mello prematurely appealed to this Court.[7] 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.

         II ...

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