IRELAND, C.J.
We granted the defendant's application for further appellate review in order to determine whether, pursuant to G. L. c. 152, § 23, a general contractor that pays workers' compensation benefits to an employee of an uninsured subcontractor, is immune from liability for common-law claims the employee may have against that general contractor. A Superior Court judge concluded that § 23 provided the defendant such immunity from wrongful death and negligence claims commenced by the plaintiff against it, and allowed the defendant's motion for summary judgment. The Appeals Court concluded that the allowance of the motion was error. Wentworth v. Henry C. Becker Custom Bldg. Ltd., 76 Mass.App.Ct. 507, 512 (2010). Because we conclude that § 23 applies only where the employee is directly employed by the insured, we vacate the entry of summary judgment for the defendant and remand the case for further proceedings consistent with this opinion.
Overview of statutory scheme. We begin with a review of the relevant sections of the workers' compensation act.
Employers are required by law to provide workers' compensation insurance, and suffer penalties for failing to do so. G. L. c. 152, §§ 25A & 25C. An "[i]nsured" is defined, in relevant part, as "an employer who has provided insurance for payment to his employees by an insurer of [workers'] compensation" (emphasis added). G. L. c. 152, § 1 (6). An "[e]mployee" is defined, with exceptions not relevant here, as "every person in the service of another under any contract of hire, express or implied, oral or written." G. L. c. 152, § 1 (4).
Under G. L. c. 152, § 23, "[i]f an employee accepts payment of compensation under this chapter on account of personal injury ... such action shall constitute a release to the insured of all claims or demands at common law, if any, arising from the injury."
Where an injured worker is an employee of an uninsured subcontractor, the insurance carrier of the general contractor that entered into a contract with that subcontractor is required to
Also relevant is G. L. c. 152, § 15, under which employees have the right to sue liable third parties for their injuries. Until 1971, under the so-called "common employment" doctrine, a general contractor was immune from third-party suits filed by employees of subcontractors for personal injuries sustained on the job. See Searcy v. Paul, 20 Mass.App.Ct. 134, 138-139 (1985). In 1971, § 15 was amended by St. 1971, c. 941, § 1, to limit immunity from suit only to situations where "(1) the employer [is] an insured person liable for the payment of compensation, and (2) the employer [is] the direct employer of the employee" (emphasis added). Lang v. Edward J. Lamothe Co., 20 Mass.App.Ct. 231, 232 (1985).
Facts and background. We present the essential undisputed facts.
In 2005, the defendant was the general contractor at a residential construction site in Newburyport. It hired a subcontractor, Great Green Barrier Co. (Great Green), to perform waterproofing work on the residence. An explosion at the site resulted in the death of Timothy B. Wentworth and serious injuries to Timothy's son, Ezekiel, both of whom were Great Green employees.
Great Green did not carry workers' compensation insurance. In 2007, pursuant to G. L. c. 152, § 18, the defendant's insurer agreed to lump-sum settlements of Timothy and Ezekiel's workers' compensation claims.
In its motion for summary judgment, the defendant argued that, under G. L. c. 152, § 23, by the acceptance of the lumpsum settlements on behalf of Timothy and Ezekiel, the plaintiff was barred from filing her lawsuit for common-law claims. The judge agreed and, citing Kniskern v. Melkonian, 68 Mass.App.Ct. 461 (2007), and Russell v. Downell, 60 Mass.App.Ct. 1126 (2004), an unpublished memorandum and order of the Appeals Court, allowed the defendant's motion. The plaintiff appealed.
The plaintiff argues, in essence, that, because Russell v. Downell, supra, was erroneously decided, the judge erred in allowing the defendant's motion for summary judgment. She contends that, under the plain language of § 23, the defendant is not an "insured"; Timothy and Ezekiel are not the defendant's "employees"; and, therefore, the defendant is not entitled to immunity from common-law claims. We agree. Immunity under the act applies to the "[i]nsured," which is an employer who provides workers' compensation insurance to "his employees." G. L. c. 152, § 1 (6). Here, it is undisputed that Timothy and Ezekiel were not employees of the defendant. We conclude that the plain language of § 23 does not release a general contractor that pays workers' compensation benefits to its uninsured subcontractor's employee.
Moreover, under the plain language of G. L. c. 152, § 15, the fact that the defendant was required, by § 18, to provide workers' compensation benefits to Timothy and Ezekiel, is not a "bar to an action at law for damages for personal injuries ... against any person other than the insured person employing such employee and liable for payment of the [workers'] compensation" (emphasis added). We conclude that the explicit reference to § 18 makes clear that suits are not barred against general contractors that were obligated, under § 18, to pay workers' compensation benefits of the uninsured subcontractor's employees. In sum, the immunity provided under § 23 does not apply to the defendant.
Despite this plain language, the defendant makes a number of arguments to support its contention that our interpretation of § 23 "stretches its plain meaning far beyond the breaking point," because the Legislature did not intend there to be a "`direct employment nexus' between the insured and the injured
Conclusion. The entry of summary judgment is vacated, and the case is remanded to the Superior Court for proceedings consistent with this opinion.
So ordered.
The other cases on which the defendant relies are readily distinguishable. In Berger v. H.P. Hood, Inc., 416 Mass. 652, 655-656 (1993), S.C., 424 Mass. 144 (1997), it is true that the court stated that the "exclusivity provision [of § 23] is very broad." However, the issue was whether an employee who received workers' compensation benefits from his direct employer could also recover from that employer's underinsurance motorist benefits (UM benefits). Id. Thus, it was in the context of addressing the UM benefits that the court concluded that the exclusivity provision of § 23 was broad enough to include immunity from an action against the direct employer's motor vehicle insurer. Id. More important for our purposes, however, is that the court held that the direct employer's wholly owned subsidiary was not entitled to such immunity from claims. Id. at 657. In Kniskern v. Melkonian, 68 Mass.App.Ct. 461, 463-464 (2007), there was a question whether the plaintiff was the defendant's employee. The court held that the plaintiff's employment status was established when the plaintiff accepted a lump-sum settlement pursuant to G. L. c. 152, § 48, which only applies to employees. Id. at 465. Here, as the Appeals Court pointed out, it is undisputed that Timothy and Ezekiel were not the defendant's employees and the parties reached a settlement pursuant to G. L. c. 152, § 18. See Wentworth v. Henry C. Becker Custom Bldg. Ltd., 76 Mass.App.Ct. 507, 510 (2010) (distinguishing Kniskern case).