LENK, J.
At the time of her death on January 20, 2011, twenty-five year old Stephanie Moulton was employed as a residential treatment counsellor at North Suffolk Mental Health Association, Inc. (North Suffolk), a charitable corporation that provides mental health and rehabilitation services.
Several months after her death, Moulton's estate brought a wrongful death action, G.L. c. 229, § 2, in the Superior Court against the directors of North Suffolk (director defendants),
Claiming that the defendants' conduct was "willful, wanton, reckless, malicious and constituted gross negligence," the complaint seeks punitive damages, and separately alleges a breach of fiduciary duty by the director defendants. The gravamen of the complaint against the director defendants is that, as a result of admissions and operating policies that they had effectuated, and others that they had failed to effectuate, those who evaluated clients for residential placement were unaware of Chappell's lengthy history of convictions of violent crimes and his mental health history exhibiting a tendency toward violence. Moreover, as a result of such policies, staff at the facility, such as Moulton, were both unaware of Chappell's history and unequipped to deal with individuals having such a history.
The director defendants moved to dismiss the complaint
In addition to determining that the interlocutory appeal is properly before us under the doctrine of present execution, we conclude that the director defendants, acting as Moulton's employer when adopting or failing to adopt the workplace policies at issue, are immune from suit under the exclusive remedy provision of the act for injuries Moulton sustained while acting within the course of her employment. We conclude also that the directors, as Moulton's employer, owed no fiduciary duty to their employee, and any corrective action for an alleged breach of their fiduciary duty to North Suffolk must be sought by the Attorney General. The complaint against the director defendants accordingly must be dismissed.
The complaint asserts that the director defendants were "responsible for setting, overseeing and enforcing policies, standards and criteria governing the screening and selection of [clients] for residence, treatment and services at [North Suffolk] facilities" ("the admission policy") and were "responsible for setting, overseeing and enforcing policies, standards and criteria governing the qualifications, staffing and training of [North Suffolk] facilities in light of the conditions, situations and problems posed by its [clients]" ("the operating policy"). The complaint alleges that if the director defendants had allowed or required a proper examination of prospective clients, and provided access to information in the possession of referring agencies indicating prospective clients' criminal histories and previous violent tendencies, Chappell would not have been deemed an appropriate client for admission to North Suffolk's Revere facility. Further, had North Suffolk employees at that facility been given information about clients' violent backgrounds, and had they been provided adequate training, staffing, and equipment for the appropriate handling of clients with violent criminal histories and violent tendencies, Moulton would not have been left alone with Chappell and she accordingly would not have been killed. Allegedly because of their own conflicts of interest,
The director defendants maintain that they may not be held individually and personally liable in a wrongful death action for injuries sustained by an employee of a charitable corporation in the course of employment where the corporation is not itself liable due to the exclusive remedy provision of the act. Here, North Suffolk is not liable because the wrongful death statute yields to the exclusive remedy provision of the act. See G.L. c. 229, § 2. Otherwise put, in cases in which an employee sues an employer for wrongful death damages, the provisions of that statute preclude "any civil action for wrongful death of an employee who is subject to the provisions of the workers' compensation laws." Peerless Ins. Co. v. Hartford Ins. Co., 48 Mass.App.Ct. 551, 554 (2000). Maintaining both that Moulton is an employee subject to the provisions of the act and that the term "employer" encompasses not only North Suffolk, but the director defendants as well, the latter assert that they are as a matter of law immune from this wrongful death action.
Compensation under the act is the exclusive remedy for injuries to an employee suffered in the course of employment, regardless of the wrongfulness of the employer's conduct, Foley v. Polaroid Corp., 381 Mass. 545, 551-552 (1980), or the foreseeability of harm. See Saab v. Massachusetts CVS Pharm., LLC, 452 Mass. 564, 567 (2008) (Saab). Enacted in 1911, the act was intended to guarantee that workers would receive payment for any workplace injuries they suffered, regardless of fault; in exchange for accepting the statutory remedies, the worker waives any common-law right to compensation for tort injuries. See St.1911, c. 751, pt. 1, § 5, and pt. 5, § 1; Foley v. Polaroid Corp., supra at 548-549. "Unlike damages in torts, compensation under the act `is by way of relief from inability to earn, or for deprivation of support flowing from, wages theretofore received by the employee.'" Foley v. Polaroid Corp., supra at 552 n. 5, quoting Ahmed's Case, 278 Mass. 180, 183 (1932).
The act eliminates piecemeal tort litigation and tort claims by individual workers, which are time-consuming, expensive, and afford no guarantee of compensation. See Foley v. Polaroid Corp., supra at 548-549. The bargain that is struck by the act provides predictability for both employee and employer, balancing protection for workers with certainty for employers. See Saab, supra at 567, and cases cited. While insured employers forfeit any defenses they might otherwise have had as to fault, they are protected from suit for workplace injuries, and thereby gain predictability and cost containment in conjunction with such injuries. See Wentworth v. Henry C. Baker Custom Bldg., Ltd., 459 Mass. 768, 773 nn. 6, 7 (2011); Correia v. Firestone Tire & Rubber Co., Inc., 388 Mass. 342, 349-350 (1983).
The so-called exclusivity provision of the act does not permit a covered employee both to recover compensation benefits under the act and to sue her employer to recover for an injury covered by the act. The exclusivity provision "has been the cornerstone of our Workers' Compensation Act. Our exclusivity provision is very broad. The Legislature has had opportunities to narrow its scope, and has not done so." Berger v. H.P. Hood, Inc., 416 Mass. 652, 656 (1993). While an employee need not forgo the right to bring common-law tort claims against her employer, and may instead waive any compensation payments under the act, an employee so choosing must notify the employer in writing, at the time of hire, that she does not waive the common-law right of action.
So long as the injuries were sustained while the employee was acting in the course of her employment, as the plaintiff alleges happened here, actions for negligence, recklessness, gross negligence, and wilful and wanton misconduct by an employer are precluded by the exclusive remedy provision. See Saab, supra at 567-568; Fredette v. Simpson, 440 Mass. 263, 266 (2003); Carey v. Governors of Kernwood Country Club, 337 F.Supp.2d 339, 342 (D.Mass.2004). See, e.g., Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 41 (1983) ("serious and willful misconduct" by employer); Dean v. Raytheon Corp., 399 F.Supp.2d 27, 33 (D.Mass.2005) (gross negligence); Sarocco v. General Elec. Corp., 879 F.Supp. 156, 161 (D.Mass.1995) (intentional exposure to toxic chemicals). Actions against an employer under the wrongful death statute, G.L. c. 229, § 2, are likewise precluded by the exclusive remedy provision of the act. See Saab, supra at 570 n. 9, 572; Peerless Ins. Co. v. Hartford Ins. Co., supra. The plaintiff maintains, however, that the director defendants were not Moulton's employer and thus do not enjoy immunity from suit.
Before considering the merits of the director defendants' claims that, as Moulton's employer, they are immune from suit under the wrongful death statute, we consider first whether the director defendants are entitled, by virtue of the doctrine of present execution, to pursue an interlocutory appeal of the denial of their motion to dismiss. An interlocutory order may be appealed under the doctrine of present execution "if the order will interfere with rights in a way that cannot be remedied on appeal from a final judgment." Commonwealth v. Al Saud, 459 Mass. 221, 227 n. 15 (2011), quoting Benoit v. Frederickson, 454 Mass. 148, 151-152 (2009). A defendant has the right to an immediate appeal under the doctrine of present execution where protection from the burden of litigation and trial is precisely the right to which it asserts an entitlement. Kent v. Commonwealth, 437 Mass. 312, 316-317 (2002). See Brum v. Dartmouth, 428 Mass. 684, 688 (1999), citing Matthews v. Rakiey, 38 Mass.App.Ct. 490, 493 (1995) (right to immunity from suit "would be `lost forever' if an order denying it were not appealable until the close of litigation").
The doctrine of present execution requires that the immunity defense be collateral to the rest of the controversy. Maxwell v. AIG Domestic Claims, Inc., 460 Mass. 91, 106 n. 12 (2011), citing Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 673-674 (2008). The director defendants assert such an immunity. The act "`requires that participating employees waive their right to sue in tort for work-related injuries [in order to obtain compensation under the act].' ... In other words, the employer `obtains an immunity from actions at law by his employees.'" Saab, supra at 567, quoting Murphy v. Commissioner of the Dep't of Indus. Accs., 415 Mass. 218, 222 (1993), and L.Y. Nason, C.W. Koziol, & R.A. Wall, Workers' Compensation § 26.1, at 313 (3d ed.2003).
"[T]he denial of a motion to dismiss on immunity grounds is always collateral to the rights asserted in the underlying action because it `is conceptually distinct from the merits of the plaintiff's claim that his rights have been violated.' "Kent v. Commonwealth, supra at 317, quoting Mitchell v. Forsyth, 472 U.S. 511, 527-529 (1985). Therefore, regardless whether the director defendants are correct in their assertion that they are employers immune from liability under the exclusive remedy provision, interlocutory appeal under the doctrine of present execution is permissible to challenge the denial of that contention. We turn to the director defendants' substantive claims.
Given the act's exclusive remedy provision, whether the plaintiff's claims for wrongful death, and punitive damages due to gross negligence and willful, wanton, reckless, and malicious conduct, survive the director defendants' motion to dismiss turns on whether the director defendants were Moulton's "employer." See Green v. Wyman-Gordon Co., 422 Mass. 551, 558 (1996), quoting Foley v. Polaroid Corp., 381 Mass. 545, 548-549 (1980) ("Common law actions are barred by the exclusivity provision of the workers' compensation act where: `the plaintiff is shown to be an employee; his condition is shown to be a "personal injury" within the meaning of the [workers'] compensation act; and the injury is shown to have arisen "out of and in the course of ... employment"'"). Whether directors of a charitable corporation are "employers" for purposes of the act is a matter of first impression for this court.
Under the act, "employers" may be individuals, corporations, or some combination of those in a joint enterprise. The act defines an "[e]mployer" as:
G.L. c. 152, § 1(5). Since the definition of employer states explicitly that nonprofit entities exclusively staffed by volunteers
The complaint in essence asserts that the director defendants have individual and personal liability for the plaintiff's injuries, sustained while the plaintiff was acting within the course of her employment, because they voted to adopt and enforce certain workplace policies and client admissions polices, and failed or declined to adopt and enforce other safety policies and staffing and training requirements. Adoption of corporate policies is achieved by a vote of the board of directors as a whole, acting as the corporation. See Harhen v. Brown, 431 Mass. 838, 844-845 (2000); G.L. c. 156B, § 47 ("Except as reserved to the stockholders ..., the business of every corporation shall be managed by a board of directors"), and cannot be accomplished in the ordinary course by any individual director. See Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 562-563 (1997); Winchell v. Plywood Corp., 324 Mass. 171, 175-177 (1949); Restatement (Second) of Agency § 14C comment b (1958) ("An individual director ... has no power of his own to act on the corporation's behalf, but only as one of the body of directors acting as a board"). Cf. Boston Athletic Ass'n v. International Marathons, Inc., 392 Mass. 356, 364-365 (1984).
"All corporate power shall be exercised by or under the authority of, and the business and affairs of the corporation shall be managed under the direction of, its board of directors...." G.L. c. 156D, § 8.01 (b). A corporation "acts through its board of directors." Aiello v. Aiello, 447 Mass. 388, 402 (2006). See J.D. Cox & T.L. Hazen, Law of Corporations § 9:6 (3d ed.2010). See also Harhen v. Brown, supra at 844 ("as a basic principle of corporate governance, the board of directors ... should set the corporation's business policy"). For a charitable corporation organized under G.L. c. 180, "[i]f a corporation does not have members, any action or vote required or permitted by [G.L. c. 180] to be taken by members of the corporation shall be taken by action or vote of the same percentage of the directors of the corporation." G.L. c. 180, § 3. Such decisions are undertaken by a vote of the board of directors as a whole, acting as the corporation, see American Discount Corp. v. Kaitz, 348 Mass. 706, 710 (1965), citing G.L. c. 156, § 25 ("board of directors may exercise all the powers of the corporation"); Lydia E. Pinkham Med. Co. v. Gove, 305 Mass. 213, 217-218 (1940) (acts of directors are "acts of those who control and manage the corporation"); Stoneman v. Fox Film Corp., 295 Mass. 419, 424-426 (1936); the acts of the board and the corporation are in this sense one and the same. See Morse v. Fall River Line Pier, Inc., 345 Mass. 681, 682-684 (1963); Hurley v. Ornsteen, 311 Mass. 477, 480-481 (1942); Stratton-Massachusetts Gold Mines Co. v. Davis, 222 Mass. 549, 553 (1916). Stated otherwise, the power of the corporation to act is lodged in the board of directors acting collectively. See Harhen v. Brown, supra at 844-845, citing Bartlett v. New York, N.H. & H.R.R., 221 Mass. 530, 532 (1915) (plaintiff must obtain relief through "corporation itself" by making demand on board of directors); Tyler v. Odd Fellows' Mut. Relief Ass'n, 145 Mass. 134, 136 (1887).
The complaint, fairly read, alleges that the director defendants, acting qua directors rather than in any other capacity,
Moreover, to the extent that the complaint alleges that the director defendants had the ability to direct and control the activities of North Suffolk's employees and to implement workplace safety, the complaint thereby impliedly alleges that the director defendants were acting in the capacity of an employer. The right to exercise direction and control is an important factor in determining the existence of an employer-employee relationship. See Dias v. Boston Med. Assocs., Inc., 438 Mass. 317, 322 (2002), quoting Restatement (Second) of Agency § 220 comment d (1958); Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 622-623 (1990), citing Kelly v. Rossi, 395 Mass. 659, 663-664 (1985); Restatement (Second) of Agency, supra at § 220. The provision of a safe work environment, further, is the responsibility of the employer. Massachusetts Highway Dep't v. American Fed'n of State, County, & Mun. Employees, Council 93, 420 Mass. 13, 21 (1995), citing Longever v. Revere Copper & Brass Inc., 381 Mass. 221, 223 (1980). See Carey v. Governors of Kernwood Country Club, 337 F.Supp.2d 339, 343 (D.Mass.2004) (board of governors of country club where employee was killed while working was employer under act and immune from wrongful death suit; plaintiffs' claim that board had duty to maintain safe workplace "logically implies the allegation that an employer/employee relationship existed" between board and decedent employee).
The plaintiff nonetheless attempts to draw a distinction between North Suffolk as Moulton's employer and the director defendants as third parties who may be held individually liable for their tortious acts. It maintains in this regard that the director defendants manipulated North Suffolk's corporate policy for their own purposes, and that in voting on corporate policies and operational procedures, there was a conflict of interest between the votes taken by the director defendants to further their own interests and the corporate purposes of North Suffolk. The contention appears to be that, by acting ultra vires, the director defendants removed themselves from the exclusivity provision of the act and exposed themselves to liability. The contention is unavailing.
Claims for negligence, gross negligence, and even wilful misconduct by the employer, whatever the genesis, are all covered under the exclusive remedy provision of the act. See Saab, supra at 569-570; Doe v. Purity Supreme, Inc., 422 Mass. 563, 565-566 (1996), and cases cited; Anzalone v. Massachusetts Bay Transp. Auth., 403 Mass. 119, 121-125 (1988); G.L. c. 152, §§ 26, 28. See, e.g., Decker v. Black & Decker Mfg. Co., 389 Mass. 35, 41 (1983); Dean v. Raytheon Corp., 399 F.Supp.2d 27, 33 (D.Mass.2005); Sarocco v. General Elec. Corp., 879 F.Supp. 156 (D.Mass.1995). There has been no exception recognized for acts arising from self-dealing or self-interest. To the contrary, compensation is doubled for acts of wilful misconduct. G.L. c. 152, § 28. Hence, even if the allegations of a conflict of interest in the complaint had been pleaded adequately, see discussion, infra, the wrongful death claim against these defendants should have been dismissed.
Given the foregoing, we conclude that the director defendants were Moulton's employer for purposes of the exclusivity provision of the act.
The director defendants contend that their motion to dismiss should have been allowed because, in addition to the plaintiff's failure to set forth in the complaint pertinent allegations that meet the standard set forth in Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008),
A fiduciary relationship is one founded on the trust and confidence reposed by one party in the integrity and fidelity of another. See Locator Servs. Group, Ltd. v. Treasurer & Receiver Gen., 443 Mass. 837, 853-855 (2005), and cases cited. To establish a breach of fiduciary duty, there must be a duty owed to the plaintiff by the defendant and injury to the plaintiff proximately caused by the breach. Zimmerman v. Bogoff, 402 Mass. 650, 660 (1988). Directors of a corporation stand in a fiduciary relationship to that corporation and have a duty to protect its interests "above every other obligation." American Discount Corp. v. Kaitz, 348 Mass. 706, 711 (1965). See Geller v. Allied-Lyons PLC, 42 Mass.App.Ct. 120, 122-123 (1997), citing Colonial Operating Co. v. Poorvu, 306 Mass. 104, 107-108 (1940) (director has duty of loyalty to corporation and must act in good faith to promote its welfare and without promoting personal gain over corporate interests). An employer, however, owes no fiduciary duty to an employee. Sbrogna v. Worcester Stamped Metal Co., 354 Mass. 17, 20 (1968). Thus, as Moulton's employer, the director defendants, acting as a board, had no fiduciary duty to her.
We turn next to the asserted breach of fiduciary duties to North Suffolk, its clients, and the general public. Even had the complaint contained allegations of harm to North Suffolk itself, to any particular North Suffolk client, or to the general public from the director defendants' adoption of the workplace policies, the plaintiff does not have standing to bring an action to protect the public interest in the efficient and lawful operation of a charitable corporation, or to correct any abuse or error in the administration of that corporation. See G.L. c. 12, § 8; Bello v. South Shore Hosp., 384 Mass. 770, 779-780 (1981), quoting Dillaway v. Burton, 256 Mass. 568, 573 (1926) ("[I]t is the exclusive function of the Attorney General to correct abuses in the administration of a public charity by the institution of proper proceedings [under G.L. c. 12, § 8]. It is [her] duty to see that the public interests are protected and to proceed in the prosecution or to decline so to proceed as those interests may require"). If the director defendants knowingly entered into a plan to foist inappropriate clients upon North Suffolk for their own benefit, the pursuit of a remedy for any such asserted breach of fiduciary duty to North Suffolk would lie with the Attorney General, and not the plaintiff. See Weaver v. Wood, 425 Mass. 270, 275 (1997), cert. denied, 522 U.S. 1049 (1998), quoting G.L. c. 12, § 8 ("When a trust is charitable, and is created not to benefit one or more individuals but is devoted to purposes that are beneficial to a broader community, the Legislature has determined that the Attorney General is responsible for ensuring that its charitable funds are used in accordance with the donor's wishes; `[t]he attorney general shall enforce the due application of funds given or appropriated to public charities within the commonwealth and prevent breaches of trust in the administration thereof'").
Absent any duty owed by the director defendants as employer to Moulton as employee, the only basis for any asserted duty by an individual director to Moulton would be a "special relationship." See Locator Servs. Group, Ltd. v. Treasurer & Receiver Gen., supra. The complaint, however, contains no allegations of a special relationship between Moulton and any one of the individual director defendants, or indeed of any interactions between Moulton and a specific director defendant, that would give rise to a fiduciary duty by that individual director defendant toward Moulton.
As stated, the only allegation concerning any individual director defendant is the undifferentiated assertion that they "had interests, including personal business, financial and professional interests which conflicted with those of [North Suffolk], its employees and [clients]," and that the director defendants "took actions and set and enforced policies designed and intended to serve their said conflicting interests at the expense of the interests of [North Suffolk], its employees and [clients]." Thus, the complaint does not allege acts "`plausibly suggesting (not merely consistent with)' an entitlement to relief," Iannacchino v. Ford Motor Co., supra, quoting Fed.R.Civ.P. 8(a)(2), and the claims for breach of fiduciary duty accordingly must be dismissed.
Because we conclude that the director defendants acted as Moulton's employer in voting to adopt or in failing to adopt the corporate policies at issue, under the exclusive remedy provision of the Workers' Compensation Act they are immune from suit for injuries Moulton sustained while acting within the course of her employment. Their motion to dismiss the plaintiff's claims for wrongful death and for punitive damages should have been allowed. Since, on the facts alleged in the complaint, the director defendants owed no fiduciary duty to Moulton, and the Attorney General has exclusive authority to bring claims for inappropriate administration of a charitable corporation, the claims for breach of fiduciary duty also should have been dismissed. The matter is remanded to the Superior Court where the order denying the director defendants' motion to dismiss shall be vacated and set aside, and judgment shall enter for the director defendants on all claims.
So ordered.
The plaintiff's surreply to the motion to dismiss, which the motion judge and the parties apparently agreed to treat as in essence part of the complaint, asserts that six of the directors held positions in other organizations, and sets forth those purported positions. It does not indicate how the holding of those positions would give rise to conflicts of interest.
