Robidoux v. Muholland

United States Court of Appeals
For the First Circuit

No. 10-2031

JASON J. ROBIDOUX,

Plaintiff, Appellant,

v.

MICHAEL MUHOLLAND;
JAMES CORPORATION D/B/A JAMES CONSTRUCTION,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Daniel S. Hendrie for appellant.
John F. Kelleher with whom Kelly A. Kincaid was on brief for
appellees.

April 8, 2011

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Jason J. Robidoux sued James

Corporation d/b/a James Construction ("James Construction") and

Michael A. Muholland, Jr. (collectively "defendants") for personal

injuries Robidoux suffered while working at a construction site.

The district court allowed the defendants' motion for summary

judgment, finding that the Rhode Island Workers' Compensation Act

("Rhode Island Act") applied to the action and barred the claims.

Because we conclude that the Massachusetts Workers' Compensation

Act ("Massachusetts Act") applies to this suit and does not bar

Robidoux's claims, we reverse and remand.

I. Facts & Background

Most of the facts relevant to this appeal are undisputed.

In May 2006, James Construction, a general contractor incorporated

and based in Pennsylvania, was working on a project at the Newport

Naval Station in Rhode Island. In search of temporary laborers,

James Construction contacted a temporary employment agency,

Northeast Temps, Inc. d/b/a Labor Systems ("Labor Systems"), which

is a Massachusetts corporation with its principal place of business

in Massachusetts. It does also maintain an office in Rhode Island.

In response to James Construction's request, Labor Systems

dispatched Robidoux, a Massachusetts resident and newly-minted

Labor Systems employee, from its Fall River, Massachusetts office

to the Rhode Island job site. While working at the Newport Naval

Station, Robidoux was supervised by Muholland, a James Construction

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employee who was neither a Massachusetts resident nor a Rhode

Island resident. During Robidoux's work on the project, he

discussed his Massachusetts residency with Muholland. At the

conclusion of Robidoux's assignment, Muholland signed a work order

that displayed Labor Systems' two Massachusetts locations and their

corresponding 508 area code telephone numbers.

Almost six months later, on November 15, 2006, James

Construction again contacted Labor Systems, at one of the 508 area

code telephone numbers, to specifically request Robidoux's services

for a different project at the Newport Naval Station. The next

day, Robidoux picked up a work order and his personal protective

equipment at Labor Systems' Fall River office before traveling on

to Rhode Island.

Robidoux's second stint working at the Newport Naval

Station lasted approximately six weeks. During the course of this

work, Robidoux received his paychecks, with Rhode Island tax

withholdings, from Labor Systems. For Robidoux's services, James

Construction remitted payments to an Ohio address provided by Labor

Systems. Pursuant to a contract between James Construction and

Labor Systems, James Construction assumed responsibility for

supervising Robidoux while he was at the construction site.

Muholland, who was serving as the project's superintendent,

provided this supervision. Additionally, the contract required

Labor Systems to provide workers' compensation insurance for the

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employees it provided to James Construction. At the time Labor

Systems and James Construction agreed to the contract, Labor System

already had workers' compensation insurance policies from Liberty

Mutual Insurance Company ("Liberty Mutual") for Massachusetts and

from Beacon Mutual Insurance Company ("Beacon Mutual") for Rhode

Island. James Construction also required Labor Systems to provide

a certificate of its Rhode Island workers' compensation insurance.1

On January 4, 2007, while working with Muholland at the

Newport Naval Station site, Robidoux was seriously injured when a

648 pound compactor fell on him. That same day, without Robidoux's

knowledge, Labor Systems filed a report of injury so that Robidoux

could collect Rhode Island workers' compensation benefits.

Consequently, Robidoux began receiving $629.27 a week from Beacon

Mutual. These payments lasted for almost seventeen weeks and

totaled $10,248.15.

On February 20, 2007, Robidoux filed a claim for

Massachusetts workers' compensation benefits with Liberty Mutual.

An administrative judge in the Massachusetts Department of

Industrial Accidents concluded that Robidoux was entitled to these

benefits, and ordered Liberty Mutual to take credit for the monies

1
Robidoux, noting that this certificate was not received until
the day he was injured, asserts that James Construction did not
actually require Labor Systems to provide this proof of insurance
prior to his injury. Moreover, Robidoux suggests that James
Construction only required Labor Systems to provide this
certificate because, in addition to Robidoux, Labor Systems also
dispatched a Rhode Island resident to work for James Construction.

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paid by Beacon Mutual and assume responsibility for future

benefits.

On January 9, 2009, Robidoux filed a diversity action in

the District of Massachusetts alleging that the injuries he

suffered at the construction site were caused by the defendants'

negligence. On July 29, 2010, the district court allowed the

defendants' motion for summary judgment. Robidoux v. Muholland,

733 F. Supp. 2d 198 (D. Mass. 2010). Employing Massachusetts

choice of law principles, the district court determined that "Rhode

Island [as opposed to Massachusetts] has a substantially more

significant relationship to this litigation and, therefore, this

court must apply Rhode Island law." Id. at 203. The court went on

to conclude that, except in circumstances not present in the case

at hand, the Rhode Island Act grants "special employers," such as

James Construction, "immunity from private action by injured

employees." Id. Similarly, the court concluded that the Rhode

Island Act prohibits a plaintiff from suing co-employees such as

Muholland. Id. at 204. Robidoux subsequently appealed.

II. Discussion

"Summary judgment is appropriate when there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law." Cortés-Rivera v. Dep't of Corr. and Rehab. of

the Commonwealth of P.R., 626 F.3d 21, 26 (1st Cir. 2010). This

court reviews a grant of summary judgment de novo. Id. Choice of

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law determinations are questions of law, which we also review de

novo. See Crellin Tech., Inc. v. Equipmentlease Corp., 18 F.3d 1,

4 (1st Cir. 1994). Both parties agree that Massachusetts choice of

law principles govern this case.

A. A Conflict Exists Between the Relevant Massachusetts and
Rhode Island Law

"[T]he usual first step in applying conflict of law

principles is to ascertain whether there is a conflict among the

laws of the various States involved." Cohen v. McDonnell Douglas

Corp., 450 N.E.2d 581, 584 n.7 (Mass. 1983).

The Rhode Island Act provides that, except in

circumstances not alleged in this appeal, "[t]he right to

compensation . . . and the remedy for an injury granted by [the

Rhode Island Act], shall be in lieu of all rights and remedies as

to that injury now existing . . . against an employer,

or its . . . employees." R.I. Gen. Laws § 28-29-20. The

defendants assert, as the district court concluded, that this

"employer" immunity extends to "special employers" — that is,

"person[s] who contract[] for services with a general employer for

the use of an employee," id. § 28-29-2(6)(ii) — and their

employees. See Sorenson v. Colibri Corp., 650 A.2d 125 (R.I.

1994). Accordingly, the defendants contend, the Rhode Island Act

bars Robidoux's claims against James Construction, the special

employer, and its employee, Muholland. On appeal, Robidoux does

not dispute this interpretation of Rhode Island law, and we

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therefore assume that the Rhode Island Act, if applicable, would

bar this action.

The question therefore becomes whether the Massachusetts

Act would similarly bar Robidoux's claims against the defendants.2

We conclude that it would not.

Generally, "the [Massachusetts Act] bars employees from

recovering against their employers for injuries received on the

job." Barrett v. Rodgers, 562 N.E.2d 480, 482 (Mass. 1990) (citing

Mass. Gen. Laws ch. 152, §§ 23, 24).3 An injured employee retains

2
Although the district court did not address this issue, we
are free to resolve questions of law in the first instance. See
Gately v. Massachusetts, 2 F.3d 1221, 1228 n.4 (1st Cir. 1993).
3
Section 24 provides in part: "An employee shall be held to
have waived his right of action at common law or under the law of
any other jurisdiction in respect to an injury that is compensable
under this chapter, to recover damages for personal injuries, if he
shall not have given his employer . . . written notice that he
claimed such right . . . ." Mass. Gen. Laws ch. 152, § 24.

Section 23 reads:

If an employee files any claim or accepts
payment of compensation on account of personal
injury under this chapter, or submits to a
proceeding before the department under
sections ten to twelve, inclusive, such action
shall constitute a release to the insurer of
all claims or demands at common law, if any,
arising from the injury. If an employee
accepts payment of compensation under this
chapter on account of personal injury or makes
an agreement under section forty-eight, such
action shall constitute a release to the
insured of all claims or demands at common
law, if any, arising from the injury.

Id. § 23.

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the right, however, "to bring suit against third parties who may be

liable for injuries compensable under the [Massachusetts] Act."

Id. (citing Mass. Gen. Laws ch. 152, § 15). More specifically,

"nothing in [section fifteen], or in section eighteen or

twenty-four shall be construed to bar an action at law . . .

against any person other than the insured person employing such

employee and liable for payment of the compensation provided by

this chapter . . . and said insured person's employees." Mass.

Gen. Laws ch. 152, § 15 (emphasis added); cf. Searcy v. Paul, 478

N.E.2d 1275, 1278 (Mass. App. Ct. 1985) ("[T]he [above-quoted

statutory language] was taken by text and periodical writers as

broadly abolishing the so-called 'common employment' doctrine and

permitting third party actions by . . . an injured employee against

all but his immediate insured employer.").

In short, for an employer to be immunized pursuant to the

Massachusetts Act "(1) a 'direct employment relationship must

exist' between the injured party and the person claiming immunity,

and (2) 'the employer must be an insured person liable for the

payment of compensation.'" Roberts v. Delta Air Lines, Inc., 599

F.3d 73, 77 (1st Cir. 2010) (quoting Fleming v. Shaheen Bros.,

Inc., 881 N.E.2d 1143, 1146 (Mass. App. Ct. 2008)).

Turning to the second prong of this test, an "insured

person" is "an employer who has provided by insurance for the

payment to his employees by an insurer of the compensation provided

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for by this chapter, or is a self-insurer . . . or is a member of

workers' compensation self-insurance group." Mass. Gen. Laws ch.

152, § 1(6). Further, Massachusetts law requires that, absent an

agreement to the contrary, in circumstances involving a special

employer and a general employer, "the liability for the payment of

compensation for the injury shall be borne by the general employer

or its insurer." Id. § 18 (emphasis added).

James Construction is not an "insured person liable for

the payment of [workers'] compensation." To the contrary, pursuant

to the express terms of their agreement, Labor Systems assumed

responsibility for providing Robidoux's workers' compensation

insurance. Although James Construction may have paid a rate that

effectively reimbursed Labor Systems for that insurance, James

Construction does not point to any authority suggesting that such

an arrangement equates to "provid[ing]" workers' compensation

insurance and being "liable for payment of workers' compensation."

Cf. Numberg v. GTE Transp., Inc., 607 N.E.2d 1, 2 (Mass. App. Ct.

1993) (finding that special employer was not an insured person

liable for payment of workers' compensation, even though it

reimbursed general employer for the cost of workers' compensation

benefits, because there was no agreement that special employer

would provide those benefits). Consequently, Robidoux's claims

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against James Construction are not barred by the Massachusetts

Act.4

Nor would the Massachusetts Act immunize Muholland, as a

"co-employee," from this action. The defendants do not point to

any case law suggesting that co-employee immunity exists beyond

that which is derived from an employer's immunity. See Mass. Gen.

Laws ch. 152, § 15 ("Nothing in this section, or in section

eighteen or twenty-four shall be construed to bar an action . . .

against any person other than the insured person employing such

employee and liable for payment of the compensation provided by

this chapter . . . and said insured person's employees." (emphasis

added)); Fredette v. Simpson, 797 N.E.2d 899, 901-02 (Mass. 2003)

(citing section 15 as creating the Massachusetts Act's co-employee

immunity). Because James Construction does not meet the

4
We are unpersuaded by the defendants' argument that James
Construction is protected from this action because it satisfies the
Massachusetts Act's definition of "employer" and Robidoux was a
"loaned servant" to James Construction. First, just because the
Massachusetts Act's definition of "employer" may include a special
employer like James Construction, see Mass. Gen. Laws ch. 152, §
1(5), it does not follow that its other requirements for immunity
— outlined in sections 15, 23, and 24 — are meaningless. Nor are
we moved by the defendants' reliance on Roberts v. Delta Air Lines,
Inc., No. 07-cv-12154, 2008 WL 5156654 (D. Mass. Dec. 4, 2008),
aff'd, 599 F.3d 73. In that case, the plaintiff did not question
whether the defendant was an "insured person," and the district
court did not address this prerequisite for immunity. See id.; see
also Roberts, 599 F.3d at 78 n.5 ("[Plaintiff] asserts . . . that
there is a dispute of fact as to whether Delta was an 'insured
person liable for payment of compensation' to Roberts such that it
was entitled to immunity. Because Roberts did not raise this
argument before the district court, it is waived." (internal
citations omitted)).

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Massachusetts Act's prerequisites for immunity, neither does

Muholland.

B. Under Massachusetts Choice of Law Principles, the
Massachusetts Act Governs the Defendants' Immunity

Historically, in tort cases, Massachusetts applied the

substantive law of the state where the alleged wrong occurred.

Cosme v. Whitin Mach. Works, Inc., 632 N.E.2d 832, 834 (Mass.

1994). In the last few decades, however, Massachusetts has moved

to a "functional" approach for addressing choice of law issues.

Joseph W. Glannon & Gabriel Teninbaum, Conflict of Laws in

Massachusetts Part I: Current Choice-of-Law Theory, 92 Mass. L.

Rev. 12, 14-15 (2009); see, e.g., New England Tel. & Tel. Co. v.

Gourdeau Constr. Co., Inc., 647 N.E.2d 42, 43-44 (Mass. 1995);

Cosme, 632 N.E.2d at 834.

This functional approach "responds to the interests of

the parties, the States involved, and the interstate system as a

whole." Bushkin Assocs., Inc. v. Raytheon Co., 473 N.E.2d 662, 668

(Mass. 1985). In employing this approach, the Massachusetts

Supreme Judicial Court ("SJC") "ha[s] not elected by name any

particular choice-of-law doctrine. Rather, [it] consider[s]

choice-of-law issues by assessing various choice-influencing

considerations, including those provided in the Restatement

(Second) of Conflict of Laws (1971), and those suggested by various

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commentators."5 Cosme, 632 N.E.2d at 834 (quotation marks and

other internal citation omitted); see also Jasty v. Wright Med.

Tech., Inc., 528 F.3d 28, 40 (1st Cir. 2008).

The Second Restatement provides that, in personal injury

cases, "the local law of the state where the injury occurred

determines the rights and liabilities of the parties, unless, with

respect to the particular issue, some other state has a more

significant relationship under the principles stated in § 6 to the

occurrence and the parties." Restatement (Second) Conflict of Laws

§ 146 (1971) (hereinafter "Restatement"). Section 6 of the

Restatement cites the following factors as relevant to choice of

law decisions:

(a) the needs of the interstate and
international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested
states and the relative interests of
those states in the determination of the
particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the
particular field of law,
(f) certainty, predictability and uniformity
of result, and

5
The SJC has cited one particular commentator, R.A. Leflar, on
multiple occasions. See, e.g., Bushkin Assocs., 473 N.E.2d at 670
& n.7 (quoting R.A. Leflar, American Conflicts Law § 99, at 198 (3d
ed. 1977)). The SJC has also observed that the factors Leflar
urged courts to consider "generally parallel the considerations
contained in longer lists, including § 6(2) of the Second
Restatement." Id. In this case, we find that Leflar's factors are
either inapplicable or overlap with the section 6 factors, and we
therefore do not discuss them.

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 (g) ease in the determination and application
of the law to be applied.

Id. § 6. The Second Restatement further explains that, in

balancing the section 6 factors, courts should consider various

"contacts," including: "(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred, (c)

the domicil, residence, nationality, place of incorporation and

place of business of the parties, and (d) the place where the

relationship, if any, between the parties is centered." Id. §

145(2).6

We also note that "the law of a single jurisdiction is

not necessarily to be applied to all issues in a particular case";

rather, we should weigh the relevant considerations "according to

their relative importance to the particular issue involved." Lou

v. Otis Elevator Co., 933 N.E.2d 140, 151 & n.27 (Mass. App. Ct.)

(citing Choate, Hall & Stewart v. SCA Servs., Inc., 392 N.E.2d 1045

(Mass. 1979); Restatement § 145, cmt. d), review denied, 936 N.E.2d

435 (Mass. 2010).

Turning to the case at hand, we conclude that the

Massachusetts Act's immunity provisions apply to Robidoux's claims

because Massachusetts, as compared to Rhode Island, "has a 'more

6
The Restatement also includes five sections specifically
addressing workers' compensation issues. See Restatement §§ 181-
85. With the exception of the defendants quoting section 184 in a
footnote, neither party advances any argument based on these
sections.

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significant relationship' to the parties and the occurrence under

the considerations provided in § 6."7 Cosme, 632 N.E.2d at 835.

First and most importantly, Massachusetts' interests in

this case substantially exceed those of Rhode Island. Robidoux is

a Massachusetts resident who, after obtaining the approval of a

Massachusetts administrative judge, received benefits from a

Massachusetts workers' compensation policy for an injury he

suffered while employed by a Massachusetts company. Even where the

injury occurs out of state, Massachusetts retains a significant

interest in the extent to which a resident is compensated for a

workplace injury. See, e.g., id. at 836; see also Mass. Gen. Laws

ch. 152, § 26 (expressly authorizing paying benefits for injuries

sustained outside the state); cf. Pevoski v. Pevoski, 358 N.E.2d

416 (Mass. 1976) (holding, in a wife's suit against her husband

stemming from a New York car accident, that Massachusetts law

governed spousal immunity issue in part because "the economic and

social impact of this litigation will fall on Massachusetts

domiciliaries and a Massachusetts insurer").

In addition to its interest in the amount of Robidoux's

compensation, Massachusetts also has a stake in who pays that

compensation. Specifically, the Massachusetts Act limits immunity

7
"Because some of [the relevant] factors are either redundant
or not determinative, we focus on considerations particularly
relevant to the case." Jasty, 528 F.3d at 40 (internal quotation
marks omitted).

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to "insured person[s] employing such employee and liable for

payment of [workers'] compensation" in part because permitting

recovery from other parties may decrease the cost of workers'

compensation insurance by allowing insurers to recoup benefits in

some cases.8 Accordingly, Massachusetts has an interest in injured

employees or insurers being able to recover from parties like James

Construction and Muholland whenever a Massachusetts' workers'

compensation policy assumes responsibility for the payment of

benefits.

In contrast, Rhode Island has little interest in how

Robidoux is compensated or whether these non-Rhode Island

defendants are protected by immunity. Cf. Dasha v. Adelman, 699

N.E.2d 20, 26 (Mass. App. Ct. 1998) (noting that, although

plaintiff was injured in Maine, "Maine's interest is significantly

diminished" because the Maine defendants were no longer parties to

the case). The defendants argue that the Rhode Island Act's

immunity provision is in part intended to decrease the cost of

doing business in Rhode Island, and therefore Rhode Island has an

interest in immunizing contractors for any injury that occurs in

8
See Brown v. Leighton, 434 N.E.2d 176, 178 (Mass. 1982) ("As
stated in Furlong v. Cronan, 26 N.E.2d 382 (Mass. 1940), one of the
purposes of § 15 is, 'to preserve the cause of action (against the
third party) for the benefit of the insurer.'"); see also Mass.
Gen. Laws. ch. 152, § 15 ("Either the employee or insurer may
proceed to enforce the liability of [persons other than the
insured] . . . . The sum recovered shall be for the benefit of the
insurer, unless such sum is greater than that paid by it to the
employee . . . .").

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the state. See also Restatement § 184, cmt. b ("[T]o deny . . .

immunity . . . would frustrate the efforts of that state to

restrict the cost of industrial accidents and to afford a fair

basis for predicting what these costs will be."). As defense

counsel conceded at oral argument, however, there is nothing in the

record establishing that interstate contractors, like James

Construction, see a decrease in liability insurance premiums when

they take on projects in Rhode Island as opposed to some other

state with less generous immunity rules.

To be sure, Rhode Island has an interest in regulating

conduct within its borders, and it therefore has an interest in

applying its own conduct-regulating rules to events that occur in

Rhode Island. See Lou, 933 N.E.2d at 151 n.27; Restatement § 145,

cmt. d. The specific question in this case, however, is not

whether Massachusetts or Rhode Island standards of negligence

apply. Rather, the issue here pertains to the application of

workers' compensation immunity rules. Consequently, Rhode Island's

conduct-regulating interests are diminished, and our choice of law

analysis therefore "place[s] a greater emphasis on the State in

which the parties are domiciled." See Lou, 933 N.E.2d at 151 n.27;

see also Restatement § 145, cmt. d ("[S]ubject only to rare

exceptions, the local law of the state where conduct and injury

occurred will be applied to determine whether the actor satisfied

minimum standards of acceptable conduct and whether the interest

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affected by the actor's conduct was entitled to legal protection .

. . . On the other hand, the local law of the state where

the parties are domiciled . . . may be applied to determine

whether one party is immune from tort liability . . . .").

We recognize that "[a]n important objective of the [Rhode

Island Act] was to curtail litigation by injured employees who

elected to take advantage of its expedited procedure for obtaining

compensation . . . ." See Sorenson, 650 A.2d at 129. Because

Robidoux ended up receiving compensation from a Massachusetts

policy, however, honoring the purposes underlying workers'

compensation has become primarily an issue of Massachusetts

concern. As discussed above, Massachusetts prefers to retain third

party liability, and the costs associated with it, in order to

allow insurers and injured employees to pursue recovery from

responsible third parties, which presumably Massachusetts hopes

will decrease workers' compensation premiums and attendant welfare

costs. Conversely, Rhode Island has traded the benefits of

allowing recovery from special employers in exchange for insulating

those special employers from the risks of litigation, presumably in

an effort decrease the cost of doing business in the state. Here,

applying the Rhode Island Act to an out-of-state resident receiving

out-of-state workers' compensation benefits would allow Rhode

Island to reap the benefits of this trade-off in a situation where

the state would not similarly bear any of the burdens.

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 The parties devote considerable space in their briefs to

discussing another section 6 factor: their own and each others'

expectations about which state's law would govern this type of

action. As for Robidoux's expectations, this consideration cuts

both ways. On the one hand, Robidoux was a Massachusetts resident,

covered by Massachusetts workers' compensation insurance, employed

by a Massachusetts company. On the other hand, the entirety of his

work for James Construction occurred in Rhode Island.

Turning to the defendants' reasonable expectations, we

first note the parties' disagreement about whether the defendants

knew that 508 was a Massachusetts area code, knew that Labor

Systems was a Massachusetts company, and/or expected Rhode Island

law to apply. We need not, however, wade into these factual

disputes. Suffice it to say that when James Construction secured

the services of a temporary worker by calling a Massachusetts-based

company at a phone number with a Massachusetts area code, it lost

any justification for expecting that an accident involving that

temporary worker would only implicate Rhode Island law. Similarly,

Muholland lacked a reasonable expectation that he would only be

subject to Rhode Island law by supervising a temporary worker who

had told him he was a Massachusetts resident and by signing a work

order that suggested that Robidoux was based out of a state other

than Rhode Island. Even if we accept that James Construction's

demand for a Rhode Island workers' compensation certificate

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reflected its subjective belief that Rhode Island law would govern

any workplace incident, that fact would not alter our conclusion

about what expectations were reasonable and justified under the

circumstances.

We acknowledge that this action involves substantial

contacts with Rhode Island. The injury and injury-causing conduct

occurred in Rhode Island, and the parties' relationship was

centered in Rhode Island. See Restatement § 145(2). These Rhode

Island contacts, however, are simply insufficient to outweigh

Massachusetts' superior interests in this case. Moreover, the

contacts with Massachusetts are not insubstantial. Of the two

states, only Massachusetts can claim a party as a resident or local

company, and the Robidoux-James Construction relationship was

formed in part by communication — both between James Construction

and Labor Systems, and between Labor Systems and Robidoux — to and

within Massachusetts.

III. Conclusion

We conclude that Massachusetts law governs the immunity

issue in this case and does not bar Robidoux's claims against the

defendants. We therefore reverse the grant of summary judgment and

remand for proceedings consistent with this opinion.

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