Brown v. Leighton

O’Connor, J.

(dissenting). The court concludes “that it was error under the circumstances of this case to allow the uninsured employer to be, in effect, subrogated to the rights of the employee against the negligent third party.” Supra at 758. The trial judge did not allow the uninsured employer *764to be effectively subrogated to rights of the employee, and so I do not agree that it was error to credit the employer with the amount of money the employee accepted in settlement of his claim against the third-party tortfeasor.

Subrogation is “[t]he substitution of one person in the place of another with reference to a lawful claim, demand or right, so that he who is substituted succeeds to the rights of the other in relation to the debt or the claim.” Black’s Law Dictionary 1279 (5th ed. 1979), citing Home Owner’s Loan Corp. v. Baker, 299 Mass. 158, 162 (1937). The employee has accepted payment in settlement of his claim against the third party. He no longer has a claim, demand, or right to which the employer can be subrogated. The employer is not asserting rights of the employee, as might be the case if the employee had first recovered from the employer, and the employer were asserting the employee’s rights against the third party. If that were the case before us, the employee would have but one recovery, and we would have to decide whether the employer is entitled to be subrogated to the employee’s right against the negligent third party. That is not the case before us. Here the question is simply whether the employer is entitled to have damages mitigated by the amount already recovered by the employee for the same injuries for which he seeks damages in this action. Cases from other jurisdictions dealing with subrogation are not helpful.

The source of this employee’s right to recover from his employer is G. L. c. 152, § 66. This is a tort action in which the plaintiff is entitled to the full scope of tort damages for personal injury. LaClair v. Silberline Mfg. Co., 379 Mass. 21, 26 (1979). Barrett v. Transformer Serv., Inc., 374 Mass. 704, 705 (1978). Ferris v. Grinnell, 353 Mass. 681, 682 (1968). Where a plaintiff is tortiously injured by two wrongdoers, he is entitled to only one satisfaction, and payment received from one must be considered in mitigation of the damages assessed against the other. Tritsch v. Boston Edison Co., 363 Mass. 179, 182 (1973). Wadsworth v. Boston Gas Co., 352 Mass. 86, 94 (1967). Daniels v. Celeste, *765303 Mass. 148, 152 (1939). This in no way derogates from the collateral source rule by which money to which a plaintiff is entitled by contract is not set off against tort recovery.

General Laws c. 152, § 25C, is designed to exert pressure upon employers to insure under the law by imposing a fine or by imprisonment, or both, for not doing so. The same purpose is evident in c. 152, § 66, by which the uninsured employer is exposed to liability for full tort damages without negligence and without specified common law defenses. Opinion of the Justices, 309 Mass. 571, 598 (1941). The denial of a right of mitigation therefore, is not essential to the legislative purpose either to provide adequate financial protection to the victims of industrial accidents or to exert pressure on employers to insure. However, the denial of a right of mitigation conflicts with the “principle underlying the workmen’s compensation law that there shall not be double recovery for injury — once by way of compensation and once by way of damages.” Richard v. Arsenault, 349 Mass. 521, 524 (1965), quoting from McDonald v. Employer’s Liab. Assurance Co., 288 Mass. 170, 174 (1934).

Although G. L. c. 152, § 66, provides that numerous specified common law defenses shall not be available to the employer, it does not expressly or by necessary implication make the long-standing common law right of set-off in mitigation of tort damages unavailable to an uninsured employer. The availability of mitigation results in no injustice to the employee, who is fully compensated, or to the negligent third party, who is responsible for paying damages for the injuries he caused. The benefit to the employer is no different than the benefit inuring to any defendant joint tortfeasor when the plaintiff has previously chosen to settle his claim against another joint tortfeasor, leaving the defendant with the benefit of the settlement as a set-off or deduction from damages.1 This benefit is not the result of subrogation, *766“technically” or “in effect.” Whether the negligent third party has a right to contribution from the defendant employer is not before us.

I would affirm the judgment of the trial court.

The court attributes to the dissent’s analysis an assumption that the defendant seeks contribution as a joint tortfeasor. No such assumption is made. The defendant seeks nothing from the negligent third party.