MARIA RUGGIERO vs. ALBINA COSTA.

In this action to recover for injuries from a dog-bite, the defendant's answer included a defense that the plaintiff's claim was barred by reason of the exclusive remedy provisions of the Workers' Compensation Act. G. L. c. 152, Sections 23, 24. After some discovery, the defendant filed a motion for summary judgment accompanied by affidavits setting forth that the defendant was the plaintiff's employer and that the plaintiff had received benefits under the act. In her motion, the defendant also argued that the "dual capacity" theory, see Longever v. Revere Copper & Brass Inc., 381 Mass. 221, 223 (1980); 2A Larson, Workmens' Compensation Section 72.80 (1989), even if accepted in Massachusetts, does not apply to the facts of this case.

A judge of the Superior Court, without a hearing, denied the motion noting: "Defendant has the burden of proving she is the plaintiff's employer. Credibility of witnesses is for the jury which may disbelieve the defendant."

On the petition of the defendant, an interlocutory appeal was authorized by a single justice of this court. We agree with the single justice that the reason given for the denial of the motion by the Superior Court judge is untenable. There was no suggestion of unreliability or other weakness in the unopposed affidavits. In such circumstances, the judge should "not have considered the credibility of the parties. For purposes of deciding the motion, he was required to take the [defendant's] anticipated testimony and other evidence as true." Sheehy v. Lipton Indus., Inc., 24 Mass. App. Ct. 188, 194 (1987). Because we think there should be a rehearing on the motion with the plaintiff being permitted to file counter affidavits, the matter is remanded to the Superior Court for reconsideration of the defendant's motion.

The defendant argues that we should not allow the plaintiff to file such affidavits because, on October 3, 1988, a new rule, Superior Court Rule 9A, took effect. That rule, as in effect prior to a 1989 amendment, required a party opposing a motion to file and serve an opposition within ten days after service of the motion. [Note 1] The defendant's motion was filed on

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November 10, 1988, and on November 30, 1988, without the submission of counter affidavits by the plaintiff, the judge denied the motion. The plaintiff claims that, when the motion was denied, she was in the process of filing opposing affidavits specifically showing that the defendant's husband, rather than the defendant, was her employer. She claims reliance on Mass.R.Civ.P. 56(c), 365 Mass. 824 (1974), which states in relevant part: "The adverse party prior to the day of hearing may serve opposing affidavits" (emphasis supplied). See also the last sentence of the fourth paragraph of Rule 9 of the Superior Court prior to the 1989 amendment, quoted in note 1, supra.

Trial court rules "more demanding than the requirements of Rule 56 . . . are not necessarily inconsistent with the general provisions" in the rule. See 10A Wright & Miller, Federal Practice and Procedure Section 2719, at 13 (1983). While we do not excuse the plaintiff's failure to comply with the requirements of rule 9A, we think there is here a combination of circumstances which calls for a decision on the merits of the motion for summary judgment rather than one based on a procedural flaw. These circumstances are: the matter is, in any event, being remanded to the Superior Court for reconsideration; Superior Court Rule 9A had been in effect for only a short time at the time the defendant filed her motion and appeared to be in conflict with Superior Court Rule 9, see note 1, supra; rule 9A has now been amended to allow an opposing party to file an opposition within twenty-one days; both that rule and Mass.R.Civ.P. 56(c), quoted in part above, suggest that a hearing will be held on a motion for summary judgment; [Note 2] the motion was in this case denied without a hearing, and the plaintiff had no occasion or need to seek an extension of time for filing her affidavits; the defendant has not shown any prejudice; and the plaintiff asserts that she disputes the material submitted by the defendant.

In remanding, we in no way suggest the result. If, on examination of the plaintiff's counter affidavits, the judge determines that entry of summary judgment is appropriate, he or she should act accordingly. If, on the other hand, the judge should determine, that an issue, such as "dual capacity," can best be considered in the context of a fuller inquiry into the facts, he or she may, in discretion, deny the motion. See Phelps v. MacIntyre, 397 Mass. 459, 461 (1986); 10A Wright & Miller, Section 2728 (1983).

The order denying the defendant's motion for summary judgment is vacated, and the matter is remanded to the Superior Court for further proceedings consistent with this opinion.

So ordered.