JOSEPH R. COPPOLA vs. CITY OF BEVERLY.

BROWN, J. The question on appeal is whether a city of Beverly school teacher who has been injured in the course of his employment may bring a civil action against the city based solely on G. L. c. 152, Section 66 [Note 1] (which recites certain advantages afforded by the "Workers' Compensation Act"),

Page 210

when the city, a self-insurer, has not elected to provide workers' compensation benefits to its teachers.

The pertinent facts are as follows. The plaintiff was allegedly injured during the course of his employment as a school teacher for the city on January 27, 1986. The plaintiff has not returned to work. The plaintiff has not received workers' compensation benefits from the city even though the city has accepted the provisions of St. 1913, c. 807 (now G. L. c. 152, Sections 69-75) and self-insures its "laborers," "workmen," "mechanics," and "nurses," but has never taken the opportunity afforded by the 1939 revision of G. L. c. 152, Section 69 (St. 1939, c. 435) to extend workers' compensation benefits to "teachers."

After learning that the city had not provided workers' compensation coverage for teachers, the plaintiff filed a complaint in the Superior Court on July 13, 1988, seeking damages in tort. The plaintiff's sole theory of recovery was that under Section 66 of the Workers' Compensation Act (Act), the city was strictly liable. The city filed a motion for summary judgment, which was allowed on the grounds that G. L. c. 152, Section 66, only applies to entities required to have insurance coverage pursuant to Section 25A and the city was excluded from the requirements of Section 25A by virtue of Section 25B. The essence of the plaintiff's argument on appeal is that Section 66 of the Act applies equally with respect to public and private employers and permits any public employee to bring a civil action against his public employer where such employer has failed to comply with the compulsory insurance provisions of Section 25A.

Chapter 152, Section 25A, provides that every employer, with the exception of the governmental entities enumerated in Section 25B, [Note 2] shall compensate its employees for job related injuries by obtaining compensation insurance, or by becoming self-insured in accordance with the procedure set out in subsections (1) and (2) of Section 25A. The obligation to provide insurance

Page 211

for the protection of employees under Section 25A is "mandatory" with respect to private employers, but "elective" with respect to public employers. [Note 3] Thus, where a private employer should have, but has not, become insured for workers' compensation, Section 66 imposes liability on the employer, with the usual defenses eliminated, for injuries to its employees arising in the course of employment. Barrett v. Transformer Serv., Inc., 374 Mass. 704, 705 (1978). See O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449, 450 (1991), and cases cited. However, the strict liability provisions of Section 66 do not apply to employees of the Commonwealth and its local subdivisions for the reason, set out by Justice Kirk in his concurring opinion in Moschella v. Quincy, 347 Mass. 80, 86-87 (1964), that St. 1913, c. 807 (now c. 152, Sections 69-75) "sets apart for separate consideration the employees of the Commonwealth and of its subdivisions as distinguished from employees in private industry." The rationale for treating "public" and "private" sector employees differently is derived, in large part, from long standing principles of governmental immunity from tort liability, in the absence of statutory exception. Section 69 of the Act departs from traditional immunity doctrine by extending the principle of compensation to cities within the Commonwealth, but only to such cities as have "accepted" the Act. Id. at 87. See also Stone's Case, 290 Mass. 530, 531 (1935). By voluntarily "accepting" the Act, a city (or town) effectively waives its common law immunity and thereby covenants to compensate its "laborers, workmen, mechanics, and nurses" [Note 4] for job related injuries. Note 3, supra. See Price v. Railway Exp. Agency, Inc., 322 Mass. 476 (1948), for a discussion of the changes in common

Page 212

law doctrine effected by the Act. Since the obligation to provide insurance under Section 25A is elective with regard to public employers, a city, if it has elected to provide coverage at all, is only obliged to insure against such liability "to the extent of its acceptance" of the Act. Stoltz's Case, 325 Mass. 692, 695 (1950).

In 1939, the Legislature amended Section 69. See St. 1939, c. 435. That amendment gave those cities and towns which accepted the Act the discretion to determine which employees would be covered within the definition [Note 5] of "laborers, workmen, and mechanics." [Note 6] Although the city of Beverly accepted the Act, it nevertheless declined to include "teachers" within the definition of those occupations (i.e., "workmen," "laborers," and "mechanics") which were covered as part of the city's self-insurance policy. See Tracy v. Cambridge Jr. College, 364 Mass. 367 (1973). Since this decision was a valid exercise of the city's discretion, the most that can be said is that the "extent" of the city's obligation to insure did not reach "teachers." See Stoltz's Case, supra; Tracy v. Cambridge Jr. College, supra.

As mentioned earlier, the strict liability provisions of Section 66 only apply to those employers who should have complied, but failed to comply, with the compulsory insurance mandate of Section 25A. Barrett v. Transformer Serv., Inc., 374 Mass. at 705. Although the city voluntarily "accepted" the Act, it cannot reasonably be said that it was under a duty to do so. Moreover, by "accepting" the Act and electing to provide insurance for the protection of its employees, the city was only obliged to insure to the extent of its acceptance. Stated differently, the city, having accepted Section 69, assumed the obligation to pay compensation only within the prescribed limits of the section. The city's acceptance did not include teachers

Page 213

within the class of covered employees. Consequently, the city cannot be held strictly liable for exercising its discretion not to provide coverage to such employees. Therefore the decision of the trial judge granting summary judgment in the city's favor was not error. [Note 7]

Judgment affirmed.