44 Mass. App. Ct. 916

February 11, 1998

William E. Gately, Jr, for the plaintiff.

Kevin M. Truland for the defendants.

On June 15, 1990, the plaintiff, an employee of the defendant Continental Transportation Network, Inc. (Continental), was injured in an accident while driving an automobile being sold by Data Air Courier, Inc. (Data), to a buyer in Ohio. Arrangements for the trip, which began in Massachusetts, were made by Continental. When, in May, 1994, the plaintiff filed a workers' compensation claim based upon the accident, he discovered that neither Continental nor the defendant Scheall Drive-away Systems, Inc. (Scheall), [Note 2] had workers' compensation coverage. The plaintiff then brought this action in the Superior Court seeking damages for the defendants' failure to provide such coverage. See LaClair v. Silberline Mfg. Co., 379 Mass. 21 , 26 (1979); O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. 449 , 450 (1991), holding that an employer who is required to maintain workers' compensation coverage but does not do so is liable in tort to an injured employee without proof of negligence. On the defendants' motions for summary judgment, the Superior Court judge concluded that the plaintiff's action was time barred by the three-year limitation period set out in G. L. c. 260, s. 2A, and entered judgments in their favor. Finding no error in the reasoning set out in the judge's memorandum of decision, we adopt it as our own and affirm the judgments.

It is the plaintiff's argument on appeal that the time period for the filing of his tort action was that set out in G. L. c. 152, s. 66, as amended through St. 1991, c. 398, s. 93, that is, twenty years. However, s. 106 of c. 398 expressly provides that s. 93 "shall be deemed to be substantive in character," and, therefore, by reason of G. L c. 152, s. 2A, prospective in its application. As the plaintiffs cause of action accrued prior to the effective date of s. 66, as amended, the twenty-year limitation period provided for therein is inapplicable to the present action.

In the alternative, the plaintiff claims that he is entitled to the four-year period set out in G. L. c. 152, s. 41, as appearing in St. 1985, c. 572, s. 50. As pertinent. that statute reads: "No proceedings for compensation payable under this chapter shall be maintained . . . unless any claim for compensation due with respect to such injury is filed within four years from the date the employee first became aware of the causal relationship between his disability and his employment" (emphasis added). This argument fails for the reason that the present action is one in tort for damages, see O'Dea v. J.A.L., Inc., 30 Mass. App. Ct. at 450, and not a claim for compensation payable under c. 152. See Thayer's Case, 345 Mass. 36 , 41-43 (1962).

The plaintiff's allegations, that he did not know either of his employment relationship with the defendants or of their failure to have compensation coverage until some time after the conclusion of a lawsuit brought against him by the estate of an individual killed in the accident, were insufficient, as matter of law, to create a factual dispute concerning the timeliness of the filing of his complaint. See Bowen v. Eli Lilly & Co., 408 Mass. 204 , 205-208 (1990).

Judgments affirmed.


[Note 1] Scheall Driveaway Systems, Inc.

[Note 2] Other than to claim an employment relationship with Scheall, the plaintiff's brief and record appendix do not provide detailed description of Scheall's role in the instant dispute.