371 Mass. 891

October 6, 1976

A judge of the Superior Court dismissed six of the eight counts of the plaintiffs' complaint, leaving two counts on behalf of the decedent's administratrix, one for conscious suffering of the decedent and the other for his wrongful death on August 16, 1973. There was no error. 1. We agree with the plaintiffs that a wife may have a claim for loss of consortium during the life of her husband. Diaz v. Eli Lilly & Co., 364 Mass. 153 , 167-168 (1973). It may not be fatal to such a claim that the husband lives only a few hours after a tortious injury. Walden v. Coleman, 105 Ga. App. 242, 243 (1962). But we find no such claim stated in the counts in question. 2. We are urged to hold that the wife and each child have common law claims for compensatory damages for wrongful death in addition to the statutory claim for punitive damages asserted on their behalf by the administratrix. This is contrary to the clear statement in Gaudette v. Webb, 362 Mass. 60 , 71 (1972), that our statutes were to be viewed as "requiring that damages recoverable for wrongful death be based upon the degree of the defendant's culpability"; as "prescribing the range of the damages recoverable against each defendant"; and as "requiring that any action for wrongful death be brought by a personal representative on behalf of the designated categories of beneficiaries . . . ." We reject the claims for additional common law recovery. 3. Nothing we say here as to actions for wrongful death is applicable to claims arising on or after January 1, 1974. G. L. c. 229, Section 2, as appearing in St. 1973, c. 699, Sections 1, 2, and as amended by c. 957, Sections 1, 2.

Judgment affirmed.


371 Mass. 891

October 28, 1976

Francis J. Mahoney, an employee of W. F. Schrafft & Sons Corporation, was assaulted by two fellow employees on September 24, 1971. Notice and claim under G. L. c. 152 were given to the employer. He was totally disabled from employment from September 25, 1971, through November 28, 1971, as a result of the injuries he received in the assault, and incurred medical expenses. In a criminal action for assault and battery against the two employees, an accord and satisfaction was reached under G. L. c. 276, Sections 55 and 56, while that action was pending in the Superior Court. The amount received by the employee under the accord and satisfaction was $1,500. On a claim pursued by the employee before the Industrial Accident Board the single member and the reviewing board found (contrary

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to the contention of the insurer) that the employee had not made an election, and the reviewing board ruled that payment under the accord and satisfaction did not constitute double recovery. In the Superior Court, however, judgment was entered on April 1, 1975, dismissing with prejudice the employee's claim. There was no error. While the employee's actual damages exceeded the amount which he received under the accord and satisfaction, G. L. c. 152, Section 15, does not permit the award of additional workmen's compensation payments. In so concluding we need not decide whether the acknowledgment of satisfaction for injury pursuant to G. L. c. 276, Sections 55 and 56, constitutes an election within the meaning of the former c. 152, Section 15, which was applicable to this litigation. [Note 1] As both formerly and presently written, G. L. c. 152, Section 15, as amended through St. 1965, c. 487, Section 1A, and as amended through St. 1971, c. 941, Section 1, provides that "[t]he sum recovered [in an action at law against a third party] shall be for the benefit of the insurer, unless such sum is greater than that paid by it to the employee." Section 15 creates a statutory subrogation under which payments received from a third party are applied to reimburse the employer's insurer. In the present case the accord and satisfaction settlement exceeded the $705.71 which the employee would receive under G. L. c. 152, Sections 34 and 35A. Thus an award under the Workmen's Compensation Act would have to be repaid to the insurer from the settlement funds. In these circumstances the grant of workmen's compensation benefits would be wholly futile.

Judgment affirmed.


[Note 1] The issue confronting us will not be of concern in future litigation, for the current Section 15, enacted shortly after the injury in the present case, allows the employee to recover from either source without election. G. L. c. 152, Section 15, as appearing in St. 1971, c. 888, Section 1, and amended by St. 1971, c. 941, Section 1.