ESTHER G. PINA vs. LIBERTY MUTUAL INSURANCE COMPANY.

The plaintiff, Esther G. Pina, appeals from the dismissal of her action for a declaratory judgment seeking a ruling, among other things, that Liberty Mutual Insurance Company (Liberty Mutual) is barred by the statute of limitations, G. L. c. 260, Section 2A, from asserting its statutory right to reimbursement of workmen's compensation benefits paid to Pina, from the proceeds of the judgment award to Pina in the related case, Pina v. McGill Dev. Corp., ante 159 (1983). See G. L. c. 152, Section 15.

On January 3, 1975, Pina was injured in a fall on snow and ice as she was leaving work. Liberty Mutual, the employer's insurer, received on January 21, 1975, notice of her injury, which stated that she had fallen on the stairs of her employment premises. Liberty Mutual paid the plaintiff workmen's compensation benefits. Pina also filed a third-party action against McGill Development Corporation (McGill) seeking to recover damages for personal injuries sustained in the fall in the parking lot outside the employer's premises because of negligent maintenance by McGill. G. L. c. 152, Section 15. Pina was awarded a verdict against McGill in the sum of $125,000. Liberty Mutual did not learn that Pina had instituted the McGill suit until June, 1979. It promptly gave notice on June 26, 1979, of its lien for reimbursement of paid workmen's compensation benefits from any judgment in the McGill suit.

In September, 1979, Pina commenced her action for declaratory judgment. G. L. c. 231A, Section 1. The defendant's motion for dismissal under Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974), was allowed. The plaintiff's application for direct appellate review was granted by this court.

1. General Laws c. 152, Section 15, as in effect at the time of Pina's injury, permitted an employee simultaneously to claim and receive workmen's compensation benefits and to proceed at law to enforce any right he had against a third party. Once workmen's compensation benefits had been claimed or received, the statute gave a nonexclusive right to either the employee or the insurer to sue the third-party tortfeasor. [Note 1] St. 1971, c. 888.

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It is a purpose of Section 15 specifically to prevent the employee from having double recovery, once by way of damages and once by way of compensation. See McDonald v. Employers' Liab. Assurance Corp., 288 Mass. 170, 174 (1934); L. Locke, Workmen's Compensation Section 661 (2d ed. 1981). Accord Eisner v. Hertz Corp., 381 Mass. 127, 131 (1980); Richard v. Arsenault, 349 Mass. 521, 524 (1965). Section 15 prescribes the manner of distribution of the proceeds recovered by a third-party action. Pina was authorized by G. L. c. 152, Section 15, to claim and receive workmen's compensation benefits from Liberty Mutual and then to institute a third-party action for damages against McGill. However, Section 15 obligates Pina to pay over to the insurance carrier, from the judgment, the benefits paid by Liberty Mutual to Pina. [Note 2]

2. General Laws c. 260, Section 2A, is a general statute of limitations, requiring a party to commence a tort action within three years of the time the cause of action accrues. General Laws c. 152, Section 15, has no limitation of time expressed therein, but a third-party action under G. L. c. 152, Section 15, must be commenced within the time constraints of G. L. c. 260, Section 2A. The third-party action by Pina was commenced in April, 1976, slightly over one year from accrual of the cause of action. This is well within the constraints of the statute of limitations. Liberty Mutual did not attempt to bring a third-party action after the statute of limitations had run on the tort claim. Liberty Mutual is asserting its right of reimbursement pursuant to G. L. c. 152, Section 15. Section 15 does not impose any obligation on the insurer to institute a suit within the time prescribed by G. L. c. 260, Section 2A, in order to preserve its right to reimbursement. Arguably, an insurer's right of action for reimbursement arises no earlier than the date of settlement or satisfaction of judgment. It does not commence at the time of the employee's injury.

3. The statutory purpose of an action for declaratory judgment is to enable the judge "to afford relief from . . . uncertainty and insecurity" with respect to the rights of the parties, Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 292 (1977). Dismissal under Mass. R. Civ. P. 12 (b) (6) (failure to state a claim) was inappropriate. See G. L. c. 231A, Section 1. The judge should have determined the rights of the parties.

The judgment of dismissal is reversed, and the case is remanded to the Superior Court for a declaration of the rights of the parties.

So ordered.