JOANNE E. BERGER [Note 1] vs. H.P. HOOD, INC., & another [Note 2] (and a consolidated case [Note 3]).

ABRAMS, J. At issue is whether the exclusivity provision of the Workers' Compensation Act, G. L. c. 152, Section 23 (1992 ed.), bars an employee's claim against the owner and the insurer of the employer's motor vehicles for underinsurance benefits (UM). [Note 4] The plaintiff, Joanne E. Berger, asserts that her claim was not precluded by this provision because the claim sounds in contract rather tort. She maintains that G. L. c. 152, Section 23, applies only to common law tort claims. In the alternative, the plaintiff argues that only H.P. Hood, Inc. (Hood), the employer, should benefit from the immunity of G. L. c. 152, Section 23, and that American Mobile Corporation (American), First State Insurance Company (First), and Massachusetts Insurers Insolvency Fund (Fund) should be treated instead as third parties. [Note 5]

Facts. On August 14, 1981, the plaintiff's decedent, Gerard P. Berger, was killed in an automobile accident while in the course of his employment as a truck driver for the defendant Hood. American, a wholly owned subsidiary of Hood, owned the tractor-trailer which Berger was operating at the time of his death. American had leased these vehicles to Hood, which assumed responsibility for their registration and insurance.

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At the time of the accident, Hood self-insured its leased vehicles. To fulfill its financial obligations under the motor vehicle financial responsibility laws (G. L. c. 90, Sections 34A et seq. [1992 ed.]), Hood had purchased a motor vehicle liability bond from the Aetna Insurance Company. The bond contained no provision for uninsured or underinsured motorist coverage. In addition, Hood had also purchased an excess liability policy from Ideal Mutual Insurance Company, the Fund's predecessor [Note 6] and an umbrella policy from First.

In compensation for her husband's death, the plaintiff received workers' compensation benefits from Hood. In addition, the plaintiff recovered the maximum amount of money available under the insurance policy of the driver of the automobile that collided with the decedent's tractor-trailer. She also recovered underinsurance benefits under her husband's own automobile policy. [Note 7]

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1. The plaintiff's claim against Hood. The plaintiff asserts that she has a contractual right to recover UM benefits from Hood which is not precluded by the Workers' Compensation Act. "[T]he key to whether the Work[ers'] Compensation Act precludes a common law right of action lies in the nature of the injury for which plaintiff makes claim." Foley v. Polaroid Corp., 381 Mass. 545, 553 (1980), quoting Gambrell v. Kansas City Chiefs Football Club, Inc., 562 S.W.2d 163, 168 (Mo. App. 1978). The Workers' Compensation Act has been interpreted to encompass physical and mental injuries arising out of employment. Id. at 551. The plaintiff's UM claim derives from the same incident, a personal injury sustained in the course of employment, which gave rise to the payment of workers' compensation. See McLaughlin v. Stackpole Fibers Co., 403 Mass. 360, 362 (1988). Merely characterizing the claim as contractual does not alter the essential nature of this common law claim. Hood, if required to pay UM benefits, still would be paying a worker for an injury sustained in the course of employment.

Courts from other jurisdictions have addressed this question. Although there is a split of authority, [Note 8] we are more persuaded by those courts which have determined that the exclusivity provision of a Workers' Compensation Act bars an employee from recovering UM benefits from an employer for an injury in the course of employment. See Bouley v. Norwich, 222 Conn. 744 (1992); Gullet v. Brown, 307 Ark. 385 (1991). In Bouley, the Connecticut Supreme Court looked to the purpose behind Connecticut's uninsured motor vehicle statute and determined it was designed to be a "safety net" for motorists who are not otherwise protected. When an employee receives workers' compensation benefits, the Connecticut court concluded that "the policies underlying uninsured motorist coverage are not sufficiently compelling to override

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the exclusivity of the Worker's Compensation Act." Bouley v. Norwich, supra at 757. We agree.

Like the Connecticut uninsured motorist statute, G. L. c. 175, Section 113L (1992 ed.), was enacted with the objective of protecting the "public from injury caused by motorists who could not make the injured party whole." Cardin v. Royal Ins. Co., 394 Mass. 450, 454 (1985). It was intended "to minimize the possibility of . . . catastrophic financial loss [to] the victims of an automobile accident." Id., citing 1968 Senate Doc. No. 1030, at 7. In the case of a workplace injury, the employee is protected from the risk of catastrophic financial loss through workers' compensation. An employee who seeks additional coverage may purchase his own underinsurance coverage, as the plaintiff's decedent did in this case.

The exclusivity provision has been the cornerstone of our Workers' Compensation Act. Our exclusivity provision is very broad. The Legislature has had opportunities to narrow its scope, and has not done so. "Any change in compensation law which would permit a covered employee to recover compensation benefits and, in addition, permit litigation by the employee against his employer to recover for an injury clearly covered by the Workmen's Compensation Act is a public policy decision for the Legislature." Longever v. Revere Copper & Brass Inc., 381 Mass. 221, 226 (1980). [Note 9]

2. The plaintiff's claims against First and Fund. The plaintiff asserts that, even if G. L. c. 152, Section 23, applies to her claim, only Hood, the direct employer, is entitled to the benefit of that immunity. The plaintiff analogizes her claims for UM benefits against First and Fund to third-party suits,

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which are permitted by G. L. c. 152, Section 15. [Note 10] The analogy is inappropriate. Hood purchased the First and Fund policies to insure it against motor vehicle judgments in excess of its primary coverage. Hood owned the policies. Any suit against Fund and First is essentially a suit against Hood, as owner of the policies. We have determined that suits against Hood are barred by G. L. c. 152, Section 23. Thus, summary judgment in favor of First and Fund on Hood's UM coverage was appropriate.

3. The plaintiff's claim against American. The defendants suggest that this court pierce the corporate veil and conclude that Hood and American constitute a single employer. American is a wholly owned subsidiary of Hood. The rule in the Commonwealth is that corporations are to be regarded as separate entities where there is no compelling reason of equity "to look beyond the corporate form for the purpose of defeating fraud or wrong, or for the remedying of injuries." Gurry v. Cumberland Farms, Inc., 406 Mass. 615, 626 (1990), quoting My Bread Baking Co. v. Cumberland Farms, Inc., 353 Mass. 614, 618 (1986).

Hood asks us to disregard the corporate form in the case of American. On this record, there is no basis to do so. See Searcy v. Paul, 20 Mass. App. Ct. 134, 139 (1985) (no basis to disregard the corporate fiction absent either "flagrant disregard of corporate barriers" or fraud); Gordon Chemical Co., Inc. v. Aetna Casualty & Sur. Co., 358 Mass. 632, 638 (1971) ("Different corporations usually are distinct entities in law. It is only where the corporation is a sham, or is used to perpetrate deception to defeat a public policy, that it can be disregarded"); My Bread Baking Co. v. Cumberland

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Farms, Inc., supra at 620 (failure to observe with care the formal barriers between corporations may warrant disregard of the separate entities only "in rare particular situations in order to prevent gross inequity"). The fact that American is a wholly owned subsidiary does not permit us to pierce the corporate veil. Corporations may not "assume the benefits of the corporate form and then disavow that form when it is to their and their stockholders' advantage." Gurry, supra at 626.

Because American is a corporate entity separate from Hood, it does not benefit from the exclusivity provision of the Workers' Compensation Act. The trial judge based his ruling on the applicability of the exclusivity provision to American. See notes 4 & 7, third par., supra. Because we have determined that the corporations are separate entities, we reverse the judge's order of summary judgment for American.

4. Conclusion. We affirm the judge's order allowing the motions for summary judgment requested by the defendants Hood, First, and Fund on the issue of Hood's UM coverage. We vacate the judge's order allowing American's motion for summary judgment on the issue of American's UM coverage. The case is remanded to the Superior Court for further proceedings on the plaintiff's claim against American.

So ordered.