NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-540
ALEXANDER SANTIAGO ROSA
vs.
AFFORDABLE INTERIOR SYSTEMS, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 24, 2018, the plaintiff, Alexander Santiago
Rosa, was injured while working as a temporary employee for the
defendant, Affordable Interior Systems, Inc., on assignment from
Randstad North America, Inc. (Randstad), a staffing firm
employed by the defendant. On March 6, 2020, the plaintiff
filed a complaint in Superior Court alleging that he was injured
due to the defendant's negligence, gross negligence, and
reckless, willful, and wanton conduct. On July 6, 2022, the
defendant moved for summary judgment asserting, inter alia, that
the exclusivity provisions of the workers' compensation act
(act), set forth in G. L. c. 152, §§ 23-24, render it immune from tort liability.1 A judge of the Superior Court agreed, and,
on May 15, 2023, granted the defendant's motion and entered
judgment in favor of the defendant. The plaintiff subsequently
filed a motion for reconsideration which was denied on July 23,
2023. This appeal followed. We affirm.
Background. Randstad entered into a staffing agreement
with the defendant which provided that Randstad was responsible
for interviewing, hiring, assigning, and paying employees, while
the defendant was responsible, inter alia, for supervising
employees' day-to-day work, safeguarding the premises, and
providing safety training. At all relevant times, Randstad
maintained a workers' compensation and employers' liability
insurance policy with Ace American Insurance Company. The
policy contains an "alternate employer endorsement" that
explains when the policy applies to alternate employers. The
alternate employer endorsement does not name specific alternate
employers but references an amendatory endorsement. The
amendatory endorsement defines an alternate employer as "[a]ll
On April 15, 2020, the defendant initially filed on a 1
motion to dismiss which was allowed by a judge of the Superior Court on August 4, 2020. However, this court reversed the judgment, concluding that the judge erroneously considered evidence outside of the complaint without first converting the defendant's motion to dismiss to one for summary judgment. See Rosa v. Affordable Interior Systems, Inc., 100 Mass. App. Ct. 1128 (2022). On remand, this summary judgment action then followed.
2 clients for which the insured has agreed to provide workers[']
compensation insurance and employers['] liability insurance
under a written contract or agreement, except that no client is
an alternate employer for claims arising out of the alternate
employer's negligence unless that applicable contract
specifically denotes such an obligation." The motion judge
concluded that the staffing agreement between Randstad and the
defendant was such a "written contract or agreement"
contemplated by the amendatory endorsement, and therefore the
defendant qualified as an alternate employer for purposes of the
endorsement. As a result, the judge found that the defendant
satisfied the requirements for immunity, as set forth in our
decision in Lang v. Edward J. Lamothe Co., 20 Mass. App. Ct.
231, 232 (1985).
On appeal, the plaintiff argues that because the defendant
was not specifically named in the amendatory endorsement, the
defendant does not qualify as an "insured person" pursuant to
our decision in Lang, supra, and is therefore not entitled to
immunity under the act. The plaintiff also asserts that a valid
waiver of claims is a prerequisite for immunity, and that the
defendant failed to obtain such a waiver here. We address the
plaintiff's arguments in turn.
Discussion. 1. Standard of review. "[W]e review the
motion judge's grant of summary judgment de novo." Molina v.
3 State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015). "The
standard of review of a grant of summary judgment is whether,
viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to judgment as a matter of law
(citations omitted)." Id.
2. Immunity under the workers' compensation act. The act
"provides the exclusive remedy for claims brought by an injured
employee against an employer." Molina, 88 Mass. App. Ct. at
178. "The [A]ct was designed to replace tort actions, by
providing a uniform, statutory remedy for injured workers, in
contrast to a piecemeal, tort-based system" (citation omitted).
Id. Although the "exclusivity provisions are the 'cornerstone'
of the Act . . . . [s]ection 15 of the Act leaves open the
possibility that, notwithstanding receipt of workers'
compensation benefits from the employer, an injured employee may
bring tort actions against other entities." Id. at 178-179.
"[F]or an employer to be immune under [the act] from an
employee's common law action, that employer must satisfy a two-
part test: '(1) the employer must be an insured person liable
for the payment of compensation, and (2) the employer must be
4 the direct employer[2] of the employee'" (the Lang test). Lang,
20 Mass. App. Ct. at 232.
Here, it is undisputed that the defendant was the
plaintiff's direct employer and thus satisfies part two of the
Lang test. Therefore, the question is whether the defendant
satisfies part one of the test, which asks "whether the employer
is insured and liable for workers' compensation benefits owed
the employee." Molina, 88 Mass. App. Ct. at 179. In cases such
as the one here, "where there is both a general and a special
employer, § 18 of the Act comes into play." Id. The last
paragraph of G. L. c. 152, § 18 provides:
"In any case where there shall exist with respect to an employee a general employer and a special employer relationship, as between the general employer and the special employer, the liability for the payment of compensation for the injury shall be borne by the general employer or its insurer, and the special employer or its insurer shall be liable for such payment if the parties have so agreed or if the general employer shall not be an insured or insured person under this chapter."
"Thus, if a special employer is also the injured employee's
direct employer (thus satisfying part two of the test), and the
general and special employer have agreed that the latter shall
be liable for carrying workers' compensation insurance and
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-540
ALEXANDER SANTIAGO ROSA
vs.
AFFORDABLE INTERIOR SYSTEMS, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On November 24, 2018, the plaintiff, Alexander Santiago
Rosa, was injured while working as a temporary employee for the
defendant, Affordable Interior Systems, Inc., on assignment from
Randstad North America, Inc. (Randstad), a staffing firm
employed by the defendant. On March 6, 2020, the plaintiff
filed a complaint in Superior Court alleging that he was injured
due to the defendant's negligence, gross negligence, and
reckless, willful, and wanton conduct. On July 6, 2022, the
defendant moved for summary judgment asserting, inter alia, that
the exclusivity provisions of the workers' compensation act
(act), set forth in G. L. c. 152, §§ 23-24, render it immune from tort liability.1 A judge of the Superior Court agreed, and,
on May 15, 2023, granted the defendant's motion and entered
judgment in favor of the defendant. The plaintiff subsequently
filed a motion for reconsideration which was denied on July 23,
2023. This appeal followed. We affirm.
Background. Randstad entered into a staffing agreement
with the defendant which provided that Randstad was responsible
for interviewing, hiring, assigning, and paying employees, while
the defendant was responsible, inter alia, for supervising
employees' day-to-day work, safeguarding the premises, and
providing safety training. At all relevant times, Randstad
maintained a workers' compensation and employers' liability
insurance policy with Ace American Insurance Company. The
policy contains an "alternate employer endorsement" that
explains when the policy applies to alternate employers. The
alternate employer endorsement does not name specific alternate
employers but references an amendatory endorsement. The
amendatory endorsement defines an alternate employer as "[a]ll
On April 15, 2020, the defendant initially filed on a 1
motion to dismiss which was allowed by a judge of the Superior Court on August 4, 2020. However, this court reversed the judgment, concluding that the judge erroneously considered evidence outside of the complaint without first converting the defendant's motion to dismiss to one for summary judgment. See Rosa v. Affordable Interior Systems, Inc., 100 Mass. App. Ct. 1128 (2022). On remand, this summary judgment action then followed.
2 clients for which the insured has agreed to provide workers[']
compensation insurance and employers['] liability insurance
under a written contract or agreement, except that no client is
an alternate employer for claims arising out of the alternate
employer's negligence unless that applicable contract
specifically denotes such an obligation." The motion judge
concluded that the staffing agreement between Randstad and the
defendant was such a "written contract or agreement"
contemplated by the amendatory endorsement, and therefore the
defendant qualified as an alternate employer for purposes of the
endorsement. As a result, the judge found that the defendant
satisfied the requirements for immunity, as set forth in our
decision in Lang v. Edward J. Lamothe Co., 20 Mass. App. Ct.
231, 232 (1985).
On appeal, the plaintiff argues that because the defendant
was not specifically named in the amendatory endorsement, the
defendant does not qualify as an "insured person" pursuant to
our decision in Lang, supra, and is therefore not entitled to
immunity under the act. The plaintiff also asserts that a valid
waiver of claims is a prerequisite for immunity, and that the
defendant failed to obtain such a waiver here. We address the
plaintiff's arguments in turn.
Discussion. 1. Standard of review. "[W]e review the
motion judge's grant of summary judgment de novo." Molina v.
3 State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015). "The
standard of review of a grant of summary judgment is whether,
viewing the evidence in the light most favorable to the
nonmoving party, all material facts have been established and
the moving party is entitled to judgment as a matter of law
(citations omitted)." Id.
2. Immunity under the workers' compensation act. The act
"provides the exclusive remedy for claims brought by an injured
employee against an employer." Molina, 88 Mass. App. Ct. at
178. "The [A]ct was designed to replace tort actions, by
providing a uniform, statutory remedy for injured workers, in
contrast to a piecemeal, tort-based system" (citation omitted).
Id. Although the "exclusivity provisions are the 'cornerstone'
of the Act . . . . [s]ection 15 of the Act leaves open the
possibility that, notwithstanding receipt of workers'
compensation benefits from the employer, an injured employee may
bring tort actions against other entities." Id. at 178-179.
"[F]or an employer to be immune under [the act] from an
employee's common law action, that employer must satisfy a two-
part test: '(1) the employer must be an insured person liable
for the payment of compensation, and (2) the employer must be
4 the direct employer[2] of the employee'" (the Lang test). Lang,
20 Mass. App. Ct. at 232.
Here, it is undisputed that the defendant was the
plaintiff's direct employer and thus satisfies part two of the
Lang test. Therefore, the question is whether the defendant
satisfies part one of the test, which asks "whether the employer
is insured and liable for workers' compensation benefits owed
the employee." Molina, 88 Mass. App. Ct. at 179. In cases such
as the one here, "where there is both a general and a special
employer, § 18 of the Act comes into play." Id. The last
paragraph of G. L. c. 152, § 18 provides:
"In any case where there shall exist with respect to an employee a general employer and a special employer relationship, as between the general employer and the special employer, the liability for the payment of compensation for the injury shall be borne by the general employer or its insurer, and the special employer or its insurer shall be liable for such payment if the parties have so agreed or if the general employer shall not be an insured or insured person under this chapter."
"Thus, if a special employer is also the injured employee's
direct employer (thus satisfying part two of the test), and the
general and special employer have agreed that the latter shall
be liable for carrying workers' compensation insurance and
2 A direct employer is one "who has direction and control of the employee" (citation omitted). Fleming v. Shaheen Bros., 71 Mass. App. Ct. 223, 227 (2008) ("The primary test is whether one has a right to control the individual's work performance" [citation omitted]).
5 paying workers' compensation benefits, the special employer may
be immune from tort liability." Molina, supra at 180.
In Molina, 88 Mass. App. Ct. at 173, we concluded that an
alternate employer endorsement to a staffing company's workers'
compensation insurance policy, nearly identical to the one
Randstad has here, satisfies the requirements of G. L. c. 152,
§ 18 "such that an injured employee's employer, a customer of
the staffing company and named in the endorsement, is immune
from tort liability under the Workers' Compensation Act." The
plaintiff attempts to distinguish this case from Molina, citing
the fact that the defendant was not specifically named as an
alternate employer in the endorsement. The argument is
unavailing. Here, as mentioned above, the alternate employer
endorsement references an amendatory endorsement which defines
an alternate employer as "[a]ll clients for which the insured
has agreed to provide workers['] compensation insurance and
employers['] liability insurance under a written contract or
agreement, except that no client is an alternate employer for
claims arising out of the alternate employer's negligence unless
that applicable contract specifically denotes such an
obligation." Therefore, because it is also undisputed that
Randstad was the plaintiff's general employer and the defendant
was his special employer, the ultimate question is whether
Randstad agreed to provide workers' compensation insurance and
6 employers' liability insurance to the defendant through a
"written contract or agreement."
To answer this question in the affirmative, we need only
look to the staffing agreement between Randstad and the
defendant where Randstad agreed to "provide unemployment
insurance and workers' compensation benefits to all Assigned
Employees; be solely responsible for handling all unemployment
and workers' compensation claims involving Assigned Employees;
and add Alternate Employment Endorsement to Staffing Firm's
workers' compensation policy." As noted by the motion judge,
the plaintiff was an assigned employee whose claims against the
defendant clearly fall within the purview of this provision.3 As
such, because the defendant was an "insured person liable for
the payment of compensation," as well as the plaintiff's direct
employer, the defendant satisfies both prongs of the Lang test
and is therefore immune from tort liability.4 Lang, 20 Mass.
App. Ct. at 232.
3 The amendatory endorsement also states that "no client is an alternate employer for claims arising out of the alternate employer's negligence unless the applicable contract specifically denotes such an obligation." As the motion judge noted, this language is satisfied by the staffing agreement which applies to "all unemployment and workers' compensation claims involving Assigned Employees," such as the plaintiff's negligence claims (emphasis supplied).
4 We agree with the motion judge that the staffing agreement's "provisions regarding indemnification and limitation of liability do not negate Randstad's agreement to provide
7 Additionally, while the plaintiff concedes that "the legal
standard applied to the facts of the case are set forth in
Molina," he nonetheless argues that the defendant needed to
obtain a valid waiver of claims to be immune from liability.
However, as the motion judge noted, Molina provides "two
separate bases" by which the special employer could escape
liability: (1) the alternate employer endorsement rendered the
special employer immune from suit under the act and, (2) in the
alternative, the plaintiff had signed a valid waiver of his
right to sue the special employer. See Molina, 88 Mass. App.
Ct. at 182 (concluding defendant protected by waiver and release
"in addition to having immunity under the Act" [emphasis
supplied]). Therefore, because a valid waiver is not a
prerequisite for immunity under the act, we need not address the
plaintiff's arguments regarding whether the waiver he executed
on June 29, 2018, was valid.5
worker[s'] compensation benefits to all employees assigned" to the defendant and "to handle all claims involving such employees."
5 This includes plaintiff's argument that the Massachusetts Noncompetition Agreement Act renders the waiver invalid.
8 For the foregoing reasons, we also conclude the motion
judge did not err in denying the plaintiff's motion for
reconsideration.
Judgment affirmed.
Order denying motion for reconsideration affirmed.
By the Court (Desmond, Ditkoff & Englander, JJ.6),
Clerk
Entered: August 27, 2025.
6 The panelists are listed in order of seniority.