Brown v. Nutter, McClennen & Fish

696 N.E.2d 953, 45 Mass. App. Ct. 212, 14 I.E.R. Cas. (BNA) 217, 1998 Mass. App. LEXIS 517
CourtMassachusetts Appeals Court
DecidedJuly 21, 1998
DocketNo. 96-P-1903
StatusPublished
Cited by45 cases

This text of 696 N.E.2d 953 (Brown v. Nutter, McClennen & Fish) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Nutter, McClennen & Fish, 696 N.E.2d 953, 45 Mass. App. Ct. 212, 14 I.E.R. Cas. (BNA) 217, 1998 Mass. App. LEXIS 517 (Mass. Ct. App. 1998).

Opinion

Lenk, J.

The plaintiff, Annemarie Brown, appeals from the dismissal of her complaint charging the defendants, Nutter, McClennen & Fish and Edward McLaughlin, Jr., with intentional infliction of emotional distress. The Superior Court judge dismissed Brown’s claims upon motions brought by the defendants pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974), concluding that the two claims are barred under the exclusivity provision of the workers’ compensation act. On appeal, Brown contends that the judge erred (a) in dismissing her claim against the defendant law firm Nutter, McClennen & Fish (NM&F), which, she argues, was not only her employer but also her legal counsel and provided her, in the latter capacity, with poor legal advice which furthered and concealed the improper actions of its employee McLaughlin; and (b) in dismissing her claim against the defendant attorney McLaughlin because his actions, which she avers caused her severe emotional distress, were neither in the course of his employment nor in furtherance of the interests of his employer. Brown’s basic contention is that neither claim is barred by the exclusivity provision of the workers’ compensation act. We conclude that Brown’s claim against NM&F was properly dismissed but that it was error to have dismissed her claim against McLaughlin.

1. Background. We summarize the facts as they appear in Brown’s complaint, drawing all inferences favorably to her, as we must. Harvard Law Sch. Coalition for Civil Rights v. President & Fellows of Harvard College, 413 Mass. 66, 68 (1992). Brown worked as a legal secretary for the law firm of NM&F for nine years (1986-1995), the first seven of which were spent at the Hyannis office working with McLaughlin, an attorney at the firm. Brown alleges that during the time she worked with McLaughlin, he manipulated and compelled her to conduct his personal affairs both during and outside of work hours. She asserts that he used her to conceal his personal problems and on numerous occasions forced her to do things which he knew or should have known were offensive and improper. On November 9, 1992, McLaughlin, for his own personal gain, had Brown forge his wife’s signature on a mortgage note for his home and then notarize the forged document. Brown acquiesced in so doing only after her initial refusal was countered by McLaughlin’s tears and threatened suicide.

[214]*214Immediately after Brown signed and notarized the falsified document, she began to suffer from uncontrollable crying and hysteria. She reported the incident shortly thereafter to attorney Patrick Butler, her supervisor and a partner in NM&F. Butler informed her that since the McLaughlin mortgage had already been recorded there was nothing he could do. Brown left work that day and was unable to return to work for the next week. She remained confined to her bed, suffering from nightmares, anxiety attacks, and uncontrollable crying. While Brown was in this condition, McLaughlin contacted her on more than one occasion by telephone, despite her request that he stop doing so and instructions to him from Butler that he not contact Brown.

After the November, 1992, incident, Brown continued to work for McLaughlin until 1993; he persisted in having her handle his personal affairs and conceal his personal problems. In 1993, Brown was transferred to the firm’s Boston office, where she worked until 1995. Despite counseling, Brown alleges that she suffers still from nightmares and anxiety attacks as a result of McLaughlin’s actions.

2. Intentional infliction of emotional distress: NM&F. Brown’s claim against the law firm arises from Butler’s alleged condonation and attempted cover-up of McLaughlin’s improper activities and from his having purportedly rendered to her flawed legal advice in a context fraught with conflict of interest. Her claim fails for two separate reasons. First, to the extent that Brown claims that Butler was acting in his supervisory capacity at NM&F, her employer, Brown’s claim is barred by the exclusivity provision of the workers’ compensation act. Second, to the extent that Brown now séeks to hold NM&F accountable for Butler’s bad legal advice, she exceeds by a wide margin the borders of her complaint, in which there is not the faintest suggestion that any lawyer-client relationship existed between Butler and Brown.

a. Exclusivity. The exclusivity clause of the workers’ compensation act, G. L. c. 152, § 24, as amended by St. 1991, c. 398, § 43, provides in relevant part that “[a]n employee shall be held to have waived his right of action at common law . . . in respect to an injury that is compensable under this chapter, to recover for personal injuries, if he shall not have given his employer, at the time of his contract of hire, written notice that he claimed such right. ...” See Foley v. Polaroid Corp., 381 Mass. 545, 548 (1980). In the absence of such written notice, as [215]*215here, G. L. c. 152, § 26, bars common law actions against employers where (1) the plaintiff is shown to be an employee; (2) her condition is shown to be a personal injury within the meaning of the workers’ compensation act; and (3) the injury is shown to have arisen out of and in the course of her employment. Foley, supra at 548-549. All three criteria are met here as to Brown’s claim against NM&F. First, Brown acknowledges that she was at all relevant times an employee of NM&F. Second, emotional distress of the type alleged here is a personal injury compensable under the act. Id. at 550. Green v. WymanGordon Co., 422 Mass. 551, 558 (1996). See G. L. c. 152, § 1(7A). Third, Brown’s injury arose from acts occurring during the workday at NM&F while working with McLaughlin. Brown does not allege that there were any circumstances other than the conditions of her employment at NM&F that played any part in her involvement in signing and notarizing McLaughlin’s mortgage documents. We note that this third criterion — that the injury arise from the employment — is to be broadly construed, so that an injury which arises “out of the employment looked at in any of its aspects” is subject to the act’s exclusivity provision. Doe v. Purity Supreme, Inc., 422 Mass. 563, 566 (1996), quoting from Caswell’s Case, 305 Mass. 500, 502 (1940). In determining whether such personal injury claims against the employer are compensable solely under the act, it is without consequence that the coemployee causing the injury may not have been acting in the course of his own employment or furthering their mutual employer’s interest. Foley, supra. Green, supra at 558. Doe, supra at 565-566.

b. Attorney-client relationship. Brown argues on appeal that she brings her claim against NM&F not as an employee (whose exclusive remedy would be under the workers’ compensation act) but as a client who had sought legal advice. On appeal, however, we look only to the allegations of Brown’s amended complaint against NM&F in determining whether the judge erred in dismissing it. See General Motors Acceptance Corp. v. Abington Cas. Ins. Co., 413 Mass. 583, 584 (1992). Even upon the most generous reading, we can discern no averment in Brown’s amended complaint to support her assertion that she brings her claim against the law firm as a client or that Butler in any way held himself out to Brown as her lawyer. There was no error in the allowance of NM&F’s motion to dismiss Brown’s claim.

[216]*2163.

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Bluebook (online)
696 N.E.2d 953, 45 Mass. App. Ct. 212, 14 I.E.R. Cas. (BNA) 217, 1998 Mass. App. LEXIS 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-nutter-mcclennen-fish-massappct-1998.