Joshua Mello v. Sean Killeavy

April 23, 2019

Supreme Court
No. 2017-198-Appeal.
(PC 16-4593)

Joshua Mello :

v. :

Sean Killeavy. :

NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2017-198-Appeal.
(PC 16-4593)

Joshua Mello :

v. :

Sean Killeavy. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

OPINION

Justice Indeglia, for the Court. In this negligence action, the plaintiff, Joshua Mello

(Mello), appeals from a Superior Court grant of summary judgment in favor of the defendant, Sean

Killeavy (Killeavy), based on the exclusivity provision of the Workers’ Compensation Act,

G.L. 1956 § 28-29-20 (the exclusivity provision). On appeal, Mello contends that, despite the

limitation on remedies contained in the exclusivity provision, G.L. 1956 § 28-35-58 allows him to

bring a claim against his fellow employee for tortious acts of the coemployee that were outside the

scope of employment, even after he collected workers’ compensation benefits.1 This matter came

before the Court on March 6, 2019, for oral argument after full briefing of the issues. For the

reasons outlined below, we affirm the judgment of the Superior Court.

I

Facts and Travel

After a careful review of the record, we recite the following pertinent facts. Mello and

Killeavy were both employees of Ramsay’s, Inc. (Ramsay’s), a small, family-owned company that

1
General Laws 1956 § 28-35-58 governs the liability of third persons for damages when an
employee is injured.
-1 -
provides maintenance and groundskeeping services for cemeteries in Rhode Island. Killeavy had

worked as a seasonal laborer for Ramsay’s since August 2015. Beginning in December 2008,

Ramsay’s employed Mello, first as a laborer, and later as a crew chief. The two employees

apparently enjoyed a friendly relationship, and they engaged in practical jokes while on the job.

Unfortunately, one such prank went too far.

On August 17, 2016, Mello and Killeavy were working at St. Mary’s Cemetery in Bristol,

Rhode Island. At one point during the workday, while Mello was occupying a bathroom stall,

Killeavy, using a gas canister that he found on the job site, poured gasoline onto the bathroom

floor as a practical joke. Expecting only to create a loud “popping” noise to scare Mello, Killeavy

ignited the gasoline. 2 Unbeknownst to Killeavy, however, the gasoline had flowed into the stall

that Mello occupied, and, when the gasoline burst into flames, Mello was injured. As a result,

Mello was hospitalized with significant burns, leaving him unable to work for over a year. On

September 7, 2016, Ramsay’s, through its workers’ compensation insurer, The Beacon Mutual

Insurance Company, filed a memorandum of agreement with the Rhode Island Department of

Labor and Training providing for workers’ compensation benefits to be paid to Mello, and Mello

accepted the benefits. Additionally, on October 14, 2016, after having learned of the details of the

incident, the owner of Ramsay’s fired Killeavy.

On September 30, 2016, Mello filed a complaint in Providence County Superior Court

against Killeavy, alleging negligence and stating that “[o]n or about August 17, 2016 the [p]laintiff

was at all times in the exercise of due care and performing duties on behalf of his employer” when

the accident occurred. Killeavy answered, denying Mello’s claims; he additionally sought defense

2
At oral arguments, Mello’s attorney contended that this act was similar to a prank that Mello had
previously performed on Killeavy.

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and indemnity in this action pursuant to his parents’ homeowners’ insurance policy. 3 He also

sought defense and indemnity from United Ohio Insurance Company, which had provided both a

commercial package insurance policy and a commercial excess insurance policy to Ramsay’s at

the time of the incident.4 Killeavy later propounded requests for admissions upon Mello. 5

On February 21, 2017, Killeavy filed a motion for summary judgment, along with a

statement of undisputed facts, arguing that the exclusivity provision of the Workers’ Compensation

Act barred Mello’s negligence claim because Mello had accepted workers’ compensation benefits

from his employer for an injury occasioned by the acts of a fellow employee while on the job. In

his memorandum in opposition to Killeavy’s motion, Mello did not dispute Killeavy’s statement

of undisputed facts. However, he argued that, because Killeavy may have been on a lunch break

at the time the injury occurred, Killeavy would not be considered an “employee” at the time of the

incident and that § 28-35-58 would allow Mello to maintain a separate cause of action against

Killeavy as a “third party,” despite Mello’s acceptance of workers’ compensation benefits. Along

with his opposition memorandum, Mello attached correspondence from Ramsay’s noting that meal

breaks were noncompensable. Mello also provided the court with a copy of the transcript of the

deposition of Enzly Ramsay, the owner of Ramsay’s, who noted that his company had no set time

3
The insurer, Metropolitan Group Property and Casualty Insurance Company, filed a separate
declaratory-judgment action, arguing that it had no duty to defend or indemnify Killeavy pursuant
to a “business activities” exclusion in its insurance policy. Metropolitan Group Property and
Casualty Insurance Company v. Sean Killeavy, No. 2018-113-A., came before us on appeal after
the Superior Court entered judgment in favor of Metropolitan, and oral argument was heard on the
same day as the instant matter.
4
United Ohio had challenged this request in the United States District Court for the District of
Rhode Island. However, as counsel indicated at oral argument, United Ohio is now providing for
Killeavy’s defense in the instant matter.
5
In response to Killeavy’s request for admissions, Mello admitted that both he and Killeavy were
employees of Ramsay’s on August 17, 2016. He also admitted that he accepted workers’
compensation benefits for the injuries he incurred that day.

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or policy for when employees could take their lunch breaks and that Mello, as supervisor, would

have had discretion to decide when to take them.

A hearing on Killeavy’s motion for summary judgment was held on April 21, 2017. Mello

argued that Ramsay’s provided him workers’ compensation benefits before investigating whether

or not Mello’s injury occurred while he was on a lunch break. However, Mello admitted that,

under Rhode Island law, even if an employer improperly granted workers’ compensation benefits,

the employee is bound by the provisions of the Workers’ Compensation Act.6 Mello then reiterated

his argument that his injury had not occurred in the course of Killeavy’s employment because

Killeavy was on lunch break at the time. Additionally, he contended that Killeavy’s act was so

egregious that it was outside the scope of his employment with Ramsay’s. In response to the

hearing justice’s inquiry as to why Mello had alleged that he received the injury while “performing

duties on behalf of his employer,” Mello’s attorney replied that he had not been told about the

lunch break at the time, but had changed his theory of the case once Mello informed him of the

full story. However, Mello admitted that he had not sought to amend his complaint at any time to

articulate his new theory.

In the end, the hearing justice granted Killeavy’s motion for summary judgment. She first

noted that the main issue in the case was the application of the exclusivity provision to Mello’s

negligence claim. The hearing justice interpreted the exclusivity provision as providing immunity

to employers and employees, and quoted our opinion in Manzi v. State, 687 A.2d 461 (R.I. 1997)

(mem.), in which we stated that the Workers’ Compensation Act “bars a plaintiff from filing a

6
“Once a [workers’] compensation act has become applicable either through compulsion or
election, it affords the exclusive remedy for the injury by the employee or his dependents against
the employer and insurance carrier.” Cianci v. Nationwide Insurance Company, 659 A.2d 662, 668
(R.I. 1995) (quoting 2A Arthur Larson, The Law of Workmen’s Compensation, § 65.11 at 12-1
(1992)).
-4 -
second cause of action on the basis of a different legal theory in circumstances in which a plaintiff

seeks recovery for the same injuries on which his or her workers’ compensation claim was based.”

Manzi, 687 A.2d at 462. Moreover, she cited several of our opinions in reasoning that “it is well

settled that there is no exception to this particular provision for intentional torts or wrongful

conduct of a fellow employee.” The hearing justice then stated that, by accepting workers’

compensation benefits, Mello had waived any right he might have had to challenge whether he

was injured during the course of his employment. She concluded by finding that the caselaw and

statutes were clear: There was no exception to the immunity granted to coemployees under the

exclusivity provision, which meant that Mello could not maintain his suit against Killeavy.

On April 27, 2017, Mello prematurely appealed to this Court.7 On May 16, 2017, an order

entered granting Killeavy’s motion for summary judgment, and final judgment entered in favor of

Killeavy that same day.

II

Standard of Review

“A motion for summary judgment ‘is designed to decide in an expeditious fashion cases

presenting groundless claims.’” Hexagon Holdings, Inc. v. Carlisle Syntec Incorporated, 199 A.3d

1034, 1038 (R.I. 2019) (deletion omitted) (quoting Gallo v. National Nursing Homes, Inc., 106

R.I. 485, 487, 261 A.2d 19, 21 (1970)). “When we review a hearing justice’s grant of a motion

for summary judgment, we conduct our analysis de novo.” Id. “If we determine that ‘there exists

no genuine issue of material fact and the moving party is entitled to judgment as a matter of law,’

then we will affirm the grant of the motion.” Id. (brackets omitted) (quoting Sisto v. America

7
“This Court will treat a premature appeal as if it had been timely filed.” Hexagon Holdings, Inc.
v. Carlisle Syntec Incorporated, 199 A.3d 1034, 1038 n.3 (R.I. 2019) (brackets omitted) (quoting
Terzian v. Lombardi, 180 A.3d 555, 557 n.4 (R.I. 2018)).
-5 -
Condominium Association, Inc., 68 A.3d 603, 611 (R.I. 2013)). “In this endeavor, ‘we view the

evidence in the light most favorable to the nonmoving party.’” Id. (brackets omitted) (quoting

Narragansett Indian Tribe v. State, 81 A.3d 1106, 1109 (R.I. 2014)). “However, once the moving

party establishes ‘the absence of a material factual issue, the party opposing the motion has an

affirmative duty to establish either by affidavit or by other means the material issue of fact to be

decided.’” Id. (quoting Grissom v. Pawtucket Trust Co., 559 A.2d 1065, 1066 (R.I. 1989)). “The

party opposing the motion cannot establish a genuine issue of fact merely by resting on denials in

its pleadings.” Id. “Rather, the opposing party must ‘respond with specific facts that would

constitute a genuine issue for trial.’” Id. (quoting Volino v. General Dynamics, 539 A.2d 531, 533

(R.I. 1988)).

“We review questions of statutory interpretation de novo.” State v. Hazard, 68 A.3d 479,

485 (R.I. 2013) (brackets omitted) (quoting Campbell v. State, 56 A.3d 448, 454 (R.I. 2012)). In

so doing, our ultimate goal is to give effect to the purpose of the act as intended by the Legislature.

See State v. Santos, 870 A.2d 1029, 1032 (R.I. 2005).

III

Discussion

The crux of this appeal involves the application of several provisions of the Workers’

Compensation Act to Mello’s negligence claim. We begin with § 28-29-20, the exclusivity

provision, which provides:

“The right to compensation for an injury under chapters 29–38 of
this title, and the remedy for an injury granted by those chapters,
shall be in lieu of all rights and remedies as to that injury now
existing, either at common law or otherwise against an employer, or
its directors, officers, agents, or employees; and those rights and
remedies shall not accrue to employees entitled to compensation
under those chapters while they are in effect, except as otherwise
provided in §§ 28-36-10 and 28-36-15.” (Emphasis added.)

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This Court has stated that “[w]hen an injured employee receives workers’ compensation benefits,

the exclusivity provisions of § 28-29-20 extinguish all other rights to recovery based on the

wrongful conduct of the injured employee’s employer or that employer’s directors, officers,

agents, or employees.” DiQuinzio v. Panciera Lease Co., Inc., 612 A.2d 40, 42 (R.I. 1992)

(emphasis added). “Workers’ compensation benefits are meant as full compensation for any loss

or harm that is alleged to have been caused by any entity to which immunity from suit is extended

under § 28-29-20.” Id.

Moreover, § 28-29-17 of the Workers’ Compensation Act provides, in pertinent part, that

an employee:

“[S]hall be held to have waived his or her right of action at common
law to recover damages for personal injuries if he or she has not
given his or her employer at the time of the contract of hire or
appointment notice in writing that he or she claims that right and
within ten (10) days after that has filed a copy of the notice with the
director [of the department of labor and training.]”

As such, “[a]n employee who has not retained his or her common law rights under § 28-29-17 is

barred by the prohibitions contained in § 28-29-20 from bringing a tort action against his or her

employer in situations in which ‘workers’ compensation benefits are appropriate.’” Kulawas v.

Rhode Island Hospital, 994 A.2d 649, 656 (R.I. 2010) (quoting Lopes v. G.T.E. Products Corp.,

560 A.2d 949, 950 (R.I. 1989)).

Mello concedes that he was injured by Killeavy while on the job site and that Killeavy

was a coemployee of Ramsay’s at the time. He has also admitted that he accepted workers’

compensation benefits from Ramsay’s for his injuries. Additionally, it is clear that Mello did not

notify Ramsay’s of his intention to preserve any common-law right to sue in accordance with

§ 28-29-17. Accordingly, absent any other mitigating factor—such as a statute or interpretation

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thereof from this Court—summary judgment would be appropriate on Mello’s claim for

negligence against Killeavy.

However, Mello contends that § 28-35-58 enables him to maintain a suit against Killeavy,

even though he accepted and received workers’ compensation benefits from Ramsay’s. This

provision states, in pertinent part:

“Where the injury for which compensation is payable under chapters
29–38 of this title was caused under circumstances creating a legal
liability in some person other than the employer to pay damages in
respect of the injury, the employee may take proceedings, both
against that person to recover damages and against any person liable
to pay compensation under those chapters for that compensation,
and the employee shall be entitled to receive both damages and
compensation.” Section 28-35-58(a).

Under § 28-35-58, even after accepting workers’ compensation benefits, “[a]n injured employee

is not * * * barred from seeking damages from an entity not made immune under § 28-29-20 for

any loss or harm due to the wrongful conduct of such an entity.” DiQuinzio, 612 A.2d at 43.

Mello avers that the absence of the word “employees” after the word “employer” in

§ 28-35-58 implies that the Legislature did not intend to extend immunity to fellow employees

when the injury at issue “was caused under circumstances creating a legal liability in some person

other than the employer to pay damages in respect of the injury[.]” He claims that this occurs, as

was purportedly the case here, when an employee performs an act that is outside the scope of his

employment and that act injures a fellow employee.8 Under Mello’s theory, a person who was

injured on the job and collected workers’ compensation benefits would not thereafter be barred by

the exclusivity provision from suing the coemployee who caused the injury when the coemployee’s

8
We note that, due to the allegations in Mello’s complaint that he was performing duties on behalf
of his employer when he was injured, coupled with his lack of supporting affidavits in his
opposition to the motion for summary judgment, we will not consider his argument that he was on
an uncompensated lunch break at the time of the injury.
-8 -
acts could be considered to be outside the scope of employment. However, we have had occasion

to interpret each of the above provisions of the Workers’ Compensation Act, and have found no

basis in the law to create a judicial exception to the exclusivity provision for injuries caused by

acts of coemployees.

In DiQuinzio, the plaintiff was injured on the job when a truck driven by a coemployee

collided with another vehicle while on the highway. DiQuinzio, 612 A.2d at 41. The plaintiff

suffered significant injuries and collected workers’ compensation benefits for those injuries, but

thereafter attempted to sue the third-party leasing company, which had leased the truck to the

employer, for the same injuries that arose from the accident. Id. There, we stated that, pursuant to

G.L. 1956 § 31-34-4, any liability the leasing company had to the plaintiff was derivative of the

coemployee’s liability. 9 Id. at 44. In denying the plaintiff’s appeal, the Court held that “[t]he

import of the immunity afforded [to the coemployee] is that, in accordance with the Rhode Island

Workers’ Compensation Act, the plaintiff may not maintain an action based on [the coemployee’s]

alleged wrongful conduct.” Id.

We answered a question similar to the one at bar in the case of Boucher v. McGovern, 639

A.2d 1369 (R.I. 1994). In that case, the plaintiff was injured when a vehicle driven by a

coemployee collided with a cement truck. Boucher, 639 A.2d at 1371. The plaintiff collected

workers’ compensation benefits for the injury he suffered and subsequently sued the third-party

tortfeasors for damages. Id. The third-party tortfeasors then impleaded the coemployee into the

case, claiming that they had a right to contribution for the coemployee’s role in the plaintiff’s

9
General Laws 1956 § 31-34-4 “makes the owner-lessor of a for-hire motor vehicle jointly and
severally liable with any person permitted by the owner-lessor to operate such a vehicle for any
damages caused by the operator’s negligence.” DiQuinzio v. Panciera Lease Co., Inc., 612 A.2d
40, 41 (R.I. 1992).
-9 -
injury. Id. The coemployee moved for summary judgment, claiming that she was immunized from

contribution for the plaintiff’s injury. Id. Nonetheless, the trial justice allowed the claim for

contribution to move forward, stating that, when reading §§ 28-29-20 and 28-35-58 together, it

was clear “that § 28-29-20 in the context of the entire statutory scheme does not immunize

employees, directors, officers, or agents ‘where they are individually legally liable’ but does

immunize them when they are sued to impute liability to the employer.” Id. at 1372.

The coemployee petitioned for a writ of certiorari, which we granted; we ultimately

quashed the motion justice’s ruling. Boucher, 639 A.2d at 1379. This Court cited several cases,

including DiQuinzio, in noting that no cause of action, either direct or for contribution, may be had

against an entity or person made immune under § 28-29-20. Id. at 1374-76. We held that the trial

justice had erred in creating an exception to the immunity granted to coemployees under

§ 28-29-20 and that, because the plaintiff had no right to sue the coemployee for the injuries he

sustained, and for which he collected workers’ compensation benefits, the third-party tortfeasors

similarly had no claim for contribution against the coemployee for those same injuries. Id. at 1374,

1376.

While Mello suggests that the rule may seem harsh in light of his injuries, in the past we

have made no exception to the exclusivity provision for acts of coemployees that could be

considered to be outside the scope of employment. See Diaz v. Darmet Corporation, 694 A.2d

736, 738 (R.I. 1997); see also Kong v. Kuncio, 754 A.2d 103, 103 (R.I. 2000) (mem.). In Diaz,

the plaintiff was injured at work after being assaulted by the president of the company at which he

was employed. Diaz, 694 A.2d at 737. The plaintiff then filed for workers’ compensation benefits;

however, his application was denied after a workers’ compensation judge found that he had

suffered no disabling injury. Id. Thereafter, the plaintiff sued the president of the company in

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Superior Court. Id. However, the Superior Court determined that the exclusivity provision barred

this claim. Id. The plaintiff appealed, arguing that there was a willful-or-intentional-tort exception

to the exclusivity provision. Id. This Court held that, “[o]n the basis of the statutory provisions

and our prior case law interpreting those provisions,” the Superior Court was correct in

determining that there is no intentional-tort exception to the exclusivity provision, and that “an

employee waives his or her common-law remedy if the employee fails to properly notify the

employer of his or her intention to rely on the common law.” Id. at 738 (quoting Lopes, 560 A.2d

at 951).

Additionally, in Kong, the plaintiff suffered injuries after being hit by a car driven by a

coemployee while in their employer’s parking lot after work. Kong, 754 A.2d at 103. The plaintiff

received workers’ compensation benefits and then attempted to sue the coemployee and his wife

for the same injuries. Id. We held that, by virtue of receiving workers’ compensation benefits and

not having notified his employer of his intent to preserve his common-law rights, the plaintiff had

waived any common-law right he may have had to sue either the coemployee or his wife because

any “liability [was] based solely upon the negligence of the co-employee, who [was] entitled to

immunity under § 28-29-20.” Id.

In support of his purported “scope of employment” exception, Mello cites D’Andrea v.

Manpower, Inc. of Providence, 105 R.I. 108, 249 A.2d 896 (1969), in which we stated that an

employee acts within the scope of his or her employment when “at the time and place of the injury

[the employee] was reasonably fulfilling the duties of his employment or something incidental

thereto.” D’Andrea, 105 R.I. at 108, 249 A.2d at 899. However, D’Andrea is readily

distinguishable from the instant case. There, we created an expansive definition of an employee’s

scope of employment, which tended to favor the person seeking workers’ compensation benefits.

- 11 -
See id. Notably, D’Andrea did not involve an injury brought about by a coemployee, or the

exclusivity provision, and we have never applied the D’Andrea standard for scope of employment

in such cases. Id., at 109-10, 249 A.2d at 897-98; see Kong, 754 A.2d at 103; Diaz, 694 A.2d at

737. While Mello contends that we should apply that standard to third parties, his argument

ignores the fact that neither the exclusivity provision nor § 28-35-58 provides for a “scope-of-

employment” exception in the first place. Accordingly, we decline to extend the D’Andrea

standard to create liability for coemployees where none existed before.

Finally, Mello advances public-policy arguments in favor of the application of a scope-of-

employment exception to the exclusivity provision, citing to cases from other jurisdictions. We

are well aware that other jurisdictions have created exceptions, “either by legislative enactment or

judicial opinion,” to this strict rule granting immunity for tortious acts of coemployees. See Lopes,

560 A.2d at 950-51 (footnote omitted). Nevertheless, “in the absence of a legislatively created

exception to § 28-29-20, we shall adhere to the principle that an employee waives his or her

common-law remedy if the employee fails to properly notify the employer of his or her intention

to rely on the common law.” Diaz, 694 A.2d at 738 (quoting Lopes, 560 A.2d at 951). To hold

otherwise would be to essentially rewrite the exclusivity provision, a task this Court is not at liberty

to perform. See State v. Calise, 478 A.2d 198, 201 (R.I. 1984) (holding that the Court has “neither

the authority nor the competence to rewrite [a statutory] definition”).

There being no disputed issues of material fact left in this case, summary judgment was

appropriately granted in favor of Killeavy on Mello’s negligence claim.

IV

Conclusion

For the reasons set forth herein, we affirm the judgment of the Superior Court. We remand

the papers to that tribunal.

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STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS

SUPREME COURT – CLERK’S OFFICE

OPINION COVER SHEET

Title of Case Joshua Mello v. Sean Killeavy.
No. 2017-198-Appeal.
Case Number
(PC 16-4593)
Date Opinion Filed April 23, 2019
Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
Indeglia JJ.
Written By Associate Justice Gilbert V. Indeglia

Source of Appeal Providence County Superior Court

Judicial Officer From Lower Court Associate Justice Maureen B. Keough
For Plaintiff:

Ronald J. Resmini, Esq.
For Defendant:
Attorney(s) on Appeal
Mark T. Reynolds, Esq.
David E. Maglio, Esq.
Scott F. Bielecki, Esq.

 

SU‐CMS‐02A (revised June 2016)