 |
 |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|
|
|
|
Domingo v. Town of Wellesley5/19/1998
Appeals Court
Norfolk.
January 29, 1998.
Fire Fighter. Words, "In the performance of duty."
Civil action commenced in the Superior Court Department on May 20, 1992.
A joint motion for reconsideration on cross motions for summary judgment, filed on June 25, 1993, was heard by Thomas E. Connolly, J., and final judgment on an assessment of damages was entered by Martha B. Sosman, J.
On June 14, 1991, the plaintiff, a fire fighter employed by the defendant, town of Wellesley (town), was injured through no fault of his own in an automobile accident. As a result of his injuries, the plaintiff was absent from his duties as a fire fighter for a period of time. After his benefits were exhausted under the fire fighters' collective bargaining agreement, the plaintiff made a demand on the town that he be paid pursuant to G. L. c. 41, Sect. 111F. His demand was rejected on the ground that his injuries were incurred while he was off duty. The plaintiff then brought an action against the town seeking a declaration that he was injured in the performance of his duties as a fire fighter, and therefore was entitled to compensation under G. L. c. 41, Sect. 111F, for the period he was absent from work.
A Superior Court Judge denied cross motions for summary judgment. Both parties then filed a joint motion for reconsideration. In their joint motion, the parties claimed that the cross motions for summary judgment, with their supporting memoranda, demonstrated that there was no dispute as to any material fact on the question whether the plaintiff was eligible for benefits under G. L. c. 41, Sect. 111F. In response, the Judge allowed the parties' motion for reconsideration, vacated his earlier order, allowed the plaintiff's motion for summary judgment, and denied the town's motion.
After partial judgment issued, another Superior Court Judge held a hearing on the plaintiff's motion for assessment of damages. After the hearing, the judge ordered judgment to enter in the plaintiff's favor in a net amount of $42,122.46, and the town was to restore any sick leave and vacation time used by the plaintiff since the accident. In the final judgment, the plaintiff was awarded prejudgment interest in the amount of $16,440.35.
Both parties filed timely notices of appeal and cross appeal; the town claims that the motion Judge committed error in allowing the plaintiff's motion for summary judgment, while the plaintiff claims that the Judge erroneously calculated the prejudgment interest in the award. We hold that the motion Judge committed error in allowing the plaintiff's motion and that a declaration should have issued in favor of the defendant.
The material facts in this case are not disputed. On June 14, 1991, the plaintiff was employed as a fire fighter by the town. Fire fighters in the town were given the opportunity to volunteer for special details. If fire fighters worked on a special detail, they were paid for the hours worked. In order to be considered for special detail work, it was necessary for a fire fighter to place his or her name on a list. On June 14, the plaintiff had the day off, but his name had reached the top of the volunteer list, and he was offered the special detail available that day. The plaintiff accepted the detail, which consisted of being a fire guard at Wellesley College; there was considerable construction being performed on the campus and fire guards from the town's fire department had been posted to help reduce the risk of a fire. The detail hours were from 7:00 A.M. to 3:00 P.M., and the plaintiff was paid by the town for the eight hours he worked.
Before reporting to
Page 1 2 3 Massachusetts Employee Leasing Services
Employee Leasing Services
|
| |
to fill out a simple form to connect to Employee Leasing Services in your area.
|
|