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Horner v. Boston Edison Co.6/30/1998
97-P-0102 Appeals Court
Plymouth.
March 19, 1998.
Appeals Court, Summary Disposition. Workers' Compensation Act, Action against third person. Contract, Release from liability, Consideration. Labor, Collective bargaining.
Civil action commenced in the Superior Court Department on August 12, 1991.
A renewed motion for summary judgment was heard by Richard F. Connon, J., and an interlocutory appeal to the full bench of the Appeals Court was allowed by Smith, J.
On April 22, 1989, while making a security check at the defendant's (Edison's) Pilgrim Nuclear Plant, the plaintiff, Mark J. Horner, slipped and fell on a stairway with a missing tread. That mishap caused him serious injuries, which disabled him from working. At the time of the accident, Horner was an employee of Wackenhut Corporation (Wackenhut), which had a contract with Edison to provide security services at the plant. After filing a claim under G. L. c. 152 for workers' compensation benefits, he began receiving weekly payments from Wackenhut's workers' compensation insurer. The workers' compensation case was eventually the subject of a lump sum settlement agreement approved by the Department of Industrial Accidents on May 1, 1991. The agreement submitted to the board permits Horner to bring a third-party action pursuant to G. L. c. 152, Sect. 15.
In 1991, Horner sued Edison for negligence in causing the injuries suffered in the 1989 accident. At issue here is the validity of the release signed by Horner in July of 1988, as part of his original employment application with Wackenhut. The release, if valid, bars any suit by him against Edison for his injuries. Edison's motion for summary judgment has been denied three times by different Superior Court Judges. The last denial of Edison's renewed motion for summary judgment was made after our unpublished decision issued in McKenzie v. Boston Edison Co., 40 Mass. App. Ct. 1112 (1996), in which a panel of this court held that the same release at issue here was valid, and we affirmed a summary judgment for Edison on that basis. The motion Judge chose not to follow the reasoning in the McKenzie case. As a result, Edison brought an interlocutory appeal to a single Justice of this court pursuant to G. L. c. 231, Sect. 118, first par. The single Justice denied relief but gave Edison permission for an appeal to a full panel. See Swift v. American Mut. Ins. Co., 399 Mass. 373, 375 n.5 (1987).
There is a threshold issue. Edison argues that Horner's claims in this case are controlled by our unpublished decision in the McKenzie case. For the very reason that the decision was unpublished, Edison's argument is without merit. We have never suggested that summary decisions of this court issued pursuant to rule 1:28, as amended, 10 Mass. App. Ct. 942 (1980), may be relied upon or cited as authority in other cases. In fact, we reached the opposite Conclusion in at least two other cases. See Lyons v. Labor Relations Commn., 19 Mass. App. Ct. 562, 566 n.7 (1985), S.C., 397 Mass. 498 (1986); Wolbach v. Beckett, 20 Mass. App. Ct. 302, 306 n.5 (1985). While we left open the possibility that a summary decision could be cited as precedent in a "related" case, we have had no occasion to do so. See Purvis v. Commissioner of Correction, 29 Mass. App. Ct. 190, 192 n.5 (1990), where we refused to rely upon a rule 1:28 decision cited by one of the parties " ithout assessing any similarities and differences between that case and the present one."
Edison's argument on this point is that Horner's case and the decision in McKenzie are "related" because both deal with the same release in an identical context. There is no quest
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