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Lane v. Plymouth Restaurant Group12/4/2003
h of the plaintiffs' claims. Hultin v. Francis Harvey & Sons, supra at 698-699. "Absent countervailing factors . . . a settlement agreement of an employee's third-party tort action that has been submitted to the Superior Court for approval, pursuant to G. L. c. 152, § 15, wherein the bulk of the settlement proceeds has been allocated to [claims for which the insurer may not be reimbursed] . . . must be eyed by the court with a healthy dose of skepticism." Id. at 699.
Settlement hearings pursuant to § 15 should not become full-fledged trials, but both the employee and the insurer should be permitted a true "opportunity . . . to be heard." Further, as the Appeals Court has stated, "the better course -- and one more in keeping with the statute's intent" is for the judge to make subsidiary findings of fact that lead him to conclude that the settlement allocation is "fair." Id. at 697.
Here, the judge did not comply with the statute. Managed Comp met its threshold burden by claiming that the settlement allocation was structured to defeat its lien on the settlement proceeds, see Walsh v. Telesector Resources Group, Inc., supra at 232, as evidenced by the fact that the emotional distress claims were added four years after the suit was begun, and by suggesting relevant questions it might pose. Once Managed Comp had done so, the statute mandated that the judge hear evidence regarding the fairness of the allocation. Managed Comp should have been afforded the opportunity it requested to cross-examine Lane, who testified that the settlement allocation was a fair representation of his family's losses, and to call Lane's sons as witnesses. Managed Comp proffered the types of questions it would have asked Lane, at least some of which were relevant to determining the comparative worth and merits of the husband's and sons' claims, such as the relationship between Lane and his wife and between each of the sons with his mother. We vacate the allowance of the petition for approval of settlement and remand the matter to the Superior Court for further proceedings consistent with this opinion.
So ordered.
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