O  T  H  E  R      D  E  C  I  S  I  O  N  S  :

Bujold v. EMC Corp., 2007 WL 4415635 (Mass. Super.)
(Dec. 10, 2007) (Gants, J.).

G.L. c. 149, § 48 provides that “[e]very employer engaged in carrying on any manufacturing, mechanical or mercantile establishment or workshop in the commonwealth shall allow every person … at least twenty-four consecutive hours of rest … in every seven consecutive days ….” It was undisputed that Plaintiff Bujold had been directed by Defendant to work eight consecutive days without a day off.

The issue was whether Bujold was employed by Defendant at a “mechanical or mercantile establishment” as defined by the statute.

The Court engaged in an exhaustive review of the history of legislative enactments concerning a mandatory day of rest, from the colonial era to the

twentieth century. Although the Defendant urged that the statute be interpreted narrowly to include only employees in factories, sweatshops, and retail establishments, the Court found that the law had a much broader purpose. “[L]ooking at the history and language of G.L. c. 149, § 48 in the context of this Common-wealth’s long tradition of preserving a weekly day of rest, it is plain that the legislative intent in enacting this provision was to ensure that, apart from those specifically exempted, employees who work in establishments that may be permitted to remain open on Sunday be guaranteed an alternative weekly day of rest.” Id. at *12. The Court concluded that a computer is a machine, making EMC a “mechanical establishment.” G.L. c. 149, §1.

Western World Ins. Co. v. Meridian Builders, 2007 WL 4707802 (Mass. Super.)
(Dec. 3, 2007) (van Gestel, J.).

In Western World, the Court held that an insured may recover attorneys’ fees from an insurer who has unsuccessfully brought a declaratory judgment action concerning its duty to defend. The case arose when Meridian received a c. 93A demand letter that had not yet been followed by a lawsuit. Based solely on that letter, Western World sought a declaratory judgment regarding whether it had a duty to defend Meridian. The Court dismissed the action, holding that it could not “know what claims may be brought in the as yet un-filed complaint. It, therefore, cannot declare, one way or the other, whether Western World will have a duty to defend or indemnify if a complaint is ever filed.” Id. at *1. Meridian moved to

amend its counterclaim against Western World to seek recovery of fees and costs incurred in connection with the dismissed action; Western World moved to dismiss.

The Court began by noting that the SJC has recognized the right of an insured to recover fees and costs from an insurer when they must resort to litigation to enforce a duty to defend. Id. at *3. In light of this holding, “[s]hould not the result be the same in a situation in which an insured prevails in a declaratory judgment action challenging the duty to defend brought by the insurer which is dismissed on summary judgment because the insurer’s action was brought prematurely? This Court thinks so, and so rules.” Id. at *3.