JOHN WEIR & Others v. SHAWNLEE CONSTRUCTION, LLC, & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1170

JOHN WEIR & others1

vs.

SHAWNLEE CONSTRUCTION, LLC, & others.2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A Superior Court jury awarded damages to the plaintiff,

John Weir (Weir), in the amount of $750,000.3 On appeal, Weir

claims that (1) the judge committed error by not submitting

Weir's request to the jury for a special jury verdict form which

would have clarified how the jury apportioned the damages,

1Jennifer Weir, individually and as parent and next friend
of Jocelyn Weir and Jordyn Weir.

2Liberty Mutual Insurance Company, Erland Construction,
Inc., Overlook Ridge Chase II L.L.C., Overlook Ridge L.L.C.,
Mack-Cali Realty Corporation, and Roseland Property Company.

3The jury also awarded $250,000 to plaintiff Jennifer Weir
for her loss of consortium, $30,000 to plaintiff Jocelyn Weir
for her loss of parental society, and $20,000 to plaintiff
Jordyn Weir for her loss of parental society. These awards are
not at issue in this appeal.
(2) the judge committed error in his order approving third-party

reimbursement which allocated the jury's damages award pursuant

to G. L. c. 152, § 15, and (3) the judge's order acknowledging

satisfaction of judgment was erroneous. We affirm.

Background. On April 13, 2016, Weir, an electrician, was

working on a construction project at a property operated by

Erland Construction, Inc., and owned by several different

entities. A set of stairs collapsed while Weir was walking on

it, causing him to fall and sustain injuries. The stairs had

been installed by subcontractor Shawnlee Construction, LLC

(Shawnlee), and the project was insured by Liberty Mutual

Insurance Company (Liberty).

Weir had to undergo multiple surgeries and was out of work

and disabled for approximately two years. While Weir was out of

work, Liberty paid his medical expenses and lost wages under

workers' compensation coverage. Liberty asserted a lien

pursuant to G. L. c. 152, § 15 (§ 15), in that amount,

comprising $85,644.85 in medical payments and $29,446.96 for

lost wages.

Weir filed suit against the defendants.4 In addition to the

lost wages and medical bills, Weir also alleged pain and

suffering.

4 Weir's wife and two minor daughters joined in the suit as
consortium plaintiffs.

2
Prior to trial, Shawnlee admitted to negligently

constructing the staircase and that this negligence caused the

staircase to collapse; a jury trial took place on damages only.

Before the final jury charge, the parties each filed a proposed

jury verdict form, which included special questions. Weir

argued that the jury needed to allocate damages into specific

categories, claiming that certain categories of damages

(including pain and suffering) are beyond the reach of the

workers' compensation insurer's lien held by Liberty. The judge

denied Weir's request, stating, "I could not think of a way to

do it [breaking out the damages into subcomponents] that would

not risk creating confusion in the juror[s'] minds between my

oral instructions, which detail six or seven or eight damages-

related components and what would be on the verdict form by way

of subcomponents."

The verdict form submitted to the jury simply stated, "What

amount, if any, do you award John Weir for the damages he

suffered as a result of the staircase collapse?" Weir timely

objected. The jury awarded $750,000 in damages to Weir and a

total of $300,000 in damages for loss of consortium to the three

members of his family. With costs and prejudgment interest,

judgment entered in the amount of $1,712,391.09.

Shawnlee promptly delivered three checks to Weir's counsel

totaling $1,717,461.51, which was the amount of the judgment

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plus nine days of postjudgment interest. Weir's counsel

accepted the payment, deposited the checks, and distributed at

least some of the funds.

Weir then filed a "motion for judicial approval of third

party reimbursement under G. L. c. 152, § 15" (§ 15 motion), in

which he asked the judge to resolve Liberty's lien by

apportioning the $750,000 jury verdict in one of three ways:

(1) $682,324.27 for pain and suffering, or (2) $680,000 for pain

and suffering, or (3) $630,000 for pain and suffering. Liberty

opposed Weir's apportionments and requested that the court

allocate $514,500 for pain and suffering. The parties submitted

documentation in support of their respective requests for

allocations. In response to the § 15 motion, the judge

allocated $630,000 to pain and suffering and $120,000 to medical

expenses and lost compensation.

Additionally, Shawnlee filed a "motion to acknowledge

satisfaction of judgment," which Weir opposed, and the judge

allowed.

Discussion. 1. General Laws c. 152, § 15 order. As a

threshold matter, we must consider whether the claims Weir makes

regarding the § 15 motion are properly before us. In a civil

case, an appellant "who by his conduct induces the commission of

some error by the trial court, or, in other words, who has

invited error, is estopped from insisting that the action of the

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court is erroneous" (citation omitted). Box Pond Ass'n v.

Energy Facilities Siting Bd., 435 Mass. 408, 422 n.14 (2001).

Here, Weir requested that the judge approve reimbursement

of Liberty's lien, offering three "scenarios" detailing how to

allocate the jury's verdict, with each scenario necessitating a

judicial determination of pain and suffering. Weir invited the

judge to allocate damages and to do so in the manner he

suggested; he is thus estopped from now appealing as error

either the fact that the judge allocated the damages or that he

did so by way of endorsing one of Weir's offered scenarios. See

Box Pond Ass'n, 435 Mass. at 422 n.14.

Furthermore, Weir requested that the judge allocate the

jury damages award pursuant to § 15. That general law and

section does not grant a party the right to a jury trial in the

allocation, nor did Weir request one. See G. L. c. 152, § 15.

By suggesting the procedure the judge used, Weir has waived any

right to argue on appeal that the judge's allocation was a

violation of his right to a trial by jury under the Seventh

Amendment to the United States Constitution or art. 15 of the

Massachusetts Declaration of Rights. See, e.g., Commonwealth v.

Vickery, 82 Mass. App. Ct. 234, 235 (2012) ("The acquiescence of

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defense counsel to actions taken by the trial judge can

constitute a waiver of any objection to the judge's actions").5

Regarding the particular allocation made, we conclude there

was no error. Pursuant to § 15, "[w]hen an employee recovers

damages from a third party, the workers' compensation insurer is

statutorily entitled to a lien on the recovery in the amount

that the insurer paid to the employee in benefits." DiCarlo v.

Suffolk Constr. Co., 473 Mass. 624, 625 (2016). However, § 15

excludes damages for the insured's pain and suffering from any

amount recoverable by the insurer. See id. at 633 ("The insurer

here did not compensate the employees for their pain and

suffering, and so cannot seek 'reimbursement' from damages paid

for those harms").

A judge is required to "inquire and make a finding . . . on

the fair allocation of the proceeds" (brackets omitted). Hultin

v. Francis Harvey & Sons, Inc. 40 Mass. App. Ct. 692, 696-697

(1996), citing G. L. c. 152, § 15. We will "accept the judge's

5 Because Weir is estopped from raising these issues on
appeal, we do not reach his argument that the denial of his
request for a special verdict form violated the Seventh
Amendment to the United States Constitution and art. 15 of the
Massachusetts Declaration of Rights. After the jury returned
its damages award, Weir could have requested a jury trial on
allocation of the damages award, but he did not. Instead, as
noted above, he asked the judge to allocate the damages award
pursuant to § 15. We express no view on whether Weir had a
constitutional right to a jury trial on allocation of the
damages award.

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over-all finding [if] it is not clearly erroneous and is

supported by evidence in the record." Hultin, supra at 697.

The parties, in their respective proposals, agree that the total

benefit payments Liberty made were $115,091.81. Further, the

judge considered all evidence introduced at trial regarding

Weir's injuries, including the medical expenses, lost

compensation, and pain and suffering resulting from his

injuries, and made specific findings as to each.

We see no error in the judge's conclusion that it was fair

and reasonable to allocate $630,000 to pain and suffering, which

represented eighty-four percent of the jury's damages award to

Weir. As stated above, this was one of the proposals that Weir

himself suggested in his § 15 motion. We conclude that the

judge's findings were neither clearly erroneous nor unsupported

by evidence in the record.

2. Order on motion to acknowledge satisfaction of

judgment. The amount of the judgment was $1,712,391.09. Nine

days after judgment, Shawnlee paid Weir more than that amount in

satisfaction of the judgment. Weir's counsel accepted the

payment, deposited the checks, and distributed funds.

Accordingly, the judge properly determined that the judgment had

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been satisfied. There was no error in the judge's order

acknowledging satisfaction of judgment.6

Order approving third-party
reimbursement under G. L.
c. 152, § 15, affirmed.

Order acknowledging
satisfaction of judgment
affirmed.

By the Court (Ditkoff,
D'Angelo & Wood, JJ.7),

Clerk

Entered: November 18, 2025.

6 We deny Shawnlee's request for an award of appellate
attorney's fees pursuant to Mass. R. A. P. 25, as appearing in
481 Mass. 1654 (2019).

7 The panelists are listed in order of seniority.

8