Cert. Watch: Merlini v. Canada

The First Circuit, in a 3-3 vote, has denied Canada’s petition for a rehearing en banc in Merlini v. Canada, the FSIA case I’ve written about before in which I’m representing the plaintiff. I last wrote about the case in June 2019, when I reported on the First Circuit decision in Merlini’s favor. To recap, this is the case of the clerical worker at Canada’s consulate in Boston who was injured on the job when she tripped over an unsecured cord. We brought a claim under the Massachusetts statute providing that employers who, like the Canadian government, fail to purchase workers’ compensation insurance for their workers, are strictly liable in tort. The First Circuit rejected Canada’s argument that our case was “based on” its policy decision not to comply with local workers’ compensation laws at its foreign consulates but instead to apply its own statutory scheme. It also rejected the US State Department’s argument that our case was “based on” the negligence of the co-worker who failed to secure the cord to the carpet. Instead, the First Circuit said, correctly in my view, that the case was based on “the fact that [Merlini] is an employee who was injured during the course of her employment while her employer failed to possess” the insurance required by law. Once it reached that conclusion, the conclusion that Canada had acted commercially, both because Merlini’s employment was plainly on the “commercial” side of the line and because many private businesses also fail to buy insurance when required, was easy. (more…)

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Case of the Day: Merlini v. Canada

The case of the day is Merlini v. Canada (1st Cir. 2019). Merlini, an American citizen, was a clerical worker at the Consulate General of Canada in Boston. In 2009, while setting up coffee and tea for a meeting, she tripped and fell over a cord that a fellow worker had failed to secure to the floor. She suffered a serious injury that, according to the Massachusetts Department of Industrial Accidents (more on that below), rendered her permanently unable to work. Simple case, right? The worker files a workers’ compensation claim and is paid the statutory benefits due to any worker injured on the job.

Not so simple, actually. The Government of Canada had not purchased workers’ compensation insurance in Massachusetts. It preferred to administer its own workers’ compensation system in Canada, and while it paid Merlini benefits under that system for a few months, it stopped payments in late 2009. Thus began Merlini’s long odyssey through the complexities of administrative tribunals and Massachusetts and federal courts—a journey that is not yet over despite her victory in today’s case. (more…)

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Case to Watch: Merlini v. Consulate General of Canada

Readers, here is an interesting case to watch: Merlini v. Consulate General of Canada. It’s an appeal from a decision of the Massachusetts Department of Industrial Accidents Reviewing Board. The Appeals Court will hear argument in the case in a week or so. Full disclosure: I am counsel to the appellant, Cynthia Merlini, though I didn’t represent her in the DIA proceedings that are on appeal.

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